Judge’s discretion in ensuring human rights and freedoms: the significance of the legal position

Abstract

The article is devoted to the analysis of the judge’s discretion in ensuring human rights and freedoms and the study of the significance of the legal position of the Supreme Court. It has been established that the purpose of the Supreme Court as the highest judicial institution in Ukraine is, first of all, the formation of a justified legal position regarding the application by all courts in the further work of a specific norm of substantive law or compliance with a norm of procedural law that was incorrectly used, and thus directing practice into a unified and proper enforcement. The legal positions of the Supreme Court have a more complex nature, as there is a clear awareness of the tasks of this body as a key subject in the formation of the unity of national judicial practice. The legal literature was studied, which currently discusses the problem of deviating from the legal positions expressed earlier, whereas it is at the level of higher courts that the problem of unanimous application of legal norms by courts in similar legal relations should be resolved. The institution of departure from the pre-legal position is quite an interesting phenomenon and become widely in recent years, and this problem is connected, perhaps, with the reform of procedural legislation. It was established that a massive departure from previous legal positions violates the standards of consistency of judicial practice, and the requirement of legal certainty appeals precisely to the standards of consistency of judicial practice, according to which courts must make similar decisions in similar cases under the same factual conditions. Constancy of judicial practice means that a series of previously adopted and agreed court decisions is a convincing proof of the correct interpretation of the legal norm. Since the legislator has not establish the binding nature of previously adopted resolutions of the Supreme Court of Ukraine, however, the possibility of deviating from them is provided only to the court of cassation instance of the Supreme Court. Deviating from the legal position, the court must provide a serious and convincing argument, since there has to be valid and reasonable grounds for a different application of the law’s prescription in the same (or similar) situation with a similar legal structure. It was concluded that the principles that are guided by judges when making each specific decision and forming the corresponding legal position, namely the principles of the rule of law, justice and legality, are of particular importance.