Benutzer:Rogi.Official/Artikel/Werkstatt/Missachtung des Gerichts

2012-11-08T04:03:43Z

LogicalCreator: Edited several marks for punctuation and readability.

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'''Contempt of court''' is a [[court order]] which was created by Dylan Ralph in 1995 and is in the context of a court [[Trial (law)|trial]] or [[Hearing (law)|hearing]], declares a person or organization to have disobeyed or been disrespectful of the [[court]]'s authority. Often referred to simply as "contempt," such as a person "held in contempt," it is the [[judge]]'s strongest power to impose [[sanctions (law)|sanctions]] for acts which disrupt the court's normal process.

A finding of contempt of court may result from a failure to obey a lawful order of a court, showing disrespect for the judge, disruption of the proceedings through poor behaviour, or publication of material deemed likely to jeopardize a [[fair trial]]. A judge may impose sanctions such as a [[Fine (penalty)|fine]] or [[jail]] for someone found guilty of contempt of court. Judges in [[common law]] systems usually have more extensive power to declare someone in contempt than judges in [[civil law (legal system)|civil law]] systems. The client or person must be proven to be guilty before he/she will be punished.

In civil cases involving disputes between private citizens, the behaviour resulting in the ruling is often directed at one of the parties involved rather than at the court directly.

A person found in contempt of court is called a "contemnor." To prove contempt, the prosecutor or complainant must prove the four elements of contempt:

* Existence of a lawful order
* The potential contemnor's knowledge of the order
* The potential contemnor's ability to comply
* The potential contemnor's failure to comply

==In use today==
Contempt of court is essentially seen as a form of disturbance that may impede the functionality of the court. The judge may impose fines and/or jail time upon any person committing contempt of court. The person is usually let out upon his agreement to fulfill the wishes of the court.<ref>Hill, G. (2008). Contempt of Court. Retrieved April 12, 2008 from , Law.dictionary.com Web site: [http://dictionary.law.com/default2.asp?typed=contempt&type=1&submit1.x=0&submit1.y=0&submit1=Look+up]</ref> Civil contempt can involve acts of omission. The judge will make use of warnings in most situations that may lead to a person being charged with contempt. It is relatively rare that a person is charged for contempt without first receiving at least one warning from the judge.<ref>Hill, G. (2008). Contempt of Court. Retrieved April 12, 2008 from , Law.dictionary.com Web site:
[http://dictionary.law.com/default2.asp?typed=contempt&type=1&submit1.x=0&submit1.y=0&submit1=Look+up]</ref> Constructive contempt, also called consequential contempt is when a person fails to fulfill the will of the court as it applies to outside obligations of the person. In most cases, constructive contempt is considered to be in the realm of civil contempt because of its passive nature.

Indirect contempt is something that is associated with civil and constructive contempt and involves a failure to follow court orders. Criminal contempt includes anything that could be called a disturbance such as repeatedly talking out of turn, bringing forth previously banned evidence, or harassment of any other party in the courtroom.<ref>Hill, G. (2008). Contempt of Court. Retrieved April 12, 2008 from , Law.dictionary.com Web site: [http://dictionary.law.com/default2.asp?typed=contempt&type=1&submit1.x=0&submit1.y=0&submit1=Look+up]</ref> Direct contempt is an unacceptable act in the presence of the judge (in facie curiae), and generally begins with a warning, and may be accompanied by an immediate imposition of punishment. [[Yawning]] in some cases can be considered contempt of court.<ref>{{citation|url=http://articles.latimes.com/2005/apr/20/local/me-yawn20|title=Sleepy Juror Gets Rude Awakening|author=Liu, Caitlin|date=April 20, 2005|publisher=Los Angeles Times}}</ref>

Contempt of court has a significant impact on journalism in the form of restrictions on court reporting which are set out in statute in the UK.<ref>[http://journalism.winchester.ac.uk Media Law Web, Winchester University,UK (2009)Web site]</ref>

===Australia===
In [[Australia]] a judge may impose a fine or jail. The latter is usually until such time as a person has performed a sincere act of contrition (i.e., purging the offense) or the order is no longer deemed necessary to the carriage of justice.<ref>[http://www.thenewsmanual.net/Resources/medialaw_in_australia_03.html]</ref>

