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The Judicial Authority:
The French concept of the separation of powers makes the ordinary court system a real authority, distinct from both the legislative power and the executive power. The courts, which decide in the case of disputes by applying the law, are in this way one of the essential guarantees of the existence of a state governed by the rule of law.
The judicial authority was set up by title VIII of the 1958 Constitution. This title establishes the President of the Republic as the guarantor of its independence and makes provision for the irremovability of judges of the ordinary courts (article 64). In addition, the Constitution sets up the judicial authority as the guardian of individual liberty (article 66).
The ordinary court system has almost 7,700 judges, of whom 5,800 are ordinary court judges and 1,900 are public prosecutors, helped by almost 9,900 clerks of the court. Although it is independent, the judiciary still comes under a form of scrutiny. The French judicial organization is structured in a hierarchy and very often guarantees a double degree of jurisdiction. The Court of Cassation is the highest court in the French system of ordinary courts and it ensures the unity of this system and its jurisprudence.
I. – AN INDEPENDENT JUDICIARY UNDER SCRUTINY
Under the Ancien Regime, judicial office was a venal and transmittable position. After a passing phase during the revolutionary period when judges were elected, the Constitution of year VIII (1799) marked the move to a judiciary made up of publicly appointed officials.
Despite the principle of irremovability, the main political crises of the 19th century saw waves of purges.
Judges are, like all French civil servants, recruited by competitive examination. They are trained in a specialized school called the National School for the Judiciary.
The irremovability of ordinary court judges is now enshrined in the Constitution. The Constitutional Council is very strict in its application of the principle of irremovability during its monitoring of the institutional acts concerning the status of judges – not only does this principle prohibit a judge being removed or suspended but also prohibits him being moved from one court to another without his agreement. Thus the judicial authority has a constitutional status which has been well established and which guarantees its independence.
However, the public prosecutors, who constitute the public ministry and who are thus responsible for defending the interests of society and implementing the decisions of justice, come under the authority of the Minister of Justice who may give them instructions in order to implement the Government’s criminal law policy.
The separation between the ordinary court judges (the bench) and the public prosecutors (State Counsel’s Office) is nonetheless not impenetrable, as judges may move from one to the other, even several times during their careers.
So that such independence would not lead to irresponsibility, a monitoring body for the judiciary was set up by the Constitution of 1946. This body is the High Council of the Judiciary. The Constitutional Act of July 23, 2008 changed its make-up and powers such as they were set out in article 65 of the 1958 Constitution. An Institutional Bill will nonetheless be necessary in order to implement these new constitutional provisions. So as to guarantee the independence of the institution and to open it up, the constitutional revision first of all brought an end to the fact that the Council was presided over by the President of the Republic and that its Vice-President was the Minister of Justice. The presidency of each of these sections is now held by the Chief President of the Court of Cassation and the Chief Public Prosecutor to this court.
The make-up of the two sections entrusted with both making proposals or giving their opinion regarding the appointment of judges as well as carrying out a disciplinary role for them, has been changed. The first, which has five ordinary court judges and one public prosecutor, is empowered to deal with ordinary court judges; the second, which has five public prosecutors and one ordinary court judge, is empowered to deal with public prosecutors. The other members of the High Council of the Judiciary belong to each of the two groups; they are, one state councillor, one practising lawyer and six prominent citizens, not belonging to the Parliament, the ordinary court system or the administrative court system, appointed respectively by the President of the Republic, the President of the National Assembly and the President of the Senate. Thus, within the Council, a majority representation for prominent citizens from outside the judiciary is ensured, except for disciplinary matters in which case the Council is made up of an equal number of judges and of members not belonging to the judiciary. The plenary structure which is in particular in charge of replying to the requests for advice made by the President of the Republic in accordance with article 64 of the Constitution and of making decisions on questions concerning the ethics of judges, is made up of a balanced representation of the various levels of the judicial hierarchy.
The new wording of article 65 of the Constitution also provides the possibility for a request to be made to the High Council of the Judiciary by a person awaiting trial for disciplinary action to be taken concerning a judge. An Institutional Act will nonetheless be necessary in order to implement these new constitutional provisions.
II. – A HIERARCHICAL JUDICIAL ORGANIZATION
The present organization of the French judiciary stems, in its general make-up, from the revolutionary period. Its principles are a hierarchical structure (with several levels of courts), the elimination of most courts of limited jurisdiction and the separation of the ordinary court system from the administrative court system.
The two levels of civil courts are those of first instance and of appeal. In the case of first instance, the competent court is, according to the importance of the action, the tribunal d’instance (magistrate’s court) or the tribunal de grande instance (regional court). Some cases may however be heard by specialized courts partly made up of non-professional judges. These courts include commercial and bankruptcy courts for commercial law matters, industrial arbitration courts for labour law affairs, agricultural land tribunals for rural law questions, social security appeal tribunals to deal with social security law issues etc. Until 1958 stipendiary magistrates were responsible for hearing petty disputes. The setting-up in 2002 of local courts was a reflection of the desire to re-establish a community-based level of courts to deal with certain petty disputes both in civil and criminal matters.
The judgements of courts of first instance are given, according to the seriousness of the dispute, either with or without recourse to appeal. In the former case they can be appealed before a court of appeal.
