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/ November 2022
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DOI: https://doi.org/10.34069/AI/2022.59.11.4
How to Cite:
Horodovenko, V., Shandula, A., & Dmytriyeva, M. (2022). Legal certainty in law enforcement through the prism of ECtHR
decisions. Amazonia Investiga, 11(59), 43-53. https://doi.org/10.34069/AI/2022.59.11.4
Legal certainty in law enforcement through the prism of ECtHR
decisions
Правова визначеність у правозастосуванні крізь призму рішень ЄСПЛ
Received: November 15, 2022 Accepted: December 15, 2022
Written by:
Viktor Horodovenko9
https://orcid.org/0000-0001-6002-4192
Alexander Shandula10
https://orcid.org/0000-0002-8055-0138
Mariya Dmytriyeva11
https://orcid.org/0000-0001-6082-5950
Abstract
The problems of legal certainty and legal
uncertainty are growing significantly in the field
of lawmaking and law enforcement. Thus, the
threatening consequences of this are the
weakening of the rule of law around the world
and the growing number of Ukrainian citizens
applying to the European Court of Human Rights
(ECtHR). The article traces the brief genesis of
the principle of "res judicata", emphasizes the
various manifestations and forms of legal
certainty, and clarifies two groups of
requirements for it. In the study, the main
attention is paid to the peculiarities of legal
certainty in the field of law enforcement. The
article is aimed at determining the features and
requirements of the principle of legal certainty in
court proceedings based on analysis and
generalization of ECtHR decisions. It is
substantiated that in the generalized form the
elemental composition of the principle of
certainty in law enforcement includes:
requirements for interpretation (in particular,
judicial) of normative legal acts and separate
norms; legality of resolving legal conflicts and
eliminating gaps in current legislation; stability
of court decisions; unity of judicial practice. The
case law of European judicial institutions in
matters of legal certainty is characterized by the
position that the problem should be resolved in
each case taking into account the facts of the
case, their analysis in terms of identity, the
relationship between them, as well as their
9
Doctor of Legal Science, Professor of History and Theory of State and Law Department of Zaporizhzhia National University
(Zaporizhzhia, Ukraine).
10
Doctor of Legal Science, Associate Professor of the Department of Advocacy of Yaroslav the Wise National Law University
(Kharkiv, Ukraine).
11
Ph.D. candidate, Zaporizhzhia National University (Zaporizhzhia, Ukraine).
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proneness, a combination of stability and
dynamism, general and special. Research
methods used by the authors of the article include
analysis, synthesis, induction, deduction,
comparative-legal, formal-legal and logical-legal
methods.
Keywords: Rule of Law, Law Enforcement,
Legal Certainty, Legal Uncertainty, Court
Decisions.
Introduction
The global spread of the COVID-19 pandemic,
the imposition of quarantine measures by
governments of different states, varying degrees
of legal certainty, violate the requirements of
legality, proportionality, non-discrimination,
limiting the scope and content of human rights,
and ultimately reducing the rule of law. That is
why the unprecedented restrictions on human
rights and strict quarantine measures taken by the
governments of many countries have been
challenged in the constitutional jurisdictions of
several countries (including Bosnia and
Herzegovina, Northern Macedonia), which in
their decisions focused on the introduction of
only those measures that are legal, proportionate,
necessary, non-discriminatory, had a specific
purpose and duration (Horodovenko, Bondar, &
Udovyka, 2021). Under such conditions, the
study of legal certainty in law enforcement is
relevant, has practical and theoretical
significance, because, since the adoption of the
Convention for the Protection of Human Rights
and Fundamental Freedoms, legal certainty has
become a universally recognized principle of
international law. The case-law of the European
Court of Human Rights is implemented in
various legal forms.
The urgency of the study is strengthened by the
implementation of the Association Agreement
between Ukraine and the EU and the
constitutionally enshrined European vector of
development of the Ukrainian state, which
requires understanding and adequate application
of European law, streamlining law enforcement
practices under European legal standards,
because, as scholars rightly point out, the
application of the law is the second factor after
lawmaking, which significantly affects the nature
and purpose of legal regulation. Law
enforcement is designed to ensure the
implementation of legal norms into real-life
processes, taking into account the specifics of a
particular situation (Guiwan, 2017a). Of
particular importance in this sense is the judicial
implementation of the law.
