The choice of the topic of the dissertation, its relevance and theoretical significance for the science of criminal procedure and law enforcement practice is due to the fact that achievement of the objectives of criminal proceedings, primarily to ensure a prompt, complete and impartial investigation and trial, requires all participants to criminal proceedings to properly exercise their rights within the limits and in the manner prescribed by law. Otherwise, we may observe cases of abuse of procedural rights, which, of course, also occurs on the part of the advocate as a participant in criminal proceedings. The issue raised requires a proper solution by means of regulatory regulation in the provisions of the CPC of Ukraine of the relevant prohibition on the inadmissibility of abuse of procedural rights, including by an attorney-at-law.
The presented work is a qualifying scientific work which comprehensively examines the essence and features of the concept «abuse of procedural rights by an attorney-at-law in criminal proceedings», distinguishes it from related definitions, conducts a classification, studies the legislation of foreign countries, national case law and the case law of the European Court of Human Rights, and on the basis of which the author formulates proposals and recommendations for improving the current legislation of Ukraine.
Based on the results of studying the scientific literature and case law on the interpretation of the concept of «abuse of procedural rights by an attorney-at-law in criminal proceedings», the author proposes to understand the act of an attorney-at-law which is not directly prohibited by law and does not contradict his/her duties, complies with the procedure for exercising the right provided for by law, and which results in violation (threat of violation) of the rights and/or legitimate interests of other persons, provided that there is no justification for such behaviour.
The analysis of the legal nature of the abuse of procedural rights by an attorney-at-law in criminal proceedings has made it possible to state that this legal category is not a new phenomenon, since it is historically inherited and directly depends on the development of the Bar as an institution of civil society.
Based on the analysis of various approaches of scholars to the identification of the signs of abuse of rights, the author expresses the view that in the context of abuse of procedural rights by an attorney-at-law in criminal proceedings, it is advisable to identify the following signs 1) is not directly prohibited by law; 2) consists in an act (action or inaction); 3) contradicts the principle of good faith; 4) is discordant with the principle of reasonableness; 5) violates (creates a relevant threat) the rights and legitimate interests of other persons; 6) should be established by the investigating judge, court.
Based on the results of the research conducted to distinguish the abuse of procedural rights by an attorney-at-law from related legal categories, the author notes that abuse of procedural rights cannot be equated with, but should be distinguished from other related legal categories, in particular, the following: «non-exercise of a specific right», «breach of procedural duty», «mistakes», «lawful behaviour», «offences».
The author analyses the classification of abuse of procedural rights by an attorney-at-law in criminal proceedings based on sixteen criteria 1) depending on the regulatory framework; 2) by the level of legal regulation; 3) by the characteristics of the requirements of criminal procedural legislation; 4) depending on the specifics of the abuser; 5) depending on the procedural status of a participant to criminal proceedings whose rights and legitimate interests are protected or represented by an attorney-at-law; 6) depending on the content of abusive behaviour (nature of behaviour) 7) depending on the stage of criminal proceedings; 8) on the qualitative grounds; 9) on the quantitative grounds; 10) depending on the prevalence of abuse; 11) depending on the object to which the harm is caused; 12) depending on the consequences of abuse of procedural rights; 13) depending on the amount of damage caused; 14) depending on violations of the requirements of the criminal procedural legislation; 15) on the subjective side; 16) on the motivation of the activity.
Keywords: criminal proceedings, procedural rights, abuse of procedural rights, legal aid, defence counsel, attorney-at-law, justice, rule of law, trial, challenge, right to familiarization, access to justice.
