Judicial practice and its unity: problems of definition and ways of their solution

Kripinevich Svetlana Sergeevna PhD in Law Deputy Head of the Department of Criminal Procedure Law named after N.V. Radutnaya, Russian State University of Justice 117418, Russia, g. Moscow, ul. Novocheremushkinskaya, 69 s.kripinevich@yandex.ru Other publications by this author

Judicial practice in modern legal doctrine has a very multifaceted theoretical understanding, is considered and applied in a variety of contexts, indicating a variety of features, with their various totality. The use of the concept of "judicial practice" also occurs at various levels, in relation to very different areas, for example:

– within the framework of scientific research;

– to characterize the socio-legal conditions;

– to evaluate the activities of the judicial system and in many others.

The evaluation of judicial practice also has many criteria, including a description of the quality of consideration of certain categories of cases, an assessment of the level of compliance with the rights of participants in legal proceedings, as well as the timing of consideration of cases by courts, compliance by courts with the requirements imposed on these decisions when making decisions and a variety of other aspects of judicial activity that attract the attention of lawyers, public authorities, including legislators, the public, etc.

Based on the results of the assessment of various aspects of judicial practice, conclusions are drawn about trends in judicial activity, about the effectiveness of procedural legislation, legislation defining the rules for the formation and functioning of the judicial system, as well as other legal acts, about the level of legality in judicial activity, as well as in the activities of pre-trial proceedings (for example, in the field of criminal justice), ensuring the rights of the individual and on many other issues.

The results of judicial practice form statistical data that allow us to assess the dynamics and trends in the development of certain types of legal proceedings, their individual elements, etc.

The multiplicity of areas of use of judicial practice, dependence on its indicators of the development of such important institutions as the judicial system, the status of a judge, areas of interaction with law enforcement agencies allows us to express an opinion on its fundamentally important importance for the modern state, society, and their development.

Despite the fundamental importance of judicial practice for many social processes in modern society, its scientific research has rather modest results, especially if we take into account the lack of a clear and correct definition of its scientific concept to date. And this is despite the fact that the very use of this concept occurs on a very large scale.

In modern science, another concept of "legal practice" is used, defined as the activity and experience of legal activity ^[1]. S.V. Boshno ^{[2, p. 24]} considers legal practice as a continuous movement of legal relations, which is accompanied by individual acts of law enforcement.

Judicial practice is considered as a type of legal practice, noting its law-realizational nature ^{[3, p. 91]}. S. S. Alekseev considered legal practice as "an objectified experience of individual legal activity of competent authorities" ^{[4, p. 340-341]}. A.V. Tsikhotsky defines judicial practice as "a generalized result of the activity of courts on the application of law when considering and the resolution of specific cases" ^{[5, p. 164]}. There is an opinion that the concept of judicial practice is currently based on two main features – the process of judicial activity and/or its result ^{[6, p. 16]}.

The study of the positions of scientists on the definition of the concept of "judicial practice" allows us to identify several features: process, result, law enforcement, legal realization, dynamics, statistics, generality, concreteness and individualization, the experience of law enforcement activities of individual judicial instances ^{[7, p. 42]}, as an established trend in the activity of courts to resolve a certain category of cases ^{[8, c. 96; 9, c. 11; 10, c. 8-9; 11, c. 58]}, etc. The multiplicity, and, most importantly, the variety of definitions used indicates the unsettled approaches to the disclosure of the essence of judicial practice.

With regard to some of the above signs, we will express our own position.

The simultaneous application of two such signs as a process and as a result in relation to judicial practice seems redundant to us. Each of them characterizes a different aspect of judicial activity: the process is as a practical activity, the result is the result of this activity. Applying the sign "process", as well as the associated signs "legal realization", "law enforcement", it is possible to imagine how and with what a certain result is achieved, a certain result is obtained. We believe that these signs ("process", "legal realization", "law enforcement") are important in cases when it is necessary to evaluate these results, show their origin, but they do not reveal the essence of these results.

Based on the dynamics of changes in judicial practice, including its statistical indicators, it is possible to identify its trends. Judicial practice can demonstrate positive or negative dynamics, certain patterns of its development, but all these constitute evaluative signs already in relation to the established practice, and the parameters of these assessments can be very diverse, as well as the identified trends. For example, over a long historical period, Russian judicial practice has demonstrated a constant trend of a high number of convictions. In other words, based on statistical indicators, the frequency of repeated results, the preservation of the number of convictions in relation to acquittals, it is possible to deduce this trend. By setting other parameters for evaluating judicial practice, it is possible to draw other conclusions characterizing judicial practice.