The purpose of the proposed work is to determine
the features and requirements of the principle of
legal certainty in the judiciary based on the
analysis and generalization of ECtHR decisions.
Theoretical Framework or Literature Review
The spread of the COVID-19 pandemic
inevitably increases threats and challenges in the
areas of security, law and order, justice, human
rights, and the rule of law. The weakening of the
rule of law over the past two years can be seen in
more than half of the world's countries, as
evidenced by the 2021 WJP Rule of Law Index.
According to the index, 84.7% of the world's
population (6.5 billion people) live in countries
where the rule of law is declining. The most
complex problems are in the following areas:
restrictions on the powers of governments, public
participation, freedom of thought and expression,
freedom of assembly, equality of rights, and non-
discrimination (World Justice Project, 2021).
For Ukraine, which has been in a state of hybrid
war for the last seven years, the problems of the
rule of law and human rights are becoming
especially relevant and acute. Over the last
decade, there has been an increase in the number
of Ukrainian citizens applying to the European
Court of Human Rights for violations of the 1950
Convention for the Protection of Human Rights
and Fundamental Freedoms. of the four countries
with the largest number of appeals sent to court –
4271. For comparison, in 2018, this figure was
3207, in 2019 – 3991. In 2018, there were 7267
such cases (12.9%), in 2019 – 8827 (15%)
(ECHR, 2020). The most common violations are:
cruel or inhuman treatment; the right to liberty
and security; fairness of the trial; terms of
consideration; non-execution of decisions. As of
August 30, 2021, according to Bot & Partners,
Ukraine has moved from 3rd to 4th place among
the countries with which the ECHR is most often
sued with 1,140 appeals. The third place was
taken by Poland – 1517 appeals. The main
reasons for Ukrainians' appeals to the European
Horodovenko, V., Shandula, A., Dmytriyeva, M. / Volume 11 - Issue 59: 43-53 / November, 2022
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Court of Human Rights are unfair trials,
inhumane treatment of prisoners, violations of
the right to liberty, and the right to peaceful
enjoyment of possessions (OpenDataBot, 2021).
In this context, the principle of legal certainty is
important, which, in our opinion, should be
considered as part of the principle of the rule of
law and the legal system. As Ognevyuk (2017)
rightly points out, legal certainty sets out
requirements for law enforcement based on
respect for human rights and effective
mechanisms to protect them from unlawful state
interference. However, despite the importance of
this concept, to date, it has not found normative
consolidation and interpretation in Ukrainian
legislation. At the same time, it is inexpedient to
absolutize the certainty of legal regulation,
because the variability of social conditions, the
permanent development of social relations, and
the emergence of new relations lead to the fact
that certainty loses its absolute character,
acquires signs of fictitiousness. Reflecting on
legal certainty as a property of legal regulation,
Rabinovich emphasizes that this category is
always characterized by one degree or another,
and is the object of quantitative and qualitative
measurement, which in practice results in its
relative nature (Rabinovich, 2017). Therefore,
the principle of legal uncertainty is also
meaningful for law enforcement, which
characterizes the dynamic aspect of the law, and
provides flexibility and efficiency in regulating
certain social relations.
Works by Guiwan (2017b), Ognevyuk (2017),
and Pogrebnyak (2009), devoted to the analysis
of recent research and publications, show that the
study of certain aspects of the principle of legal
certainty.
