Cour de cassation
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The Cour de cassation is the main court of last resort in France. It has its seat in the Paris Hall of Justice. Belgium (Cour de cassation in French and Hof van Cassatie in Dutch), Romania (Înalta Curte de Casaţie şi Justiţie), Senegal and other francophone countries have similar highest courts.
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Organization
The court itself comprises the judges, the prosecution service and the administrative staff. In addition, there are attorneys admitted to practice at the bar of the Cour de cassation.
Judges and Chambers
In total, the Court includes about 85 judges (conseillers) and about 40 assistant judges (conseillers référendaires). The are assigned to six different chambers (chambres):
- First Civil Law Chamber (première chambre civile) (dealing with issues relating to professional organizations, individual rights, copyright and contracts)
- Second Civil Law Chamber (deuxième chambre civile) (divorce, misfeasance and civil procedure)
- Third Civil Law Chamber (troisième chambre civile)(property and urban affairs)
- Commercial, Economic and Financial Law Chamber (corporations, bankruptcy, commerce, banking and patents)
- Social Law Chamber (chambre sociale)(labor, worker compensation and social security)
- Criminal Law Chamber (chambre criminelle) (penal law)
Each chamber has a chief judge called the President. The entire court is headed by a chief judge called the First President. The First President, the highest judicial officer of France, has responsibilities relating to administering the courts and disciplining judges. The current First President is Guy Canivet.
There is, in addition to the six chambers, a Mixed Chamber (chambre mixte). The Mixed Chamber includes the First President and also a number delegates from at least three different chambers whose responsibilities are covered by the case in question. Each participating chamber is represented its President, its most senior judge and two other judges.
Finally, there is a Full Assembly of the Court (Assemblée plénière). It is made up of the First President and the President, senior judge and one other judge from each of the six chambers. The Full Assembly is the highest division of the Court.
Prosecution service
The parquet général is headed by the Chief Prosecutor (procureur général). The Prosecutor is a magistrate, but does not actually try cases. He brings cases to the Court "in the name of the law." He may also bring cases before the Court of Justice of the Republic (Cour de justice de la République), which tries government officials for crimes committed while in office. The Chief Prosecutor is aided by the First Prosecutor (premier avocat général) and about 22 Prosecutors (avocats généraux).
Bar
The attorneys (avocats), while not employees of the Court and not technically part of it, play an important role in the correct application of justice.
With the exception of a few categories of litigation, it is compulsory to use an avocat when referring matters to the Cour de Cassation or the Conseil d'État. Attorneys admitted to pleading before those high courts are known as avocats près le Conseil d'État et à la Cour de Cassation or avocats aux Conseils. Admission to this order (bar) is particularly difficult, with special classes and a hard exam. The roles of these specialized attorneys includes advising litigants on whether their pleas are admissible, particularly that cassation cases only review points of law and not points of fact.
Proceedings
The main role of the Court is to infirm or confirm judgments of lower courts on points of law; as the highest court in France, it also has other duties.
Appeals
Appeals (called pourvois en cassation) are taken from the Cour d'Appel (Court of Appeal), except for some really small claims where it is impossible to go to the Cour d'Appel. The Court of Cassation then has the sole power of confirming or overturning lower appeal court decisions – it is said to "quash" (casser) them, thus an overturning is called a "quashing" (cassation). It judges matters according to points of procedure ("Did the lower courts follow the correct procedure?") and law ("Did they interpret law correctly?"), not on points of fact (the French Courts of Appeal do judge on fact as well as law; basically they retry cases). Lower courts are also allowed to ask for the opinion of the Court early in the proceedings, on a point of law which is new and complex; in this case, the opinion will not be binding.
The case is heard by a panel of three or five judges from the appropriate chamber. In civil cases, three judges are used unless the First President or the President of the chamber orders five judges to sit on the panel. In criminal cases, three judges are used; again, the First President or President of the chamber may demand the use of five judges. Additionally, any one of the three judges originally assigned to the panel may order an expansion of the panel to five judges. If the matter involves the responsibilities of multiple chambers, the President may order the Mixed Chamber, rather than a panel, to review the case.
Unlike the case law decisions of common law courts, the Cour de cassation can only confirm the earlier decision, (rejet du pourvoi, dismissal of the appeal) or annull it ("cassation"). Annulment may be on part of the decision only (cassation partielle). Sometimes, the Court may overturn a lower court decision and decide the case itself (cassation sans renvoi), if the facts as stated by the lower court allows it (e.g if with those facts, the court decides that no tort has been done, contrary to the finding of the lower court the case will not be remanded; if the Court decides, contrary to the lower court that a tort has been done, the case will be remanded, at least to decide the damages).
