Judiciary of Montecara

A schematic diagram of the Montecaran court system

The judiciary of Montecara comprises a system of independent courts overseen by professional judges. Montecara is a civil law jurisdiction, basing its judiciary on Solarian law. Trials are conducted using the inquisitorial system.

The judiciary is divided into two streams: the judicial stream handles criminal matters and lawsuits between private entities, and the administrative stream handles cases against the state itself.

Under Montecaran law, criminal offenses are organized into three categories: contravenxòni (violations), typically charged for violating regulations or traffic laws or committing minor assaults; delìti (misdemeanors), for instance theft, most drug offenses, and some sexual assaults; and crimà (felonies), the most serious crimes such as murder, manslaughter, rape, arson, or armed robbery. Felonies are the only offenses tried by a jury.

The state is represented in criminal trials by a procurator procuradòr (public prosecutor). The Procurator-General (Procuradòr-xenèr) is the state's senior prosecutor and is called on to represent the interests of the state itself in matters of national or international importance.

Because Montecara's judiciary is governed by civil law, judges are not empowered to make or invalidate laws; nonetheless, the doctrine of jurisprudence constante is influential, and courts will often cite similar cases where the same judgment was reached when making their decisions. Montecaran courts do not issue advisory opinions.

History

Allegory of the Republic as Justice, Palaço Novo, 1790

• Solarian law
• Medieval communal law
• Gaullican period innovations
• Independence and revision

Sources of law

Sources of law have the following hierarchy, with each source of law superseding any laws below it:

1. Constitution of Montecara
2. Treaties
3. Primary legislation (Acts of the Senate and Popular Assembly)
4. Secondary legislation (Regulations issued by the executive)
5. Minor administrative acts such as decrees, orders, and memoranda

Instruments not carrying the force of law include proclamations and resolutions issued by the Senate or College of State. In keeping with the tenets of the civil law system, precedent is not binding. Nonetheless, judges practice jurisprudence constante, so previous decisions are persuasive.

Primary and secondary legislation is gathered into six codes:

• Penal Code (Còdixe Penàl)
• Civil Code (Còdixe Çìvil), which is organized into five parts:
  • I: General Part
  • II: Law of Obligations
  • III: Law of Property
  • IV: Family Law
  • V: Law of Succession
• Administrative Code (Còdixe Aministratìva)
• Code of Criminal Procedure (Còdixe da Proçedùra Penàl)
• Code of Civil Procedure (Còdixe da Proçedùra Çìvil)
• Code of Administrative Procedure (Còdixe da Proçedùra Aministratìva)

Court system

A ceremonial meeting of the Criminal Chamber of the Supreme Court

Courts are organized into three tiers: trial courts, appeals courts, and the Supreme Court. The constitution grants courts the sole authority to adjudicate legal disputes and forbids the creation of extraordinary courts.

Supreme court

Main article: Supreme Court of Montecara

The Supreme Court of the Republic (Cor Suprèma da Repùblica) is Montecara's court of last resort. It is composed of three chambers dedicated to civil, criminal, and administrative law respectively, each with seven judges. Each of the three chambers is the court of cassation for its area of law. Together, the 21 judges make up the Grand Chamber, which deals only with questions of constitutional review. It cannot strike down laws, but it can decide that laws are in violation of the constitution and grant relief, including by referral of the law back to the Senate.

Courts of appeal

The appellate court for judicial matters is the Court of Appeal (Cor d'Appèl). It hears appeals from the Court of Assizes, Court of First Instance, and Civil Court, usually in panels of three judges. Appellate judges are empowered to determine whether the law has been correctly applied.

Appeals from the Administrative Tribunal are heard by the Administrative Court (Cor Aministratìva).

