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Volume 26, Number 2, 2018
257
Legal positions of the Supreme Court as a means of removing
systemic court errors in criminal cases
N. Khotsianovska
ORCID 0000-0001-8193-2667
Anton Makarenko Kyiv Professional and Padagogical College, Kyiv, Ukraine
Article info
Received 24.03.2018
Accepted 30.04.2018
Anton Makarenko Kyiv Professional and Padagogical College, Kyiv, Ukraine
hotsya@ukr.net
0969340896 044 236-05-41
Khotsianovska, N.(2018). Legal positions of the Supreme Court as a means of removing
systemic court errors in criminal cases. Fundamental and applied researches in practice
of leading scientific schools, 26 (2),257–261.
The article reflects the author's position on the causes of court mistake in Ukraine and their impact on the state of justice. In the course of the research, the concept of a court mistake is summarized, taking into account the author's position. For the first time, the concept of a systemic court mistake was presented and an attempt was made to determine its definition. Also, the article compares the definition of a systemic court mistake and a systemic problem in the understanding of the European Court of Human Rights. In the course of the research, the essence of the concept of "legal position" and the difference in the legal position of the Supreme Court from the legal position of other courts is established. Also, the exclusive role of the legal position of the Grand Chamber of the Supreme Court for the correction of systemic court errors is determined.
Key words: court mistake; systemic court mistake; legal position; Supreme Court; Grand Chamber of the Supreme Court.
Introduction
The last years have become crucial for Ukraine: the rejection of the formalist and pro-Russian ideology and directing the development of the state in the European direction. For a long time, the obstacle to the integration of Ukraine into the European community was the problem of building democracy, a part of which is an independent and efficient judiciary. The effectiveness of the judicial system reflects the level of protection of human rights while performing not only the function of establishing justice but also the educational and preventive function.
Changing the direction of state policy is impossible without reform in all major areas of public life. In connection with this, a judicial reform has been conducted in Ukraine, directly affecting all types of legal proceedings and the judicial system in general, up to personnel changes. Thus, in the new Supreme Court, along with professional judges, there are many scholars who understand the interpretation of legal norms and lawyers being aware of the existing practical problems encountered in protecting human rights. The latter is very important today as Ukraine inherited from the Soviet system a court system adhering to the prosecution as evidenced by judicial statistics. Thus, in 2016 according to official court statistics, the local courts issued only 1% of acquittal sentences out of the total number of sentences made during a year (Analysis of the state of
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of the long-awaited Criminal Procedural Code of 2012 has not changed.Among the reasons for such a state of affairs are the following: overload of courts, political influence on judges and court mistakes. The initiated judicial reform is aimed, first of all, at unloading courts through the qualitative selection of qualified judges and shortening the terms of judicial review of criminal proceedings, as well as ensuring the real independence of judges.
With regard to disadvantages of justice, to a certain extent, their level should decrease with a qualified set of judges. In addition, the legal positions of the higher courts, intended to ensure a correct understanding of the essence of normative legal acts and the process of their application, have a significant role to overcome judicial mistakes. It is impossible to overestimate the role of the Supreme Court in this process since it is a court of law and essentially designed to determine the direction of law enforcement practice.
The question of the essence of the court legal position is not the first time subject of the study. This issue attracted attention not only from the point of view of the criminal process but also was of scientific interest from the point of view of the theory of law, administrative and civil processes.
At different times the court legal position was the subject of research by such scholars as V.K. Ashurov, N.R. Bobechko, A.I. Vidergold, M.O. Vlasenko, A.V. Gryniova, P.O. Huck, V.J. Danko, S.M. Darovskikh, S. Kalinuk, V. Kampo, O.V. Kaplina, D.V. Kuhnyuk, L.G. Lichman, N.V. Neledva, V.A. Novitsky, N.V. Nor, T.M. Slinko, N.D. Slotvinska, V.G. Stepankov, P.M.CTkachuk, IV Shulga and others. But the overwhelming majority of these studies were aimed at defining the legal nature and signs of the court legal position as a whole rather than the legal position of the Supreme Court in criminal cases. A certain attention was paid to the issue of court mistakes which in one way or another served as the subject of scientific research by such scholars as R.V. Veresh, N.M. Kushnir, O.M. Ovcharenko, E.U. Prus and others. At the same time, it should be noted that these legal categories were not investigated in their connection. Moreover, this study is intended to determine not only the influence of the legal position of the Supreme Court on the level of judicial mistakes but also attempts to identify systemic court errors and influence the specified legal positions on them.
