Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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197402ZU34
ppi 201502ZU4645
Vol.40 N° 72
Enero
Junio
2022
Recibido el 26/09/2021 Aceptado el 14/12/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
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de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
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ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
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nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
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Vol. 40, Nº 72 (2022), 353-367
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Judicial decisions as a source of law
DOI: https://doi.org/10.46398/cuestpol.4072.19
Volodymyr Reshota *
Halyna Zabolotna **
Olena Reshota ***
Natalia Hliborob ****
Roman Dzhokh *****
Abstract
The article deals with the question of the legal nature and
essence of the judicial acts of the Ukrainian courts as a source of
law. It also analyzes the notion and characteristics of the sources
of law according to academics. Particular attention is paid to
the investigation into whether the decisions of the Ukrainian
courts can be dened as a precedent and whether they have, in
turn, binding force for all people. Therefore, the analysis of the
legal nature of the decisions of the European Court of Human
Rights, the Constitutional Court of Ukraine, the Supreme Court, and the
administrative courts was of interest. The study used general and special
scientic methods, the basis of which is the application of the results of
theoretical research and other generalized information on the sources of
law in Ukraine. The authors conclude that these decisions have a dierent
nature than the judgments of the common law system. Although some
judicial decisions of Ukrainian courts tend to possess some elements of
precedent and are binding, not only for the parties to the case but for all
people. This makes it possible to characterize these judicial decisions as
complementary sources of law.
* Doctor of Science of Law, Professor, Professor of the Department of Administrative and Financial
Law, Law Faculty, Ivan Franko National University of Lviv, Lviv, Ukraine. ORCID ID: https://orcid.
org/0000-0001-9235-2262
** Candidate of Science of Law, Associate Professor of the Department of Administrative and Financial
Law, Law Faculty, Ivan Franko National University of Lviv, Lviv, Ukraine. ORCID ID: https://orcid.
org/0000-0003-1027-0680
*** Candidate of Science of Public Administration, Associate Professor of the Department of Public
Administration and Business Management, Faculty of Finances and Business Management, Ivan
Franko National University of Lviv, Lviv, Ukraine. ORCID ID: https://orcid.org/0000-0002-4308-
764X
**** Candidate of Science of Law, Associate Professor of the Department of Administrative and Financial
Law, Law Faculty, Ivan Franko National University of Lviv, Ukraine. ORCID ID: https://orcid.
org/0000-0001-5650-5030
***** Candidate of Science of Law, Associate Professor of the Department of Administrative and Financial
Law, Law Faculty, Ivan Franko National University of Lviv, Ukraine. ORCID ID: https://orcid.
org/0000-0002-0028-9372
354
Volodymyr Reshota, Halyna Zabolotna, Olena Reshota, Natalia Hliborob y Roman Dzhokh
Judicial decisions as a source of law
Keywords: precedent; source of law; administrative court; judicial
decision; legal relations in Ukraine.
Las decisiones judiciales como fuente de derecho
Resumen
El artículo trata la cuestión de la naturaleza jurídica y la esencia de
los actos judiciales de los tribunales ucranianos como fuente de derecho.
Analiza también la noción y las características de las fuentes del derecho
según los académicos. Se presta especial atención a la investigación sobre
si las decisiones de los tribunales ucranianos pueden denirse como un
precedente y si tienen, a su vez, una fuerza vinculante para todas las personas.
Por lo tanto, interesó el análisis de la naturaleza jurídica de las decisiones
del Tribunal Europeo de Derechos Humanos, el Tribunal Constitucional de
Ucrania, el Tribunal Supremo y los tribunales administrativos. El estudio
utilizó métodos cientícos generales y especiales, cuya base es la aplicación
de los resultados de la investigación teórica y otra información generalizada
sobre las fuentes del derecho en Ucrania. Los autores concluyen que estas
decisiones tienen una naturaleza diferente a las sentencias del sistema de
derecho común. Aunque algunas decisiones judiciales de los tribunales
ucranianos tienden a poseer algunos elementos del precedente y son
vinculantes, no solo para las partes del caso sino para todas las personas.
Esto permite caracterizar estas decisiones judiciales como fuentes
complementarias del derecho.
Palabras clave: precedente; fuente de derecho; tribunal administrativo;
decisión judicial; relaciones jurídicas en Ucrania.
