Naslov
Interpretational statements of the Supreme Court as a (binding) source of law

Autori
Bratković, Marko

Vrsta, podvrsta i kategorija rada
Sažeci sa skupova, pp prezentacija, znanstveni

Skup
CEENELS 2019: Legal Innovativeness in Central and Eastern Europe, 14-15 June 2019

Mjesto i datum
Moskva, Ruska Federacija, 14.06.2019. - 15.06.2019

Vrsta sudjelovanja
Predavanje

Vrsta recenzije
Međunarodna recenzija

Ključne riječi
interpretational statements, Supreme Court, sources of law

Sažetak
In the 1950s, under the influence of Soviet law, many countries of Central and Eastern Europe introduced the institute of interpretational statement (of the Supreme Court). In many of those countries (e.g. Bulgaria, the Czech Republic, Hungary, Slovenia and Croatia), the institute still lives as a (binding) source of law whose purpose is to facilitate a uniform application of law. What, however, is the problem with this institute? Interpretational statements, being a relic of the socialist legal tradition and an expression of authoritarian judicial discourse, have been deemed contrary to the principles of separation of powers, independence of the judiciary and contradictory proceedings. Interpretational statements are an expression of the authoritarian judicial discourse, rooted in the idea that law can be defined in an objective manner, requiring a specialist insight which leads to the discovery of the only valid meaning of legal provisions. Unlike the authoritarian, the authoritative judicial discourse is based on a pluralism of thought and persuasiveness of reasonings of judicial decisions. In this discourse, persuasiveness of the reasonings stems from conscientiously assessed arguments presented by the parties in the course of contradictory proceedings. In the authoritative judicial discourse, interpretational statements are unacceptable, not only because they are not preceded by contradictory proceedings, but also because they are incompatible with the principles of separation of powers and independence of the judiciary. Making interpretational statements goes beyond the constitutional function of the judicial branch of government. This practice in fact constitutes a quasi-legislative function of courts, which is outside of their domain. It gives them powers which are in conflict with the balance struck by the separation of powers. It should be noted that the Constitutional Court does not have the power to review the constitutionality and legality of interpretational statements of the Supreme Court in abstracto. Besides, interpretational statements are abstract positions of a court, separate from adjudication in actual cases. The parties, in whose disputes it is to be applied, do not take any part in the process of its making. They are deprived of the opportunity to present arguments and counterarguments to be assessed by an independent and impartial tribunal. No legal recourse is available to the parties against an interpretational statement. If an interpretational statement of the Supreme Court is binding on lower courts, decisions made in a dispute concerning the rights and obligations of the parties are made by a court which (to an extent) depends on an interpretational statement made by another authority, whose decision was made in abstracto, without having considered the facts of a concrete dispute. It is precisely facts that play a key role in adjudication, seeing as they will determine whether a court decision may apply (as an argument) in another case. In addition, the institute of interpretational statements prevents lower-court judges from taking initiative and reassessing past adjudication, and impedes the natural development of case law.

Izvorni jezik
Hrvatski

Znanstvena područja
Pravo

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