Simultaneously, the analysis of Ukrainian
scientific sources convincingly showed that the
problem of legal certainty is the subject of
scientific understanding primarily, within the
theory of law and science, judicial, and law
enforcement agencies. Some aspects have been
the subject of research in constitutional, civil, and
administrative law. Instead, in foreign sources,
along with general theoretical aspects,
researchers pay considerable attention to industry
issues of legal certainty, they are devoted to
numerous scientific publications. The
intensification of research on legal certainty over
the past three years is largely due to the adoption
of a number of regulations and changes in current
legislation in connection with the spread of the
COVID-19 pandemic, which was marked by
legal uncertainty (Wolters Kluwer Editorial
Staff, 2021). The subject of a wide scientific
discourse of foreign scholars is the question of
the transformation of ideas about legal certainty
and the rule of law (Fenwick, Siems, and Wrbka
(2017), Gardner (2012), Carlin (2012)), the
connection between legal certainty and legal
values (Lifante-VidalIs (2020), Janderová and
Hubálková (2021)), human rights Barak (2010),
Beazley (2020), legitimate expectations and
strategies of states in a pandemic (Brown,
Grogan, and Beqiraj (2021)), antitrust law,
economic and financial activities (Portuese
(2020), Tapia-Hoffmann (2021)), the spread of
international terrorism (Greene (2017), Bekele
(2021)). It is widely believed among foreign
scholars that legal systems should allow those
who obey the law to predict people's behavior
and institutional reactions, as well as prevent the
arbitrary use of state power against them
(Lifante-VidalIs, 2020), and legal certainty is a
key factor in economic growth. At the same time,
it is necessary to take into account the legal
certainty, that excessive emphasis on this concept
may create some tension with other, perhaps
important considerations, especially legal
flexibility Wrbka (2016). These scientific
positions of foreign scholars coincide with the
views of Ukrainian scholars and can be a
methodological basis for interpreting the
relationship between legal certainty and legal
uncertainty.
The dynamism of public relations and Ukraine's
efforts to become an equal member of the
international community, European integration
of political and legal development, as well as the
need to build a just legal order in the face of
global challenges and threats, determines the
relevance of further research taking into account
the scientific positions of foreign scholars.
Methodology
The authors of the study used a number of
general and special methods to conduct the study
in the most effective way. As for the general
methods of cognition, including such common
methods as analysis, synthesis, induction,
deduction, we will not dwell on them due to the
fact that they are well known and do not require
special attention. As for special methods, among
which it is worth mentioning the comparative-
legal method, the formal-legal method and the
logical-legal method, we will analyze them in
more detail.
In particular, the comparative legal method
consists in comparing different state and legal
systems, institutions, categories in order to
identify features of similarity or difference
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between them. As a result of the comparison, the
qualitative state of the legal system as a whole or
individual legal institutions and norms is
established. The comparative legal method
allowed researchers to find out all the
characteristic features of such legal categories as
legal certainty and legal uncertainty. The
specified method made it possible to fully
characterize the principle of legal certainty and to
investigate the peculiarities of its application in
practical activities.
The formal-legal (normative-dogmatic) method
is traditional for legal science and constitutes a
necessary degree in the scientific knowledge of
law, as it allows studying the internal structure of
the state and law, their most important properties,
classifying the main features, defining legal
concepts and categories, establishing methods of
interpreting legal norms and acts, to systematize
state-legal phenomena. Its essence is that the
subject of research in this case is law in its purest
form - its categories, definitions, signs, structure,
constructions, legal technique. Formal and legal.
the method among other special methods can
with the greatest reason be called special, since it
is used exclusively in the study of law. Using this
tool, the authors of the article investigated the
actual content of the category of legal certainty
and clarified the differences in the application of
this principle in various areas of law
enforcement.
Logical-legal method - includes means and
methods of logical study and explanation of law
and is based on forms of thinking and laws of
formal logic. The use of logical means in the
study and explanation of law allows to avoid
contradictions in the construction of legislation,
to build a logically consistent and thus effective
system of law, to harmonize positive law with the
requirements of natural law, and finally, to
correctly and competently apply legal norms.
The mentioned method allowed the researchers
to carefully analyze the judgments of the ECtHR
from the point of view of the application of the
principle of legal certainty, and to draw
conclusions regarding the areas of improvement
of the activities of the ECtHR in the studied
context.
Results and Discussion
Analysis of scientific sources convincingly
shows that some provisions relating to the
principle of legal certainty, in a generalized form
were contained in the Laws of King Hammurabi.
In particular, in Art. Article 5 of the Code states
that a judge who rendered a decision in a case and
then changed it is deprived of the right to
administer justice and must pay the amount of the
claim in twelve times (Hammurabi, 2002). The
finality of the decision was recognized as
important.
