The General-Theoretical and Applied Concept of Risk in Criminal Proceedings

Abstract

The concept of risk in criminal proceedings has long remained out of focus of general theoretical jurisprudence, although it is deeply rooted in the practice of investigative and judicial activities. In modern conditions of growing legal complexity, technological progress and increased attention to human rights, there is a need for a systematic understanding of risk as a legal category. The purpose of the study is to form a holistic general theoretical approach to understanding risk in criminal proceedings, as well as to identify the applied significance of this category for improving the practice of pre-trial and judicial consideration of criminal proceedings. The work uses the methodological basis of modern legal theory, including dialectical, systemic-structural, comparative methods, as well as elements of cognitive analysis. The materials of the study were the provisions of the Criminal Procedure Code of Ukraine, judicial practice, scientific publications on criminal proceedings and related fields. As a result of the study, the content of the category of "risk" in criminal proceedings was clarified, and the variety of interpretations of its interpretation was outlined. On the one hand, risk is perceived as a specific process of choosing options for action: the choice of alternatives in a situation of uncertainty; the choice of action, the outcome of which is determined by chance; the unity of circumstances and individual-group preferences (criteria for assessing the situation), on the basis of which a decision is made. On the other hand, risk is revealed through the direct action of the subject: action on luck in the hope of a happy outcome; the course of action in an unclear, uncertain situation; behavior in the presence of danger, threat. And finally, the emphasis is on the probability of negative consequences: the probability of error or failure in a situation with several alternatives; losses associated with the implementation of the decision or caused by adverse environmental factors; the possibility of undesirable consequences (their occurrence) due to the action of random factors; an event, the occurrence of which contains the possibility of any losses. Further research may be aimed at developing regulatory frameworks for assessing and minimizing procedural risks, integrating digital risk assessment tools, and studying the impact of cognitive distortions on decision-making in the criminal process.