31 May 2013

Federal judiciary - general overview

It is left to me now to discuss the remaining component of the principal state powers of the European federation, the judicial power. Before I start describing (in the next post) concrete questions, it is necessary to think about a general form of the judicial power of the European federation. Two questions that are mutually connected have to be answered – how many courts and what types of courts should to execute the judicial power of the federation and what connection should be between the federal judiciary and courts of the member states. There are two choices in principle: either the European federation will have one supreme court whose content will be to resolve questions of jurisdiction between the federation and the member states and among supreme bodies of the federation (or possibly in addition to it several specialized courts, as for patent matters for example) and remaining disputable matters following from federal law will judge the member states courts (as in the present EU) or federal law will be interpreted and judged solely by a fully developed system of federal courts without participation of courts of the member states. Let us see first how the situation in (mainly) European federations looks.

I start with the greatest European federation, Germany. There are both courts of the member states and federal ones. There are six mutually equipollent courts on the top of the federal judicial system, the federal constitutional court and five courts for criminal, civil and patent, administrative, financial, social and labour matters. Save for the constitutional court these courts are the last appellate instance for courts of lower degrees. These lower courts are however not only federal courts but also courts of the states and so entire system of German courts is in fact interconnected in one complex. For example whatever criminal case initiated at state courts can in appellate procedure end at the Federal Court of Justice. It is for that reason that almost all important law passes the federation under concurrent legislation and state courts therefore in fact (predominantly) arbitrate according federal law. The state courts decide also state matters according to state law but its sphere is relatively narrow.

Situation in neighbouring Austria is very similar; the role of the federation there is fortified by the fact that entirely judicial system is only federal. On its top, there is the constitutional court and three specialized courts for criminal and civil, administrative matters and of asylum; there are no courts of the member states. These states (or provinces) have the right to pass own laws but in very narrow sphere like in Germany and federal courts so judge also questions coming out from modest law of states – it is actually wholly opposite to how applying law of the European Union works.

Situation in Belgium, another European federation, is basically similar to that one in Austria. All judicial system is only federal (though it is not called so) which is caused by the fact that it underwent not organizational change since when Belgium was a unitary state. There is naturally the Constitutional Court for the whole state, otherwise in the federal level the Court of Cassation as a supreme instance for extra-constitutional matters.

There is a separate state (cantonal) and federal judicial system in Swiss federation. The federal judiciary comprises of three courts, the Federal Supreme Court, the Federal Criminal Court and the Federal Administrative Court. Not all federal law is however judged only at these courts, some questions are judged according to federal law also by the state (cantonal) courts and vice versa the federal courts are an appellate instance for some matters coming under the state level (as matters of municipal autonomy). Generally however separation of state and federal judicial system in Switzerland is noticeably greater than in Germany.

A relation between federal and state judicial system in Bosnia and Herzegovina is similar to the Swiss one. The federal judiciary comprises of three courts, the Constitutional Court of Bosnia and Herzegovina, the State Court of Bosnia and Herzegovina and the Human Rights Chamber for Bosnia and Herzegovina. Authority of the constitutional court is clear and accord with that of constitutional courts of other federations; the last mentioned court is a local uniqueness responding to the war in former Yugoslavia. Competence of the State Court of Bosnia and Herzegovina comes out from federal law and its content is to judge cases of organized crime and economic criminality if they go beyond the scope of the states (called entities here) or if they endanger integrity and independence of Bosnia and Herzegovina or may cause economic damages exceeding boundaries of the states (entities); this court judges not appeals from state (entities) courts. It can be said that separation of judicial system of the federation and of the member states is the greatest in Bosnia and Herzegovina among all European federations.

Because the United States of America are strong inspiration for political unification of Europe I will present also the judicial system of the United States. The federal judicial system and courts of the member states are separate in the United States, they basically act according to different law (federal or of the respective state) in either this level in which this system is similar to that of Switzerland or Bosnia and Herzegovina and on the contrary dissimilar to Austrian, Belgian and in fact German one. But the federal judicial system in the United States is, unlike the federal judiciary in whatever European federation, extensive and has several degrees. The Supreme Court stands on the top of the judicial system and acts partly as a constitutional court, partly as a court of last resort with appellate jurisdiction over federal courts of lower degrees. The second degree is comprised partly of twelve appellate courts on geographic basis, partly of appellate courts for some special matters and, in the end, of an appellate court for the armed forces. The lowest degree of the federal courts is most large, district courts that are at least one in every member state fall here first of all, then four specialized courts for tax, economic questions and of foreign intelligence agents; moreover a bankruptcy court is affiliated to each district court and also courts of the armed forces complete the system of the lowest degree courts.

