Comparative Law Spring 2002 Professor Susanna Fischer CLASS 24 FRENCH COURT STRUCTURE ADMINISTRATIVE AND MISCELLANEOUSCOURTS March 13, 2002

Wrap-up: French Court Structure There is a separation between ordinary and administrative courts in France, based on the idea of separation of powers. The TGI is the civil court of general jurisdiction There are also a number of civil courts with limited jurisdiction: Industrial tribunal, Social Security Tribunal, Commercial Court, Agricultural Land Court, TI

Criminal Courts Not all criminal cases go directly to trial The most serious or complex (crimes or délits) are examined by a pretrial investigatory court (jurisdiction d’instruction) We’ll talk about these in the context of criminal procedure Cases are tried by jurisdictions de jugement, which deliver either a conviction or acquittal Like civil system, there are courts of general jurisdiction and courts of limited jurisdiction

Criminal Courts What are the French criminal courts of general jurisdiction?

Criminal First Instance Courts of General Jurisdiction Tribunal de police (Police Court) Tribunal correctionel Cour d’assises (Court of Assizes) Which first instance court hears a particular criminal case depends on the seriousness of the offence (infraction)

Tribunal de Police Limited to minor offenses (conrtraventions) publishable by small fine not exceeding 1500 EUR Lowest criminal court of general jurisdiction It is the Tribunal d’instance sitting as a criminal court Judge sits alone. Usually a specialist criminal judge though sometimes a judge that deals with both civil and criminal cases There is a prosecutor – procureur de la République of the TGI

Tribunal correctional The Tribunal Correctionel hears slightly more serious offences (délits) This is the TGI exercising its criminal jurisdiction Usually 3 judges, but some offenses like check fraud, assault, criminal damage, or reckless driving (if D not in custody) can be adjudicated by a single judge (around 0% of total offenses) Jurisdiction is limited to délits committed within its territorial jurisdiction – more serious offenses like theft that publishable by sentence of imprisonment of up to 10 years and/or larger fines.

Cour d’assises Tries crimes (most serious crimes like murder carrying terms of imprisonment of 10 or more years) One per département; sits at least 1 of every 3 months Not just professional judges, but also a jury of 9 lay judges les jurés– so court is called the juridiction populaire (the people’s court) 3 judges (President (Cour d’Appel judge)and 2 assessors) Just sits once every quarter unless more hearings are needed Can’t be appealed to Court of Appeal – just Cour deCassation. In contrast, appeal lies against decisions of Tribunals Correctionels as well as more serious cases in Tribunal de Police

Criminal Courts With Limited Jurisdiction Cours d’assises spéciales: crimes against National security Juvenile courts (juge des enfants, tribunal des enfants, court d’assises des mineurs) – in camera proceedings Military courts Haute Cour de Justice – can try President of Republic/ministers for high treason or serious crimes. No appeal against its decisions.

Courts of Appeal 35 of these All disputes except minor civil disputes and criminal cases tried in the Cour d’Assises can be appealed to the Cour d’Appel Appeals are by way of rehearing of the case, and questions of law and of fact will be newly dealt with. Remember that you need to hire an avoué to represent you before the Cour d’Appel. You also need an avocat.

Courts of Appeal Judges (conseillers) are experienced career judges Each Cour d’Appel has at least 3 judges (2 conseillers and 1 President) but may have more; if so, divided into Chambres – usually Criminal, Civil, maybe Social, Commercial

Cour de Cassation 135 judges appointed by President of the Republic (president, 6 divisional presidents, 85 conseillers, 43 auxiliary judges, 18 auditeurs (young judges) The Cour de Cassation is the highest judicial body. It decides appeals on points of law and procedure and can set aside or quash judgments and remit cases for rehearing to one of the 35 Courts of Appeal

Cour de Cassation Usually 5 judges hear the appeal in criminal cases unless president thinks case is straightforward and refers it to 3 judge bench If a civil case, normally heard by 3 judges unless appeal is complex – then it is referred to 5 judge bench Only avocats au Conseil d'Etat et à la Cour de cassation may plead before the Cour de Cassation

Administrative Courts Completely separate from civil and criminal courts What do administrative courts do? What is the highest administrative court?

Conseil d’Etat The Conseil d’Etat is the highest administrative court It was created under Napoleon and became a full-fledged autonomous court reviewing actministrative acts in 1872 How and why was the Conseil d’Etat reformed in 1953? How and why was it reformed in 1987?

Reforms for the Conseil d’Etat By 1953 there was a large backlog of cases for the Conseil d’Etat so it was reformed to reduce waiting times. Other first instance administrative courts were created: tribunaux administratifs But the amount of administrative litigation soared so that the backlog of cases was back up by 1987. A new intermediate tier of administrative courts, the Cours administratives d’appel, were created. Also a filter committee was created to weed out hopeless cases. Has the problem of delay been solved?

Conseil d’Etat How many members does the Conseil d’Etat have? How are they trained? How is the Conseil d’Etat organized?

Conseil d’Etat How many members does the Conseil d’Etat have? 300. Prime Minister is the president How are they trained? Usually at ENM. See http://www.justice.gouv.fr/anglais/minister/enm.htm#INFO How is the Conseil d’Etat organized? There are 6 Divisions, of which one is litigation and 5 are administrative. The litigation division has 10 sections. Each has a president. Members are part of both a litigation and an administrative divisions. This is controversial. Why?

European Court of Human Rights The ECHR found that Luxembourg’s Conseil d’Etat violates Art. 6(a) of the European Convention, which provides that there is a right to have cases heard by an impartial and independent court.

What does the Conseil d’Etat do?

What does the Conseil d’Etat do? Advisory functions – advises before decrees are adopted or ordonnances are made or government bills adopted by Cabinet (see 1958 Constitution Arts. 37-39). Also advises government more generally. Judicial function – review administrative acts. Generally acts as an appellate court on points of law, but hears a small number (3000) of cases at first (and last) instance like applications for judicial review of decrees of President/PM or ordonnance, litigation about regional elections, cases about senior civil servants. Also hears some appeals from Cours Administratifs d’Appel in limited areas.

Administrative Courts Tribunaux administratifs There are 35 of these courts of first instance, 27 in France. Each has a President and at least 3 judges (conseillers) Larger courts (like Paris) are divided into divisions Most cases were brought in Paris because of the jurisdictional principle that found jurisdiction where the authority being reviewed had its legal base, which was usually Paris. There have been efforts to decentralize by changing the jurisdictional rules

Administrative Courts How long is the average waiting period for an administrative case to be heard? Do the administrative courts do anything apart from adjudicating administrative litigation? How long is the average waiting period for an administrative case to be heard? 22 months Do the administrative courts do anything apart from adjudicating administrative litigation? Limited advisory role

Administrative Courts of Appeal Created in 1987. There are now 6 of these courts: in Bordeaux, Lyon, Marseilles, Nancy, Nantes, and Paris. President is generally a member of the Conseil d’Etat. Each court has 2-4 divisions. 5 judges will hear a case, although 7 judges may hear a more important case Hear most appeals on points of fact and law against decisions of the tribunaux administratifs. Small advisory role.