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Judge’s Dissenting Opinion in a Criminal Proceeding: A Critical View
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Judge’s Dissenting Opinion in a Criminal Proceeding: A Critical View
Annotation
PII
S1605-65900000622-5-1
DOI
10.61205/jrp.2023.129
Publication type
Article
Status
Published
Authors
Ilia Dikarev 
ORCID: 0000-0002-4178-744X
Occupation: Director of the Institute of Law
Affiliation: Volgograd State University
Address: Volgograd, Russia
Edition
Volume 27 No. 11
Pages
75-88
Abstract

The idea of a judge's right to a dissenting opinion being one of the key guarantees of the principle of judicial independence is perceived by a legal community as an axiom. For this reason, the institution of a dissenting opinion extremely rarely happens to be the subject of a critical analysis in a legal science. Meanwhile, such an analysis reveals a whole complex of contradictions between the right of a judge to a dissenting opinion and certain principles of judicial proceedings, as well as the negative effect of the use of such a right by judges manifested in a decrease in the authority of justice.

The purpose of the study is to clarify the reasons for granting judges in criminal proceedings the right to express a dissenting opinion and, on this basis, to decide on the expediency of preserving the relevant institution in procedural law. Achieving this goal involves solving a set of tasks related to the study of the correlation of the institution of a judge’s dissenting opinion with the principles of adversarial parties and independence of judges, the requirement of secrecy of the meeting of judges as well as the study of dissenting opinion as a tool for individualizing the figure of a judge who does not agree with the decision made in the case.

A dialectical method served as the methodological basis of the study. In addition, general scientific methods of analysis, synthesis and a systematic approach were used as well as special legal methods: historical-legal, legal interpretation and logical-legal interpretation.

The results of the study demonstrated that a dissenting opinion is attached importance to as a means of protecting the professional honor of a judge allowing him to openly declare his disagreement with the decision. According to this approach, the opposition of two values is exposed — the professional honor of a judge and the authority of justice. Their comparison allows us to assert that the authority of justice is a priority value that cannot be sacrificed for the sake of providing the judge with the opportunity to individualize his figure. In this regard, it is concluded that it is necessary to eliminate the institution of a judge’s special opinion in procedural law.

Keywords
dissenting opinion, secrecy of the meeting of judges, composition of the court, collegiality, authority of justice
Date of publication
10.11.2023
Number of purchasers
10
Views
147
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0.0 (0 votes)
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