Uzasadnienie voti separati a prawo do sądu. Zależności i gwarancje

Abstract

The text provides an insight into the relation between the formal motives (justifycation) of votum separatum in judicial proceedngs and a right to due process. Because of to the complex axiological and functional character of the motives of judge’s dissent, the interdependence in question is not obvious, nor clear. Weakening the stability and social prestige of the judgment, as well as breaking the confidency of judges’ dispute, the votum separatum (mainly through its motives) contributes simultaneously to improving the overall quality of discourse accompanying application of law. It provides new points of reference that can or ought to be addressed at a few levels – within the grounds of the judgment (against which the dissent has been directed), by the court of higher instance, by other courts, as a „quasi-precedential” ruling, etc. For that reasons, although the separate opinion is not an obviouness for the legal system, introduction of this instrument entails quite automatically a need for a duty to justify it.