supreme court

             supreme  court

1

PRESENTATION

supreme courses, jurisdictional bodies located at the top of the legal hierarchy of a country.

The concept of court supreme varies deeply according to the legal systems of the States. Indeed, the role of a court is truly "supreme" when there is only one higher jurisdiction in the legal organization of the State (case of the United States and Canada), having an extremely broad competence in all the fields of the legal, legal system and policy of this State. Contrary, it may be that a court is known as supreme because it is located at the top of an order of jurisdiction, but that the existence of another court, also supreme for another order of jurisdiction, comes to limit its supremacy to the level of the whole of the legal and political institutions of the State (case of France, Italy and Belgium).

2		SUPREME COURT OF THE UNITED STATES

Supreme court of the United States

This majestic marble building of Washington D.C. shelters, since 1935, the supreme Court of the United States. It is the American architect Cass Gilbert who is the author of this neo-classic structure, symbol of the power of the Court.

In the first direction, it is quite clear that the Supreme Court of the United States is the supreme Court par excellence. Sitting in Washington, capital of the federal State, this one have a plenitude of competences, which means that it is not only qualified to rule out of legal matter on all the litigations in call formed in front of it, but also to appreciate the validity of the laws compared to the American Constitution. It is thus at the same time a constitutional court and a legal court. There does not exist, in the United States, of another of the same jurisdiction row, whose role would come to imitate or limit to it his. All the courts and run of call of the State are lower to him. Its supremacy on the whole of the legal institutions is thus particularly of primary importance. The role of the American Supreme Court, whose international fame is with the measurement of its power in the legal system of the United States, is exemplary. It is justified by the history and the American tradition, but also by the political structure of this State, which is a federal State: the American Constitution of 1787 works out a division of the capacity between the States known as federate and the federal State, which is superimposed on the federate States. This distribution of the capacity on two levels, that of the federal State (or central State) and that of the federated State, must be protected, in order to preserve the political form of the State. In the American system, it is thus allocated to the Supreme Court to guarantee the federalism. One generally finds the same type of Supreme Court in the States with federal structure; their role is particularly essential (the ex-USSR, Canada), as well at the legal level as with that of the political institutions.

The characteristics of the composition and the work of the American Supreme Court show the extent of its competences. It is made up of nine members  (justices)  irremovable (in practice, it happened that certain of these judges resign at the seventy years age, whereas that is not obligatory), in order to guarantee their independence compared to the political power. The judges of the Supreme Court are named by the president of the United States, which despite everything is a particularly manifest factor of dependence, even if it is corrected by the principle of irremovability. They are generally selected according to their socio-professional competences. Their nomination must be confirmed officially by the Senate and it happened that this one refuses that of an applicant, which represents a true public affront for the president (two refusal under Nixon, three Reagan pennies).

Judges of the supreme Court of the United States

The supreme Court of the United States is made up of nine judges, of which president (Chief Justice), named with life (by the president of the United States with the approval of the Senate) and irrevocable. In 2006, sit there (sitted, of left on the right) Anthony Kennedy, John Paul Stevens, John Roberts (the president), Antonin Scalia and David Souter; upright, of left on the right: Stephen Breyer, Clarence Thomas, Ruth Bader Ginsburg and Samuel Alito.

Matthew Cavanaugh/EPA/Landov

Under its constitutional matter competences, the Court can check if the law passed by a legislative body (the Congress) is in conformity with the Constitution. Thus, if the Court estimates that the law is not in conformity with the Constitution and/or its amendments, it can declare it unconstitutional and draw aside it. It is what one calls  the judicial review.  This competence was not registered in the Constitution of 1787; it neither was envisaged, nor prohibited, but the Supreme Court quickly conquered this capacity in an extremely famous and very daring stop with respect to the capacity, which constitutes all the base of the American constitutional law: the Marbury stop counters Madison of 1803. The Supreme Court has by this decision subjected the capacity to the Constitution, such as it exists in its form written, and worked out a technique of questioning possible of the law,  the judicial review,  by jurisdictional control. From now on, it is allowed that the law, whereas it was already voted by the Congress, can be called into question,  a posteriori,  as for its constitutional validity by the Supreme Court. Thus the American Supreme Court gained in power and authority. Today, the principles of the tender of the capacity to the Constitution and the jurisdictional control of the laws are acquired, and of many foreign countries adopted them as democratic principles.

