Окрема думка судді як елемент суддівської дискреції: порівняльно-аналітичне дослідження

The judicial system is one of the most important components of the rule of law, as it ensures the realization and protection of citizens’ rights and freedoms. At the same time, the functioning of the judiciary involves a significant degree of discretion for judges in decision-making, which reflects the so-called judicial discretion. Judicial discretion, on the one hand, allows judges to ensure an individual approach to each case, while, on the other hand, it raises the issue of their responsibility for decisions made within the scope of the freedom granted to them. One important aspect arising within the scope of judicial discretion is the separate opinion of a judge. A separate opinion reflects not only the judge’s personal view on a specific case but can also serve as an important tool for the development of judicial practice. It is a means of informally expressing differences of opinion among judges, which can lead to changes in the interpretation of legislation or even the emergence of new legal norms. Issues regarding the legal status and consequences of separate opinions of judges remain relevant, especially in countries with a continental legal system. The growing interest in this practice requires improvements in its application, particularly through the clear definition of the legal consequences of separate opinions, enhancing the quality of their reasoning, and training judges. This article presents a comparative-analytical study of the role of a judge’s separate opinion as an element of judicial discretion in different legal systems. In particular, it examines how separate opinions influence judicial practice, whether they can have practical significance for subsequent court decisions, and identifies the factors that determine the extent of their influence in the context of different legal traditions. A comparison of the continental and Anglo-American legal systems will assess the significance of separate opinions within each of them and explore how they contribute to the development of judicial proceedings. The article emphasizes the importance of separate opinions of judges in the context of judicial discretion, their role in the development of legal norms, and their impact on the formation of legal systems.