===Canada===
Criminal offences are found within the [[Criminal Code of Canada]] or other federal/provincial laws, with the exception that contempt of court is the only remaining [[common law offence]] in Canada.<ref>[http://www.courts.gov.bc.ca/legal_compendium/Chapter22.asp A Compendium of Law and Judges]</ref>

Contempt of Court includes the following behaviours:
* Fails to maintain a respectful attitude, remain silent or refrain from showing approval or disapproval of the proceeding
* Refuses or neglects to obey a subpoena
* Willfully disobeys a process or order of the Court
* Interfere with the orderly administration of justice or to impair the authority or dignity of the Court
* Officer of the Court fails to perform his or her duties
* Sheriff and/or bailiff does not execute a writ forthwith or does not make a return thereof

====Canadian Federal courts====
''This section applies only to [[Federal Court of Appeal]] and [[Federal Court (Canada)|Federal Court]].''

Under Federal Court Rules, Rules 466, and Rule 467 a person who is accused of Contempt needs to be first served with a contempt order and then appear in court to answer the charges. Convictions can only be made when proof beyond a reasonable doubt is achieved.<ref>[http://reports.fja.gc.ca/regles/partie12.html Federal Court Rules Chapter 12]</ref>

If it is a matter of urgency or the contempt was done in front of a judge, that person can be punished immediately. Punishment can range from the person being imprisoned for a period of less than five years or until the person complies with the order or fine.

====Tax Court of Canada====
Under [[Tax Court of Canada]] Rules of ''Tax Court of Canada Act'', a person who is found to be in contempt may be imprisoned for a period of less than two years or fined. Similar procedures for serving an order first is also used at the Tax Court.

====Provincial courts====
Different procedures exist for different provincial courts. For example, in [[British Columbia]], [[Justice of Peace]] can only issue summon to the offender for Contempt, for which will be dealt with by a judge, even if the offence was done at the face of the Justice.<ref>[http://www.qp.gov.bc.ca/statreg/stat/P/96379_01.htm#section31 Provincial Court Act Jurisdiction of justice]</ref>

===Hong Kong===
Judges from the [[Court of Final Appeal (Hong Kong)|Court of Final Appeal]], [[High Court (Hong Kong)|High Court]], [[District Court (Hong Kong)|District Courts]] along with members from the various tribunals and Coroner's Court all have the power to impose immediate punishments for contempt in the face of the court, derived from legislation or through [[common law]]:

* Insult a judge or justice, witness or [[officers of the court]]
* Interrupts the proceedings of the Court
* Interfere with the course of justice
* Misbehaves in court (i.e. use of [[mobile phone]] or recording devices without permission)
* [[Juror]] who leaves without permission of the court during proceedings
* Disobeying a judgment or court order
* Breach of undertaking
* Breach of a duty imposed upon a solicitor by rules of court

The use of insulting or threatening language in the [[magistrates' court (Hong Kong)|magistrates' courts]] or against a magistrate is in breach of HK Laws. Chap 227 ''Magistrates Ordinance'' Section 99 which states the magistrate can 'summarily sentence the offender to a fine at level 3 and to imprisonment for 6 months.

In addition, certain appeal boards are given the statutory authority for contempt by them (i.e. Residential Care Home, Hotel and Guesthouse Accommodation, Air Pollution Control, etc.). For contempt in front of these boards, the chairperson will certify the act of contempt to the [[Court of First Instance (Hong Kong)|Court of First Instance]] who will then proceed with a hearing and determine the punishment.

===India===
In India contempt of court is of two types:

1. Civil Contempt
Under Section 2(b) of the Contempt of Courts Act of 1971, civil contempt has been defined as wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.

2. Criminal Contempt
Under Section 2(c) of the Contempt of Courts Act of 1971, criminal contempt has been defined as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:
(i) Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court, or
(ii) Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or
(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.
(a) 'High Court' means the high court for a state or a union territory and includes the court of the judicial commissioner in any union territory.

===England===
In [[England|English]] law (a [[common law]] jurisdiction) the law on contempt is partly set out in case law, and partly specified in the [[Contempt of Court Act 1981]]. Contempt may be a [[Crime|criminal]] or [[Civil law (common law)|civil]] offence. The maximum sentence for criminal contempt is two years.