In criminal matters there are three types of court: police courts which deal with petty offences punishable by fines, criminal magistrate’s court which handles indictable offences and the court of Assizes which judges serious offences. The jurisdiction of one of these courts is thus determined by the gravity of the offence to be judged and by the legal consequences it entails (for petty offences the penalty is a simple fine, for indictable offences it is a fine plus up to ten years imprisonment and for serious offences it is a fine and a prison sentence which can be as much as life, possibly combined with a period of security during which the inmate will not be released under any circumstances even if he has reductions for good behaviour). Appeals against judgements handed down by police courts and criminal magistrate’s courts are heard before a court of appeal, as for civil matters. Courts of Assizes have the specificity of being made up of a jury. This is the last trace of the existence of popular justice. The judgements of courts of Assizes can be appealed before another court of Assizes in accordance with the law of June 15, 2000. In addition to three judges, the court of Assizes of first instance is made up of nine jurors (citizens of more than 23 years old, drawn by lots from the electoral register) and the appeal court of Assizes is made up of twelve jurors.
French criminal law procedure is based on the inquisitorial system. This explains the position of the examining magistrate whose responsibility it is to examine the most serious offences and most complex matters taking into account all incriminating and exonerating evidence. The public prosecutors may, under the authority of the Minister of Justice, carry out a true criminal law policy since they have the power of discretionary prosecution and this enables them to close a matter or, on the contrary, prosecute.
So as to ensure not only the equality of the citizens before the law but also the equality of access to justice, legal aid can be provided to those who do not possess sufficient resources, in order to obtain the free help of a lawyer during proceedings.
Decisions on merits made by the courts have the status of res judicata.
It should also be noted that the ordinary court authority has no jurisdiction concerning administrative disputes which are dealt with by courts of the administrative authority. This separation, which is justified by the principle that the only legitimate judge of the administration is the administration itself, can sometimes lead to conflict of jurisdiction. This can be either because each of the authorities sends the ruling of a dispute to the other (negative conflict of jurisdiction) or because the ordinary court judge considers his court to have jurisdiction whilst the administration believes it is competent (positive conflict of jurisdiction). In order to avoid such conflicts of jurisdiction, a Jurisdictional Disputes Tribunal, presided over by the Minister of Justice and made up of four representatives of the ordinary court authority and four representatives of the administrative court authority, is responsible for passing a ruling. In addition, the highest courts of the two legal authorities may refer matters of high complexity which call into question the separation of the administrative and ordinary court authorities for resolution to the Jurisdictional Disputes Tribunal.
III. – THE COURT OF CASSATION, THE HIGHEST COURT IN THE FRENCH ORDINARY COURT SYSTEM
Decisions handed down in last instance by courts of the first degree and decisions of the appeal courts can be appealed before the Court of Cassation. Such a final appeal must be for a very serious reason relating to the application of the rule of law by the court concerned. In addition, with the exception of criminal cases and litigation in professional elections, the aid of an “avocat aux Conseils” or “accredited lawyer” (member of the legal profession with a practice who alone can represent parties before the Court of Cassation, the Conseil d’État, and the Jurisdictional Disputes Tribunal), is obligatory.
The Court of Cassation does not judge the substance of the cases but solely the decisions of the judges in law. This is why, more often than not, if the Court of Cassation quashes the contested decision, it will send the matter back to a lower court for a decision on the merits. Rescinding without appeal takes place when the decision which is quashed does not involve a new decision on the merits or when the evidence heard and assessed by the original judge enables the application of the appropriate rule of law.
The Court of Cassation is made up of six divisions each of which is specialized in particular types of dispute. There are three civil divisions, one commercial, one social and one criminal.
In the Court of Cassation, the State Counsel’s Office is represented by a Chief Public Prosecutor and counsels for the prosecution. In each case, both civil and criminal, the State Counsel’s Office provides an opinion so as to inform the judges of the Bench.
Cases are heard by a body of judges (in plenary, branch or smaller unit) from one of the six divisions. When a case raises an important question of principle, when it leads to differences of opinion between the divisions of the Court or when a vote is equally divided between the judges, two other bodies of judges are possible: a Mixed Division (made up of members of, at least, three different divisions) or the Plenary Assembly (the most formal body which includes the presidents as well as the members of all six divisions). When a decision which has already been quashed in the Court of Cassation is handed down by a judge in a lower court and is brought again before the Court of Cassation, the latter must sit in Plenary Assembly. In addition, every court of appeal is obliged to apply decisions handed down by the Plenary Assembly.
Since 1991, the Court of Cassation may also be led to provide its opinion, upon the request of the lower courts, in both civil and criminal matters, on new questions of law of great complexity raised in numerous disputes. The opinion given by the Court of Cassation is not binding on the lower courts but is communicated to the parties involved.
During the revolutionary period judges had to limit themselves to the application of the law or in the case of there being no applicable law, to addressing lawmakers through legislative appeal. The abolition of this procedure in 1804 has provided judges with the power to interpret the law. Through its judgements and through its ‘opinions’, the Court of Cassation ensures unity of interpretation and the symbolic unity of the French ordinary court system. By sometimes basing its judgements on pre-established written principles, the Court of Cassation is a vector for the role played by jurisprudence in the “creation” of laws.