Introduction
The world’s legal systems are not static, they are developing all the
time, interacting with each other. The Anglo-Saxon legal system does
not recognize the precedent as the sole source of law. Statues and acts of
legislation play an essential role in the regulation of social relations, thus
creating a numerous group of law sources. New precedents might also
emerge based on legislative provisions. Therefore, the Continental legal
system, applied in most European countries, is paying more attention to
judicial precedents as sources of law. In this way, it becomes an important
source for judicial application and interpretation in other cases.
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The convergence of Roman-German and Anglo-Saxon law systems
makes them closer. This interpenetration allows them to combine their
characteristics to create eective normative regulation, protection of rights
and freedoms of individuals. Hence, it is important to research the role,
which the precedent plays in the Ukrainian legal system, its inuence on
other sources of law and the scope of its application by Ukrainian courts.
One of the most important tasks of all modern states is to establish
obligatory legal rules to provide order and regulation of relationships
between the subjects of law. For this reason, it is necessary to make them
clear and accessible to everyone. The sources of law are a form of legal rules
existence, their formulation for further application and usage in everyday
life. Hans Kelsen stated that state creates law to obey it (Kelsen, 1967). This
is also known as a self-reliance concept of a state.
1. Literature overview
The term “source of law” is believed to have been introduced by a Roman
historian Titus Livius, who formulated the Law of the Twelve Tables as “fons
omnis publici privatique iuris” (from Latin – the source of both private and
public law). Later it has been widely used as “fontes juris” (the source of
law) (Hearn, 1883: 31); (Scott, 2001: 213).
There is no common understanding of the term “source of law” because
of dierent approaches to its understanding (Mikhaylovskiy, 1914: 237).
The theory of law describes the source of law as an external form of legal
norm expression (Parkhomenko, 2008). A. Scott in his paperback in 1885
stated that this term has two meanings: rstly, it is the source law derives
from, secondly, it is the source of our knowledge of law and its reection
(Hearn, 1883).
Under the sources of law, we understand a set of obligatory legal
provisions, contained in the act of the competent subject or a few subjects,
which create, amend, postpone or abolish a legal norm. Hence, the source
of law is characterized by the following features:
1. It is a written act.
2. It is adopted by an ocially empowered public body or its ocial.
3. Obligatory for all subjects.
4. Normativity, which means its ability to regulate relations between
all the subjects in the state.
5. Numerous applications.
6. All sources create a single system.
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Volodymyr Reshota, Halyna Zabolotna, Olena Reshota, Natalia Hliborob y Roman Dzhokh
Judicial decisions as a source of law
7. Limitation of its validity in time, space and concerning the persons
covered.
Among all sources of law, applied in Ukraine and other civil law states,
legislative acts and international treaties play the most signicant role.
Therefore, judicial precedent as the law enforcement act becomes an
important source of law establishing judicial unity in all cases solved by
courts. At the same time the judicial precedent, which is a result of judicial
activity, increases its inuence on all spheres of public life. Thus, the article
aims to research whether the judicial precedent may be regarded as a source
of law and its role as a normative regulator.
2. Legal nature of judicial decisions, judicial practice,
and judicial precedent
The issue of judicial acts as a source of law is not new in legal literature,
but we should focus more on legal practice to research this issue. Today the
importance of judicial acts might be experienced more in practice, as there
still prevails a position in the scientic literature, that judicial acts are the
only source of law in the Anglo-Saxon countries. That approach was typical
for the Soviet law researchers. For example, R. Livshytz argues that:
The Soviet state has never known such a source of law as a judicial precedent,
which leads to the deviation from the principles of law and undermines the role
of the representative bodies of the state in legislative activity. Socialist judiciary
administers justice as a form of application of law unrelated to the law-making
power of the court in the resolution of specic cases (Livshitz, 1997: 49).
Indeed, the role of justice in a totalitarian state cannot be signicant.
Courts were obliged to obey normative acts and were to make decisions in
their scopes. Even today many scholars state that there is no ground for
judicial precedents to be acknowledged as the source of law. And, even when
the court decisions overturn regulations, O. Konstantyy (2005) notes, “it
cannot be said that such decisions contain rules of law and are legally binding
in similar situations” (Konstantyy, 2005: 68-69). A well-known scholar
of the administrative law of Ukraine emphasizes that judicial precedent
cannot be regarded as a source of law in the legal system of Ukraine. Thus,
special attention shall be paid to decisions of the Constitutional Court of
Ukraine, which tend to be sources of law in the future. He also argues that
this issue requires some further research (Averyanov, 2004).