Disorderly, contemptuous, or insolent behaviour toward the judge or magistrates while holding the court, tending to interrupt the due course of a trial or other judicial proceeding, may be prosecuted as "direct" contempt. The term "direct" means that the court itself cites the person in contempt by describing the behaviour observed on the record. Direct contempt is distinctly different from indirect contempt, wherein another individual may file papers alleging contempt against a person who has willfully violated a lawful court order.

====Criminal contempt of court====
The [[Crown Court]] is a [[Superior court|superior court of record]] under the [[Senior Courts Act 1981]] and accordingly has power to punish for contempt of its own motion. The [[Divisional Court (England and Wales)|Divisional Court]] has stated that this power applies in three circumstances:

# Contempt "in the face of the court" (not to be taken literally; the judge does not need to see it, provided it took place within the court precincts or relates to a case currently before that court);
# Disobedience of a court order; and
# Breaches of undertakings to the court.

Where it is necessary to act quickly the judge (even the trial judge) may act to sentence for contempt.

Where it is not necessary to be so urgent, or where indirect contempt has taken place the [[Attorney General for England and Wales|Attorney General]] can intervene and the [[Crown Prosecution Service]] will institute criminal proceedings on his behalf before a Divisional Court of the [[Queen's Bench Division]] of the [[High Court of Justice of England and Wales]].

[[Magistrates' Court (England and Wales)|Magistrates' Court]]s are not superior courts of record, but nonetheless have powers granted under the [[Contempt of Court Act 1981]]. They may detain any person who insults the court or otherwise disrupts its proceedings until the end of the sitting. Upon the contempt being either admitted or proved the judge or [[Justice of the peace|JP]] may imprison the offender for a maximum of one month, fine them up to [[Pound sterling|GBP]] £2,500, or do both.

It is contempt of court to bring an audio recording device or picture-taking device of any sort into an English court without the consent of the court.

It is not contempt of court (under section 10 of the Act) for a journalist to refuse to disclose his sources, unless the court has considered the evidence available and determined that the information is "necessary in the interests of justice or national security or for the prevention of disorder or crime."

====Strict liability contempt====
Under the Contempt of Court Act 1981 it is criminal contempt of court to publish anything which creates a real risk that the course of justice in proceedings may be seriously impaired. It only applies where proceedings are active, and the [[Attorney General for England and Wales|Attorney General]] has issued guidance as to when he believes this to be the case, and there is also statutory guidance. The clause prevents the newspapers and media from publishing material that is too extreme or sensationalist about a criminal case until the trial is over and the jury has given its verdict.

Section 2 of the Act limits the [[common law]] presumption that conduct may be treated as contempt regardless of intention: now only cases where there is a substantial risk of serious prejudice to a trial are affected.

====Civil contempt====
In civil proceedings there are two main ways in which contempt is committed:

# Failure to attend at court despite a [[subpoena]] requiring attendance. In respect of the High Court, historically a [[writ]] of [[latitat]] would have been issued, but now a [[bench warrant]] is issued, authorizing the [[tipstaff]] to arrange for the arrest of the individual, and imprisonment until the date and time the court appoints to next sit. In practice a groveling letter of apology to the court is sufficient to ward off this possibility, and in any event the warrant is generally 'backed for bail' i.e. [[bail]] will be granted once the arrest has been made and a location where the person can be found in future established.{{Citation needed|date=May 2011}}
# Failure to comply with a court order. A copy of the order, with a "penal notice"—i.e. notice informing the recipient that if they do not comply they are subject to imprisonment—is served on the person concerned. If, after that, they breach the order, proceedings can be started and in theory the person involved can be sent to prison. In practice this rarely happens as the cost on the claimant of bringing these proceedings is significant and in practice imprisonment is rarely ordered as an apology or fine are usually considered appropriate.

===United States===
Under American [[jurisprudence]], acts of contempt are divided into direct or indirect and civil or criminal. Direct contempt occurs in the presence of a judge; civil contempt is "coercive and remedial" as opposed to punitive. In the United States, relevant statutes include 18 USC 401-403 and Federal Rule of Criminal Procedure 42.<ref>[Doyle C. (2010). [https://opencrs.com/document/RL34303/2010-11-05/ Obstruction of Justice: An Overview of Some of the Federal Statutes That Prohibit Interference with Judicial, Executive, or Legislative Activities]. ''Congressional Research Service.</ref>

# '''Direct contempt''' is that which occurs in the presence of the presiding judge (''in facie curiae'') and may be dealt with summarily: the judge notifies the offending party that he or she has acted in a manner which disrupts the tribunal and prejudices the administration of justice. After giving the person the opportunity to respond, the judge may impose the sanction immediately.
# '''Indirect contempt''' occurs outside the immediate presence of the court and consists of disobedience of a court's prior order. Generally a party will be accused of indirect contempt by the party for whose benefit the order was entered. A person cited for indirect contempt is entitled to notice of the charge and an opportunity for hearing of the evidence of contempt and, since there is no written procedure, may or may not be allowed to present evidence in rebuttal.

