In a modern democratic society and Ukraine’s European integration processes, the issue of abuse of procedural rights is one of the key problems of the judicial process, which affects not only the efficiency of justice and the fairness of court decisions, but also reduces trust in the Ukrainian justice system at the international level.
The European Court in its decisions of November 8, 2005 in the case of Smirnova v. Ukraine, December 2, 2010 in the case of Shulga v. Ukraine, and January 20, 2011 in the case of Musienko v. Ukraine has repeatedly emphasized that the obligation to administer justice promptly rests primarily with the relevant state judicial authorities. The inability of the court to effectively counteract the obstacles to the progress of the case created in bad faith by the participants in the case is a violation of Part 1 Art. 6 of the Convention.
The principle of adversarial and dispositive nature, enshrined in procedural legislation, provides for broad opportunities for the parties to choose a method of protecting their rights and proving their position. At the same time, these rights are not absolute and must be exercised in good faith, in accordance with the purpose and objectives of the judicial process.
In judicial practice, cases are increasingly being recorded when participants in the process resort to actions aimed not at protecting their rights on the merits of the dispute, but at delaying the proceedings, creating artificial obstacles, or manipulating the procedure.
Abuse of procedural rights consists in the unfair use of procedural opportunities provided by law to achieve unlawful goals, which leads to distortion of the essence of justice, delaying the consideration of the case, and violating the rights of other participants in the process.
The Civil Procedure Code of Ukraine establishes a direct prohibition on the abuse of procedural rights (Article 44). The legislator does not provide an exhaustive definition of such abuse, but instead provides an indicative list of actions that may indicate bad faith, including: filing a complaint against a court decision that is not subject to appeal, is not valid or whose validity has expired (exhausted), filing a motion (application) to resolve an issue that has already been resolved by the court, in the absence of other grounds or new circumstances, filing a knowingly groundless challenge or committing other similar actions aimed at unjustified delay or obstruction of the consideration of the case or the execution of the court decision; filing several claims against the same defendant(s) with the same subject matter and on the same grounds or filing several claims with a similar subject matter and on similar grounds, or committing other actions aimed at manipulating the automated distribution of cases between judges; filing a knowingly unfounded claim, a claim in the absence of the subject of the dispute or in a dispute that is obviously artificial in nature; unfounded or artificial consolidation of claims in order to change the jurisdiction of the case or knowingly unfounded involvement of a person as a defendant (co-defendant) for the same purpose; conclusion of a settlement agreement aimed at harming the rights of third parties, intentional failure to notify persons who should be involved in the case. Similar provisions are set out in Art. 43 of the Civil Procedure Code, Art. 45 of the Code of Civil Procedure of Ukraine.
The evaluative formulation of the specified norms by the legislator allows the courts to independently determine in each specific case whether there is an abuse of procedural rights, to qualify such actions of the participants in the process and to choose the appropriate method of procedural response.
At the same time, when determining the abuse of procedural rights by a party, the court actually proceeds from its own internal conviction, that is, from its value judgment. But the key point is that the judge’s judgments and convictions must be based on evidence, and the main difficulty in proving cases of procedural sabotage is proving guilt, that is, the intent of the party.
The issue of abuse of procedural rights has repeatedly been the subject of consideration by the Supreme Court, and currently conceptual approaches have been formed to distinguish the proper exercise of the right to appeal to court from its distorted, unfair use.
An analysis of the practice of the Grand Chamber and the courts of cassation shows that the key criterion for qualifying the actions of the participants in the process as an abuse of procedural rights is the lack of a legitimate procedural goal. At the same time, formal grounds alone are not sufficient to qualify the actions of a person as an abuse of procedural rights.
The Supreme Court, in its resolution of March 3, 2021 in case No. 761/27076/19 (proceedings No. 61–14448св20), noted that abuse of procedural rights is understood as a form of intentional, unscrupulous actions by participants in the process, which is expressed, in particular, in committing actions disproportionate to the consequences to which they may lead, using the granted rights contrary to their purpose in order to limit the possibility of exercising or restricting the rights of other participants in the proceedings, obstructing the court’s activities in the correct and timely consideration and resolution of cases, or expressing clear disrespect for the court or participants in the case.
In its resolution of October 12, 2022 in case No. 345/2935/21 (proceedings No. 61–2472св22), the Supreme Court indicated that abuse of procedural rights may take the form of artificially complicating the civil process, complicating the consideration of the case as a result of behavior that prevents the decision in the case or the performance of other procedural actions.
