History and Present of Judiciary


Textbook, 2009
144 Pages

Excerpt

INHALTSVERZEICHNIS

ZUSAMMENFASSUNG/ABSTRACT

1. THE BEGINNINGS OF THE JUDICIARY
1.1 CHINA
1.2 INDIA
1.3 EGYPT
1.4 MESOPOTAMIA
1.5 HITTITE EMPIRE
1.6 ISRAEL
1.7 ANCIENT GREECE
1.8 ANCIENT ROME

2. LEGAL SYSTEM IN THE MIDDLE AGES
2.1 GENERAL CHARACTERISTIC
2.2 BYZANTINE EMPIRE
2.3 FRANKISH EMPIRE
2.4 FRANCE
2.5 GERMANY
2.6 ENGLAND
2.7 ITALY
2.8 UNITED STATES OF AMERICA

3. THE CURRENT ORGANIZATION OF THE JUDICIAL SYSTEM OF SELECTED COUNTRIES
3.1 ENGLAND
3.2 THE UNITED STATES OF AMERICA
3.3 FRANCE
3.4 GERMANY

4. INTERNATIONAL JUDICIARY
4.1 DEVELOPMENT OF INTERNATIONAL JUDICIARY
4.2 INTERNATIONAL COURT OF JUSTICE
4.3 INTERNATIONAL CRIMINAL JUSTICE
4.4 EUROPEAN COURT OF JUSTICE
4.5 EUROPEAN COURT OF HUMAN RIGHTS
4.5.1 EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
4.5.2 PRINCIPLE OF SUBSIDIARITY
4.5.3 SUPERVISORY MECHANISM ACCORDING TO THE ORIGINAL WORDING OF THE CONVENTION
4.5.4 REFORM OF THE SUPERVISION SYSTEM
4.5.5 EUROPEAN COURT OF HUMAN RIGHTS AFTER 1ST NOVEMBER 1998
4.5.5.1 Structure and organisation of the Court
4.5.5.2 Decision-making authority of the Court
4.5.5.3 Advisory power of the Court

LITERATURE

THE DOCUMENTS

STATUTE OF THE INTERNATIONAL COURT OF JUSTICE

STATUTE OF THE COURT OF JUSTICE

EUROPEAN COURT OF HUMAN RIGHTS

ZUSAMMENFASSUNG /ABSTRACT

Die Ausübung der Gerichtsbarkeit gehörte immer zu den bedeutendsten Funktionen des Staates. Die Hauptaufgabe der Gerichte ist die Gewährung des Rechtsschutzes auf gesetzliche Art und Weise. Dies ergibt sich aus den Grundfunktionen des Rechtsstaates, die in der Garantie des Rechtes auf den Rechtsschutz bestehen. Jeder Mensch soll das Recht auf einen freien Zugang zu den Gerichten haben. Wenn wir dieses Problem aus historischer Sicht betrachten, stellen wir fest, dass das Recht auf Gerichtsschutz in Magna Charta Libertatum aus dem Jahre 1215 zum ersten Mal verankert wurde. Aus der Charta gehen auch weitere Verfassungsdokumente aus, vor allem Habeas Corpus Act aus dem Jahre 1679 und Bill of Rights aus dem Jahre 1689. Das Recht auf Gerichtsschutz wurde auch in den französischen und amerikanischen verfassungsrechtlichen Normen verankert. Es waren vor allem schon die französische Verfassung aus dem Jahre 1791 und die Zusatzartikel zur Verfassung der Vereinigten Staaten aus dem Jahre 1791.

Das Recht auf Gerichtsschutz beinhalten auch die bedeutendsten internationalen Dokumente. In diesem Zusammenhang ist es nötig auf Art. 8 und 10 der Allgemeinen Erklärung der Menschenrechte Aufmerksam zu machen. Sie wurde im Jahre 1948 von den Vereinten Nationen angenommen. Die in dieser Deklaration verankerten Gedanken wurden vor allem im Internationalen Pakt über bürgerliche und politische Rechte und im Internationalen Pakt über wirtschaftliche, soziale und kulturelle Rechte verankert. Das weitere völkerrechtliche Dokument, das das Recht auf Gerichtsschutz beinhaltet, ist die im Jahre 1950 im Rom abgeschlossene Europäische Menschenrechtskonvetion.

Aus den tschechischen verfassungsrechtlichen Dokumenten ist die Charta der Grundrechte- und Grundfreiheiten (Gesetz Nr. 2/1993 Slg.) zu nennen. Art. 36 stellt fest, „ jedermann könne auf geregelte Weise sein Recht bei einem unabhängigen und unparteilichen Gericht und in bestimmten Fällen bei einem anderen Organ fordern.“ Im Absatz 2 desgleichen Artikels wird festgelegt : „Wer behauptet, er wurde durch die Entscheidung einer Verwaltungsbehörde in seinen Rechten gekürzt, kann sich an das Gericht um Überprüfung der Gesetzlichkeit dieser Entscheidung wenden, sofern das Gesetz es nicht anders bestimmt. Aus der Gerichtsbarkeit darf die Überprüfung einer Entscheidung, die die in der Urkunde enthaltenen grundlegenden Rechte und Freiheiten betrifft, nicht ausgeschlossen werden.“ Es folgen diese Bestimmungen: „Jedermann hat das Recht auf Entschädigung für einen Schaden, der ihm durch die gesetzeswidrige Entscheidung eines Gerichtes, einer Staatsbehörde oder Behörde der Selbstverwaltung oder durch ein falsches amtliches Verfahren entstanden ist.“ Artikel 37 der Charta garantiert jedem das Recht, „seine Aussage zu verweigern, sollte diese ihn oder eine ihm nachstehende Person in die Gefahr einer rechtlichen Verfolgung bringen“ (Abs. 1), „jedermann hat das Recht auf Rechtshilfe in dem Verfahren vor Gerichten, anderen Verfahren staatlichen oder Organen der öffentlichen Verwaltung, und zwar von Anfang des Verfahrens an“ (Abs. 2), „alle Teilnehmer haben im Verfahren gleiche Stellung“ (Abs. 3). Schliesslich im letzten Absatz des zitierten Artikels ist verankert, dass „wer erklärt, er sei der Verhandlungssprache nicht mächtig, hat das Recht auf einen Dolmetscher.“

Die Gerichte erfüllen wichtige Funktionen jedes Rechtsstaates und deswegen bilden sie einen wichtigen Bestandteil des Staatsmechanismus. Die Verwirklichung der Anforderung des Rechtsstaates – der Rechtsschutz – hängt von ihrer Effizienz ab. Aus diesem Grunde widmen die Verfassungsvorschriften aller demokratischen Staaten der Gerichtsorganisation bedeutende Aufmerksamkeit.

Die aus allen demokratischen Verfassungen sich ergebene Hauptaufgabe der Gerichte besteht in der Gewährung des Rechtsschutzes auf gesetzliche Art und Weise. Die Stellung der Gerichtsbarkeit im demokratischen Rechtsstaat hängt von der konkreten Konzeption der Gewaltenteilung ab. Die Gewaltenteilung (Locke, Montesquieu) geht von zwei Anforderungen aus. Die erste stellt die Selbständigkeit der gesetzgebenden, vollziehenden und rechtsprechenden Gewalt dar, wobei keine dieser Gewalten in andere Staatsgewalt eingreifen darf. Die andere fordert, dass ein System von „check und balances“ zwischen den Staatsgewalten gibt. Es verhindert, dass keine der angegebenen Gewalten der Kontrolle entgleitet und infolgedessen den Staat beherrschen kann.

Die wirkliche Stellung der Gerichte im System der Staatsorgane ergibt sich jedoch daraus, auf welcher Konzeption der Gewaltenteilung das entsprechende System aufgebaut ist. Die dualistische Theorie ordnet die rechtssprechende Gewalt in den Bereich der vollziehenden Gewalt (legis executio). Trialistische und Quadratistische Theorien erkennen der rechtsprechenden Gewalt einen selbständigen autonomen Platz zu.

Die Autonomie der Gerichtsbarkeit bedeutet, dass über die rechtsprechende Kompetenz kein anderes Staatsorgan verfügt. Das Gericht darf keine Tätigkeiten ersetzen, die den Organen anderen Staatsgewalten zustehen.