At the same time, we should answer the question whether there is
a necessity of determination of the legal nature of judicial decisions? Do
they inuence other cases, solved by courts? Is there a practical need for
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the legalization of the precedent in the countries with the continental law
system following the example of Ukraine? To answer these questions,
we should do some research on the legal conclusions of the Supreme
Court in an exemplary case when deciding a typical administrative case;
consideration of ndings, set out in rulings of the Supreme Court, regarding
the application of legal norms of law; application of the decisions of the
European Court of Human Rights (ECHR): decisions and conclusions of
the Constitutional Court of Ukraine and application of court decisions
abolishing normative acts or their provisions.
In these cases, in our opinion, judicial decisions might acquire a binding
eect on all subjects of law. Hence, the following issue arises: can we regard
the above-mentioned types of judicial decisions as judicial precedents?
In the theory of law, a judicial precedent is classied as a source of law.
It is dened as:
The method of external expression and consolidation of the individual rule
of conduct, which is established by the competent authority of the State for the
settlement of a specic situation, which becomes obligatory in the regulation of
similar specic life situations (Lutz et al., 2003: 77-78).
Historically judicial precedent is one of the most important sources
of law. That is the judicial decision, not only of the highest courts, but it
becomes binding on all other similar cases in the future. Here arises the
question, what is the dierence between the judicial precedent and judicial
decision in continental law countries? Firstly, the precedent is the result of
the law-making process, performed by a judge, instead of civil law systems,
where judges make decisions based on legislative acts.
These decisions, in general, are not obligatory for other similar cases.
Secondly, a judicial decision in common law legal systems has a dierent
structure. It consists of ratio decidendi and obiter dictum. Ratio decidendi
is the essential part of the judgement as it is legal reasoning of judge’s
ruling, while obiter dictum is a Latin phrase which means “that which is
said in passing”, a passage in a judicial opinion which is not necessary for
the decision of the case before the court (Encyclopaedia Britannica).
Under Ukrainian legislation, there are four parts of judgement:
introductory, descriptive, explanatory, and operative (Code of
Administrative Proceedings of Ukraine, 2005). The Supreme Court in
Ukraine often separates dierent parts of their decisions: the chronology
of the case, the position of the parties, relevant sources of law and acts of
their application, the opinion of the Supreme Court (Ruling of the Supreme
Court, 2019). It should be stressed that the last one is very similar to the
ratio decidendi in the common law systems.
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Volodymyr Reshota, Halyna Zabolotna, Olena Reshota, Natalia Hliborob y Roman Dzhokh
Judicial decisions as a source of law
The denial of the possibility of imposing binding judicial decisions in
Ukraine has often been justied by the provisions of Article 129 of the
previous edition of the Ukrainian Constitution, which determined that
judges in the administration of justice are independent and are the subjects
to legislation only. At the same time, the legislator eliminated this “atavism”
of legal positivism, having accepted changes to the Constitution of Ukraine
in 2016. Now the Constitution states “the judge, while administering justice,
is independent and is guided by the rule of law”. This allows judges to apply
not only legislative acts but also other sources of law. Does that mean a
deviation from what Francis Bacon said about judges of civil law systems,
that judges should remember that their case is “jus dicere” and not “jus
dare” (Bacon, 1978: 476)?
In other words, they shall rather apply and interpret the law, than
establish a new legal rule. Benjamin Cardozo wrote that the judge creates
a law where there are no legal acts, precedents, or other formal sources of
law (Cardozo, 1921). In any event, an abstract legal norm cannot regulate
all aspects of life and the judge, solving a case, applies it from his internal
conviction. Application of law is not a mechanical work but requires deep
understanding and interpretation of a legal norm.
Some Ukrainian scholars oer to reject the idea of introducing the
judicial precedent in Ukrainian law, for example, V. Belianevych suggests
that this idea should be abandoned due to the ambiguous approach to it
by scholars and judges. Instead, he proposes to pay more attention to the
judicial practice as a source of law (Belianevych, 2014). This requires that
we should make further research on what is a judicial practice and whether
it may be regarded as a source of Ukrainian law. According to the Ukrainian
“Legal Encyclopedia” it is dened as a practice of judicial bodies in the
administration of justice.
