DISSENTING OPINION OF A JUDGE AS A MANIFESTATION OF THE DISINTEGRATION OF THE JUDICIARY BOARD

Abstract

The criminal procedural legislation provides for the right of a judge who becomes the minority while decision-making to express a dissenting opinion in writing. This right is considered by the theory of criminal proceedings as a guarantee of the principle of freedom to evaluate evidence. It is widely believed that a dissenting opinion is a condition for a judge to sign a verdict with which he disagrees. These established positions are controversial and in need of rethinking. Purpose: to assess the appropriateness of maintaining the institution of dissenting opinion in the context of legal relations between the court and other participants in criminal proceedings, on the one hand, and within the judicial board, on the other. Methods: the methodological basis of the study is the dialectical method; in addition, general scientific methods of analysis, synthesis and a systematic approach are used, as well as special legal methods: historical-legal, legal interpretation and logical-legal. Results: the study concludes that a dissenting opinion does not have any legal effect; its sole appointment is to separate the judge’s position from that of the entire court. Such an individualization of the judge's position separates the judge from the composition of the court to which he is a member, thereby destroying the unity of the judiciary, undermines the trust of the participants in criminal proceedings and society in justice. Moreover, the existence of a dissenting opinion in the case raises groundless doubts about the legality, reasonableness and fairness of the judicial act. In this connection, it is concluded that it is expedient to eliminate the institution of judge’s dissenting opinion.

Keywords

• collegiality
• composition of the court
• dissenting opinion
• freedom to evaluate evidence