Vor allem die totalitären sozialistischen Staaten übertrugen die Funktionen der Gerichte in manchen Fällen auf andere sowohl staatliche als auch nichtstaatliche Organe. Unter diese Staatsorgane gehörten z.B. die Wirtschaftsarbitrage oder das Staatliche Notariat. Zu den nichtstaatlichen Organen, auf die die Gerichtsfunktionen übertrugen wurden, gehörten in den fünfziger Jahren in der Tschechoslowakei z.B. „Aktionsdreier oder Aktionsfünfer“. In der Zeit des Widerstandes gegen den Faschismus entstanden sog. Partisanengerichte.

Auch ausgewählte arbeitsrechtliche Streitigkeiten wurden (in einigen Fällen auch obligatorisch) von den nichtsstaatlichen Organen entschieden, deren Stellung das Arbeitsgesetzbuch regelte. Von der Übertragung der Gerichtsfunktionen auf andere Organe ist jedoch die alternative Streitschlichtung zu unterscheiden. Es beutetet, dass die Prozessparteien ihren Willen in der Richtung äugern können, dass sie ihr Streit zur Schlichtung keinem Gerichtsorgan vorlegen, sondern einem Schiedsrichter, einer Schiedskommission oder einem Schiedsgericht usw.

Es ist nicht möglich zu vergessen, dass die erzieherische und präventive Tätigkeit zu den bedeutenden Aufgaben der Gerichte gehört. Die eigene Verhandlung der Sache vor dem Gericht soll erzieherisch und präventiv wirken. Diese erzieherische und präventive Wirkung der Gerichte wird durch eine konsequente Geltendmachung des Öffentlichkeitsgrundsatzes im Gerichtsverfahren ermöglicht. Es ist die Wahrheit, dass dieser Bestandteil der Gerichtsaufgaben in der Vergangenheit erheblich überschätzt wurde.

1. THE BEGINNINGS OF THE JUDICIARY

Resolution of disputes between individuals always belonged to the basic functions of the state, yet there is no doubt that disputes arose also in the pre-state period, in the clan society, and that they had to be resolved there as well. The priest, whom the tribe or clan believed to enter into relations with supernatural powers and interpret their wishes to the human world, had to be the first judge and investigator, as a result of the absolute belief of the period in supernatural powers of natural forces and their interference with people’s lives. The sentence he passed was irreversible. It was executed by the whole tribe, and the execution of the sentence was at the same time a religious sacrificial ritual to placate the personified natural powers – deities – that were offended by the crime. Out of the practices of the pre-Christian period that were supposed to call the supernatural powers into the dispute can be named the so called curses, by means of which the defendants appealed to a witness of the supernatural powers and asked them to a certain action against themselves, if what they want the others to believe is not true. People often cursed the sun, which sees everything, and the land, where everything takes place.

In the later development stages, when higher units organized according to territory began to form above the clans and patriarchal families, an arbiter, justice of peace, probably already was of some importance in the decision-making process, as his vote used to be interpreted in disputes and an award of such a “judge” could really result in prevention of the conflict or at least in aggravation of the situation of the party that opposed it. Nevertheless, it basically remained a proclamation that was not guaranteed by means of power and that had a say only owing to the support it received from the public opinion. There was no real power that could execute it by force.

Courts of justice in the proper sense can be considered to origin as late as when the supra-clan organization units began to acquire some functions of the state and transformed themselves in the course of time into a state.

Unlike the sentences of intermediaries, which were enforced only as a result of their personal authority, the state authorities were now able to execute verdicts of courts of justice regardless of the party’s will and were in a position to force them by means of physical constraint to comply with the decision of the court.

Courts, which are part of the state mechanism, have some basic conceptual features, by means of which they differ from the pre-state arbiters in disputes. As followed from the previous chapter, they are primarily organized and act in a form that is determined by the law. Another conceptual feature of the judiciary is state compulsion. In cases that are heard and adjudicated in civil proceedings, the court uses compulsion, where the persons involved did not fullfill voluntarily the court’s enforceable decision demanding performance. In criminal proceedings applies the state control by imposing punishments on perpetrators of crimes and ordering them to execute them, if the law gives the court the power of enforcement of a sentence. One of the basic features of the modern judiciary naturally is its independence from other state bodies. The judicial organization naturally distinguishes itself by its structure, which is based on the basic principles that set the judiciary apart from other state bodies.

The role of the courts therefore is in particular to decide upon rights, duties, and interests of natural persons and legal entities protected by law, unless the law provides otherwise. They are also to decide about guilt of the defendant and impose sentences, or other measures, determined by the law, examine legality of decisions made by authorities, and examine legality of other bodies.

1.1 CHINA

Ancient China indisputably has one of the most interesting histories, yet its history due to a lack of written sources still remains veiled in secrets. Unfortunately, the fragmentary information that can be obtained from the oldest records allows us to deal only with the most general features of the system of government of that time, including the judiciary. In China of that time was probably already forming a despotic state authority, which was based on land stock concentrated in the hands of the state. The king was depicted as a supernatural being, likened to god and often directly called a divine being. The civil service, a part of which were the members of the old hereditary nobility, gradually began to form. As the state expanded and became more centralized, there slowly formed a complex bureaucratic apparatus that administered the whole country in the name of the king. Around the king formed quite a large group of aristocratic civil servants, who exercised the supreme positions in the state administration.

The judiciary formed in ancient China alongside with the development of the administrative organization. The oldest written laws and oldest codifications began to appear. The aim of these laws was to guarantee unshakeable faith in the personality of the king, who became deity.

The court of last resort, represented by the person of the Lord Chief Justice, investigated only those criminal cases, for which law established death sentence. The minor court, represented by local judges, investigated all other cases. Further details about the ancient judiciary of China are not available, in particular is there no information about settlement of common pleas.

1.2 INDIA

In the ancient India arose a state with the same forms of despotism as in ancient Egypt, Assyria and Persia. Religion was fully used to consolidate authority of the king who was the head of this state. He was, just as in any other case of despotism, the Lord Chief Justice as well. The legal texts stated that a good king protects his subjects by punishing those who in any way violate the regulations. The king, accompanied by a learned Brahmin and experienced advisors and courtiers, therefore retired every day to the courtroom to settle disputes and deliver judgements. The advisors formed only an advisory board. An important position among them had puróhita, the king’s personal sacrificer, advisor and astrologer.

Younger texts already speak about the Lord Chief Justice, ministers, old men and Brahmins, who composed the King’s cortege. The king could be substituted for by a learned Brahmin, who could hold his office to the full extent. In the course of time established from this habit the function of a permanent (Lord) Chief Justice (pradvivaka, adhikrta, adhyaksha, sabhápati), whose badge was the king’s seal (mudrá). He was a Brahmin of origin. The advisory board, which he had at his hand, was formed carefully from members of the three highest castes. These advisors sometimes made a collegium of judges, which decided by means of voting. The vote of the majority of the judges was held valid.

Courts were also in the cities and villages, where the head of the village (grámaní) exercised in less severe cases jurisdiction himself. Under extraordinary circumstances, when proper courts did not work regularly, the courts of arbitration were formed ad hoc. Individual guilds of merchants, craftsmen, etc. had judicial power within the limit of their competences.

An old and popular institution of the village were, and are up to now, the panchayats, or councils of five, a team of the most respectable persons of the village, which decided about all matters of local importance.

The lawsuit had four phases: accusation, plea, hearing and judgement. Enforcement of the judgement was conferred on junior officials, with executions and violations were entrusted members of the despised caste of chandals. Self-help punishment was allowed in cases of civil injustice. Creditors were allowed to execute the punishment themselves or even use force to make the debtors pay. In the old times, a remarkable way of debt recovery in the usual way (acharita) was popular, where the creditor sat down in front of the debtor’s house and fasted until his claim was settled. If he died of starvation, the debtor was taken to court for the crime of murder.

India had besides secular courts also ecclesiastical courts (parishad), which passed decisions in the matters of caste in the cases of religious regulations and customs and traditions according to tradition.

1.3 EGYPT

Ancient Egypt is a typical example of states that are referred to as the Eastern autocracies, which formed on territories, where it was necessary to organise large irrigation systems in order to enable existence of human societies. It therefore belongs to the oldest states in the world, created as an absolute slave monarchy.

Also in Egypt was the Lord Chief Justice the King. He reserved the right to decide about all important cases. He otherwise exercised his right of Lord Chief Justice by means of other bodies.

