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Zelensky S.N. Judicial Discretion in Criminal Proceedings

DOI: https://doi.org/10.15688/lc.jvolsu.2019.2.11

Sergey N. Zelensky, Associate Professor, Department of Legal Science, Central Ukrainian State Pedagogical University named after Vladimir Vinnichenko, Shevchenko St., 1, 25006 Kropyvnytskyi, Ukraine, This email address is being protected from spambots. You need JavaScript enabled to view it. , https://orcid.org/0000-0002-0945-4485


Introduction: the resolution of a criminal case is essentially the central stage of criminal proceedings, where the judge concludes that the person brought to criminal responsibility is guilty on the basis of the interpretation and application of the law. The interpretation of criminal procedural rules and judicial discretion are linked to the enforcement process. It is possible to use evaluative concepts in law, the content of which is determined not by the law or regulation, but by the legal awareness of the subject of law enforcement. Purpose: to show the essence and importance of judicial discretion as an evaluative concept in criminal proceedings; to disclose the content of the grounds of discretion, by which it is proposed to understand the objectively existing elements of the legal system, which directly determine the possibility of choosing one of the legally permitted options for the enforcement. Methods: the methodological framework for the study is the general scientific (dialectical, systemic, logical, etc.) and the specific scientific (formal-legal, comparative law, historical-legal, etc.) research methods. Results: judicial discretion is excluded when choosing between a legal and illegal decision. An illegal decision is not a form of discretion, but only arbitrariness. Discretion is subject to the gaps and conflicts of law. The proper justification of court decisions is not limited to citing the provisions of the law. The law may lack a rule regulating a specific social attitude due to their extremely dynamic development. The absence of a rule excludes judicial discretion. In this case, it will actually be a manifestation of arbitrariness, since all the grounds for discretion are somehow connected with the interpretation of the legal norm. Conclusions: the specification of discretion implies a choice of different legal alternatives. Under these alternatives, the court chooses the most appropriate option in a particular criminal proceeding, bound by the general principles of law. The court is bound by the requirements of legality, validity and motivation of the decision.

Key words: judicial discretion, interpretation, evaluative concepts, discretion, discretion, discretional powers.

Citation. Zelensky S.N. Judicial Discretion in Criminal Proceedings. Legal Concept, 2019, vol. 18, no. 2, pp. 74-78. (in Russian). DOI: https://doi.org/10.15688/lc.jvolsu.2019.2.11

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