The Doctrine of Judicial Precedent in Syria

The Syrian legal system is a member of the family of civil law jurisdictions, which are inspired by the French and continental European regimes. Presently in Syria, case law is generally considered persuasive when compared to the position in the English common law. However, the legal principle of binding precedent exists to a significant degree in Syria as the judgments of the General Assembly of the Court of Cassation, the highest judicial body, possess the status of law. Any failure by the courts to apply the established jurisprudence of the General Assembly of the Court of Cassation gives rise to actionable claims of gross professional negligence on the part of the concerned judges, whose decisions would most likely be overturned. As part of its functions, the General Assembly of the Court of Cassation also eliminates discrepancies between the rulings of the various chambers of the Court of Cassation to avoid or limit any ambiguity. As such, the General Assembly of the Court of Cassation has managed to establish a rich collection of case law over the decades that allows legal practitioners and judges to refer to in the course of their duties.

The General Assembly of the Court of Cassation derives its authority from the Judicial Authority Law 98/1961 and the Civil Procedure Code previously provided for in Legislative Decree 84/1953 and currently in Law 1/2016. Article 466(a) of the Civil Procedure Code grants the General Assembly of the Court of Cassation the right to adjudicate claims of gross professional negligence against the respective judges where its precedents are not correctly observed. The General Assembly of the Court of Cassation is comprised of the judges of the Court of Cassation and is usually arranged into panels constituting five or seven senior judges each depending on the type of hearing. The panels are specialized in civil, commercial, criminal and personal status cases. The Chief Justice of the Court of Cassation chairs the General Assembly of the Court of Cassation and in their absence, the Deputy Chief Justice of the Court of Cassation or another senior judge presides over proceedings.

With respect to the doctrine of judicial precedent, the General Assembly of the Court of Cassation has consistently upheld the legal obligation to abide by its judgments, with one notable exception. In Court Judgment No. 149/1992, it affirmed that the courts must be committed to applying the legal rules approved by the General Assembly of the Court of Cassation in their decisions. Moreover, any failure to abide by this principle amounts to gross professional negligence on the part of the courts, thereby necessitating the overturning of their judgments (Court Judgment No. 9/2006). According to Court Judgment No. 190/1994, the rendering of a judgment based on the established jurisprudence negates any allegation of gross professional negligence by the court in question even if the legal reasoning conflicts with other case law.

The jurisprudence of the General Assembly of the Court of Cassation has also defined the criteria of what type of action constitutes ‘gross professional negligence’. In its Court Judgment No. 6/1972, the General Assembly of the Court of Cassation defined ‘gross professional negligence’ as amounting to an outrageous error which conveys a lack of reasonable interest by the court when issuing its ruling. In Court Judgment No. 38/1972, the error was described as exceeding reasonable limits. Pursuant to Court Judgment No. 304/1999, gross professional negligence amounts to a deviation from the basic principles of the law or ignorance of the facts established in the case. Exceeding the parameters of a decision rendered by the General Assembly of the Court of Cassation or deviating from it amounts to gross professional negligence (Court Judgment No. 199/2009). A simple error in interpreting the jurisprudence established by case law on the other hand is an ordinary one that does not necessarily amount to gross professional negligence on the part of the court and the underlying judgment is not expected to be set aside (Court Judgment No. 34/1996).

A recent ruling by the General Assembly of the Court of Cassation provided for in Court Judgment No. 37/2020 has thrown the entire doctrine of judicial precedent and the basis of gross professional negligence into grave doubt. It is unclear if or when the legal balance will be restored. The underlying facts were that the Court of Cassation had overturned a judgment because it found that the statute of limitations period had expired. The claimant then filed a claim against the judges of the Court of Cassation before the General Assembly of the Court of Cassation, alleging that their decision amounted to gross professional negligence. The General Assembly of the Court of Cassation ruled that the Court of Cassation had indeed erred in its legal reasoning and found that the statute of limitations period had not lapsed. It remitted the case back to the Court of Cassation to revise its ruling.

On a second hearing of the case, the Court of Cassation refused to adhere to the directives of the General Assembly of the Court of Cassation and reaffirmed its earlier ruling that the statute of limitations period had indeed expired. The claimant then filed a second claim against the judges of the Court of Cassation before the General Assembly of the Court of Cassation, once again alleging gross professional negligence, especially since the judges had refused to follow the directives of the General Assembly of the Court of Cassation in the subsequent hearing.

The General Assembly of the Court of Cassation astonishingly responded that not every decision issued by its panels amounts to a declaration of the law. Rather, the original source of the law is the legislation issued by the legislature. The judges opined that the courts and the General Assembly of the Court of Cassation for their part seek to interpret legislation and establish jurisprudence with the status of law where gaps exist in legislative provisions or where laws are silent with respect to certain matters. Quite surprisingly, the General Assembly of the Court of Cassation held that where it erred in the application of a legislative provision or it violated its own established jurisprudence, the Court of Cassation was justified in not following its directives. Moreover, the judges insisted that it was preferable for the Court of Cassation to reverse the error than to persist with it.

The second ruling by the General Assembly of the Court of Cassation had the effect of reversing decades of past practice whereby the courts always adhered to the decisions and jurisprudence of the General Assembly of the Court of Cassation as the ultimate arbiter on a question of law, which in itself created legal certainty. It was irrespective of the fact whether the General Assembly of the Court of Cassation may or may not have erred in its reasoning. The second ruling by the General Assembly of the Court of Cassation casts doubt on the doctrine of judicial precedent since the lower courts were always expected to follow and apply the judgments of the General Assembly of the Court of Cassation without question. The supposed rule that the lower courts are unconditionally bound by the judgments of the General Assembly of the Court of Cassation is therefore not absolute according to this decision. Whether Court Judgment No. 37/2020 will be labelled as an aberration and effectively neglected in the future remains to be seen.

