The implementation of a law
|Cours||Introduction to law|
- The definition of law
- The State
- The different branches of law
- The sources of law
- The great formative traditions of law
- The elements of the legal relationship
- The application of law
- The implementation of a law
- The evolution of Switzerland from its origins to the 20th century
- Switzerland's domestic legal framework
- Switzerland's state structure, political system and neutrality
- The evolution of international relations from the end of the 19th century to the middle of the 20th century
- The universal organizations
- European organisations and their relations with Switzerland
- Categories and generations of fundamental rights
- The origins of fundamental rights
- Declarations of rights at the end of the 18th century
- Towards the construction of a universal conception of fundamental rights in the 20th century
- 1 Action and jurisdiction
- 2 Alternative modes of conflict rules
- 3 The parties to the trial
- 4 The criminal procedure
- 5 Juvenile justice
- 6 The remedies available
- 7 Annexes
- 8 References
Action and jurisdiction[edit | edit source]
The law is only applicable if it can be enforced. To do this, the action / jurisdiction pair intervenes.
Action: The field of law enforcement is defined as the legal process designed to ensure the sanction of the law with the help of the courts. The right only exists if the holder of a right has the possibility to enforce it with the assistance of the State or other authorities.
Jurisdiction: It is the activity of the State that determines the right extended to the bodies established to exercise the mission of judging and rendering justice, by application of law. These services are entrusted to the judiciary in order to resolve conflicts.
Thus, the legal system allows a general right of action; any subjective right allows action to be taken before State bodies to enforce or establish its existence.
Actions may be civil, criminal or administrative.
Alternative modes of conflict rules[edit | edit source]
There is the possibility of applying to the court, but there are also courts other than those of the State. However, this does not affect the State judge.
It can only be used with the authorization of the State, it affects private law, public law and international law.
Negotiations and "talks"[edit | edit source]
Negotiation is a mode used in the field of public international law. The two parties in conflict discuss with a view to resolving the differences between them.
During negotiations, there may be the intervention of a third party who makes himself available to the parties (good offices). It does not participate directly, but through the means it makes available to the parties it promotes discussions.
Good offices" allow a third country to act as an intermediary allowing the parties to negotiate under optimal conditions; the parties are free to negotiate.
In some crises, Switzerland has played the role of "good offices", particularly with Cuba.
Mediation[edit | edit source]
Mediation consists in relying on a mediator chosen according to the prestige he or she exercises. It proposes a solution, but does not impose it on the parties to the conflict who have the choice of accepting or rejecting it.
Generally, mediation concerns both private law (labour disputes, family disputes) and international law.
Conciliation[edit | edit source]
Conciliation consists in bringing the parties in conflict closer together to find an amicable solution. The term amicable comes from the Latin word "amicabilis" which belongs only to the legal vocabulary.
Conciliation refers to a negotiated solution that cannot be strictly limited to the law, the judge does not decide, but seeks to reach an agreement
This is often the first step that a judge in a dispute can or should take (for example, family law). However, acceptance is always the will of the parties.
The arbitration[edit | edit source]
Arbitration is the submission of a dispute to one or more arbitrators chosen by the parties that results in a binding decision. Unlike the court, you can choose your judge.
Arbitration may be agreed prior to the recognition of a dispute under the arbitration clause that if there is a dispute, it is anticipated that the dispute will be resolved by arbitration.
Arbitration can be conducted ad hoc, i.e. it is applied to a special case after a dispute has arisen, so the parties agree to settle their dispute through alternative arbitration.
An arbitral agreement is an agreement at the time of the dispute, decided by arbitration.
Nowadays, arbitration is a widely used method in international law. On the other hand, arbitration has found a preferred field in the life of large companies (simpler, more efficient, faster, more discreet procedure). In the field of commercial business, 80% of international commercial contracts contain an arbitration clause. It is the European Chambers of Commerce that have organised arbitration courts.
Unlike judges, arbitrators have extensive practical experience, particularly in commercial cases.
The parties shall choose the arbitrators competent in the areas where there are conflicts.
Alabama Arbitration: September 15, 1872, Great Britain was ordered to pay the United States a very heavy compensation for failing to comply with its obligations of strict neutrality in the Civil War. Guilty of negligence in tolerating the delivery to the southerners of some twenty boats. Will contribute to the international base in Geneva.
