Злоупотребление процессуальными правами и реализация дискреционных прав властными субъектами в досудебном производстве: понятие и соотношение

Abstract

In the course of pre-trial proceedings, government entities are authorised to carry out procedural actions and make decisions, most of which are determined as a result of an assessment of the sufficiency of the grounds and conditions for this, based on internal conviction. Sometimes the discretionary rights of such participants are difficult to assess from the point of view of the validity and sufficiency of the information (evidence) available in the audit materials or the criminal case. This leads to appeals against the actions and decisions of officials as having been carried out with abuse of procedural authority. But can this right be abused? To answer this question, it is necessary to clarify the essence of abuse of procedural rights and determine their relationship with discretionary ones. In the course of the study, by analysing the available approaches and practices of applying the norms of the Criminal Procedure Code, it is concluded that an intentional dishonest act under the guise of the exercise of one’s procedural rights by a government entity, excluding the subsequent proper exercise by other participants in criminal proceedings of their procedural rights or their procedural duties within a reasonable time, should entail procedural, disciplinary or criminal liability depending on the consequences and be regarded as abuse. Abuses of the right by the prosecutor and the person in charge of the criminal case to timely grant the status of a participant, to charge, to cancel procedural decisions, during investigative actions, and when choosing measures of criminal procedural coercion have been identified and considered in relation to discrete powers. Some ways to overcome such abuses are presented.