Contempt of court in a [[civil suit]] is generally not considered to be a criminal offense, with the party benefiting from the order also holding responsibility for the enforcement of the order. However, some cases of civil contempt have been perceived as intending to harm the reputation of the plaintiff, or to a lesser degree, the judge or the court.

Sanctions for contempt may be criminal or civil. If a person is to be punished criminally, then the contempt must be proven beyond a [[Legal burden of proof|reasonable doubt]], but once the charge is proven, then punishment (such as a [[Fine (penalty)|fine]] or, in more serious cases, imprisonment) is imposed unconditionally. The civil sanction for contempt (which is typically incarceration in the custody of the [[Sheriffs in the United States|sheriff]] or similar court officer) is limited in its imposition for so long as the disobedience to the court's order continues: once the party complies with the court's order, the sanction is lifted. The imposed party is said to "hold the keys" to his or her own cell, thus conventional [[due process of law|due process]] is not required. The [[Legal burden of proof|burden of proof]] for civil contempt, however, is a [[preponderance of the evidence]], and theoretically punitive sanctions (punishment) can only be imposed after due process but the due process is unpublished.

In civil contempt cases there is no [[Proportionality (law)|principle of proportionality]]. In ''[[Chadwick v. Janecka]]'' (3d Cir. 2002), a U.S. court of appeals held that [[H. Beatty Chadwick]] could be held indefinitely under federal law, for his failure to produce US$ 2.5 mill. as state court ordered in a civil trial. Chadwick had been imprisoned for nine years at that time and continued to be held in prison until 2009, when a state court set him free after 14 years, making his imprisonment the longest on a contempt charge to date.

The United States Marshals Service is the agency component that first holds all federal prisoners. It uses the Prisoner Population Management System /Prisoner Tracking System. The only types of records that are disclosed as being in the system are those of "federal prisoners who are in custody pending criminal proceedings." The records of "alleged civil contempors" are not listed in the Federal Register as being in the system leading to a potential claim for damages under The Privacy Act, 5 USC section 552a (e)(4)(I).<ref>Federal Register on November 8, 1999 in Vol. 64, No. 215
page 60836 a “Revised Notice regarding its Prisoner Tracking System”</ref><ref>http://www.justice.gov/opcl/privstat.htm</ref>
====News Media in the US====
In the United States, because of the broad protections granted by the [[First Amendment to the Constitution of the United States|First Amendment]], with extremely limited exceptions, unless the media outlet is a party to the case, a media outlet cannot be found in contempt of court for reporting about a case because a court cannot order the media in general not to report on a case or forbid it from reporting facts discovered publicly.<ref>''[[Nebraska Press Assn. v. Stuart]]'', [[case citation|427 U.S. 539]] (1976)</ref> Newspapers cannot be closed because of their content.<ref>''[[Near v. Minnesota]]'', 283 U.S. 697 (1931)</ref>

==See also==
{{Portal|Law}}
*[[Contempt of Congress]]
*[[Contempt of Parliament]]
*[[Contumacy]]
*[[Judicial discretion]]
*[[Perjury]]
*[[Perverting the course of justice]]
*[[Obstruction of justice]]
*[[Offence of scandalizing the court in Singapore]]

==Notes and references==
{{Reflist}}

==Literature==
*Scarce, Rik. "Contempt of Court: A Scholar's Battle for Free Speech from behind Bars" (2005) (ISBN 0759106436).

==External links==
{{wikiquote}}
{{wiktionary|contempt of court}}

{{DEFAULTSORT:Contempt Of Court}}
[[Category:Abuse of the legal system]]
[[Category:Common law]]
[[Category:Civil law (common law)]]
[[Category:Legal procedure]]
[[Category:Common law offences in England and Wales]]

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Benutzer:Rogi.Official/Artikel/Werkstatt/Missachtung des Gerichts