Serhiy Hlubochenko
Postgraduate of the Department of European Union and Comparative Law
National University
“Odessa Law Academy”
Judge of Zhovtnevyi District Court of Mykolaiv region
Peculiarities of effect of philosophical factors of conscience of judges on court law enforcement activity in context of court discretion are being analyzed in the article. Based on the sociological interview of the judges author comes to a conclusion that in the course of permanent development of Ukrainian legal system the enforcement of certain rules of modern law is being done by law enforcement subjects mostly through the prism of their personal perception of the surrounding world.
Key words: law enforcement activity; law enforcement discretion; court discretion; professional conscience of judges.
The effect of philosophical foundations of professional conscience of subjects of judicial law enforcement on their professional activity is an object of analysis in many areas of legal science. It was revealed that broadening of the world-view and possibility of greater access to information in general and professional information in particular have a positive impact on professional conscience of judges.
Different aspects of conscience of judicial law enforcement subjects were studied by Yu. Groshevyi [1], O. Korablina [2], A. Pivovarova [3], M. Risnyi [4] and others. The scholars analyzed the notion and structure of conscience of law enforcement subjects, including judges, peculiarities of its development and manifestation.
The purpose of this article is to analyze the peculiarities of effect of philosophical foundations of conscience of judges on the law enforcement of court decisions in the context of judicial discretion.
To identify the peculiarities of epistemological, axiological, psychological and ethical parameters of philosophical foundations of judges on their professional conscience the author conducted a sociological survey among the judges of Mykolaiv region.
A total of 42 judges of district courts were interviewed. The sample composition took into account the demographic factor (only the judges of district courts) and the factor of the status of judges (whether it was a first nomination for a 5-year term or an appointment for permanent terms).
The conducted survey gave the following results:
1. The question “What are the communication barriers (lack of attention) in proceedings?” received the following responses (participants were allowed to choose more than one option):
Table 1
| What are the communication barriers (lack of attention) in proceedings? | ||
| Quantity | % | |
| Know beforehand what will be discussed in proceedings | 5 | 11,9% |
| Speech by the attorney/ barrister, explanations by the party are tedious and uninteresting | 9 | 21,4% |
| Speech by the attorney/ barrister, explanations by the party are unsubstantiated and meaningless | 10 | 23,8% |
| Evidence by the parties is unstructured and lame, assessment of facts and evidence is unjustified | 24 | 57,1% |
| In total | 48 | 114,2% |
Thus, the lack of attention of a judge in proceedings to a great extent depends on the situation, in which the evidence by the parties is unstructured and lame or assessment of facts and evidence is unjustified (57, 1%).
2. The question “Given the choice between nominal and real punishment which decision do you prefer more often in your practice (if there is a legitimate reason for exemption from real punishment)?” received the following responses:
Table 2
| Given the choice between nominal and real punishment which decision do you prefer more often in your practice (if there is a legitimate reason for exemption from real punishment)? | ||
| Quantity | % | |
| Exemption from punishment and imposing a probationary period | 30 | 71,4% |
| Actual deprivation of liberty | 2 | 4,8% |
| Both types occur equally | 10 | 23,8% |
| In total | 42 | 100% |
Thus, in majority of cases judges prefer to exempt the defendant from punishment if there is a legitimate reason for doing so (71, 4%). That is, axiological component of judicial philosophical foundations envisage a certain level of confidence in the defendant, giving them a chance to change their legal behavior, recognizing their right to error etc.
3. The question “What else do you take into account besides the rule of law when choosing the type of punishment?” received the following responses:
Table 3
| What else do you take into account besides the rule of law when choosing the type of punishment? | ||
| Quantity | % | |
| Moral values of the judge | 8 | 19% |
| Crime’s social resonance | 2 | 4,8% |
| Personal psychological (human) perception of the accused’s personality | 8 | 19% |
| Several reasons | 27 | 64,3% |
| In total | 45 | 107,1% |
Thus, the majority of judges when taking discretionary decisions apply an integrated approach to assessing the facts and evidence in the case. When choosing the type of punishment 64, 3% of judges are governed by the presence of several reasons. However, their moral values and personal (human) perception of the accused’s personality as criteria for choosing the type of legal judgment are also important (19%). That is, almost half of the surveyed judges stated that their discretionary decisions are based on the axiological orientations, psychological and ethical factors.