Courts of first instance

Judges at the ceremonial opening of the judicial year, 2019

Criminal

There are two courts of first instance for criminal matters: the Court of Assizes (Cor d'Açìs) and the Court of First Instance (Cor da Primèr Instànxa). The Court of Assizes tries serious crimes (crimà) before a judge and jury of eight randomly chosen citizens. It is the only court in the Montecaran judicial system which uses a jury. The Court of First Instance is responsible for all other criminal matters. It tries cases before a judge, without a jury. Minor offenses (contravenxòni) may technically be tried before any judge, but are almost always delegated to a magistrate, a junior official who also may also conduct other non-trial proceedings such as conducting preliminary hearings, setting bail, appointing counsel, and advising defendants of their rights. A chamber within the Court of First Instance is dedicated to juvenile justice.

Civil

The Civil Court (Cor Çivìl) is the court of first instance for civil matters. It has specialized chambers dedicated to small claims, labor, rents and tenancy, family matters, commercial matters, and insolvency. Cases are heard by a judge sitting alone.

Administrative

The Administrative Tribunal (Tribunàl Aministratìva) is a trial court that adjudicates disputes between private persons and the state. These cases arise when an executive department fines or otherwise penalizes a person or company for violating a regulation and the penalty is challenged, or when someone otherwise objects to an administrative decision. For instance, if a trading firm was fined by the Secretariat of Trade and Industry for violating securities regulations, it could challenge the decision before the tribunal. A civil servant who felt they were unjustly fired, or a government contractor who claimed that they were underpaid, could also bring their case.

The tribunal's status as the trial court for regulatory matters requires it to rule on a hugely diverse set of subjects, from parking citations and business licenses to immigration status and protecting endangered species.

The Court of Accounts (Cor di Cònti) is a specialist court that performs financial audit functions.

Judicial appointments and tenure

The Council of the Judiciary is responsible for selecting Montecaran judges. The Council consists of:

• The Secretary responsible for judicial matters (presently the Secretary of State)
• The president of each of the three chambers of the Supreme Court
• The president of the Court of Appeal
• The president of the Administrative Court
• One professor of law at the University of Montecara
• Two practicing trial attorneys chosen by the Barreau Montecarà
• Three Senators from at least two different parties

The Council fills vacancies by choosing from among qualified candidates. By law, prospective judges must be licensed to practice law in Montecara, have practiced law for at least three years, and be of good moral character. Candidates meeting these requirements sit for a competitive examination given annually which consists of written and oral parts. Those passing the examination are placed on a list of prospective judges and then nominated by a decision of the Council. In the case of appointments to trial-level courts, no further action is needed; the Council has sole authority to make appointments. In the case of appointments to appellate courts or the Supreme Court, the Council presents the Senate with a short list of at least three candidates, and the Senate chooses from among them. Appointments to appellate courts and the Supreme Court are usually made by promoting judges from lower courts.

Judges are appointed for life (with mandatory retirement presently set by law at age 70) and cannot be removed except for inability or malfeasance. Their pay may not be reduced while in office.

In addition to its nomination and appointments functions, the Council is responsible for adjudicating cases of judicial misconduct.

Public prosecutor

The public prosecutor has the power to:

• supervise investigations by law enforcement agencies
• conduct investigations
• request, when necessary, investigative measures by the judge
• lay charges
• present the case in court
• propose a sentence to the judge
• appeal a sentence (but not a verdict)

Procedures

In contrast with common law systems which apply different standards of proof to civil and criminal matters, Montecara follows the civil law principle of requiring all facts to be proven according to an "intimate conviction" (convixòn ìntima), with very limited exceptions as laid down in statutes. Evidence can be in either oral or documentary forms, and certain documentary evidence, specifically public documents, court decisions, and certifications of public registries, are considered "assessed evidence", meaning that they are beyond reproach. Other forms of evidence may be given whatever weight the judge or jury finds compelling.

The burden of proof in all matters is on the party making allegations. This means that it is, in criminal matters, on the prosecution, and defendants enjoy the presumption of innocence. Defendants have a broad right to obtain evidence in their favor, including through compulsory testimony from witnesses and the production or acquisition of physical evidence. Evidence is subject to requirements that it be relevant to the case at hand and legally obtained. Because attorneys have a legal and professional obligation to respect their clients' secrecy, information arising from the attorney-client relationship is inadmissible as evidence.

