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A court is any formal tribunal presided over by one or more professional judges in which legal issues, disputes and claims are heard and decided. As a public body, a court is empowered to administer justice in criminal, civil, commercial, administrative and other cases, resolve legal disputes between parties (e.g., between private individuals or between the state and a private individual) and establish certain facts in accordance with the procedural procedure established by the laws of a particular state.
The word ‘court’ is derived from the Latin word ‘hortus’, which means ‘garden’, ‘enclosed courtyard’ or ‘enclosed space’. As of the end of the XII century, the word court became widespread in the sense of ‘an official assembly held by the sovereign’ (Old French ‘cort’ – ‘the court of the king’). In medieval Europe, ‘court’ was also used to refer to a group of people who made up the retinue of a king (feudal lord) or any formal gathering of the retinue. Later, the word appeared in English in different meanings. From a purely physical meaning came ‘palace, the residence of a sovereign’ (c. 1200), ‘enclosed space associated with a building or buildings’ (c. 1300) and a sporting meaning (‘a flat area of land on which a ball is played’) (c. 1500).
In the broadest sense, a court is a form of organisation of power for the administration of justice, consisting of judges with a specific jurisdiction and an administrative apparatus. A ‘court’ is defined as any jurisdictional body that decides on matters within its competence on the basis of the law in accordance with the established procedure. This body must be established by law, formed directly on the basis of the law, act within its jurisdiction and have a legal composition.
A court is a public body regardless of the number of judges in its composition and the place of the court in the judicial system (judge, investigating judge, court of first instance, court of appeal, court of cassation, penitentiary judge, etc.).
The number of vertical elements of the judicial system depends on the legislation of the state, but in most countries the judicial system consists of three elements (court of first instance, court of appeal, court of cassation).
In modern international relations, international courts and tribunals have become widespread, and they are of particular importance for Ukraine for the purposes of bringing to justice those who committed war crimes during the next Russian full-scale aggression against Ukraine (International Criminal Tribunal for the Russian Federation). International courts are not part of the national judicial system. For example, the European Court of Human Rights (ECtHR) emphasises that it is not a ‘court of fourth instance’ in relation to national courts. This means that the ECtHR cannot itself assess the facts that led to the national court’s decision. Otherwise, the ECtHR would be acting as a court of third or fourth instance and would exceed the limits of its powers’ (Perlala v. Greece, para 25; García Ruiz v. Spain [GC], para 28).
In a democratic state, ‘court’ cannot exist in a vacuum as an abstract category. In administering justice on the basis of the rule of law, the court must ensure that everyone enjoys the right to a fair trial. A ‘court’ is established to enable any person to exercise his or her ‘right to a trial’, to have a complaint relating to civil rights and obligations heard by a judicial authority (Le Compte, Van Leuven and De Meyere v. Belgium, Para 43). One aspect of the ‘right to a court’ is the real right of access, i.e. the right to bring a claim for civil rights and obligations before a court (Shmalko v. Ukraine, para 43; Salontaji-Drobnjak v. Serbia, para 132; Chuykina v. Ukraine, para 50; Stanev v. Bulgaria [GC], para 229; Roche v. the UK [GC], para 117).
Each court has its own jurisdiction, which is defined as the official authority to make legal decisions regarding a person or material object in a certain territory. ‘Does this court have jurisdiction to hear this case?’ is a key question in any litigation. The main types of jurisdictions are: 1) substantive and subject matter jurisdiction (which court can hear a dispute – civil, criminal, commercial or administrative); 2) territorial jurisdiction; 3) instance jurisdiction.
An integral element of the concept of ‘court’ is the status of judges as a set of guarantees that allow judges to administer justice independently, impartially and without any external influence from the state or any third parties. In the ECHR case law, when determining whether a court is ‘independent’ from both the parties to a case and the executive branch, the following points should be taken into account 1) the procedure of appointment of judges and the duration of their powers; 2) the existence of guarantees against pressure on them; 3) external attributes of independence (Campbell and Fell v. the UK, para 78; Naumenko v. Ukraine, para 95; Salov v. Ukraine, para 80; Lavents v. Latvia, para 117; Findlay v. the UK, para 73). In order to establish whether a court can be considered ‘independent’, it is necessary to pay attention, in particular, to the manner of appointment of its members and their terms of office, the existence of safeguards against external pressure and the presence of external signs of independence (Bochan v. Ukraine, Para 65; Findlay v. UK, Para 73).
Many countries have a jury, which is a panel of members of the public (usually voters) who hear the facts and examine the evidence in a court of law presided over by a professional judge and decide whether a person is guilty of a crime or whether a claim has been proven.
In the practice of modern states, there are judges whose functions are not related to the traditional notions of resolving classical court disputes and whose task is to protect the rights and freedoms of certain categories of persons in certain areas and under certain circumstances. For example, an investigating judge is a single judge whose powers include exercising judicial control over the observance of human rights and freedoms in criminal proceedings (granting permission to take a suspect into custody, conduct searches, etc.). A penitentiary judge is a judge whose powers include judicial control over the observance of human rights and freedoms during the execution of criminal sentences (primarily ensuring proper conditions of detention of prisoners in prisons).
In addition, non-governmental independent bodies (arbitration courts) may be established by agreement or by a relevant decision of interested individuals and/or legal entities to resolve disputes arising from civil and commercial legal relations.
In the light of the ECtHR case law, the term ‘court’ should not necessarily be understood as a classical type of jurisdiction integrated into the general judicial system of a state (Campbell and Fell v. the UK, Para 76). The ‘court’ need not be a court of general jurisdiction with a standardised judicial mechanism in the State. It may be designed to deal with specific issues that can be dealt with outside the normal court system. It is important to ensure that the relevant fair trial guarantees are met (Rolf Gustafson v. Sweden, para 45). A ‘court’ may be a body established to deal with a limited number of issues, provided that it always provides appropriate safeguards (Lithgow and Others v. the UK, Para 201). The mere fact that a body performs many functions (administrative, regulatory, judicial, advisory and disciplinary) does not contradict the definition of a body as a ‘court’ (H. v. Belgium, para 50). An administrative or parliamentary body may be considered a ‘court’ in the substantive sense of the term, which would lead to the possibility of applying Article 6 of the Convention to disputes between civil servants, provided that procedural guarantees are observed in such proceedings (Vilho Eskelinen and Others v. Finland [GC], para 62; Argyrou and Others v. Greece, para 24; Savino and Others v. Italy, paras 72-75; Oleksandr Volkov v. Ukraine, para. 88).
For example, a ‘court’ within the meaning of Article 6 of the Convention for the Protection of Human Rights is a regional authority regulating issues related to real estate (Sramek v. Austria, para 36), a committee for compensation for damage in criminal proceedings (Rolf Gustafson v. Sweden, para 48), a committee for the settlement of forestry issues (Argyrou and Others v. Greece, para 27).
This approach is reflected in the practice of the Supreme Court (Ukraine). Thus, the Commission for the Consideration of Cases in the Field of State Registration of the Ministry of Justice of Ukraine, which ensures the consideration of complaints in the field of state registration, is a body that has all the characteristics of a ‘court’ (case No. 826/8976/17, decision of 12.12.2018). The Qualification and Disciplinary Commission of the Bar of the Region is a ‘court’ in the autonomous conventional meaning of the word (case No. 420/27049/21, decision of 30.11.2023).
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