NORMATIVE RULINGS OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN, JUDICIAL PRACTICE, AND JUDICIAL PRECEDENT

Judicial practice has not received a clear definition in legal science (for our purposes, judicial practice will be considered as objectified experience, without denying its existence as a legal activity). Thus, S.K. Zagaynova presents her position on this issue as follows: 'Not denying the influence of judicial practice on lawmaking, it must still be recognized that judicial practice is an area of legal application; it is the result of the courts administering justice' [1; 72]. Therefore, S.K. Zagaynova, regarding judicial practice as objectified experience, understands it only as the direct result of the court’s legal application activities, such as verdicts, decisions, and other court rulings.

Another viewpoint is held by S.V. Boshno. He understands the form of expression of judicial practice as the external framework that allows its content to be consistently established [2; 19]. From this, it follows that, according to S.V. Boshno, judicial practice in general cannot be objectified in the form of individual legal acts of the court, which, in the Romano-Germanic legal system, do not have a formally binding character and, in general, are not acts aimed at establishing uniformity in legal application.

S.V. Boshno divides forms of judicial practice into two main groups. The first group includes resolutions of the Plenums of the Higher Arbitration Court and the Supreme Court of the Russian Federation. The second group consists of informational letters from the Plenum of the Higher Arbitration Court of the Russian Federation. However, he also includes some court decisions in the category of other, non-main forms of judicial practice. These include the so-called 'decisions on fundamental cases' [2; 24]. Such decisions in legal science are referred to as 'precedents of judicial interpretation of legal norms' [3; 58]. S.N. Bratus and A.B. Vengerov point out the difference between such a precedent and a judicial precedent. In their view, the distinction lies in the fact that a judicial precedent leads to the issuance of a new legal norm by the courts. A precedent of interpretation, on the other hand, is related to explaining an existing legal norm and developing a specific 'settled' position on the application of the norm in similar cases [3; 58].

The contradiction between the views of S.K. Zagaynova and S.V. Boshno, in our opinion, is due to the fact that S.K. Zagaynova considers judicial practice solely as an area of the court's individual legal activity, overlooking its general regulatory role in the legal system of society. In contrast, S.V. Boshno views judicial practice only as a kind of source of law. In our opinion, the most acceptable approach should be an integrated one, considering these two genuinely existing aspects of judicial practice.

It must be acknowledged that any court decision is a form of judicial practice, as it objectifies and makes accessible for perception the individual legal activity of the court in applying the law, as a result of which a particular case has been considered and resolved. However, there is another more pronounced aspect. Every act of the court or another legal authority, related to the application of law to a specific life situation, is a fragment of experience, from the sum of which practice is formed [4; 350].

The content of the forms of judicial practice as a special type of source of law is considered to be legal propositions — peculiar equivalents of legal norms [3; 52]. Of course, not every court decision contains legal propositions. Therefore, by forms of judicial practice, we will mean all forms that objectify the judicial application experience, i.e., not only forms that establish uniformity in judicial practice but also all court acts that simply objectify the court's activity in the consideration and resolution of civil, criminal, and other judicial cases.

It is necessary to say a few words about the conditions that contribute to the emergence of legal propositions. Their appearance is primarily due to the fact that, in the process of applying abstract legislative norms to real-life situations, courts are forced to interpret and specify these norms. As a result, more specific rules — legal propositions — are formulated. The diversity of social relations is one of the significant factors that dictates the need for specific judicial regulation and the possibility of issuing several variants of judicial decisions based on a general norm. A legal norm establishes a measure of behavior, while judicial practice accumulates specific forms of behavior within the boundaries of this measure [3: 25].

Forms of judicial practice, based on their general regulatory significance, can be classified into two groups. The first group should include forms that only objectify judicial practice. These are all court acts that resolve cases on the merits, except those that fall into the second group. The second group consists of forms that not only objectify but also establish judicial practice, contributing to the issuance of uniform decisions in similar cases. (The word 'establishment' here is understood not only in the formal-legal sense but also as a factual result.) Thus, the second group includes normative resolutions of the Supreme Court of the Republic of Kazakhstan, their published drafts, summaries, and overviews of judicial practice, and materials from the work of the Scientific and Advisory Council of the Supreme Court.

The publication of forms that objectify and establish judicial practice is of primary importance, and it must occur not just anywhere, but specifically in official publications. From this, it follows that the most significant forms of judicial practice are determined by the content of the Bulletin of the Supreme Court of the Republic of Kazakhstan. Since January 2008, this official publication contains the following sections: 1) normative resolutions of the Supreme Court of the Republic of Kazakhstan; 2) drafts of normative resolutions of the Supreme Court of the Republic of Kazakhstan; 3) scientific and practical comments on new legislation of the Republic of Kazakhstan; 4) overviews (summaries) of judicial practice; 5) excerpts from resolutions of the Supreme Court's boards; 6) scientific and practical thematic overviews of judicial practice; 7) scientific and practical materials (articles) on the most pressing issues of substantive and procedural law, specific issues of law enforcement, including in the context of comparative law; 8) analytical reports on the administration of justice [5; 1]. As we can see, most of the listed sections, in one way or another, objectify the legal application experience of the judiciary.

