Summary

Featured on the cover of a brochure introducing the Supreme Court a few years ago, there was a sentence from the ancient Roman lawyer Publius Iuventius Celsus ‘Ius est ars boni et aequi’ – the law is the art of goodness and equity. Administration of justice is – as the context suggests – therefore the cultivation of this art. Art – despite the fact that art is not considered here in its most ordinary sense – always requires a certain degree of creativity and an inherent ambiguity, and the result depends on the mastery of the knowledge and techniques needed to practise this art. Thus, finding a good and fair legal solution is not as simple as that, but the result depends on how skilfully a lawyer uses his or her tools. This may lead us to ask where are these places where the artistic mastery in the art of justice can be found, and how does this mastery manifest itself? The article seeks to answer this question by looking at criminal procedure.

‘Loopholes’, where the judge has to make choices to fill the gap, occur when ascertaining both the will of the legislator as well as what has happened. This is where the personality of the judge and his or her ability to understand situations and people come into play. The more complex and complicated the case, the more loopholes there are, and the more borderline the case, the greater the number of loopholes and the greater the weight of the choices made by the court.