However, this concept was substantiated in detail
in the provisions of Roman law, devoted
primarily to procedural issues of justice, the
institution of judicial decision, the provision of
an appeal system and the grounds for revocation
of judicial acts. Thus, in the Roman process, legal
certainty was manifested in the establishment of
the following requirements: determination of
procedural deadlines, the deadline for the
administration of justice; coercive reason and
responsibility for non-appearance in court; norms
that provided for bail or other security for
appearance in court, liability for obstruction of
appearance in court. These restrictions and
requirements were designed to ensure stability in
the field of substantive legal relations, the
certainty of the legal status of the participants in
these relations, as well as the fairness and finality
of the trial.
In addition, the principle of «res judicata», which
emerged within the institution of judicial
decision, was important for the development and
practical provision of legal certainty. Thus,
Justinian's Digests state that «a case in which a
court decision is rendered is one in which the
judge's statement puts an end to the dispute: what
is achieved by award or acquittal». At the same
time, the binding force of the sentence was based
on the praetorian edict «condemnatus, ut
pecuniam solvate» – the convict should pay the
specified amount – and was protected by a
lawsuit to enforce the judgment (Kofanov, 2002).
Thus, the principle of «res judicata» has its roots
in Roman law, although it was not considered as
an independent principle and was not interpreted
in its modern sense. It was embodied in certain
legislative acts. Without going into the genesis of
the components of the principle of legal
certainty, which is the subject of a separate
scientific study, we note that since ancient times
the institute «res judicata» provided stability and
certainty of both material and procedural
relations, and later was the basis of the modern
concept of legal certainty. For a long time, the
«res judicata» institute has formed the core of the
principle of legal certainty.
With the adoption of the Convention for the
Protection of Human Rights and Fundamental
Freedoms, legal certainty has become a
universally recognized principle of international
law, which ensures predictability and security for
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human beings. Despite the above, this act does
not contain any normative consolidation of the
relevant principle, nor its specific definition, nor
a clear normative content. Interpretation of legal
certainty is consistently carried out in the case-
law of the European Court of Human Rights
(hereinafter – ECtHR, the Court), which
emphasizes that «a rule cannot be considered» a
law «if it is not formulated with sufficient clarity
so that the citizen himself or if it is needed, with
professional help could predict with a degree of
probability that can be considered reasonable in
these circumstances, the consequences which the
specific actions can lead to» (European Court of
Human Rights, 1992). The assessment of legal
certainty and the statement of its violation takes
place always, taking into account the
circumstances of the case.
It is necessary to take into account the fact that
the principle of legal certainty is inherently
related to the principle of protection of trust,
which, in particular, assumes the confidence of
citizens that their legal position will remain
stable and will not deteriorate in the future;
publicity of public authorities; stability of
legislation; respect for the state to the «legitimate
expectations» of citizens. As rightly noted in the
scientific literature, public confidence in the
judiciary is «woven» into the mechanism of state
power, and in times of crisis of state and social
development comes to the fore, becomes an
indicator, a criterion for evaluating its activities
and, at the same time, an attribute of progressive
legal development» (Udovika, & Novoselova,
2021). Under such conditions, legal certainty
permeates the entire mechanism of state and legal
development.
We share the opinion of scholars that legal
certainty belongs to the complex concepts of
legal science, which determines the multiplicity
of theoretical approaches to its understanding. In
addition, given its dynamism, transformation in
light of the emergence of new relationships, and
the development of legal thought, it can be
argued that this legal phenomenon is
multifaceted (Pogrebnyak, 2009).
Legal certainty has various manifestations and
forms of existence. Thus, Pogrebnyak (2009)
points out that the content of the principle of legal
certainty consists of two main groups of
requirements – requirements for regulations and
requirements for their application (requirements
for enforcement). Given that the requirements for
the rule-making process are not included in the
subject of this study, we consider it necessary to
pay attention to the second group of requirements
to which the researcher refers:
1) regulations must be complied with;
2) there must be a practice of clarifying
(concretizing) their content;
3) there must be a practice of uniform
application of the law, and;
4) court decisions must be final and binding
and enforceable.
