UNIT I: THE U.S.
LEGAL SYSTEM
The U.S. Constitution establishes a federal system of government. The constitution gives specific
powers to the federal (national) government. All power not delegated to the federal government
remains with the states. Each of the 50 states has its own state constitution, governmental
structure, legal codes, and judiciary.
The U.S. Constitution establishes the judicial branch of the federal government and specifies
the authority of the federal courts. Federal courts have exclusive jurisdiction only over certain
types of cases, such as cases involving federal laws, controversies between states, and cases
involving foreign governments. In certain other areas federal courts share jurisdiction with state
courts. For example, both federal and state courts may decide cases involving parties who live in
different states. State courts have exclusive jurisdiction over the vast majority of cases. Parties
have a right to trial by jury in all criminal and most civil cases. A jury usually consists of a panel
of 12 citizens who hear the evidence and apply the law stated by the judge to reach a decision
based on the facts as the jury has determined them from the evidence at trial. However, most legal
disputes in the United States are resolved before a case reaches a jury. They are resolved by legal
motion or settlement, not by trial.
The Structure of the Federal Court System
The U.S. Constitution establishes the U.S. Supreme Court and gives Congress the authority to
establish the lower federal courts. Congress has established two levels of federal courts below the
Supreme Court: the U.S. district courts and the U.S. circuit courts of appeals. U.S. district courts
are the courts of first instance in the federal system. There are 94 such district courts throughout
the nation. At least one district court is located in each state. District judges sit individually to
hear cases. In addition to district judges, bankruptcy judges (who hear only bankruptcy cases) and
magistrate judges (who perform many judicial duties under the general supervision of district
judges) are located within the district courts. U.S. circuit courts of appeals are on the next level.
There are two of these regional intermediate appellate courts located in different parts of the
country. Panels of three judges hear appeals from the district courts. These regional circuit courts
also hear appeals from decisions of federal administrative agencies.
At the top of the federal court system is the U.S. Supreme Court, made up of nine justices who sit
together to hear cases. At its discretion, the U.S. Supreme Court may hear appeals from the
federal circuit courts of appeals as well as the highest state courts if the appeal involves the U.S.
Constitution or federal law.
The Structure of the State Court Systems
The structure of state court systems varies from state to state, and each state court system has
unique features. However, most states have courts of limited jurisdiction presided over by a single
judge who hears minor civil and criminal cases. States also have general jurisdiction trial courts,
usually called circuit/superior courts, that are presided over by a single judge and hear major civil
and criminal cases. All states have a highest court, usually called a state supreme court, that
serves as an appellate court. Many states also have an intermediate appellate court called a court
of appeals that hears appeals from the trial court. A party in a case generally has one right of
appeal.
Court Administration
The judicial branches of the federal and state governments are separate from the legislative and
executive branches. To insure judicial independence, the judicial branches of the federal and state
governments control the administration of the courts. Court administration includes managing
court budgets, prescribing rules of trial and appellate procedure, reviewing judicial discipline
matters, offering continuing educational programs for judges, and studying court performance.
In the federal judiciary, the Judicial Conference of the United States, made up of 27 members
(the Chief Justice of the United States and 26 judges from each geographic region of the United
States) has overall administrative responsibility for the courts and has primary authority to make
policy regarding the operation of the judicial branch of the government. An important
responsibility of the Judicial Conference is to recommend changes in the rules of procedure used
by all federal courts.
Congress has created three administrative agencies within the judicial branch. The
Administrative Office of the U.S. Courts manages the day-to-day operations of the courts,
including such matters as payroll, equipment, and supplies. The Federal Judicial Center conducts
educational and training programs for judges and court personnel and does research in the fields
of court operations and administration. The U.S. Sentencing Commission develops advisory
guidelines for federal judges in imposing criminal sentences.
In most state court systems, the state supreme court has overall administrative authority over the
court system. It is assisted by an administrative office. The chief justice of the state supreme court
usually appoints the director of the state court administrative office.
Justices of the U.S. Supreme Court and circuit and district judges are appointed by the
President of the United States if approved by a majority vote of the U.S. Senate. These justices
and judges serve during good behavior in effect, a life term. Presidents usually nominate
persons to be judges who are members of their own political party. Persons appointed are usually
distinguished lawyers, law professors, or lower federal court or state court judges. Once these
judges are appointed their salaries cannot be reduced. Federal judges may only be removed from
office through an impeachment process in which charges are made by the House of
Representatives and a trial is conducted by the Senate.
In the entire history of the United States, only a few judges have been impeached and those
removed were found to have committed serious misconduct. These protections allow federal
judges to exercise independent judgment without political or outside interference or influence.
