Ontology of Discretion in Criminal Procedural Law Implementation

Abstract

The article explores the identification of discretionary factors during the implementation of criminal procedural norms. To comprehensively investigate this issue, the following elements were analyzed, which made it possible to determine the grounds and consequences of discretion in the law enforcement process. The article examines the application of legal norms as a prerequisite for the emergence of all its other elements. It is defined that the application of legal norms is the process of implementing legal rules by authorized bodies (state or local self-government) or entities with delegated authority within the scope of their competence, according to the law. The nature of legal norm application subjects is also revealed as an integral component of the realization of legal norms. Subsequently, the procedure for law application is analyzed. It is determined that the application of legal norms is a process consisting of specific stages. These stages include establishing the factual circumstances of the case based on evidence; selecting the norm that regulates the relevant social relations; interpreting the true meaning of the legal norm; correlating social relations with the legal norm; and rendering a decision on the case. It is noted that during the interpretation of the legal norm, situations may arise that necessitate the use of discretionary authority. Based on this, the article comprehensively defines the factors that lead to the application of discretionary powers. These factors include legal gaps, legal conflicts, and the existence of evaluative concepts. Each of these arises from improper legislative regulation of social relations. Evaluative concepts are considered a universal legal construct present in all branches of law. Therefore, the ontology of evaluative concepts is also thoroughly explored. It is established that an evaluative concept in criminal procedure is a formulation that contains only general characteristics and thus lacks specificity. By incorporating such a concept into a legal norm, the legislator forces the subject applying the law to rely on personal judgment or belief to interpret its content. Ukrainian criminal procedural law includes several evaluative concepts that necessitate discretion for their interpretation. These concepts are found in procedural institutions governing the duration of proceedings, evidence, sentencing, and verdict rendering. Consequently, all these institutions contain norms that are implemented through the interpretation of evaluative concepts, which raises questions about the potential positive and negative outcomes of legal influence, as criminal procedural norms determine an individual’s future in terms of rights restrictions - rights which are considered the highest social value in Ukraine.