The French Justice system (September 2005)

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This article gives you a brief description of the organization of the French Justice System (criminal and civil) with a critical point of view.

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This presentation deals with :

- the general French justice system, - the recruitment in the judicial system, - the members of the judicial system (judges and prosecutors), - the different judicial courts, - the French civil and criminal procedures.

Introduction : The French justice system

The French judicial system is divided in two branches :

- the administrative branch, - the judicial branch.

These two branches are run on different basis. The recruitement is different : Ecole Nationale de la Magistrature for the judicial branch, Ecole Nationale d’Administration or administrative examination for the administrative branch. The status, the career and the earnings are different, though it is possible to ask for a detachment in the other branch.

The administrative branch is strictly limited to the disputes between the citizens and the public authorities. For example, the protection of children in danger, and even the disputes between a citizen and the social security are under the responsability of the judicial branch and not the administrative branch.

The Conseil d’Etat (supreme administrative court) has twin responsibilities :

- as the highest court of administrative law, - as a consultative body having a role in the legislative process and governmental decrees.

I will only go into detail about the judicial branch with the civil and criminal jurisdictions.

- I. The judicial branch :

Let’s have a look at the status of professional judges and prosecutors. I will then discuss in more depth the different civil and criminal jurisdictions.

A. The status of judges and prosecutors :

A.1. The same initial training for judges and prosecutors, with a united career :

Judges and prosecutors are members of the judicial system and are united in a one unified career system. They are all "magistrats".

The vast majority of judges and prosecutors have an initial training in the National Legal Service Training College - Ecole Nationale de la Magistrature (ENM).

They have to pass an examination with a numerus clausus, after having studied Law for at least 4 years at the university or after having a diploma from the Institute of Political Studies. They have a 31 month training with courses based on actual files and situations, at the school location in Bordeaux and practical training in courts.

Excellent students can expect to begin their career at 24 or 25 years old.

This system has proved to be efficient enough, since its creation in 1958. It is based on personal academic merit and was intended to allow the largest scope for recruitment among the different social classes. This is less true nowadays, as expensive private schools propose a specific training for preparing the ENM examination, which only rich enough students can afford.

A lot of back door recruitment possibilities exist, with or without an initial training period in ENM, according to the previous career and the future rank occupied in the judicial system. This sometimes leads to have less experienced judges sitting in the courts of appeal than in the lower courts, but is a way to open the system to other professional backgrounds.

A.2. The opportunity to have different specialized jobs :

Judges and prosecutors can switch jobs during their career. These two functions are considered as two specializations of the same activity of magistrat.

Although all magistrats are trained as generalist lawiers and are supposed to remain so during their whole career, they often apply to specialized jobs such as investigating judge (examining magistrate - juge d’instruction), children’s judge (juge des enfants), family judge (juge aux affaires familiales), post-sentencing judge (juge d’application des peines), district judge (juge d’instance).

Only the regional court judge (juge de grande instance) is considered not being specialized.

- A.3. An incentive for mobility :

Specialized judges can keep their job in the same court for a maximum 10 year duration. After 10 years, they should apply for another specialized job or a generalist job in the same court (a district court is linked with a regional court), or they should ask to move to another court if they want to keep the same specialization.

Though judges cannot be moved without their own request, there are strong official incentives for moving.

Working a long time at the same place creates a danger of having a personal interest in the disputes, or is considered as a lack of professional dynamism.

For being promoted, mobility conditions are required.

No one can be president of the same regional court, or first president of the same court of appeal, for more than 7 years. A president of a regional court is considered to be a detached appeal judge. A first president of a court of appeal is considered to be a detached cassation judge. If they don’t succeed in having a president job in another court, they are supposed to go back in the court of appeal or in the court of cassation. This system has been considered as respecting the "non compulsory moving rule" by the constitutional council, highly surprising the magistrats.

A.4. A better independence for judges than for prosecutors

Judges have a specific protection for being independent. They can move only if they ask for.

No one is entitled to give them orders on a specific dispute. As a principle, no one can ask them why they took such or such decision. If a problem occurs, they can be asked to report about the case to their hierarchy, or the prosecutor is asked to report about the judge’s decision.

But if judges are independent for the decisions they take, they work according to the means they have (clerk, secretary, administrative staff) and they are submitted to the hierarchical administrative power of the president of the regional court and the first president of the court of appeal. The president of a court distributes the work among all the judges who don’t directly control their workload.

They are evaluated once every year or every two years, according to they hierarchical rank.

Prosecutors work within a stronger hierarchy.

A deputy prosecutor has to obey the instructions given by the prosecutor, who is himself under the control of the prosecutor general of the court of appeal, who is under the control of the Minister of Justice. A legislative proposal plans that the Minister of Justice is in charge of a coherent application of the criminal law for the whole French territory.

Prosecutors have to implement the general policy orientations given by the Minister of Justice and have to explain how they put these orientations into practice.

For important affairs, prosecutors must report to their hierarchy in order to inform the Minister of Justice.