The parties to the trial[edit | edit source]
The trial can oppose two parties, this is particularly the case of the civil trial:
- PLAINTIFF is the one who has initiated a trial
- DEFENDER is the person against whom a legal claim is made
The mission of repression is over at the State. Criminal proceedings are a little different, because their mission is to repair, it is the State that takes care of them. This action is automatically initiated by the public prosecutor on his or her own initiative or by a public official.
The Public Prosecutor's Office refers to all magistrates who are responsible for representing the law and the interests of the State before the courts.
- In the cantons: the public prosecutor's office is headed by a public prosecutor elected by the people in charge of criminal proceedings.
- In the Confederation: the Public Prosecutor's Office is headed by the Attorney General of the Confederation, who is elected by the Federal Assembly.
The action is automatically triggered, the public prosecutor does not need to be requested in advance to be implemented.
The criminal procedure[edit | edit source]
The rules of law triggered by criminal procedure are totally mandatory, they are rules of law that have a strict form. This ensures the security of the accused's right to be charged. For example, a search must follow strict rules in order to defend the interests of the accused.
The adversarial and inquisitorial proceedings[edit | edit source]
Criminal procedure, also known as criminal investigation, is the search for and taking of evidence relating to a crime or misdemeanour.
Accusatory[edit | edit source]
This is the oldest procedure, it takes its name from the fact that criminal proceedings are initiated by a charge, it takes the form of a fight organised in solemn forms between the plaintiff and the defendant, which is arbitrated by a judge in order to put an end to this simulated fight by giving reason to one or the other party. It is the expression of political regimes with high citizen participation.
The prosecution is indicted, the judge is an arbitrator. He ensures that the fight between the two parties goes well and he must decide on the evidence he receives.
This procedure is:
It takes into consideration both parties without taking any initiative. Since the procedure is public, the citizen can check that it is running smoothly.
The prosecution and investigation of offences is left to the private sector, as the prosecution's resources are insufficient. There is a lack of evidence because the judge cannot intervene directly. As a result, the interests of the accused are somewhat harmed.
On the other hand, there is a lack of investigation: Investigation, the phase of the criminal trial during which the investigating magistrate carries out investigations aimed at identifying the perpetrator of the offence, clarifying his personality, establishing the circumstances and consequences of this offence, in order to decide on the action to be taken in public proceedings. This procedure exists mainly in the United States.
Procedural law deals with the resolution of conflicts and offences that harm a community (Crime). In his Germania, Tacitus talks about the existence of courts to settle disputes; the principles, elected, were required to include people of the people.
According to the Salian Franks code (around 500), the judge directed the entire procedure, from the summons to execution, while the proposed sentence belonged to the "rachimburg", i. e. seven men chosen as judges from the injured community, and had to be approved by the Thing, i. e. all men entitled to bear arms (Barbarian laws). According to the Alaman law (lex Alamannorum, circa 720), the judge had to be appointed by the Duke and approved by the people. The Carolingian judicial reform (circa 770) deferred the ability to pass judgment to aldermen, permanent judges, and the sentence no longer had to be approved by the Thing. The procedural subdivision into low justice (causae minores) and high justice or criminal justice (causae majores) is at the origin of the distinction between civil procedure and criminal procedure (Criminal Law).
Inquisitory[edit | edit source]
This procedure originates in ecclesiastical jurisdictions and canon law. It became widespread in the 13th century and then spread to most secular jurisdictions.
This system meets the needs of an authoritarian regime that places the interests of society above the individual.
This procedure takes its name from an initial formality that designates the subsequent conduct of a trial procedure and weighs on the investigation, the inquisitio. The investigation determines the conduct of the trial. It is the magistrate who carries out this investigation and it begins ex officio, i.e. at the initiative of the magistrate or a public official. On the other hand, the magistrate leads the debates.
The magistrate's power of investigation is not limited to the parties' conclusions and is secret, written and non-adversarial.
With the investigation entrusted to judges, few guilty parties escape punishment. On the other hand, the disadvantages are that the defenseless nature of the accused leads to the conviction of innocent people. From a technical point of view, the inquisitorial procedure is too long, its written nature resulting in a complete dehumanization of the criminal trial.
With this instruction, the accused has little chance of getting away with it and the hearing of the judgment is only pure finality, because the instruction occupies most of the time.