Analyzing the existing research, it can be noted
that in generalized form, that legal certainty is
often understood as: the principle of judicial
activity and the requirement for judicial
decisions; an integral part of the principle of the
rule of law, the main purpose of which is to
ensure the stability of the legal status of the
person, the predictability of legal norms; the
independent fundamental principle of the legal
system, which ensures the stability and
effectiveness of law in general (Ognevyuk,
2017). In our opinion, the latter position is the
most reasonable, because a detailed study of the
manifestations of legal certainty in the legal
regulation of various social relations and the
functions it performs, suggests that it went far
beyond the rule of law and is not limited to
regulatory requirements to the legal acts or court
decisions.
It should be noted that compliance with the
requirements of legal certainty in law
enforcement is inherently associated with
compliance with the requirements of legal
certainty in lawmaking (requirements for the rule
of law) and the requirements for the certainty of
the powers of public authorities. This is
confirmed by the case-law of the European Court
of Human Rights, which reveals the essence of
the principle of legal certainty through three main
components: requirements for discretionary
powers of public authorities; requirements for the
legislative process; requirements for court
decisions.
The requirement of certainty in the application of
legal norms is embodied, first of all, in the unity
of judicial practice, which is that courts must
make the same decisions under the same factual
conditions in similar cases. Thus, the ECtHR
finds a violation of the principle of legal certainty
in cases where the court makes contrary
decisions on the limits of the law in similar legal
situations, and the higher judicial body does not
resolve these contradictions in its practice or
contrary decisions are made by the highest court.
Simultaneously, the criteria for assessing
differences in judicial make up three main points:
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the materiality and duration of differences; the
existence in the national legislation of a
mechanism for their elimination; the fact of
application of these mechanisms (European
Court of Human Rights, 2011). However, despite
the importance of harmonization of case law, the
European Court does not deny its development
and compliance with the criteria of proper law
enforcement in the case of its validity and taking
into account the dynamics and logic of legal
relations.
The requirement of certainty in the application of
legal norms is closely related to the unambiguity,
accuracy, and clarity of the official interpretation
of certain norms and regulations. This principle
is directly related to the requirements for rule-
making techniques. In particular, in The Sunday
Times v. The United Kingdom The Court stated
that a rule cannot be considered а «law» until it
has been formulated with a sufficient degree of
precision to enable a citizen to relate his conduct
to it; in this case, the person must be able,
including using the necessary advice, to
anticipate, to a reasonable degree in the particular
circumstances, the consequences that an action
may have. However, such predictability does not
have to be absolute, as the law must be able to
adapt to changing circumstances (European
Court of Human Rights, 1979). In this case, the
objective uncertainty inherent in the law is
eliminated by interpreting and specifying the
legal requirements that are the task of practice.
A special role in legal certainty is played by the
legality of resolving legal conflicts and
eliminating gaps in existing legislation. Thus, the
ECtHR in Baranowski v. Poland points out that
legislative gaps and practices based on them that
are not based on a legal provision or a court
decision violate the principle of legal certainty
(European Court of Human Rights, 2000). In
addition, gaps in law and conflicts not caused by
competition from legal norms lead to imbalances
in legal regulation in general and significantly
complicate the law enforcement process, which,
in turn, reduces the legal effect of such norms and
their inability to adequately, effectively and
fairly regulate legal relations. In the process of
law enforcement practice, the elimination of such
uncertainty occurs through interpretation,
including judicial, defective rules in resolving
specific disputes, as well as by applying the
analogy of rule and analogy of law.
Given the subject of this study, we consider it
necessary to analyze in more detail the
requirements for judicial decisions as an element
of legal certainty which, in our opinion, directly
reveals the nature and purpose of legal certainty
in law enforcement, as stability of relations
effectiveness of the judicial system.
In this context, Guiwan (2017a) correctly points
out that the court is the mediator in possible
conflicts between public authorities and the
citizen, the last resort in case of acts or officials
of public authorities’ arbitrary actions against
individuals. Implementing limited law-making
functions in the course of consideration of
specific cases and adaptation of the legal norm to
the situation, the courts ensure the ability of legal
acts to serve as a regulator of public relations. In
this sense, legal certainty as a universal principle
of law acquires significant substantive features
due to the specifics of legal relations that arise in
the procedural sphere.
