EuropeanSupreme Courts

A Portrait through History

Edited by A.A. Wijffels and C.H. van Rhee

Foreword by Baron Neuberger of Abbotsbury, President of the Supreme Court of the United Kingdom

European Supreme Courts: A Portrait through History 2013 © Third Millennium Publishing Limited

First published in 2013 by Third Millennium Publishing Limited, a subsidiary of Third Millennium Information Limited.

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ISBN: 978 1 906507 40 4

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Editors Alain Wijffels and C.H. (Remco) van Rhee Project management Joel Burden and Christopher Fagg Language revision Randolph Davidson Picture research Neil Burkey and Joel Burden Design Matthew Wilson Production Bonnie Murray Consultant Maarten Koning Reprographics Studio Fasoli, Verona, Italy Printing Gorenjski Tisk, Slovenia

Court of Justice of the European Union, Luxembourg.

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Contributors 3

Foreword – Baron Neuberger of Abbotsbury, President of the Supreme Court of the United Kingdom 6

Timeline 8

SECTION ONE

Introduction: European Legal History and 14 the Diversity of Supreme Judicatures Alain Wijffels • The Case of Arnold the Miller / A. Wijffels / 35

1 Italy from Medieval Times to 1800 38 Mario Ascheri • The Legal System of Venice / M. Ascheri / 42

• Stating the Judgment’s Reasons / M. Ascheri / 48

• The Courts of the House of Savoy / M. Ascheri / 51

2 Italy since 1796 52 Paolo Alvazzi del Frate

3 Late-Medieval and Early-Modern France 62 Alain Wijffels • The Parlement of Flanders / A. Wijffels / 72

4 France from the Revolution to the Present 74 Alain Wijffels • The Judiciary in the French Written Constitutions / A. Wijffels / 79

5 The Holy Roman Empire: the Imperial Courts’ 86 System and the Reichshofrat Eva Ortlieb

6 The Holy Roman Empire: the Reichskammergericht 96 Anette Baumann

7 The Holy Roman Empire: the Court of Wismar 104 Nils Jörn

8 The Scandinavian Supreme Courts 114 Kjell Å. Modéer

9 Germany and Austria in the 19th and 20th Centuries 120 Werner Ogris • Public-law Jurisdiction / W. Ogris / 121

• The St Paul’s Church Constitution (1849) / W. Ogris / 123

10 Switzerland 138

Michele Luminati

11 Spain and Portugal until the 18th Century 142 Ignacio Czeguhn and Antonio Sánchez Aranda

12 Spain and Portugal after 1800 150 Alvaro Pérez-Ragone and Matthew C. Mirow

13 Poland-Lithuania 160 Wacław Uruszczak

14 Russia 166 Vladimir Yarkov

Contents

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Contents

15 The English Common Law and Chancery 172 Jurisdiction, Late Middle Ages and Early-Modern Times Anthony Musson

16 The Restructuring of the Superior Courts in 182 England during the 19th Century Chantal Stebbings

17 Scotland: the Court of Session from its 190 Foundation to 1800 Mark Godfrey

18 The Scottish Court of Session in the 19th and 198 20th Centuries John Blackie

19 The Low Countries until 1800 204 C.H. (Remco) van Rhee • A Lawyer’s Office / A. Wijffels / 209

20 Belgium, the Netherlands and 218 Luxembourg since 1800 Georges Martyn

21 Southeastern Europe, 1526–1820 228 Marko Petrak

22 The Ottoman Empire and Turkey 234 Ruth A. Miller

SECTION TWO

Introduction: Supreme Judicature in the 240 20th and 21st Centuries C.H. (Remco) van Rhee • Legal Studies at the College of Europe / E. Muir / 248

23 20th-Century International Courts and 250 Peaceful Dispute Settlement Raymond Kubben • Iron Rhine Arbitration / R. Kubben / 252