This means it is a set of separate judgements creating together a unied
approach of case resolving in dierent areas. Therefore, a single judgment
does not become a pattern for all other cases. And even if there are hundreds
of equal decisions it does not have a binding eect on other courts. Hence,
we cannot dene some judgements in similar cases as a judicial precedent.
In fact, the judicial practice reveals the specics of judgements in common
spheres, the unity in the judicial system and the similarity of approaches
in lling gaps and other defects of the legislation. The only exception from
this is the judicial practice of ECHR, which is directly dened in Ukrainian
law as a source of law. Though this question requires some further research.
In France and other countries of the civil legal system, the doctrine of
“jurisprudence constante” got wide dissemination. This term is translated as
a well-established practice, namely these are some decisions which in their
interconnection create a certain sequence of cases. It is not mandatory for
the application but may be used with the authority it has acquired (Reshota,
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2015: 99). In our opinion, “jurisprudence constante” is a synonym to what
in Ukraine is known as the “judicial practice”.
The next issue to be answered in this article is whether separate
judgements have a binding eect on all subjects of law in Ukraine?
Considering a specic case, the administrative court may “recognize the
legal act unlawful and invalid completely or in its certain part of” (Article
264 of the Code of Administrative Proceedings of Ukraine, 2005). The loss
the legal force of the act aects not only the parties of the proceeding but
also an undened range of law subjects. That is, a court may interfere with
the existence of a “defective” legal act based on the application of interested
persons and resolve the issue under such an act or individual provisions
thereof. In this case, the decision of a court will be generally binding,
aecting an undetermined number of persons. This leads to the conclusion
that some judgements may be attributed to sources of law. Although, it
should be underlined, that these judgements have a derivative (subsidiary)
nature from the primary sources of law (legislative acts, international
treaties) since it must remedy the defect of the existing rule of law rather
than regulate social relations on its initiative.
We would like to highlight the following features of judgements as
sources of law:
• They are derivative (subsidiary) from primary sources of law
(legislative acts, international treaties).
• They intend to ll legal gaps, conicts of law and other regulatory
deciencies, including the application of the analogy of law.
• Maybe also applied in other similar legal relations.
• Specify the legal norm, «inhaling life in it», when applied in a
specic case.
• May aect the operation of legal acts or their provisions.
• Are binding in the application by both the courts and the public
administration.
• They are published in ocial publications, on the Internet and the
Single State Register of Judicial Decisions (Single State Register of
Judicial Decisions).
Therefore, not every single judgement will have a binding eect on an
indenite range of persons. For this reason, it is important to specify these
judicial decisions to determine their relevance to sources of law.
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Volodymyr Reshota, Halyna Zabolotna, Olena Reshota, Natalia Hliborob y Roman Dzhokh
Judicial decisions as a source of law
3. The practice of the European Court of Human Rights as a
source of law in Ukraine
When the Code of Administrative Proceedings of Ukraine was adopted
in 2005 it created a legal basis for Ukrainian courts to apply the case law of
the ECHR. The provision of Article 6 of the above-mentioned Act enabled
courts to apply the rule of law considering the case-law of the European
Court of Human Rights. At rst, it was very unusual for judges to apply
judgments as a source of law instead of a legislative act.
That is the reason why later it became a usual practice and nowadays the
application of the case-law of the ECHR is common. In 2016 the Ukrainian
and Helsinki Human Rights Union together with the Higher Court of
Ukraine researched the best application of the practice of the ECHR by
Ukrainian judges (Precedent UA – 2016, 2017).
Legal frameworks for the application of not only the European Convention
on Human Rights but also of the ECHR case-law was established by the Law
of Ukraine “On the execution of decision and application of the practice
of the European Court of Human Rights” (2006). Article 17 of this Law
specied the essence of the ECHR case law. It states that courts in Ukraine
apply both the Convention and practice of the ECHR as sources of law. The
practice of ECHR is signicant in the application and interpretation of the
Convention.
It helps to understand some provisions of the Conventions, it broadens
them, makes them applicable for modern living conditions. Nevertheless,
the ECHR case law is based on the Convention and hence has subsidiary
nature. We should stress the fact that not a single ECHR judgment is
recognized as a source of law by the Law, but as its practice in general.
Hence, courts shall apply the decisions of the ECHR, considering all the
decisions on the subject, including new ones, which might overrule the
previous Court position.
