Consistency of Judicial Practice as an Element of Legal Certainty: Approach of the ECtHR

Abstract

The article is devoted to the analysis of the consistency of judicial practice as an essential element of the legal certainty principle in terms of the evaluative interpretation of par. 1 art. 6 ECHR devoted to the right to a fair trial in civil procedure.

The author describes an algorithm which is used by the ECtHR in order to confirm the violation of the right to a fair trial because of the lack of the consistency of judicial practice at national level. In order to identify whether conflicting decisions in similar cases violate the principle of legal certainty in terms of the par. 1 art. 6 ECHR, ECtHR has to find out: a) whether “profound and long-standing divergences” in the case-law exist; b) whether domestic law provides for a mechanism capable of removing the judicial inconsistency; and c) whether this mechanism was applied and, if so, what its effects were.

Different types of the inconsistency of judicial practice can be distinguished, for example, inconsistency in practice of lower courts, inconsistency in case-law of the highest court, inconsistency in case-law of different highest courts which are not subordinated to each other. Different standards should be applied for such kinds of divergence: the ECtHR doesn’t analyze the divergence of case-law in the level of lower court, because it’s the higher court which should fix this inconsistency, the main attention should be paid to the divergence of the highest courts. There are two main types of such divergence: a) inconsistency of the case-law of the one and only highest court; b) inconsistency in case-law of several courts which are not subordinated one to another. In first situation the ECtHR applies stricter standards according to which the highest court at the national level should guarantee the consistent interpretation of the law avoiding divergence of interpretation. Nevertheless, in the second situation the ECtHR follows less strict approach according to which inconsistency of case-law of several independent can be tolerated.