The lowest authorities that had judicature were originally the local councils of dignitaries, called djadjat and kenbet, which were indisputably remnants of the old common councils. At the times of the Fifth dynasty was created the court of justice “ofsix palaces” as an institution that was superior to the local councils. The chairman of this institute of justice was the prime minister. From the oldest times are the senior court officials the priests of Ma’at, i.e. the goddess of Truth and Justice.

In the New Kingdom, which no longer had the court of justice “of six palaces”, decided on the lawsuits a court of justice that was again called kenbet (or kenbet sejemiu, i.e. “the court of interrogating judges”), which consisted of the “high dignitaries”.

Members of the court were divided into judges, public prosecutors, and the jury. The accused persons conducted their own defence. The public prosecutor was probably the Lord Chief Justice.

In extraordinary cases, such as conspiracy against the king, involving also high personalities from king’s immediate surroundings, in particular the members of his family, the king instituted a special secret judicial board. The history of Egypt knows two such cases. The first case happened in the Old Kingdom and dates back to the period of reign of the Sixth dynasty, when the accused was the wife of the king (in the reign of Pepi I., about year 2300 BC). The second case involved a harem conspiracy against the king Rameses III under his successor Rameses IV. What happened to Rameses III is not clear; he either became a victim of this conspiracy or died of natural causes soon after the conspiracy was uncovered. Here again was the main organizer of the conspiracy the queen.

The use of ordeals was not uncommon in the judiciary of the ancient Egypt. The most important of them was the decision of the statue of God Amon, which showed by nodding who was right. The statue was really moved by priests who followed the orders of the high priest of Amon. Ordeals were used not only in criminal cases, but also in civil cases, even in the matters of political nature. They were for example used to decide about succession of the Libyan ruler Sheshonq. The last evidence of this way of deciding “of Amon dwelling in the Siwa Oasis” was the deciding about divine origin of Alexander of Macedonia at the beginning of his reign in Egypt (333-323 BC).

1.4 M ESOPOTAMIA

The beginnings of settlements in the river basins of the Euphrates and Tigris date back approximately to the 4th millennium BC, when the Sumerians began to settle down there, followed soon afterwards by the Acadians. Soon afterwards, the first oldest cities were founded there, which were the economic and cultural centres of individual small states. There is enough information about further development of the state units on this territory. The same cannot be however said about the development of the judicature. An important item of information is that there was an improvement in the reign of Hammurabi. The judicial power was in the hands of special officials. Judicial offices were delegated to shakkanakkum and rabianum, regional judges and special courts that consisted of “the oldest and highly respectable townspeople”. The temple judges lost more and more on their importance and began to confine themselves to taking under oath testimony in front of the statue of their god in the temple. There gradually start to appear first norms of procedural law, which imposed on the judges a duty not simply to accept verified evidence, but to “investigate the case” personally.

The legal proceedings were held before the relevant tribunal. It took place under personal participation of the parties concerned (representation was perhaps possible as an exception) and under collaboration of the witnesses. The parties were obliged to support their rights or statement with evidence. As evidence were used records on clay tablets, declarations upon oath, and testimonies of witnesses.

The indisputably most famous Mesopotamian legal monument is the King Hammurabi’s Codex, carved in archaic wedge writing onto a basaltic column, which is more than 2 metres high. The Codex has three parts, the middle one of them containing a whole range of important provisions from the area of procedural law. Despite the existence of this important legal monument, the law in Mesopotamia was predominantly customary.

1.5 HITTITE EMPIRE

The Hittite Empire formed in the 2nd millennium BC on the territory of today’s Turkey, in the eastern part of the large Asia Minor plateau, in particular along the river of Halysu (today’s Kyzyl-Irmak). It underwent several development stages, which are known to include substantial differences in the organization of state authorities and thus also in the judiciary.

Slightly different was the judiciary at the times of Assyrian colonies, and we have information about other types of courts from the time of the proper Hittite Empire.

In the time of the Assyrian colonies were the legal proceedings that the Assyrians conducted between themselves and that fell within the cognizance of a court of a certain colony (bít kárim) separated from legal proceedings that were conducted between the locals and proceedings, in which at least one of the parties was a local person, and which fell within the cognizance of local native authorities. Superior instances of the colonial court (bít kárim) were the courts with officials from the city of Assur, where the parties to a case could appeal. The legal proceedings were oral and the parties were to participate in them in person.

To the period of the Hittite Empire date back preserved reports about several kinds of courts. The assembly, sometimes also called the noble councilpankus and tulija – had according to a statement made by Telipinus cognizance for offences that were perpetrated by the king, members of the royal family or members of this assembly.

The court of the ruler had cognizance always, when a crime of a freeholder was involved, for which a capital punishment was determined.

Outside the capital survived the institution of the Council of Elders, which besides other duties also had a cognizance. In areas, where the ruler appointed officials as proconsuls, were these officeholders charged also with cognizance. The governors of border territories had the same competency. They executed it either in person or through appointed town commissaries or the Council of Elders.

1.6 ISRAEL

The state of Israel has gone through various organisational stages. In the times of tribal organization was the function of judges divided between the priests and the so called elderly, heads of the tribes.

Once the kingdom was founded, the king became the Lord Chief Justice and entrusted his officials with execution of judicature.

After a religious reform, performed according to the Deuteronomistic Codex, all temples were closed down and the cult was centred in the Temple of Jerusalem. All towns appointed judges, who were members of the elder, most respectable men from the towns and villages. The elders of the town decided about local matters and had in many cases also the judicature.

We can read in the Biblical books that were written after return from the captivity of Babylon about appointment of judges, who had the power of sentencing to death, excommunication, payment of damages, and imprisonment. We have records from the Hasmonean period about the supreme court of Israel in Jerusalem. Its name was sanhedrín (from Greek syndrion – assembly, council) and it had 71 members. The powers of this supreme “assembly” comprised not only the judicature, but also legislation. Its head was the high priest and the members came all from the class of priests. In addition to this supreme synedrium, Jerusalem had also smaller courts in other towns that were called synedria and had 23 members.

1.7 A NCIENT G REECE

The ancient state of Greece went through five development stages: 1. Mycenaean Greece (approximately since 1500 – 1200 BC), 2. Homer’s Greece (1200-800 BC), 3. Early Greece (800-500 BC), 4. Classical Greece (500-338 BC), and 5. Hellenistic state (336-30 BC), a period when Greece lost its political independence and became a part of the empire of Alexander of Macedonia. The first period that was important for development of the judicature was the period of Early Greece. From the period of Homeric Greece is known that punishment for offences that the Homeric society considered as offences to the village (incest, witchcraft, etc.) was awarded spontaneously by the public crowd. The epos of Homer however already contains a depiction of a court and legal proceedings.

The period of Early Greece is a time that divides Homeric society from the period of Classical Greece. It is a transition between disappearing institutions of generic community and emerging or growing state systems. Free disposal of property was guaranteed, which brought about development of private ownership, trade and crafts. Former arbitration proceedings were replaced by courts, to the command of which the parties had to submit and the judgements of which were delivered by force of state. When reading Hesiod’s poetical work “Works and Days” (Erga kai hémerai), we learn about some features of legal proceedings of that time. Irrational elements are removed and the judges are given opportunity to decide according to their senses, experience and wisdom. Adverse features were barratry and venality of judges.

In the Greek Sparta, located on the southern part of the Peloponnese, cognizance belonged originally to the kings. However, it gradually devolved upon gerúsia and ephors. Gerúsia was a royal council of 28 citizens who had to be at least sixty years old. Its jurisdiction in the judicial area was to adjudicate crimes against the state and some capital crimes. From its jurisdiction were not excluded even the kings. The ephors – five overseers, were the most powerful constitutional and political officials in the whole state. The jurisdiction was thus distributed between the king, gerúsia and ephors. Misdemeanour was punished also by the officials who were in charge of local government.

