Does Significant Number of Separate Opinions Mean that Legal Standing of the Supreme Court May Change in Future?

It is obvious that a great number of separate opinions in cases is an indicator of non-unanimity of judges regarding a certain category of cases or a specific case. Changes in substantiation accounting for conclusions of a separate opinion may gradually change the position of the Supreme Court (SC). Moreover, it is logical, as of today there are examples when the Grand Chamber of the Supreme Court withdraws from its own conclusions. Concurrently, it is notable that legal techniques and separate opinions have significantly higher meaning than a court decision. In particular, judge/judges expressing such separate opinion substantiate their vision both from the perspective of the law, the national court practice and the practice of the European Court of Human Rights, and from the perspective of theoretical, doctrinal and fundamental principles of legal proceedings.

The very fact of expression of a separate opinion in a certain category of cases motivates judges to more thoroughly analyze the case and write their court decision in following analogical cases, though the outcome of the hearings remains unchanged. On the other hand, in the process of deliberation arguments in favor of a “separate opinion” may help all judges change their practice.In our opinion, this process of changing court practice, especially in the context when it is an outcome of a long legal and scientific discussion, particularly under the influence of grounded separate opinions, is admissible and even expected indicator of effectiveness of the judicial system.Such change of the court practice does not contradict the principle of legal definiteness, as both public relations, and legal application might change, correcting sometimes false preliminary conclusions. Moreover, in its ruling dated September 4, 2018, in case No 823/2042/16 the Grand Chamber of the Supreme Court, having discarded its preliminary conclusions in regard to jurisdiction of disputes in terms of registration actions, expressly stated that the principle of legal definiteness allows withdrawal from its preliminary decisions provided that there are substantiated grounds to do that.

Substantiated grounds for the withdrawal may be flaws of the previous decision or a groups of decisions (their inefficiency, ambiguity, incoordination, inconsistence, imbalance, incorrectness); changes in public context. For this very reason we track down separate opinions in cases, resorting to them whenever the court practice is negative. Own argumentation plus a position of the judge expressed in a separate opinion, gives a chance and motivation for the judge, including judges of lower instances, potentially withdraw from the existing court practice.