Can we debate the French Justice system please.

Great Debates
1

The Napoleonic code devised this non adversorial system, the judge is also to an extent an investigating magistrate. The internet is in this instance a really poor source of information, most of the sites I have looked at assume a knowledge of french law that I simply do not have. Either that or they are in french, a language that I am embarrassed not to have mastered further than schooloy level

Do we have french dopers who can give an insight into the workings of french justice, both practical and in theory?

I have placed this in GD because although I would like a GQ description of the practicalities of the system I would like to elicit thoughts and opinions as to the relevant benefits or inherent disadvantages. Am really interested in some of our doper lawyer inputs.

Also I am heading off to the islands for a break just now so even if I can’t contribute to my own thread immediately I will certainly be back here soon with some specific questions as and when ( or if) the thread develops.

2

Unless you ask for something more specific, you won’t get any real answers. The way the OP is phrased, my instinct is to say “well, the Spanish system is similar and UNED offers law degrees, they take five years.”

What is it about the French system you want to know?

3

I think the question is perfectly clear, so don’t elaborate it. Let whoever knows about it answer whatever they know, pro and con.

4

Thanks TheMadHun I don’t want to elaborate just yet, as I do have some specific questions to put later, but as Nava took the time to respond and perhaps my question wasn’t so clear maybe I can add just this

In the french system the judge can question defendants, he or she can even participate in the investigation phase. Wiki quote … In some jurisdictions the trial judge may participate in the fact finding inquiry by questioning witnesses even in adversarial proceedings. The rules of admissibility of evidence may also allow the judge to act more like an enquirer than an arbiter of justice.
How does the french system work? And I as I believe it really does, can we learn something from this?

5

Ok, so if I understand,

you’re interested in the criminal system.

Now. Are you interested only in the role of judges, or also in the role of the police, of the public attorney, in which of the Mirandas would apply, in the different ways in which an investigation can proceed, in how many levels does the French criminal system have, in whether there are juries or not, in how does one become a judge, in how does one become a lawyer?

The question is very clear indeed, but it’s equivalent to saying “tell me about Catholicism” or “tell me about the US political system.” It’s huge. You need to break it up, or sign up for law school.

6

I am very interested in the role of judges, especially the investigative aspect, am interested in knowing how this role can be independent especially if an investigation is carried over to a trial. Am interested in the jury system which has judges presiding over them (within them?). Am interested in the appeals process, who presides over that? And am interested in knowing what role the public attorney has particularly looking at the role of an investigating magistrate. I am interested in exploring the differences between the french system and US system

And I am conscious that my question is huge. I would be happy for any answers or even points that can break it down to how segments of the french process compare to US/UK law practice.

Anything in fact that can point me into an avenue of lay study, which is purely for my own personal interest and development. Am too old for law school and have no inclination to step willingly into the legal processes of any country either as judge, juror, lawyer or defendant!

Now the specific points that that you asked if i had an interest in, I do know have clear differences from from the US/UK system. (which are very different themselves) Which tells me you may have some learning on this and may be checking me out to see whether your time spent fighting my ignorance is just pissing against the wind… pearls before H1N1 etc. :slight_smile:

7

In the Western world, there are generally two types of court systems - adversarial and inquisitorial (with some hybrids such as Australia and Taiwan). Generally, those in continental Europe, like France, are inquisitorial systems. Your best bet for slightly more detailed information is Wikipedia. But if you search for “inquisitorial system” in Google or Yahoo, you should find more info.

8

Thanks Camus I read that article, in fact the quote in my post above was from that wiki entry. Although I am interested in knowing more about the hardware of the french system I was interested in expanding a discussion as to the various merits of either system adversarial and inquisitive

Putting it plainly, The french are not opposed to taking to the streets to protest about perceived unfair trade agreements, or burkha bans or a host of other things. But I can’t remember them protesting about their judicial system. They must have faith ( or not object seriously) in their justice system

I have no doubt this great democracy is on a sound judicial basis. But there are aspects of it that I as an interested observer seem open to judicial abuse… even intrinsically abusive.

