Is Judicial Precedent Needed in Belarus?

A court decision that has been made is often an example for a lawyer to follow in a similar legal situation. In Belarus, courts do not always follow previously adopted decisions when considering similar cases due to the fact that in our legal system, judicial precedent is not a source of law. At the same time, there are cases when in similar situations the courts make opposite decisions and even when judicial practice as a whole in further cases begins to take a different path.

In Belarus, judicial precedent is not a source of law. However, the decisions of the Plenum of the Supreme Court on the practice of courts considering certain categories of cases and/or the application of certain norms of legislation are normative legal acts that are subject to application by the courts when considering relevant cases. Resolutions of the Plenum, in contrast to judicial precedent, represent an interpretation of legal norms, establish a tendency for courts to resolve certain categories of disputes and are compiled on the basis of a generalization of adopted court decisions.

In order to talk about the possibility of using judicial precedent as a source of law, it is necessary to understand the essence of this concept and study in detail the system of case law. “Not every court decision on a specific case automatically becomes a precedent. It must receive precedent status in a certain order. In case law countries, collections of precedents are published" [Private International Law; textbook manual / V. P. Moroz et al.; edited by V. P. Moroz. – Minsk: Adukatsiya i issued, 2016. – 496 p. P. 49]. Thus, it is impossible to speak of any decision made by the court, even in the system of case law, as a judicial precedent subject to mandatory application.

In the countries of the Anglo-Saxon legal system, the use of judicial precedent as a source of law developed historically and had a long development over the centuries. Currently, the actual formation of a system of case law is also taking place in the European Union, but only in relation to decisions of the European Court.

Thus, for the emergence of a system of case law, there must be appropriate historical and other prerequisites; this process must occur naturally.

In relation to Belarus, it seems more appropriate to talk not about the application of judicial precedent, but about the uniformity of judicial practice, which should be the result of the correct interpretation and application of the law not only by courts, but also by lawyers and other lawyers. To increase the level of law enforcement practice, there is a process of accumulation, analysis and generalization of judicial practice, primarily from the Supreme Court. For the same purposes, it is necessary to increase the level of legal education, including in terms of practical skills.

We also believe it is necessary to study and take into account the practice of foreign and international arbitration courts for a uniform interpretation and application of the norms of international treaties.

In addition, we consider it possible to use in the practice of Belarusian courts the principle of persuasive precedent, according to which individual court decisions and the points of view expressed in them do not themselves create a precedent, but are taken into account when making subsequent judicial acts. This will make it possible to take into account, in particular, the legal positions and judicial practice of foreign and international arbitration courts when making decisions on similar disputes.

An example of the application of a convincing precedent is the decision of the Court of the Eurasian Economic Union (hereinafter referred to as the EAEU Court) dated December 28, 2015, issued on the application of an individual entrepreneur to challenge the inaction of the Eurasian Economic Commission. When making its decision, the EAEU Court adopted the legal position of the Court of the European Union on the issue of qualifying the inaction of a union body.

In general, we believe that the goal of developing not only the judicial system of Belarus, but also law enforcement practice in general should be the uniform application of the norms of the legislation of the Republic of Belarus and international treaties, which is the result of the correct interpretation and application of such norms based on the study and analysis of the judicial practice of Belarus, as well as the practice of foreign and international arbitration courts. The use of the practice of foreign and international courts, including as a convincing precedent, will contribute to the uniform application of the norms of international treaties, as well as filling gaps in Belarusian legislation.

Authors: Natalia Zhuk, senior lawyer,
Angelina Romanchuk, junior lawyer 

GRATA International Belarus