JUDICIAL DISCRETION IN THE MECHANISM FOR APPLYING RESTRICTIVE MEASURES OF A CRIMINAL LAW NATURE TO PERSONS WHO HAVE COMMITTED DOMESTIC VIOLENCE

Abstract

The article provides a comprehensive theoretical and practical study of judicial discretion in the mechanism of applying restrictive measures of a criminal law nature to persons who have committed domestic violence. Based on an analysis of judicial practice, the legal nature, content, limits of application of restrictive measures and criteria guiding the court in ensuring the protection of victims of domestic violence and the rights of perpetrators are determined. The discretionary activity of the court within the limits of judicial discretion, which is implemented within the limits established by the norms of criminal and criminal procedural legislation and is based on the principles of legality, individualisation, proportionality and fairness, is revealed. An analysis of the types and characteristics of the application of restrictive measures provided for in Article 91-1 of the Criminal Code of Ukraine was conducted. It is argued that restrictive measures do not have a punitive function and therefore cannot be compared to or transformed into criminal punishment, but are aimed at protecting the interests of the victim and preventing the offender from repeating their behaviour in the future, thereby preventing new criminal offences in the sphere of domestic violence. Based on an analysis of judicial practice, it has been determined that when applying restrictive measures, the court determines the nature and form of violence, its systematic nature, the relationship with the victim, the behaviour of the offender before and after the offence, previous instances of prosecution, and takes into account the safety guarantees of the victim. It is emphasised that judicial discretion in the mechanism of applying restrictive measures of a criminal law nature to persons who have committed domestic violence is an important component of law enforcement. It was concluded that judicial discretion in the mechanism of applying restrictive measures of a criminal law nature to persons who have committed domestic violence is an instrument for achieving proportionality between punishment, preventive function and guarantees of the victim’s rights. The possibility of achieving such a balance depends on proper legislative regulation, consistency in judicial practice and the legal awareness of judges.