| Abstrakt: |
Criminal proceedings as activities are specific, because they are characterized by a specific ratio, including the convergence, on the one hand, of public and private interests, on the other hand, of different private interests. Accordingly, there is a question as to how to use rights and powers to realize the same interests. In a situation where the general permit type of regulation of behavior is characteristic for the non-governmental participants, and the government has a discretionary power, the doctrine and practice raises the question of the constitution of abuse of the right as a criminal procedural phenomenon, in which case not only the right, but also the powers. However, because of the difficulty of understanding and defining this phenomenon, the doctrine and practice on this issue is neither consistent nor consistent. The purpose of the article is to define the nature of "abuse of the right" in the legal doctrine, its forms, subject-matter composition, identification of the application of this phenomenon to criminal proceedings; to assess the possibility of allocation as a phenomenon of abuse of the right to protection. The article, based on doctrinal sources, in the foundation of the rule of law, examined the legal nature of the abuse of law in the doctrine. The problem of abuse of the right on the basis of the practice of the ECHR has been considered. The practical assessment of the abuse of law in the practice of national courts, in particular the Grand Chamber of the Supreme Court, the Casation Criminal Court, the Supreme Court and the High Anti- Corruption Court, has been studied, and the legal approaches to interpretation of this concept have been analyzed. The use of the term "abuse of the right" in the text of the Criminal Procedure Code of Ukraine has been commented, and attention is paid to the fact that the abuse of the right in criminal proceedings is considered by the national law-maker as harmful behavior, such way of realization of the right, which formally meets the requirements of the CPC of Ukraine, However, it contradicts its normative goal and the task of criminal proceedings in general or some of its institutes, which can be directly envisaged in the CPC of Ukraine restriction of realization of rights, as well as initiation of disciplinary measures. The draft laws were criticized for not establishing the basis of the inadmissibility of the abuse of the right to criminal proceedings because of the legal uncertainty and discrimination of their provisions. Proved wrong terminological design as "abuse of the right to protection". As is seen from the analysis of perspective legislation, the lawmaker introduces into criminal procedural legislation the concept of abuse of the right, under which such a way of its realization is the basis of legal responsibility. However, in the context of competition and conflict of criminal proceedings, when the interests of its participants contradict each other, including the ones directly opposite, granting the investigating judge, court, and the prosecution of the authority to recognize certain actions (the list of which is inexhaustible) abuse of procedural rights, could significantly undermine the principle of legal certainty in the field of criminal proceedings and would not contribute to the strengthening of the legal protection of its participants. Thus, to prevent the fact that the doctrine and practice is called abuse, there is a need to apply another legal mechanism -- formalization of violations with respect to the principle of legal certainty, that is, in such a way that their presence / absence could not be viewed in different ways by the participants of criminal proceedings, taking into account, the term "abuse of the right to defense" in criminal proceedings is inconsistent with the essence of this right and the mechanism of its realization. [ABSTRACT FROM AUTHOR] |