• Solid as Two Groups of Rocks / R. Kubben / 255

• Limits at Sea / R. Kubben / 255

• The Disintegration of Yugoslavia / R. Kubben / 260

24 The Court of Justice of the European Union 262 Hildegard Schneider • The Relationship Between the Court of Justice of the

European Union and National Courts / H. Schneider / 273

25 The European Court of Human Rights 274 Alan Uzelac • Sample Cases / A. Uzelac / 278

• In Prison, but with Access to Justice / F.J. Fernhout / 280

Bibliography 285

Picture Acknowledgements 288

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The notion of Southeastern Europe for the purposes of this contribution applies to the territories of those present-day states, in this part of Europe, that have not yet become

members of the European Union: Croatia (which will become a member in 2013), Bosnia and Herzegovina, Serbia, Montenegro, Macedonia, Kosovo and Albania. The period covered begins in 1526 with the Battle of Mohács, following which the Ottoman Empire experienced its greatest territorial expansion in Southeastern Europe. The end date 1820 was the year in which the Habsburg monarchy replaced Napoleon’s judicial system with its own in the territories of the region it ruled. Over the centuries concerned the region as a whole – territory by territory – saw various jurisdictions at different times depending on the ruling power. Six areas in particular are dealt with in this chapter: 1) territories within the Holy Roman Empire; 2) territories within the Venetian Republic; 3) the Republic of Dubrovnik; 4) the Lands of the Crown of Saint Stephen; 5) territories within the Ottoman Empire; 6) territories within the Napoleonic Illyrian provinces. A brief outline of the judicial system within the framework of each section will be given, with special emphasis on superior courts, including remarks on legal systems applied in the respective territories.

judICIAry IN ThE TErrITOrIES WIThIN ThE hOly rOmAN EmpIrEThe areas within the Holy Roman Empire were those presently located in western Croatia: the interior of the peninsula of Istria and the port city of Rijeka (Fiume) with its hinterland.

The interior of the Istrian peninsula, often referred to as Habsburgian Istria, with its centre at the town of Pazin (Pisino, Mitterburg), came under the rule of the Habsburg dynasty in the 15th century. Any town or village within the territory constituted

a separate community. A handful of towns had their own statutes as ius proprium, while feudal law applied in the countryside. The župan was at the head of each community and two or more judges operated with him. In matters of lesser importance the župan served as the main judge with the help of other judges, while feudal landlords dealt with cases of medium importance. The vicar, or provincial judge (iudex provincialis, Landrichter), dealt with cases of highest importance with the help of the Council of Ten Župans. The vicar was elected from among local noblemen and resided in Pazin. Cases from Habsburgian Istria at second instance were dealt with by the Court of the Vicedom of Carniola in Ljubljana (present-day Slovenia). The vicedom (vicedominus) served as judge together with assessors (assessores) and was responsible to the Imperial Chamber (Kaiserliche Hofkammer) in Graz (present-day Austria). The supreme courts of the Holy Roman Empire, the Reichskammergericht and the Reichshofrat, were the final instance.

A similar judicial system existed in the seaport city of Rijeka with its hinterland, ruled by the Habsburgs from the second half of the 15th century. The vicar (vicarius) was at the head of the Judiciary in Rijeka and served as judge in civil and criminal cases of greater importance. Apart from the vicar, there were also two city judges who dealt with routine civil and criminal matters. As prescribed in the Statute of Rijeka of 1530, ius commune was to be applied as a subsidiary source of law and the vicar was required to be a trained lawyer. The second-stage instance was again the Court of the Vicedom, with the Reichskammergericht and the Reichshofrat as the courts of highest instance. Given that Rijeka was an important centre of maritime trade, a separate commercial court was established there in 1723. From 1752 the appellate instance for commercial cases was the Cesarea Regia Intendenza Commerciale per il Litorale (Kommerzial Haupt-Intendanz) in Trieste (present-day Italy), whereas the Imperial

Southeastern Europe, 1526–1820Marko Petrak

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Chamber (Kaiserliche Hofkammer) in Graz was the court of revision. From 1776 the Judiciary of Rijeka gradually blended in with the judicial system of the Lands of the Crown of Saint Stephen.

judICIAry IN ThE TErrITOrIES WIThIN ThE vENETIAN rEpuBlICAreas once part of the Venetian Republic are today for the most part located in Croatia (littoral Istria, Dalmatia), and to a lesser extent in Montenegro (the Bay of Kotor or Bocca di Cattaro).

