ARTICLE FOURTEEN:   

COURTS, CRIMES AND DISPUTES

Note:  Many federal republics, including the United States, have dual court systems, consisting of federal and state courts, often with confusingly concurrent jurisdiction.  But Bergonia has a single, unitary court system.  However, the commonwealth and the states share control control over this one court system. 

Section One:

Supreme Court

The Supreme Court shall serve as the final court of appeals for the commonwealth.   It shall consist of nine judges whom the Congress shall select upon the nomination of the Court itself.  Each judge shall serve a term of nine years, one to be chosen each year.  No person shall be chosen for the Supreme Court unless he has already served as a judge on one of the other courts established hereunder.  No judge may serve more than one term.

The Supreme Court shall have original jurisdiction over these cases:

            a)   Any case in which two or more states or autonomous counties oppose one another.

            b)   Any case in which the President, any of the Officers or the Executive Council is a party.

            c)   Any petition filed by either Congress, the speaker thereof, the President, the Executive Council or any member thereof, which either alleges that a commonwealth law violates the constitution or seeks an authoritative interpretation of constitutional principles or provisions.

            In any of these cases the Supreme Court may in its discretion appoint panels of three trial judges to take evidence and make or review findings of fact.

            The Supreme Court also has jurisdiction to take appeals of cases from the grand courts that involve legal questions of national import which lower courts have substantially differed in answering.  

Section Two:

Grand Courts of Appeals

Note:  In Minidun these courts are called Panare-movoc.   

A grand court shall sit in every state as a court of final appeals.  Congress shall establish one such court per state with a population of six million or more, and Congress shall establish regions that combine any state of less than six million in population with one or more contiguous states to form a region with at least six million.  Congress shall establish two such courts in any state with a population of twelve million or more. 

Note:  This includes only Rarsecin, Cuecha, Paiatri, Pueoi, Letlari and Halemarec.

Each grand court shall consist of at least ten judges as Congress may determine.  Each judge shall have resided within the region for at least five years prior to his appointment.   No person shall be selected to a regional court who has not previously been a judge for at least five years in another court.   Regional court judges shall serve terms of nine years and may not be reappointed.

The state congresses shall select the judges of each grand court according to such procedures that Congress may establish by law.  In regions where two or more states are combined, the congresses of the states shall together select the judges by such procedures as Congress may make.   Such procedures shall determine that a number of judges of the total shall be chosen from each state proportional to the population of the state.

The grand courts shall hear appeals from all state appellate courts in the commonwealth as they wish to hear.  Lower appellate courts may certify questions of law to the grand courts as an aid in deciding cases. 

Section  Three:

Appellate Courts

            Each state shall establish a system of courts to hear appeals from decisions of trial courts.

            Criminal defendants convicted to terms of imprisonment of one year or more shall have an appeal as a matter of right.

Section Four:

Trial Courts

Each state shall establish a system of superior trial courts, common pleas trial courts, and magistrates.  Each locale shall have its own superior and common pleas trial courts.

Superior trial courts shall hear charges of violent felony crimes, claims of fraud, charges of crimes concerning entry or departure from the commonwealth, or the import or export of goods or money, offenses related to the currency or to banking, and such other major cases as the state congress may allow them to hear.

Common pleas courts shall mediate and try all other claims and charges.  Every common pleas court shall appoint a number of magistrates, who need not be attorneys.  The states may create specialized divisions of common pleas courts, including family and domestic courts.

Each trial court shall include a number of primary judges and a number of trial judges.

Congress and the states shall by law establish and delineate the venue of cases.

Section Five:

Judges

a)  Judges of appellate and trial courts shall be chosen according to such procedures that the states may establish, subject to the following qualifications:  (i)  Only attorneys with at least five years active practice may become judges.  (ii)  The name of any attorney nominated for appointment or election shall first be submitted to an appropriate college of attorneys for approval.  (iii)  No judge may serve for a term longer than nine years.

b)  Judges shall rotate to serve on various trial court and appellate court benches within a region, according to procedures approved by both the grand court and the congresses of the states within the region.   

            c)  No person ever convicted of a felony crime may serve as judge, and if any judge is convicted of a felony crime while he sits, he shall forfeit his office.  Congresses of states may remove a judge from office if proof is adduced in a hearing that the judge has committed an act that compromises the integrity of his office.

