Comparative Law Spring 2003 Professor Susanna Fischer

1. Comparative Law Spring 2003 Professor Susanna Fischer CLASS 13 FRENCH COURT STRUCTURE ADMINISTRATIVE AND MISCELLANEOUSCOURTS March 13, 2003

2. 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

3. 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

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

5. 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) • What is the difference between these courts?

6. Tribunal de Police • Limited to minor offenses (contraventions) punishable by small fine not exceeding 1500 EUR • It is the Tribunal d’instance sitting as a criminal court • Lowest criminal court of general jurisdiction • 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

7. 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.

8. 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) • Usually sits once every quarter Limits on appeal; can’t be appealed to Court of Appeal – just Cour de Cassation, or “appellate cour d’assise” In contrast, appeal lies against decisions of Tribunals Correctionels as well as more serious cases in Tribunal de Police

9. Appellate Cour d’Assise • Recent criminal justice reforms • Possible to have a second trial de novo before another Cour d'assises designated by the Cour de cassation. • 12 lay jurors rather than 9; otherwise procedures are similar • Second appellate judgment of cour d’assise trumps first, but can be reviewed by Cour de cassation.

10. Other 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.

11. 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. • What lawyers represent clients before the Cour d’Appel? • Remember that you need to hire an avoué to represent you before the Cour d’Appel. You also need an avocat.

12. 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

13. 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

14. 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

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

16. 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?

17. 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?

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

19. 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?

20. 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.

21. What does the Conseil d’Etat do?

22. 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.

23. 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

24. 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

25. 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.

26. Specialist Administrative Courts • Give some examples of specialist administrative courts.

27. Specialist Administrative Courts • Give some examples of specialist administrative courts. • There are about 50 of these. An example is the Audit Court (oversee parliamentary budget) and the Regional Audit Courts (that oversee financial management of local government authorities) There are also specialist administrative courts dealing with immigration, public finance, social welfare payments, professional discipline etc..

28. Comparing Ordinary and Administrative Courts • What are the main similarities and differences between the ordinary and administrative courts in France?

29. Comparing Ordinary and Administrative Courts • What are the main similarities and differences between the ordinary and administrative courts in France? • The hierarchy of courts has become similar, but the right of appeal may be more limited in the administrative court system. There is always a right of appeal on the law at least in the ordinary court system, whereas some administrative cases may not have that right if heard at first instance by the Conseil d’Etat.

30. Tribunal des conflits (Jurisdiction Disputes Court) • What does this court do?

31. Tribunal des conflits (Jurisdiction Disputes Court) • What does this court do? Determines whether an administrative court or an ordinary court should hear a particular dispute. How does it do this? • Court comprises Minister of Justice, 3 conseillers d’Etat, 2 judges of Cour de Cassation and 2 other judges elected by the others. Serve 3 year term. • No appeal (either appel or cassation) possible. • Hears about 40 cases per year.

32. Constitutional Court • Conseil Constitutionnel: What does this court do? • Who are the members of the court?

33. Conseil Constitutionnel • The Constitutional Council or Conseil Constitutionnel, is in charge of the constitutional review of certain statutes, standing orderer of Parliament and treaties. before they are enacted and of the control of national elections (Parliament, President of the Republic, Referendum). • The Constitutional Council has 9 active members: 3 appointed by the president, 3 by the president of the National Assembly, and 3 by the president of the Senate. Former presidents are also life members.

34. Contrast • In Germany, the constitutionality of Parliamentary statutes can be reviewed after they are promulgated; in France, they cannot be. What is the position in the U.S.? • Which approach makes more sense to you?

35. Haute Cour de Justice • What was this court originally designed to do, and how was it changed and why?

36. Haute Cour de Justice • What was this court originally designed to do, and how was it changed and why? The court was established pursuant to arts. 67 and 68 of the 1958 Constitution to try the President of the Republic for high treason and members of the government for offences committed while in office. But no government scandals (though many existed) were brought before the court, so it was reformed to limit its jurisdiction just to treason committed by the president of the Republic. A new court was created, the Cour de justice de la République, to try government ministers.

37. Haute cour de justice • Has this court ever tried a case against a President?

38. Cour de Justice de la République • How many judges does this court have?

39. Cour de Justice de la République • How many judges does this court have? • 15 in total – 3 from the Cour de Cassation and 12 Members of Parliament (half from National Assembly and half from Senate, elected by secret ballot by peers). • What was the first case heard by the Cour de Justice de la République? • Was this case a travesty of justice?