But this is patently not the case. French justice in practice is as good or as bad as any system

I just wanted to know how it works and can we learn from it or use some aspects of it in our own systems following a principle of evolving standards of ecency.

9

Well as no French Doper has weighed in yet, I’d like to address one misconception (from outre-Rhin as they say delicately): if a pretrial investigation is headed by an investigating magistrate (juge d’instruction), this is not the same person as the trial judge.

10

Re: Judges. They are not the same as American judges. They are thought of more as “civil servants.” They go to Judge school to learn their trade, as opposed to being a lawyer and later being appointed/elected as a Judge. Basically, in a code based system such as France, (in theory) the legislature makes codes for every possible scenario and the Judge merely picks the appropriate statute and applies the facts the written law. In theory, they do not rule from the bench. In fact though, they must. In theory, they should not interpret, but refer unclear legislation back to the legislature for authoritative interpretation. In fact, they interpret the law much like American judges. The continental (French) image of a judge is that of an operator of a machine designed and built by the legislature. You mentioned the French love their legal system, I can’t say either way, but I can say it was built on a mistrust of Judges and them making law from the bench.

re: Courts. The French have a trial court, and, in theory, it should be the final court because the Judges should not be interpreting the law, only picking the correct statute and applying it. In reality, this does not happen, so the French have a court of cassation. So, instead of the trial judge referring an interpretative question back to the legislature, they refer it to this legislative court (similar to a court of appeals). This court will quash an incorrect interpretation of a statute by a trial judge. This is a legislative court, not a judidical court (like an American court of appeal). In theory, they court of cassation does not provide the “correct” interpretation, they only quash incorrect ones. In practice, they now also produce a decision stating how the law should be applied correctly and instruct the lower court to do so. It must be noted, their decision is not a source of law, merely a recommendation to the trial court. In theory, the trial court does not have to follow the recommendation. In practice, they do.

Also, the French divide their court system in two. (1) Ordinary courts that hear basic civil and criminal cases. and (2) Administrative courts that decide the legality of statutes. In France, the Council of State hears these cases. If there is a question into which court system to bring the case, the Conflicts Tribunal decides that. In America, courts hear both types of cases in the same court system.

re: Criminal Procedure. as has been said, the French use the Inquisitorial system (In theory). The French judge is not an impartial referee, but an active participant in the case. There are three basic parts: (1) investigative phase, (2) the examining phase, (3) the trial. Stage one comes under the prosecutor who investigates the matter. In stage two, the examining Judge investigates the matter thoroughly and makes a written record. If he concludes a crime was committed, the case goes to trial. The accused can have a lawyer during the examining phase. The accused can be questioned, but it’s not sworn testimony. Their refusal to answer questions can be taking into account in deciding guilt. In stage 3, the function is to present the case to a trial judge (not the examining judge). The prosecutor and defense argue their case. There is a presumption of innocence and there is a right to a jury trial.

That’s all I’ve got. It’s very broad and so I gave a very general overview. It’s extremely complex system, like all systems. If you have specific questions, ask away.

As to which system is better, it’s hard to say and there are obviously arguments to be made for both the American and French/continental system. Here’s a quote by someone though that’s telling, “If i were innocent, I would prefer to be tried in the [French] system, if I were guilty, I would prefer the [American] system.”