Most European countries in the second millennium switched from one system to another. With the Age of Enlightenment and the resolutions, there has been a certain upheaval. From the 19th century onwards, there was a change in the system: the best elements of both procedures were used to create a criminal procedure that took both aspects into account.
Two major criminal proceedings:
- Preliminary phase: inquisitorial type (secret, written and non-adversarial), it includes police investigation and investigation;
- Decisive phase: adversarial, trial and judgment.
From the Enlightenment onwards, there was a mixed system that took the advantages of the inquisitorial and accusatory type for the decisive phase.
Principles governing criminal procedure[edit | edit source]
The substantive rules and criminal procedure are subject to the principle of legality.
Principle of legality[edit | edit source]
The principle of legality requires that the administration acts only within the framework set by law. On the one hand, the administration must respect, in all its activities, all the legal provisions that govern it, as well as the hierarchy of these provisions: this is the principle of the primacy - or, in more traditional terminology, the supremacy - of the law. On the other hand, the administration can only act if the law allows it to do so; in other words, any action by the administration must have a basis in a law: this is the principle of the requirement of the legal basis.
The law is the only source of the Criminal Code, it alone defines the offences and penalties applicable to it.
This principle of legality has three consequences:
- nullum crimen sine lege: no crime without law;
- nulla poena sine lege: no punishment without law;
- nulla poena sine crimine: no punishment without a crime.
These consequences imply that the rules of procedure must find their sources in the law and they must be in conformity with the law.
The rule of legality is a constitutional principle:
- principle of the supremacy of the law to be applied by all;
- requirement of the legal basis: any activity of the State must be based and based on the law;
- the rules of procedure must be applied in accordance with the principle of good faith.
The procedure must not become an end in itself, as it risks supplanting justice. Therefore, the agents who apply the procedure must not go against the principle of good faith.
Principle of good faith[edit | edit source]
The principle of good faith (good faith in the objective sense) is the principle that obliges the State and individuals to behave honestly and fairly in their legal relations (see art. 5 para. 3 Cst. ; art. 2 para. 1 CC). Good faith in the objective sense must be distinguished from good faith in the subjective sense (Art. 3 CC), which refers to the fact that a person ignores a legal defect affecting a specific factual situation.
The law must harmoniously combine the interests of individuals and the interests of society. It is therefore important that procedural provisions are neither too strict for the accused nor overly formal. The defence must express itself freely and it is the criminal procedure that indicates this without, however, jeopardizing the task of the State and the task of repression.
On the other hand, criminal procedure is driven and determined by a set of principles that impose certain fundamental duties on criminal authorities.
These principles generally derive from the federal constitution, but also from international treaties such as, for example, the Convention on Human Rights or the UN covenants on the subject.
The stages of the criminal procedure[edit | edit source]
On 1 January 2011, criminal proceedings were transferred to the federal state. This event is marked by the entry into force of the Civil Procedure Codes and Criminal Procedure Codes.
It was the people and the cantons that amended the constitution in March 2000 by transferring criminal jurisdiction to the confederation. The Federal State has exercised it by introducing a law on civil procedure and a law on criminal procedure.
Civil proceedings are characterized by two phases:
PHASE 1: Preliminary
- Investigation (police investigation)
The cantonal public prosecutor's office conducts investigations, investigates and prepares the indictment before the court. Thus, the indictment, investigation and prosecution are the sole responsibility of the public prosecutor. This body will make criminal prosecution very effective.
The Public Prosecutor's Office refers to all magistrates who are responsible for representing the law and the interests of the State before the courts.
Investigation, the phase of the criminal proceedings during which the investigating magistrate carries out investigations aimed at identifying the perpetrator of the offence, clarifying his personality, establishing the circumstances and consequences of this offence, in order to decide on the action to be taken in public proceedings.
Investigation following a denunciation the authorities will proceed to an investigation. On the basis of the investigations, the Public Prosecutor's Office will determine whether an investigation should be opened: an investigation is opened when there are sufficient grounds for suspecting that an offence has indeed been committed.
Opening of the investigation
In light of the evidence, the Crown will make the decision to charge the accused.
PHASE 2: Decisory
The transmission of the indictment triggers the decisive phase. The public prosecutor becomes a simple part of the accusation: public accuser. The president of the court is the one who directs the procedure.