Traditionally, most scholars have identified the
requirement of certainty of judicial decisions
with the Roman principle of «res judicata». Thus,
Guiwan (2017b) notes that this category is rightly
considered as equivalent to the finality of the
court decision that has entered into force, and
guarantees the invariability of the established
status of the parties to the dispute.
Substantiating the synonymy of legal certainty
with the principle of «res judicata», supporters of
this view appeal to the case-law of the European
Court of Human Rights. In particular, in
paragraph 61 of the judgment in the case of
Brumarescu v. Romania, the Court notes that the
principle of legal certainty is one of the
fundamental aspects of the rule of law, which
requires that, in case of a final judgment, it be
beyond doubt and be irreversible (res judicata)
(European Court of Human Rights, 1999). This
view has been confirmed by the Court in some
other cases (European Court of Human Rights,
2003b).
At the same time, it should be noted that the idea
of «res judicata» and legal certainty, despite their
close relationship, are not identical. Considering
the historical aspect of the formation of the
concept of «res judicata», we can conclude that
at first, it did not have the meaning that modern
scientists put into it: the literal translation of this
term means «decided case», and the practical
embodiment was that after the decision
(sentencia) was made the subject matter was
considered resolved. We share the opinion of
Rekhtina (2013), who emphasizes that the
concept of «res judicata» ensured the functioning
of the court decision, and some of its elements
were manifested, including as a result of the
finally resolved case. In particular, such a
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decision precluded a retrial both in the negative
aspect, as it became the basis for exepcio rei
judicata (preclusive effect) and in the positive,
because there was no need for further litigation
on issues that have been resolved (prejudicial
effect).
In modern science, the principle of res judicata is
considered in two senses:
− in the narrow – the presence of a final
judicial act, which entered into force and
decided the case on the merits, which
eliminated the contradiction or other
uncertainty of the relationship;
− broadly – the principle of judicial procedure,
which establishes that the end of the dispute
by making a decision and its entry into force
has the consequence: exclusivity –
reconsideration of the same dispute is not
allowed; indisputability – further appeal of
the decision in the general order is
prohibited, and review is allowed only in
certain circumstances; enforceability – the
court's decision must be enforced. In this
interpretation, res judicata should be
considered as a sectoral principle of legal
certainty.
Res judicata acts as a defined status of the final
judicial act, which is not subject to re-
examination in the absence of exceptional
circumstances. However, any violation of res
judicata is a violation of the principle of legal
certainty, as it results in uncertainty of the legal
status of the subjects who are parties to the case.
In particular, Judge H.L. Rozakis in a dissenting
opinion in the judgment in Brumarescu v.
Romania points out that in cases where the legal
system gives the court the right to make final
decisions and then allows them to be overturned
in subsequent proceedings, not only does legal
certainty suffer, but the very existence of the
court is called into question because, in fact, it
has no authority to finally resolve the legal issue
(European Court of Human Rights, 1999). Thus,
in our opinion, the identification of the principles
of legal certainty, including judgment, and res
judicata is incorrect, as the latter should be
considered as a procedural aspect of legal
certainty, which means the finality of judgments.
It is worth noting, that legal certainty is a broader
category, which includes not only the stability of
judicial acts but also the requirements for their
content, presentation techniques, logical
structure, and motivation.
Analysis and generalization of the case-law of
the European Court of Human Rights gives
grounds to conclude that the legal certainty of
court decisions is considered by him in two
aspects:
• substantive – requirements addressed to the
decision itself as a consequence of law
enforcement activities: clarity, lack of
contradictions, motivation. Thus, the Court
draws attention to the fact that, following the
principle of the proper administration of
justice, decisions of courts and tribunals
must set out the reasons behind these
decisions. Even though national courts have
a certain discretion in choosing the
arguments in a particular case and accepting
the evidence provided by the parties, the
judiciary is obliged to justify its actions, and
indicate the reasons for its decisions
(European Court of Human Rights, 2003a).
