The Supreme Court discusses the results of the analysis of the SC Grand Chamber case law on derogations from previously established legal positions

The discussion took place within the framework of the round table "Ensuring the Unity of Case Law: Standards of the European Court of Human Rights and the National Context". The moderator of the event, Secretary of the Grand Chamber of the Supreme Court Vitalii Urkevych, thanked the USAID Justice for All Program for its thorough work on the analysis of the SC Grand Chamber case law and for providing expert opinions, and expressed his hope for continued fruitful cooperation.

A scientific and impartial analysis of the SC Grand Chamber's case law on derogations from its own legal positions was conducted with the support of USAID. Independent expert Professor Jeremy McBride and national expert Tetiana Tsuvina thoroughly analyzed the SC Grand Chamber judgments and developed practical recommendations based on the approaches of the European Court of Human Rights. The information was reported by Natalia Petrova, Deputy Chief of Party of the USAID Justice for All Program.

So, Jeremy McBride highlighted the ECtHR's established practice of finding a violation of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms due to conflicting case law in national jurisdictions, and also spoke about the criteria and procedure for the ECtHR to derogate from its own established case law.

He noted that the development of case law in itself did not contradict the proper administration of justice, as refusal to adopt a dynamic and evolutionary approach might hinder reforms and improvements, and the change of case law falls within the discretionary powers of national courts.

The speaker also added that the internal inconsistency of case law should be eliminated through interpretation and harmonization of approaches with the help of mechanisms provided by law and courts empowered to resolve conflicting decisions of different court instances.

The professor pointed out that cases with contradictory judgments characterized by proper reasoning did not give grounds to find a violation of Article 6 of the Convention.

Stanislav Kravchenko, President of the Criminal Cassation Court within the Supreme Court, emphasized that the subject of the event was also relevant for the Criminal Cassation Court, while there were somewhat broader mechanisms for ensuring the unity of case law in Ukraine. The most common of them is the work of the Joint Chamber of the Criminal Cassation Court within the Supreme Court, which in 2021 formulated 22 positions, 13 of which were on procedural issues and 9 on the application of substantive law, thus forming a uniform case law. In 2022, the Joint Chamber presented 13 positions that are being quite widely used by the courts today.

At the same time, according to Stanislav Kravchenko, the issue of ensuring the unity of case law in cases where court decisions are not subject to cassation appeal remains relevant. In particular, it concerns cases of administrative offences and rulings of investigating judges.

Summing up the discussion of the expert's speech, Vitalii Urkevych said that the ECtHR recognised changes in case law as quite natural, provided that such changes were motivated, justified and understandable to both the participants in the court proceedings and the public at large.

Tetiana Tsuvina presented a brief overview of the expert report based on the analysis of court decisions adopted by the Grand Chamber of the Supreme Court regarding derogations from its own legal positions and the legal positions of the Supreme Court of Ukraine.

The speaker said that the total number of the resolutions of the SC Grand Chamber, in which the Supreme Court derogated from its legal conclusions, over the 5 years of its operation was 142, of which 58 were on procedural law and 84 were derogations from the conclusions on the application of substantive law.

Thus, 81 resolutions referred to a derogation from the conclusions of the Supreme Court of Ukraine, 45 - from the positions of the cassation courts within the Supreme Court, and in 31 cases the Grand Chamber of the Supreme Court derogated from its own legal conclusions.

At the same time, the total number of resolutions that raised the issue of derogation from previously formed positions, but did not make such a derogation, is 99.

Tetiana Tsuvina cited the reasoning set out in the resolution of the Supreme Court of 15 September 2020 in case No. 5017/1221/2012 as an example to motivate the need to derogate. In this judgment, the Court stated that the need to derogate must arise for certain specific objective reasons. Such reasons should be clearly defined and justified. In addition, a derogation from a legal conclusion must be based on substantial grounds, with a real basis. The court should not derogate from previous decisions in the absence of a valid reason for doing so, and the purpose of derogation may be to correct only those inconsistencies (errors) that are fundamental to the judicial system.

Reasonable grounds for departing from an already formed legal opinion of the Supreme Court include, in particular, changes in legislation; the adoption of a decision by the Constitutional Court of Ukraine or a judgment by the ECtHR; changes in law enforcement due to the expansion of the scope of application of a certain principle of law or a change in doctrinal approaches to resolving issues, etc.

In her speech, Tetiana Tsuvina also gave an example of clarifying a legal opinion by detailing it, drew attention to the criteria for referring cases to the Grand Chamber of the Supreme Court to derogate from a legal opinion and analysed the reasons for such derogations in the case law of the Grand Chamber of the Supreme Court.

Judge of the Grand Chamber of the Supreme Court Oleh Tkachuk informed that over the five years of its work, the Grand Chamber of the Supreme Court delivered more than 19,700 court decisions. In these decisions, the Grand Chamber of the Supreme Court relied on the case law of the ECtHR and was guided by the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms almost four thousand times. According to the judge, the main reason for such attention to the ECtHR judgments and ECHR provisions is the attempt of the Grand Chamber of the Supreme Court to actually implement the rule of law in case law and become a kind of Court of Justice in Ukraine.

According to Oleh Tkachuk, the Grand Chamber of the Supreme Court should ensure, first of all, vertical consistency and unity of case law, as well as horizontal consistency between different jurisdictions, among all four cassation courts within the Supreme Court.

Larysa Rohach, President of the Commercial Cassation Court within the Supreme Court, noted that the application of the mechanisms for ensuring the unity of case law provided for by procedural law made it possible to identify areas for further development and improvement of these mechanisms, in particular, regarding the grounds for referring a case for derogation.

Larysa Rohach agreed with the speakers' opinion that derogations from the established legal position should be rare and well-motivated. For this purpose, it is necessary to preliminary check the grounds for referring cases for derogation from legal positions by the courts at the stage of acceptance of such a case by the Grand Chamber of the Supreme Court. If the Grand Chamber concludes that there are no such grounds, the case is returned (transferred) to the relevant panel (chamber, joint chamber) for consideration. Otherwise, whenever the judge refers a case to the SC Grand Chamber for derogation without proper justification, the Grand Chamber will be forced to replicate its previous positions rather than develop case law by solving new legal problems. In addition, it should be borne in mind that the referral of a case to the SC Grand Chamber may result in the suspension of proceedings in other cases.

In his closing remarks, Vitalii Urkevych, Secretary of the SC Grand Chamber, said that the Supreme Court had internal reserves and capabilities to ensure the unity of case law, but there were still a number of issues to be resolved at the legislative level. Among other things, this included improving procedural filters. He assured that the Supreme Court believed in the importance of ensuring the unity of case law and realised that this was one of the key prerequisites for the preparation of the national judicial system for Ukraine's accession to the European Union.