11

I like the French system. Here we have judges shackled by the assumption that they are only there to shepard a wide-eyed jury to the letter of the law, and when a judge seems to have a bias towards one side or another, or makes a ruling not according to the wishes of some particular interest group, people scream activism

In France, at least the judges get to help solve the case, as it were. Obviously someone looking through a case’s details will have formed an opinion on it one way or the other, its natural that he lend his credibility to pushing it one way or the other

12

In the bad old days of the Johnson and Nixon administrations I was a NATO trial observer – I have a big blue laminated card signed by George Pugh with a big black official rubber stamp and everything. Because of the propensity for American soldiers to get involved in all sorts of minor and major bad behavior I spent most of my observing time in German courts of general criminal jurisdiction but also some in northwestern France. The systems in both countries are similar and nearly identical in important respects. Once you get use to the secondary roll played by the lawyers and the questioning by the judge or judges and the routine acceptance of police written reports you can see that the whole thing runs smoothly and does substantive justice. It is, however, clearly not the adversarial English system we have gotten use to. There is considerably less showboating by counsel and without exception the judges were serious professionals who did not put up with and nonsense or game playing. In the absence of the Continental tradition and a through exposure to the civil code system, I doubt if the system would be accepted in the US or the UK.

The point is that the European civil code courts are different than American and British courts in appearance and procedure and the functions of lawyers and judges but they work and work well. Whether they would work well in the US or anyplace else with a tradition of adversarial jury trials is questionable.

13

How are the Australian courts hybrids?

14

What follows only applies for major crimes (murder, rape, etc…). There isn’t a jury, an investigation magistrate, and so on for minor crimes or civil cases (with an exception mentioned at the end of the post for particularly complex cases, generally related to finances, embezzlement,… ).

The investigation judge doesn’t take part in the trial. He directs the enquiry, mostly in the way a prosecutor would do in the US system, with the essential difference that he has the duty to seek all the evidences related to the case, elements pointing at guilt as much as elements pointing at innocence (“instruire a charge et a decharge”). He’s supposed to act impartially. One advantage being that the defence must benefit during this investigation phase of the same means as the accusation (like extensive police investigations, for instance).

All the evidences, testimonies, expertises ordered, interrogations, conclusions, etc, are kept in written form. If, at the end of his investigation, he concludes that there are enough charges for a trial, this conclusion is reviewed by a panel of judges who decides whether or not the accused should be tried. The investigation judge then disappear from the picture (actually, he can be called as a witness during the trial, but my understanding is that this usually means that the court suspect he mishandled the case and that he’s in troubles).

The role of the prosecutor is limited during this phase. He appears briefly at the beginning of the investigation, essentially to determine that a crime has occurred (or is likely to have occurred) and for the necessary first investigations. As soon as he has reasons to believe that, yes, this could be a crime, he passes the hand to the investigation judge. After that, in theory at least, he doesn’t have much more say than the defence (for instance, he can request a specific investigation or make recommendation) and in some cases less (for instance, he isn’t present during interrogations).

Still about the prosecution, but regarding the trial phase. A huge difference with the US system is that the prosecutor doesn’t have to prove the case. The court is supposed to determine the truth on the basis on the elements presented, testimonies, etc…, and the prosecutor is only assisting in this discovery, and representing the interest of society. Not only he doesn’t have to prove the case, but he can perfectly argue in favour of the accused or ask the jury to declare him not guilty (of course, it’s very unusual, but it happens). The trial will still keep going on in this situation.

Regarding the trial. I gave several time this comparison : the American system is like a game between the defence and the accusation with the judge as a referee. The French system like a debate on TV with the judge as the anchorman. The presiding judge does much of the interrogation of witnesses. Inadmissibility of evidences is way more limited. For instance, second hand informations or mere opinions can perfectly be expressed.

The accused (or his counsel) is allowed to speak at almost any time, and will frequently be asked questions regarding a testimony following it or even during it, by the judge or the prosecutor, will be allowed to contradict or criticize the testimony, and direct exchanges between the accused and the witness aren’t uncommon. He never formally testifies himself, though, and isn’t allowed to make a sworn statement.

Another notable difference is that the victim (or his family) can also be represented by a lawyer (and generally is).