It is necessary to stress the fact, that not only the decisions where Ukraine
is a party are recognized as the source of law, but all decisions of the ECHR.
The Law of Ukraine “On the execution of decision and application of the
practice of the European Court of Human Rights” denes the practice of the
ECHR as the whole practice of the European Court of Human Rights and
the European Commission on Human Rights (On execution of decision and
application of the practice of the European Court of Human Rights, 2006).
Nevertheless, sometimes judges refuse to apply the practice of the
ECHR in the cases, where Ukraine was not a party to the case. For instance,
in court decision of the former Supreme Court of Ukraine, ruled on April
21, 2016, the Court refused to apply cases “Podbielski and PPU Polpure
v. Poland”, “Kreuz v. Poland” and “FC Mretebi vs. Georgia” due to their non-
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obligatory character as Ukraine was not a party in those cases and they cases
weren’t ocially published in Ukraine (Decision of the Supreme Court of
Ukraine, 2016). Therefore, this decision contradicts Article 18 of the above-
mentioned Law, which states that courts shall apply ocial translations of
the ECHR and the Commission, but in case of their absence they shall apply
the original text. At the same time, this provision might create problems for
judges who are not uent in the English or French languages.
4. Decisions of the Constitutional Court of Ukraine
The Constitutional Court of Ukraine is a single body providing
supremacy of the Constitution of Ukraine, ocial interpretation of the
Constitution and conformity with the Constitution of Ukraine, the laws of
Ukraine and other acts. The Law of Ukraine “On the Constitutional Court
of Ukraine” denes the following acts of the Court: decisions, conclusions,
court rulings, interim orders and orders relating to all other matters not
related to the constitutional proceedings, among them, the decisions of
the Constitutional Court of Ukraine on the constitutionality of the laws of
Ukraine and other acts of the Supreme Council of Ukraine, the President
of Ukraine, the Cabinet of Ministers of Ukraine and the Supreme Council
of the Autonomous Republic of Crimea are of great importance; ocial
interpretation of the Constitution of Ukraine; constitutional complaints. As
a result of the recognition of the unconstitutional nature of a normative act
or its certain provisions thereof, they lose their force.
In such a case, the judgement of the Constitutional Court will be binding
not only on the parties of the case but will also aect the operation of
the act and in this way shall be obligatory for all subjects who apply the
act. In this case, the Constitutional Court is named by some scholars as a
«negative legislator» (Shevchuk, 2002: 238). Besides that, the former head
of the Constitutional Court of Ukraine S. Shevchuk states that the Court
becomes a “positive legislator” exercising a normative control, in which the
interpretation of the relevant legal norms to be applied is extended and
additional argumentation is provided», that is the ocial interpretation
of the Constitution of Ukraine. We should also stress that acts of the
Constitutional Court of Ukraine are obligatory for execution and cannot be
appealed. This makes judgements of the Court often binding on all subjects
and courts in other related cases. Except that, the Court in his decisions often
refers to his previous judgements, which resembles a precedent practice
of the ECHR. The Law “On Constitutional Court of Ukraine” stresses the
formal part of the Court decision, which is called a juridical position of the
Court and resembles ratio decidendi in common law countries.
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Volodymyr Reshota, Halyna Zabolotna, Olena Reshota, Natalia Hliborob y Roman Dzhokh
Judicial decisions as a source of law
5. Acts of the Supreme Court and administrative
courts as a source of law
First of all, we should highlight that the Supreme Court in Ukraine was
created in 2017 instead of its predecessor the Supreme Court of Ukraine. It
was the result of a judicial reform and a restart of the judiciary in Ukraine.
All judicial proceedings codes got many amendments, and this allowed
to look on the role of the Supreme Court acts from a new perspective.
This reform aimed to establish unity of the judicial practice in the law
enforcement process.
Previously the highest Court of Ukraine tried to unify its practice in
special plenary resolutions, which were of recommendatory nature for
lower courts. We can reveal its legal nature better on a practical example.
In 2011 one person appealed to administrative court asking to abolish
some provisions of Supreme Court plenary resolution on judicial practice
on property crimes. In this case, the court decided that the resolution was
recommendatory regarding the application of legislation by the courts in the
administration of justice and did not determine the rights and obligations
of the participants of the process; did not create any legal consequence and
was not binding on the claimant (Decision of the District Administrative
Court of Kyiv, 2011).
