The dissertation is the first in the domestic science of criminal procedural law special complex research of essence and ways of realization of discretion in the criminal procedure of Ukraine according to the 2012 CPC of Ukraine.
The dissertation establishes the concepts, features and types of discretion in criminal proceedings. It was established that discretion in criminal proceedings can be defined as the possibility of exercising powers of adopting one legally binding legal decision of several alternatives proposed by criminal procedure law with the use of intellectual-volitional mechanism in accordance with the circumstances of particular criminal proceeding, taking into account principles of criminal proceedings, professional experience of law enforcement, judicial and investigative practice, moral and ethical characteristics of law enforcement subject, in order to ensure private and public interests in criminal proceedings.
In the dissertation author has compared limits and determinants of discretion in criminal proceedings. It was established that limits of discretion in criminal proceedings can be defined as a restriction of powers of subjects in criminal proceedings during the application of discretion. The scope of powers in the process of exercising discretion depends on determinants of discretion, which can be described as certain factors (features) that determine limits of discretion in particular legal situation.
The essence of judicial discretion with allocation of characteristic features was established. As a specific feature of judicial discretion, it was proposed to consider its special legal significance. Unlike decisions of an investigator or prosecutor, court decisions can be used not only in these criminal proceedings, but also in other proceedings.
The process of application of discretion by investigating judge during the pretrial investigation was described. It was established that in determining the amount of bail investigating judges take into account amount of property damage caused by a criminal offense, and almost do not take into account other circumstances provided by criminal procedure law. As a result, outcome of judicial discretion becomes unpredictable.
The essence of investigator’s and detective’s discretion was determined. It was established that inner conviction of investigator and detective is not a key characteristic in the process of understanding the essence of their discretion, as it was proposed in legal doctrine. Any lawful discretion must be limited, as unlimited discretion entails the arbitrariness of the entity authorized to apply such discretion, which does not meet the criterion of legality. Also discretion may be erroneous (especially when it comes to copying one’s own behaviour or behaviour of others). Obviously, in this case, authorized subjects will also use inner conviction as a fundamental constant. But such conviction will be wrong, and law enforcer will not be able to adjust his own behaviour accordingly.
It was established that effectiveness of the pre-trial investigation must be defined a feature of pre-trial investigation, which is characterized by the ability to achieve tasks of criminal proceedings provided in Art. 2 of the CPC of Ukraine, and which can be assessed number of procedural actions that were conducted, and promptness of intermediate and final procedural decisions (notification of suspicion, drafting and sending an indictment to court, closing criminal proceedings, etc.). For this purpose, head of pre-trail investigation agency must establish: 1) whether investigator (detective) cannot carry out any other procedural actions; 2) whether investigator (detective) can accelerate the ongoing procedural actions; 3) whether the investigator (detective) could avoided a situation in which he could not continue to carry out procedural actions necessary for the investigation.
Factually substantiated proposals on amendments and additions to the CPC of Ukraine have been formulated in order to improve the usage of discretion in the process of investigation, consideration and resolution of criminal proceedings.
