УДК 342.5, 347

ORCID: 0009-0007-6088-8784

ORCID: 0009-0001-7812-5351

DOI 10.37566/2707-6849-2023-1(42)-3

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Tetiana SHEVYRINA,

judge of Ochakiv district court of Mykolayiv region, PhD

Yuliia BONDARENKO,

assistant of the deputy head of Odesa appeal court, phd student of Odessa I.I.Mechnikov National University, the Department of Civil Law Disciplines

RULES OF THE ORGANIZATION OF EFFECTIVE JUSTICE (GUIDELINES) A TOOL FOR THE APPLICATION OF JUDICIAL DISCRETION AND THE EXERCISE OF DISCRETIONARY POWERS OF THE COURT

         The article analyzes the essence of the concepts of «discretionary powers» and «judicial discretion», their correlation; the essence of the concept of «guidelines», their legal nature and role as a tool for the application of judicial discretion in exercising discretionary powers by the court are defined. On the basis of a comparative analysis of the legal norms of civil and criminal procedural laws, the limits of the court's discretion, limits and direction of the judge's discretion are determined.

It has been established that none of judicial proceeding can do without discretionary norms, and therefore without judicial discretion, however, the limits of discretion vary depending on the type of judicial proceeding and the stage of consideration of the case.

This conclusion was made on the basis of a comparative analysis of the norms of civil and criminal procedural laws in terms of court evaluation of evidence.

Thus, the difference in the discretionary powers of the court is due to the higher standard of proof in criminal proceedings, compared with civil ones.

On the basis of the analysis of the functions of punishment and the principle of its individualization, a conclusion was made about the direction of judicial discretion in the exercise of discretionary powers during the imposition of punishment and, thus, it was demonstrated that discretionary powers are a specific means of legal protection.

Discretionary powers and judicial discretion are independent concepts.

In procedural codes, discretion begins with issues of recusals/self-recusals and ends with the imposition of punishment (in criminal proseedings).

On the basis of the analysis of the provisions of procedural norms (civil and criminal), which determine the grounds for the removal of a judge, in particular, «the presence of other circumstances that raise doubts about the judge's impartiality», a conclusion was made about the possibility of such an interpretation that would allow arbitrariness, abuse and even corruption risks.

The unpredictability and lack of understanding of the grounds for recusal in the absence of unanimous practice of national courts may call into question the guarantees provided for in Article 6 of the European Convention on Human Rights, namely the right to a fair trial.

The essence of the guidelines comes down to the fact that judges, having determined the range of issues that cause the most controversy and in respect of which the legislation allows wide discretion, formulate a certain set of rules, how they generally interpret the corresponding «discretionary norms».

The range of issues, the solution of which can be unified by including them in guidelines, can be as follows: valid reasons for postponing the trial; establishment of regulations for the speeches of the participants; order of calls and notifications of the parties; the procedure for agreeing the dates of court sessions, etc.

The advantages of guidelines are named.

Thus, discretionary powers are defined as the legislative basis for the application of judicial discretion – the intellectual and volitional activity of a judge, the direction of which is determined by the observance of the rule of law. Guidelines are rules of soft law that determine how judges apply judicial discretion to the discretionary powers granted to them.

Key words: rules of the organization of effective justice, guidelines, judicial discretion, discretionary powers, standart of proof, rule of law

References

The Constitution of Ukraine: Law of Ukraine of June 28, 1996: as of January 01, 2020.URL: https://zakon.rada.gov.ua/laws/show/254%D0%BA/96-%D0% B2%D1%80#Text (access date: 07/23/2023)

Miroshnychenko A. M. Judicial discretion, miscarriage of justice and judicial arbitrariness (through the prism of legal responsibility of judges): scientific and practical manual. Kyiv: Jurinkom Inter, 2020. 120 p.

Popovsky D. P. Application of judicial discretion in the Romano-Germanic legal family. Scientific Bulletin of the International Humanitarian University. Ser.: Jurisprudence. No. 10–1, Vol. 1. 2014. P. 15–19.

Bihun V. S. Philosophy of justice: idea and implementation: monograph. Kyiv, 2011. 303 p.

Kovalskyi V. S. Problem of judicial discretion and criminal law. Judicial Reform in Ukraine: Problems and Prospects: Materials of the Scientific and Practical Conference, Kharkiv, April 18-19, 2002. Kyiv: Yurinkom Inter, 2002. P. 112–114.

Huralenko N. A. Freedom of choice as an attribute of judicial discretion. Scientific Bulletin of Lviv State University of Internal Affairs. Lviv: LvivSUIA, 2012. Issue 4. С. 292–303.

Civil Procedure Code of Ukraine: Law of Ukraine of March 18, 2004 No. 1618-IV. URL: https://zakon.rada.gov.ua/laws/show/1618-15#Text (application date: 07/23/2023)

Criminal Procedure Code of Ukraine: Law of Ukraine of April 13, 2012 No. 4651-VI. URL: https://zakon.rada.gov.ua/laws/show/4651-17#Text (application date: 07/23/2023)

Criminal Code of Ukraine: Law of Ukraine of April 5, 2001 No. 2341-III. URL: https://zakon.rada.gov.ua/laws/show/2341-14#Text (application date: 07/23/2023)

European Convention on Human Rights of November 4, 1950. URL: https://zakon.rada.gov.ua/laws /show/995_004 (date of application: 07/23/2023)