TEMPORAL EFFECT OF THE RESULTS OF JUDICIAL INTERPRETATION OF CRIMINAL LAW

Abstract

The article presents the results of a comprehensive study of one of the most debatable and still unresolved problems of modern criminal law: determining the temporal boundaries of the effect of the judicial interpretation of criminal law. Given the requirements of the principle of legal certainty, which guarantees the stability of the law’s text and the predictability of its application, law-applying practice faces a fundamental dilemma. On the one hand, the administration of justice must ensure the uniformity of judicial practice and the dynamic adaptation of the law to social relations. On the other hand, a sudden change in the legal positions of higher courts can create the phenomenon of «unexpected retrospectivity,» which directly contradicts the requirements of fairness. The paper provides a thorough analysis of the nature of judicial interpretation, which in the context of modern legal reality acts as a powerful tool for discovering and supplementing the law. By examining the practice of the European Court of Human Rights (ECtHR) and the concept of «judge-made law» proposed by the Venice Commission, it is substantiated that the legal positions of higher courts actually acquire normative features. It is concluded that the retroactive effect of the results of judicial interpretation is possible, although not explicitly provided for by legislation. It is stated that the possibility of retroactive application of the Supreme Court’s conclusions is an exceptional legal problem that requires a solution. Particular attention is paid to the contradiction between the prohibition of the retroactive effect of law, enshrined in Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and the need for uniformity of judicial practice combined with its dynamism. It is established that, unlike the clearly regulated provisions regarding the retroactive effect of criminal law enshrined in Article 5 of the Criminal Code of Ukraine and Article 58 of the Constitution of Ukraine, the possibility and conditions of the temporal effect of the legal positions of the Supreme Court still remain outside the attention of the domestic legislator. This creates a significant risk of applying new, stricter judicial interpretations to acts committed in the past, when the subject of legal relations quite reasonably relied on previous official clarifications or established judicial practice. It is argued that a situation where «dynamic interpretation» operates retroactively, worsening a person’s position, contradicts fundamental standards of predictability. The author substantiates the need to protect the «legitimate expectations» of the subject of legal relations and proposes scientific and practical approaches to limiting the retrospective application of the results of judicial interpretation that worsen the position of the accused. The author analyzes foreign experience in solving this problem and provides proposals for improving the legislation of Ukraine and formulating a special position of the Supreme Court regarding the temporal boundaries of the effect of its own legal conclusions. The scientific novelty of the study lies in proving the thesis that the legal conclusions of the Supreme Court, which change the established interpretation of a criminal law norm towards increased liability, should be considered as a «new, stricter law» in the context of Article 5 of the Criminal Code, Article 58 of the Constitution of Ukraine, and Article 7 of the Convention. Specific scientific and practical approaches to protecting the «legitimate expectations» of the accused are proposed. In particular, the necessity of legislative improvement is substantiated by supplementing the Criminal Code of Ukraine or the Law of Ukraine «On the Judiciary and the Status of Judges» with a direct norm stating that a change in the legal position to a less favorable one does not apply to acts committed prior to its publication. As an alternative or transitional mechanism, an algorithm for judicial self-regulation is proposed: the formulation by the Grand Chamber of the Supreme Court of a special position according to which the court, when departing from previous practice, is obliged to explicitly indicate the temporal boundaries of its new conclusion, limiting its application exclusively to the future. The article is intended for scholars, judges, practicing attorneys, and anyone interested in the problems of implementing the rule of law in criminal justice.