Judiciary of Montecara

A schematic diagram of the Montecaran court system

The judiciary of Montecara comprises a system of politically independent courts overseen by professional judges. It is divided into three streams: civil (private) law, criminal (public) law, and administrative law.

Montecara is a civil law jurisdiction.

Foundational concepts

Montecara does not employ juries, but it does make use of lay judges in a number of circumstances. These are members of the public without formal legal training who are called by sortition and serve for a limited duration on a part-time basis. Their use is designed to ensure that there is a representative diversity of opinion in appropriate legal matters and that the legal system retains an element of democratic self-rule in keeping with the Montecaran constitution. Lay judges are required to be Montecaran citizens at least 21 years old who have not been convicted of a serious offense, who are not on active service in the military or police forces, who are not lawyers, notaries, or judges, and who are of healthy mind, good character, and sound judgment.

There is a general right of appeal in Montecara. Appeals must usually be made within three months of a court's decision and are in most circumstances granted.

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

Civil law courts

Tribunals

Under Montecaran law, tribunals (tribùni) are quasi-judicial bodies which are outside the formal court system. There are two such tribunals in the civil law stream: the Popular Tribunal (Tribùn popolà) and the Labor Tribunal (Tribùn sindicà).

The Popular Tribunal consists of panels of three lay judges sitting without a professional judge. They are assisted by a professional notary who is always present in the hearing room and available to answer questions regarding the law. They settle private disputes over property and obligations amounting to no more than Ł15,000. Hearings are legally not trials and parties must represent themselves without the aid of a lawyer.

The Labor Tribunal sits in panels consisting of one trade union representative, one representative of an employers' organization, and one lay representative of the Montecaran state, usually an employee of the Secretariat of Social Protection. It is empowered to hear disputes between workers and their employers regarding collective bargaining agreements, labor contracts, workers' rights, and wages and benefits where they do not touch on criminal law.

Common Court

The Common Court (Pretùra comùn) is the court of first instance for general civil matters. Cases are decided by a single professional judge.

Procuracy

The Procuracy (Procuradòria) is the court of first instance in cases regarding wills, trusts, estates, family law, guardianship and administration, and bankruptcies. The judges, called procurators (procuradòri), interpret the law in accordance with principles arising from natural law notions of equity and justice, and so are able to offer more flexibility than those in other courts. They are able to appoint guardians, executors, and administrators to see that their decisions are complied with. Most cases are heard by a single procurator, but complex cases (for instance those dealing with large estates) may be heard and decided by a panel of three.

Mercantile Court

The Mercantile Court (Pretùra mercantìl) is a specialized court that deals with company law, contracts, patents, and maritime law. It is one of the busiest in the Montecaran court system as it has jurisdiction in any case involving a domestic corporation, of which there are many thousands due to Montecara's lack of a requirement for physical presence when incorporating. Montecara is also a popular flag of convenience, and the court similarly has jurisdiction over all such ships. It is known for its expertise and the relative speediness of its decisions. Cases are usually heard by a three-judge panel at the first instance and appealed to a new seven-judge panel if necessary.

In addition to its judicial functions, the Mercantile Court ceremonially "tries" all Montecaran coinage every year to ensure its purity and see that the coins are the proper weight. This trial, purely symbolic in modern times, was once practical given the importance of precious metal coinage to Montecaran trade.

Court of Revision

The Court of Revision (Pretùra di revixiò) is the court of appeal for the Procuracy and Common Court. It has no appellate jurisdiction over the Mercantile Court. Appeals are heard by a panel of five judges.

Criminal law courts

Allegory of the Republic as Justice, Pretùria, 1790

Magistracy

The Magistracy (Magistratùra) is the court of first instance for minor criminal matters and juvenile cases. Judges, called magistrates (magistrà), can impose penalties of up to twelve months' detention and a maximum fine of Ł25,000. Cases are heard by a single magistrate.

Public Court

The Public Court (Pretùra pùblica) is the court of first instance for serious criminal matters (crimà), which are subject to unlimited fines and imprisonment, as well as a court of appeal for cases heard by the Magistracy. First-instance cases are heard by a panel consisting of one professional judge and four lay judges, while appeals are heard by a panel of three professional judges.

Military justice

Military justice in Montecara is concerned only with offenses of a solely military character; criminal offenses committed by members of the military are heard by ordinary criminal courts. Members of the military who commit offenses against regulations are generally disciplined by their commissioned or non-commissioned officers by oral or written reprimand, forfeiture of pay, extra duty, or revocation of privileges. Servicemembers have the right to appeal these measures to a court-martial. Courts-martial are convened by a panel consisting of at least one commissioned officer who is also a qualified lawyer and two other commissioned officers serving as lay judges. Courts-martial have the power to sentence servicemembers to confinement only during wartime or foreign deployment.

Appeals from courts-martial are heard by the Secretary of Defense and Security, who has the authority to either decide the appeal on his own or to refer the case to a panel of superior officers for consideration.

Administrative courts

Administrative tribunals

There are dozens of administrative tribunals which issue decisions on traffic regulations, urban planning, historic preservation, labor relations, business licenses, and many other aspects of administrative law. These tribunals are quasi-judicial and are staffed by employees of the administrative departments, not by professional judges or attorneys.

Court of Ordinances

The Court of Ordinances (Pretùra dèa ordinà) is the appeals-level court for cases arising from the administrative tribunals. It usually hears cases in panels of three judges, but may constitute larger tribunals at its discretion where additional expertise is needed.

Court of Petitions

The Court of Petitions (Pretùra di istànsa) is a specialized administrative court that hears claims against the Montecaran state. As such, the state is the respondent in all of its hearings. Petitioners can seek injunctive relief as well as monetary damages and awards.

Court of Examiners

The Court of Examiners (Pretùra di examinatòri) is the court of cassation for administrative law. It hears appeals from the Court of Petitions and Court of Ordinances.

Court of the General Audience

The Court of the General Audience (Pretùra da audiènxa xenèra) is the court of cassation for criminal and civil matters. It has the power to quash decisions of lower courts on the basis of non-conformity with Montecaran or relevant international law.

Judicial functions of the Senate

The Senate is the court of last resort for all matters under Montecaran law. Cases referred to it by the Court of the General Audience or the Court of Examiners are considered by a committee of Senators with legal experience who then report their findings and opinions to the full Senate for a final decision.

Criminal procedure

Domestic police—most commonly the Vigìlia and Dragòni—have plenary authority to make arrests for any violation of the Montecaran criminal code. For many petty offenses, police 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 simply pay a fine 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 the police decide to make an arrest, however, they must inform the accused of that fact and the section or sections of the penal code they have been suspected of violating. The suspect is taken to a temporary holding cell, usually located in a police station or, in certain cases, at Molàro prison or in a court building. 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 state has a general legal obligation to prosecute anyone accused of a crime; there is no selective enforcement of the laws as sometimes occurs under common law systems, where lawyers for the state will decline to go forward with judicial proceedings. Nor is there a formal "pleading" phase; 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.

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 criminal 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.

Cases in the Public Court are heard by a panel of one professional and four lay judges; there are no juries in Montecara. The duty of the judges at trial is to act as finders of fact. They are empowered to investigate, ask questions, call witnesses, examine evidence, and order the production of documents in the course of their work. Of the panel, only the professional judge speaks in the courtroom; lay judges communicate with him or her in writing or in private side conversations that are off the record. The entire panel of five judges must agree that the facts of a crime have been established and that the accused is therefore guilty.