A judicial reform in Ukraine, which was implemented in 2016-2017 has
changed the legal nature of the Supreme Court decisions. Firstly, we should
understand the role of rulings of the Supreme Court.
According to the Part 5 and Part 6 of Article 13 of the Law of Ukraine
“On Judiciary and Status of Judges”: “The conclusions on the application of
legal norms, outlined in the rulings of the Supreme Court, are binding on all
subjects of power, who apply in their activity a legal act. At the same time,
these rulings are considered by other courts when applying corresponding
norms of law” (On the Judiciary and the Status of Judges, 2016).
Therefore, the Supreme Court rulings are binding on public
administration bodies, which reinforces their importance as a source of law.
It should be stressed that these rulings are binding on public administration,
but courts should only take them into account when applying the relevant
rules of law.
At the same time, there are no legal consequences for both the court of
the rst instance and the appellate court when they are even unreasonable
or without any motives and do not consider the legal position of the
Supreme Court. This underlines the “limited binding eect” of the Supreme
Court rulings. Moreover, subjects of the private law are not obliged to obey
the Supreme Court decisions, where they are not the parties to the case.
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This leads us the conclusion that rulings of the Supreme Court in Ukraine
might be dened rather as a law-enforcement precedent than a precedent
in common law countries. They are more an example for other courts on
how to apply legal norms in specic cases rather than a new legal ruling.
Surprisingly, the Supreme Court often nds a way to avoid legislative
provisions. For example, the Cassation Administrative Court of the Supreme
Court in its ruling held on 19 July 2018, stated that the court of appeals,
applying the rule of the proceeding code, found excessive formalism and
disproportion between the means of used and the intended purpose.
In this case, the court of appeal returned the appeal complaint as it was
submitted directly to the appeal court instead of the procedure underlined
in the paragraph 15.5 of Section XIII “Transitional Provisions” of the Civil
Proceedings Code of Ukraine (Decision of the Supreme Court of Ukraine,
2018).
This paragraph obliges all persons to submit appeal complaints
through the court of the rst instance before the day the Unied Judicial
Information and Telecommunication System starts functioning. But the
court of cassation claimed that a person may submit an appeal complaint
either directly to the court of appeal or through the court of the rst instance.
The next kind of Supreme Court acts are exemplary judgements in
administrative cases. The institute of typical and exemplary cases is a new
one in the judicial process of Ukraine. It was established in 2017 after the
amendments to the Code of Administrative Proceedings of Ukraine (2005).
The main purpose of typical and exemplary proceedings is to expedite
and simplify the process of similar cases before the court. Unlike the
conclusions on the application of legal norms outlined in the rulings of the
Supreme Court, the exemplary decision has certain peculiarities. While the
rulings of the Supreme Court containing conclusions on the application of
the law may be considered by the courts when deciding a case, exemplary
rulings provide a model in the following rulings of typical administrative
cases. It would be incorrect not to take into account the conclusions
contained in the model decision of the Supreme Court may be challenged in
appeal and cassation proceedings (Article 291 of the Code of Administrative
Proceedings of Ukraine, 2005).
It is crucial to note that the Supreme Court makes an exemplary decision
under certain conditions. First, there should be a few similar administrative
cases in one or dierent administrative courts. In that case, lower
administrative courts submit cases to the Supreme Court, and it determines
if they are typical. Otherwise, the Supreme Court resolves the case as the
court of the rst instance and takes an exemplary decision, which shall be
applied in all typical cases.
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Volodymyr Reshota, Halyna Zabolotna, Olena Reshota, Natalia Hliborob y Roman Dzhokh
Judicial decisions as a source of law
Hence, judgements in typical and exemplary administrative proceedings
have a big impact on other similar court cases. It may be regarded as a step
towards the legalization of the judicial precedent in Ukraine. This means
that a court does not just consider the position of the Supreme Court, but it
is obliged to apply its rulings in all the cases dened by the Supreme Court
as typical. If it refuses to do so, its decision might be abolished by the court
of a higher instance.
Although the lawmaker did not intend to introduce the judicial precedent
in the Ukrainian judicial system, it has many features of it. Therefore, it is
necessary to underline that this step was caused by some practical needs. In
particular, the courts have simultaneously dealt with thousands of similar
claims, expending their time and resources on the parties, but often have
developed divergent and contradictory practices. But later the Court of
Cassation issued its own decision, which became the point of reference
for the lower courts, and only then it became clear that all eorts of lower
courts were just in vain.