4. The question of the role of the precedent in practice of the particular subject of law enforcement received the following responses:
Table 4
| In considering and deciding cases you apply: | ||
| Quantity | % | |
| Own judicial precedent | 3 | 7,1% |
| Judicial precedent (legal position) of the court in which the judge works | 3 | 7,1% |
| Judicial practice of the court of appeal, High Specialized Court of Ukraine, Supreme Court of Ukraine | 32 | 76,2% |
| Consider each case as the first in the practice | 6 | 14,3% |
| In total | 44 | 104,7% |
Thus, a very small percent of judges (only 14, 3%) consider each case as if the first in their practice. The majority of the surveyed actively resort to the judicial practice of the courts of appeal, the High Specialized Court of Ukraine for civil and criminal cases (hereinafter HSCU) and the Supreme Court of Ukraine (hereinafter SCU). This proves that the institutionalization of the SCU precedent cases, which took place in the course of judicial reform of 2010, was really urgent and necessary. Even if it is not directly prescribed by law, the decisions of this body create a certain stereotype within the legal framework and become the source of law that has certain influence on subjects of law enforcement. Therefore, the precedent case activity of the courts of appeal, the HSCU and the SCU simplify the judicial investigation at the stage of assessment of facts and evidence of law enforcement activities.
The next question involved consideration of a typical discretionary decision. A citizen M filed a complaint against a citizen N, in which he asks to terminate their marriage. The plaintiff and the citizen N. lived separately for over a year. The plaintiff M. has another woman with whom he wants to start a family. The parties have a three year old child. There is no property dispute or a dispute concerning the place of residence of a child. The defendant asks the court to stop the proceedings and give the parties six months to reconcile, as she believes it is possible to preserve the family because she still loves her husband and doesn’t want to leave a child fatherless. The plaintiff objects to the reconciliation period, arguing that a year ago he tried to come to terms with his wife, but the attempt failed. There are no more feelings.
5. When choosing the most probable decision the judges gave the following responses:
Table 5
| The most probable decision in considering the divorce case and taking into account the stated conditions: | ||
| Quantity | % | |
| Refuse the request and continue proceedings | 5 | 11,9% |
| Satisfy the request and give six months to reconcile | 15 | 35,7% |
| Satisfy the request and give four months to reconcile | 4 | 9,5% |
| Satisfy the request and give three months to reconcile | 10 | 23,8% |
| Satisfy the request and give two months to reconcile | 6 | 14,3% |
| Satisfy the request and give one month to reconcile | 2 | 4,8% |
| In total | 42 | 100% |
Thus, the majority of judges claim to support family values. Only 11. 9% of judges tend to reject the defendant's request to give the period to reconcile.
6. The question “What sentence is the most often in your practice when you choose a sentence of imprisonment of 5 to 12 years (in percent) taking into account the accused is positively characterized?” received the following responses:
Table 6
| What sentence is the most often in your practice when you choose a sentence of imprisonment of 5 to 12 years? | ||
| Quantity | % | |
| To the lowest term (5 years) | 11 | 26,2% |
| Rather to the lowest than to the highest (6-7 years) | 25 | 59,5% |
| Rather to the highest than to the lowest (8-9 years) | 4 | 9,5% |
| To the highest term (12 years) | 0 | 0 |
| Less than the lowest term (if there are grounds) | 2 | 4,8% |
| In total | 42 | 100% |
Thus, the majority of judges are moderate in their position on imprisonment as punishment. In particular, 59, 5% of the surveyed would rather apply the lowest than the highest sanction (6-7 years). None of the surveyed tends to apply the maximum penalty provided for by the law. Therefore, the judicial law enforcement subjects do not consider imprisonment for long term as the effective means of correction of the defendant’s misconduct, which also reveals their world view.
