No CrossRef data available.
Article contents
The Responsibility of Judges1 in France
Published online by Cambridge University Press: 27 October 2017
Extract
In the mountains of Kashmir lived a Sultan, the Sultan of Salamandragore, so concerned that the laws he had prescribed were strictly observed that he found good reasons for his judges to condemn all his subjects to death, and to have them dispatched by his executioner. Deprived of sleep by remorse and haunted by his victims, he blamed his judges, and had them decapitated in their turn.
Thus begins a cruel Oriental tale, freely adapted in a poem by Jacques Prévert, which is, it seems to me, quite a good illustration of the paradox of the judge’s responsibility comparing the extraordinary nature of their power to their relationship to politics. Nevertheless, from this point of view, there is indeed in France a question, that is to say a democratic debate, a conflict of opinion generally perceived to be the result of the growing role of law in the regulation of social relationships and the increasing power of judges in the private domain as well as in the public, economic and social spheres.
- Type
- Research Article
- Information
- Copyright
- Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2003
Footnotes
*
Senior president of the Cour de cassation.
1
Although many points about the liability of judges arise from legal provisions applicable to all magistrats, a term that in France includes public prosecutors as well as judges, this article deals with the position of judges only.
References
2 ’Le Sultan’, Prévert, J, Paroles 1945. This poem appeared for the first time in Poésie 1944, no 21.
3 CC decision no 96–373 DC of 9 April 1996: ‘Considering that in the terms of Art 16 of the Declaration of the Rights of Man and of the Citizen: ‘Any society in which in which these Rights are not guaranteed, and in which the separation of powers is not established, has no Constitution’; the result of this provision is that in principle the right of interested parties to have an effective appeal before a court must not be seriously undermined.’, Rec 1996,43 considérant no 83.
4 Rosanvallon, P, cited in Garapon, A, ‘La question de la juge’, Pouvoirs no 74.
5 Comte-Sponville, A, Dictionnaire philosophique, (Presses Universitaires de France 2001), 624 Google Scholar.
6 Jacob, R, ‘Les fondements symboliques de la responsabilité des juges; l’heritage de la culture judiciaire médiévale’, in Juger les juges, du Moyen âge au Conseil Supérieure de la magistrature Documentation française, collection histoire de la justice no 12, 2000, 7.
7 Law no 93–2 of 4 January 1993, repealing Art 679 onwards of the Criminal Procedure Code.
8 Art 434–9 of the Criminal Code, which came into force on 1 March 1994.
9 Art 437–7–1 of the Criminal Code.
10 Art 432–1 of the Criminal Code.
11 Arts 505–16 of the Criminal Code.
12 Law of 12 February 1933 on the guarantee of personal freedom, Art 7, JO, 9 Feb 1933, Duverger collection des lois, 1933, 44.
13 Law no 72–626 of 5 July 1972, Official Journal of 9 July 1972, 7181, Art 11: ‘The State is liable for injury caused by the defective functioning of the justice system. This liability is only incurred in cases of gross fault (faute lourde) or of denial of justice. For the magistrats du corps judiciaire, liability, due to their personal misconduct, is governed by the magistrature’s statutes, and for juges composant les juridictions d’attribution, their liability is governed by the special laws that apply to them.
14 Law of 8 June 1895 Arts 443 ff of the previous Code of Criminal Procedure (Code d’instruction criminelle), Art 624 ff of the current Code of Criminal Procedure (Code de procédure pénale) on the review of criminal convictions and compensation for the victims of miscarriages of justice Official Journal of 11 June 1895: Duverger, collection des lois 1895, 213.
15 Law no 70–643 of 17 July 1970, aimed at reinforcing the guarantee of citizens’ personal rights, Art 1 (Art 149 onwards of the Criminal Procedure Code) (JO 19 July 1970), 6753.
