Lecture no 5

Rules governing jurisdiction of courts

 Rules governing jurisdiction of courts
 Normally, the law of each state provides for the rules and principles as well as exceptions
that govern the jurisdiction of national courts.

 The general rule is that the claimant must bring his action or claim in the court of the
domicile of the defendant (or one of several defendants) or where the later dwells or carries
on business.

 However, there are some exceptions, e.g., actions related to immovable property (for
example land or buildings) must be brought in the court of the place where the immovable
property is situated.

 With regard to international courts, consent of all parties to the dispute is a prerequisite for
their competence.
Principles related to the judicial system as a public
service
 Judicial system is not only one of the state's powers, but also a public service most
important for the proper organization of the state.

 As such, its organization is ruled by general principles applicable to any public

service as follows:
1) Free access to the judicial system,
2) Equality before the judicial system,
3) Gratuitous access to the judicial system. (Free of charge)
 1) Free access to the judicial system:

 According to this principle, any person must have free access to the judicial system and to
the courts, without having to prove the seriousness of the case or request any precious
authorization for such an action.

 This principle is, in fact, a result of the public liberty recognized by most of the
constitutions, being the liberty or right to go to court.

 In other words this right, which cannot be restricted or alienated (separated), entitles any
person to free access to the judicial system without incurring any liability in case of failure.
On the other hand, the state has to facilitate or make easy the access to courts.
 However, such free access, which grants the claimant a kind of immunity, may be limited by
the fact that the claimant, in the use of his liberty, has to bear any liability resulting from the
abuse of such power. He may be ordered to pay damages to the other party if his recourse
was improper. If any person can use his right, the later shall not misuse it. Therefore, if the
claimant’s bad faith is obvious the defendant may claim damages for abuse of the right of
free access to the judicial system.

2) Equality before the judicial system :

 This principle means that, all individuals are subject to the same rules of law and to the
same jurisdictions without any discrimination. In other words, all individuals are equal
before the law without any discrimination based on race, religion, sex or any other
discriminatory criteria, and as such are equal in the access to courts. Equality before the law
cannot be confirmed unless equality before the judicial system is asserted.
Principle of equality and the courts of limited jurisdictions:
 Does the establishment of courts of limited jurisdictions constitute a violation of this
principle? Can the establishment of special courts with jurisdiction on specific subjects or
cases be considered a breach of this principle?
 It may appear, at first glance, that the establishment of such courts is a violation of the
principle of equality, as in most cases the constitution of these courts are subject to procedural
rules, which may differ from the rules applicable to the ordinary courts. However, one should
differentiate between two assumptions:
 The first: being when the jurisdiction is based on the subject matter or nature of the dispute
(ratione materiae), like family courts is an exception from civil courts.
 The second when the jurisdiction is based on the personal attributes of the litigants (ratione
personae).
 Only the second assumption can be interpreted as a breach of the principle. The first can only
be considered as an amendment to the rules of jurisdiction granting jurisdiction to these
special courts.
 3-Gratuitous access to the judicial system (free of charge) :
 This principle means that, litigants do not pay judges who review their cases.
Judges are remunerated by the state. In the Middle Ages and before the French
Revolution, judges were remunerated directly by the litigants. Such system favored
the wealthy people who could afford to pay more to the judges leading to inequity
and injustice.

 Nevertheless, inspite the fact that the state is responsible for the judge’s
remuneration, litigants have still to bear the costs and expenses related to any legal
or judicial action. Such sums, which in some cases may be important, can prevent
the public from taking legal action.

 When justice becomes too costly, it does not serve its purposes. For that purpose,
legal aid was instituted.
 Legal aid
 Legal aid is an institution, which allows poor litigants to have access to courts without having to
bear the costs and expenses necessary for such action. In other words, poor people are
exempted from paying the costs and expenses of justice in certain cases and pursuant to certain
conditions.

 However, legal aid remains a poor remedy to the situation, which may need some
reorganization to assert the gratuitous character of justice. Some idealistic jurists claimed that
justice should be completely free of charge since it is a public service. However, this claim
appears unrealistic as it would encourage bad faith and results in abusive and unjustified trials
and lawsuits.

 It is necessary that litigants bear some expenses, provided such expenses are reasonable and
related to the importance of the dispute and resources of the litigant.