Miscarriage of Justice as a Phenomenon of Social Reality

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The article is devoted to the study of social aspects of a miscarriage of justice, the public view of which is formed through such concepts as «fair court decision», «fair justice», and «legality». These categories are directly related to the issue of a miscarriage of justice, which is a consequence of a violation of these principles and the result of improper law enforcement activities of a judge. The existence of a miscarriage of justice is not always proof of an inhumane approach of the court to the resolution of a case. Courts often face the problem of balancing legality and justice. At the same time, both the lack of legality and justice are assessed by society as a misunderstanding or application of the law, i.e. a miscarriage of justice that undermines confidence in justice. The article also emphasizes the existence of formal (legal), real (social) and procedural justice. According to the author, the achievement of formal (legal) justice depends not only on the actions of the judge, but also on the justice of the law itself. He believes that the cause of miscarriages of justice may be the abstract nature of the law, which leads to injustice in its application. In this case, there is a need to make a decision in which the moral aspect of the circumstances of the case prevails over the law. With regard to procedural justice, it is noted that this is the only type of justice that has been enshrined in law in Ukraine. Regarding real (social) justice, the author argues that it depends to a greater extent on the moral account of the judges themselves and the system of values they profess. The article also mentions the ways of solving the existing problem, namely, combating miscarriages of justice arising either due to excessive formalism in case resolution (literal understanding of the law without regard to natural justice) or, on the contrary, when a judge goes beyond the powers granted to him/her by law (broad judicial discretion in the matter of the moral component of the law), by legislatively enshrining the principle of justice. The author emphasizes that the mere mentioning in the law of the principle of justice without defining its content will not solve the existing problem and may result in new miscarriages of justice against the background of a judge’s distorted view of justice. Key words: miscarriage of justice, fair justice, legality, natural justice.