History & Heritage

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Chambre commerciale de la Cour de cassation

Genesis of the High Council for the Judiciary

The High Council for the Judiciary appeared for the first time in the law of 30 August 1883 reforming the judicial system that gives to the assembled chambers of the Cassation court that had jurisdiction to hear disciplinary cases concerning magistrates.

The Constitution of the 27th of October 1946 made the High Council for the Judiciary an autonomous constitutional body. Pursuant to title IX of the Constitution that reflected the will to build an independent justice, the Council was presided at that time by the President of the Republic. The minister of justice, keeper of the seals, was the Vice-President. The Council was composed by six members elected by the National Assembly, four magistrates elected by their peers and two members designated, within the legal professions, by the President of the Republic. The Constitution of 1958 extended the competences of the Council that should submit the appointment of the judges to the President of the Republic. The Council should also ensure the disciplining and independence of these magistrates as well as the courts administration. Nevertheless, de facto, the Council did never exercise this latter competence.

The Constitution of 4 October 1958 reformed the institution of the Council by modifying its composition, among other things. It organised the Council around the President of the Republic and the minister of justice, keeper of the seals, who remained respectively President and Vice-President of the Council and around nine members, designated by the President of the Republic, either directly (two qualified personalities) or on a proposal from the board of the Cassation Court (six magistrates) or from the General Assembly of the Council of the State (one State Councillor). In that system, the prerogatives of the Council were limited, precisely because the previous Council had been unable to exercise all its prerogatives. The Council only submitted the appointment of the judges of the Cassation court and of the First Presidents of the courts of appeals to the President of the Republic and no more. It gave a simple opinion on the proposals of appointments of all other judges. The Constitution of 1958 confirmed the role of the Council as a disciplinary board for all the magistrates (judges and prosecutors).

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The constitutional law of 27 July 1995 and the organic law of 5 February 1994 initiated an in-depth reform of the Council regarding its composition as well as its powers. The constitutional law and the organic law created two formations, one with jurisdiction over the judges and the other with jurisdiction over the prosecutors. The President of the Republic remained the President of the Council and the minister of justice, keeper of the seal, its Vice-President. However, the six magistrates forming each composition should be elected:  five judges and one prosecutor within the formation of the Council with jurisdiction over judges and five prosecutors and one judge within the formation of the Council with jurisdiction over the prosecutors. The system described above should symbolise the unity of the judiciary. Besides, the Council was composed by four members who were common for both formations. These four members should be appointed by the President of the Republic, the Presidents of the National Assembly and of the Senate and by the General Assembly of the Council of State.

The constitutional law and the organic law enhanced the prerogatives of the Council. The Council should not only appoint the magistrates of the Cassation court and the First Presidents of the court of appeals but should also appoint the Presidents of the courts of first instance. With respect to all other the judges, an assent from the Council should be required. Without the Council’s assent, the minister of justice, keeper of the seals, could not appoint a judge. The competent formation for the prosecutors should be given the power to deliver a simple opinion that could be favourable or unfavourable for all the appointments of prosecutors, apart from the one whose functions were filled in the Council of Ministers, namely the positions of General Prosecutors at the Cassation court and General Prosecutors at the courts of appeals.

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The organic law of 25 June 2001 modified the system of elections of the magistrates (judges and prosecutors), apart from the members of the Cassation court and the heads of courts of appeals, of courts of first instance, the General Prosecutors and the heads of prosecution services. It provided the rule of proportional representation using the list system and following the rule of the highest average, without splitting or preferential voting. Furthermore, the organic law of 2001 modified the way disciplinary cases had to be referred to the Council and the functioning of the Council as a disciplinary body.

The law n°2008-724 of 25 July 2008  and the organic law n°2010-830 of 22 July 2010 concerning the application of the provisions of Article 65 of the Constitution reformed the High Council for the Judiciary on three aspects: its composition and its functioning, the process of appointment and the possibility for the litigants to refer a complaint against a magistrate (judge or prosecutor) to the Council.

Annexes

Title VIII - Of Judicial Authority

Article 64

The President of the Republic shall be the guarantor of the independence of the Judicial Authority.

He shall be assisted by the High Council for the Judiciary.

An Institutional Act shall determine the status of members of the Judiciary.

Judges shall be irremovable from office.

 

Article 65

The High Council for the Judiciary shall consist of a section with jurisdiction over judges and a section with jurisdiction over prosecutors.

The section with jurisdiction over judges shall be presided over by the Chief President of the Cassation court (“Cour de cassation”). It shall comprise, in addition, five judges and one prosecutor, one Conseiller d'État appointed by the Council of State (“Conseil d'État”) and one barrister, as well as six qualified, prominent citizens who are not members of Parliament, of the Judiciary or of administration. The President of the Republic, the President of the National Assembly and the President of the Senate shall each appoint two qualified, prominent citizens. The procedure provided for in the last paragraph of article 13 shall be applied to the appointments of the qualified, prominent citizens. The appointments made by the President of each House of Parliament (National Assembly and Senate) shall be submitted for consultation only to the relevant standing committee in that House.

The section with jurisdiction over prosecutors shall be presided over by the General Prosecutor at the Cassation court. It shall comprise, in addition, five prosecutors and one judge, as well as the Conseiller d'État and the barrister, together with the six qualified, prominent citizens referred to in the second paragraph.

The section of the High Council for the Judiciary with jurisdiction over judges shall make recommendations for the appointment of judges to the Cassation court, the head judges of courts of appeal and the head judges of courts of first instance. Other judges shall be appointed after consultation with this section.

The section of the High Council for the Judiciary with jurisdiction over prosecutors shall give its opinion on the appointment of prosecutors.

The section of the High Council for the Judiciary with jurisdiction over judges shall act as disciplinary board for judges. When acting in such capacity, in addition to the members mentioned in the second paragraph, it shall comprise the judge belonging to the section with jurisdiction over prosecutors.

The section of the High Council for the Judiciary with jurisdiction over prosecutors shall give its opinion on disciplinary measures regarding prosecutors. When acting in such capacity, it shall comprise, in addition to the members mentioned in paragraph three, the prosecutor belonging to the section with jurisdiction over judges.

The High Council for the Judiciary shall meet in plenary section to reply to the requests for opinions made by the President of the Republic in application of article 64. It shall also express its opinion in plenary section, on questions concerning the deontology of judges or on any question concerning the operation of justice that is referred to it by the Minister of Justice. The plenary section comprises three of the five judges mentioned in the second paragraph, three of the five prosecutors mentioned in the third paragraph as well as the Conseiller d'État, the barrister and the six qualified, prominent citizens referred to in the second paragraph. It is presided by the Chief President of the Cassation court who may be substituted by the General prosecutor of this court.

The Minister of Justice may participate in all the sittings of the sections of the High Council for the Judiciary except those concerning disciplinary matters.

According to the conditions determined by an Institutional Act, a referral may be made to the High Council for the Judiciary by a person subject to trial.

The Institutional Act shall determine the manner in which this article is to be implemented.