On abolition of prejudice

The Chairman of the Supreme Commercial Court of Russia Anton Ivanov recently suggested a radical step: to abolish the principle of the law of procedure which precludes courts from retrying facts which were already established by other courts in separate cases, thus allowing the Supreme Court to reconsider such findings.

According to Anton Ivanov the objective of the proposal is to change the position of a court in the main case where the decision predefines similar ‘flaws’ in other ‘derived’ cases.

The chairman emphasised that decisions in the main case which are clearly wrong are often used in complex corporate disputes. If the court finds that a decision ‘demonstratively’ contradicts the law why not give it the right to overcome such an act in order to ensure an unbiased and fair resolution of other matters related to the decision?

This logic, overall, is reasonable.

The positive aspect arising from the abolition of this procedural institution would be "double", "additional" control over the legality, fairness and reasonableness of earlier acts, provided that such practice does not "reproduce" the revision of judicial decisions.

The Supreme Court will have the right not to take the circumstances established by a flawed judicial act as a sort of ‘absolute truth’ therefore avoiding the multiplication of unjust decisions.

At the same time the negative consequences of such abolition will be delays in the proceedings because the Supreme Court will have to re-examine decisions in other cases and additional unpredictability in the course of the trial.

At the moment the limits of such new powers to examine the decisions of lower remain unclear.

Abolition of the preclusion principle in criminal and civil, non-commercial proceedings in courts of general jurisdiction in principle could develop in a similar way.

However, it seems the institution should be preserved in criminal proceedings.

Muranov, Chernyakov & Partners

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