The Full Wiki

Court of Cassation (France): Wikis

Advertisements
  
  

Note: Many of our articles have direct quotes from sources you can cite, within the Wikipedia article! This article doesn't yet, but we're working on it! See more info or our list of citable articles.

Encyclopedia

From Wikipedia, the free encyclopedia

France

This article is part of the series:
Politics and government of
France



Other countries · Atlas
Politics portal

Referred to as the Cour de cassation in French, the French Supreme Court serves as France's judicial court of last resort. The Court sits in the Hall of Justice building in Paris.

The French Supreme Court is the court of final appeal for civil and criminal matters. As a judicial court, it does not hear cases involving claims against the government which generally fall within the purview of administrative courts, for which the Council of State acts as the supreme court of appeal. The Court was established in 1790 under the name Tribunal de cassation during the French Revolution, and its original purpose was to act as a court of error with revisory jurisdiction over lower provincial prerogative courts (Parlements).[1]

Contents

Composition

The Court is made up of justices, the Office of the Prosecutor, and an Administive Office of Courts. In addition, a separate bar of specially certified barristers exists for trying cases at the French Supreme Court.

Advertisements

Judges and divisions

Overall, the Court consists of nearly 85 trial judges (conseillers) and about 40 deputy judges[2] (conseillers référendaires), each divided among six different divisions (chambres):

  • First Civil Division (première chambre civile) deals with family law, successions, child custody, professional discipline, individual rights, contracts, liability
  • Second Civil Division (deuxième chambre civile) handles divorce, torts, civil claims, and electoral matters
  • Third Civil Division (troisième chambre civile) (or "Land Court") for real property, deeds, housing, city planning, conveyancing, leases, foreclosures
  • Commercial Division (chambre commerciale, financière et économique) handles corporations, bankruptcy, business, banking and patents
  • Labor Division (chambre sociale) handles labor disputes, worker compensation, and welfare
  • Criminal Division (chambre criminelle) deals with criminal cases

Each division is headed by a Presiding Justice[3] referred to in French as a président, or President of Division. Over these presiding justices presides the Chief Justice who bears the title of the premier président, or President of the Court. The Chief Justice is the highest-ranking judicial officer in the country and as such is responsible for court administration and the discipline of justices. The current Chief Justice is Vincent Lamanda. The Court also includes 12 masters (auditeurs), the lowest rank of justice, who are primarily concerned with administration.

There is, in addition to the abovementioned six divisions, a so-called Mixed Division (chambre mixte). The Bench of the Mixed Division is sat by the Chief Justice and a number of other judges from at least three other divisions relevant to a given case. Any participating division is represented by its Presiding Justice and two puisne judges.

Finally, a Full Court (Assemblée plénière) is called together, presided over by the Chief Justice or, if absent, by the most senior Presiding Justice. It is also sat by all divisional presiding justices and senior justices[4] assisted by a puisne judge from each division. The Full Court is the highest level of the Court.[5]

Office of the Prosecutor

The prosecution, or parquet général, is headed by the Chief Prosecutor (procureur général). The Chief Prosecutor is a judicial officer, but does not actually try cases; instead, his function is to advise the Court on how to proceed, analogous to the Commissioner-in-Council's role within the Council of State. Duties include filing originating motions to bring cases before the Court "in the name of the law" and bringing cases before the French Court of Justice (Cour de justice de la République), which tries government officials for crimes committed while in office. The Chief Prosecutor is assisted by 2 Chief Deputy Prosecutors (premier avocat général) and a staff of about 22 deputy prosecutors (avocats généraux), and 2 assistant prosecutors (substituts).

Supreme Court Bar

Barristers (avocats), though not technically officers of the Court, play an integral role in the due dispensing of justice. Except for a few types of actions, advocate counsel in the form of a barrister is mandatory for any case heard at the Supreme Court or Council of State. Barristers with exclusive rights of audience and licensed to practice law in either senior court carry the title of avocat au Conseil d'État et à la Cour de Cassation, or avocats aux Conseils ("Counsel at Senior Court") for short. Licensure and admission to the Supreme Court Bar are particularly difficult, requiring special training and passing a notoriously stringent examination. Once admitted, bar members are empowered to advise litigants on whether their actions are justiciable, that is, issuable and exceeding de minimis requirements - an important service since the Supreme Court only hears cases on issues of law and not issues of fact. Membership is restricted to 60 total positions and is considered a public office.