In Athens at the time of reforms of Solon was the entire judiciary in the hands of Areopag and archonts. The archonts formed a board of ten elders that controlled Athens and were later elected each year from the eupatrids. Areopag on the other hand was an ancient assembly, an old council of noblemen, the name of which was derived from the place where it sat (on Aeropag, a hill sacred to the god Areos). It had in addition to the judiciary also legislative and administrative power. The decisions of both bodies were final. Solon instituted a new people’s court called Heliaia and introduced appellate proceedings against verdict of the archonts. People became the Lord Chief Justice. Heliaia (otherwise known as dikasterion) was a large assembly of people counting from 500 up to 1,500 or even 6,000 members. The members were appointed by lot from among all citizens regardless of their property. And so was legalized the right of all citizens to take public legal action against any crime that affected the interests of the whole municipality.

In years 490 and 480 BC succeeded Athens, which received help from other municipalities, in particular Sparta, in ending the Persian wars by victories in the Battle of Marathon and Battle of Salamina. Greek cities were already during the wars united into a naval league with the aim of freeing the Greeks of Asia Minor from Persian hegemony. The league gradually transformed into the Athenian naval empire (arché), which was the greatest attempt of Greece to form a state of the highest stage. Athens became in the middle of the 5th century BC the largest centre of economic, political and cultural life of Greece. The system of government underwent a rigorous democratization, in particular in the reigns of Ephialtes and Pericles.

In the classical period was the judiciary of the state of Athens divided between several organs. The supreme organ of state power was the Ecclesia, which shared the judiciary with Heliaia, or the state council called Boule. It can be said that the deciding judicial organ there was the Heliaia, where the judiciary was executed by the people of Athens. Gradually were formed various sections or senates, which adjudicated in different locations. These courts were called dikasterion and the public arbitrators the dikastes. Aeropagus retained a certain jurisdiction at that time as well, yet its power at this time was considerably curtailed. Its boards were the courts of ephets. The board of eleven (hoi hendeka), which consisted of ten judges and one recording secretary, had its jurisdiction as well. Their competency was both finding and supervisory over execution of a sentence. They passed judgements upon the so called foul criminals, such as thieves, robbers and abductors.

In common pleas, the citizens appealed mostly not to a court, but to an arbitrator. At the turn of the 5th – 4th century BC were introduced obligatory arbitration proceedings. All citizens who were more than 60 years old were under a threat of infamy obliged to assume the function of a state-authorised arbitrator. The parties had to await his decision. They were able to appeal against his decision to the Heliaia, which was engaged in civil proceedings only as an arbitrator.

As stated in literature dealing with the history of law, even the courts at the time of Classical Greece show a varied picture, a mixture of relics from old ages and new institutions.

1.8 ANCIENT R OME

The peak development stage of judicial organization of the Old Age was indisputably in the Ancient Rome. The Roman state went through the following three development stages: kingdom, republic, and empire. The society of the oldest period (8th-6th century BC) was organized according to the principles of ancestral establishment. The basic unit was the clan (gens). In its head was an elected elder (princeps gentis), whose function developed into the function of a king. Although we have very little reliable items of information about this period, there is no doubt that it was him who participated chiefly in settlement of disputes that were of particular importance for the whole city. His role in the private disputes was to examine that the parties observed the allowed forms. A qualitatively new situation occurred at the time, when the king already began to act as a state organ, and could enforce respect for his decision by force.

Reforms of the last but one King of the ancient Rome Servius Tullius were the basis for creation of the next development stage of the Roman state, the Roman Republic. Two consuls were originally the holders of the judiciary under the Roman Republic. They were elected by the Centuriate Assembly. Under extraordinary circumstances was one of the consuls upon proposal of the Senate appointed dictator with absolute power.

Frequent absence of the consuls in Rome however caused a whole range of problems, apart from other things also in the judicature. That is why the office of an urban praetor (praetor urbanus) was created in year 367 BC, as a special organ for judicial administration and exercise of cognizance. Besides the praetor could exercise cognizance in the matters of the market also the curule aediles. However, only magistrates of the same or a higher level, and spokesmen from the people were allowed to challenge individual measures of the court magistrates. A new function of foreign praetor (praetor peregrinus) was created in the middle of the 3rd century BC, in order to help the urban praetor. He was to exercise cognizance in disputes between foreigners, or between foreigners and Roman citizens. The praetor delegated their representatives (praefecti iure dicundo) to conquered territories.

To deal with political torts, the Senate established since the 3rd century BC special criminal courts (quaestiones extraordinariae) when necessary and since the 2nd century BC standing courts (quaestiones perpetuae). Urban criminality of lower classes, in particular the slaves, was fought by the tresviri capitales.

The courts in the country had their centres in cities, where judicial prefects were sent at first (approximately since the middle of the 4th century). It was only at the end of the republic that standing bodies in form of duumvires or quatuorvires were instituted also in the cities. In the provinces judged the governors (proconsuls, praesides), sometimes in person, sometimes represented by minor officials (quaestores, legati iuridici).

The supreme cognizance in the period of the Roman Empire had the emperor, who however usually delegated the cognizance to his officials, in particular the praetors, praefects, former consuls, and other officials. These delegated judges took over all judicial power in the Dominate. Regular judge of the first tribunal (iudex ordinarius) was the proconsul of the province, or in special cases the vicarius or praefectus praetorio. In capital cities was the regular judge the praefectus urbi. The emperor judged only as an exception as the supreme instance (appellatio), upon request of his officials or the subjects. He relied on his consistorium. Legal proceedings at that time were very slow, the judges were corrupt and without sufficient knowledge of law.

2. LEGAL SYSTEM IN THE MIDDLE AGES

2. L EGAL SYSTEM IN THE M IDDLE A GES

2.1 G ENERAL CHARACTERISTIC

Although judicial development during the Middle Ages had its specific features in each state, it is due to some common features in the development of law possible to identify also a whole range of common features in the judicial organization.

The first common feature of the medieval judicial system was its connection with public and feudal administration. Put in a little simplified way, each of the more important administration officials had a certain jurisdiction. It is only the period of absolutism that brings gradual separation of judiciary from public administration.

With regard to legal particularism, which was the basic feature of the medieval system of law in all European states, another common feature of the medieval judicial system is its fragmentation caused by fragmentation of the system of law. We can therefore from this point of view distinguish between courts for the nobility, bourgeoisie, church and subjects. Each of these social groups had its laws and therefore also its own courts.

Further division of the medieval judicial system is according to whose interests the appropriate courts defended. The division in this respect to a certain extent overlaps with the previous division. We distinguish between royal courts, which defended in particular the interests of the royal treasury, and professional courts, the most important of which were the manor courts. Urban and church judicature had its own organization. Trials against subjects rested with the feudal.

Another common feature of the medieval judicial system was the fact that courts were for a long period of time unprofessional from the current point of view. It is in particular at the time of absolutism that bureaucratization and professionalisation of the judicial system take place.

A crucial period, when the medieval judicial organization started to dissolve, was no sooner than during absolutism. It is a period, during which the judicial system not only becomes professional, as was already mentioned above, but also when there gradually forms a hierarchy of courts, which brought in its train the possibility of appealing against decisions of inferior courts. Each state however had its specifics originating from its different development of constitutional law, development of the system of law, but also for example also was a result of smaller or larger influence of the Roman law. We will therefore have a look at the basic features of development of the court structure in dominant European states.

2.2 BYZANTINE E MPIRE

The Roman Emperor Diocletian divided the Roman Empire into eastern and western part in 284. Constantine the Great founded in the East a new capital called Constantinople in 330. A new state known under the name of Byzantine Empire was formed. The state power has a pyramid structure, with the ruler – emperor who was since the 7th century called the Greek basileus - at the top. In the same manner as the public administration was centralised also the judicial system. The emperor was a titular chairman of the Supreme Court. He was however often substituted for in the proceedings by a legal expert. It tried severe criminal offences, in particular those aimed against national security, and also had jurisdiction of an appeal court. It was sometimes consolidated with another high court of justice, the quaestor’s court. It was staffed with senators, analogously to the so called Hippodrome Court (velum court). The courts sat in senates and about their verdicts decided members’ voting.

The first major reform of the judicial system caused formation of the court of civil lawsuits, which on the one hand heard its own, that is civil, trials and on the other hand prepared material for proceedings held in front of high courts of justice,

There was another reform of the judicial system in the 13th century, which was accompanied by introduction of various supervisory bodies, consisting of both laymen and clergymen, such as the body called General Roman judges. Further “controlling commissions”, called Local municipal judges, were established to supervise provincial courts.

