Structure of the judiciary system,

Transcription

1 Austria Belgium Denmark Austrian law is based on European traditions and is primarily statute law, with a very limited role played by customary law. The independence of the courts is enshrined in the constitution. The court structures do not correspond to the territorial divisions of the country. The judges are not bound to take any instructions in exercising their office, and are virtually irremovable. The Federal Constitution Law assigns the judiciary exclusively under federal responsibilities. The Länder are therefore not allowed to set up any courts. There are three supreme courts in Austria: the civil and criminal courts, with stages of appeal to the Supreme Court (OGH), the Constitutional Court and the Administrative Court. The Constitutional Court was established in 1920, it is the oldest constitutional court worldwide. It is the guardian of the Austrian constitution, comprises the President, Vice-President and twelve members, all appointed by the Federal President. Its formal and material responsibilities are laid down in the Federal Constitutional Law ( B-VG ) and in the Constitutional Court Act. Constitutional Court decisions are normally taken by the full court. In principle, the Constitutional Court does not act on its own initiative, only on application. Any court, an independent administrative panel, the Supreme Court, a Court of Appeal, the Administrative Court, the Asylum Court, the federal government, a state (Land) government, a local community/municipality, the Federal Public Procurement Office, the Ombudsman Institution or the Board of Audit may (some of them must) refer the question whether a norm is unlawful or unconstitutional to the Constitutional Court. Everyone can invoke the aid of the Constitutional Court (objection to a decision of the Asylum Court or of an administrative authority of last instance if he /she is of the opinion that a decision infringes his / her constitutionally guaranteed rights or applies an unlawful/ unconstitutional norm. An individual petition (request) against a regulation or law statute may be brought only if such a norm (regulation/statute) infringes currently/actually and directly a person's rights. Over the last years, about 2,000 to 3,000 cases on average were brought to the Court annually. According to an amendment of the Constitution in 2008 establishing the Asylum Court the number of cases increased dramatically. The Court has to face an additional caseload of around 3,500 cases only dealing with asylum matters because it is the only Court reviewing decisions of the Asylum Court (the review of the Administrative Court has been excluded by the constitutional legislator). That means that the Constitutional Court had to cope with a total of 5,500 new cases in 2009 (Activity Report 2009) and has to expect an equally important workload in the years to come. Still the duration of the Constitutional Court's proceedings (meaning those not dealing with asylum matters) would amount to eight months, which would be low in international comparison. The judicial system is based on civil law and originates from the Napoleonic Code. It has a pyramidal structure, with the Court of Cassation at the top. There are also administrative jurisdictions, with the administrative litigation sections of the Council of State and of the Constitutional court at their head. These jurisdictions are not, formally speaking, part of the judicial Order. The Danish judicial system is based on the traditions of continental Europe. The system of courts has a unified structure, in which there are no special courts of law, as well as no formal division within the courts. On 1 January 2007 a reform of courts reduced the number of district courts from 82 to 24. The objectives of the reform were to gain higher quality, reduce the time to review each case, and move the case load from the high courts to the district courts. Denmark has no specialised courts for constitutional issues and for administrative issues. Constitutional questions must be decided by the court that is otherwise dealing with the case, and in the final instance the question can be decided by the Supreme Court. Danish courts have been very reluctant to have recourse to the constitution, and it was not until 1999 that the Supreme Court rejected a politically important act as being contrary to the constitution. Administrative cases are dealt with by district courts. The administration has established a large number of complaint boards (internal to ministries) to deal with complaints of citizens, whose decisions can be appealed to the courts. Page 1 of 5

