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Developing Mongolia's Legal Framework: A Needs Analysis : The Judicial System
Court ProcedureFormerly trials were inquisitorial, with the emphasis on pre-trial investigation, and there was close cooperation between the judge, prosecutor and advocates to establish the objective truth. The trials themselves were effectively run by the prosecutors who put pressure on judges to decide cases in conformity with the party line, and who generally supervised and controlled judicial activities. Mongolia has now adopted the adversarial system for all trials, although they do not yet operate in a manner resembling trials in those countries with the same system. In particular, the advocates are not obviously assertive on behalf of their clients and hearings are generally dominated by the judges. Both advocates and judges may be assisted by some training in this area. When a case is submitted to the court, the allocated judge invites the defendant to a meeting to determine whether there is a defence or if the matter will be contested. This is the first of what may be several meetings between the judge and one of the parties without the other. If settlement is not possible, a date is allocated for the hearing, usually no more than two months after filing. Prior to the hearing the parties may submit written statements, documents and other evidence to the court. However, there are no interlocutory procedures available such as discovery or interrogatories. Trials are held in public. All evidence mst be presented at the hearing and a transcript is made by the court secretary. Judges must base their decision on the evidence presented and may not rely on their own knowledge. Decisions are made after hearing the opinion of the citizensþ representatives.24 If there is more than one judge on the bench, the decision is made by majority vote. A hand-written judgment is generally given at the end of the hearing and a typed version is provided later. If there is a dissenting judgment, the case will automatically be reviewed by a higher court. The average civil judgment is three pages long with an outline of the facts found and an analysis of the relevant law. The Civil Procedure Code does not provide methods by which a trial may be shortened, such as the provision of agreed statements of fact. This does not yet seem to be an issue, at least with litigants, cost-saving not being a priority as most parties represent themselves. However, it is something that, along with the introduction of interlocutory procedures, could be considered in the future. First instance cases are considered by up to three judges and three citizensþ representatives. This makes for a cumbersome and expensive justice system and many judges are of the opinion that more first instance cases should be heard and decided by just one judge. All appeals are considered by three judges who receive the complete file from the lower court and base their decision on it. Normally there is no hearing, although there may be if the judges think that there are still issues to clarify. In the Supreme Court, a dissenting judge may look for the support of two other Supreme Court judges, and if this is forthcoming the matter will be reconsidered at a plenary session, of which there are an average of twelve each year. The final decision is by majority vote. The court filing fee to be paid by a plaintiff to the first instance courts in civil cases varies from two percent of the amount in dispute for claims under Tug 10,000 ($22) to four percent for claims above Tug 50,000 ($109). A successful plaintiff may claim these costs from the defendant and any successful party can seek a contribution to the costs of legal representation from the loser. There are no court costs for criminal cases, appeals, or for cases before the Tsets. Judgments that are not voluntarily executed are implemented for the winning party by the court bailiffs. Parties are not permitted to execute judgments themselves and there is no procedure by which they can secure their position as judgment creditors, for example, by taking a charge over the judgment debtor's property. Although bailiffs claim a success rate of 65 percent, there is also some feeling that they are not particularly effective in enforcing large judgments and that it is too easy for judgment debtors to hide their assets. This problem might be partly overcome by stronger enforcement mechanisms and the introduction of more comprehensive property and security registers.25 There is also growing public pressure to bring in a system of imprisonment for non-payment of judgment debts. ____________________ 24 These are members of the public without legal training who are elected to the position for a four-year term by the soum or district administration. Every citizen with a good record of behaviour is eligible. They may express their opinion about the facts of the case or the guilt or innocence of the accused. They receive an allowance for their participation. Mongolia's first Constitution of 1926 introduced citizens' representatives, who were then known as people's representatives, and whose task it was to represent the people in court hearings. 25 There are no credit-checking agencies in Mongolia.
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