The Minister of Justice cannot ask for "no prosecution" any more but can ask to prosecute with a written order.

The trend for the Ministers is to give no instruction at all, but to ask for many reports that put pressure on prosecutors and make them self-censored.

Prosecutors know very well how a sensitive affair should be treated in order not to threaten their career. It is said that magistrats and especially prosecutors have a culture of submission towards the government in power.

An explanation is that the prosecutors work under the medias’ pressure, as well as the governement. This explains the strong link between the Minister of Justice and the prosecutors. For the moment, judges are more protected from the medias’ pressure.

The career of a prosecutor is less protected than the career of a judge.

A prosecutor can be moved without their agreement.

An approval has to be given by the Superior Judicial Council - Conseil Supérieur de la Magistrature (CSM) for a judge to be promoted. For prosecutors, the CSM only gives an opinion to the Minister of Justice. A tradition had been created by the last Ministers, by always respecting the opinion of the CSM, but this was not an obligation by law. This tradition was not respected for the last nominations of some high magistrats.

The CSM is split in two chambers, one with judges for judges, one with prosecutors for prosecutors.

It appears that the “CSM judges” is much more independent than the “CSM prosecutors”. For example, the CSM proposed to sentence 3 former prosecutors, although the report of the judicial inspectorate did not conclude to any fault. This was about a highly sensitive public matter and it is felt that the “CSM prosecutors” acted in order to satisfy the political interest of the Minister of Justice.

The career of magistrats is based on :

1/ for the lower levels of the hierarchy : time and merit.

2/ for the highest levels of the hierarchy :

. political commitment (member of a minister’s cabinet),

. professional union relations (especially the majority judicial union which has the majority of seats in the Conseil Supérieur de la Magistrature),

. jobs in key places (Ministry of Justice).

B. The civil and criminal jurisdictions :

France has 3 levels of jurisdictions

- the first decision is taken either by a district court (tribunal d’instance) or a regional court (tribunal de grande instance).

- you can appeal on facts and law to the court of appeal.

- you can appeal only on a point of law to the court of cassation.

Each court is divided in civil and criminal chambers and specialized courts either sit within the premises of the district or the regional court, or have their own premises.

Commercial courts are run by elected lay judges. A reform was planned, introducing the presence of a professional judge, but it has been abandonned.

Industrial tribunals are run by 4 elected lay judges. When they don’t succeed to agree on a decision, a district judge sits with them for the decision making.

The social security court and the agricultural land tribunal are chaired by a professional judge assisted by two elected lay judges.

All the appeal decisions are taken only by professional judges.

For criminal justice, according to the seriousness of the offences, different courts deal with the matter :

- the police court - tribunal de police (sitting at the district court - tribunal d’instance or at the regional court - tribunal de grande instance) deals with petty offences - contraventions (driving offences, violence with no injury). One judge sits alone and the society is represented by a police chief officer or a deputy prosecutor. Some listed offences are dealt by a part-time near-by judge sitting instead of the district judge.

- the criminal court - tribunal correctionnel (sitting at the regional court - tribunal de grande instance) deals with medium offences - délits (theft, robbery, sexual abuse without rape, violence with injury). An increasing number of listed offences are sentenced by a single judge if the defence doesn’t oppose and if the judge agrees it’s a simple case. The normal criminal court is composed of 3 judges.

- the assize court - cour d’assises (sitting at the court of appeal or at a criminal court) deals with the most serious offences - crimes (murder, rape). The assize court is chaired by an appeal judge assisted by two professional judges and a jury of 9 people chosen at random on the electoral list. The appeal assize court sits with 3 judges and 12 members of the jury.

- The civil procedure :

The case is in the hands of the parties.

But the judge can :

- withdraw the case from court if the parties are not active enough in preparing the case.

- decide when the case is ready for sentencing.

- order investigations : - on site visit, - witness hearing, - personal hearing of the parties, - technical advice or expertise (the cost is paid by the defeated party).

- raise a point of law.

The judge must respect a contradictorial debate.

The appeal is not possible for an initial claim below 3.800 Euros, but the case can always be brought to the court of cassation. For a claim over 3.800 Euros, the parties can appeal.

The appeal is about facts and law. New elements can be brought to the court of appeal.

The decisions of the court of cassation and the appeal courts are not considered as general binding precedents.

If the court of cassation quashes a decision, the case is sent to another similar court. If the second court resists to the cassation position, the case is ruled by the cassation plenary chamber which takes a binding decision for the third court having to settle the case.

- The key role of the prosecutors in the criminal procedure :

The judges make the decisions. They work independently but are linked to the initiatives of the prosecutor.

A sitting judge can know about a criminal case only if the prosecutor has chosen to prosecute.

The prosecutors represent the interest of the society and are in charge of prosecuting the offences and giving their opinion in some civil matters.

For criminal matters the prosecutor controls the investigations of the police or the gendarmerie.

The prosecutor has the ability to choose not to prosecute on a basis of opportunity. He can propose the offender to pay a fine with the agreement of a judge, to make a reparation order, to accept a mediation with the victim.