However, the qualitative degree of
motivation may depend on the nature of
these decisions, the variety of arguments,
and the peculiarities of legal systems, laws,
and customs. In addition, decisions that
deviate from the existing case-law of the
respective state require better justification;
• stability of the decision – this group of
requirements includes: a ban on requiring a
review of the final decision only for
reconsideration and obtaining a new
decision; review cannot be a covert form of
appeal, and the presence of opposing views
in the case cannot be grounds for review;
prohibition of cancellation of the final
decision, which has binding legal force, by
the higher court, including at the request of
a public official (European Court of Human
Rights, 2003b). Simultaneously, European
practice is based on the fact that the finality
of a court decision involves establishing and
resolving the factual side of the case,
resolving a legal dispute between the parties,
and is not related to its entry into force
within the meaning of national law.
However, given the universal, comprehensive,
and fundamental nature of the principle of legal
certainty, it would be incorrect to limit its content
solely to the consequences of a judicial act or the
requirements of clarity of a procedural rule.
Legal certainty as a procedural status is a much
broader category that requires a proper
assessment of the legal status as a whole, an
understanding of the conditions and
consequences of the exercise of certain rights,
powers, or responsibilities. These requirements
constitute an internal aspect of legal certainty in
the procedural sphere, without which it is
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impossible to ensure the fairness of judicial
activity and the stability of court decisions.
Despite the significance of the principle of legal
certainty for the regulation of public relations,
including in the process of law enforcement, no
less important in this activity is the opposite
phenomenon – the principle of legal uncertainty.
In the scientific literature, it is widely believed
that certainty and uncertainty are integral
features of legal regulation, interconnected and
interdependent categories that establish
boundaries between each other, capable of direct
and reverse transformation, bipolar in some
manifestations, are both qualitative properties
and specific through legal regulation and
absolute certainty is unattainable due to some
factors, among them – the openness of the
language, which formulates the rules of law, their
generality, the inability to predict in advance all
the real situations. However, the absolutization
of legal certainty, often to the detriment of other
fundamental principles of law, is traditional for
modern legal science. In this situation,
uncertainty is mentioned in connection with it at
best as a defect in lawmaking, which, in our
opinion, is incorrect.
We share the opinion of those scientists who
believe that uncertainty is as natural and
objective as certainty. Moreover, these two
categories, which are inherently opposite, are in
unity and linked by mutual transitions, since
uncertainty is objectively inherent in the law.
Given the dynamics of social development,
international expansion, including legal
cooperation, as well as the convergence of legal
systems, its importance in legal regulation is also
subject to further transformations. Given this, we
consider it necessary to dwell in more detail on
the study of legal uncertainty as a positive feature
of law and its manifestations in law enforcement
activities.
For law enforcement, the interpretation of legal
uncertainty as a bipolar phenomenon acquires
special meaning, because in this case uncertainty
can act as a positive phenomenon that can act as
one of the effective means of legal regulation. In
particular, it is uncertainty that allows for
individual regulation, and provides an
opportunity for reasonable judgment, taking into
account the dynamics of social relations. In this
case, the uncertainty of the rule of law allows
taking into account the peculiarities and
dynamics of social relations at a particular stage
of their existence, to ensure flexibility and
accuracy of legal regulation. According to The
Sunday Times v. The United Kingdom law must
be able to keep up with changing circumstances
(European Court of Human Rights, 1979).
