Criminal Evaluation of the Exercise and Abuse of Right

Abstract

The article examines the issues of harm caused by a person who acts on the basis of his subjective right. This problem is one of the constitutional foundations of criminal law and has of a cross-sectoral nature. The article analyzes both theoretical provisions and legal positions of the Constitutional Court of the Russian Federation, the practice of the European Court of Human Rights and the Supreme Court of the Russian Federation. The constitutional principle of proportionality was used to develop a methodology for criminal law assessment of the abuse of human right, and its applicability was checked with specific examples. The analysis shows the importance of the use of the right as a circumstance precluding wrongfulness of the action. Due to the free use of natural rights, it cannot be identified with the execution of the law or duty. The need for differentiation of the primary and derivative rights, determination of the real right holder is shown. Situations of refusal of subjective right and its delegation were analyzed. Criteria have also been proposed for distinguishing between the lawful use of a right and its abuse, which serves as a legal guarantee of individual rights. Signs of abuse that may be taken into account by the legislator are the caused harm, the way in which the right is used, and the purposes and motives for its realization. The assessment of public danger depends on comparing these signs and determining the degree of their manifestation in a particular action. The author concludes that criminal liability for abuse of a person's constitutional right is inadmissible if the abuse itself is minor or has minor consequences. Abuse of the right must be distinguished from an independent act — arbitrariness. Two factors are recognized as key to assessing the methods of exercising a right — the typical or atypical nature of the chosen behavior for a particular competence in a specific historical period, as well as its relationship to the content of the right. Cases of cover by the subjective right to commit a crime were analyzed. When assessing subjective signs, it is also necessary to determine the predominance of lawful or unlawful intentions in a person's behavior.