THE PHENOMENON OF JUDICIAL PRECEDENT IN UKRAINE, DIRECTIONS OF CONVERGENCE INTO THE SYSTEM OF LEGAL REGULATION

Abstract

The article analyzes the formation and development of judicial precedent in Ukraine and its interaction with the practice of the European Court of Human Rights and the Supreme Court. Through the relativity with judicial precedent, the phenomenon of judicial decision (legal position) in the Ukrainian legal system is studied. The basis of legal regulation in Ukraine is the law, but domestic legal science currently considers judicial decision as one of the sources of law. The issue of the status of judicial decision in Ukraine, and therefore judicial precedent, is becoming increasingly relevant, since along with the decisions of the Constitutional Court of Ukraine and the Supreme Court, the conclusions and legal position of the European Court of Human Rights become sources of domestic law. At the same time, Ukrainian judicial proceedings have certain problems with the relevance of the application of such decisions. It is noted that precedent and judicial decision are not identical categories. An act of the judicial authority acquires a precedent character only within the framework of the application of substantive law norms if the necessary conditions are met. The term “judicial precedent” is not used in Ukrainian legislation, but the practice of the European Court of Human Rights and the conclusions on the application of legal norms set out in the Supreme Court’s decisions have many properties that create the prerequisites for stating the phenomenon of precedent in the Ukrainian system of legal regulation. At the same time, the conclusions of the court and the legal position set out in court decisions, although they contain elements of precedent, cannot be absolutely identified with a classical precedent in common law. First, in Ukraine, it is the law that creates the legal prerequisites for a court decision to acquire the status of a source of law; secondly, it is not the act of the judiciary as a whole that has normative significance, but only that part of it that contains the legal position formulated by the court. In fact, a clearly formulated conclusion (legal position) of an authorized court on a controversial issue of the application of other norms of law acquires legal force, and the court decision as a whole remains an act of individual action.