Justice in France

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Contents 1 Glossary and basic concepts 2 Administrative organization 3 Civil courts 3.1 First instance courts 3.1.1 Juge de proximité 3.1.2 Tribunal d'instance 3.1.3 Tribunal de grande instance 3.1.4 Tribunal de commerce 3.1.5 Specialized courts 3.2 Appellate courts 3.3 Cassation 3.4 Références 4 Criminal courts 4.1 Criminal procedure 4.2 First instance courts 4.2.1 Juge de Proximité 4.2.2 Tribunal de police 4.2.3 Tribunal correctionnel 4.2.4 Cour d'assises 4.2.5 Tribunal pour enfants 4.2.6 Cour d'assises des mineurs 4.3 Appellate courts 4.4 Cassation 4.5 Penalties 4.6 References 5 Administrative courts 5.1 Tribunal administratif 5.2 Cour administrative d'appel 5.3 Conseil d'État 5.4 Tribunal des conflits 5.5 References 6 Financial jurisdictions 6.1 Scope of jurisdiction 6.2 Justice activities 6.3 Other activities 6.4 References 7 Attorneys 8 See also

[edit] Glossary and basic concepts

Note: There exist significant problems with applying non-French terminology and concepts related to law and justice to the French justice system. For this reason, we shall define some of the words used in the rest of the article.

• Appel For almost all courts in France (except very minor cases), it is possible to appeal the ruling, both for disagreement on how the court appreciated the facts or on disagreements with how the court interpreted the law. Another recourse is cassation.
• Cassation The supreme courts (Cour de Cassation and Conseil d'État) act as cassation jurisdictions, which means that they have supreme jurisdiction on quashing the judgments of inferior courts if those courts misapplied law. Generally, cassation is based not on outright violations of law, but on diverging interpretations of law between the courts. Cassation is not based on the facts of the case. Cassation is always open as a final recourse.
• Chambre or chamber. Single courts of large jurisdiction are divided into several chambers, typically each specialized on a specific field.
• Code These are collections of applicable legislation or regulation related to one topic. The origin of the modern French codes dates back to the Napoleonic Code, though all codes have been thoroughly revised or even rewritten since. Some of the codes were written as codes from the start; some resulted from the codification process, taking existing legislation and regulation and reorganizing it into a single book.
• Commissaire du gouvernement These are independent magistrats who give opinions as to the cases brought before an administrative court or a regional chamber of accounts. Despite the name, they are not commissioned by the government, but are drawn from the magistrats of the court in which they seat; they do not represent the government.
• Contradictoire. There is a requirement that all justice should render a decision after a débat contradictoire, which means that all suspects, or people risking a penalty, should be able to contradict the allegations that they face. This implies, for instance, that they should be able to have an attorney to defend them, and that this attorney should have access to the prosecution files. Another implications is that trials in absentia (that is, without the presence of the suspect) had limited legal consequences, since it is a requirement of the débat contradictoire that the suspects should be able to speak for himself or herself.
• Contravention These are the lowest kind of crimes, punished by fines or at most short jail sentences. They consist mostly of minor parking, traffic, etc. offenses.
• Crime (Note: the meaning of "crime" in French is different from that in English, being closer to a felony; we shall denote the French usage with italics.) These are the highest kind of crimes, possibly punished by prison sentences of 10 years and more (in which case they are judged by the Cour d'assises. The vast majority of crimes committed are, in decreasing frequency, rape and homicide.
• Délit These are the intermediate kind of crimes. They may be punished by prison sentences, but less than 10 years. This category includes theft. Let us also note the délit de fuite — fleeing the scene of an accident with the knowledge that it had resulted in severe bodily harm to other parties or fleeing from the police.
• Inamovibilité Judges cannot be removed from office, except through specific disciplinary procedures (led by the Conseil supérieur de la magistrature, an independent instance), for infringements on their duties. They may be moved or promoted only with their own will. These protections are meant to ensure that they are independent from the executive power.
• Jurisprudence While French judges, in the civil law tradition, do not create law, and thus there is no case law properly said, they may interpret existing statute law, as well as generic principles derived from the French Constitution and the Declaration of the Rights of Man and of the Citizen. In particular, the decisions of the higher courts are of great importance and may establish long-lasting doctrine known as jurisprudence constante. While there is no stare decisis rule forcing lower courts to decide according to precedent, they tend to do so in practice with respect to jurisprudence constante.
• Magistrat This is a generic term encompassing judges (magistrats du siège) and prosecutors (parquet). The magistrature is the collective of all magistrats. Magistrats are employed as civil servants, but with very specific statutes aiming at guaranteeing the independence of justice from the other political powers. The magistrats are supposed to keep a certain reserve — that is, they should refrain from actions and declarations that could jeopardize their impartiality, or give appearances that their impartiality is jeopardized (from instance, they should refrain from making public political statements).
• Ordre administratif Courts of this order judge most cases against the government.
• Ordre judiciaire Courts of this order judge civil and criminal cases.
• Paritaire Regarding certain courts, commissions and other bodies making decisions with respect to two opposed groups of persons, this means that the body contains representatives from the two groups in equal proportion (parity).
• Parquet The parquet is responsible for the prosecution of cases. It is headed by the procureur. It requests enquiries to be made; during court hearings, it brings out accusations against the suspect. In addition, it has a role of general monitoring of courts. In the case of an appellate or a cassation court, the parquet is called parquet général. The name parquet means "wooden floor" in French; possible etymologies for the judicial use include the fact that the prosecutors speak from the floor of the courtroom (as opposed to the judges, who are in a higher elevation), and the possible meaning of "small park", alluding to a small enclosure in which attorneys stayed inside the courtroom.
• Président The chief judge of a chamber of a court is called the president. The premier président ("first president") is the chief justice of a court as a whole.
• Procureur This occupation in the magistrature can be translated into prosecutor, but the functions of the procureur also include the general monitoring of the activity of the court in both criminal and civil cases (say, to see if judges apply the law in a consistent manner). The procureur in a court of appeal or higher court is a procureur général.
• Publicité All civil, administrative and criminal justice, as well as all financial cases where individuals may be fined, end up with audiences open to the public. There are narrow exceptions to this requirement: cases involving national security secrets, as well as cases of rape and other sexual attacks, may be closed or partially closed to the public, respectively in order to protect the secret or in order not to add to the pain of the victim. Cases with minor defendants (or rather, defendants that were minor at the time of the crime) are not open to the public and the names of the defendants are not made public, so that they are not stigmatized for life.
• Siège The siège is the seat of justice — thus, by extension, it designates the judges (as opposed to the parquet). The magistrats du siège, the judges, are inamovible (inamovable).
• Tribunal These are first instance courts, meaning that their rulings can be appealed (appel or cassation).