First step: the examination of the charge (inquisitorial principle)
- the prosecution passes the indictment to the court
- the court checks whether the indictment has been drawn up regularly
- if the behaviour denounced in an indictment is punishable, if there is sufficient suspicion to support an indictment then the judge will initiate the trial
- the president prepares the debates, puts the files into circulation, sets the date of the trial and convenes the persons in the case
Second step: the debate in court (adversarial principle) The procedure is adversarial, public, oral. The judge is the actor of this phase, but he is also an arbitrator. The debates follow a precise procedure:
- beginning: indictment
- evidentiary procedure
- hearings of witnesses, defendants, experts
- evidence review
- pleadings: the prosecution starts followed by the plaintiff, a second round of pleadings may be requested
- the last word always goes to the defendant
Step Three: Judgment The court withdraws in camera to establish the judgment
- The deliberation is first oral and then written
- has several questions:
- is the defendant guilty or not guilty? (art. 351 Code of Criminal Procedure): the court must decide in favour of the accused (in dubio proreo: the doubt benefits the accused)
- the penalty: setting the penalty within the legal limits according to the facts of which the accused has been found guilty
- civil interests: when the injured party claims damages, the court must decide on the damages
Juvenile justice[edit | edit source]
Models governing juvenile justice[edit | edit source]
There are three main models:
- the punitive model (in Anglo-Saxon countries)
- the protective model (Brazil, Portugal, Spain)
- the intermediate model (Switzerland)
The punitive model does not make significant differences with adult justice. In this repressive system, the juvenile is subject to severe sanctions and is placed in closed institutions. The judge does not protect the juvenile offender. The objective is to give priority to the protection of society, without worrying about the protection of the minor. → 80% recidivism
In the protective model, the judge will try to understand why the juvenile offender slipped. This juvenile offender is considered a victim and therefore needs to be cared for and supervised. The judge has a very wide margin of appreciation. This protective model neglects the victim of the juvenile offender and favours the reintegration of the latter.
The intermediate model is between the two previous models. Although concerned with the protection of society, this model retains as its primary objective the education of juvenile offenders. Thus, the judge does not have to respond with a single penalty to an offence committed by a minor, but has a whole range of measures at his disposal. → 35% to 45% recidivism
The model of the juvenile prosecutor and the model of the juvenile judge[edit | edit source]
The model of the juvenile prosecutor, which is found in most German-speaking cantons, provides that a magistrate conducts the investigation, decides the least important cases by means of a criminal order closing the case (art. 32 of the juvenile criminal procedure) and in other cases, drafts the indictment himself before forwarding it to the juvenile court. This magistrate does not sit in the court himself, he only supports the prosecution (accusatory part), but he also deals with the post-judgment.
The model of the juvenile judge, which is found in the Latin cantons, provides that the same judge conducts and investigates the least important cases, decides the least important cases by a criminal order that closes the case (art. 32 of the juvenile criminal procedure) and is very different from the model of the juvenile prosecutor, sits in the court and therefore participates fully in the juvenile's judgment. This model is to the advantage of the juvenile offender, as the judge knows him personally.
The sentencing system and mediation[edit | edit source]
When it finds that offences have been committed, the Juvenile Criminal Court may take the following decisions: order protective measures, exempt the minor from punishment or impose a sentence.
- Protective measures (supervision, personal assistance, etc.) are provided for in article 10 of the Federal Law on the Criminal Status of Juveniles and are intended to protect juvenile offenders, whether or not they are guilty.
- According to article 21 of the Federal Law on the Criminal Status of Juveniles, the court may waive the imposition of a penalty if it would jeopardize the objective of a protective measure already ordered.
- The penalty imposed by the juvenile criminal court may range from reprimand, personal service, or fine and in extreme cases deprivation of liberty.
In this context and in accordance with article 16 of the Juvenile Criminal Procedure Act, the investigating authority and the juvenile court may attempt to reach a conciliation between the injured party and the accused juvenile when the proceedings concern an offence prosecuted on complaint (for example, damage to property, such as graffiti). If this conciliation is successful, the procedure is closed.
Article 17 provides for mediation: the investigating authority and the courts may at any time suspend the procedure and designate a person competent in the field of mediation to initiate a mediation procedure. The mediator is a person independent of the judiciary. If, through mediation, an agreement is reached between the accused minor and the injured party, any criminal proceedings are waived and the proceedings are closed (article 5).