UNIT II: THE U.S. LEGAL SYSTEM: JURY TRIALS
The American jury system was inherited from medieval England, where panels of 12 free and
lawful men in each community were summoned to help the king do justice. For centuries, these
panels based their decisions on what they knew of local wrongdoing. But as England became
more populous, these jurors usually could not rely on neighborhood gossip and increasingly
based their decisions on evidence they heard in court. By the time the American legal system
absorbed the British model, U.S. jurors were admonished to ignore anything they might know
about the case and decide the facts solely on the evidence presented in court.
The British had regarded jury trials as a potential bulwark against oppressive actions by the
king, but there was a more pragmatic reason for retaining trial by jury. English law contained
harsh penalties, including the death penalty for relatively petty crimes. British juries served to
soften the impact of this by acquitting defendants or finding them guilty of lesser crimes.
American law did not pose this problem, but the American colonists in the 18th century had
their own reason for retaining trial by jury they used it as a shield to block what they saw as
oppressive prosecutions by the British. Repeatedly the British rulers indicted Americans for
illegally shipping goods in non-British vessels, only to have local juries acquit the accused. As the
Americans moved toward revolution, it was not surprising that in their Declaration of
Independence they denounced the British king for depriving us in many cases, of the benefits of
trial by jury. And when the new nation adopted its Bill of Rights in 1791, it specified that in all
criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury. It also provided that the right to jury trials in civil cases should be preserved.
In the years that have passed, the U.S. Supreme Court has interpreted these guarantees in
ways that have adjusted the concept of the jury to meet changing conditions. Where jury service
was once limited to white men who owned property, the right to serve on a jury was gradually
extended to minorities and women. The court held that the right to a jury trial did not extend to
petty cases, and that any defendant may waive the right to a jury and go to trial before a judge.
Originally, all juries had 12 members whose decisions had to be unanimous, but the Supreme
Court introduced more flexibility into the system by holding that juries may be as small as six
members and that not all verdicts must be by unanimous votes. Traditionally, poor defendants had
to face the prosecutors alone before the jury, but the Supreme Court held that the government
must provide defense lawyers for them free of charge.
To some extent, the right of trial by jury appears more imposing than it is in reality because in
practice the vast majority of accused persons do not invoke their right to a jury trial. They realize
that if they go to trial before a jury and are found guilty, their own misconduct will have been
highlighted by the testimony and the judge will tend to hand down a heavy punishment. So they
enter into a plea bargain with the prosecutor they agree to plead guilty to a lesser offense in
exchange for a reduced sentence. The prosecution often agrees to plea bargains because it is
spared the trouble, expense, and uncertainty of going to trial. In many jurisdictions more than 9
out of 10 prosecutions are resolved in this way, without a jury trial.
This heavy reliance on plea bargaining is often criticized by observers of the American legal
system. It reflects the reality that while in theory the prosecution and the defense should have the
same chance of winning before a jury, in fact the prosecution usually has many advantages. The
defendant has a right to legal counsel, but frequently his or her lawyer is a public defender who is
inexperienced, overworked, and inclined to settle the matter by a plea bargain rather than fight it
out before a jury. Moreover, the prosecution typically has far more money than the defense to
spend on investigating the case, analyzing the evidence, and checking out prospective jurors. The
result is a degree of cynicism among defendants toward the right to trial by jury, which
sometimes seems to them to promise more than it delivers in terms of justice. In fact, scholars,
judges, and other observers of the jury system point to a series of problems posed by modern
developments that could not have been imagined by the statesmen who enshrined the right to trial
by jury in the Bill of Rights (Graham 4-5).
UNIT III: THE ROMANIAN JUDICIAL SYSTEM
Romania is a republic with a directly elected president and a bicameral legislature. After the fall
of the communist regime in 1989, a new constitution was ratified in 1991, and it was modified by
referendum in October 2003.
The Constitution of Romania
The Romanian Constitution is the fundamental law that establishes the structure of the
government of Romania, the rights and obligations of the country's citizens, and its mode of
passing laws. It stands as the basis of the legitimacy of the Romanian government.
The constitution was most recently revised by a national referendum on October 18-19, 2003. The
new constitution, which took effect October 29, 2003, follows the structure of the Constitution of
1991, but makes significant revisions.
The Constitution of 1991, as revised in 2003, contains 156 articles, divided into 8 major
sections or "Titles." More than half of the articles of the constitution underwent changes, large
and small. The most important changes were:
National minorities have the right to use their native language in dealing with the governmental
administration and the courts.