In addition, the Supreme Court has jurisdiction in the disputes which are carried in call in front of it. In this respect  —and contrary in the majority of the courses higher of the States—, a system of selection of the businesses which it will examine in last spring is carried out. As a higher legal judge and of last call, the Supreme Court examines, indeed, only the businesses likely to contribute a share to the state of the right, and its decisions, which relate to essential aspects of the American social life (right to the abortion, death penalty, rights and personal freedoms), are the subject generally of a very great mediatization.

3

The FRENCH SYSTEM

France does not know court equivalent to the American Supreme Court, which explains a certain number of reasons, especially historical, but also cultural. The French tradition is that of the unit State, i.e. there is one capacity, exchange and exclusive. There is one Parliament and its competence is national; in spite of the phenomenon of decentralization, the French Republic is an indivisible republic (article first of the Constitution of October 4, 1958). In addition, France inherited the French revolution a duality of the jurisdictional orders, by the famous law of August 16-24, 1790, which states solemnly that "the legal functions are distinct and will remain always separate administrative offices".

Consequently, there exists in France of the legal jurisdictions, which rule on the litigations of private law (interesting the relationship between the individuals, like the commercial law, law the labour or civil law), and of the administrative jurisdictions, which rule on the litigations of public law, i.e. relating to the activity of the State (administrative law). The respect of the principle of separation is thus ensured. Each one of these kinds knows a specific hierarchy; at the top is the supreme jurisdiction, the Supreme court of appeal and the Council of State.

3. 1

Supreme court of appeal

The Supreme court of appeal is located at the top of the courts and Courts of Appeals of the legal order; in Paris, it is a judge of the right only. In that, it is not a jurisdiction of third degree (after the second degree, which is the call); its role is confined with the examination of the right, in opposition to the bottom. Seized of "appeals in cassation" (name given to the recourse formed in front of it), it thus will decide if the right correctly were interpreted and applied in the litigation by the lower jurisdictions, but it will not decide a qualification of the facts of the litigation. It is also in that that the Supreme court of appeal is supreme, because it is the highest jurisdiction: the rejection by it of the request for a part involves the final classification of the business.

3. 2

The Council of State

The Council of State, created by article 52 of the Constitution of 22 Frimaire year VIII (December 13, 1799), is the supreme jurisdiction in the dispute of an administrative nature. He is a judge of cassation: there its higher role in the administrative hierarchy is expressed. This role for the first time was allotted to the Council of State by the law of November 18, 1940  —what is recent compared to the seniority of the institution. It is thus with the Council of State alone which returns the task to say if the right were indeed applied by the administrative courts and the courses administrative of call which are lower to him, to the image of the function allotted to the Supreme court of appeal in the legal order. The possibility of forming an appeal in front of the Council of State unlimited and is recognized, even if no text envisages this possibility expressly.

In addition, the French Constitution of 1958 (in its title VII) entrusts for the first time the examination of the conformity of the laws to a jurisdiction, a constitutional court, which one locates apart from the legal hierarchy, as "a class with share": it is about the constitutional Council. Its supreme character is thus dubious, even if its decisions are supreme since they are not likely of call.

3. 3

The constitutional Council

The constitutional Council is qualified to examine whether the law in preparation before the Parliament is in conformity with the Constitution. This examination will be however carried out only if the constitutional Council is received, which depends on goodwill authorities having the right of sasine (the president of the Republic, the Prime Minister, the president of the French National Assembly, the president of the Senate, or sixty deputies or senators, according to article 61 of the Constitution). If nobody seizes the constitutional Council, then any judge, of the Supreme court of appeal or the Council of State, will not be able to declare the law not-in conformity with the Constitution.

The truly jurisdictional statute of the constitutional Council was the subject of very many debates, since this one examines the conformity of the laws before their promulgation, and not afterwards, and that no litigation opposed truly parts. The control of the constitutional Council is a control exerted  a priori,  contrary to the control  carried out  a posteriori in the United States by the Supreme Court. 

In France, there is not thus supreme court to be strictly accurate, since as well Supreme court of appeal as the Council of State are supreme within their own system of jurisdiction, and than the constitutional Council does not enter any hierarchy other than his. The meeting of attributions of these three bodies would correspond to the whole of competences reserved for the American Supreme Court, but the political system French interdict which are thus gathered so much of capacities between the hands of only one body.