16 National Assembly, 28 May 1970, JO 29 May 1970, 1148.
17 Chapus, A, Droit administratif général, 15th edn 2001 (Montchrestian), 1337 ffGoogle Scholar.
18 Law no 96–1235 of 30 December 1996.
19 Law no 2000–516 of 15 June 2000 relating to the presumption of innocence and to victims’ rights.
20 On this question/issue, Karsenty, D La réparation des détentions, Juris-Classeur Périodique no 6, 5 February 2003.
21 Law no 2000–154 of 30 December 2000, Art 6, JO 31 Dec 2000.
22 Perrot, R, Institutions judiciaire, 5th edn (Montchrestien 1994), n 84 Google Scholar.
23 1er Chambre civile, 20 February 1973, Bull Civ I n 67, 63; 1er Chambre civile, 20 February 1996, Bull Civ I n 94, 63.
24 1er Chambre civile, 10 May 1995, Bull Civ n 202, 144.
25 Assemblée Plenaire, 23 February 2001, Bull No 5, 10.
26 Vincent, R & Guinchard, S, Institutions judiciaires, 6th edn (Dalloz 2001), §§ 224 ffGoogle Scholar.
27 This results from the rulings in the cases of Van der Kar & Lissaur van West v France of 7 November 2000 petitions no 44952/98 and 44953/98, declared to be admissible and Giummara and others v France of 12 June 2001 petition no 61166/00, declared inadmissible and finally the inadmissibility ruling delivered in relation to the case of Mifsud v France on 11 September 2002 petition no 57220/00; from then on any grounds for complaint about the duration of legal proceedings brought before the CEDH after 20 September 1999, without previously having been submitted to national courts in the context of an appeal is inadmissible, whatever the state of the proceedings in national law.
28 CE, 28 June 2002, Garde des Sceaux v M Magiera petition no 239575.
29 Information bulletin from the Cour de Cassation BICC 518 of 15 July 2000.
30 3Art 11–1 of edict n 58–1270 of 22 December 1958: ‘Ordinary judges are only liable for their professional misconduct. The liability of judges who are guilty of professional misconduct linked to the public justice system can only be activated under the indemnity action brought by the State …’
31 In applying para 2 of Art L.781–1 of the Code of Judicial Organisation: ‘For judges attached to the corps judiciaire, their liability for personal error is governed by the statutes of the magistrature’.
32 The make-up of the CSM is determined by Art 65 of the Constitution (ch VIII, de l’autorité judiciaire).
33 A warning is governed by Art 44 of edict n 58–1270 of 22 December 1958. Warning does not constitute a disciplinary sanction and is a procedure independent of any disciplinary action. It is automatically erased from the person’s file after 3 years if no new warning or sanction has been imposed during this period. However, this erasure does not prevent the hierarchical superior from taking the facts which led to this warning into account in a subsequent assessment.
34 Organic law n 2001–539 of 25 June 2001 relating to the status of judges and the French CSM.
35 Art 50–2 of decree n 58–1270 of 22 December 1958, constituting the organic law relating to the status of judges.
36 Le Conseil supérieur de la magistrature is then called a disciplinary council, Art 49 of edict n 58–1270 of 22 December 1958, ruling on the judiciary.
37 Arts 57 and 65 of decree n 58–1270 of 22 December 1958, ruling on the judiciary.
38 Art 38, para 2 of the law of 29 July 1881 on the freedom of the press.
39 Art 43 of decree n 58–1270 of 22 December 1958 on the judiciary.
40 CSM 27/06/91, 02/07/1993 & 20/07/1994 cited by D Commaret, La responsabilité du juge (Ecole Nationale de la Magistrature 1999), 6.
41 CSM 8 February 1981, GP 21 Feb 1981, 115, cited by Commaret n 33, 6.
42 MA Frison-Roche, ‘La responsabilité des magistrats: l’évolution d’une idée’ Juris-Classeur Périodique, 20 Oct 1999.
43 ’Whereas in virtue of the constitutional principle which guarantees the independence of judges, their judicial rulings may only be challenged, either in terms of their grounds or their pronouncements, solely by means of the legal remedies provided for by the law; unless, for this principle as well as that of the secrecy of deliberation prevent a court ruling being considered as constituting an offence or a misdemeanour …’ Appeal n 81–94.848 Bull Crim n° 327.
44 CSM sitting of 28 March 1996, in the 1996 annual report of the CSM, part III.
45 CSM sitting of 20 July 1994, cited in Commaret n 33.
46 CSM decision of 27 June 1996.