By contrast, the institution of exemplary decision becomes both a guide
and a safety-guard against excessive expenditure by the parties and the
court itself. These results oer compelling evidence for the special nature of
the Supreme Court exemplary decisions as a source of law.
The next kind of Supreme Court decision we should take into
consideration are the decisions of the Cassation Administrative Court of the
Supreme Court as the court of the rst instance recognized decisions, actions
or inactions of the Supreme Council of Ukraine, the President of Ukraine,
the High Council of Justice, and the High Qualication Commission of
Judges of Ukraine fully or partially illegal and invalid.
Thus, the Supreme Court may decide on their compliance with the
legislative acts, but not their constitutionality as it is the competence of the
Constitutional Court of Ukraine. As a result, the corresponding normative
act or some of its provisions may lose validity. In such a case, the decision of
the Supreme Court will have its binding force not only on the parties of the
judicial case but on all persons, to whom this act could be applied. In this way,
the Supreme Court gets the so-called “negative” legislative power to abolish
the normative act. The same situation concerns the lower administrative
courts which may nd an act, decision or inaction of any public body or
their ocials illegal. Hence, the decisions of all administrative courts, not
only those of the Supreme Court may have a binding eect.
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Conclusions
We would like to stress the fact that allowing courts to form binding legal
opinions may have some threats or negative consequences in an unstable
judicial system. This could lead to contradictory, opposed positions on
the similar issues of dierent or even the same court. The evidence from
this study leads to the conclusion that the decisions of Ukrainian courts
are not the source of law in its classical sense. The article states that such
decisions are derived from the legal norm, but at the same time they shall
be considered in law judicial enforcement. The recognition of public
administration body acts, actions, or inactions as illegal and invalid is at the
same time mandatory for all persons, including the persons of private law.
Unlike the common law system, courts in Ukraine are not empowered
to create new rules of law. This leads to the conclusion that they cannot
be attributed to the judicial precedent in its classical sense. Nevertheless,
they may be dened as the law enforcement and interpretative precedents
because the courts may specify, supplement, generalize the rule of conduct
contained in the relevant source of law.
Therefore, court decisions in Ukraine should be considered as a
complementary source of law, the application of which is derived from
the main source of law. The concretization of the legal norm is a form of
judicial interpretation of an existing rule, but not the creation of a new one.
The so-called “negative law-making” process of the Constitutional Court of
Ukraine and administrative courts means the abolition of the existing rule
of law, but not the formation of a new rule of conduct. Thus, we believe that
today it is worth dening the derivative (auxiliary) role of a court decision
as a source of law in Ukraine.
This also leads to the reconsideration of the classical concept of the
source of public law and dening it as a set of mandatory regulations
contained in a written act of a competent subject or several subjects that
create, change, suspend or terminate the legal norm.
It’s necessary to conclude that not all judicial decisions would become
a source of law, but only those which change, suspend or terminate
the legal norm, stated in the legal act. The following should be added to
these decisions: the practice of the European Court of Human Rights,
decisions and conclusions of the Constitutional Court of Ukraine, rulings
of the Supreme Court containing legal opinion, exemplary decisions of
the Supreme Court and judgements of administrative courts abolishing
normative acts or their provisions.
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Volodymyr Reshota, Halyna Zabolotna, Olena Reshota, Natalia Hliborob y Roman Dzhokh
Judicial decisions as a source of law
Bibliographic References
AVERYANOV, Vadym. 2004. Administrative law of Ukraine. Academic course:
in 2 vol. Vol. 1. Publishing House Yurydychna Dumka. Kyiv, Ukraine.
BACON, Francis. 1978. Works in two volumes. Vol. 2. Mysl. Moscow, USSR.
BELIANEVYCH, Vadym. 2014. “The precedent of case law: ten years later” In:
Legal Gazette. Vol. 407-408, No.13-14, p. 15.
CARDOZO, Bemjamin Nathan. 1921. The Nature of the Judicial Process. Yale
University Press. New Haven, USA.
CODE OF ADMINISTRATIVE PROCEEDINGS OF UKRAINE. 2005.
Supreme Council of Ukraine. Available online. In: https://zakon.rada.
gov.ua/laws/show/2747-15. Consultation date: 20/09/2021.
DECISION OF THE DISTRICT ADMINISTRATIVE COURT OF KYIV.