Is it correct to now consider the normative resolutions of the Supreme Court of the Republic of Kazakhstan as a form of judicial practice? After all, they are officially recognized and enshrined in paragraph 1 of Article 4 of the Constitution of the Republic of Kazakhstan as a source of current law. S.N. Bratus and A.B. Vengerov pointed out that 'the forms of judicial practice should be distinguished from the form of law' [3; 52]. On this matter, it is also important to cite the statement of S.S. Alekseev: 'In normative-judicial systems, decisions of judicial bodies acquire the functions of precedents – primary sources of legal norms, and thus the objectified experience of judicial bodies, once it gains normative significance, immediately becomes part of the normative foundation of the legal regulation mechanism. Consequently, in principle, there is no basis for the existence of judicial practice (other than the current one) as a distinct legal reality, that is, as something separate from the existing system of legal norms' [4; 342].

As already mentioned, the normative resolutions of the Supreme Court of the Republic of Kazakhstan are included in the body of the current law of the Republic, so is it justified to also consider them a part of judicial practice? In our opinion, the normative resolutions of the Supreme Court can be considered a form of judicial practice, but not just another 'form' among many others, but rather the highest form of judicial practice. Firstly, they have a formally binding character, unlike all other forms of judicial practice, which can only be perceived due to their persuasiveness, repeated application, and the public familiarity of the legal propositions contained in them. Secondly, the normative resolutions of the Supreme Court are the most concentrated form of judicial practice, containing summaries of decisions on specific categories of cases across the entire Republic. Thirdly, they not only affirm the generalized expression of established practices in applying current law but also provide answers to the emerging needs of such practices on the most important issues. Fourthly, they are adopted by the highest body of judicial authority—the plenary session of the Supreme Court of the Republic of Kazakhstan.

Unlike other forms of objectifying and establishing judicial practice, the normative resolutions of the Supreme Court contain not legal propositions, but norms of current law. Judicial practice, once enshrined in these acts, becomes a source of law in the direct, formal-legal sense of the term.

In this regard, there is some similarity between the normative resolutions of the Supreme Court and other normative legal acts, many of which are adopted with extensive use of and reliance on the practice of the relevant law enforcement agencies. For example, various ministries and departments issue many normative acts with the involvement of the experience accumulated in the practice of subordinate bodies. A reasonable question arises: why then can these acts not be considered, just like the normative resolutions of the Supreme Court, as forms of the relevant legal practice?

In our opinion, the significance of legal practice in the adoption of normative resolutions by the Supreme Court has a fundamentally different and more important character than in the issuance of other normative legal acts. Firstly, the normative resolutions of the Supreme Court are adopted exclusively based on the results of the analysis and generalization of judicial practice. Secondly, the Supreme Court does not have a special 'own' sphere of legal regulation. Thirdly, the normative resolutions of the Supreme Court are aimed at ensuring the correct and consistent practice of applying the norms of legislation established by other state bodies and officials. S.K. Zagaynova, not recognizing the resolutions of the Plenary Session of the Supreme Court of the Russian Federation as forms of judicial practice, states that 'the highest judicial authority provides an interpretation of the current legislation' [1; 72]. According to her, 'judicial practice is an area of legal application, it is the result of the courts administering justice' [1; 72].

Of course, the normative resolutions of the Supreme Court of the Republic of Kazakhstan are essentially acts of official normative interpretation. In turn, each court decision contains an interpretation of the norms applied, as 'the interpretation of the law is not only a necessary premise but also an element of applying the law' [6; 143]. Thus, a court decision is also an interpretation of a general and abstract norm, but now applied to a specific case. It is also important to note another aspect. In its normative resolutions, the Supreme Court of the Republic of Kazakhstan does not provide purely abstract interpretations. The Supreme Court provides clarifications based on an assessment of the practice of applying legal norms. It is not authorized to provide explanations based solely on the assessment of the norms themselves, without linking them to the practice of their application by the courts.

Judicial practice, in our opinion, is initially the result of legal application activities. Based on this position, we consider it necessary to classify forms of judicial practice by the method of formation into: 1) primary (direct); 2) derivative (indirect). Primary forms of judicial practice include court resolutions that directly objectify the legal application process itself. This also includes so-called 'decisions on fundamental cases,' which contain legal propositions and serve as a form of expression and establishment of judicial practice. Derivative forms, on the other hand, include all forms of expression and establishment of judicial practice that are formed indirectly, i.e., not legal application acts. These include normative resolutions of the Supreme Court, their published drafts, and overviews of judicial practice.

