In order to increase public confidence in the justice system, the constitutional reform of July 2008 introduced a mechanism for direct referral to the Council by litigants. For more than five years, any citizen has been entitled to refer a matter directly to the Council if he/she is involved in court proceedings and if a judge or prosecutor is likely to have committed a disciplinary offence in the exercise of his/her duties.
No complaint may be lodged against a judge or prosecutor who remains in charge of the proceedings involving the complainant. Furthermore, it is not possible to lodge a complaint after the expiry of a period of one-year following the issuance of an irrevocable decision putting an end to proceedings. The complaint must contain details of the facts and alleged grievances and must be signed by the litigant, who must also indicate his/her full identity, address and all the information required to identify the proceedings in question.
If the complaint is found to be admissible, the fact that it has been referred to the Council cannot constitute grounds for the disqualification of the judge/prosecutor concerned.
If the CAR considers that the complaint is admissible, it informs the judge/prosecutor concerned of the situation. The CAR then asks the First President or the General Prosecutor of the Court of Appeal in which the judge/prosecutor works, for their observations and for all the relevant information about the case. The First President (if the person concerned is a judge) or the General Prosecutor (if they are a prosecutor) invites the respondent to make any comments. Within two months of the CAR’s request, the First President (or, as the case may be, the General Prosecutor) must send all information and observations to the Council and to the Minister of Justice, Keeper of the Seals. The CAR may hear the judge/prosecutor concerned and, if need be, the litigant.
If the CAR considers that the facts are likely to constitute a disciplinary offence, it refers the complaint to the disciplinary council for judges or to the competent section of the Council for the discipline of prosecutors.
The judge/prosecutor concerned, the complainant, the First President or the General Prosecutor, are kept apprised of the complaint’s dismissal or of the initiation of disciplinary proceedings. The decision to dismiss the complaint is not appealable.
Filing a request
If you consider that the behaviour of a judge or prosecutor is likely to constitute a disciplinary offence, you may refer a complaint to the Council. This allows you to denounce bad behaviour. Nevertheless, it is well worth mentioning that such an approach is not a new legal remedy. The complaint you submit to the Council does not give you the right to challenge a court decision.
To allow examination, your complaint must fulfil the following conditions:
- You must be concerned by the proceedings
- The judge/prosecutor is no longer in charge of said proceedings
- Your complaint must be submitted to the Council within a year following the issuance of an irrevocable decision putting an end to the proceedings.
Your complaint must contain:
- Date, your identity and address (any complaint filed anonymously will be rejected)
- All the information needed to identify the proceedings concerned
- Detailed facts and alleged grievances against the judge/prosecutor
- Your signature.
You must submit your complaint in writing, by post, to the following address: Conseil Supérieur de la Magistrature, 21 boulevard Haussmann, 75009 Paris.
As soon as your complaint is registered, you will be sent acknowledgment of receipt and your case will be examined:
- By a CAR composed of four members of the competent section for judges or prosecutors, or
- By the President of the CAR if your complaint is manifestly unfounded.
Examination of the merits of a complaint
This step consists in obtaining more information about the facts set out in the complaint. If your complaint is admissible, the CAR will:
- inform the judge/prosecutor concerned,
- ask the Head of the Court of Appeal (First President or General Prosecutor) to obtain the judge/prosecutor’s observations on the complaint and to send all necessary information,
- if necessary, the CAR is entitled to hear the judge/prosecutor concerned or to hear you, the complainant,
- issue its decision.
If the CAR considers that your complaint is not justified, it will issue a dismissal. This decision is not appealable.
If the CAR considers that the alleged facts are likely to constitute a disciplinary offence, it will submit the case to the disciplinary Council for review by the relevant section responsible for judges or prosecutors.
The decision issued by the Council will be notified to you, the judge/prosecutor concerned, the Head of the Court of Appeal and the Minister of Justice, Keeper of the Seals.
The commission for the admission of requests (CAR)
In both divisions of the Council (for judges or prosecutors), one or several CARs may be established. Since July 2011, the number of complaints about judges has led the President of the relevant section for judges to create two CARs. Although the number of complaints has decreased, the President has maintained the existence of two CARs for judges, for the following reasons:
- To strengthen swiftness and flexibility in complaint handling;
- To ensure the existence of the CAR as a filter (due to deport rules).
For both sections, the CARs are composed of four members of the Council: two judges/prosecutors and two qualified members. The quorum required for discussion is three out of four members. The members of a CAR are appointed each year by the President of the competent section.