Section Six:

Attorneys

Only attorneys may present cases in courts, except that (a) a person may represent himself, his spouse, parents, siblings or children, and (b) a member of a corporation may represent the corporation. 

Only those persons with diplomas from law schools or apprenticeship programs approved by the National Academy of Law located in Ceiolai shall become attorneys.  The National Academy shall collaborate with the congress of each state to establish and license schools of law.

Each state congress shall establish procedures for the qualification and licensing of attorneys, and for the creation of a college of attorneys in every subdivision, which shall be representative of all attorneys therein.

Section Seven:

Offenses

            Citizens, corporations and other entities may file complaints against one another in trial courts, but only complaints alleging offenses defined by law.  Congress and the states may define offenses, and so may the grand courts by virtue of common precepts of justice, according to these limitations:  

1. Both the courts and Congress and the state congresses shall explicitly define what behavior constitutes an offense by describing the factual elements of the offense.  

2. Congress may annul any offense created by the Supreme Court, and the state congresses may annul any offense created by its regional grand court.  If a definition of an offense crated by either Congress or a state congress conflicts with a court-made definition of an offense, the court's definition shall be void. 

3. However, the Supreme Court may annul any offense created created by Congress or a state congress if it specifies that the offense is contrary to this constitution, and a grand court may likewise annul any offense created by a state congress if it specifies that the offense is contrary to this constitution or that of the state.

Every grand court shall publish a book stating the definition of every offense recognized under the laws of the commonwealth and the laws of the state, and distribute it to every school, library and public building in the state.  

Section Eight:

Complaints 

a) Filing and Service of Complaints:  Any citizen may file with a magistrate court a complaint of any offense done to him.  A person may file a complaint without regard for his status, citizenship or station in life.  

Any police officer or qualified public officer may file with a magistrate a complaint of an offense done to others which he discovers in the course of his work, and thereby request the the magistrate to issue an arrest warrant.

b) Content of Complaints:  All complaints must written, sworn to, and signed.  Each such complaint shall charge an offense pursuant to Section Seven.  No complaint shall properly issue if it restates any offense which was previously been charged by an earlier complaint, unless that complaint was dismissed without prejudice to the parties.

            c)  Review and Investigation of Complaints:  According to law, every complaint shall be assigned to a magistrate or primary judge who shall review it and determine if it should be dismissed on its face, investigated or prosecuted. 

1. If he determines that on its face a complaint fails to state an offense under the law, he may dismiss it or amend it.

2. If he decides to investigate, he may issue summons and subpoenas. He may require that a hearing be held to determine if any evidence exists to support the allegations of the complaint, if preliminary relief should be granted, or if a party should be jailed upon the complaint.

3. If  the primary judge decides that the complaint states a proper claim for prosecution he shall endorse the complaint and order that either notice of  the complaint be made upon the defendant and any other appropriate parties.  He may issue warrants for the arrest of defendants in cases charging criminal offenses.

4. At any time he shall have authority to mediate between the parties in cases not involving claims of violence or fraud.

Notes:

The first paragraph of this section takes for granted something that is quite essential  to Bergonian law.  That is that there is no distinction procedurally between a criminal offense and a  civil offense.  In Anglo-American law, they are assumed to be different species.  In traditional Bergonian law, there is a single specie of claim, which is initiated by a svetlec, a "complaint." 

Generally the same rights adhere to the complainant as to the defendant, and to the claims which may be punishable by imprisonment as to those which are not.   The influence of English law on Bergonia, along with the modern precepts of democratic human rights have  resulted  in  the addition of some procedural rights for those defendants charged with offenses that are punishable by imprisonment or death.  The remainder of claims are those punishable only by fines, damages, or work.

The provisions for  primary judges are similar to the provisions in the Civil Law of Europe for the examining judge in criminal case, but here he does it in both civil and criminal matters.  It is intended that the Primary Judge shall dismiss frivolous  cases.   It is also anticipated that the Primary judge may use its subpoena power to compel the presence of the defendant in order to compel mediation and settlement.  In practice, the majority of complaints are resolved by the Primary Judge.

