Almanac of law. Issue 15 (2024), pages 375–380.

DOI: 10.33663/2524-017X-2024-15-375-380

Ostapenko H. Z.
Providing legal certainty in Ukraine: actual status and routs for the implementation

The article analyzes legal certainty principle as the requirement of the rule of law and discusses the application of this principle in Ukraine with the aim to introduce practical solutions and improve its implementation. The difficulties to sustain legal certainty caused by reforms in different spheres of legal practice and crucial sociopolitical situation formed the necessity of prompt legal changes that resulted in setting out new legislation as a response to existing demands. The common solution in this situation is the improvement of the legislation by making changes, introduction of the new legal act or amendments to the existing one. However, what is seen as evident and only solution is not the best in some cases.

Legal certainty principle is the element of the rule of law, that provides stability, predictability, and sustainability in application of the legal norms, results in effectiveness of its application, allows the participants to make decisions about their actions based on the understanding whether their behaviour is legally allowed or not and of the consequences of their actions. The legal basis of the application of this principle is the article 8 of the Constitution of Ukraine, although the principle itself is not specifically named there. Some of the elements of legal certainty are embodied into Ukrainian legislation.

The common situation of application of this principle is legal uncertainty, the level of which in Ukraine is rather high based on the number of the judgments that refer to legal certainty. Ukrainian legal doctrine proposes the immediate change in legislation as the solution to improve legal certainty. However, in some cases the immediate and fast changes of the legislation can cause uncertainties themselves. The examples of the changes to the important legal acts such as The Judiciary System Act and The Enforcement Authority Act show that they suffered severe changes including complete replacement in a short period of time impacting a lot of people. It is argued that the changes must be justified and the legal act very well prepared and drafted. The idea to expand legal regulation is not always the best solution as there should be a certain level of discretion left to meet the needs of the changing environment and specific circumstances.

One of the fields that can contribute to the improvement of legal certainty is the unified judiciary application of legal acts that form a legal practice and can balance the absence of legal certainty of legislation if this is the case. Another suggestion made in the article that proper administration can play an immense role in improving legal certainty. This can be done by ambiguity of administration practice and the examples are shown in the article to prove this position.

Key words: legal certainty, legal principle, rule of law, judicial practice.

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Hanna Zinovyivna Ostapenko,
Associate Professor of the Department of Intellectual Property and Information Law
of the Academic and Scientific Institute of Law
of the Taras Shevchenko National University of Kyiv,
Candidate of Law, Associate Professor
ORCID: 0000-0003-0529-2551