As a general rule, the French court system is organized with three degrees of jurisdiction:

• the first degree hears the case when it is first brought up;
• the second degree (appel) hears appeals against the decisions of the first degree;
• the third degree (cassation) hears appeals against the interpretation of the law by the second degree courts.

There are exceptions to this scheme, as noted below.

[edit] Administrative organization

Judges are civil servants, but enjoy special statutory protection from the executive. There are special procedures for naming, promoting, and removing them, depending on the order of courts (judiciaire, administrative, or financial) in which they sit. Specifically, the appointments of most judges have to be approved by a special instance, the High Council of the Judiciary, in which representatives of the judges sit; and they may not be removed from office without specific disciplinary proceedings conducted before the Council, with due process.

The Ministry of Justice handles the administrative side of the workings of the judicial system, such as the payments of salaries or the construction of new court buildings. It also funds and administers the prison system. Finally, it handles applications for presidential pardons, and proposes legislation pertaining to civil or criminal justice.

The Minister of Justice is also the hierarchical head of the prosecution service, which is somewhat controversial in case of prosecution of cases involving politicians (such as corruption cases).

[edit] Civil courts

[edit] First instance courts

[edit] Juge de proximité

[edit] Tribunal d'instance

[edit] Tribunal de grande instance

[edit] Tribunal de commerce

[edit] Specialized courts

• Conseil de prud'hommes These judge cases opposing employees and employers (apart from cases devoted to administrative courts, see below). They are paritaires, with equal numbers of representatives from employers' unions (MEDEF, CGPME...) and employees' unions.
• Tribunal paritaire des baux ruraux These judge cases arising from long-term leases of agricultural lands.
• Tribunal de Sécurité sociale

[edit] Appellate courts

[edit] Cassation

Main article: Court of Cassation (France)

[edit] Références

• Code de procédure civile

[edit] Criminal courts

[edit] Criminal procedure

[edit] First instance courts

[edit] Juge de Proximité

[edit] Tribunal de police

They judge contraventions committed by over-age people.

In the case of minor contraventions, such as many traffic offenses, suspected offenders are offered the possibility of either admitting to the offense and paying a set fine (amende forfaitaire), either going to court. The court may then find the suspect innocent or guilty; but if guilty, they risk higher fines than the forfaitaire.

[edit] Tribunal correctionnel

They judge délits committed by over-age people. Tampa bay ligthing RULE

[edit] Cour d'assises

Main article: Cour d'assises

The Cour d'assises judge felonies punished by more than 10 years of prison. They are the only courts to be composed of juries.

[edit] Tribunal pour enfants

They judge contraventions and délits committed by minors. Defendants are tried by one judge,

[edit] Cour d'assises des mineurs

They judge crimes committed by minors.

[edit] Appellate courts

[edit] Cassation

Main article: Court of Cassation (France)

[edit] Penalties

[edit] References

• French Republic, Code de procédure pénale
• La Documentation française, La présomption d'innocence

[edit] Administrative courts

[edit] Tribunal administratif

[edit] Cour administrative d'appel

[edit] Conseil d'État

Main article: Conseil d'État

[edit] Tribunal des conflits

The Tribunal des conflits handles conflicts between the civil system of justice and the administrative system of justice. There are two kinds of conflicts:

• Positive conflict: both systems consider themselves competent for the same case.
• Negative conflict: both systems consider that the other system is competent for the case, resulting in a denial of justice.

