CONTROVERSIAL ISSUES IN DEFINING THE CONCEPT OF «ABUSE OF RIGHTS» IN THE PROFESSIONAL ACTIVITY OF AN ADVOCATE

Abstract

The article analyzes scientific approaches to the problem of abuse of rights
and examines it in the narrow context of the application of legal instruments in
the professional activity of an advocate. The focus is on examining whether the
provisions prohibiting an advocate from abusing rights have the characteristics of
a legal norm. It is noted that abuse, which contains an element of the ethically-
derived concept of “evil,” cannot be precisely defined legally. At the same time,
rights that may be subject to abuse may derive from both direct provisions and
the peculiarities of the general permissive principle. Since offenses and violations
of legal norms are not identical categories, the issue of using a state of
irresponsibility is considered separately from the abuse of rights. Using the dogmatic method, it is established that, under the Criminal Code of Ukraine, abuse
as a form of improper exercise of rights is a characteristic of intentional conduct;
however, this characteristic is not necessarily associated with a selfish motive or
an intent to harm another person. It has been proven that the subject of
criminalized abuse may be either (subjective) rights or other phenomena related
to such rights, such as official position, authority, etc.
It is concluded that the prohibition on abusing rights lacks sufficient
characteristics of a legal norm. Moreover, the provisions on the inadmissibility of
abuse of rights by a defense attorney or advocate lack sufficient legal certainty. In
particular, abuse of procedural rights by a defense attorney in criminal
proceedings, which may consist only of delaying the proceedings, although it may
be terminated by the court, does not entail liability as such, and the decision on
the existence of signs of such abuse is purely discretionary.