Consequently, such signs as dynamics, statistics, trend are inapplicable to determining the essence of judicial practice, since they represent its assessment.

We believe that for the disclosure of the essence and definition of the concept under study, such a feature as "result" is important. Moreover, it is this feature, in our opinion, that acts as the main one, indicating the essence of the concept of "judicial practice". For example, based on scientific interests, the results of judicial activity can be classified and, in particular, a group of court decisions on the consideration and resolution of the investigator's petitions for the use of detention can be distinguished. Applying various methods of scientific research (analysis, generalization, statistical, mathematical and others), on the basis of this group of court decisions, to deduce certain patterns or trends over a certain period in judicial activity leading to the appearance of this group of court decisions.

Due to the need to solve departmental tasks of criminal justice, generalizations of certain judicial acts (sentences on certain categories of criminal cases, decisions on termination of criminal cases, etc.) are carried out, in which individual results of judicial activity are studied according to certain criteria (for example, legality, validity, compliance with reasonable deadlines, etc.). Again, the results become the subject for evaluation judicial activity.

When disclosing the concept of "judicial practice", we consider it necessary to clarify that the result of judicial activity is any judicial act created both during and after the completion of judicial activity. Thus, judicial practice can be considered as a set of intermediate and final judicial acts, which should include not only decisions, but also those acts that record the process of judicial activity (minutes of court sessions).

In the light of the above considerations, the rather widespread belief that judicial practice is defined as "a set of legal principles that introduce an element of novelty into the mechanism of legal regulation, developed in the course of judicial activity to concretize the law, apply it by analogy, overcome legal conflicts objectified in court decisions on specific cases" ^{[12, p. 61]}. Judicial practice cannot become a set of legal principles simply because for such a result it is necessary to carry out some kind of generalization of available judicial materials on a specific issue that causes difficulties in judicial activity. Based on the results of generalization, a certain conclusion is born, which becomes generally accepted or widespread, as the author of the above definition himself says ("objectified in court decisions").

There are other objections to the above statement. Judicial practice cannot specify the law. Concretization in its meaning is clarification, detailing, development. Judicial practice cannot give legislative provisions in any of these meanings. We believe that it should not be about concretization, but about giving generally applicable meaning to legislative provisions and applying them in accordance with this meaning.

In order for this meaning to become generally applicable in the judicial environment, a certain path is also needed: from developing this meaning to its practical approbation and developing positive experience on the basis of this approbation, i.e. obtaining such judicial acts that are recognized as successful by a number of criteria (these criteria also need to be defined and scientific, practical approbation). None of these aspects has been clearly expressed in scientific works to date, which is a certain difficulty in studying judicial practice and determining its characteristics.

In legal science, the relationship between the general applicability and the concepts of "unity" or "uniformity" of judicial practice is revealed, where the general acceptability is a condition for their provision. The connection with the definition of the concept of judicial practice is seen in the fact that scientists consider judicial practice exclusively from the standpoint of general applicability. Similarly, the unity and uniformity of judicial practice is considered as an essential property (quality, attribute) of judicial practice. It is enough to cite numerous cases of judges focusing their attention on the need to adhere to uniform judicial practice on certain issues. I.S. Dikarev writes that it is the duty of the state to recognize, respect and protect human rights, and the proper fulfillment of this duty is possible solely on the basis of the achievement of judicial practice ^{[13, p. 150]}.

It should be noted that the very concept of "uniformity" is defined based on the commonly used meaning, as the application of "one sample". Scientists emphasize that "in the interests of legality and unity of judicial practice, courts should strive for uniformity in the consideration and resolution of civil cases" ^{[14, p. 6]}.

Scientific opinions on this issue are reasoned by the legal positions of the Constitutional Court of the Russian Federation, which considers the unity of practice a necessary condition for establishing a legal balance, including when implementing the principle of equality of all before the law and the court ^[15]. Similar statements are found in many works devoted to the study of the unity, uniformity of judicial practice ^{[16, p. 10; 17, pp. 84-88; 18, p. 2; 19, p. 303]}.

We cannot agree with this interpretation.

General applicability cannot be a characteristic feature of judicial practice, as well as its unity or uniformity. We consider unity as its formed quality, and not as an essential feature. The following considerations serve as the basis for such a conclusion. Judicial practice can develop in different directions. There are quite a lot of such examples in modern criminal proceedings, when, it would seem, in similar, close or similar cases, the courts make procedural decisions that are not the same in meaning and content. But due to the fact that judicial acts have different contents due to similar circumstances, they do not cease to be elements of judicial practice. Such cases (contradictory judicial practice) should be the subject of attention of the relevant judicial instances to clarify the reasons for the discrepancy and, if possible, becomes the basis for making decisions about the fallacy of some decisions and the correctness of others, thereby forming a vector for building subsequent judicial practice.