Mediation makes it possible to show the minor that his or her act is an offence that violates the law. He will therefore be able to realize the harm he has caused and what he must do to redeem himself from the act he has committed. Mediation, in the context of juvenile criminal justice, has above all a social dimension and has the advantage of involving all parties involved in the conflict. However, this mediation is not mandatory and is only available with the consent of both parties. It can be considered at all stages of the proceedings and even during the execution of the measures, i.e. after the judgment.
Through mediation, people discuss the follow-up to the ongoing criminal proceedings and consider their own solutions in order to reach an agreement, which may or may not include the withdrawal of the complaint. The content of the mediation (what was said there) is confidential to the judicial authorities, the latter being informed only of the possible agreement reached during the mediation. Unlike conciliation, it is the parties who find the solutions themselves in mediation. These solutions must then be accepted by both the victim and the juvenile offender. The mediator therefore does not impose solutions on the parties. Mediation is generally (70%) highly appreciated by those who have used it.
The remedies available[edit | edit source]
An remedy is an application against any decision or act. The appeal also refers to the written document containing the appeal.
The remedies fall into two categories: ordinary and extraordinary remedies. In principle, the court that renders a judgment gives every guarantee of justice and rectitude. However, in order to provide an additional guarantee, provision has been made for legal remedies that operate under the rule of a two-tier or two-instance court.
Under this procedure, a dispute may be dealt with in fact and in law successively by two hierarchical bodies:
- Once by a court of first instance or first instance, which renders a judgment.
- A second time by a court of appeal or a court of second instance, which issues a binding judgment.
If the parties are still not satisfied with this second judgment, they may resort to an extraordinary means called an appeal in cassation.
The appeal[edit | edit source]
An appeal is the ordinary means of appeal in order to obtain a reform of the trial proceedings. The possibility of appeal is the same in all legal systems. However, it is possible that a first instance decision may be rendered without appeal, particularly if the social or economic stakes are negligible. Justice is an expensive service and its implementation requires respect for proportionality.
The appeal has two effects: a suspensive effect that suspends the judgment of the first instance, and a devolutive effect that requires the judge of the first instance to transmit to the judge of appeal the knowledge of the whole case. If necessary, the case will be retried in a new way. In this case, the judge will review both the facts and the law, i.e. the form and substance. An appeal court issues an enforceable judgment that will replace the first instance judgment. This judgment may not be the subject of a new ordinary appeal.
The appeal in cassation[edit | edit source]
An appeal in cassation is an extraordinary appeal, in which a party asks a superior court to set aside a judgment because it considers that there has been a violation of the law. Therefore, the appeal is not vested and the case is only judged in law, the facts being taken for granted. An appeal in cassation generally has no suspensive effect, except in the case where the judge of cassation so decides.
In principle, the judge of cassation does not issue enforceable judgments by the parties to the proceedings. If he considers that the decision referred is correct, he confirms it and in this case the decision of the lower court will be enforced. If, on the other hand, he considers that the decision is not in accordance with the law, then he breaks it and refers the case back to the Court of Appeal that issued the judgment in question. The power of cassation is subsidiary to the appeal and the law lists restrictively the means that the appellant may invoke in cassation. These are generally serious defects of the law.
In summary, an appeal is an extraordinary means of appeal by which a party seeks to have a Supreme Court set aside the judgment in the event of a serious violation of the law.
The revision[edit | edit source]
It is an extraordinary remedy by which a party requests the full resumption of a trial that has already entered into force and has therefore already been executed.
To have a trial reviewed, it must be possible to prove that significant new facts, which could not be invoked at the previous trial, have been discovered. In this case, the law admits that when a judgment is vitiated by a serious defect, it may be revised.
Annexes[edit | edit source]
- Kolb, Robert. La Bonne Foi En Droit International Public: Contribution À L'étude Des Principes Généraux De Droit. Genève: Institut Universitaire De Hautes Études Internationales, 1999.
References[edit | edit source]
- Publication de Victor Monnier repertoriées sur le site de l'Université de Genève
- Hommage à Victor Monnier sur le site de l'Université de Genève
- Publications de Victor Monnier sur Cairn.info
- Publications de Victor Monnier sur Openedition.org
- Page personnelle de Victor Monnier sur le site de l'Université de Aix-Marseille
- En Hommage À Victor Monnier.” Hommages.ch, 11 Mar. 2019, www.hommages.ch/Defunt/119766/Victor_MONNIER.