Judiciary of France
In France, judges are considered civil servants exercising one of the sovereign powers of the state, and, accordingly, only French citizens are eligible for judgeship. France's independent judiciary enjoys special statutory protection from the executive branch. Procedures for the appointment, promotion, and removal of judges vary depending on whether it is for the judicial, administrative, or audit court stream. Judicial appointments must be approved by a special panel, the High Council of the Judiciary, made up of other judges from the receiving court. Once appointed, judges serve for life and cannot be removed without specific disciplinary proceedings conducted before the Council with due process.
The Ministry of Justice handles the administration of courts and the judiciary, including paying salaries or constructing new courthouses. The Ministry also funds and administers the prison system. Lastly, it receives and processes applications for presidential pardons and proposes legislation dealing with matters of civil or criminal justice. The Minister of Justice is also the head of public prosecution, though this is controversial since it is seen to represent a conflict of interest in cases such as political corruption against politicians.
At the basic level, the courts can be seen as organized into:[1]
- ordinary courts (ordre judiciaire), which handle criminal and civil litigation
- administrative courts (ordre administratif), which supervise the government and handle complaints
The structure of the French judiciary is divided into three tiers:
- Inferior courts of original and general jurisdiction
- Intermediate appellate courts which hear cases on appeal from lower courts
- Courts of last resort which hear appeals from lower appellate courts on the interpretation of law.
There are exceptions to this scheme, as noted below.
Glossary of Key Terms
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 "appeal": 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 in 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 "division": subdivisions of a large court of general jurisdiction, which may be each specialized on a specific area of law.
- Code "law code": collection of enacted statutory law or regulations relating to a single topic. Modern French law codes date back to the Napoleonic Code, though all codes have since been thoroughly revised or even rewritten. Some codes were written as such; others were codified by taking existing statutes and statutory instruments (regulations and orders) and re-organizing them into a single law code.
- commissaire du gouvernement "Commissioner-in-Council": unaffiliated judicial officer who advise the government in cases heard by administrative courts or regional audit courts. Despite their title, they are not commissioned by the executive but are drawn from a court's active judges. They do not represent the government. Because of the confusing terminology, they were renamed rapporteur public (public report drafter).
- 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 implication 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 suspect should be able to speak for himself or herself.
- contravention "misdemeanor, summary offence": lowest kind of crimes punishable by fines or, in the past, at most short jail sentences. They consist mostly of minor parking and traffic violations.
- crime "major felony, major indictable offence": severest crime punishable by a prison sentence greater of 10 or more years; the vast majority of crimes committed are, in decreasing frequency, rape and homicide.
- délit "minor felony, minor indictable offence": intermediate crimes punishable by prison sentences of fewer than 10 years; 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 "security of tenure": judges cannot be removed from office, except through specific disciplinary proceedings (conducted by the National Judicial Council, an independent tribunal), for infringements on their duties. They may be moved or promoted only with their consent. 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 precedent or 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 "judicial officer": general term encompassing judges (magistrats du siège) and prosecutors (parquet); the magistrature, or "judiciary", is a collective term for all judicial officers. Magistrats are government employees, but statutorily kept separate and independent from the other branches of government. Magistrats are expected to maintain a certain degree of distance (as is the case with all government employees); that is, they must refrain from actions and statements that could hinder their impartiality or make it appear that their impartiality is compromised, e.g., refrain from making public political statements. The Ecole Nationale de la Magistrature, or "National Judicial Academy" in Bordeaux is responsible for educating judges and therefore only admits French nationals.
- ordre administratif "administrative courts, administrative stream": courts of this order judge most cases against the government.
- ordre judiciaire "judicial courts, judicial stream": 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 "Office of the Prosecutor": responsible for the prosecution of cases. It is headed by the procureur. It requests enquiries to be made; during court hearings, it brings forward 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 "presiding justice": chief judge of a division of a court; premier président or President of the Court refers to the Chief Justice.
- procureur "public prosecutor": 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 or an avocat 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 defendants who are minors (or rather, defendants who were minors 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 "Bench": seat of justice and, by extension, the judges sitting on the panel trying the case. The magistrats du siège, or professional judicial career judges, are said to be inamovible, that is, they cannot be transferred without their consent.
- tribunal: generally refers to a court of record of first instance having original jurisdiction and whose judgments are appealable.
