A Court's Decision on the Presence of Abuse of Right in the Act of a Person and Its Consequences

As part of a research team, the authors studied the legal practice within the project "Abuse of Legal Right in Criminal Proceeding: System and Non-System Aspects, Its Prevention and Restraint" in 2016-2018. The subject of the study was materials of archive criminal files, appeal and cassation proceedings, complaints filed in accordance with Article 125 of the Criminal Procedure Code of the Russian Federation, published court judgments and materials on complains from the Archive of the Constitutional Court of the Russian Federation. The aim of this article was, based on the results of the study within the project, to consider judgments of the court, in which the court stated the presence of abuse of right on the part of the participants in the criminal trial, to assess their relevance, consequences of such judgments for participants, proportion of the real restriction of rights of participants to the gravity of their behavior, and, on this basis, to formulate requirements for these legal decisions, list of consequences which the court should consider when making such judgments. In this article, the authors suggest to understand abuse of right in a criminal trial as the use by the subject of a criminal trial of an opportunity (a legal right or a discretionary authority) that formally does not break a legal rule established by the law, which sets the limits and the order of the realization of this opportunity, yet contradicts to the purpose of this legal rule, if this results in (possible) violation of constitutional rights, legal interests of other participants in a criminal trial, public interests (for example, a fair judgment in the case is jeopardised). The authors formulated several criteria to separate abuse of legal right from legally acceptable behavior, and limits of admissible interference of the state into the situations of abuse of right. Taking these criteria into consideration, general situations in which the court solved the problem of the presence (absence) of abuse of right in the participant's behavior were analyzed, the validity of the judgments is assessed. The real scope of restraint of participants' rights resulting from such judgments is considered, the level of the real possibility of the realization of rights of participants whose rights were restricted by the court is assessed. The authors give a range of consequences for the court to consider when deciding on the restriction of the period for familiarizing with the materials in a case. The authors come to a conclusion that response measures applied by the court in case of factual findings of abuse of right should be strictly proportional to the consequences of such a behavior. Each time, the court should assess the correlation between the possible damage caused by the participant's behavior and the consequences of interruption into their behavior in the context of providing for the right of this participant to judicial protection.

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