2.3 FRANKISH EMPIRE

The most important of the Germanic states that were created on the territory of the Roman Empire was the Frankish state. Founded by the tribe of Franks, the Frankish Empire was a monarchy, which had a king as its head. He was also the Lord Chief Justice. The whole judicial structure was a follow-up of generic institutions. During the first period the ordinary court was the century court, the head of which was an elective judge called Thunginus, who appointed his associate judges called Rachinburgii to help him with searching for justice.

In the middle of the 6th century the chair at court passed to an Earl, and people’s court transformed into a royal court. The century court remained, but dealt only with causae minores, whereas causae maiores were under the jurisdiction of the Earl’s court. Important changes occurred under the reign of Charles the Great, who cancelled the duty of participation in courts and replaced the Rachinburgii with permanent associate judges (Scabini), who were appointed by the king, his messenger or the Earl.

The royal court had general jurisdiction on the one hand, i.e. it could decide about everything, and it was exclusive in some affairs. It was chaired by the king or his deputy the majordomo, later by the palace Earl. That was the first step towards creating an independent palatinum court.

2.4 FRANCE

If we want to outline the development of the French judicial system, we have to follow separately its development before and after the Great French Revolution. Until the revolution we can talk about a typical mediaeval judicial organization. At the beginning, when the central power was weak, the judicature was executed by individual feudal lords, who obtained jurisdiction in connection with granting of immunities. Feudal judicature was gradually limited in favour of royal courts, which were represented by the royal officials called prevots, or baillis. Since the 13th century they began to appoint special deputies for legal affairs.

Depending on emphasizing of royal courts increased the demand for creating a special royal judicial organ. This was achieved by separation of the Parisian parliament from the royal court in the 13th century. In the period of further consolidation of royal power the parliaments were established gradually also in the provinces.

The position of royal courts was definitely consolidated at the period absolutism. Royal power besides that controlled also municipal, feudal and church judicature.

A turning point in organization of the judicature was brought by the Great French Revolution and the events that followed. Judicature began to be perceived as an important institution that has to be separated from public administration and lawmaking power. The development of judicial reforms since 1789 had several stages. The first stage lasted from 1790-1791. The jurisdiction began to divide consequently into civil, commercial and criminal jurisdiction. Judges were usually elected, in criminal jurisdiction operated juries. There began to appear a basis for administrative jurisdiction.

The following period was also in the area of jurisdiction to a great extent affected by the political development. Jacobin terror brought in its train also political abuse, in particular of criminal jurisdiction. In 1793 was established a special criminal court, which was speedily renamed to revolutionary tribunal. It judged without attorneys and even without witnesses. Death penalty was the only type of punishment this court knew.

The Jacobin terror ended in 1794 a new constitution was issued. Thermidorian constitution introduced civic, penitentiary and criminal courts. Eligibility of judges was to a large extent preserved, and there was a considerable increase in the importance of justices of peace, both in criminal and civil lawsuits. The juries also continued in their operation.

The definitive shape of the French judicature was brought by judicial reforms of 1800­1801. In the area of civil jurisdiction served justices of peace, civil courts of first instance and appellate courts. Criminal jurisdiction consisted of justices of peace, penitentiary courts and criminal courts. There still existed the juries.

It is necessary to enlarge upon assize courts. These courts were created on the pattern of the English assize courts, yet they dealt only with criminal cases. There were two boards created according to the original amendment, administered by the Act of 1791: accusatory jury, which carried out an investigation and brought a case before the court, and trial jury, which was in charge of deciding about fault. The accusatory jury was dissolved under Napoleon after issue of the Code of Criminal Procedure of 1808 and was replaced by accusatory chamber. Until 1941 members of the jury (there were 12 of them) decided separately upon guilt and a bench of professional judges consisting of three members inflicted the punishment. The Act of 25th November 1941 brought a change by stating that both the members of the jury and professional judges are to decide about guilt and punishment together. This modification became also part of the Code of Criminal Procedure of 1959, which was issued after enforcement of the new constitution of the fifth French Republic by General de Gaul.

The supreme judicial institution was the Court of Cassation (Cour de Cassation), which dealt with both criminal cases and civil cases. Administrative judicature was represented by Prefecture Councils, from which it was possible to appeal to the Council of State.

2.5 GERMANY

The medieval German state, to be found in the references since the beginning of the 10th century under the name Regnum Teutonicum, was created during the decline of the Frankish Empire. Its further development is connected with enforcement of the idea of a Holy Roman Empire, which originated from medieval conceptions of a continuity of the irrevocable ancient Roman Empire and its transfer to the following states. The Holy Roman Empire was an inhomogeneous conglomerate of states and mini-states of various types and importance, and of both municipal and church nature. The importance of central power changed significantly in the course of individual stages of development of the Empire. The central power was weakened in particular in the later periods, when the power of local feudal lords increased. Decentralization of power became in the end a permanent cause of Germany lagging in its development behind the states of Western Europe. That is why it is very difficult to deal in a more complex way about the development of the judicature on German territory, individual parts of which were very inhomogeneous.

Put in a slightly simplified way, it is necessary to distinguish between central (royal) judicature and local judicature of individual feudal lords, or more precisely imperial nobility, on the German territory.

The most important central court was the royal court, which was by means of a reform of Maximilian transformed into the Imperial Chamber Court. In its operation were to be involved both aristocrats and the King. The court started to operate in October 1495 in Frankfurt am Main. It was composed of 16 judges who were appointed by the Emperor on the motion of all aristocrats. Its main duty was to prosecute violations of municipal peace and it was at the same time the supreme instance court in civil cases.

Typical of the development of the Empire in particular after the Thirty Year War was the fact that imperial laws were limited to a minimum and were based only upon formal continuation of feudal relationships. Individual members of the municipal nobility started to concentrate in their hands all power and were among others the high judicial instance. The Courtly or Chamber Courts were created more or less after the fashion of the Imperial Chamber Court. Where the municipal nobleman had at the same time the privilege “de non appellando” were established as the Supreme Court instances the supreme appellate courts or tribunals.

The administration in towns was entrusted to town councils. State domains were administered by a municipal official (Amtsmann), who executed judicial power and police power at the same time. Patrimonial judicature still existed in noble manors.

2.6 ENGLAND

The development of judicial organization in England had certain specific features, which were caused by particularities in its constitutional development. English judicature was already as far back as in the 11th-12th century divided into inferior and superior. Among inferior courts belonged century courts and county courts, which heard lawsuits and criminal offences of freemen from the relevant territory. Affairs of subjects were heard by the feudal court of the lord, the chair of which was either the lord himself or his mandatory. Suits on land and other disputes between feudal lords belonged under the jurisdiction of a county court, which was chaired by a justice itinerant. The sheriff also had certain own jurisdiction in the county. Into the category of superior courts belonged royal courts. The Royal Council (Curia Regis) originally had jurisdiction, yet its jurisdiction was rather limited by establishment of the Court of the Chamber of Exchequer Table. Half of its members were lawyers. This court followed the king on all of his journeys. Another central court, the Court of Common Pleas, was established owing to his occasional absence from Westminster. The Court of King’s Bench was created later.

The sovereign also had jurisdiction, which he exercised in form of summary jurisdiction. When criminal offences against the state were involved, he delivered judgments against which it was impossible to appeal.

Under the reign of Henry I. were formed itinerary justices, which under the command of itinerary judges resolved disputes in various parts of England, which they visited four times a year. In lawsuits held in front of them was used the jury, which is why people began to call them assize courts. The original conception of these courts was that they were a body of men who have sworn to bring to court all people from their district who were considered to have committed a crime.

A special position had the church courts. Their jurisdiction applied to all clergymen and they judged according to the canon law.

The first English university was established in 1163 in Oxford, where they also established university court for members of the university, both the teachers and students.

A reform of Henry II. increased the jurisdiction of royal courts. All free citizens could from then on submit their common pleas to a royal court on payment of a certain fee. The royal court was also competent for the most severe criminal cases. Local county or century courts under the command of an itinerary judge in fact became a branch office of the royal court.

A more significant change in the organization of judicature occurred in the period of aristocratic monarchy since the beginning of the 14th century. It was in particular introduction of the institution of Justices of Peace, whom the king appointed from among the wealthiest aristocrats. The Justice of Peace in co-operation with the grand jury held preliminary hearings and pronounced judgments on committing the case to trial. The case could either be submitted to the Quarter Session or itinerary justice. The Quarter Session consisted of a Justice of Peace and a petty jury.