According to Court Judgment No. 41/1995, the rationales for filing a claim before the General Assembly of the Court of Cassation are that it constitutes an exceptional appeals procedure and provides accountability for the highest placed judges. However, certain preconditions must first be satisfied. If a litigant files a claim before the General Assembly of the Court of Cassation and it is rejected as to form or on its merits, then the litigant shall not pursue the dispute any further. A petition before the General Assembly of the Court of Cassation is not admissible if there is another legal procedure available to the litigant to obtain relief (Court Judgment No. 67/2009). The General Assembly of the Court of Cassation only hears disputes when the underlying judgment is final, conclusive and not subject to further appeal (Court Judgment No. 253/2009). Furthermore, only judgments issued by the Court of Cassation are accepted, not those from any other court, such as the Court of Appeal (Court Judgment No. 120/2009).

When a claim for gross professional negligence is filed with the General Assembly of the Court of Cassation by a judgment debtor for instance, it is deemed to be a new lawsuit in its own right and not an appeal. A lawsuit challenging a judgment of the Court of Cassation can only be litigated by a party to the original case, not a third party (Court Judgment No. 16/1996). When a judgment is scrutinized by the General Assembly of the Court of Cassation, its enforcement is stayed as soon as the lawsuit is accepted in form by the General Assembly of the Court of Cassation (Court Judgment No. 22/1995). While the judgment debtor is usually the claimant, it is the judges who issued the underlying ruling who are listed as the defendants, not the judgment creditor in the original case that is the subject of the claim.

The General Assembly of the Court of Cassation confirmed a number of points in Court Judgment No. 129/2009 pertaining to the filing of such claims. In a case before the General Assembly of the Court of Cassation alleging gross professional negligence on the part of the judges who issued the judgment under dispute, the demand for relief by the claimant shall be levied against the judges in question, with the exception of any dissenting judge, and the state as represented by the Minister of Justice. The Civil Procedure Code adopted via Law 1/2016 reiterated this point in Article 471(b). The General Assembly of the Court of Cassation held in Court Judgment No. 27/1987 that if a unanimous court ruling is being challenged before the General Assembly of the Court of Cassation, then the claim shall be directed against all the judges of the respective panel of the Court of Cassation. The General Assembly of the Court of Cassation held in Court Judgment No. 192/2009 that the state must be joined to the proceedings as it is ultimately responsible for the actions of the judges. However, the remedy that is usually awarded is a directive by the General Assembly of the Court of Cassation for the litigated judgment to be rectified.

One drawback is that the statute of limitations to file a claim before the General Assembly of the Court of Cassation amounts to three years starting from the date the disputed judgment was officially issued by the Court of Cassation, as stipulated for in Article 471(g) of the Civil Procedure Code. On this basis, a question of law remains open for a three-year period before it is finally determined, obtains the status of law and is deemed binding as part of the established jurisprudence. In other words, the prospect of legal certainty in a given area of the law may be inconveniently delayed.

In addition to assessing claims for gross professional negligence, the General Assembly of the Court of Cassation eliminates discrepancies between the rulings of the various chambers of the Court of Cassation. The Court of Cassation is not one individual entity with a set number of justices similar to supreme courts in common law jurisdictions. Rather, the Court of Cassation is comprised of several chambers made up of three-judge panels each. As a result, there is an increased likelihood that one panel may issue a judgment that conflicts with another of its counterparts, which is never the case in a common law supreme court. Therefore, the General Assembly steps in to prevent the various panels from issuing inconsistent judgments with each other because that would create legal uncertainty.

The General Assembly of the Court of Cassation ruled in Court Judgment No. 171/1994 that adherence to the jurisprudence of the Court of Cassation takes precedence when faced with similar cases that have been adjudicated accordingly. A situation may nevertheless arise whereby two distinct panels of a respective chamber of the Court of Cassation have issued contradictory judgments, making it a challenging task for a court to determine which jurisprudence should be followed when the case being adjudicated is analogous to them. It therefore falls to the General Assembly of the Court of Cassation to determine which judgment of the Court of Cassation will stand so as to eliminate the inconsistency, or otherwise the jurisprudence will remain imbalanced and unpredictable (Court Judgment No. 212/2006). The objective is to establish a rich collection of case law grounded in legal certainty. It should be noted however that according to Court Judgment No. 190/1994, Court Judgment No. 372/1995 and Court Judgment No. 224/2002, the adoption of a judgment based on the jurisprudence of the Court of Cassation is mandatory and negates any allegation of gross professional negligence by the court in question even if the legal reasoning conflicts with other jurisprudence.

The cases cited above reinforce the legal principle that the judgments of the General Assembly of the Court of Cassation possess the status of law, thereby recognizing that the doctrine of judicial precedent exists to a significant degree in Syria. Furthermore, the jurisprudence established by the Court of Cassation through its chambers is also binding on the lower courts, which must abide by it. Despite these rules, case law in Syria is generally considered persuasive when compared to the position in the English common law. Such an assertion could have more easily been refuted were it not for the recent ruling by the General Assembly of the Court of Cassation in Court Judgment No. 37/2020. In the event the judicial reasoning underpinning that decision is effectively overlooked, the rich collection of case law will remain grounded in legal certainty, thereby confirming the survival and legitimacy of the doctrine of judicial precedent in Syria.