Legal expertise as a source of “soft law” in judicial practice

Abstract

The article examines the institute of legal expertise as one of the forms of interaction between legal doctrine and judicial practice.

The purpose of the article is to identify the ways to improve the institution of legal expertise in procedural branches of law. The main research methods include formal legal, systemic and historical methods.

The author notes the widespread use of scientific and legal expertise in the practice of the Constitutional Court of Ukraine, civil, commercial and administrative proceedings after the judicial reform of 2017. However, the author emphasises the need to further expand the possibilities of legal expertise in criminal and administrative proceedings.

In 2020, an attempt was made to introduce the institution of a legal expert to the Criminal Procedure Code of Ukraine and the Code of Ukraine on Administrative Offences and a relevant draft law was developed, which was withdrawn from consideration in 2021. The biggest drawback of this draft law, in our opinion, was the lack of regulation of the subject matter of legal expertise. Obviously, such subject matter should be clearly defined, as otherwise it may encourage the parties to the case to provide such opinions on all issues of fact and law, which may be an element of pressure on the court.

In the context of the presented scientific work, the author makes proposals regarding the specifics of the subject matter of legal expertise in criminal procedure and administrative tort law. The author substantiates the possibility of appointing legal expertise on issues related to the qualification of criminal and administrative offences, the case law of the European Court of Human Rights, and the rules of international criminal and humanitarian law. The author emphasises the inadmissibility of their use for assessing the actual circumstances of a case.