3.4 – Reasoning of Judicial Decisions

3.4.1 Performance standards

Judicial decisions must be reasoned. The Supreme Court should publish its decisions as well as minority opinions[1]. The judge should explain the reasons for his decisions, referring to the facts for which the process was held, the applicable laws and the various requests of the parties. In its entirety, it should be considered as a unity in which the constituent parts are closely linked to each other. They should be at the service and helping each other. The arguments of the reasoning part must be based and logically bound, respecting the rules of fair thinking. They should form a coherent content within the decision which excludes opportunities for any overt or covert contradictions. These arguments should also be sufficient to support and accept the ordering part. The conclusions of the reasoning part should be based not only on the legal acts, but also on the principles and rules that characterize sound and logical thinking.[2]

Reasoning of decisions is an essential element of a fair decision. The decision may be verified by a higher court according to the relevant procedures and, for this to be possible, the reasoning of the decision must be made in which the judge clearly states the facts and the applicable law which have led to choosing among several options.[3]

The function of a reasoned decision is to tell the parties that they have been heard. On the other hand, only by giving a reasoned decision can a public control of the administration of justice be realized[4]. Article 6 of the ECHR obliges the courts to reason their decisions but this cannot be understood as requiring a detailed answer to each argument.[5]

The aspect of the judicial decision reasoning is evaluated based on indicators such as the clarity and understanding of the decision, the stable and well-organized structure of the decision as well as the quality of the analysis and of the logical argument.[6]

A court decision that only clarifies the verdict is a decision that gives only clarity and legal certainty; however, the decision must demonstrate that a) the judge has “correctly understood and reflected the particular case before him”, and that the judge b) “has made justice between the parties”, preventing other conflicts and contributing to social harmony


3.4.2 Indicators of achievement

The analysis of court decisions by the highest court for the lowest, according to the procedural claims of the parties, is an indicator of the achievement of this standard, which should focus on these questions:

  • Is the reasoning clear, comprehensible[7] and complete in terms of the legal and analytical basis with regard to the facts and evidence that justify it?
  • Has the judge responded in the reasoning of the decision to all parties’ claims and did he specify, reasoning all the points that justify the court decision and make it lawful?
  • Does the decision reflect compliance with the principles of the Supreme Court, Constitutional Court, and ECtHR jurisprudence?
  • How many complaints and recourses have been based on the violation of this standard by the interested parties?
  • How often does the judicial decision of specific judges become vulnerable to reviews by higher courts, precisely because of the failure to meet the reasoning standard?


3.4.3 Measurement method

Measurement method is the same as in 2.3.3 above. Data and statistics on the overturning of decisions by higher courts on this standard of performance, i.e. the reasoning of judicial decisions. Research and statistical analysis of decisions of the Supreme Court and Constitutional Court in terms of the standard of judicial reasoning. Judicial control of decision-making within the national system of law itself on this element is a standard of performance, but also of the level of reasoning of the judicial decision.





[1] Article 142 of the Constitution

[2] Constitutional Court decisions no.11, of 02.04.2008; no.7, of 09.03.2009; no.23, of 23.07.2009

[3] Ibid

[4] ECtHR Decision in the case of Hirvisaari v. Finland, 27 September 2001, prg. 30

[5] ECtHR Decision in the case of Van de Hurk v. Netherlands, 19 April 1994, prg. 61

[6] Article 72/3 of Law no. 96/2016

[7] Opinion no.7/2005 of the CCJE