Law
Procedural
While in Germanic Europe the supreme courts can and do tend to write more verbose opinions supported by legal reasoning, the typical Francophone court of cassation decision is short, concise and devoid of explanation or justification.[2] There is no stare decisis, or principle of precedent, binding lower courts to respect superior courts' rulings (case law) on questions of law; but a line of similar case decisions, while not precedent per se, forms the jurisprudence constante.[2]
Criminal
Public offenses are categorized as a:[3]
- crimes, serious felonies, which are heard by the Assize Court (cour d'assises)
- délits, less serious felonies and misdemeanors, which are heard by the Criminal Court (tribunal correctionnel, also called the Correctional Court)
- contraventions, minor offenses and violations, which are heard by the Police Court (tribunal de police, also called the Police Tribunal)
For petty misdemeanors like most traffic violations, suspected offenders may either plea nolo contendere and pay a set fine amount (amende forfaitaire) or contest the charge in court. The court may then find the defendant innocent or guilty, but if found guilty, they are liable to be sentenced a higher fine.
Organization
At the basic level, the courts can be seen as organized into:[1]
- ordinary courts (ordre judiciaire), which handle criminal and civil litigation
- administrative courts (ordre administratif), which supervise the government and handle complaints
Ordinary
Minor jurisdiction
At the bottom of the court hierarchy are the courts of minor jurisdiction.[4] The Police Court (tribunal de police, also called the Police Tribunal) hears contraventions, minor criminal offenses such as traffic violations, minor assaults, and breaches of the peace.[4] The Civil Court (tribunal d'instance) hears minor civil cases.[4]
Major jurisdiction
The next tier are the courts of major jurisdiction.[5] When the court hears délits, less serious felonies and misdemeanors, it is called a Criminal Court (tribunal correctionnel, also called a Correctional Court).[6] When the court sits to hear civil matters, it is called a Civil Court (tribunal de grande instance, also called a Grand Instance Court).[5] It has general jurisdiction for civil matters over 10 000 €. Litigants are statutorily required to be represented by a lawyer, or avocat. The court also sits as a Juvenile Court (tribunal pour enfants).[4]
The courts are normally composed of 3 judges, but some offenses such as traffic offenses, soft drugs, and misuse of credit cards and checking accounts may be heard by 1 judge.[4]
Specialized jurisdiction
The Labor Court (conseil de prud'hommes) hears disputes and suits between employers and employees (apart from cases devoted to administrative courts); the court is said to be paritaire because it is composed of equal numbers of representatives from employer unions, e.g., MEDEF and CGPME, and employee unions. The Land Estate Court (tribunal paritaire des baux ruraux) hears cases dealing with long-term leases for farm land estates. The Social Security Court (tribunal des affaires de sécurité sociale) hears suits over welfare and state benefits. The Business Court (tribunal de commerce) hears matters involving trade and business disputes and the panel is elected from the local business community.
Court of Assize
The Court of Assize (cour d'assises, also called a Court of Sessions) sits in each of the departments of France with original and appellate jurisdiction over crimes, or serious felonies.[5] As a court of first instance, it is normally composed of 3 judges and 9 jurors, but in some cases involving terrorism and the illegal drug trade the court may sit as 3 judges alone.[5] When it sits as a court of appeal, it is composed of 3 judges.[5]
Court of Appeal
The Court of Appeal (cour d'appel) handles appeals from most lower courts.[5] It is composed of 3 judges.[5] The Court is divided into a number of divisions or courts: social security, business, general civil, and criminal. This is the only court that requires the intervention of a solicitor or case attorney (avoué) to prepare and manage your case and to act as an intermediary between the barrister and the appellant or appellee. Appeals may take anywhere from 18 to 24 months, if not longer.
Court of Cassation
The Court of Cassation (cour de cassation) is the highest level of appeal in France.[7] These courts sit in five chambers with fifteen judges in each; however, only seven judges need to be present to hear a case.[8][5] There are more than 120 judges serving in the court.[5]
The Court of Cassation hears appeals from the assize courts and the courts of appeal.[8] Criminal cases are heard in only one of the court's five chambers and the court has no legal authority to deny a criminal appeal.[8] The Court is referred to as the guardian of the law. It only reviews questions of law, not questions of fact. The Court’s essential purpose is to ensure that the interpretation of the law is uniform throughout the country.
The Court is located in the Hall of Justice building in Paris. It was established in 1790 under the name Tribunal de cassation during the French Revolution, and its original purpose was to act as a court of error with revisionary jurisdiction over lower provincial prerogative courts (Parlements). However, much about the Court continues the earlier Paris Parliament Court.
