Uniformity of Judicial Practice (Object of General Theoretical Discourse)

Uniformity of judicial practice is an important condition for the modern judicial system of our country in the context of globalization and integration into the European legal space. 

It is proved that the unity of judicial practice is not an end in itself; judicial practice should primarily serve to establish justice and protect people and their rights. Courts must make decisions and resolve complex cases; they should not evade decision-making by arguing that there is no regulatory framework, while deviating from previous case law.

Attention is drawn to the two categories that interest us in relation to this issue, and there are two of them: the rule of law principle and the purely positivist position of ensuring the unity of practice in terms of its compliance with the rules of positive law. As the analysis shows, the rules of positive law are not always correct. We come to the conclusion that, in a sense, we are also assessing the law. After all, the judiciary is not really a government until it evaluates the law. And this should be done by all courts without exception (not just the Constitutional Court). We have to understand that the decisions of such different courts, in my country and in other jurisdictions, do not have the same legal consequences. In fact, if a court analyzes a law and, in the process of applying it, finds that it does not comply with the Basic Law, it makes a decision in accordance with the Basic Law, but the way it decides cannot be universally applicable. Thus, it does not cancel the legal force of the act that the court itself has refused to accept. This act can only disappear by virtue of the respective structure of our legal system when it comes before the Constitutional Court and when the Constitutional Court says: “Yes, this provision does not comply with the Constitution.”

The author analyzes whether a court is obliged to apply to the Constitutional Court if it believes that a particular law contradicts the Constitution, or whether it is not obligatory. It seems that it is not mandatory to apply to the Constitutional Court to resolve a case. The Court itself can decide: "Yes, this law does not comply with the Constitution, I do not apply it, my decision is based on constitutional provisions (norms). He has thus resolved a particular case. And then comes something else, the second question, which is also related to our issue. All courts are obliged to ensure equality before the law and the court, and based on this principle, and not on some vague decoration of the unity of judicial practice, any court that refused to apply a rule as unconstitutional should say to the Constitutional Court: “Resolve it for everyone”. This is the meaning of these appeals and the difference between judicial control exercised by the Constitutional Court. In fact, the conditions for other courts to apply to the Constitutional Court are not doubts about the constitutionality of a law, but the judge's confidence in its unconstitutionality, because he or she must overcome doubts by interpreting the provision.

The author substantiates the grounds for ensuring the rule of law: differentiation in jurisdictions or the establishment of a single court (as we see in some publications). It seems that the differentiation of procedures by type of jurisdiction gives us advantages in ensuring the rule of law. This can be explained by the fact that appropriate specialization is carried out. 

It has been established that the development of digital technologies and related “artificial intelligence” and robotization of the so-called “e-justice” cannot ensure the fairness of a court decision. Simply put, even the most intelligent “electronic judge” is not able to compensate for the lack of “judicial wisdom”, and further dogmatizes the process of making court decisions.