Since the 14th century began to develop in England courts that passed judgment on the basis of rules of equity. It was in particular the Court of Chancery, also called the Court of Equity.

During the period of aristocratic monarchy in England were laid the foundations of parliament. In the second half of the 14th century was the House of Lords granted authorization to pass judgment on torts that were committed by its members (peers, pairs). It was the supreme instance, when political criminal offences were involved. It also served as a court for members of both Houses of Parliament, when a charge was made in the House of Commons.

Further changes in organization of the judicature took place in the period of absolutism. The position of Justices of Peace changed and they became also administration officials. In this period were also formed two superior courts. It was in particular the Star Chamber, which separated itself from the Privy Council. It was an exceptional royal administrative tribunal that was in charge of hearing political criminal offences, such as riot, unlawful assembly, etc. The second exceptional tribunal was after formation of the Church of England the High Committee, which in addition to administrative functions concerning the Church also had the jurisdiction to judge criminal offences against faith. Although the Petition of Right demanded in 1628 dissolution of both exceptional courts, they were actually dissolved only by the Great Remonstrance in 1641.

If we do not take into consideration the changes in jurisdiction of church courts from the 17th century and enforcement of the principle of irremovability of judges, which was definitely legislated in 1701 by the Act of Settlement in the course of the 17th and 18th century, there were no significant changes in judicial organization in England.

Stabilisation of the English legal system occurred only during the 19th century. In 1825 was issued an Act regulating selection of the members of the jury. In 1846 was modified the system of inferior courts. The basis of judicial organization became a new type of court called the County Court. There were formed altogether 406 judicial districts.

The development of the English jurisdiction was to a certain extent completed in years 1873-1875, when the Judicature Acts were issued. The superior courts were thus united, forming a single supreme court, which was seated in London and was called the Supreme Court of Judicature. Internally it was divided into the High Court of Justice, which functioned as the court of first instance and as appellate court for inferior courts. It had three divisions: The King’s-Queen’s-Bench Division, where disputes in contradictory lawsuits were resolved that originated from liabilities, contracts, and civil duties, the Chancery Division, which judged written and inquisition lawsuits concerning property of land, trusts, commercial companies, bankruptcy, etc. The final division was The Probate, Divorce and Admirality Division, which focused as the name implies, on various issues.

This system remained basically up to the present day. Appeals against decisions of individual divisions were to be submitted to the Court of Appeal, which is part of the Supreme Court of Judicature. An exceptional remedy against decisions of the Court of Appeal was to protest in front of the House of Lords. In such cases decided a senate consisting of three Law-Lords, i.e. judges created lords not hereditary lords. It was possible to appeal at the House of Lords also against decision of the Supreme Court of Judicature.

In Durham and Lancaster were preserved also superior courts with the same jurisdiction as the Chancery Division. Instead of the itinerary assize court was in London in 1834 established a permanent central criminal court (Old Bailey), belonging to the King’s Bench Division. In 1907 was at the King’s Bench Division established the Court of Criminal Appeal.

As we will see later, the judicial organization that was formed in the 19th century was the basis for the current state of English judicature.

2.7 ITALY

Development of Italy from the 5th until the 19th century was very difficult, as its territory was highly differentiated. That is why it is not possible to talk either about development of a unified state or about development of a state apparatus and judicature. We will therefore highlight only briefly the most important legal institutions that were formed on this territory in the course of development.

Here it is possible to talk in particular about the judicature of municipal communes, which was divided into civil and criminal offence judicature. It was possible to appeal against decisions of these courts to the Emperor or his deputy. Appellate judicature however became the jurisdiction of individual towns as well in the 13th century, which was subsequently legalized also by the Emperor. Appeals in criminal offences were originally dealt with by the General Assembly or Great Council. Special appellate tribunals (tribunali della apelazioni) were formed later for this purpose.

The guilds executed internal judicature itself over their members. Guild courts dissolved minor criminal cases and affairs related to production. Naval courts, which dissolved crimes related to sailing and naval trade, operated in seaport towns on a similar principle. These courts developed in the course of time into State commercial courts. Those Italian tows that owned colonies located outside the territory of the Apennine peninsula administered these by means of consular courts, which obeyed legislation of the mother town.

The history of judicature of the United States of America is not by far as complex as that of the European states. American structure of judicature is in addition to that relatively stable, unaltered since codification of the American constitutional system. The USA has not besides that undergone a medieval stage and we can therefore talk only about formation of the modern court structure.

It is necessary to distinguish in the USA between both federal judicature and judicature in individual states.

Federal judicature was formed as a three-level model: District Courts, Circuit Courts and the Supreme Court of the United States.

A specific position in the USA traditionally has the Supreme Court, which is organically incorporated into the whole system of supreme federal bodies. It originally had six members, but the number of members increased during the 19th century to 9. It consists of a Chief Justice and Associate Justices. Members of the Supreme Court are appointed by the President with the approval of the senate. They continue to serve “as long as they deserve it”, which means that they are practically irrevocable.

In individual states was also built a multi-level system. The lowest tribunals are the Justices of Peace. Their jurisdiction includes minor misdemeanors and disputes over less money. The superior tribunals are the District Courts and Circuit Courts of Appeal. The supreme tribunal in each state is the Supreme Court.

There is no unified way of constituting judges, as it differs from state to state. They are elected in most of the states, and only in some states appointed by the Governor or a lawmaking body. Similarly differs also their term of office. In some states they are constituted for life, in others only for a certain number of years.

3. THE CURRENT ORGANIZATION OF THE JUDICIAL SYSTEM OF SELECTED COUNTRIES

3.1 ENGLAND

Organization of the judicial system in England is based on historical facts, although it has undergone some fundamental changes in this century, even during the last twenty-five years.

Courts in England are traditionally divided into ordinary courts and special courts.

General courts are inferior courts and superior courts. The inferior courts are petty sessions and county courts.

The Petty sessions, sometimes also referred to as magistrate‘s courts or police courts (in London urban magistrate courts), are established for a certain part of the county or for a city and its district. They try in particular criminal cases, yet they adjudicate only on less serious offences. They also to a smaller extent try civil cases, in particular domestic affairs, except for divorces, paternity suits and some minor labour and property disputes. They decide in the so called summary proceedings, i.e. simpler proceedings without the presence of judges.

The County Courts try only as courts of first instance civil cases, where the real value does not exceed a certain sum of money. They may also try less complicated divorces.

The superior courts operating in England are the Crown Court and the Supreme Court.

The Crown Court was established by the Courts Act 1971 on 1st January 1972. The same act also abolished the Crown Courts in Liverpool and Manchester, assize courts, the Central Criminal Court of London and quarter sessions[1].

The Crown Court does not have a permanent seat, but it can try and adjudicate on entrusted cases at any location in England and Wales.

Most of the agenda of the Crown Courts are criminal cases, and it also took over the civil case agenda from the quarterly sessions.

Parts of the Supreme Court are the High Court and the Court of Appeal.

The High Court is internally divided, in the same manner as in the past, into three divisions: Queen s Bench Division, Chancery Division, and Family Division.

The courts of quarter sessions were traditional courts established in each county, or in larger cities. They adjudicated as courts of first instance on criminal and civil cases. They adjudicated as courts of second instance on appeals against the decisions of the Petty sessions.

The Central Criminal Court of London was organizationally a part of the High Court of Justice.

The Queen’s Bench Division is a division with the broadest scope of agenda. It adjudicates on both civil and criminal cases, both as first and second instance.

The Chancery Division adjudicates on most civil cases of first instance, and in some cases also as second instance.

The Family Division tries as the court of both first and second instance. It adjudicates on matrimonial cases and cases related to children as a court of first instance. It adjudicates on appeals against the judgement of the Petty sessions and County Courts as a court of second instance.

The Court of Appeal also has two divisions – civil and criminal divisions.

Its civil division adjudicates on appeals filed against decisions of the High Court and County Court.

Its criminal division adjudicates on appeals against the judgement of the Crown Court.

A historically important role in the English judicial system plays the House of Lords (Appellate Committee) , because it is competent to review decisions of the High Court and the Court of Appeal, yet only with their permission. The House of Lords however tries also as court of first instance, namely cases of breach of parliamentary benefits, such as demonstrations of disrespect towards the House of Lords, and crimes committed within the building of the House of Lords.