Good faith in the exercise of rights and powers includes the inadmissibility of abuse of law, which, according to constitutional provisions, means that the exercise of human rights and freedoms should not violate the rights and freedoms of other persons. Abuse of law is, to a certain extent, a distortion of law. In this case, a person gives his actions the full appearance of legal correctness, while in fact using his rights for purposes that are opposite to those pursued by positive law (Supreme Court decision in case No. 910/1873/17 of May 8, 2018).
It is worth noting that while the practice of abuse of procedural rights is gaining momentum in Ukraine, European law enforcement practice has long used preventive mechanisms to combat abuse of procedural rights. Thus, Recommendations R(84)5 of the Committee of Ministers of the Council of Europe to member states on the principles of civil procedure aimed at improving the functioning of justice, which were implemented in Ukraine in 2017, contain detailed regulation of the institution of abuse of rights.
In particular, it is stated that if a party initiates clearly unfounded proceedings, the judge has the right to rule on the case in a summary manner and, if appropriate, impose a fine on the party. If the parties behave in bad faith and clearly abuse the procedure with the obvious aim of delaying the proceedings, the court may immediately rule on the merits of the case or apply sanctions, such as imposing a fine, compensation for damages, etc.
In national legislation, instruments for influencing unscrupulous behavior are provided for by procedural codes, which, depending on the purpose of application, can be classified into: preventive, aimed at preventing procedural abuses (for example, warning, removal from the courtroom, limitation of the time limit for speaking, etc.); terminating, aimed at stopping any attempts at procedural sabotage (refusal to satisfy a person’s petitions and statements, acceptance of a counterclaim, rejection of an appeal and cassation complaint, refusal to accept evidence submitted in violation of the deadlines established by law, etc.); compensatory (procedural fines).
In addition, both personalized measures (for example, issuing a separate ruling, subpoenaing a witness) and general procedural measures (for example, leaving without consideration a recusal application filed repeatedly for the same motives and grounds; leaving without consideration a motion if it is filed in violation of the requirements or with the obvious purpose of delay, etc.) may be applied to unscrupulous participants in the process.
Among the most effective ways for a judge to respond to abuse of procedural rights, in my opinion, are procedural fines – Art. 148 of the Code of Civil Procedure, Art. 135 of the Code of Civil Procedure, Art. 149 of the Code of Administrative Offenses (the amount is up to 10 times the subsistence minimum for able-bodied persons), since no restrictions stimulate a party to the case to behave in good faith as much as a monetary penalty.
In the context of imposing a fine on a participant in the process due to abuse of the latter’s procedural rights, the ruling of the Civil Court of Cassation within the Supreme Court dated March 7, 2025 in case No. 754/15239/24 is relevant. In this case, the plaintiff was repeatedly fined for filing an excessive number of cassation appeals, which were accompanied by frankly humiliating language addressed to judges and opponents. At the same time, the Supreme Court draws attention to the fact that a participant in the case must use procedural rights exclusively within the framework of the tasks of civil proceedings, assisting the court in the administration of justice. If such a participant commits a procedural action with a different purpose, in particular to insult, humiliate the participants in the trial, their representatives, the court, express his own negative emotions towards their actions and decisions, he goes beyond the content of the relevant procedural right, that is, abuses it. The legal system must be able to effectively protect itself from these actions.
Similar conclusions are set forth in the decisions of the Supreme Court of January 22, 2025 and January 23, 2025 in case No. 754/7132/24 (proceedings No. 61–706ск25).
In conclusion, it is worth noting that abuse of procedural rights is not a formal, but a substantive category that requires an analysis of the party’s behavior in the complex, and the key issue in qualifying a person’s actions as abuse of procedural rights is the intention and result of the action – if they are not related to the protection of rights in substance, but are aimed at delaying or creating obstacles, then this is an abuse of procedural rights.
The court must use the procedural coercive measures provided for by current legislation, taking into account the principle of proportionality, while actively managing the process and planning the trial (case management) should be implemented to prevent abuse.
Participants in the process should be aware that good faith is not only a moral standard, but also a legal obligation. Given the increased requirements for the efficiency of judicial proceedings and the orientation towards the practice of the ECHR, courts are increasingly responding more frequently and decisively to the bad conduct of the parties, which positively contributes not only to the speedy consideration of cases, but also to increasing trust in the judicial system as a whole.
Andriy Anokhin
Doctor of Law, Judge of the Shevchenkivskyi District Court of Kyiv