Criminal procedure

Criminal proceedings are undertaken in the name of the Montecaran people. The state has a general obligation to prosecute all crimes; there is no selective enforcement of the laws as sometimes occurs under common law systems, where state attorneys have discretion on whether to prosecute. While it is possible for a trial to be discharged by a judge if a confession is made in open court, the presumption is that all cases are fully prosecuted and tried unless exceptional circumstances intervene, and there is no formal "pleading" phase.

Domestic law enforcement agencies have plenary authority to make arrests for violations of the Montecaran criminal code. For many petty offenses, officers will choose to write a summons (çitaxòn) rather than make a physical arrest, usually requiring the suspect to appear in court at a future date or, in very minor cases, the option to admit guilt and pay a fine online or by mail without the need to appear in court at all. This approach is also standard for minor contraventions of administrative law such as parking violations or improper disposal of household garbage.

If officers decide to make an arrest, however, they must tell the suspect the reason for the arrest and inform them of their rights to remain silent and have the assistance of counsel. The suspect is taken into custody, usually at a police station or, in certain cases, at Molàro prison. Suspects have the right to appear before a judge or magistrate within 12 working hours of detention, at which point an advocate for the state will present the reasons for the arrest to the presiding judge, who then must decide whether there is a compelling reason to keep the suspect in detention. There is a general right to go free before trial in Montecara and pre-trial detention is legally an exception to the rule; the relevant portion of the Constitution of Montecara reads:

Those accused have the right to their liberty before their case is decided unless it is necessary, for reasons of public safety or the proper administration of justice, to detain them, in which case a judicial order must be issued by the designated judge giving the reasons for the detention. (Ch. II, t. I)

Nevertheless, it is far more common than not for suspects accused of serious offenses to be held in detention before and during trial. Detained suspects have the right to unsupervised communication with their lawyer, spouse, and consular representative if a citizen of a foreign state, and must be held separately from convicted offenders.

The Montecaran penal system makes extensive use of house arrest, probation, and suspended sentences in place of incarceration. It is also common for custodial sentences to be served part-time, such as at night or on weekends. These measures are intended to promote rehabilitation and allow convicts to maintain a relatively normal life, which the state acknowledges often includes caring for family members and staying employed, both of which are considered to have salutary effects on society as a whole. It is also quite common for sentences to include the payment of restitution to the victims of one's crimes in a nod toward restorative justice. Fines are, by law, not remanded to the government but are instead placed in a victims' compensation fund.

The age of criminal responsibility has several tiers:

• Younger than 9 years: no criminal responsibility
• 9 to 12 years of age: liable for serious offenses (crimà) only, and if found guilty will be confined to a residential education program staffed by social workers rather than guards.
• 13 to 15 years of age: age must be considered a mitigating circumstance. Courts must consider alternatives to incarceration and those convicted cannot be held with adult prisoners while a minor.
• 16 to 18 years of age: age must be considered a mitigating circumstance. Maximum 20 years' imprisonment, and cannot be held with adult prisoners while a minor.

Defendants aged 19 and 20, while criminally responsible, may have their age considered a mitigating circumstance by the court when determining criminal intent and during sentencing.

There is no insanity defense; defendants adjudged guilty but insane are committed to specialized psychiatric care within the penal system.

Civil procedure

Civil cases are tried before a single judge with no jury. Attorneys' fees operate on the principle of "loser pays".

Legal aid

There is a right to counsel in criminal matters. The state provides counsel for those who cannot afford representation, with support on a sliding scale based on income. Those at the low end of the scale are provided a lawyer free of charge. There are no "public defenders" as such in the sense that no one is directly employed by the state solely to advocate for indigent clients. Rather, all practicing defense lawyers in the country are expected to provide occasional legal aid service in this manner when called upon, and a number of legal aid organizations exist with the mission of providing assistance to defendants in need.