Indeed, the fear of a "government of the judges" encourages the States not to give too supreme character to only one jurisdiction. The democracy, according to the traditional design, requires that the capacities be strictly separate from/to each other (even if a collaboration between them is wished), and the example of the Supreme Court of the United States shows that the capacities of which it lays out make it possible him to create right in a very great measurement, and thus to encroach on the capacities of the executive and the legislature. The French revolutionary tradition makes law the supreme reference, and only the representatives of the people can adopt it. The judges are confined with the simple role of interpretation (and not of creation) of the right.

4

The EUROPEAN SYSTEM

In the United Kingdom, it is the House of Lords which fills the supreme role of jurisdiction, but it is connected more with one jurisdiction of third degree (in that, it approaches the American Supreme Court in its legal function).It is not qualified to decide conformity of the law to the Constitution (which usual and is not written), Great Britain estimating that this would call into question the mode of the democratic parliamentarism which it applies.

Exceeding the framework of the national institutions, at community level, the function of the European Court of justice led certain authors to discuss the question of knowing if this jurisdiction were supreme compared to the whole of the Member States and their national jurisdictions. Indeed, the European Court of justice, whose seat is in Strasbourg, has the role essential to make apply the Community legislation inside the Member States, which necessarily passes by the respect of its decisions by the highest national jurisdictions, even supreme (in order to respect the principle of the precedence of the Community law on the national laws, posed by the decisions of the Court, Costa against ENEL, July 15, 1964). The hierarchy which was essential plays in favour of the European Court of justice, but the prejudicial mechanisms of the recourse (reference by the national judge of a question in interpretation or appreciation of validity of a Community standard at the Court) supported collaboration between the supreme jurisdictions of the Member States and the European Court of justice. An abstract hierarchy thus emerged thanks to this collaboration, which is a positive sign in favour of Community construction.

If the unit of the jurisdictions seems to be a significant factor, even necessary to the democracy in a State, the concept of court supreme is indissociable political and legal system of the State in question.

5

SUPREME COURT OF CANADA

Thus, the Supreme Court of Canada made the experiment of a certain number of contradictions and difficulties, which result from its lack of constitutional legitimacy. The will to create a court with the image of that of the United States sufficiently did not take into account the specificity of Canada as a dominion of the British Crown, which a long time obstructed the mission of the Supreme Court of Ottawa. The Canadian Supreme Court was created in 1875 by a simple law of the Parliament, under a general court of call. Just as that of the United States, the Canadian Supreme Court includes/understands nine judges; it acquired the plenitude of its competences only with the adoption by Canada of a Charter of the rights and freedoms allowing him émanciper and to sit its legitimacy within the institutions of the Canadian State.

6

SUPREME COURSES AND DEMOCRACY

The authority of the supreme courses thus varies according to their attributions, such as they are conferred by the Constitution (or the law, if necessary), and from the implementation of the institutions of the State by the political actors. The introduction of supreme courses fulfills the requirement of certain democratic principles. Indeed, the ideology of the democracy, such as it was described by Montesquieu, claims that the capacities are counterbalanced, in order to prevent the hegemony of only one source of the capacity. The supreme courses (with the legal direction) are intended to support the interest of the citizen, who can act in front of them, by the way of the recourse successive. Lastly, the supreme courses ensure the transparency and the credibility of the right near justiciable, ordinary citizens. The meeting of the constitutional and legal matter capacities between the hands of only one body, as in the United States, is very exceptional. Being given the role, considered to be very excessive by certain commentators, of the American Supreme Court, few States, indeed, are ready to as many recognize with only one jurisdiction capacities. No system is universal, nor transposable of a State with another, as shows it the Canadian example, and the creation of a supreme Court requires that the institutions of the State attach solids guaranteed of independence and recognition to the institution, so that this one can fill its role and enjoy legitimacy and autonomy essential to its mission.

Permanent court of arbitration

      Permanent court of arbitration

Permanent court of arbitration, lists referees established by Convention for the peaceful payment of the international litigations, ratified by twenty-four nations at the time of the first of the conferences of the Hague, in 1899, and amended in 1907. Under the terms of Convention, each contracting nation designated four referees, registered near the Court for a six years mandate. The names of these members were published, and the nations engaged in a litigation used this list in order to compose a court of arbitration intended to regulate it. Court, which did not constitute a jurisdiction since its opinions were not essential on the parts, did not hold of plenary meeting. Its permanent character lay exclusively in the existence of a list of referees renewed periodically.