Goal of the article
The purpose of this study is the legal analysis of the impact of such a legal remedy on the correction of systemic court errors as the legal position of the Supreme Court.
Methods of research
The defined purpose is determined by the theoretical principles of the research, used when writing this article. The main ones are the logical and semantic, formal and legal, analytical, system and structural method, comparative analysis, induction, synthesis as well as the comparative legal method used in the study of individual issues of this study. Thus, the logical and semantic method combined with the formal and legal was used to formulate the notion of a miscarriage of justice, as well as a systemic miscarriage of justice in criminal proceedings. The application of these
methods also summarized the definition of the court legal position and the legal position of the Supreme Court. Using the formal and legal, system and structural methods, the influence of imperfection of material and procedural norms on the occurrence of court errors in general and systemic court errors, in particular, were revealed.
Discussion
In the context of the reforms in Ukraine, there were direct changes in the implementation of criminal justice and the construction of the judicial system as a whole. A new Supreme Court came to replace the Supreme Court of Ukraine and from the first days of its work focused its activities on the formation of the sustainability and unity of judicial practice as required by the Law of Ukraine "On the Judiciary and Status of Judges" (Verkhovna Rada of Ukraine, 2016, p.36). The question arises: will be the activity of the newly created court more effective and how will it affect the state of criminal justice, nowadays preserving the inherited positivist essence? After all, judicial statistics show that there are no more than 1% of acquittal sentences. This situation shows the phantom of the presumption of innocence since law enforcement agencies work so effectively that the court judgment is essentially an ordinary formality stating the fact established by the prosecutor's office and the investigation. Under such conditions, it is obvious that there is an imperfection of the judicial system of Ukraine, which is due, inter alia, to so-called court errors.
Interestingly, the scientific search for the essence of a miscarriage of justice is not the subject of lively scientific discussions. It is common knowledge that it is possible to treat the symptoms for years if you do not diagnose and identify the disease itself, being the cause of such symptoms. Accordingly, in order to understand the direction of improving the legal process, it is necessary to find out the causes of an unsatisfactory level of its effectiveness.
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of "court mistake" it is necessary to identify the subject of such misconduct.This question can be considered debating. V.V. Horbalinsky believes that the subject of a miscarriage of justice may be not only the court but also the participants, not interested in the case, including the translators, specialists and experts (Horbalinsky, 2015). This position does not take into account the right to a fair trial, expressed in the freedom of choice among several alternatives, provided that they are lawful. That is, under the court's discretion, the possibility of a court (judge or judges, if the consideration is collectivized) is understood among several options to choose one that is the closest to its inner convictions if it does not have the duty to choose one of them (Barak, 1999, p.14). In accordance with the provisions of the Criminal Procedure Code, the assessment of evidence is carried out by a court and none of the evidence is available to the court in advance being of established force (Horbalinsky, 2015, art. 94). Of course, in terms of psychology, the assessment of evidence by an investigator, a public prosecutor, a lawyer or other party who is not interested in a criminal proceeding may affect the assessment of the court. But it is necessary to understand that the court's judgment will be based not on such a single assessment but on the assessment of each evidence separately and in the aggregate of evidence in general and only on the basis of their sufficiency and interconnection. Accordingly, the final decision on the outcome of the criminal proceedings depends only on the court and responsibility for such a decision is borne by the court. Consequently, the approach according to which other participants, other than the court, may be subjects of a judicial error is considered to be exaggeration of their role in making a judicial decision, especially considering that it is the person who appeals to the court in hope that the court will take all the necessary measures for effective judicial review and the issuing of a justice decision. Consequently, the participant's error is only one piece of the puzzle to be made by the court.
