Introduction: The Role of Judicial Interpretation
Judicial interpretation is a cornerstone of any legal system, ensuring that laws are applied consistently and fairly. In common law jurisdictions, the principle of stare decisis (precedent) dictates that courts are bound by previous decisions, especially those of higher courts. While civil law systems often place less emphasis on precedent than common law systems, the binding nature of interpretations from supreme courts, particularly cassation benches, is crucial for maintaining legal uniformity and predictability. This chapter explores the binding nature and applicability of legal interpretations rendered by the Cassation Bench in Ethiopia, examining the conditions under which such interpretations become authoritative and their temporal effect.
The Requirement of “Not Less Than Five Judges”
A legal interpretation rendered by the Cassation Bench becomes binding on lower courts only if it is issued by a bench composed of “not less than five judges.” The term “composed” (በተሰየሙበት) here signifies the formal assignment or constitution of the bench, rather than requiring unanimous agreement among the judges. Therefore, even if an interpretation is reached by a majority vote, it does not negate its binding force, provided the minimum number of judges are formally assigned to the bench.
It is important to distinguish this from the legal effect of an order from an inquiry bench. A cassation petition must first be screened by an inquiry bench composed of three judges before it can be heard by the main bench. If the inquiry bench determines that the appeal does not warrant review, the file is closed. An order stating that an appeal does not warrant review merely indicates that the lower court’s decision does not contain a fundamental error sufficient for cassation; it is not considered a legal interpretation and, therefore, is not binding on lower courts.
For instance, in a dispute between the Ethiopian Intellectual Property Office (applicant) and Ato Tibebu Ayele (respondent), the respondent argued that a similar cassation complaint filed by the applicant in another case was rejected, and therefore the current case should be handled similarly. The Cassation Bench rejected the respondent’s argument, stating that an order from an inquiry bench does not have binding force.
Once a Cassation petitionis deemed admissible, almost all cases are heard by a bench of five judges. However, in instances where a case raises a very fundamental legal interpretation or when the court explicitly intends to change its previous stance, the case is heard by a bench of seven judges. Examples of decisions rendered by a seven-judge Cassation Bench include:
- Cassation File No. 29181 (Applicant: Commercial Bank of Ethiopia and Respondent: Ato Liyew Chekol (2 persons), December 20, 2002 E.C., Volume 10)
- Cassation File No. 34329 (Applicant: Commercial Bank of Ethiopia and Respondent: Ato Fekade Demissie (2 persons), December 20, 2002 E.C., Unpublished)
- Cassation File No. 39362 (Applicant: Ato Nigussie Tamrat (6 persons) and Respondent: Bekelcha Transport Share Company, December 12, 2002 E.C., Unpublished)
- Cassation File No. 42239, Volume 10.
2.2.1 Regional Cassation Bench Decisions by Three Judges
In the legal interpretation given in Cassation File No. 198669, the Harari Region’s decision to hear and decide a cassation case with three judges was not considered a fundamental error of law in terms of bench composition. The precondition of “not less than five judges” applies only to the Federal Supreme Court Cassation Bench. This distinction acknowledges the hierarchical structure of the judiciary and the specific role of the Federal Supreme Court as the ultimate interpreter of law with nationwide binding authority.
2.3 Unpublished Decisions and Their Binding Force
For cassation decisions to ensure quality and consistency in similar cases, they must be made accessible to lower courts in an easy and convenient manner. Article 2(1) of the repealed Proclamation No. 454/1997, which amended the Federal Courts Proclamation, stipulated that the Federal Supreme Court shall publish and disseminate decisions containing binding legal interpretations to courts at all levels and other relevant bodies. The current Federal Courts Proclamation No. 1234/2012, in Article 10(3), makes publication optional, stipulating that the Federal Supreme Court shall disseminate decisions containing binding legal interpretations as quickly as possible through electronic or print media. As of the publication date of this book, the Federal Supreme Court has published and disseminated decisions containing binding legal interpretations in twenty-four volumes. However, these volumes do not include all cassation decisions. The publication of subsequent volumes ceased after December 2013 E.C. Nevertheless, with the option of using electronic media, decisions are being uploaded to the court’s website, https://fsc.gov.et.
The obligation placed on the Supreme Court to publish and disseminate decisions containing binding legal interpretations raises a contentious question regarding the binding nature of cassation decisions.
