Adaskalytsia K. Legal certainty as a requirement for the formalization of legal norms

DOI: https://doi.org/10.33098/2078-6670.2024.17.29.10-18

Purpose. The purpose of the article is to define and disclose the basic requirements of the principle of legal certainty in the context of formalization of legal norms. Methodology. The methodology includes the analysis of scientific works and precedent practice of the European Court of Human Rights, the synthesis of scientific knowledge and the construction of well-grounded conclusions regarding the research subject. The following methods of scientific cognition were used during the research: analysis of literary sources, dogmatic, comparative legal, system method, logical reasoning. Results. The study illustrated that there are different approaches to the principle of legal certainty, which are united by the concepts of “clarity” and “comprehensibility” of legal provisions as the main requirements for the formalization of legal norms. Ensuring a high level of “clarity” and “comprehensibility” of legal provisions at the same time is impossible, because high “clarity” leads to a loss of “comprehensibility” and vice versa. Therefore, approaches to determining the minimum threshold and a reasonable balance, which depend on a specific field of law, are proposed in the study. It is also justified that the requirement of “clarity” is a priority, and the requirement of “comprehensibility” is desirable, but secondary. Originality. The research systematically examines the practice of the ECHR along with the achievements of domestic and foreign scientists in order to establish the requirements for the formalization of legal norms derived from the principle of legal certainty. Practical significance. The research results can be used to improve law-making and law-enforcement practices. The research findings can be useful for judges, lawyers, and other legal professionals. The research can be used in the educational process when teaching the theory of law and industry-specific legal disciplines.

Key words: law, Legal norm, legal technique, normative activity, formalization of law, legal certainty, European Court of Human Rights, Constitution of Ukraine.

References

1. Shul’zhenko, F. P (2007) Istoriia politychnykh i pravovykh vchen [History of political and legal teachings]. Iurinkom inter, Kyiv. (in Ukrainian)

2. Constitution of Ukraine (1996). Verkhovna Rada of Ukraine. Available at: https://zakon.rada.gov.ua/laws/show/254к/96-вр#Text (Accessed: 15.01.2024) (in Ukrainian)

3. European Court of Human Rights (1950), Convention on the Protection of Rights human and fundamental freedoms. Available at: https://zakon.rada.gov.ua/laws/show/995_004#Text (Accessed: 15.01.2024). (in Ukrainian)

4. Case of Steel and others v. the United Kingdom. (in English)

5. Pankratova, V. (2017). Istorychni vytoky pryntsypu pravovoi vyznachenosti [Historical origins of the principle of legal certainty]. Pidpryiemnytstvo hospodarstvo i pravo, 1, 187-192. (in Ukrainian)

6. Van Meerbeeck, J. (2016). The Principle of Legal Certainty in the Case Law of the European Court of Justice: From Certainty to Trust. European Law Review, 2, 275-288. (in English)

7. Jovanov, I. (2017). Legal Certainty As A Value–Between Wishes And Possibilities. Thematic conference proceedings of international significance “Archibald reiss days”, Criminalističko-police academy & Academy of criminalistic and police studies . Belgrade, 7-9 November,  2, 413-421. (in English)

8. Bohachova, L. L. (2016). Pryntsyp pravovoi vyznachenosti v yevropeiskomu i natsionalnomu pravi (zmistovna kharakterystyka) [The principle of legal certainty in european and national law (meaningful response)]. Theory and Practice of Jurisprudence, 2(4), 70. (in Ukrainian)

9. Case of Jorgic V. Germany. (in English)

10. Case of Korbely V. Hungary. (in English)

11. Andrusiv, U.B. Fedyk S.Ye. (2019). Elementy pryntsypu yurydychnoi vyznachenosti [Elements of the principle of legal certainty]. Chasopys Kyivs’koho universytetu prava, 1, 19-25.  (in Ukrainian)

12. Case of Salov V. Ukraine. (in English)

13. Case of Kokkinakis v. Greece. (in English)

14. Case of S.W. V. The United Kingdom. (in English)

15. Case of Hashman and Harrup v. The United Kingdom

16. Case of Rekvényi V. Hungary. (in English)

17. Case of Biserica Adevărat Ortodoxă Din Moldova And Others V. Moldova. (in English)

18. Case of Trosin v. Ukraine. (in English)

19. Case of Sukhanov and Ilchenko v. Ukraine. (in English)

20. Case of Kopecký V. Slovakia. (in English)