For the execution of judicature of the House of Lords are according to the legal regulation of 1868 (Administration of Justice Act 1968) responsible the Lord Chancellor and other eleven Law Lords, or Lords of Appeal in Ordinary. Other members of the House of Lords may nevertheless participate in the decision-making process, if they held or hold important judicial functions. In order for a decision to be valid, there need to be at least three for it authorized members of the House of Lords present at the proceedings. The House of Parliament was originally bound by its own decisions, yet it may since 1966 depart from its own judicial precedents, if it considers it as necessary for the development of law.

3.2 THE UNITED STATES OF AMERICA

If we want to describe the current organization of the American judicial system, we more or less have to repeat, what has already been said in the chapter devoted to the history of judicature.

In the USA operate federal courts on the one hand, and courts of individual states on the other hand.

Federal courts are further divided into general and special courts. General federal courts are the District Courts, Circuit Courts of Appeal and Supreme Court.

The District Courts are only courts of first instance with the broadest subject-matter venue. They adjudicate as first instance on all cases that fall within the jurisdiction of federal courts, unless they fall according to special regulations within the jurisdiction of other federal courts.

The Circuit Courts of Appeals review as courts of second instance decisions of district courts, some special federal courts and some bodies of administration. They do not act as courts of first instance.

The Supreme Court acts as a court of the first instance and as a supervisory body for inferior federal courts or individual state courts.

The Supreme Court acts in the function of court of first and at the same time last instance exclusively as a body that settles disputes between individual states, disputes, in which the defendants are ambassadors or other official representatives of foreign countries, or their families. It may also adjudicate as first instance on disputes between the USA and individual countries, disputes of individual countries against citizens of another state or against aliens.

Within its supervisory activities, the Supreme Court reviews decisions of inferior general federal courts, some special federal courts and supreme courts of individual states.

The seat of the Supreme Court is in Washington and it consists of a Chief Justice and eight members (Associate Justices).

Out of the special federal courts, we can highlight on the one hand the Court of Claims, the judicature of which comprises in particular decisions about proprietary claims that are exercised against the Congress or the government of the USA and arise from the provisions of the U.S. Constitution and other federal laws, from resolutions of the ministries or from contracts that were entered into with the government of the USA, and about claims against the state for compensation, etc. Another court that belongs to special courts is the customs court, which adjudicates in particular on cases of custom fees. The last one belonging to special courts is the tax court.

Organization of the judicial system of individual states is not uniform; nevertheless it is possible to find some common features.

The minor components of the legal system of individual states are the Justices of the Peace, founded in particular in the country. These courts are called Magistrate’s Courts, police courts or Municipal Courts in the cities. Outside cities, they are also referred to as Minor Courts. They adjudicate only on less serious criminal cases, matrimonial cases and proprietary cases of lower value.

The basic courts of first instance have different names in different states – County Courts, District Courts or Superior Courts. In New York, courts of this instance are referred to as Supreme Courts. They adjudicate on most criminal and civil cases, usually in participation of the members of the jury.

In some states, we can see also other components, the courts of appeal, which are in the hierarchy situated between the courts of first instance and the Supreme Court.

The supreme degree of jurisdiction within each state is the Supreme Court, which as a court of first instance adjudicates on some especially serious criminal and civil cases. Its decision is not appealable, yet there is one exception: if its decision resolved a question of federal importance, it may be reviewed by the Supreme Federal Court.

Besides these general courts exists in many countries a wide range of further courts with a special focus. These are for example the Family Courts, Juvenile Courts, Probate Courts etc.

Both federal and state courts have juries, and a distinction is made between grand and petty jury.

The Grand Jury deals only with criminal proceedings and its function is to decide about prosecution. The number of members of the Grand Jury varies from 6 to 24.

The Petty Jury adjudicates on criminal and civil cases. There are usually twelve members of the jury sitting in the Petty Jury, yet this number is smaller in some states and so it sometimes has only three members.

Important places in the operation of both federal courts and courts of individual states have office workers, who perform some important acts. They are called US commissioners at the federal district courts and work in the area of criminal proceedings. It is furthermore the marshal, who is in charge of execution of judgements, court orders, warrants, etc. The same function at the courts of individual states has the sheriff. This office worker is called constable at the justices of the peace or courts that are equal to them. Last but not least, it is the clerk, who can be found at both federal and state courts and who performs some procedural acts as well.

3.3 FRANCE

Decisive changes in the organization of French administration of justice were made at the end of the fifties, when some relics, the origins of which dated back to the period of the French revolution, were abolished. This was related to the adoption of Constitution of the fifth French Republic.

French courts are divided into general and special courts.

Among general courts belong courts of first instance, courts of first instance presided over by a body of judges, assize courts, courts of appeal and the Supreme Court.

The courts of first instance (les tribunaux d’instance) decide within criminal jurisdiction about offences, i.e. unlawful conducts, on which the law imposes imprisonment of up to 2 months or a financial fine of up to a certain amount. If these courts try criminal cases, they are referred to as police courts (les tribunaux de police). In Paris, Lyon and Marseille were established specialised courts of first instance that adjudicate only on criminal cases.

Their scope of activity includes also some property cases, if the value of the matter in dispute does not exceed a certain amount determined by law. However, they act also in some administrative cases.

In courts of the first instance always decides a single judge.

The courts of first instance presided over by a body of judges (les tribunaux de grande instance) adjudicate on criminal cases of greater importance than the courts of first instance. They have the broadest scope of activity in civil cases, because they adjudicate on all cases that are not by a legal regulation entrusted to another court.

The courts of first instance presided over by a body of judges always decide in three-member bodies consisting only of professional judges. At courts that have more than five judges were formed chambers, which are further divided into sections at especially large courts.

Each court of first instance presided over by a body of judges has at least one investigating judge, which is appointed out of the judges of first instance for a period of three years.

France has already since the time of French revolution had assize courts (for further information see chapter on history of the French judicial system). As was already mentioned earlier, French assize courts operate only as criminal courts and adjudicate on all crimes, with the exception of those that can be adjudicated on exclusively by the military courts or national security court. The accusation is prepared by the accusation chamber of the relevant court of appeal. The head of the accusation chamber is its chairman. Individual cases are adjudicated on by the chamber in a three-member body composed of professional judges. Some cases are adjudicated on by a five-member body. The chairman and members of the accusation chamber are appointed for a year on a plenary meeting of all judges of the court of appeal.

The French assize courts operate in each department, either at the seat of the court of appeal, if one court of appeal has its seat in the district of the department, or at the seat of the department. There may however be exceptions to this rule.

The assize courts are composed of three professional judges (la cour) and nine members of the jury (le jury). They are always presided over by a professional judge, who is appointed by the first chairman of the court of appeal out of the judges of the court of appeal. The remaining judges are appointed also by the first chairman of the court of appeal, either out of the judges of the court of appeal or out of the judges of the courts of first instance presided over by a body of judges. Decisions of the assize courts are definitive and may be challenged in court only by a nullity complaint.

The Courts of appeal (les cours d’appel) act only as courts of second instance. They hear appeals against decisions of courts of first instance, courts of first instance presided over by a body of judges and special courts. They are thus the only court of second instance in the system of French courts.

The courts of appeal are internally divided into chambers (criminal, civil, commercial, etc.).

The Supreme Court (le cour de cassation) always acts only as a court of appeal. It adjudicates only on exceptional appeals filed against the decisions of general and some special courts.

It is possible to file two exceptional appeals at the Supreme Court: a nullity complaint and a nullity complaint in the interests of law.

The Supreme Court has six chambers, one for criminal cases and five for civil cases. Other deciding bodies are joint commissions and plenary meetings.

There is a whole range of special courts within the French judicial system. Some of them hear exclusively criminal cases, others on the other hand exclusively civil cases.

Courts that deal exclusively with criminal cases as first instance are juvenile judges, juvenile courts and juvenile assize court.

The juvenile judge is in charge of investigating crimes of juveniles and is in authority of deciding about some more serious offences.

The juvenile court is authorized to adjudicate on the same cases as the juvenile judge, yet it may impose not only educational measures, but also sentences. It adjudicates in a three-member board composed of the juvenile judge and two associate judges.

The juvenile assize court adjudicates on crimes committed by juveniles aged 16 – 18 years, unless they fall within the authority of the national security court.

