The Principle of Legal Certainty in the Plane of Law Enforcement Discretion

Abstract

The purpose of the scientific article is to analyze the specifics of law enforcement discretion in the plane of the principle of legal certainty.
The conducted research allows us to conclude that discretionary powers are an integral attribute of the subject of law enforcement, since they allow to make the most optimal and fair decision, without relying solely on the legal norm, which, given the dynamism of public relations, cannot provide for absolutely all aspects of the actual situation.
The thesis that law enforcement discretion can correct defects in regulatory material in a certain way is disputed (since this is possible only through law-making). At the same time, discretionary powers allow to take into account all the specific aspects of a particular law enforcement case, which has a positive impact on the state of legal practice.
Based on the conducted research, it is stated that broad discretionary powers are acceptable for law enforcement actors in developed democracies, but in states where democracy is at the stage of its development (including in Ukraine), broad discretionary powers can become grounds for abuse of officials and their unfair decisions. Thus, in Ukraine, the low quality of regulatory material, including non-compliance with the principle of legal certainty, is combined with a low level of legal awareness of law enforcement entities.
It is emphasized that in the context of martial law and the social crisis in Ukraine, the legal certainty of regulatory material should be increased, and law enforcement discretion should be significantly reduced. In particular, it is advisable for the national legal system at the current level of its development to limit itself to law enforcement discretion within the framework of the law. While discretion outside the law can create significant risks of abuse of power by government agencies and officials.
It is concluded that at the present stage, the national legal system of Ukraine is not characterized by the practical implementation of the principle of legal certainty. Rather, it is declarative, and this further undermines the credibility of both the judicial system and other law enforcement agencies.