Private property is guaranteed the protection of the law (previously property was only
"protected", not "guaranteed")
The mandate of the President of Romania is extended to 5 years (previously it had been 4
years).
Military conscription is regulated by organic law (previously it was made mandatory by the
Constitution, and, as of 2007, it will not be mandatory)
Parliamentary immunity is limited.
The Romanian Legislative Bodies
The Parliament of Romania has a bicameral structure, and consists of the Chamber of Deputies
and the Senate. The Chamber of Deputies and the Senate are elected in constituencies, by
universal, equal, direct, secret, and freely expressed suffrage. The Chamber of Deputies is
consists of 332 deputies, and the Senate of 137 senators. The functions of the Parliament of
Romania proceed from its quality of supreme representative body of the Romanian people and
from that of single legislative authority of the country. The main functions of the Parliament of
Romania are: to pass laws, to appoint and revoke some state authorities, and to exercise the
parliamentary
control.
The Romanian Judiciary
The modern legal system in Romania dates back to the mid-19th century. The Romanian justice
system is based on French, Belgian, Italian and German models. To fulfill its responsibility for
the functioning of the courts and the supervision of state marshals, state notaries, and the national
bar organization, the Ministry of Justice was divided into six directorates: civil courts, military
courts, studies and legislation, personnel, administration, and planning and accounting. The 1992
law on reorganization of the judiciary established a four-tier legal system, including the
reestablishment of appellate courts, which existed prior to Communist rule in 1952. The four tiers
consist of: first instance courts, intermediate appellate level courts, a Supreme Court, and a
Constitutional Court. The court system also includes military courts. Military courts were
established on a territorial basis, subdivisions being determined by the Council of
Ministers. Under the law, the courts are independent of the executive branch. The constitution
vests authority for selection and promotion of judges in the Ministry of Justice. Judges are
appointed for life by the president upon recommendation from a panel of judges and prosecutors
selected by the parliament. The Ministry of Justice exercises powers related to the administration
of the justice system, execution of punishments, as well as in connection with the activity of the
Public Ministry, based on strict application of the laws and in keeping with the democratic
principles of the rule of law, ensuring adequate conditions for the entire justice system. The
Romanian Constitution reinstated the Superior Council of the Magistracy, a body of judicial
authority with management powers and disciplinary jurisdiction.
UNIT IV: THE ROMANIAN COURT SYSTEM
The judicial power in Romania is exercised by the High Court of Cassation and Justice and by the
other courts established by law. The court system comprises: The High Court of Cassation and
Justice (HCCJ); 15 courts of appeal; 41 tribunals; 4 specialised tribunals; 177 courts of first
instance.
The courts of first instance have a general jurisdiction rationae materiae. A decision rendered
at the level of courts of first instance may be challenged in appeal at the next court level. The
means of judicial review regulated by law are: first instance, appeal and second appeal. The Civil
Procedure Code provides only for one appeal in simple cases. For complex cases one appeal may
be lodged (on matters pertaining to the facts of the case and the interpretation of the law) and the
second appeal (only on matters of law). Specialised sections (e.g. for minors, civil section,
criminal section, commercial section, administrative litigation section, labour litigation section,
etc.) are in place at the level of higher courts (tribunals, courts of appeal and HCCJ).
Guarantees of independence are provided both by the Constitution and the laws on judiciary on
the following matters: judges are independent and obey only the law; all career decisions
regarding judges are rendered by an independent body, the Superior Council of Magistracy; the
judges decide on their own competence to try cases; only courts may review the court decisions.
The prosecutors offices function attached to the courts and include: the Prosecutors Office
attached to High Court of Cassation and Justice (POHCCJ); prosecutors offices attached to
courts of appeal; prosecutors offices attached to tribunals; and prosecutors offices attached to
courts of first instance. The prosecutors offices have premises in the localities where the courts
function. The prosecutors offices which have judicial personality are those attached to courts of
appeal and tribunals. The prosecutors offices attached to courts of appeal also have a section for
minors and family cases. The prosecutors offices attached to courts of appeal are headed by
general prosecutors, and the prosecutors offices attached to tribunals and first instance courts are
headed by first-prosecutors. The sections, services and offices of prosecutors offices attached to
courts are headed by chief prosecutors.
Prosecutors have the following competences: they conduct criminal investigations according
to the law; they represent the general interest of the society and protect the rule of law; and they
lead and supervise the activity of the criminal investigations conducted by the police. Prosecutors
are independent in relation to the courts and to any other public authority and exercise their
prerogative according to the principle of legality, impartiality and hierarchical control, under the
authority of the Minister of Justice. The Minister of Justice cannot ask the prosecutors to initiate
or to stop criminal investigations and has no means to interfere in their activity. The Minister of
Justice may only check the manner in which prosecutors fulfill their managerial duties, their
working obligations and the manner in which their work relationships with litigants take place.