But with the law of 9 March 2004, the prosecutor has to prosecute or to implement a reparation order, a mediation or a conditional no further action, if the offence meets the legal criterias and if the offender is identified. A no further action can be only decided if the offence was committed in particular circumstances and a motivated decision has to be sent to the victim. The victim has the possibility to appeal to the general prosecutor for obtaining a prosecuting order.

The general prosecutors are in charge of the application of the criminal law on their territories. They must pay attention to the correct work of the prosecutors’ offices under their responsability. The general prosecutors animate and coordinate the action of the prosecutors. The Republic prosecutor has to send an annual report to the general prosecutor.

An investigating judge must ask for a prosecutor’s referral if he discovers new offences that the prosecutor did not ask to investigate about. If the prosecutor doesn’t give a further referral, the judge cannot investigate about the new offences. If the judge does so, the further investigations will be quashed at any request.

The prosecutor is in charge of the implementation of the judicial criminal decisions.

C. The law of the 15th June 2000 : a major change for the criminal procedure

This law has brought major changes in the criminal justice system.

The intervention of an advocate is possible right at the beginning of the police custody, as well as a visit of a doctor. The advocate knows what kind of offence is the investigation about and can speak with their client at the 1st hour of police custody, the 20th hour and the 36th hour, in case of prolonged custody to 48 hours.

The suspect is informed about their right to remain silent.

The police has to report immediatly to the prosecutor each time a custody begins.

The investigating judge, and therefore the children’s judge for minors, has to make a first interview of the suspect, being considered as an "assisted witness", and can only charge him at the end of this first hearing, if there are important or coherent suspicious elements for charge.

The investigating judge cannot charge a person by sending a registered mail as before. A first hearing is compulsory. If the person does not come to the hearing, the investigating judge must deliver an arrest order to the police forces, for allowing the procedure to continue.

The investigating judge cannot anymore decide to remand someone in custody before trial.

He has to refer the case to another judge, the judge of liberties and detention, with a written motivated referral.

The judge of liberties and detention must deliver a written motivated detention order. If the detention is to be prolonged at the expiry date, another debate must be organized with the judge of liberties and detention.

Conditions for remand in prison have been restricted according to the offence and the previous criminal records.

The effect is a considerably heavier procedure. The proportion of remand custody had fallen to such an extent, that after having been satisfied by the falling figures, the Minister of Justice and politicians have criticized judges for not fulfilling their duties properly.

Now, the global detention figures are higher than ever (60.000 inmates for 47.000 places).

Now the new law is well integrated in the system, but the number of police investigations is less important and the duration of investigations is longer, because the procedure is more complex and time consuming.

There is a right to appeal from a verdict of the assize court. In case of acquital, the prosecutor didn’t have the right to appeal but it has now been changed.

The police interviews with a suspected minor have to be recorded on cd-roms that can be used during the investigation to verify the written transcription of declarations.

An important point concerns the post-sentencing judge, who is now responsible for deciding conditional release for long-sentenced prisoners. It was before a decision taken by the Minister of Justice himself, so the cases of conditional release were exceptional.

- D. Last evolutions of the French judicial system :

D.1. A new kind of judges : the “near-by judge” - juge de proximité.

Created by the law of 9 September 2002, the near-by judge is a part-time non-professional judge having a juridical background.

Their recruitment has started in September 2003. They are close to 500 members and should reach 3.300 members in 2008. They are former magistrats, chief police officers, bailiffs or advocates.

The near-by judge is in charge of sentencing very petty crimes (1st, 2nd, 3rd and 4th class contraventions) and of judging civil disputes below 4.000 Euros (no appeal) and indeterminate requests if they originate in an obligation below 4.000 Euros (possibility to appeal - ex contract annulment). In case of a difficult point of law, the near-by judge can refer the case to the district judge.

A near-by judge can sit in the criminal court with two professional judges for sentencing medium crimes.

D.2. Towards a more adversorial criminal system :

The law of the 9 March 2004 for adapting the justice system to criminal evolutions (called “Perben II”) gives more power to the police and the prosecutors and moves towards a more adversorial criminal system.

In case of offences committed by a criminal organization or a criminal group (murder, drug traffic, theft by an organized group, terrorism…) the police has more power for investigations.

In some cases of “just commited offences” :

- the investigation on police initiative lasts 15 days instead of 8, - the duration of police custody lasts 4 days instead of 2, - night home searching is possible without the presence of the suspect.

For long investigations, the police has a joint leadership with the prosecutors for conducting preliminary investigations on a “common agreement basis.”

The judge of liberties and detention takes the place of the investigating judge by having the possibility to authorize 15 days telephone listening (renewable once), to prolonge police custody for 2 more days.

The “sentence bargaining or sentence discounting” has been introduced in the French criminal system.

The prosecutor proposes a suspect to accept a maximum 1 year prison sentence instead of a regular trial. The penalty has to be agreed by a judge, with an interview of the suspect, assisted by an advocate.


publié le mardi 27 septembre 2005, par afmjf