2011. Case No. 2а-10870/11/2670. Single State Register of Judicial
Decisions. Available online. In: http://www.reyestr.court.gov.ua/
Review/51030569#. Consultation date: 21/10/2021.
DECISION OF THE SUPREME COURT OF UKRAINE. 2016. Case No. 6-
756ц16. Single State Register of Judicial Decisions. Available online.
In: http://www.reyestr.court.gov.ua/Review/57345903#. Consultation
date: 12/08/2021.
DECISION OF THE SUPREME COURT OF UKRAINE. 2018. Case No.
640/20036/17. Single State Register of Judicial Decisions. Available
online. In: http://reyestr.court.gov.ua/Review/75424319. Consultation
date: 22/10/2021.
HEARN, William Edward. 1883. The theory of legal duties and rights: an
introduction to analytical jurisprudence. Trubner and co. Melbourne,
Australia – London, UK.
KELSEN, Hans. 1967. Pure Theory of Law. Translation from the 2nd German
edition by Max Knight. University of California Press. Berkeley, USA.
KONSTANTYY, Oleksandr. 2005. Sources of administrative law of Ukraine.
Ukrainian Information and Press Agency Rada. Kyiv, Ukraine.
LIVSHITZ, Roman. 1997. “Judicial practice as a source of law” In: Journal of
Russian law. Vol. 6, pp. 49–57.
LUTZ, Liudmyla; RABINOVYCH, Petro; SHMELOVA, Halyna. 2003. “Legal
precedent” In: Legal encyclopedia: in 6 volumes. Yuridichna Dumka.
Vol. 5, pp. 77–78.
367
CUESTIONES POLÍTICAS
Vol. 40 Nº 72 (2022): 353-367
MIKHAYLOVSKIY, Iosif. 1914. Essays in Philosophy of Law. Tovarishchestvo
Pechatnya S. P. Yakovleva. Tomsk, Russian Empire.
OBITER DICTUM. In: Encyclopaedia Britannica. Available online. In:
https://www.britannica.com/topic/obiter-dictum. Consultation date:
02/08/2021.
ON EXECUTION OF DECISION AND APPLICATION OF THE PRACTICE
OF THE EUROPEAN COURT OF HUMAN RIGHTS. 2006. Law of
Ukraine. Supreme Council of Ukraine. Available online. In: https://
zakon.rada.gov.ua/laws/show/3477-15. Consultation date: 25/09/2021.
ON THE JUDICIARY AND THE STATUS OF JUDGES. 2016. Law of Ukraine.
Supreme Council of Ukraine. Available online. In: https://zakon.rada.
gov.ua/laws/show/1402-19. Consultation date: 03/10/2021.
PARKHOMENKO, Nadiya. 2008. Sources of law: problems of theory and
methodology. Yurydychna Dumka Publishing House. Kyiv, Ukraine.
PRECEDENT UA – 2016. 2017. KVITS. Kyiv, Ukraine. Available online.
In: https://precedent.in.ua/wp-content/uploads/2018/01/
PrecedentUA_2016_zbirka_.pdf. Consultation date: 15/09/2021.
RESHOTA, Volodymyr. 2015. “Legal nature of decisions of the Supreme Court
of Ukraine in administrative proceedings in the context of ensuring the
right to a fair trial” In: Publichne pravo. Vol. 2, No. 18, pp. 96–102.
RULING OF THE SUPREME COURT. 2019. Case No. 450/922/16-а. Available
online. In: http://reyestr.court.gov.ua/Review/82947592. Consultation
date: 15/09/2021.
SCOTT, Samuel Parsons. 2001. The civil law including The Twelve Tables, The
Institutes of Gaius, The Rules of Ulpian, The Opinions of Paulus, The
Enactments of Justinian, and The Constitutions of Leo: in 17 vol. The
lawbook exchange, ltd. New Jersey, USA.
SHEVCHUK, Stanislav. 2002. Fundamentals of constitutional jurisprudence.
Konsum. Kharkiv, Ukraine.
SINGLE STATE REGISTER OF JUDICIAL DECISIONS. Available online. In:
http://reyestr.court.gov.ua. Consultation date: 21/09/2021.
www.luz.edu.ve
www.serbi.luz.edu.ve
www.produccioncienticaluz.org
Esta revista fue editada en formato digital y publicada
en enero de 2022, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.40 Nº 72