There is a question now which of the mentioned systems is most suitable for the European federation. First of all, it is necessary to answer whether interpretation of federal law should be committed to the member states courts – extent of the federal judicial system then will be dependent on it. There are two choices: 1) judicial proceeding in questions of federal law will be initiated at the member states courts (which will so function as intrastate courts following interstate law for one thing and as federal courts following federal law for another thing) and only possible appellate proceedings will take place at the courts of the federation; the most important constitutional questions will be heard exclusively at federal courts; 2) judicial proceedings in questions coming under federal law will in all degrees take place in the system of federal courts separate from judiciary of the member states. The first model is on principle a model of Germany and Austria and of the present European Union (which is logical because it – despite its name – is basically an international organization), the second model is in essence that of Switzerland, of Bosnia and Herzegovina and of the United States of America. No inexorable logic of functioning of the federation as such requires one concrete solution, so the choice depends on subjective perception of relation between the federation and the member states or rather of position of the member states. It is about a conception whether the member states will take a share in exercising powers of the federation or whether they will exercise only their internal matters. My opinion is that activity of either level should be separate as much as possible; for each level has own sphere of functions and activities and should decide on them independently. Just distribution of public affairs between two levels is essence of the federation and if we wanted to leave execution of common affairs to the member states, we would have no need of a federation, an international organization like the present European Union would suffice. The federal level is established to exercise common affairs, it is its purpose – so let it do it. It is necessary to emphasize that common affairs (which are content of activity of the federal level) require uniform arrangement equal for all involved ones. To adopt uniform rules common for all in the federal level and then to exercise them differently according to nature of the respective member states in the state level makes no sense. If it is necessary to exercise a public affair according to conventions of a given state, that affair should fall in the state level, not in the federal one (some states can have a belief that they must absolutely all execute themselves according to own conventions and that therefore cannot accept any federation, but it is another question). Two reasons why to want to (partially) exercise powers of the federation by member states organs occur to me: 1) a state can have a strong tradition of efficient public administration and believe that it can better exercise decisions of the federation than the administration of the federation would do it; 2) fear of growth of bureaucracy by creating new (e.g. federal) authorities besides the existing state ones. But in the first case, desirable solution is to strive for high-quality federal administration, in the second case, it is necessary to realize that quantity of functions of state organs will decrease by creating the federal level, so doubling of organs for execution of the same matters will not occur. A rule should be in force in my opinion: in what level a decision was passed, in that level it should be executed. This should be generally valid, it means in the sphere of judiciary that exclusively a system of federal courts separate from state courts should interpret federal law.

A form of the judicial system of the European federation is thus predetermined in a large extent. A court holding a function of the constitutional court must naturally be on the top but it is about how the rest of the system will look. If we start with axiom of separate federal judiciary, the European federation cannot make do with for example three courts as in the Swiss case. Whereas Switzerland is relatively small (eight millions inhabitants) the European federation will probably comprise a significant part of Europe with great population some day (though it may start as a relatively small state comprising of only few member states). It will require a more extensive judicial system, like in the USA. Also the European federation in my opinion should have a system of three degrees, with courts of original jurisdiction, appellate courts in the second degree and a supreme court on the top of the system.

Questions are left to answer whether original and appellate judicial proceeding should take place only at ordinary courts of the first and second degree or whether some spheres of affairs should be judged at specialized courts in either this degree and in addition whether a separate constitutional court there should be on the top of the system or whether the constitutional authority should pertain to the supreme appellate court. If we look at specialized courts of the mentioned federations, we can see that they are not identical and so it looks that it depends on specific needs in the given federation. I am not able to say something about specific need of the future European federation and besides, I think that it is only organizational thing whether some matters of federal law will be judged by a general system or they will be separated to courts specialized in certain subjects. Therefore I believe that it will be more understandable for the public and more simple if all questions of federal law will be heard at general courts, each of them having several departments for separate spheres of matters.

As far as separation of a constitutional court is concerned I prefer that constitutional questions are heard by the supreme court as in the United States. Because it seems to me suitable that one court is on the top of the federal judicial system and functions as its keystone. All judicial system of the European federation would so have a form of a pyramid – courts of first degree with original jurisdiction at the bottom, appellate courts of the second degree over them and all on the top would be the supreme court. All this pyramid should be entirely separate from the member state courts and all matters coming under federal law should be judged only at the federal courts.

This is my general idea for now, next time I will deal with a form (composition) of the supreme court.