The law expressly provides that the control exercised by the Minister may not concern measures
ordained by prosecutors in the course of criminal prosecution and the decisions they adopt.
When ordered, the control is performed by prosecutors within prosecutors offices and not by the
Ministry of Justice (MoJ) staff. The Minister of Justice may ask the general prosecutor of the
Prosecutors' Office attached to the High Court of Cassation and Justice, or, as the case may be,
the chief prosecutor of the National Anti-Corruption Directorate, for information on the activity
of the prosecutors' offices and may issue written guidelines about the steps to be taken in crime
prevention and control.
Further guarantees for the independence of prosecutors include:
the career decisions regarding prosecutors are rendered by the Superior Council of Magistracy
(SCM)
Objective criteria are established for the distribution of cases to prosecutors
Procedural means are in place to protect prosecutors from interferences in conducting criminal
investigations.
UNIT V: THE ROMANIAN JUDICIARY
The Superior Council of Magistracy
The Superior Council of Magistracy (SCM) is the institution in charge with guaranteeing the
independence of the judiciary, being the only body competent with regard to the career of judges
and prosecutors (appointment, professional evaluation, promotion, disciplinary sanctioning and
release from office). The SCM is independent and obeys only the law. The SCM is consists of 19
members: 9 judges and 5 prosecutors, elected by the general assemblies of judges and
prosecutors; 2 representatives of the civil society and 3 members de jure the President of the
HCCJ, the Minister of Justice, and the General Prosecutor of the PO-HCCJ.
The SCM has two sections: one for judges and one for prosecutors. These sections function
as courts for judges and prosecutors for trying disciplinary breaches of duty. When the SCM acts
in this capacity, the Minister of Justice has no right to vote. The following institutions are
functioning under the coordination of the SCM: the National Institute of Magistracy (in charge
with the initial and continuous training of judges and prosecutors), and the National School for
Clerks (in charge with the initial and continuous training of auxiliary staff). As an exception, the
General Prosecutor from the Prosecutors Office attached to the HCCJ, his deputies, the General
Prosecutor from the DNA and his deputies, and the Chief Prosecutor of the Direction for
Investigation of Organised Crime and Terrorism are appointed by the President of Romania, upon
proposals made by the Minister of Justice, with the advisory opinion of the SCM.
The Ministry of Justice
The Ministry of Justice has competences regarding the administration of justice as a public
service, ensuring its good organisation and providing the budgetary resources. The overall courts
budget is administered by the Ministry of Justice. The following institutions function under the
authority of the Ministry of Justice: the National Administration of Penitentiaries; probation
services; the National Trade Register Office; and the National Institute for Forensic Expertise.
Lawyers
Lawyers are organised as a liberal profession, according to Law no. 51/1995 on the organization
and exercise of the lawyers profession. The lawyers have their own professional organisation
The National Union of Romanian Bars as well as decentralised units at the level of every
district. Lawyers perform their activity in private offices and represent or assist clients before
courts, prosecutors offices or any other public authority. The lawyers may be chosen by the
clients or appointed ex officio by courts, according to the provisions of the Criminal Procedure
Code and the Civil Procedure Code which regulate legal aid.
Public Notaries
Public notaries are organised as a liberal profession, according to Law 36/1995 regarding public
notaries and notary activity. The notaries have their own professional organisation The National
Union of Romanian Notaries as well as decentralised units at the level of every district. The
notaries perform their activity in private offices, providing services to natural and legal persons,
by authenticating/certifying contracts or any other acts, according to the law.
Judicial Bailiffs
Bailiffs are organised as a liberal profession, according to Law no. 188/2000 regarding judicial
bailiffs. The bailiffs have their own professional organisation The National Union of Judicial
Bailiffs as well as decentralised units at the level of every district. The judicial bailiffs perform
their activity in private offices, having the task of conducting enforcement of judgments and other
writs of execution.
The Constitutional Court
The Constitutional Court safeguards the compliance of legislative acts with the constitutional
provisions. The Constitutional Court is not part of the judiciary. Nevertheless, it ensures the
observance of the rule of law. The ex ante constitutionality control is performed for various
legislative acts, such as laws before promulgation, upon notification by the President of Romania,
by the President of either of the two Chambers of Parliament, by the Government, by the HCCJ,
by the Ombudsman, or by at least 50 deputies or 25 senators.
