THE INSTITUTE OF THE SEPARATE (DISSENTING) JUDICIAL OPINION: A COMPARATIVE ANALYSIS OF UKRAINE, GERMANY, AND THE UNITED STATES

Abstract

The article is devoted to a comprehensive comparative analysis of the institution of separate judicial opinions in Ukraine, Germany, and the United States. It examines the legal basis, practical application, functions, impact on legal doctrine, and social legitimacy of court decisions. The problems of publicity, politicization, and prospects for improving the institution in Ukraine are analyzed separately, and examples of significant separate opinions of judges in different legal systems are given. The institution of a judge’s dissenting opinion as a component of the model of judicial behavior is examined. Its essence, functional purpose, and connection with the phenomenon of judicial discretion are analyzed. It is shown that a dissenting opinion serves as a legitimate mechanism for expressing extra-legal factors that influence the formation of a judge’s internal conviction. It is proven that under conditions of less regulatory regulation, a dissenting opinion is a form of going beyond judicial discretion without violating the principles of justice and judicial independence. The social function of a dissenting opinion as a means of demonstrating pluralism of positions within a judicial body is determined. It has been established that the issue of judicial opinion and the limits of its implementation is becoming particularly relevant in the context of the growing role of the judiciary in a democratic society. At the same time, the institution of a judge’s dissenting opinion remains an understudied element of judicial behavior, reflecting not only legal but also non-legal aspects of judicial decision-making. Emphasis is placed on the fact that the institution of separate judicial opinions in courts and the legal basis for this phenomenon are an integral part of a democratic legal culture aimed at ensuring the real independence of judges and the transparency of the judicial process. Its legal consolidation not only guarantees the freedom of judges’ internal convictions, but also stimulates the development of legal doctrine and the formation of new approaches to the interpretation of constitutional norms. It has been established that a separate opinion serves as a kind of internal criticism mechanism that contributes to improving the quality of court decisions and strengthening trust in the judiciary, and comparative research only contributes to the improvement of the above phenomena and processes.