Like any court decision, a cassation decision takes effect from the date it is written, signed by the judges who constituted the bench, and formally read to the litigants. However, its effect extends beyond the specific litigants to those who benefit from or are bound by the decision. The legal interpretation forming the basis of the decision compels lower courts to accept it and refrain from deciding based on their own interpretations. The question of when this binding nature commences requires a separate legal interpretation, primarily focusing on whether publication or dissemination is a prerequisite for its binding force.
So far, the binding nature of legal interpretations in unpublished decisions has not been explicitly addressed by the Cassation Bench. However, the court itself is observed to cite unpublished decisions. For example, Cassation File No. 44218 cites the binding legal interpretation given by the court in Cassation File No. 43197. However, Cassation File No. 43197 is not found in any volume. Similarly, in Cassation File No. 39580, the court rendered a decision citing Cassation File No. 39579, but Cassation File No. 39579 is not included in the volumes. In the same vein, in Cassation File No. 42901, the court cited the legal interpretation it gave in Cassation File No. 40055, but the cited decision is not found in the volumes. The court’s practice suggests that it accepts that an unpublished decision (not included in the volumes) has binding force. The fact that unpublished decisions are cited even by the court itself indicates that publication is not a precondition for their binding nature. The time when a cassation decision becomes binding was not explicitly stipulated in the repealed proclamation. However, the current Proclamation No. 1234/2012, in Article 10(2), stipulates that the decision shall have binding force from the date it is rendered.
2.4 Retroactivity of Legal Interpretations
In principle, laws do not operate retroactively. Especially in criminal law, this principle has a constitutional basis. Even in civil matters, the effect and execution of previously performed legal acts are often explicitly determined by “transitional provisions.” The scope of the binding nature of cassation legal interpretations is limited to lower courts. Unlike laws published in the Negarit Gazeta, they are not binding on any federal or regional legislative or executive body, nor on any natural person or legal entity. The fact that its binding nature is limited to lower courts provides two fundamental insights regarding retroactivity:
First, a legal interpretation has binding force on all pending cases. Even if the underlying facts of the dispute occurred before the cassation decision was rendered, the interpretation must be applied to resolve the dispute. The dispute might have commenced before the date the binding legal interpretation was given, and the litigation process might not have been concluded, or a decision might have been rendered and it is currently under appeal. The interpretation given by the Cassation Bench is binding on pending litigation. In Cassation File No. 84353, one of the arguments raised by the respondent was that the court lacks jurisdiction to hear a case seeking to stop or annul an auction conducted on property held by a bank as collateral for a loan, citing the binding legal interpretation given by the Cassation Bench in Cassation File No. 70824. The applicant, on their part, argued that since the auction, which was the cause of the dispute, occurred five days before the Cassation Bench’s legal interpretation was given, the cassation interpretation should not apply retroactively.
The court rejected the applicant’s argument. Regarding retroactivity, its commentary stated that a binding legal interpretation:
“…is applicable based on whether there is an interpretation given by the Cassation Bench regarding a similar matter when a dispute arises between other parties on the same issue, rather than being applied by examining the chronological order of when the interpretation was given and when the cause of the dispute occurred.”
Second, a binding legal interpretation does not apply retroactively to cases that have been concluded and received a final decision. A concluded case, unless reversed on appeal, has legal effect even if it is erroneous. Even if it becomes clear later, through a subsequent binding legal interpretation, that the decision contained a fundamental error of law, the interpretation does not annul the decision. When the Cassation Bench itself changes its legal interpretation, a lower court’s decision rendered based on the superseded legal interpretation remains valid. In the court’s view, the primary objective of the law stipulating binding force is:
“…to ensure uniform legal interpretation and application in the country by making sure that similar types of cases requiring decisions, which have been previously interpreted by the Federal Supreme Court Cassation Bench, are decided in a similar manner, and not to destabilize settled situations by reopening all concluded cases or to invite litigants to an unpredictable judicial system.”
2.5 Conclusion
The binding nature of legal interpretations from the Cassation Bench is vital for the coherence and predictability of the Ethiopian legal system. While the requirement of a minimum number of judges and the emphasis on publication are important, the court’s practice and recent legislative changes clarify that the binding force commences from the date of the decision, irrespective of its publication status. Furthermore, the principle of non-retroactivity generally applies to concluded cases, ensuring legal certainty and stability, while pending cases are subject to the new interpretations to promote uniform application of the law. This balance reflects a commitment to both justice and legal order within the Ethiopian judiciary.