Neenotna sodna praksa in dostop do Vrhovnega sodišča

slovenian

2023

volume 49, issue 6/7

Lexpera d. o. o.
(Obvezni izvod spletne publikacije)

The core of the problem is that the place of confrontation of different views is by statutory definition fragmented into chambers when it comes to deciding on appeals at the Supreme Court. Consequently, the underlying reasons on the interpretation of the law in the decisions of the different chambers may also conflict in analogous cases. However, if the Supreme Court's decisions are to have precedential value, the Supreme Court chambers' supporting positions on the same question of law should not be in conflict with each other. They may be departed from after thoroughly explained why the previously adopted position should not stand, and may be built upon, in line with the development of legal reasoning, but the fact that they are contradictory should be avoided. Since under the Constitution the manner in which the right to a remedy is exercised is a matter of law, the article's critique is directed towards the legislative branch, which has noticed the problem of inconsistent jurisprudence in the Supreme Court, but has not regulated, in accordance with the established standard, a mechanism for overcoming these inconsistencies or the possibility of a reasoned departure from the adopted precedential positions. Access to the Supreme Court should certainly include both the mechanism for overcoming the inconsistency of jurisprudence and the possibility of a reasoned departure from the already adopted supporting positions in the analogous cases that follow.

09.05.2024