In defining the essence of a court error, it should be noted that the court should be based only on a lawful choice if the court intentionally acts to adopt of an unlawful decision, this cannot be considered a judicial error.
According to the above, it is expedient to generalize the notion of a court mistake and to define it as a negative result of court activity caused by the adoption of an unlawful decision due to its unintentional misconduct and/or actions to evade the established procedural order or wrong beliefs or misconceptions about the proper application of rules of material or procedural rights which makes it impossible to achieve the purpose of the procedure for the consideration of a particular criminal proceeding.
It is important to understand the significance of the consequences of a court mistake, since in real life, as a result of a mistake, there is no justice, being a violation of human rights. Often such violations concern not only the person who is charged with committing a crime but also other persons, including victims of a crime. If the court mistake become repeatedly, this poses a threat to the whole system of justice, its effectiveness and significantly affects the level of trust to the judicial system.
In the broad sense, any system is a set of elements united on a certain basis. Philosophy defines the notion of "system" as a set of defined elements, and a logical connection or interaction is among them. For example, the founder of the theory of the systems Ludwig von Bertalanffy defined a system as a complex of interacting elements having certain relations between them and environment. These concepts can be applied in the study of court mistakes because in addition to individual court mistake there are court mistakes made repeatedly by different judges and at different times. But according to the nature of the actions, such errors have a number of common features and are characterized by the interconnection of such actions and adoption of an unlawful decision. Thus, in the absence of legal regulation of specific questions, their relative abstraction of such rules, each judge interprets and applies the law via the prism of his/her own experiences and personal beliefs, resulting in significant differences of legal practice in such cases. This is one of the reasons for the unsatisfactory level of efficiency of the judicial system and distrust of it by the population of the state. Obviously, neither the change of legislation nor the improvement of the qualifications of judges will substantially improve the situation.
Thus, the systemic court mistake can mean a negative result of the activity of various courts and the court structures that led to acceptance of unlawful decisions made during standard criminal proceedings due to unintentional wrong actions and/or actions of judges in deviation from the established procedural order or incorrect beliefs or misconceptions of the proper application of the rules of material or procedural law making impossible the achievement of the purpose of the procedure for the consideration of a specific criminal proceedings, provided common features of such actions, beliefs, perceptions and their relationship with the adopted unlawful decisions.
It is necessary to understand the notion of "systemic errors" in the meaning of the European Court of Human Rights (hereinafter referred to as the ECHR). Thus, unlike the systemic court mistake, a system error reflects the shortcomings of the system of justice in general due to government policy and directly caused by the current legislation that leads to a breach of European Convention on Human Rights dated 4 November 1950. Such systemic problems are determined by pilot decisions of the ECHR, indicating the steps that the offending State should take to eliminate them. Thus, Jean-Paul Costa notes that in Ukraine two system errors have already been identified by pilot judgments of the European Court. First of all, this is a failure to comply with the decisions of local Ukrainian courts and a systemic error concerning the conditions of detention and the possibilities of judicial review of cases led to the imprisonment of people (The Council of Europe, p.5). None of these system errors doesn`t indicate systematic irregularities in the judicial system of Ukraine but in turn, they shake faith in justice.
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private and family life, housing, correspondence secret; violation of the right to liberty and personal integrity and others (Burma, 2015, p.172-173).Unlike single court errors, overcoming systemic court mistakes by reviewing the decisions is not effective and unlikely to reduce the level of such errors. Some of them can be prevented by amending the relevant legislation which requires significant financial and time expenditures and the political will of the state. Taking into account the above mentioned, it is necessary to look for other more effective ways to correct systemic court mistakes in criminal cases. One of such legal means may be the legal position of the Supreme Court. In the Ukrainian legislation there is no legal definition of the legal position, moreover, there is no unity of understanding of this concept in scientific circles.
