SKRYPNYK D. The theoretical and practical aspects of Supreme Courtʼs legal positions in criminal proceedings

This dissertation is the first study on the science of criminal procedural law in Ukraine and analyses the Supreme Court`s legal positions in regards to criminal proceedings, - that are formed in court rulings based on the results of cassation appeals. It was established that the legal positions of the court in criminal proceedings are the conclusions of the judge (judges), the investigating judge regarding the application of legal norms, which are the result of judicial law enforcement activities, set forth in the court decision, and are mandatory for implementation by state and local self-government bodies, their officials, civil servants, individuals and legal entities, their associations throughout the territory of Ukraine in specific criminal proceedings, and conclusions regarding the application of legal norms set forth in the decisions of the court of cassation instance, in addition, for all subjects of power, which apply in their activity a regulatory legal act containing the relevant rule of law, and for other courts when applying such rules of law. The list of features of the court`s legal positions in criminal proceedings has been highlighted, namely: 1) they are the conclusions of the judge (judges), investigating judge regarding the application of legal norms, which are the result of judicial law enforcement activity; 2) they are formed in a court decision; 3) they are mandatory for implementation and/or application for specific entities, courts, etc., depending on the court that formed the legal position. The classification of the court`s legal positions in criminal proceedings by subject has been formed: 1) legal positions of the court of first instance; 2) legal positions of the investigating judge, set out in the decisions adopted as a result of the implementation of the function of judicial control; 3) legal positions of the appellate court; 4) legal positions of the High Anti-Corruption Court; 5) legal positions of the court of cassation instance. These legal positions are the positions of the Supreme Court, which are divided into the following: legal positions of the panel of judges of the Cassation Criminal Court; legal positions of the Chamber of the Criminal Court of Cassation; legal positions of the joint chamber of the Criminal Court of Cassation; legal positions of the Grand Chamber of the Supreme Court; 6) legal positions of the Supreme Court of Ukraine; 7) legal positions of international judicial bodies, the jurisdiction of which is recognized by Ukraine (in this case, we are talking about the International Criminal Court, which actually complements the justice system of Ukraine). It was noted that the legal positions of the European Court of Human Rights and the Constitutional Court of Ukraine should be considered separately. It has been established that since the Plenum of the Supreme Court provides an explanation of a recommendatory nature that is not based on the results of the court proceedings, but based on the results of including a generalization of judicial practice, which does not constitute a relevant court decision. Such explanations are the legal positions exactly of the Plenum of the Supreme Court and, in accordance with Clause 10-2 Part 2 of Art. 46 of the Law of Ukraine `On the Judiciary and the Status of Judges`, are not mandatory for consideration by other courts. This is in contrast according to the legal positions formed in the decisions of the Supreme Court.