Before the First World War, the Court took part in the payment of fifteen cases, of which the arbitration on the fisheries of the coast of North America, between the United States and Great Britain (1910), and the arbitration on the deserters of Casablanca between Germany and France (1909). After the First World War, the majority of the nations estimated that the arbitration was not a satisfying mode of payment of the litigations, and the Court was solicited less and less often (the last returned arbitration goes back to 1932). The example and the reputation of the Court however exerted an influence significant on the decision to create the permanent Court of international justice in 1921.

The International Court of Justice of the United Nations

The International Court of Justice of the United Nations

1		PRESENTATION

The International Court of Justice of the United Nations, principal legal body of the United Nations, created in 1945, according to the provisions of the Charter of the United Nations, to succeed the permanent Court of international justice. The Court functions in accordance with a statute which clean, is annexed to him with the Charter of the United Nations. Its principal task consists in ruling on the disagreements of a legal nature between nations; it cannot, so to be seized by a business by the action of a private individual. All the Member States of United Nations (UNO) left to the statute the International Court of Justice, just like the three States not members of UNO who are Switzerland, Liechtenstein and San Marino.A nation which did not leave to the statute the Court can resort to the latter if it accepts, on a purely general or particular basis, to subject itself to the obligations of a Member State of the United Nations.

2

ITS ROLE

In accordance with article 94 of the Charter of the United Nations, there are two procedures making it possible to carry a disagreement before the Court. The first consists in resorting to the protocol of tender at the Court of the disagreement by the whole of the parts. The second relates to the unilateral application of the obligations with only one of the parts implied in a litigation. For example, a country can claim that its adversary was constrained by the terms of a treaty particular to yield, in the case of a litigation, with the authority of the Court. A clause stipulated in the statute of the Court can also allow  —without obliging for as much — the States left with the statute to recognize by advance like obligatory the jurisdiction of the Court in certain international disagreements. If two parts in conflict expressed their assent on the matter and that the litigation remains within the framework of the aforesaid agreement, one or the other of the parts can carry the disagreement before the Court.

In October 1985, president Ronald Reagan put officially fine at the followed policy of long date consisting in yielding automatically with the decisions of the International Court of Justice, thus bringing back to 43 the number of nations recognizing like obligatory the jurisdiction of the Court. The American initiative caused to weaken the Court, already handicapped by the refusal of the principal great powers, among which Soviet Union, China, France, West Germany and Italy to yield with its authority. The Court gives its judgements according to general principles' of the international law recognized by the nations civilized like according to the common laws and international payments governing the treaties and conventions accepted by the parts in litigation. The Court also calls upon the former court orders and the conclusions of highly qualified publicists who contributed to establish jurisprudence. The judgement of the Court, which must give a report on the reasons of its decision, is final and irrevocable, without any possibility of recourse. The Security Council of the United Nations is entitled to take measures in order to make apply the decision of the Court if the parts in litigation refuse to carry out the stop. Actually, the International Court of Justice has only few means to make carry out its decisions. As an example, in 1980, when the Court ordered in Iran to release 53 American hostages, its injunction remained without effect.

In addition to the arbitration of the litigations between nations, the Court can give advisory opinions, on legal questions, with the General meeting, the Security Council, and other specialized agencies, authorized by the General meeting to request these opinions.Within this framework, one can quote the judgement of the Court in 1962, according to which the expenditure intended to maintain peace in the popular Republic of Congo and in the Middle East represented the "expenditure of the organization" to pay by the Member States, according to the distribution established by the General meeting.

3

JUDGES

The Court made up of 15 judges, each one is elected in the majority absolute by the Security Council and the General meeting, each one of these two bodies voter without consulting the other. The judges are elected for nine years and can be re-elected. There cannot be two nationals of the same country. A judge can be revoked only by unanimous vote other judges, who do not represent their country but are elected according to their knowledge of the international law. The composition of the Court is supposed to reflect the principal forms of civilization and the great world legal systems. If there is not, at the time of a disagreement, of judge having same nationality as a part in litigation, this country can choose a judge to sit at the lawsuit. Last nine judges constitute a quorum and any question raised before the Court is solved in the majority of the judges present. The Court elects its own civils servant and names its clerks like its other representatives. The seat of the Court is located at the Hague, in the Netherlands.

