The Inconsistency of Case Law and the Right to a Fair Trial

Abstract

Introduction In civil law jurisdictions case law has traditionally not been recognised as a formal source of law. In Slovenia, Article 125 of the Constitution is often invoked in this context, according to which the judges are independent and are, in their decisionmaking, bound (only) by the Constitution and laws, not by judicial decisions reached in other similar cases. The same follows also from Article 11 of the Courts Act, which explicitly provides that a court is not bound by the legal positions of another court. On the other hand, it is acknowledged in legal writing that case law plays a co-creative role at least. It is argued that application of the law must be consistent and uniform, and that in a state governed by the rule of law we justifiably expect to be treated as others are treated and that we can rely on previous decisions in comparable cases. Therefore, courts must consider the ‘argument from precedent’, as one of the interpretative arguments, when they decide cases and reason their judgments. Although falling short of formally recognising the binding nature of precedents, the practical importance of case law is thus firmly recognised in modern civil law jurisdictions. Quite indicative is Opinion No. 11 (2008) of the Consultative Council of European Judges (CCJE) on the quality of judicial decisions, which stipulates that ‘in civil law countries, they [judges] will be guided by case law, especially that of the highest courts, whose task includes ensuring the uniformity of case law’ (para. 48). This statement can be perceived as an expression of generally accepted standards. On the legislative level, a very powerful recognition of the importance and relevance of case law in Slovenia was achieved through the reform of the system of access to the supreme court, implemented in 2008 (which was discussed in an earlier volume in this series). The introduction of the ‘leave to appeal system’ emphasised the public function of the decision-making of a supreme court, which consists in safeguarding and promoting the uniformity of case law, the development of law and offering guidance to lower courts, thus ensuring predictability in the application of the law. The introduction of these criteria for granting leave to appeal implies that the Court's resolution of the matter will generally be accepted beyond the scope of the individual case.