The court of second instance for criminal cases of juvenile persons is the court of appeal.

We will mention out of the other courts that deal exclusively with criminal cases the courts of the merchant navy, which were established by the decree of 29th July 1939. They adjudicate on some offences concerning merchant shipping. They decide in five-member senates composed of four professionals in sea navigation, one of which is the chairman, and of one professional judge.

Another one is the national security court, the jurisdiction of which relates to the whole territory of the state. In peacetime, it adjudicates on crimes and offences against national security and on related crimes and offences, etc. This court has two permanent chambers, one for decision-making and one for supervision over investigation of crimes that fall within the authority of the national security court. Besides that may be established also temporary chambers. The decision chamber has five members. It is presided over by the first presiding judge and the other members are four counsellors. The chamber that performs supervision over investigation has three members and is composed of professional judges.

Military courts have a special position within the French system of courts. They include:

The permanent courts of armed forces (les tribunaux permanents des forces armées) adjudicate on military criminal cases according to the relevant code in peacetime. When there is a war, they have the same authority as the army military courts.

The permanent high court of armed forces (l’haut tribunal permanent des forces armées) adjudicates on criminal cases of marshals, admirals, general staff officers, officers who are equal to them, and members of the military inspection corps.

The army military courts (les tribunaux militaires aux armées) may be established in peace time only at those military corps that are located or operate outside the territory of the Republic of France. They may be established within the territory of France when there is a war, and also in a situation, where relations with the government are broken due to internal or external aggression and last but not least in case of absolute necessity based on authorization from the Minister of National Defence.

Besides that may the local police force establish courts called prévotal courts (les tribunaux prévotaux).

A completely specific position within the French judicial system has the High Court of Justice, whose authorities are anchored in the constitution. It is authorised to judge the president of the republic, if he committed treason, and adjudicate the members of the government on crimes and offences committed during the performance of their functions. It has 24 members, one half of which is elected by the National Assembly out of the members of parliament, and the second half by the senate out of its members. The investigation is performed by a special investigatory board, which consists of five judges of the Supreme Court.

Among special civil courts belong industrial courts, commercial courts, agricultural rent tribunals, and social security courts.

The industrial courts (les conseils de prud’homes) perform arbitration and, when the attempts at settlement fail, resolve disputes arising from the labour contracts and contracts of apprenticeship between the employers or their representatives and the workers, or apprentices. They have exclusive jurisdiction over these cases. Out of that follows also their structure. They consist of an arbitration department and a judicial department. The arbitration proceedings are held in front of a two-member board (one representative of the employees and one representative of the employers). The judicial proceedings are held in front of a four-member board consisting of representatives of the employees and employers equally represented.

The commercial courts (les tribunaux de commerce) resolve disputes arising from commercial agreements. They were established at seats of some courts of first instance presided over by a body of judges. They sit in three-member senates composed of people who have the position of businessmen who exercise the judicature as an honorary function.

The agricultural rent tribunals (les tribunaux paritaires des baux ruraux) are established at each seat of the court of first instance and they resolve disputes between the landlords and tenants. They sit in five-member senates with a chairman, who is a professional judge, and four associate judges, two of which are representatives of the landlord and two representatives of the tenant.

The social security courts (les contentieux générale de la sécurité sociale) resolve disputes that arise during application of social security regulations.

Administrative courts act in the sphere of administrative law. They are authorised to review lawfulness of administrative acts. The local administrative courts (les tribunaux administratif réginaux) adjudicate on complaints filed against the decisions of bodies of the departments, inferior administrative authorities, and public institutions. It is possible to file an appeal against their judgement at the Council of State (le conseil d’État).

3.4 GERMANY

The German judicial system is considerably complex. Besides ordinary courts act courts specialised in industrial, administrative, social and financial cases.

The system of ordinary courts consists of local courts, regional courts, high regional courts and the Federal Court of Justice.

The local courts adjudicate as the first instances on both criminal and civil cases. All civil cases are adjudicated on by a single professional judge (the local court judge). Criminal cases are adjudicated on either by a single professional judge or by the local court as lay court in a body composed of the local court judge and two lay judges.

The regional courts act as courts of both first and second instance. They work on principle in boards called chambers. Usually are established civil, commercial, criminal and juvenile chambers. They are composed of professional and lay judges.

The high regional courts act as courts of first, second and sometimes even last instance. They adjudicate as courts of first instance only on criminal offences that otherwise fall within the authority of the Federal Court of Justice, the prosecution of which was passed by the Attorney General on the regional public prosecutor, or which the Federal Court of Justice submitted to the high regional court. They adjudicate as courts of second instance on legal appeals filed in civil cases against the decisions of the regional courts as courts of first instance. They act in criminal cases as courts of second instance in adjudicating on some complaints filed against the decisions of criminal chambers of the regional courts. They however act also as last instance courts, when they adjudicate on revision filed against the appellate decisions of the small and grand criminal chamber. The high regional courts adjudicate in panels, which have five members for decisions as first instance and three members in other cases. They consist only of professional judges.

The supreme regional courts adjudicate on revision submissions in civil cases that otherwise fall within the authority of the Federal Court of Justice. They adjudicate in panels consisting only of professional judges.

At the top of the pyramid of ordinary courts stands the Federal Court of Justice. It acts as court of first (and at the same time last) instance in some especially serious political crimes on the one hand, and on the other hand performs supervision over decisions of inferior courts.

Resolution of disputes concerning labour law belongs within the scope of labour jurisdiction. Its basic parts are the labour courts, which adjudicate as first instance on disputes concerning labour law. Appeals against decisions of the labour courts are heard by the regional labour courts, which act only as courts of second instance. As last instance court that revises decisions of regional labour courts acts the Federal Labour Court. On all levels applies the principle of joint decision-making. Labour and regional labour courts adjudicate in chambers that are composed of a professional judge and two associate judges called labour judges, or regional labour judges. One of them comes from the workers; the other one is a representative of the employer. The Federal Labour Court adjudicates in five-member panels, consisting of three federal judges and two associate judges.

Administrative jurisdiction also has three levels. The system comprises administrative courts and higher administrative courts, which act on the territory of individual states. Jurisdiction over the whole territory of the FRG has the Federal Administrative Court. This will be treated in more detail in the chapter on administrative jurisdiction.

Finance courts are specialized administrative courts. Within their authority falls resolution of disputes concerning benefits and other disputes given explicitly into the jurisdiction of finance courts. Jurisdiction in financial cases is performed by the finance courts and the Federal Finance Court.

As specialized administrative courts may be considered also the social courts, which resolve disputes concerning social security, unemployment insurance, and provision for victims of war. They also resolve disputes between doctors and health insurance companies. The system of social courts consists of social courts, regional social courts, and the Federal Social Court.

It was due to considerable complexity of the German judicial system necessary to provide for consolidation of jurisdiction. For this purpose was established the Joint Panel of the highest Federal courts, which is composed of presiding judges of all five federal courts, of chairmen of the panels of judges involved, and of other professional judges. The legal opinion held by the Federal panel is legally binding for the panel that adjudicates on the case.

[...]


[1] The courts in Liverpool and Manchester were established in 1956 as a result of a rise in crime rate in larger cities.

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Title
History and Present of Judiciary
Authors
Year
2009
Pages
144
Catalog Number
V128055
ISBN (eBook)
9783640341221
ISBN (Book)
9783640337859
File size
1147 KB
Language
English
Notes
ist Dozent an der Juristischen Fakultät der Masaryk Universität in Brno (Tschechische Republik), wo er seit dem Jahr 1977 tätig ist. Er befasst sich vor allem mit der tschechischen Rechtsgeschichte der Neuzeit, mit besonderer Schwerpunktsetzung auf die Geschichte der öffentlichen Verwaltung und der Gerichtsbarkeit. Er veröffentlichte mehrere Dutzend Monografien und Lehrbücher, eine große Menge an Studien und Aufsätzen in Fachzeitschriften und Sammelbänden nicht nur in der Tschechischen Republik, sondern auch im Ausland. Mehr Informationen unter: www.schelle.cz
Tags
History, Present, Judiciary
Quote paper
Univ.-Doz. Karel Schelle (Author)Ilona Schelleová (Author), 2009, History and Present of Judiciary, Munich, GRIN Verlag, https://www.grin.com/document/128055

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