Regarding the jury (they’re the only ones not allowed to participate in the “debate”, even though they can transmit written questions to the presiding judge, who might or might not ask them to the witness/expert/accused). It’s actually composed of the three judges + the jurors themselves. To declare guilt, a super-majority is required (not unanimity). Sentence is also decided by this jury (judges +jurors).

Basically, the appeal is do-over, exactly similar to the first trial, only with more jurors. It has been added relatively recently, following a decision of the European Court of Human Rights if I’m not mistaken, who considered that the only possible appeal until then, the “cassation” (literally “breaking (of the court decision)”) wasn’t a true appeal, since evidences aren’t reviewed.

The “cassation” still stand as the last appeal. The “cassation” court is the highest court in France for criminal and civil cases (I’m simplifying a bit, since there are other “high courts” for constitutional matters and cases involving public authorities). It doesn’t rule on the facts of the case, but only on the legality of the process (on the “technicalities”, one might say). There are no juror here, only judges. And if they “break” the court decision, a new trial is organized.

There’s an exception though. If new evidences arise, they can be presented to the “cassation” court who can order a new trial. Even though it mellowed a little bit recently, this court has historically been very reluctant to order a new trial, so the new evidences have to be pretty damning. A trivial note : there’s no time limit to present such new evidences. So for instance a dozen years ago, new evidences for a famous case dating back from the 1930s have been presented to the court by the grandchildren or somesuch of the long-dead sentenced murderer (and have been rejected).

Finally : all these informations might not be very useful, because the current president is bent on a major reform of the French system : the suppression of the investigation judge, who would be replaced by a prosecutor (anglo-saxon style). So, all this might be soon outdated.

Note that I’ve a lot of issues with this reform. First it is presented as being intended to protect the accused, in particular following a massive fuck-up by an investigation magistrate who acted as a super-prosecutor in a sordid child rape case that resulted in a random assortment of people who barely avoided sentencing. So, the idea seems to be that since the magistrate who was supposed to be impartial might not be the solution is to replace him by someone who doesn’t have to be impartial at all.

Second, besides major crimes, investigation judges appear also in complex cases, in particular financial cases. And while these judges are independant, the prosecutors, on the other hand, through the hierarchic chain depends ultimately on the minister of justice, hence the executive. So, there are suspicions that they might be strongly “influenced” in cases involving public or political figures.

Third, the french system has a long tradition, there’s a lot of precedents, and so on. This would be a massive change, and without anything to rely upon. It would be entering in uncharted territory. It doesn’t seem a good idea to me.

Fourth, the investigation would become pretty similar to what they are in the American system. The accused would have to face someone with the means of the state behind him and despite promises to reinforce the rights of the defence, I can only envision that a major issue in the american system that I particularly dislike will arise : the means of the accused (an excellent or poor lawyer, a lot of money to spend on private investigations or not, etc…) will become a more important factor, I guess.

Fifth, and this is the biggest issue I have even though it’s rarely mentioned for some reason. The investigation will be conducted in the “american way”, the state against the individual. On the other hand, the trial itself will still be conducted in the “French way”. In particular, as I mentioned, the prosecutor still won’t have to prove the case in court, the admissibility of evidences will be equally extensive, etc… Which means, it seems to me, that the accused will have the worst of both worlds.
It’s not like I’m a specialist of law, so maybe there’s something I’m missing, but the way I see it, I’m infuriated by this proposed reform. I don’t like the French president and his policies at all but if there was one thing I could prevent from happening under his leadership, it’s this one, even though unfortunately, the general public doesn’t seem to feel much concerned about the issue.

15

Thank you very much clairobscur There are obviously many elements to be admired, especially the investigating magistrate. Pursuing both incriminating and exculpatory evidence seems a wholly commendable route in the search for justice. I am a lifelong francophile and often look for more information behind the scenes of french life. My current interest was rekindled reading this interview with Jacques Vergès in Der Speigel. ( the Klaus Barbie defence lawyer)

Thanks to everyone who contributed