2 Finland France Germany Greece Ireland Finland has a civil law system which is based on Swedish law (which itself is based on the Napoleonic system). The judiciary is divided between courts with regular civil and criminal jurisdiction, and administrative courts with jurisdiction over litigation between individuals or businesses and the public administration. The court system for civil and criminal jurisdiction consists of local courts, regional appellate courts, and the Supreme Court. The administrative arm of the judiciary consists of regional administrative courts and the Supreme Administrative Court. In addition, there are a few special courts. For example, a High Court of Impeachment examines criminal charges against high-ranking officeholders. France is a country of written Roman law. The judiciary in France exercises its authority in accordance with a basic distinction between, on the one hand, judicial jurisdiction for settling disputes between persons and, on the other, administrative jurisdiction for disputes between citizens and the public authorities. Within these two jurisdictional orders, the various courts and tribunals are organised in accordance with a pyramidal structure: so-called courts of first instance (or trial courts) constitute the base of the pyramid; courts of appeal (or of second instance ) consist of courts which rule on appeals against decisions taken by the courts of first instance ; and at the top of each order, a supreme court of appeal is responsible for monitoring and ensuring consistency in the application of the law as implemented by other judges responsible for the substantive aspects of cases. These two appeal courts are the Court of Cassation in the case of the judicial order, and the Council of State for the administrative order. The German legal system draws from the European codified civil law tradition. Germany s Civil Code was developed in the late nineteenth century, and has served as a template for other civil law jurisdictions. The federal constitutional Court in Karlsruhe is the supreme court. The 16 judges of the supreme court monitor adherence to and compliance with the Basic Law, they adjudicate competence disputes between the federation and the Länder. They rule only upon petitions and their decisions are final. The supreme court holds a monopoly on interpretation of the constitution with regard to all German jurisdictions. All organs of the federation are bound to uphold to the rulings of the supreme court. Each Land has a state constitutional court. If a Land law is regarded as being incompatible with the respective Land constitution, the courts seek a ruling from the Land constitutional Court which has jurisdiction in accordance with Land law. If a norm is declared unconstitutional by the court, it has to be submitted to the constitutional Court for an independent review (concrete proceedings on the constitutionality). Norms can also be examined by the court irrespective of any specific application (abstract proceedings on the constitutionality). Besides ordinary courts which deal with criminal and almost all civil cases, the administration of justice consist of, labour, administrative, social, and financial specialised courts. Justice is administered by some 21,000 independent judges, generally appointed for life. The Greek legal system belongs to the Continental European civil law tradition and has been especially influenced by German and French law. The judiciary is independent of the executive and the legislature and comprises three Supreme Courts: the Court of Cassation, the Council of State and the Court of Auditors. The judiciary is also composed of civil courts, which judge civil and penal cases, and administrative courts, which judge disputes between citizens and the Greek administrative authorities. Ireland is a common law country with a written constitution. While much of Irish public law is similar to that of other common law jurisdictions, the existence of a written constitution and judicial review of legislation has meant that the Irish legal system has developed its own distinctive characteristics. Judicial review is more vigorous than in most other countries. Similar to the US, a judge may declare legislation to be unconstitutional, and the High and Supreme Courts in the cases that come before them ensure that government and parliament, in the enactment of primary legislation, respect principles of natural and constitutional justice. These principles include principles of proportionality, the right to be heard, and the right to have decisions taken without bias. Courts also ensure that secondary legislation and other acts of public bodies are consistent with the authorizing primary legislation. In this regard, the courts will be concerned with how a decision was taken by a regulator, rather than with the merits of the decision itself. Page 2 of 5

3 Ireland (cont.) Italy Netherlands The court system was set up by the Courts (Establishment and Constitution) Act 1961 pursuant to Article 34 of the 1937 Constitution. The constitution outlines the structure of the court system as comprising a court of final appeal, the Supreme Court, and courts of first instance with include a High Court, with full jurisdiction in all criminal and civil matters, and courts of limited jurisdiction, the Circuit Court and the District Court, organised on a regional basis. The High Court and the Supreme Court have authority, by means of judicial review, to determine the compatibility of laws and activities of public bodies with the constitution and the law. Although not a part of the judiciary, the Office of the Attorney General plays a significant role advising the government on matters of law and the constitution. The Italian legal system draws from the European codified civil law tradition. The Constitution guarantees the independence of the ordinary judiciary from interference by any other State power in its activity of interpreting the law and assessing facts. The Constitutional Court has the power to review laws and decree-laws. If they do not comply with the Constitution, the Court declares their unconstitutionality and, consequently, these acts are no longer valid in the constitutional order from the day after the decision s publication. The Constitutional Court is the only body entitled to exercise this power. Judges nevertheless play an important role in checking whether laws are in accordance with the Constitution and raising constitutionality issues before the Constitutional Court. The Court is composed of 15 judges: one third appointed by the President of the Republic, one-third elected by parliament, and one-third elected by the ordinary and administrative supreme courts. The Supreme Court of Cassation is the highest appeal court. Appeals to the Court generally come from the lower appeals court, but litigants may also appeal directly. Generally, cassation is based not on outright violations of law, but on diverging interpretations of law between the courts. The Court therefore cannot rule on the evidence of the facts or overrule the trial court's interpretation of the evidence; rather, it rules on the lower court's interpretation or application of the law. Decisions of the supreme court are binding only in the case submitted. The Court s seat is in Rome and has jurisdiction over the entire territory of the Republic. Besides ordinary courts (civil and penal), the Constitution provides for only clearly defined specific courts, among which are the administrative courts. The latter monitor the legitimacy of administrative acts and may lead to their annulment. Judges are independent public officials. Once appointed, they serve for life and cannot be removed without specific disciplinary proceedings conducted by the Superior Council of Judges. Civil and criminal judges form a single structure, that of the ordinary judges, which also includes prosecutors. Administrative judges are distinguished from ordinary judges and have an independent governing body. The Ministry of Justice handles the administration of courts and judiciary including paying salaries or constructing new courthouses. As the judiciary s self-governing organ, the Superior Council of Judges safeguards the independence of the order; regulates the most important activities necessary for the exercise of its competence; and applies disciplinary sanctions. It is made up of the President of the Republic, who presides over it (and who generally has the assistance of a Vice president, elected from the members), the first President of the Corte of Cassation, the Cassation s Prosecutor General, as well as 24 other members. The Dutch judicial system is based on the traditions of continental Europe, with a codified law and a written Constitution. The Council of State is a form of constitutional court, advising the government on all draft bills and orders in council. The court system consists of courts, courts of appeal, and a Supreme Court. Administrative appeals are heard by the administrative branch of the courts. The judiciary can and does interpret the law in its rulings, but cannot challenge it. Page 3 of 5