7. The next question involved consideration of a typical discretionary decision. A 25-year-old citizen N. drove a vehicle while intoxicated, which is confirmed by the appropriate medical conclusion. The offence was committed for the first time. At the time of the commission and consideration of offence the offender worked as a driver, received 2000 UAH a month, had no restrictions in public employment, and supported his disabled mother, with whom he lived together with the father. The offender has secondary education and no other profession, except from that of the driver. Frankly repented of his actions and acknowledged the guilt. What administrative sanction would you apply? The judges decided on the following types of administrative sanction:
Table 7
| What administrative sanction is the most probable taking into account the stated conditions? | ||
| Quantity | % | |
| Fine of 2500 UAH | 12 | 28,6% |
| Fine of 3400 UAH | 1 | 2,4% |
| 40 hours of public works | 25 | 59,5% |
| Deprivation of the right to drive a vehicle for 1 year | 4 | 9,5% |
| In total | 42 | 100% |
Thus, the majority of respondents tend to impose the punishment of 40 hours of public works. It is considered as milder form of punishment compared to fines and, in particular, to deprivation of the right to drive a vehicle. However, 9,5% of the surveyed judges would decide to deprive the offender of the right to drive, despite all the factors that emphasize the “toughness” of such discretion (the disabled mother, absence of other profession etc.).
The results of the survey and analysis thereof allow us to identify the following trends in influence of philosophical foundations of the professional conscience of judges on law enforcement activities:
- communication barriers in proceedings are related to the assessment of given facts and evidence; if the evidence by the parties is unstructured and lame, and the assessment of facts and evidence is unjustified the level of judicial scrutiny decreases;
- in deciding between nominal and real punishment judges prefer to exempt the defendant from punishment if there is a legitimate reason for doing so. In other words, axiological component of judicial philosophical foundations envisage a certain level of confidence in the defendant, giving them a chance to change their legal behavior, recognizing their right to error etc.
- at the stage of assessment of the facts and evidence of law enforcement activities, most judges taking discretionary decisions use an integrated approach and consider several reasons when choosing a particular type of punishment. However, the judge’s moral values and personal (human) perception of the accused’s personality as criteria for choosing the type of legal judgment are also important. Discretionary decisions of a significant number of judges are based on the world-view orientations, axiological system, psychological and ethical factors;
- role of the precedent in judicial scrutiny is of great importance, as only a few judges consider each case as the first in their practice. The majority of judges resort to the judicial practice of the courts of appeal, the HSCU and the SCU. The precedent case activity of the courts of appeal, the HSCU and the SCU creates a certain stereotype within the legal framework and simplifies the judicial investigation at the stage of assessment of facts and evidence of law enforcement activities;
- the majority of the surveyed judges claim to support family values and their impact on judicial decision-making is undisputable;
- in general, judges’ position on imprisonment is moderate. The majority of the surveyed would rather apply the lowest than the highest sanction The judicial law enforcement subjects do not consider imprisonment for long term as the effective means of correction of the defendant’s misconduct, which also reveals their world view;
- judges tend to apply milder forms of punishment provided that the offence is committed for the first time, which is logical.
Therefore, in a certain sense, through the experience gained by the subjects of judicial enforcement activities law enforcement practices are the source of legislation in young democracies. As the subject of law enforcement the judge shall understand the depth of the law, its moral and social potential and introduce it in legal practice. It is clear that sometimes this process is complicated due to the rapid, sometimes even too intense development of the state and the legal system, and therefore, the enforcement of certain provisions of the modern Ukrainian law is implemented through the prism of the judges’ world-view.
The author expresses his sincere gratitude to Alexei Mykolayovich Levanchuk, the Head of the Court of Appeal of Mykolayiv region for his assistance in conducting the sociological survey among the judges of Mykolaiv region.
References:
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