- Justice in France
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
appealthe 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
attorneyto 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, rapeand 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 lawproperly 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 (which is generally incumbent upon all state employees)— 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). They are recruited via the Ecole Nationale de la Magistrature, a grande école reserved for French nationals in Bordeaux. This is consequently a domain to which European residents are not admitted as students.
* "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
prosecutionof 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.
Judges are civil servants and are accordingly recruited only from French citizens, 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
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).
First instance courts
"Juge de proximité"
"Tribunal de grande instance"
"Tribunal de commerce"
* "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" lawsuits involving state benefits.
* "tribunal de commerce" lawsuits involving businesses or companies.
* "Code de procédure civile"
First instance courts
"Juge de Proximité"
"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".
They judge "délits" committed by over-age people.
Cour d'assises" judge feloniespunished by more than 10 years of prison. They are the only courts to be composed of juries.
"Tribunal pour enfants"
They judge "contraventions" and "délits" committed by minors. Defendants are tried by one judge,
"Cour d'assises des mineurs"
They judge "crimes" committed by minors.
* French Republic, "Code de procédure pénale"
La Documentation française", [http://www.vie-publique.fr/dossier_polpublic/presomption_innocence/index.shtml La présomption d'innocence]
"Cour administrative d'appel"
"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.
* "Code de justice administrative"
The financial jurisdictions (the "
Cour des Comptes", "Court of Accounts", withnational competency, or the "chambres régionales des comptes", "Regional chambers of Accounts", withregional 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".
cope 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).
These jurisdictions act as courts in the ordinary sense of the word insome limited circumstances. That is, they judge the accounting ofpublic accountants ("comptables publics") and may fine them in caseof 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 ofthe judges of the "Cour de discipline financière et budgétaire"(Court of financial and budgetary discipline), the other half beingprovided by the Conseil d'État. This court tries "ordonnateurs"— that is, the persons who order expenses and the recovery ofdebts, and may fine them for undue expenses or for sums that theyshould have decided to recover. However, the court cannot trygovernment ministers, or (in almost all cases), local electedofficials; thus, with few exceptions, the only "ordonnateurs" thatface the court are civil servants.
If the "Cour des Comptes" or the regional chambers discern criminalbehavior in the accounts that they audit, they refer the matter to theappropriate 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
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.
* "Code des juridictions financières"
* "La Cour des Comptes" (booklet published by the "Cour")
Law enforcement in France
* "Cour de cassation"
Constitutional Council of France("Conseil Constitutionnel")
* [http://www.daryo.com/seb/notepad/show_element.core?kind=text&id=596 Quick description of the French court system] fr icon
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