Section Nine:

Arrests and Detention

A police officer may arrest a person for violating a criminal law if the police officer witnesses the act or receives the dire complaint of a victim or witness. 

A police officer may arrest a person pursuant to the warrant issued by a magistrate or a primary judge.

Any person arrested by a police officer may be jailed and otherwise restrained of his liberty, but he must be taken before a magistrate within twenty-four hours for an initial appearance, and he must be taken to a primary judge within ten days of arrest, whereupon either magistrate or primary judge shall review the complaint against the person and entertain motions for bond.

            A person jailed pursuant to arrest shall have the right to bond, except for charges of murder and heinous crimes supported by competent evidence in a hearing before the primary judge within ten days of arrest.

Section Ten:

Trials

After the primary judge endorses the complaint he shall transfer it to a trial judge, who shall hold a trial thereon.  Cases filed in magistrate court shall also be tried.

Every complainant and every person charged in a complaint shall have the right to:

a)   Testify on his own behalf.

b)   Subpoena witnesses to testify on his behalf.

c)   Cross examine all witnesses who testify.

d)   Argue his case at the conclusion of evidence.

e)   Have the representation of an attorney of his choice.

No matter shall be tried twice, unless a competent court of appeals holds that the first trial violated law.

Note:  The second paragraph is this constitution's equivalent of the double jeopardy clause.

Section Eleven:

Criminal Procedure

In addition to the procedures established under the preceding section, any citizen charged with a criminal offense punishable with imprisonment or death has these protections:

a)   He shall have a preliminary hearing within ten days.

b)   He shall have the right to a trial within four months, but he may waive this right.

            c)   He shall have the right to counsel at all stages of the proceedings.

            d)   He may personally attend all proceedings.

e)   The prosecution must prove the charges against him in an open trial, but he may waive this right.

f)   He may not be compelled to testify, and he may not be made to incriminate himself by any official or judge or police officer.

Section Twelve:

Juries

Every trial shall be heard before a jury, which shall consist of not less than eight persons.  Juries may include not more than three judges.  Lay jurors shall be selected by lot, except that in matters involving technical or scientific questions, persons with special knowledge may be included on the jury at the option of the presiding judge in accordance with the provisions of law.  In proper cases as defined by law, the presiding judge may impanel different juries to sit in a single trial to judge different issues.  The verdicts of juries shall be unanimous.  

Note: This provision explicitly empowers courts to employ juries of specialists, thus cultivating a tradition in Bergonia of jury by specialists in certain types of cases.  For example, medical malpractice cases are tried before juries that include doctors.   A case involving a contract dispute between two engineering firms would employ a jury that includes engineers.  However, juries involving specialists are usually required to render written opinions setting forth their expert review.

Section Thirteen:

Sanctions, Penalties and Awards

A court may vote to assess against a party such penalties as the laws defining offenses allow.  Such penalties may include:

a)  Imprisonment, but only if a jury convicts a defender of a criminal offense, or if the defendant accepts a sentence.  Imprisonment may consist of incarceration in a jail, house arrest, probation, or assignment to a work camp or work house. 

b)  Payment of money to and performance of labor for any person, corporation, government or organ of state which the offender has harmed, including payment of fines and specific work for the benefit of the community.

            c)  An order requiring or prohibiting certain specified acts to remedy harm done or to discourage the commission  of any wrongful act in the future, but no order shall be so onerous as to impose duties beyond the offender's abilities.

d)  An order requiring forfeiture of land leaseholds.

            e)  Censure in newspapers, on radio and television, and otherwise in public. 

Punishments shall in any event not result in the deliberate infliction of pain.  Punishments shall not entail imposition of conditions that result in less than an adequate diet, eight hours of sleep at night, adequate heat in cold weather, and correspondence with family.  Punishments also shall not result in any deprivation of medical care.  Punishments may include other deprivations, including labor up to forty-eight hours a week, and deprivation of  communication, entertainment and books.