European court of the humans right [ CEDH ]

European court of the humans right [ CEDH ]

1		PRESENTATION

European court of the humans right [ CEDH ], jurisdictional body international legatee by the European Convention of safeguard of the humans right and of fundamental freedoms adopted within the Council of Europe. Installation in 1959, the CEDH sits in Strasbourg.

The CEDH is charged to examine the complaints based on the violation, by a State signatory, provisions of the Convention of 1950.These actions can be brought as well by another State signatory as by an individual applicant (private individuals, groups of private individuals or nongovernmental organizations). It is in the possibility offered to a citizen to directly seize the Court and to obtain repair which the specificity of this international court resides.

The fields concerned relate as well to the repression of terrorism, the acts of torture, the custody, the respect of the private life, the access to justice, as for example on the safeguard of the natural and architectural inheritance or trade-union freedom.

2

HISTORY

It is at the following day of the Second World war, and in particular after the atrocities made by the mode Nazi, that many European countries get along on the need for subjecting to an international control the actions of the governments with regard to their own citizens. This awakening leads in 1950 to the signature of the European Convention of the humans right  —an international agreement engaging the States having ratified it—, whose principal originality is to institute a mechanism of control guaranteeing the respect by the States signatories of the obligations assumed by them.

With its creation, this mechanism of control is distributed between three bodies: a Commission, which operates primarily a filter while coming to a conclusion about the admissibility of the requests; a Court, which hands down a judgment final on the businesses which are submitted to him; a Committee of the ministers, charged on the one hand to make a final and constraining decision on the businesses which are not carried before the Court, and on the other hand to supervise the execution of its decisions or the judgments of the Court.

However, with the passing of years, this tripartite system appears insufficient and ineffective vis-a-vis an increasing number of complaints. Approximately 400 requests are recorded by the Commission in 1981 against 4 750 in 1997; this same year, the number of not recorded or provisional files opened by the Commission amounts to 12 000. This situation is explained in particular by the massive arrival within the Council of Europe of the Central European country and Eastern at the beginning of the years 1990  —the Council of Europe, which counted only 10 States at the time of its foundation in 1950, gathers 40 in 1998 of them.

In order to reduce the risks of clogging and to shorten the duration of the procedures, a reform is implemented in 1998, whose principal point is fusion in a single and permanent jurisdiction of the Commission and Court, which functioned before part-time. Within this new institutional framework, the Committee of the ministers does not have any more a judicial office and its role is limited to the control of the execution of the decisions of the Court.Moreover, whereas the right of individual petition was in the beginning subjected to certain conditions  —the States were to recognize it — the introduced reform makes this recognition obligatory.

3

ORGANIZATION AND PROCEDURE

The Court is made up of a number of judges equivalent to the number of Member States of the Council of Europe. Completely independent, these judges do not represent any State. They are elected by the parliamentary Parliament of the Council of Europe for a six years mandate and are re-eligible. The procedure before the Court is contradictory and public.

The Court includes/understands three jurisdictional formations:a committee of 3 judges, a room of 7 judges and a Large Room of 17 judges. The committees have as a function to filter the recourse while ruling on their admissibility, i.e. on the conditions which allow the examination of the complaint. The principal conditions of admissibility are as follows: it is necessary to have exhausted all the possible grounds for appeal in front of the internal courts; the Court must be seized in the six months following the final rejection of the complaint brought in the country of origin; finally, the request must have a serious base.

If the request is accepted, it is transmitted to the room, which comes to a conclusion on the admissibility and the bottom and implements a procedure of amicable settlement. In the absence of an amicable settlement, the room hands down its judgment. This one is not final insofar as the procedure envisages, in exceptional cases, a possibility of reference in front of the Large Room.

Lastly, the Committee of the ministers supervises the execution of the judgments of the Court. All the final judgments of the Court are constraining for the States signatories of Convention.

It is following the Kruslin stop and Huvig of 1990 condemning the French State, that the latter worked out a law on the phone-tappings (law of July 10, 1990) which ensures from now on a protection of the right to the private life, such as it is guaranteed by Convention.