RATIO DECIDENDI VS OBITER DICTUM IN THE DECISIONS OF THE BOARDS OF JUDGES AND COURT CHAMBER OF THE COURT OF CASSATION IN THE SUPREME COURT

Abstract

The article examines the issues of the structure of judicial decisions of panels of judges and judicial chambers of the Criminal Court of Cassation within the Supreme Court, set out in the relevant resolutions. Despite the fact that neither at the level of national legislation does the legally enshrined concepts of ratio decidendi and obiter dictum exist, nor in general is it possible to talk about these categories in their classical form in our judicial system, the author analyzes peculiar analogues of these concepts among the structure of judicial decisions of the Supreme Court, which fall under the category of judicial precedent as a source of criminal procedural law of Ukraine. Given the analysis of judicial practice and norms of national legislation, the author concludes that a kind of analogue of the ratio decidendi category in the structure of the resolutions of the panels of judges and judicial chambers of the Criminal Court of Cassation within the Supreme Court is a legal conclusion on the application of legal norms in similar legal relations, while the obiter dictum category should be understood as additional arguments when formulating such a legal conclusion. In order to ensure clarity and predictability of judicial decisions of the court of cassation, the author proposes a clear correction in the resolutions of the panels of judges and judicial chambers of the Criminal Court of Cassation within the Supreme Court of the conclusion on the application of legal norms in similar legal relations, and at the same time indicates the need for such a decision regarding additional arguments that do not constitute a legal conclusion for a specific case. As a result, the author proposes relevant legislative changes that will contribute to the establishment of judicial precedent as a source of criminal procedural law in Ukraine, and will also allow courts to clearly distinguish what should be taken into account in the subsequent resolution of such legal relations.