Proceedings

The Court's main purpose is to affirm or overturn lower court rulings on points of law. As the highest court of law in France, it also has other duties.

Appeals

The Court has inherent appellate jurisdiction for appeals allowed (called pourvois en cassation) from a lower appellate court, except for certain types of small claims cases which are normally not appealable. The Supreme Court has general jurisdiction for upholding or overturning lower appellate court rulings; if overturned, the ruling is said to be "quashed" (casser in French), hence the French name of Cour de cassation, or "Quashing Court".

Whereas an intermediate appellate court hears appeals from a lower court based on errors of fact findings or determinations, the French Supreme Court decides matters on questions of law or procedure as applied in a case, not issues of fact. Lower courts may petition the Supreme Court to issue an interlocutory judgment during the proceedings on any new and complex point of law; any such declaration, however, is not a final or conclusive order.

Appeal procedure

A case is heard by a bench of 3 or 5 relevant divisional justices. For either civil or criminal cases, the Bench is sat by 3 judges unless the Chief Justice or the divisional Presiding Justice orders a Full Bench of 5 judges. Furthermore, any one of the 3 judges originally assigned to the Bench may order it expanded to five. If the case falls in the legal areas handled by more than one division, the Chief Justice may order the Mixed Division, rather than a Bench, to consider the case.

The Supreme Court can affirm a decision from below by dismissing the appeal (rejet du pourvoi) or reversing the lower court's ruling (cassation). If only a portion of a ruling is overturned, it is called cassation partielle, or partial reversal. Sometimes, the Court may overturn a lower court ruling and judge the case ex proprio motu without being petitioned (cassation sans renvoi), as long as the merits and facts of the case are on record.

When overturned, the case is then remanded to a second appellate court, i.e, not the originating appellate court, and never with the same judges. The decision of the Bench or Mixed Division is not binding, and the appellate court has full discretion to decide the case, but the Supreme Court's ruling has persuasive value. The appellate court's ruling may again be appealed to the Supreme Court. If so, the Full Court hears and judges the case. It may, again, uphold an earlier decision or reverse it and remand the case to another appellate court. In the latter case, the determination of the Full Court on points of law is binding; the actual facts, however, may be reviewed by the court retrying the case.

Published judgments are extremely brief, containing a statement of the case, citing statutory provisions involved, and a summary of ruling. The ruling does not contain a ratio decidendi, more typical of common-law jurisdictions.[6] Instead, it is left to legal experts to explain the importance of rulings. The Court often drastically changes the way the Civil Code or other statutory laws are interpreted. Legal digests, such as the Recueil Dalloz, and treatises written by legal scholars analyze and explain rulings through precedents. Much of this information is available through on-line databases.

Where no appeal is made but the Government disagrees with the lower court's interpretation of the law, it may order the Chief Prosecutor to "lay an appeal before the Court in the interest of law" (former un pourvoi dans l'intérêt de la loi), i.e., appeal to certify a question of general public importance. The Chief Prosecutor may do so sua sponte or at the behest of the Court for both civil and criminal cases. The Court will then issue an advisory opinion which has no bearing on the lower court's ruling since it was satisfactory to all parties involved and no motion was made to appeal. If the Government is dissatisfied with the law as stated by the courts, it may ask Parliament to rewrite the law, as long as no constitutional issue is involved.

Unlike common-law jurisdictions, there is no doctrine of binding precedent (stare decisis) in France. Therefore, previous decisions of higher courts like the Supreme Court do not bind lower courts in the same hierarchy, though they are often followed and have persuasive value. Instead, the French legal system subscribes to the legal doctrine of jurisprudence constante according to which courts should follow a series of decisions that are in accord with each other and judges should rule on their own interpretation of the law.