Coastal Istria, often called Venetian Istria, fell to the Venetian Republic in the 15th century. Within Venetian Istria, urban communities were distinct from feudal manors. Urban communities, such as Pula (Pola) or Poreč (Parenzo), had their own city statutes as ius proprium, whereas feudal law applied in the territories beyond. Local systems had to conform to Venetian law. The podestà was at the head of the urban communities’ administration, a nobleman appointed by the Venetian Senate for a limited period of time. In addition to his executive functions, the podestà was the holder of judicial power in the commune, assisted by three or four judges (iudices) from the community itself. Only the podestà could pass a judgment in criminal cases, whereas he dealt with civil cases empanelled with local judges. The feudal lord had the same judicial power in his territory as the podestà had in the urban communities.

Higher-instance cases from Venetian Istria were initially dealt with by the central judicial authorities of the Venetian Republic, primarily the Supremo Tribunale della Quarantia (composed of 40 citizens acting as temporary magistrates). However, from 1584 a separate and permanent magistrate (magistrato) in Koper (Capodistria, in present-day Slovenia) became the appellate instance for all cases from Venetian Istria. In other words, the magistrate at Koper had the power of judicial review over every Istrian podestà. Hence the Venetian judicial system in this area devolved to localised administration.

A very similar judicial system existed in two other areas within the Venetian Republic: Dalmatia and the Bay of Kotor. As early as the 15th century, Venice controlled all the urban communities in these areas with the exception of Dubrovnik (Ragusa). The latter, located between Dalmatia and the Bay of Kotor, evolved into an independent republic. As elsewhere, these urban communities, for instance Zadar

(Zara), Split (Spalato) and Kotor (Cattaro), had their own town statutes as ius proprium. Again, the statutes, created before Venetian rule in a number of cases, had to be harmonised with Venetian law. The count (conte), a nobleman appointed for a limited period of time by the Venetian Senate, under whose instructions he ruled, was the head of administration of the urban communities. As well as his executive functions, the count was the head of the Judiciary in each community, assisted by three or four local judges. As in Venetian Istria, the conte was the only authority who could pass judgment in criminal cases, whereas in civil cases he sat with local judges.

Following the early Venetian pattern, the appellate instance for cases from the area of Dalmatia and the Bay of Kotor lay initially with the central judicial authorities in Venice. However, from 1610 the General Providur (proveditore generale), normally a prominent Venetian nobleman, exercised authority over the second and final judicial instance in all criminal and civil matters in these territories. He resided in Zadar (Zara, present-day Croatia) and governed on behalf of the Venetian Republic. This judicial structure remained more or less unchanged until the collapse of the Venetian Republic in 1797.

judICIAry IN ThE rEpuBlIC Of duBrOvNIKThe Republic of Dubrovnik, located between the Venetian territories of Dalmatia and the Bay of Kotor, was an independent state from 1358 until 1808. Despite formally being a protectorate

Drawing of a law court, Dubrovnik, 18th century.

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of the Ottoman Empire from 1526, the legal system and the legal culture of this Catholic state were not in the least affected by this fact. Dubrovnik today lies in southernmost Croatia. As far back as 1272 the Statute of Dubrovnik (Liber statutorum civitatis Ragusii) prescribed the existence of two courts: the Great Court (Curia maior vel magna) and the Small Court (Curia parva vel minor). The Great Court originally had five judges (iudices) and dealt with cases of greater importance, while the Small Court originally had three judges who dealt with lesser matters. The judges were elected by the Great Council (Consilium maius) – an assembly of all aristocrats in the Republic who were of age – for a period of one year. As an aristocratic republic, it follows that all judges were themselves noblemen.