Administrative
Jurisdictional court
The Jurisdictional Court, or 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.
Constitutional Council
The Constitutional Council (Conseil Constitutionnel) practices judicial review of legislative acts and laws.[9] The ordinary and administrative courts have refused to perform this type of judicial review, outside of 2 exceptions in 1851.[9] It supervises controversies of elections and performs judicial review by determining the constitutionality of parliamentary legislation.[7]
Court of Audit
The financial courts - national Court of Audit (cour des comptes) and regional audit courts (chambres régionales des comptes) - have jurisdiction to try cases involving possible misuse of public funds, and, in some rare instances, of private funds.
They are empowered and mandated by Article 15 of the 1789 Declaration of the Rights of Man and of the Citizen which set forth that French citizens have the right to hold public officers, agents, and officials accountable for the finances they oversee and operate. The courts' roles and responsibilities are laid out in the Financial Court Code.
Jurisdiction
The Court of Audit and regional audit courts mostly adjudicate cases regarding public funds, carrying out:
- Mandatory audits of public accountants to track national and local government funds.
- Discretionary audits of public corporations, publicly subsidized private organizations, and social security and welfare agencies.
- Since 1999, audits of private charities who regularly receive public donations.
Neither national or regional audit courts hear cases related to private organizations, with the few exceptions noted here. Instead, financial cases concerning private funds and money fall within the jurisdiction of the civil justice system.
Prior to 1982, France only had a single national Court of Audit. With a push toward decentralization in the creation of province-like administrative regions and the increased role of local elected officials and considering the Court's enormous docket, France saw fit to establish regional audit courts. The national court now deals primarily with the government, public establishments, and (semi-)public companies on a national level, while the regional courts handle the local level. The court may occasionally delegate national-level audits to regional courts, as is often the case with post-secondary educational facilities.
An important concept in the business of the financial courts is the difference between, 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 Court 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).
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.
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.
Bibliography
- Code de procédure civile
- Code de procédure pénale
- Documentation française[10]
- Code de justice administrative
- Code des juridictions financières
- La Cour des Comptes (booklet published by the Cour)
- Serge Guinchard, André Varinard and Thierry Debard, Institutions juridictionnelles (= Judicials institutions), Paris, Dalloz editor, 12th edition, 2013.
- Serge Guinchard and Jacques Buisson, Criminal procedural law, Paris, Lexisnexis editor, 9th edition, 2013.
- Serge Guinchard, Cécile Chainais and Frédérique Ferrand, Civil procedure, Paris, Dalloz editor, 31st edition, 2012 ISBN 978-2247109418.
- Serge Guinchard and alii, Procedural law, Paris, Dalloz editor, 7th edition, January 2013.
See also
- Law enforcement in France
- Tribunal d'instance
- Court of Cassation (France)
- Cour d'assises
- Constitutional Council of France
Notes
- ↑ 1.0 1.1 Terrill 2009, pp. 153-154.
- ↑ 2.0 2.1 Reynolds 1998, p. 58.
- ↑ Reichel 2002, p. 122.
- ↑ 4.0 4.1 4.2 4.3 4.4 Terrill 2009, p. 158.
- ↑ 5.0 5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8 Terrill 2009, p. 157.
- ↑ Terrill 2009, pp. 157-158.
- ↑ 7.0 7.1 Terrill 2009, p. 156.
- ↑ 8.0 8.1 8.2 Dammer, H.R. & Albanese, J.S. (2014). Comparative criminal justice systems. (5th ed). Wadesworth Cengage learning: Belmont, CA. ISBN 978-1-285-06786-5
- ↑ 9.0 9.1 Terrill 2009, p. 155.
- ↑ La présomption d'innocence
References
- Terrill, Richard J. (2009). World Criminal Justice Systems: A Survey (7 ed.). Elsevier. ISBN 978-1-59345-612-2.
- Reichel, Philip L. (2002). Comparative Criminal Justice Systems: A Topical Approach (3 ed.). Prentice Hall. ISBN 0-13-091287-5.
- Reynolds, Thomas H. (1998). "Introduction to Foreign and Comparative Law". In Rehberg, Jeanne; Popa, Radu D. Accidental Tourist on the New Frontier: An Introductory Guide to Global Legal Research. pp. 47–86. ISBN 978-0-837-71075-4.
External links
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