It should be noted that the law does not provide any specific mechanism in a case where a complaint concerns both judges and prosecutors equally. In such a case, the complaints are divided into two parts and examined separately by each competent CAR. The rulings are signed by the president of each CAR. Thus, although there are “mixed” complaints, there are, strictly speaking, no mixed commissions.
An outsider’s view of the work of a CAR
“The Council demonstrates great pedagogy towards the public. If a complaint does not fulfil the basic requirements, the Council will send a letter to the litigant in order to enable them to rectify the request (for example, if the complaint does not contain the litigant’s full address or if it was not sent by post to the Council, complaints by email being inadmissible…). Similarly, the Council is very patient with some litigants, who send the same complaints several times a year or even several times a month […]”.
a survey Olga Mamoudy ¹ , which were published in the Council’s annual activity report for the year 2015.
1 . Olga Mamoudy is a senior lecturer in public law at Paris Sud XI University (Jean Monnet Faculty).
Formalisation of proceedings before a CAR
Due to the very brief and general nature of the law governing the daily functioning of the CARs, the latter have defined guidelines and established case law on certain issues.
There is a strict system of separation on two main aspects: on the one hand, the members of a CAR do not have access to the administrative file of the judge/prosecutor concerned by a complaint from a litigant; on the other hand, the work and debates within a CAR are not shared with other members of the Council who deal with appointment cases.
The lack of precision in the law led the Council to define working rules during its previous term of office, the new version of which were adopted by the CAR.
If a complaint is regarded as admissible, the case will not be referred to a disciplinary council without hearing the judge/prosecutor concerned. The latter will have access to the entire file and may be assisted by counsel or any other person of his/her choice (lawyer, colleague, union representative, etc.). He/she must be informed of the date of issuance of the decision. The hearing must be recorded and checked and signed by the judge/prosecutor.
The complainant is not party to the proceedings. Therefore, he/she will only receive the final decision issued by the CAR, which will be justified only in the case of dismissal. The decision is not appealable.
The practice of the CAR under the current term of office
The issue of the investigative and “pre-trial” powers of the CAR still remains.
Regarding the law in force, it is difficult for members to take initiatives from a legal point of view, namely by asking the litigant to complete his or her file. However, to give just one example, it should be pointed out that CARs do not have access to the national databases recording civil and criminal cases, even though these databases provide information about the current status of court proceedings and acts of investigation.
The question has also arisen as to whether it would be possible for a complainant and the respondent to use documents covered by the confidentiality of investigations for the purposes of disciplinary proceedings. Nevertheless, the Council of State ruled that civil servants, who are subject to disciplinary proceedings, could produce documents covered by the confidentiality of investigations for the purposes of defense.
There is still a legal vacuum in the case of a tied vote on the admissibility of a complaint. If, after a decision of admissibility (and obviously after hearing the judge/prosecutor concerned, collecting observations from his/her Head of Court of Appeal and so on), the vote is tied, the matter will nonetheless be referred to the disciplinary council. However, if, before the decision of admissibility, the four members of the competent CAR cannot come to a decision (two against two), no provisions are made by law. Thus, the CAR decided to apply the same solution that is applied to deliberations in cases of referral, to deliberations concerning the admissibility of complaints.
Finally, current legislation does not provide any system of deputising for the presidency of a CAR. Although there are two CARs for judges, allowing the president of one CAR to replace the president of the other if he/she is unable to sit, the issue of deputising still remains. Indeed, since the issue of deputising seems to bring more difficulties than it does solutions, the CARs do not use this mechanism anymore.
Complaints against decisions taken by a prosecutor to close a case without further action
The main characteristic of complaints against prosecutors is the calling into question of any inaction in cases that, according to the litigant, justify criminal prosecution. The majority of complaints against prosecutors referred to the CAR (39% in 2015) aim at challenging the merits of a decision taken by a prosecutor to close a case without further action. Some complaints criticise more specifically the lack of any detailed statement of reasons for a decision. Other complaints criticise the fact that the prosecutor did not provide any information about the follow-up action given to a case. Furthermore, a complaint may state that the litigant has not been able to contest the merits of a prosecutor’s decision to close the case without further action before the General Prosecutor (or that they have not been informed that they had the right to do so).
Moreover, it is common that a single complaint concerns not only a prosecutor but also a judge (for example, an investigating judge or the Family Court).
[…] The quasi-jurisdictional nature of the decisions taken by the prosecutor to close cases without further action does not constitute, in itself, an obstacle to the admissibility of a complaint against such decisions, although the competent CAR for prosecutors is not entitled to exercise control on the merits of this kind of decision, namely because of the principle of discretionary prosecution (and also because of the subject of the proceedings before the CSM).
Extracts from the annual activity report (2015)