21 August 2013

Powers and organization of the Supreme Court

I suggested already what functions the Supreme Court of the federation should have in an earlier post about overall form of the judicial system of the European federation, now I will synopticly summarize it, will deal also with organization of court's work and add powers of the president of the Supreme Court to it as I wrote above in the previous post.

Powers of the Supreme Court were basically given by me earlier, so I will namely put them into two groups; other will follow. The powers closely related to the constitution will be in the first group, namely resolving conflicts between the federation and the member states, conflicts among highest bodies of the federation's state power, also conflicts between the federation and the associated states (mentioned earlier), conflicts among the member states and finally adjudicating conformity of laws of the Union and of decrees of the Council of Chancellors as well as of constitutions, laws and other directives of the member states with the constitution of the Union.

The second group will include competencies following from position of the Supreme Court as a supreme member of the federal judicial system, namely hearing appeals from federal courts of second degree, constitutional complaints of citizens about violation of rights given by the constitution and also – which I have not mentioned earlier – conflicts about competency of court between the Union and the member states.

The mentioned division of the Supreme Court's competencies in two groups has its function not only in differentiation between constitutional and non-constitutional matters but also in a way of their hearing. The first group of matters – because of their significance – must be heard in the plenum of all 19 judges, collegia of three judges then suffice for matters of the second group. A question of majorities necessary to adopt a decision follows. It is simple at hearing cases in collegia – if there are three judges and unanimity is not required, votes of two judges are an only possible majority. I consider the same majority of two thirds of votes to be appropriate for a plenum vote (if the plenum hears more significant cases, why it should have a smaller majority?), that is concretely 14 votes (why not 13 I explain below). I do not suppose that it is necessary to determine a quorum, mentioned majorities should be valid in whatever number of present judges which means in practice the less judges are present the more unanimous their opinion must be.

There is another question whether proceedings should be public or non-public. I suppose that it is not necessary that they are public but I leave a decision to the judges themselves, concretely at the President of the Supreme Court when a case is heard in the plenum and at the chairman of a collegium if a case is heard in a collegium. To pronounce a verdict is however something else, it has to be pronounced publicly.

The last two provisions which I decided to insert in this section relate to a procedure of judges. According to the first of them, every judge has the right to suggest own proposal at hearing a case and then the obligation to vote for one of all suggested proposals – it makes to abstain from voting impossible. The second provision gives the right to attach their dissenting opinion to the judgment to the judges who disagree with a result of a voting; this should be valid for hearing cases either in the plenum and in collegia.

Now I move to provisions about the President of the Supreme Court. I wrote in the previous post that the President should be an only judge of the Supreme Court elected directly by citizens and his (her) exceptional position in the Supreme Court should be in accordance with it. Organizational powers are naturally above all the point; I tried to determine them in a way that the president has an influence on direction and decision-making of the court though he cannot get round voting of other judges.

That the president will represent the Supreme Court externally is self-evident so I immediately go over to other competencies and they concern hearing in the plenum. The president of the court should have the right to call a session of the plenum, to chair it, to open discussion and to vote as the first and to charge a concrete judge with writing a decision after voting. Because he should not be a member of any collegium he can vote only in the plenum. Here I asked myself a question whether to moderate discussion and to vote in the plenum is a sufficient possibility to influence the court's direction of opinion. Although I will mention more other administrative powers of the president of the court I reached the conclusion that it itself cannot be a sufficient expression of the president of the court's exceptionality against other judges and that I can dare to assign two votes to him at voting – it is not too exaggerated, the president alone this way cannot outvote other judges, it however symbolicly reflects that he unlike other judges was established in his office directly by the people. Then a majority of minimally 14 votes instead of 13 for pronouncing a judgment in the plenum follows from it as I have mentioned above.

Other competencies of the President of the Supreme Court relate to filling the collegia; he should have the right to place the judges to individual collegia and to determine their chairmen in my suggestion. I determined however one restriction so as the president of the court cannot arbitrarily manipulate with things being heard through transferring judges; this should be prevented with a provision that a judge cannot be transferred to another collegium in the time in which he considers a case but only after pronouncing a judgment. I also leave in the president's hands to determine a work plan of the plenum and the collegia, with a condition that it will not be for a period shorter than two weeks. I added one more to powers of the President of the Supreme Court over the collegia, namely a power at discretion to commit a case belonging to a collegium to plenum's hearing. The president's last administrative competence in my suggestion then is to manage ordinary operation of the Supreme Court, to engage employees and determine their job content; a condition was added by me here that employees assigned as judges' assistants must be educated in law of the Union (with detail stipulated by the law).

A question of temporary replacement of the President of the Supreme Court remains. There is no permanent Vice-President of the court in my proposal. By that reason, I added a provision that the president of the court can entrust anyone else judge with execution of his powers in the time of his absence but with one exception, namely the right to vote. As I have already written two votes of the President of the Supreme Court are expression of that he has unlike other judges direct support of citizens, no other judge should therefore have these two votes at his disposal. But there is a question whether the president of the court would schedule a plenum voting for a time of his absence.

I have no other special power for the president, so a statement remains that – except as above stated – all provisions concerning other judges (including matters about which I have not written yet) should relate to the court's president too.

Rules regulating election of the President of the Supreme Court naturally cannot be absent among other provisions concerning him (her). I believe that it is not necessary to invent anything new and that provisions regulating election of the Council of Chancellors (see here) should be used here, that is to say the majority system of two rounds with a requirement of double majority. The only two differences are in requirements for candidates and in number of citizens requisite to enroll a candidate. A candidate for the President of the Supreme Court has to meet criteria for other judges of this court, it is to say age of 40-70 years and activity in law of the Union of at least 10 years. As number of supporting citizens is concerned I decreased it against the corresponding number at election of the Council of Chancellors because experts of law discipline have smaller chance to obtain broader people's support than representatives of executive public functions. So my numbers are in this case 50 000 supporting citizens (a half of the number required to support  candidates for the Council of Chancellors) from at least three member states (or other members of the federation).