During the 15th century, the criminal and civil justice systems gradually separated. While the criminal justice system remained under the competence of the Great Court, now composed of six judges (sex iudices de criminali), the civil justice system was taken on by the newly established Curia consulum causarum civilium, which had 12 judges. Initially the judgments of the Dubrovnik courts were final, hence there was no possibility of appeal. However, during the 15th century, after the Ordo appellationum was adopted, it became possible to lodge an appeal in civil and criminal cases. The appeals were decided by the Senate (Senatus), a political body composed of the most prominent noblemen.

It is important to mention in this context that between the 16th and the 18th centuries several manuals appeared in which the civil procedural law of Dubrovnik was treated in a systematic way. We are talking about the following works: S. Benessa, Praxis curiae ad formam legum et consuetudinum Reipublicae Ragusinae; N. Bona, Praxis iudiciaria iuxta stylum curiae Rhacusinae; M. Tudisi, Praxis iuridico-civilis fori Ragusini. Although the ius commune – as in the Venetian Republic – was not a direct source of law in Dubrovnik, these manuals tell us that the principles, institutes and concrete solutions of that law were indeed a very important element of Dubrovnik’s judicial practice.

judICIAry IN ThE lANdS Of ThE CrOWN Of SAINT STEphENThe Lands of the Crown of Saint Stephen historically encompassed the kingdom of Hungary, the kingdom of Croatia and Slavonia and the Grand Duchy of Transylvania. The majority of this territory is today within European Union member states (Hungary, Romania);

the exceptions are the former kingdom of Croatia and Slavonia (almost the entire territory of present continental Croatia) and some parts of the former kingdom of Hungary, which are today in Croatia (Baranja, Medjimurje) or in Serbia (Bacska, Banat). It should be noted that previously these countries had been for the most part under Ottoman rule from the Battle of Mohács in 1526 to the 1699 Treaty of Karlowitz. The nature of the Judiciary in the territories within the Ottoman Empire is elaborated further below; the theme of this section is the Judiciary in the Lands of the Crown of Saint Stephen after the liberation from the Turks.

The judicial system in the Lands of the Crown of Saint Stephen was complex and hierarchical. A description of it, seen through the prism of relations between the aristocracy and the rural population, was brought to us by the English travel writer Rev.Charles Boileau Elliott (1803–75) in his Travels in the Three Great Empires of Austria, Russia and Turkey. Although the book was published in 1838, the following quote clearly reflects the entire post-Ottoman feudal period:

The seigneurs have great power over their vassals; and since they have virtually, if not legally, the nomination of the magistrates, who are taken out of their own body, this power knows little restraint but that imposed by their own judgment or caprice. In cases of mal-treatment, the peasant has nominally four appeals: First, to the magistrate of the county; Secondly, to the Sedes judiciaria, consisting of a president, called vice-comes, with four assessors, a sheriff, called Iudex nobilium, a doctor of laws who acts as legal adviser, and another member, forming the complement of eight; Thirdly, to a higher court, called Tabula regia, consisting of a president and nobles, varying in number from 9 to 21; Fourthly, to a court at Pest, called from its original constitution Septemviral, but now including 17 members. This series of courts of appeal would seem to offer to the vassals a hope of redress against their seigneurs in case of oppression; but when the time and expense required are taken into consideration, in addition to the fact that the majority, if not all, of the judges are themselves nobles, and therefore likely to side with their own body, it will be evident that the probability of justice being administered with equity is but slender.

In addition to Elliot’s description, for the sake of precision it should be emphasised that after 1715 the appellate instance for

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the kingdom of Hungary was the Royal Court of Appeal (Tabula Regia) at Pest, and for the kingdom of Croatia and Slavonia the Court of the Ban (Viceroy) (Tabula Banalis) at Zagreb. The final instance was the Septemviral Court (Tabula septemviralis) at Pest as the tribunal of cassation.

