Abuse of the right to appeal against actions (inaction) and decisions of state bodies and officials involved in criminal prosecution

The right to appeal against actions (inaction) and decisions of government departments, local governments, associations and officials is an important constitutional principle enshrined in the Criminal Procedure Code of the Russian Federation. Moreover, legislators have provided two ways for appealing: a general and a judicial one. It is difficult to overestimate the role of the institute of judicial appeal since this institute fulfills recovery, regulative and preventive functions. However, sometimes the parties to a criminal trial can misuse their rights; use them in their own interests causing harm to other people and justice. In law such a behavior is called the abuse of right. The article states that a prerequisite of the abuse of right to appeal is the lack of clear legislative criteria in relation to the subject-matter and content of complaint, the subjects and the terms of appeal. The analysis of the national court practice and precedents of the European Court of Human Rights (ECHR) has allowed making a classification of such abuses. Taking into account the subject matter of an appeal, the author separates pointless complaints, complaints with the indication of alleged violations; complaints with defective intents and complaints with defective grounds. The latter comprise an appeal on behalf of others; falsification of documents sent to the court; non-disclosure of the key information by the applicant and others. The author pays attention to the repeated complaints and interpretation of the criterion of repeatability in the judicial practice of both Russia and the ECHR. Moreover, the author examines different approaches to the determination of the scope of persons having the right to appeal and time limits of this right. She gives some proposals on the development of criminal procedure legislation. The article provides a mechanism for the prevention and suppression of the abuse of right to appeal. The constituent components of such a mechanism will include filling of the identified legislative gaps in regulation of the institute of appeal and authorizing the court to dismiss a complaint, i.e. penalties against bad faith applicants. The proposed mechanism will not allow any arbitrary restrictions on the rights of the subject of appeal even in the interests of justice. This can be achieved by setting clear requirements for government departments to prevent their influence on the applicant at their discretion.

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