In both cases, the tribunal des conflits will render final judgment on which system is competent.

[edit] References

• Code de justice administrative

[edit] Financial jurisdictions

The financial jurisdictions (the Cour des Comptes',' "Court of Accounts", with national competency, or the chambres régionales des comptes, "Regional chambers of Accounts", with regional competency) have functions related to the possible misuse of public funds (and, in some rare instances, of private funds).

Their existence is justified by Article 15 of the 1789 Declaration of the Rights of Man and of the Citizen, which specifies that citizens have the right to demand from any public agent an account of his or her activities. Their workings are defined by the Code des juridictions financières.

[edit] Scope of jurisdiction

The Cour des Comptes and the Chambres régionales des comptes mostly deal with public funds:

• They compulsorily audit the accountants for the funds owned by the national and local governments.
• They discretionarily audit public corporations, and private organizations receiving public subsidies. They may also audit social security organizations.
• Since 1999, they may also audit private charities making public calls for donations.

Neither the Cour nor the chambres act on cases related to private organizations, with the few exceptions noted here. Financial cases arising from the handling of private funds are handled by the usual civil courts.

Before 1982, only the Cour des Comptes existed and controlled public institutions nationwide. Because of the creation of the régions and the increased role of local elected officials (décentralization), and the enormous workload of the cour, regional chambers were created. The Cour now deals with state administrations, public establishments and (semi-)public companies; the chambres deal with local administrations, public establishments and (semi-)public companies. The cour may also delegate to chambres the auditing of some establishments of the national government; this is, for instance, often the case with public establishments of higher education (universities etc.).

An important concept with respect to the activities of the financial jurisdictions is the separation, in French public accountings, between ordonnateurs (managers who order expenses and perception of payments) and payeurs (the public accountants who pay expenses and recoup debts). The Cour only judges public accountants; but it may also make observations about the decisions taken by the ordonnateurs, and possibly send them before other courts for mismanagement (see below).

[edit] Justice activities

These jurisdictions act as courts in the ordinary sense of the word in some limited circumstances. That is, they judge the accounting of public accountants (comptables publics) and may fine them in case of certain failures:

• They may fine public accountants if they are late in handing over their accounting.
• They may find that the accountant neglected to collect money owed to the state (or other government) or, through negligence, unduly gave away state (or other government) money. The responsibility of the public accountant in those circumstances is personal and unlimited, meaning that he or she has to refund all lost money. This situation is known as débet (from Latin: "he owes"). Because of the possibility of débet, all public accountants must have external warranty as well as insurance. In practice, many débets grossly exceed the financial means of the public accountants concerned, and the Minister of Finance may end up pardoning the debt (remise gracieuse).
• They may find that somebody or some organization did accounting operations on public funds whereas they were not public accountants. In those circumstances, they are found to be de facto public accountants (comptables de fait) and they face the same constraints and penalties as de jure public accountants.

In addition, the Cour des Comptes supports and provides half of the judges of the Cour de discipline financière et budgétaire (Court of financial and budgetary discipline), the other half being provided by the Conseil d'État. This court tries ordonnateurs — that is, the persons who order expenses and the recovery of debts, and may fine them for undue expenses or for sums that they should have decided to recover. However, the court cannot try government ministers, or (in almost all cases), local elected officials; thus, with few exceptions, the only ordonnateurs that face the court are civil servants.

If the Cour des Comptes or the regional chambers discern criminal behavior in the accounts that they audit, they refer the matter to the appropriate criminal court.

[edit] Other activities

Most of the activity of the Cour des Comptes and the regional chambers is not of a judicial kind (juridictionnel); rather, they act as a general auditing system. However, even for these activities, they act with almost complete independence of both the executive and the legislative branches.

The court and chambers may advise, or reprimand, ministries, administrations and public establishments that they audited.

The court and chamber publish a yearly report in which it discusses a selection of misuses of funds and other incidents. In addition, they may also publish specialized reports. The court and chambers are free to inquire on whatever they wish within their field of competency; the court may also be commissioned reports by Parliament.

In all these advisory and publishing activities, the court and chambers do not limit themselves to pure accounting issues, but they also take the efficiency of public services into account. They may, for instance, criticize an expense that was legally ordered and accounted for, but which was inappropriate with respect to criteria of good financial management.

The 2001 Loi d'orientation sur les lois de finances (LOLF, law fixing the framework for budget acts) changed the way budget was passed in France: now, budget is attributed to specific missions, and the efficiency of spending on each mission is to be assessed. In that context, the court's missions will include an increased dose of assessment of efficiency.

[edit] References

• Code des juridictions financières
• La Cour des Comptes (booklet published by the Cour)

[edit] Attorneys

[edit] See also

• Law enforcement in France
• Tribunal d'instance
• Cour de cassation
• Cour d'assises
• Constitutional Council of France (Conseil Constitutionnel)