Most scientists associate this concept with the uniform approach of the law enforcement officer to the interpretation and application of the norms of law in accordance with the revealed meaning of the legislative (other) provision in resolving the dispute (civil law, criminal law, etc.). we consider the unity of judicial practice as a quality acquired by it due to the activities of judicial bodies whose competence includes supervision over the establishment of appropriate conditions for the functioning of courts.

There is a need to pay attention to such an aspect – the distortion of ideas about unity and its (unity) necessity for judicial practice. So G.A. Vishnevsky notes: "... Uniform practice is necessary only if it really makes it possible to exclude judicial arbitrariness and the possibility of issuing infringing judicial acts. The unity of judicial law enforcement should not be considered as a formalized policy of judicial bodies to implement the norms of current legislation" ^{[16, p. 10]}. We agree with this opinion to a certain extent. Indeed, the uniformity of judicial practice can solve a number of problems of judicial enforcement, but we believe that not only the one about which the author writes. The importance of uniformity of judicial practice is much broader and more voluminous than overcoming judicial arbitrariness.

At the same time, in our opinion, it is unlikely that only the uniformity of judicial practice will help reverse such a negative trend as judicial arbitrariness. Moreover, the actual "judicial arbitrariness" also needs research and a terminological definition of the concept and the establishment of its criteria.

There is an opinion that the uniformity of judicial practice is of the greatest importance in criminal proceedings, primarily in matters of uniform application of the law when bringing to criminal responsibility and the qualification of an act as criminally punishable. The unity of judicial practice in this sense will act as a guarantee of the principle of equality of all before the law and the court enshrined in Part 1 of Article 19 of the Constitution of the Russian Federation ^{[13, p. 148]}.

According to A.A. Cherusheva, the uniformity of judicial practice can have a beneficial effect on the effectiveness of judicial control in the pre-trial stages of criminal proceedings ^{[20, p. 61]}. In this part, we support this opinion, since we believe that judicial practice is formed in all spheres of judicial activity. Accordingly, the presence of judicial activity in pre-trial criminal proceedings inevitably and naturally leads to the manifestation of one or another judicial practice. In the study of A.A. Cherusheva, we see an interesting and important result for us – this is the conclusion about the need to expand the category of judicial acts included in the database on the basis of which judicial practice is formed ^{[20, p. 61]}.

There is no theoretically grounded way of forming the unity of judicial practice in modern science. The only examples of this method are the legal positions of the Constitutional Court of the Russian Federation and the decisions of the Supreme Court of the Russian Federation. Also, as a means of achieving uniformity of judicial practice, including in criminal cases, the Supreme Court of the Russian Federation checks judicial acts in the order of supervision.

But even these areas are currently being fairly criticized and need to be improved and further developed.

It is also necessary to define criteria for assessing the applicability of a certain meaning of legislative provisions identified by the court when considering a particular case, the rules for testing this meaning in judicial activity and its scope.

An interesting and significant direction is the establishment of the responsibility of the law enforcement officer for non-compliance with the principle of unity of judicial practice when they make procedural decisions, etc.

An important circumstance is the peculiarities of the formation of the unity of judicial practice in certain types of legal proceedings. We believe that such features are quite natural and need to determine their essence and significance.

These circumstances are in the sphere of attention of scientists only partially and have not received the necessary theoretical development.

Summing up, we note the main ideas.

1. Judicial practice is a set of any procedural acts created in the course or as a result of judicial activity. Judicial practice should include both court decisions (final or interim) and protocols of judicial actions, as well as other documents that may become the basis for the occurrence of legally important consequences. Judicial practice is characterized by a high degree of diversity, but strict rules and criteria are imposed on it, in particular, general applicability, unity/uniformity.

2. We consider general applicability as the possibility of using the results of one judicial body by other courts in their procedural activities. This applicability cannot be arbitrary. The possibility of using a successful court decision should be established by a special judicial body that has the necessary competence for this.

3. We consider the unity of judicial practice to be a property that is not inherent in judicial practice by definition, but it is a necessary quality that is subject to formation in judicial practice by taking appropriate measures on the part of the authorized judicial body.

4. The process of forming the property of the unity of judicial practice currently does not have a sufficient theoretical basis. We consider it necessary to develop criteria for unity, its (unity) limits, rules for the formation of a unified practice, the degree of concretization of instructions for the courts to develop common approaches to the commission of procedural actions or the adoption of procedural decisions (in this case, interference in judicial activity, violation of the independence of judges is unacceptable).