Câte hotărâri fac o jurisprudență constantă? (conform Curții Constituționale a Sloveniei)

29 octombrie 2018
463 citiri

According to the stare decisis doctrine in common law jurisdictions, in order to have a binding character the existence of a (single) precedent is enough. On the contrary, the mentioned positions of the Slovenian Constitutional Court follow the civil law doctrine of jurisprudence constante (ständige Rechtsprechung). The fundamental difference between the two legal doctrines is that a single case affords a sufficient foundation for the former, while a series of adjudicated cases all in accord forms the predicate for the latter. Hence, unde the jurisprudence constante doctrine authoritative force stems from a consolidated trend of decisions. (…)
The question that therefore arises is when case law can be considered settled. Pursuant to the Constitutional Court (in accordance with the jurisprudence constante doctrine), the case law is settled if it has been consistently applied over a sufficiently long period of time; there must be, in principle, a line of decisions without divergence concerning relevant legal positions applying to sufficiently similar facts. In this regard, the Constitutional Court realistically adminits that there is no mathematical formula as to how many decisions without divergence already constitute settled case law. This certainly depends also on the multiplicity or rarity of certain types of disputes or legal questions raised before the court. The type of legal issues is also relevant in this regard; the Constitutional Court stated that it needs to be especially cautious and restrained in establishing whether there already exists settled case law concerning cases in which the decision-making of the court is inseparably linked with respect to the specific circumstances of every single case (e.g. concerning the quantum of damages for specific types of injuries). But in principle, one or two decisions do not already demonstrate settled case law.

A. Galič
(The Inconsistency of Case Law and the Right to a Fair Trial in Revisiting Procedural Human Rights (coord. A. Uzelac, C. H. van Rhee), Intersentia, iunie 2017, la pp. 24-25)

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