Summarizing and systematizing the provisions
on legal uncertainty as a positive feature of the
law, we can conclude that it manifests itself in the
following forms:
1) principles of law – as the basic ideas of law,
designed to reflect in general the laws of
public life, to establish them on the content
of the law, as well as to adapt legal norms to
the dynamics of social development;
2) evaluative concepts – such constructions
give the subjects of law enforcement certain
freedom in the interpretation of the legal
norm by the possibility of filling the term
with its content, depending on the actual
situation. Under the right conditions,
valuation concepts define legal certainty and
regulatory strength, facilitate the adaptation
of legal norms to the specific circumstances
of the case, give legal regulation flexibility,
and, as a consequence, act as a means of
transition from uncertainty to certainty. At
the same time, the "oversaturation" of
legislation with evaluation categories, lack
of stable and consistent practice of their
interpretation complicates the law
enforcement process, leads to contradictory
court decisions in similar situations, legal
conflicts, violates the unity of case-law and
reduces the level of protection of human
rights and freedoms
3) reason – an intellectual mechanism, a way of
human thinking in terms of a certain choice
of opportunities for the desired result. At the
heart of this activity is a phenomenon of
uncertainty that needs to be overcome. Thus,
discretion is an objectively existing and
socially justified legal phenomenon that
ensures the transition from uncertainty to
certainty. Its importance as a regulator of
public relations is also pointed out by the
European Court, which emphasizes that it is
impossible to achieve absolute certainty in
the wording of the normative act, and
attempts to consolidate it will result in
excessive law. At the same time, national
law must define with sufficient clarity the
scope, limits, and manner of exercise of
discretion to provide citizens with the
minimum level of protection to which they
are entitled (paragraphs 32-33 of the
judgment in Domenichini v. Italy)
(European Court of Human Rights, 1996);•
element of contractual regulation – the
property of uncertainty is often used in the
conclusion of contracts that serve as a means
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of achieving flexibility and accuracy of legal
regulation;
4) element of constitutional justice – in the
activities of constitutional jurisdiction,
which, according to Rabinovich (2017), is
essentially «political jurisprudence», legal
uncertainty creates space for political
regulation and balance of divergent social
interests through some tools of legal
technique, in particular, the choice of ways
of interpreting the Constitution, the means
used in its course, taking into account the
peculiarities of law enforcement practice.
The main feature of legal uncertainty in this
area of legal relations is its evaluative nature,
dependence on the situation and political
interests, that are at the center of the dispute,
and its presence or absence can be both real
and imaginary.
Conclusions
1. Thus, the principle of legal certainty has
deep historical roots. Its origin and content
are associated with the development of
Roman law and the establishment of the rule
of res judicata, which meant the finality and
immutability of court decisions. With the
adoption of the Convention for the
Protection of Human Rights and
Fundamental Freedoms, legal certainty has
become a universally recognized principle
of international law, which, given the
dynamic development of the Convention
and the case-law of the European Court of
Human Rights, has become multifaceted.
The most meaningful approach to defining
the essence of legal certainty is to
understand it as a component of the rule of
law and an independent fundamental
principle of the legal system, as such an
understanding of this category is not limited
to its formal manifestations and reflects the
specific impact of this principle on various
areas of legal regulation and practical
implementation of regulations, including
law enforcement.
2. The variety of forms of existence and
manifestations of legal certainty determines
the multiplicity of views on its content. In
generalized form, the elemental composition
of the principle of certainty in law
enforcement includes requirements for the
interpretation (in particular, judicial) of
regulations and individual rules; legality of
resolving legal conflicts and eliminating
gaps in current legislation; stability of court
decisions; unity of judicial practice. The
essential content of this principle has
significant differences in different areas of
law, in particular, procedural, due to the
specifics of legal relations governed by
them. The key aspect that reveals the essence
and purpose of the principle of legal
certainty in law enforcement is the
requirements for court decisions. The
implementation of the principle of legal
certainty in procedural activities takes place
in various legal forms. In civil proceedings,
the idea of legal certainty is manifested in
the system of appeals and the grounds for the
review of judicial acts that have entered into
force. In criminal proceedings, legal
certainty implies predictability and clarity of
its course, consequences, the legal status of
its participants, as well as other persons
whose rights and legitimate interests are
affected. The case law of European courts –
both the Court of Justice and the ECtHR – in
this regard is controversial, characterized by
a variety of approaches to addressing the
legality of liability for complex offenses.
The ECtHR assumes that this problem must
be resolved in each case, taking into account
the facts of the case, and analyzing them in
terms of identity, the relationship between
them, and their proof.
3. The categories of legal certainty and legal
uncertainty are in a dialectical relationship,
complement each other, set the boundaries
of each of them, and, as a result, in the
dichotomy provide flexibility and efficiency
of legal regulation. Legal uncertainty, as a
positive feature of the law, depends on
several factors and allows for individual
regulation, providing flexible and
reasonable judgment in law enforcement.
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