These courts applied Hungaro-Croatian customary law, which was compiled by Stephen (Istvan) Werböczy in his famous Tripartitum (Tripartitum opus iuris consuetudinarii inclyti Regni Hungariae) of 1514. Regardless of the European ius commune not being a direct source of law in the Lands of the Crown of Saint Stephen, procedural law manuals – such as the prominent work of Ioannes Kitonich, Directio methodica processus iudiciarii iuris consuetudinarii inclyti regni Hungariae of 1619 – point to the fact

that some important elements of ius commune were undoubtedly present in the legal life of the time.

At this stage several facts about the ecclesiastical courts (iudicia ecclesiastica) of the Catholic Church should be mentioned. These courts had great significance in many areas of Southeastern Europe. Apart from the ‘pure’ canon law issues, they had competence over many family law and inheritance law matters. The bishops’ courts were the first instance. Appeals against judgments of bishops were lodged with the Metropolitan Court. The Rota Romana was the final instance as the highest appellate tribunal of the Catholic Church. A curiosity worth mentioning is the fact that in the Lands of the Crown of Saint Stephen filing complaints to Rome directly – bypassing the prescribed judicial hierarchy – was punishable by death.

Tripartitum: the book of Hungaro-Croatian customary law compiled in 1514 by Stephen (Istvan) Werboczy, in a German translation from 1599, published in Vienna.

Portrait of Ioannes Kitonich de Koztanicza (1561–1619). His procedural law manual Directio methodica processus iudiciarii iuris consuetudinarii inclyti regni Hungariae, reveals the role ius commune played in Hungarian legal life.

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judICIAry IN ThE TErrITOrIES WIThIN ThE OTTOmAN EmpIrEIn the period under discussion, the greater part of Southeastern Europe was ruled by the Ottoman Empire. From 1371 to 1526 Macedonia, Kosovo, Albania, Serbia, Bosnia, Herzegovina, Montenegro, as well as the Lands of the Crown of Saint Stephen, had fallen one by one to the Ottomans. The Ottoman Empire gradually extended its own administrative and judicial system into these areas of conquest. In terms of judicial organisation, the Ottoman Empire was divided into judicial units called kadiluk. The kadi was at the head of each such unit as a judge in civil and criminal matters.

In the trial the kadi applied Sharia as the religious law and the Kanun as the Ottoman state law. Before taking office, the kadi had to graduate from the Islamic school of religious and legal studies where he gained a detailed knowledge of Sharia law. The term of office of each judge regularly lasted one year and a half, and he was appointed to office by the kadiasker as acting head of the Ottoman Judiciary. The kadi’s judgments in civil or criminal cases were final and no superior courts existed in the Ottoman Empire. Exceptionally, there was the possibility of complaint as an extraordinary legal remedy, which was filed directly to the kadiasker.

It is particularly interesting to note that the Ottoman Empire had the so-called millet system as an example of pre-modern religious pluralism. According to this system, religious minorities (Christians, Jews) could have their legal disputes entrusted to their religious authorities, particularly in the sphere of family and inheritance law. In Macedonia, for example, the Ohrid

Archiepiscopy was the final instance for the Orthodox Christians in such cases until 1767. Similarly, the Patriarchy of Peć was a final judicial instance for Serbian Orthodox believers in Serbia and Kosovo between 1557 and 1766, while in Montenegro the Orthodox Metropolitanate of Cetinje performed the same function. These Orthodox religious authorities undoubtedly inter alia applied norms of Roman–Byzantine law in resolving disputes.

Elsewhere, many mountain tribes of Montenegro, Kosovo and Albania never de facto came under Ottoman rule. Customary law applied in these tribes, and the head of the tribe exercised judicial authority. In this regard, there is the particularly significant Kanun of Lekë Dukagjini, a code of Albanian customary law from the 15th century, still relevant in Albania and Kosovo to the present day. The state of the Judiciary in the territories of Southeastern Europe within the Ottoman Empire remained as described until the 19th century, when movements for liberation from Ottoman rule first developed.

