Karel Schelle – Ilona Schelleová
The Faculty of Law of the Masaryk University,
Brno, Czech Republic
The current
organization of the judicial system of selected countries
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 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.
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. 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).
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.
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.