Are Russian Courts Capable of Creating Precedents? Overcoming Inconsistency in Case Law

in Review of Central and East European Law
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This article discusses the issue of the consistency of judicial decisions in two of Russia’s highest courts: the Supreme Court and the Higher Arbitrazh Court. The President of the latter has been especially vocal in advocating for the “introduction of the doctrine of precedent into Russian law”. This idea, understood as the power to bind lower courts by judgments in individual cases, has even received support from the RF Constitutional Court. However, this article stresses that before discussing whether there may—or may not—be a place for judicial precedent in Russia, the judgments of the two highest courts must be consistent. We examine one particular issue that lends itself to a number of possible solutions: the judicial review of internal circulars from federal bodies of executive power. The case law of the two courts has been marked by U-turns in dealing with this matter. They sometimes have issued completely different judgments in similar cases over a short period of time, while failing to explain why their rulings differ from earlier judgments. The author of the present article argues that this inconsistency gives witness to a number of fundamental flaws in judicial decisionmaking in Russia and undermines any discourse in support of precedent in Russia.

Are Russian Courts Capable of Creating Precedents? Overcoming Inconsistency in Case Law

in Review of Central and East European Law

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