ThE judICIAry IN ThE TErrITOrIES BElONgINg TO ThE NApOlEONIC IllyrIAN prOvINCESIn the late 18th century the Habsburg Monarchy made the first modest attempts at modernising the Judiciary in its southeastern territories in the spirit of the Enlightenment. However, it was after Napoleon established French rule over important parts of Southeastern Europe within the framework of his European conquests in the period from 1805 to 1809, that such modernisation appeared in its radical form.

In 1809 Napoleon incorporated the newly conquered areas in a state structure called Illyrian Provinces (Les provinces Illyriennes). These provinces included the relevant parts of present-day Austria, Italy, Slovenia, Croatia and Montenegro. In Southeastern Europe, the areas in question were Istria, Dalmatia, Dubrovnik and all Croatian regions on the right bank of the river Sava to the mouth of the river Una (present-day Croatia), as well as the Bay of Kotor (present-day Montenegro). The Napoleonic Decree on the Organisation of Illyria (Décret imperial sur l’organisation de l’Illyrie) came into force on 1 January 1812. This decree prescribed the application of the Napoleonic codes in the given areas (Code civil, Code de procédure civile, Code de commerce, Code pénal, Code d’instruction criminelle), with the aim of terminating legal particularism (essentially, the old local and regional systems).

Title page of the 1650 edition of Ioannes Kitonich de Koztanicza’s Directio methodica processus iudiciarii iuris consuetudinarii inclyti regni Hungariae.

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The decree also regulated the judicial system in the Illyrian Provinces, now organised into six separate provinces, divided into districts, which were in turn divided into cantons. In each canton the first judicial instance was the justice of the peace (juge de paix) with two deputies (suppléans) competent over matters of value up to 100 francs and minor criminal offences. The courts of first instance (Tribunaux de première instance), located in the centres of individual districts, dealt with civil and criminal matters that had exceeded the given criterion. Such courts were located in Rijeka, Karlovac, Zadar, Split, Dubrovnik and Kotor, and were composed of a president (président), two judges and three deputies. During this period, special commercial courts (Tribunaux de commerce) were established in Ljubljana, Trieste, Rijeka and Dubrovnik. They consisted of a president, four judges and two deputies, the judges being appointed from among merchants and bankers. Three Appellate Courts (Cours d’appel) were formed in the Illyrian Provinces (Ljubljana, Zadar and Dubrovnik). The Appellate Courts in Zadar and Dubrovnik had a president, four judges and two deputies. The final instance was the Court of Cassation (Cour de cassation) in Paris.

CONCludINg rEmArKSEven though Napoleonic rule in Southeastern Europe lasted only until 1814, for the first time in their history a decisive modernisation of the Judiciary had taken place in the territories affected. This was prima facie manifested in the separation of Judiciary power from the Executive power and in the efforts of defeudalisation, rationalisation, professionalisation and specialisation of the judicial system. Despite the fact that in 1820 the Habsburg monarchy replaced Napoleon’s system with its own judicial regime, these modernisation tendencies were not annulled, and in fact were largely achieved during the 19th century in the areas of Southeastern Europe under Austria’s direct rule. In other areas of the region, modernisation of the Judiciary did not appear until significantly later. In the Lands of the Crown of Saint Stephen this process only began in the period of neo-absolutism after the revolutionary events in 1848, while the first attempts at modernisation in the Ottoman Empire were recorded in the last quarter of the 19th century, when new procedural codes considerably influenced by the French legal culture were enacted.

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A Napoleonic decree relating to the organisation of the Illyrian Provinces, 15 April 1811. The Illyrian Provinces were a short-lived (1809–13) territory under direct French rule. They included parts of present-day Austria, Italy, Slovenia, Croatia and Montenegro.

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