The concept of a "position" as a mental activity, in general, is a system of judgments about the attitude to something or someone. Also, the position is interpreted as the system of beliefs of the subject of quality, properties or other characteristics of the phenomenon or process, investigated as an object. In this case, among the main features of the stand out: systemic; subjective conditionality; conviction as a form of mediation of information; concrete definition of the content of the position; completeness and internal consistency (Kolobashkina, 2009, p.8-9).
Emphasizing the peculiarities of the concept of a "legal position" it is appropriate to speak about stability, motivation, public expression etc.. Accordingly, the legal position is defined as a conscious, motivated and publicly expressed activity of the subject in his/her true understanding of the problems of legal reality, their individual forms and manifestations, as well as ways of effective resolution. The position of Professor Y.A. Tykhomyrov, who while defining the essence of the legal position, draws attention to the fact that it is an assessment of acts and actions in one conflict situation and at the same time it is not any, namely consistently repeated in a similar situation, confirms the expediency of using the legal position of the court as a means of correcting the system judicial errors (Tikhomirov, р.73). At the same time, the legal positions of the Supreme Court may be the most effective in terms of their use by the lower courts, since the court is required to motivate a departure from the legal position of the Supreme Court, otherwise, such a decision may subsequently be appealed (Verkhovna Rada of Ukraine, 2012, part 6 art. 13). This approach at the same time serves to eliminate systemic court mistakes and, at the same time, leaves space for the individual law enforcement work of the court. Such a rule is not accidental because recently some of the legal positions of the Supreme Court of Ukraine, preceding the current Supreme Court, contradicted its other legal positions. As a result, the legal positions of the Supreme Court of Ukraine not only did not serve to eliminate systemic court mistakes but also raised their level.
Also, the question of what exactly is the legal position of the Supreme Court is debating now. While earlier the legal positions were laid down in the Decree of the Plenum of the SCU, the Supreme Court did not finally determine whether there would be similar resolutions in its plenum. But in the speeches of the judges of the Supreme Court, it is unequivocal that legal positions will necessarily be formed by the Supreme Court including those related to the rules of
criminal justice. Today, even in the scientific doctrine there is no unambiguous answer to the question of the scope of the concept of a "legal position" and its relationship with the court decision. But the priority from the position of the judges of the Supreme Court is the approach that every decision, including decisions taken by the Supreme Court, contains legal positions. Probably such legal positions are contained in the motive part of the court decision. Now, the Supreme Court has clearly identified the motive part, and therefore, if one comes from an understanding of the legal position as a part of a decision containing the general idea of the Supreme Court regarding the solution of specific criminal legal problems, the definition of a legal position will not be a difficult task for any person.
At the same time, it should be noted that in the structure of the newly created Supreme Court, in addition to the Court of Cassation, a very specific body was formed, namely the Grand Chamber. The Grand Chamber to be the center of formation of legal positions, since according to the Criminal Procedure Code, the Court of Cassation is entitled to refer the criminal proceedings to the Grand Chamber Supreme Court, if it concludes that the case contains an exclusive legal problem and such a transfer is necessary to ensure the development of law and the formation of a single legal practice (Verkhovna Rada of Ukraine, 2012, part 5 art. 434-1). To date, the Grand Chamber has not defined the concept of an exclusive legal problem, but the judges of the Grand Chamber emphasize the importance of such a legal problem for the development of law. It is believed that systemic court mistakes and such a legal problem, which requires the development of the right to the relevant law-making of the Supreme Court.
Results
Thus, summarizing the results of this study, one can determine the following results of the study as formation a system of concepts: a court mistake, a systemic court mistake and the legal position of the Supreme Court as a means of eliminating systemic court mistake.
Conclusions
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criminal proceeding, provided that there are common features in such actions, beliefs, perceptions and their relationship with the adoption of unlawful decisions. The significant influence of the legal positions of the Supreme Court on the correction of systemic court mistakes and the special role in this legal position of the Grand Chamber of the Supreme Court have been investigated and proved.References
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