Theoretical and legal aspects of judicial discretion in the criminal trial

The article deals with the problem of using the term "judicial discretion" in criminal procedure legislation. The understanding of the content and essence of the legal phenomenon under consideration taking into account its broad interpretation and the legislative increase of powers granted to judges is relevant and requires a modern interpretation. The lack of a formal enshrining of the concept of "judicial discretion" gives rise to too a free assessment of the actions of judges, which often contradicts the law. The analysis of the views presented in the study shows that some authors do not properly interpret the concept of the legal phenomenon under study; they are believed to borrow the term and substitute the concept of "conviction" by the one of "discretion". However, the analysis of the provisions of the Russian criminal procedure legislation refutes the arguments about borrowing and shows that these terms have been mentioned in the rules of law for a long time. The authors of the present article substantiate their position that the term discretion comprises the internal belief (confidence) of the person to act, or the propensity of the subject to decide at his wish, but in any variant, discretion is not perceived as a decision, conclusion or the authority of the judge as most authors state. When comparing the concepts of discretion and persuasion, we conclude that their content differs, since persuasion acts as the highest level of the individual who procedurally gets the best of his cognitive, emotional and strong-willed properties. Thus, the content of these concepts is different; they do not substitute each other, but complementary and necessary in the formation of a complex character of the personality. In our research, judges act in two main capacities. First, in their legal capacity as officials with the power to administer justice, they are called to do their work objectively and independently, under legislative writings. Second, they act in their moral capacity as citizens who are subject to the standards of morality, customs, corporate and even religious norms. Because of the analysis and presented evidence the authors give their definition of judicial discretion as one’s own opinion, the problem of selecting from the options of what is fair from the law that gives rise to confidence in the rightness of choice and is justified from the point of view of legal norms (law) as the only correct solution. The authors of the article conclude that judicial discretion is a forced measure for the imperfection of the law. A complete renunciation of subjectivism in the making of a procedural decision would be an ideal option, but at this stage of society's development, it is difficult to do without it in implementing justice. It is proposed to abandon the term "internal conviction" in the CPC of the Russian Federation and the associated moral concept of conscience.

Keywords

Authors

References