Depending on the nature and methods of transforming social relations, it is necessary to distinguish between lawmaking, law enforcement (executive, judicial application, etc.), regulatory, interpretative, and other types of practice [7; 349]. By subjects, legal practice is usually divided into legislative, judicial, investigative, notarial, etc. [7; 350]. From the perspective of the method of transforming social relations, the normative resolutions of the Supreme Court are the result of lawmaking activity, while by subject, they are judicial. Thus, judicial practice is an area not only of legal application but also of lawmaking in the direct, formal-legal sense of the term. From this standpoint, the normative resolutions of the Supreme Court are the only form of lawmaking judicial practice. On the other hand, these acts are a derivative form of expression and establishment of law application judicial practice.

A significant practical interest lies in the question of the legal nature of overviews of judicial practice. It is unlikely that they can be classified as acts of official interpretation of legal norms with state-binding force. Overviews of judicial practice, particularly those concerning the law, contain the official explanation of the position of the judicial body that prepared it regarding a particular category of cases. The official nature of such commentary is due to the fact that it is issued by higher judicial instances, guiding lower courts towards uniform application of the law and preventing possible errors in judicial practice.

A particularly new form of judicial practice has emerged in the form of drafts of normative resolutions of the Supreme Court of the Republic of Kazakhstan. The Bulletin of the Supreme Court of the Republic of Kazakhstan states that the purpose of this innovation is to engage a wide range of interested parties, for whom the proposed topics of the draft normative resolutions are of professional interest, and whose opinions and suggestions may be reflected in the finalization of the discussed drafts [5; 52]. While, of course, not a form of law, these drafts objectify the judicial application experience of judicial bodies. They can be considered by the courts and help establish uniformity in their practice prior to the introduction of the relevant normative resolutions. In this case, however, courts cannot refer to the draft of a normative resolution of the Supreme Court of the Republic of Kazakhstan to justify any particular interpretation of the law when resolving cases.

Many scholars note the convergence of two legal systems – the Continental and Anglo-Saxon systems. One manifestation of this convergence can be seen in the following: 'The constitutionally established term 'current law' and its inclusion of normative resolutions of the Supreme Court represents the recognition of the so-called 'precedent law,' based on judicial practice, as a source of law in Kazakhstan. Unlike classical precedent law, where lower courts issue decisions referencing specific similar cases heard by another (usually higher) court, Kazakhstan's current law includes 'generalized,' 'synthesized' precedent law, i.e., judicial practice not from a specific case but from a particular category of cases across the entire republic, approved for application not by an individual judge but by the highest judicial body – the plenary session of the Supreme Court' [8; 12]. In this case, it is important to clarify that we are not talking about judicial customs, since a normative resolution of the Supreme Court is not an act of sanctioning judicial customs or any individual decision. Judicial practice is, for the most part, simply the factual basis for issuing normative resolutions. It does not predetermine the content of legal norms established by the Supreme Court of the Republic of Kazakhstan. Of course, judicial practice not only signals the presence of gaps and conflicts in legislation but also develops recommendations for their elimination, which may be adopted by the Supreme Court when issuing normative resolutions.

Courts may be forced to turn to other sources of law that can compensate for the absence or inadequacy of legislation and ensure legal regulation where legislative tools are absent or insufficient. Judicial precedent is one such source, and in the domestic legal system, normative resolutions of the Supreme Court of the Republic of Kazakhstan can be included in this category.

Second. Based on the method of formation, forms of judicial practice should be divided into: 1) primary (direct); 2) derivative (indirect).

Third. The normative resolutions of the Supreme Court of the Republic of Kazakhstan are the only form of lawmaking judicial practice in the legal system of the Republic.

Fourth. The normative resolutions of the Supreme Court of the Republic of Kazakhstan are the highest derivative form of expressing and establishing law application judicial practice.

Fifth. The cumulative experience of law application judicial practice, once objectified in the form of normative resolutions of the Supreme Court, becomes part of the very normative foundation of the legal regulation mechanism and acquires the status of a primary source of current law.

Sixth. The normative resolutions of the Supreme Court and judicial precedents have the following common features: 1) they are the result of court activity; 2) they are sources of law; 3) they are designed to compensate for the absence or inadequacy of legislation where legislative tools are absent or insufficient; 4) they aim to ensure the necessary degree of uniformity in court decisions; 5) the rules of conduct in both sources of law are constructed with regard to real cases and existing circumstances.