14 August 2020 07:33 AM

COURTS > Court of litigation settlement Back


Introduction
The dual judicial system applied in Lebanon, that is having two different judicial authorities, represented by the judicial courts and the administrative courts, may lead to the complication of the litigation system and to the possibility of the existence of conflict over jurisdiction between both types of courts.
Administrative courts are competent to see all administrative matters, in other words where basically public administration is a party; whilst judicial courts are competent to see litigations arising amongst individuals. The ambiguity regarding the nature of the litigation in some cases may make it difficult to appoint the competent court. This leads to litigation arising over jurisdiction of courts. That would take place when two courts are in charge of a certain case, the first court being “judicial” while the second would be “administrative”, each one of them may declare herself competent or incompetent.
Pursuant to the above mentioned stipulations, the dual judicial system requires the existence of a judicial body that should handle conflicts of jurisdictions between the “administrative” and “judicial” tribunals and should resolve this litigation. In Lebanon, this body is known as the Court of Conflict Resolution.

Composition of the Court of Conflict Resolution

The Mandate epoch
Because Lebanon was subject to the French mandate, as well as Syria, a single court was established to resolve the two countries’ disputes over jurisdiction, pursuant to the High Commissioner decision rendered, on December 5, 1924 under Nº 2978. This decree remained in force, with some partial amendments on its provisions until the demise of the mandate. Pursuant to the first article of that decree, the Court was composed of a president and five members; the president was the Secretary General of the High Commissariat, while the members were: the Legislative Counselor of the mentioned  Commissariat, two judges of the Syrian or the Lebanese Court of Cassation, one of them being a French national, while the other one was a native, in addition to two judges of the Syrian or the Lebanese State Council, one of them being a French national and the other one is a native, when the case under consideration concerned examining  the conflict of jurisdiction between the Syrian courts or the Lebanese courts.
 
After the demise of the Mandate
After the demise of the Mandate and the abolition of all its constituencies and services, the function of the court of litigations was converted under the law of October 14, 1944 to the Court of Appeal, its civil chamber. When the Court of Cassation was re-established, it was assigned the function of the Court of Conflict Resolution. However, it was more suitable, in order to take into account the spirit of the legislation and the principle of separation of the two judicial and administrative justice, to establish an organization in which each one of these two judiciaries are equally represented, either by establishing a private court or through a partnership between the State Council and the Court of Cassation. This solution was adopted by the Legislative Decree Nº 119 pertaining to the organization of the State Council issued on 12 June 1959; the current system adopted the same principle also in 1975.

Under the current legislation
The Court of Conflict Resolution under the current legislation consists of the President and four members. The presidency is in turn between the president of the State Council and the First President of the Cassation Court for a judicial year. The members are: Two judges of the State Council, the Vice president of the State Council and a counselor, and two judges of the judicial courts, a president of a Chamber and a counselor of the Court of Cassation, or a president of the Court of Appeal, appointed by the Supreme Judicial Council.
The tasks of the Government Commissioner at the Court of Conflict Resolution are undertaken by the Attorney General at the Court of Cassation, when it is presided by the President of the State Council and by the Government Commissioner at the State Council when it is presided by the First President at the Court of Cassation.

Competence of the Court of Conflict
The Lebanese legislature granted the Court of Conflict Resolution the jurisdiction to resolve the negative litigation on the jurisdiction, without the positive litigation on the jurisdiction, and when the contradiction between two judgments denies justice, as well as the contradiction between the jurisprudence of the administrative courts and of the judicial courts.
 
The positive litigations on jurisdiction
The Lebanese legislator did not give the Court of Conflict Resolution the jurisdiction to resolve the positive litigations on jurisdiction, similarly to what was adopted by the French law.
 
The negative litigations on jurisdiction
The negative litigation on jurisdiction happens when judgments of incompetence are issued by the concerned courts for the same lawsuit: the first from an administrative court and the second from a judicial court.
The negative litigation on jurisdiction yields to the intervention of the Court of Conflict Resolution that will appoint the competent court. The nominated court should abide by the decision of the Court of Conflict Resolution. The request to settle the negative litigation on jurisdiction should be submitted within a period of two months starting from the notification of the resolution of incompetence.
 
The Litigations resulting from contradictory verdicts
The Court of Conflict Resolution examines by virtue of article 139 of the regulation of the Sate Council, matters concerning contradiction between two judgments leading to a deny of justice. It is required that:
  • The two judgments must be issued as follows: one from a judiciary court and the second from an administrative court.
  • The two judgments must be final given by the court of the last resort (either because of their issuance in the final instance, or because they have not been challenged by the normal methods).
  • The two judgments have settled the substance of the litigation of the same matter and it is not necessary that the litigants are the same or for the same reasons.
  • That there must be some kind of discrepancy between the two issued judgments from the judiciary Court and the Administrative Court.
  • That the case should be submitted within two months starting from the day that the last judgment became final.
The contradiction between judicial and administrative jurisprudence
Article 141 of the current regulation of the Sate Council enables the Court of Conflict Resolution to resolve contradiction resulting from the dissimilarity between the jurisprudence of the administrative courts and the judiciary courts. This faculty does not exist in the French legislation.
The Court of Conflict Resolution decides to resolve differences in this case in accordance to law at the request of the Department of cases at the Ministry of Justice; its resolution cannot benefit or harm the litigants.

The trial procedures at the Court of Conflict Resolution
The Court of Conflict Resolution applies the same trial procedures of the State Council, its decisions is not be subject to any of the review methods.
Among the characteristics of the trial procedure before the Court of Conflict Resolution, we mention:
  1. The trial procedures are written, it is only permissible to present motives and claims in documents, as the Court shall consider only the papers included in the file.
  2. The trial procedures are inquisitorial: the appointed counselor should undertake the investigation in the case, unlike the civil judge, who leaves it for the litigants.
  3. The trials are not public except when issuing the ruling.
  4. The case does not stop the execution, unless the court decides it at the request of the applicant if it finds out that the execution will inflict a damage that cannot be avoided.
  5. Its resolutions shall not be subject to any of the review methods.

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