TO THE QUESTION OF THE JUDGE’S DISCRETION IN BRINGING THE ACCUSED TO CRIMINAL RESPONSIBILITY

Abstract

Based on the evaluative discretion used when bringing a person to criminal liability, the article examines the circumstances established by the court which mitigate the punishment. The author emphasises that in doing so, the court should not only establish them from the criminal proceedings in accordance with the criminal law, but also assess certain circumstances of the criminal proceedings and provide their justification. For a more complete and objective study of the court's evaluative discretion in the context of bringing the accused to criminal liability, the author analyses court verdicts. The relevant circumstances were grouped into different types, and some of them, which had different lexical meanings for a particular circumstance, were unified for more convenient and rational use. In the course of analysing the case law, the author identifies the following types of circumstances which were recognised by the courts as mitigating circumstances: circumstances related to part 1 of Art. 66 of the CCU; circumstances related to the current socio-political situation in Ukraine; circumstances related to the age of the accused; circumstances related to the actions of the accused which indicate that he/she has admitted his/her guilt; circumstances related to the accused's social obligations to support certain persons; circumstances related to the peculiarities of criminal proceedings which indicate that the accused is a low social danger; circumstances related to the circumstances which characterise the personality of the accused. The author concludes that despite the evaluative nature of the judge's discretion in assessing mitigating circumstances, in the context of Part 2 of Article 66 of the CC, the judge relies on the circumstances presented by the parties to criminal proceedings during the trial and must confirm them with relevant evidence. At the same time, the court should examine them in detail, assess how much they influenced the unlawful behaviour of the person or indicate a relatively low social danger of the accused, in order to avoid possible formalisation of their application.