Application of the principle of proportionality in judicial practice

Abstract

The modern concept of reforming procedural legislation in Ukraine has set before law enforcement and law enforcement agencies a number of tasks for a smooth transition from the normative-act to the precedent method of law enforcement. Moreover, such a position is directly enshrined in the procedural legislation of Ukraine, in particular in Part 4 of Art. 10 of the Civil Procedure Code of Ukraine, which states: - "The Court applies in cases the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 and its protocols, approved by the Verkhovna Rada of Ukraine, and the case law of the European Court of Human Rights as a source of law." [1]. It is this article of the Civil Procedure Code of Ukraine that the legislator indirectly obliges the judicial authorities of Ukraine to use both norms of international law (represented by the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 and its protocols) and court decisions of the European Court. on human rights, which are expressed in the practice of this court in the consideration of cases by this international judicial institution.
 The very provision of the above-mentioned article of the Civil Procedure Code of Ukraine declares the actual transition from the rules of normative-legal procedure of law application to the principles of precedent legal system, where the source of law is not only normative-legal act but also court decision.
 An important condition for the correct application of a rule of law or a court decision is the correct interpretation of a legal norm, or a whole normative legal act, as well as judicial precedent. Interpretation of legal norms involves a combination of objective and subjective, and depending on the purposes of interpretation in this process, respectively, its two stages are correlated - clarification and explanation. And if the process of interpretation is aimed only at the interpreter's understanding of the content of the legal norm, then clarification is an independent process of cognition. When the goal is to bring the content of the legal norm to third parties, the clarification and explanation are stages (stages) of a single, inseparable process. This process is inherent in all types of legal activity - lawmaking, law enforcement, law enforcement, systematization and legal education, and in a legal society the interpretation of legal norms is a stabilizing factor in the process of regulating social relations, enhances legal norms, strengthens legality, protects human and civil rights [2, P. 5-6].