4 Portugal Spain Sweden The constitution provides for the Constitutional Court, the Supreme Court of Justice and the Supreme Administrative Court (the last two have subordinate courts) and a variety of special courts, including a military court system. The Portuguese legal and judicial system is based on Roman civil law. It has a complete body of law that has all been transcribed into codes. Judges are essentially seen as civil servants who are the mouth of the law. They must seek the appropriate law from the codes and apply it without any reservations, excesses, any interpretations. Judicial power is unitary. There is one judicial structure covering the whole of Spain and all matters including the public administration, the only exception being the person of the King. The ACs use the State courts (apart from appeals on administrative decisions relating to their own powers and competences). Special courts are forbidden (for example, there is no longer a separate military jurisdiction). The General Council of the Judiciary is responsible for overseeing and ensuring the autonomy and independence of judicial power, including all the courts. As such, it is not a judicial but an administrative body. It is enshrined in the Constitution, and therefore enjoys the same status as the other institutions mentioned in the latter, such as the government, the Congress and the Senate, and the Constitutional Court. Justice is administered at various levels by a range of independent courts. Each territorial unit has specific courts. From the lowest to the highest rank, the system consists of: Municipalities and judicial districts. Courts of peace, courts of first instance and examining courts. Provinces. Provincial courts. Autonomous Communities. Higher Courts of Justice as the highest appeal court for administrative and legal acts in their jurisdiction. National level. The national court and the Supreme Court have national jurisdiction. The Supreme Court is the highest judicial institution for all types of law (apart from constitutional affairs). It is the ultimate appeal court for civil, criminal, administrative, social and military matters. It deals with administrative appeals on, and disputes about, acts issued by the Council of Ministers, government commissions, the Congress and the Senate, the Constitutional Court, the Court of Auditors and the Ombudsman. The President of the Supreme Court is appointed by the King. Swedish law, drawing on Germanic, Roman, and common law, is neither as codified as in France and other countries influenced by the Napoleonic Code, nor as dependent on judicial precedent as in the United Kingdom and the United States. The courts may interpret the law, but they do not make it. Court decisions are not however restricted to procedural issues, and they can rule on the substance of a case. The judiciary is politically independent, with permanent judges (appointed by the government, but politically neutral). There is no jury system, with a few exceptions. There is no constitutional court, instead all courts may ascertain whether a law is in conflict with other laws, including the constitution, to which all other laws are subordinate. There are three types of court in Sweden: the general courts, which comprise 72 district courts, six courts of appeal and the Supreme Court; the general administrative courts, which comprise county administrative courts, administrative courts of appeal for cases dealing with the public administration, and the Supreme Administrative Court; and the special courts, which determine disputes within special areas, for example, the Labour Court and the Market Court. The Supreme Administrative Court and the Supreme Court are courts of precedent. Page 4 of 5

5 United Kingdom The common law, on which much of the English legal system rests, is based on decisions and precedents handed down by the courts. The judiciary in England therefore traditionally exerts an important influence on the development and practical application of regulations, relative to the judiciaries of countries with a system based on civil law. The absence of a single written constitutional source also means that there is no single supreme judicial guardian of constitutional principles. That said, although this formal role is absent from the judicial structure, the judiciary are responsible for interpreting and enforcing the law, and for ensuring that the executive acts within its proper authority. The role of the judiciary is framed around two sets of principles: Judicial independence and neutrality (freedom from political interference and control). The bulk of the judiciary is separate from the other two branches of government, the executive and the legislature. However, pending implementation of reforms to the House of Lords, there is some overlap at the highest levels, as senior members of the judiciary sit in the House of Lords, and the head of the judiciary (the Lord Chancellor) is a member of the Cabinet. Strict application of the law (judges must consider whether the law has been correctly applied, not whether it is a good or a bad law). Again, this principle has to be seen in its practical context. The courts cannot strike down acts of the parliament and have a limited role in striking down secondary regulations. In practice, the role of the courts is not limited to the strict application of the law, as evidenced in the fact that judicial decisions over statute law have contributed to creating the significant body of common law that exists today. The court system comprises two structures, one for the civil law and one for the criminal law. For cases involving civil law the first level is the County Court (218 across England and Wales). Above this level is the High Court, divided into three departments: the Family Division (cases relating to matrimonial affairs, child welfare, child custody and adoption), the Chancery Division (cases involving land, companies, bankruptcy and probate) and the Queen's Bench Division (most other cases, including cases that go to the Administrative Court, which exercises judicial review in relation to the decisions of local governments). The Queen's Bench Division is thus the most relevant for regulatory policy. Sources: OECD, Better Regulation in Europe The EU 15 project, Page 5 of 5