Major felonies or indictable offences, called crimes in French, are tried by jury in a county Court of Assizes. In the past, their decisions were not open to appeal in an intermediate appellate court, and before 2001, could only be appealed to the Supreme Court. The Supreme Court would review the case on points of procedure and law only, and when handing down a reversal, which was uncommon except for capital punishment cases, vested a second Court of Assizes to retry the case. An argument in favor of this system was that allowing appeals to be tried by active judges after having been decided by a jury would in essence deny popular sovereignty. Since 2001, Assize court rulings may be appealed on points of fact to a Court of Assizes in another county, vested by the Supreme Court, and before a grand jury. The case is then fully retried. For procedural issues, appeals to the Supreme Court are still possible since Assize courts, which operate by jury trial, would not be competent to hear them.

Other duties

The Court publishes an annual report on the court system in France. The report includes a section with suggested changes to laws concerning the legal system including criminal procedure. The Court awards damages to exhonerated defendants after being sent to jail or prison. Some high level members of the court are ex officio members of special ad hoc courts; the investigatory commission of the High Court of Justice (Haute Cour de Justice), which may be convened to try the French President for high treason; the French Court of Justice (Cour de Justice de la République), which may be convened to try current or former cabinet ministers for crimes committed while in office; and the National Judicial Council (Conseil supérieur de la magistrature), which serves as a court of judicial discipline and disciplinary counsel. The High Court of Justice has never been convened during the Fifth Republic and the French Court of Justice only rarely.

Other Related Courts

The Supreme Court is not the only court of last resort in France. Cases involving claims against local agencies or the State, including all executive branch decisions and orders, are heard by the administrative courts for which the court of last resort is the Council of State which also has other non-judicial duties. In cases where there appears to be concurrent jurisdiction or a conflict of laws between the judicial and the administrative courts, whether both retain jurisdiction ("positive dispute") or decline jurisdiction ("negative dispute"), the Court of Jurisdictional Disputes (Tribunal des Conflits) decides the issue. The Court is composed of 4 members from both senior courts, and occasionally, such as during a tie vote, the Minister of Justice who, if present, would also preside.

Neither of these courts has the power to strike down law passed by the French Parliament. The courts can, however, refuse to apply any statutory provision they consider inconsistent with France's international treaty obligations. Another body, the Constitutional Council, has the power to invalidate laws that are inconsistent with the Constitution of France, European law, or international treaties. Before a law is enacted, the French President, the president of either house of Parliament, or, more commonly, 60 members of Parliament from the same house may request a review. Some laws, mostly constitutional laws (loi organique), come before the Constitutional Council for review without being first petitioned. Laws in force cannot be reviewed however, and this pertains in particular to laws enacted prior to 1959 when the current constitution came into effect. However, courts may take a restrictive view of the application of statute law.

The European Court of Human Rights (ECtHR) has jurisdiction to hear disputes against the government of France involving an alleged breach of the European Convention of Human Rights. Before the ECtHR will hear a case, all remedies within France's court system must be exhausted; this usually involves following the appeal process through to a Supreme Court or Council of State ruling. However, ECtHR involvement would be considered a first instance case, not an appeal of the French court's ruling.

Additionally, the courts of France may request the opinion of the European Court of Justice with respect to the laws of the European Union.

Notes

  1. ^ Alain Héraud and André Maurin, Institutions judiciaires, 4th edn., (Paris: Dalloz, 2002), 66.
  2. ^ A Canadian term; known as an associate judge in Australia and a magistrate judge in America.
  3. ^ Depending on what English you speak, a presiding judge may simply be the judge trying the case or the senior-most justice on a Bench. In Canada, this position is referred to as "senior judge", though in most English-speaking countries this refers to any high-level judge and in America to a semi-retired elderly judge.
  4. ^ Similarly, the equivalent Canadian term is "senior puisne judge" and, apart from being an oxymoron, is somewhat less ambiguous.
  5. ^ Serge Braudo and Alexis Baumann, Dictionnaire juridique, s.v. "Assemblée plénière" (2008): [1]. Retrieved 3 February 2009.
  6. ^ The ratio decidendi, which largely lays out judicial interpretation of law, is important for common-law jurisdictions because rulings are determined largely through case law whereas in civil law countries like France, procedurally speaking, courts are formally forbidden to interpret law and do not rule based on case law.

See also

External links


Advertisements






Got something to say? Make a comment.
Your name
Your email address
Message