The principle mutatis mutandis as an tool for changing judicial practice beyond the limits of reasonable discretion

Abstract

The article is devoted to the analysis of the validity of changes in the practice of the Grand Chamber of the Supreme Court, which should be considered as a deviation from previously formulated legal positions regarding the effective way of protecting the law, using the mutatis mutandis principle. It is emphasized that scientists have the right to carry out a critical analysis of judicial practice in the context of its compliance/non-compliance with the doctrine. A distinction was drawn between the right to interpret laws by the court and the exercise of discretionary powers, in which the degree of discretion is assessed as unreasonable and excessive; the use of used lecture structures is argued. Attention is focused on the inadmissibility of the practical implementation of individual, arbitrarily selected elements of the scientific debate into judicial practice, in particular, concerning the principle of stare decisis and the justification with its help of the right to judicial rule-making - in the form of a precedent that de facto already exists in practice and is recognized by theory, but, being called precedent, is not identical with classical English precedent. The analysis was carried out according to three vectors corresponding to different periods and appropriated standards of judicial practice. The first is a change in the position from “a mistake in choosing an effective method of defense as an independent reason for refusing a claim” to “a refusal to resolve a dispute due to the ineffectiveness of the method of defense chosen by the plaintiff can actually be considered as a limitation of the right to access to court.” The second is the introduction of a flexible approach to understanding the principle of dispositiveness and moving away from an overly formal assessment of the “proper claim”, which “cannot be considered by the courts as an improper method of protection”. The third already marks the conclusion “about the interpretation” of the claim, mutatis mutandis - for the purpose of full protection of the right in one process. The conclusion states that the interpretation (interpreting) of the claim contradicts the principle of dispositiveness, and its flexible interpretation in favor of such an interpretation will violate the right of the other party, who will not be able to predict the result of such an interpretation when constructing and proving its own position. Courts’ excessive fascination with innovations - with the usurpation of the right to rulemaking and departure from the doctrine - is unlikely to contribute to justice. This is indirectly indicated by frequent deviations from previous legal positions, which do not contribute to legal certainty.