When overturned, the case is remanded to one of the Cours d'Appel, usually not the one which decided it previously, and never with the same judges. The decision of the panel or Mixed Chamber is not binding, however; the Cour d'Appel, which may decide the case as it pleases (but the decision of the higher court has a persuasive value). The decision of the Court of Appeal may again be appealed to the Cour de cassation. In this case, the Full Assembly of the Court hears and decides the case; it may, again, confirm an earlier decision or quash it and remand the case to the Court of Appeal. In the latter case, the determination of the Full Assembly on points of law is binding; the actual facts, however, may be reviewed by the court retrying the case.
The decisions of the court are extremely brief, citing the facts of the case, the relevant codal or statutory texts and a statement of the decision; there is no ratio or reasoning that is stated in the judgment to guide in the legal interpretation of the decision as is common in most common law jursidictions. It is left to doctrinal writers to explain the import of these decisions. The court often drastically change the way in which the Civil code or other statutes are interpreted. There are legal reporters such as the Recueil Dalloz and treatises written by legal scholars where judgments are analyzed and explained in the context of prior decisions. Much of this information is available through on-line database services as well.
When no appeal is made and the government, while without an interest in the case, disagree with the interpretation of the law in the lower court, it may order the chief prosecutor (see below) to "appeal to the Court in the interest of law" (former un pourvoi dans l'intérêt de la loi). The chief prosecutor may do it by itself too. This may be done in both civil and criminal cases. The Court will then state the law. However, since the lower court judgement was satisfactory to all parties involved (as they chose not to appeal it), it will be enforced unchanged. Note that if the government is dissatisfied with the law as stated by the courts, it may ask the parliament to rewrite the law. No constitutional question is involved here.
Unlike common law jurisdictions there is no strict adherence to stare decisis in France, nor in most civil law countries. The precedents of the Cour de cassation are not binding to lower courts when they hear another case. Yet they are often followed. The doctrine that judges should follow such higher level cases is known as jurisprudence constante.
The most serious criminal cases (felonies, French crimes) are tried by jury in the Cour d'assises (one in each Département). In the past, their decisions could not be appealed to a Court of Appels, and until January 1 2001, could only be appealed to the Cour de cassation, which would review the case on questions of procedure and law only, and when overturning, which was uncommon except for capital cases, choose another Cour d'assises to rehear the case. An argument for this situation was that allowing appeals to professional judges after a ruling by a popular jury would in essence deny popular sovereignty. Since 2001, Cour d'assises decisions may be appealed on question of fact to the Cour d'assises of another Departement, which the Cour de cassation will choose, with an extended jury. The case will then be fully retried. Appeals to the Cour de cassation are still possible on procedural questions, jury-based Cours d'assises not being the fittest place to hear them.
Other duties
The Court publishes a yearly report on justice in France. The report includes a section on suggested changes of legislation concerning justice, including criminal procedure.
The Court orders compensation to innocents who have been sent to jail or prison.
Some high level members of the court are de jure members of special ad hoc courts, the High Court of Justice (Haute Cour de Justice), which may be convened to judge the President of the Republic for high treason, and the Court of Justice of the Republic (Cour de Justice de la République), which may be convened to judge ministers or ex-ministers for crimes committed in the course of their official duties. The High Court of Justice has never been convened in the Fifth Republic and the Court of Justice of the Republic only rarely.
Other courts
The Cour de cassation is not the only court of last resort in France. Cases against the state or local authorities, including all decisions from the executive branch, are heard by different courts (tribunaux administratifs) and the court of last resort in those cases is the Conseil d'État which also has other, non-judicial, duties. In cases where there appears to be a conflict between the judicial and the administrative orders of courts, whether the two want to act on a case (positive conflict) or refuse to act, thinking the other is competent (negative conflict), the Tribunal of Conflicts (Tribunal des Conflits), made of 3 members from each high court, and, if necessary, presided by the Minister of Justice, decides on the issue.
Neither of these courts has the power of judicial review over statute law – essentially, laws voted by the Parliament (exept in case of unconventionality). Another body, the Constitutional Council has that power; it is not a court and does not hear cases. Before the law is enacted, the President of the Republic, the president of either house of the parliament, or, more commonly, sixty members of parliament from the same house may ask for a review. Some laws, mostly pertaining to the organisation of government, and called loi organique comes before the conseil constitutionnel for review, without anyone asking. There is no review after a law has been enacted. In particular, there is no review of law enacted before the present constitution came in effect, in 1959. However, courts may take a restrictive view of the application of statutes.
Appeals against decisions of the French judiciary may be taken to the European Court of Human Rights. Occasionally the courts may also request the opinion of the European Court of Justice with respect to the laws of the European Union.
External link
- Official site (http://www.courdecassation.fr/)
- Cour de cassation cases (http://www.ucl.ac.uk/laws/global_law/french-cases/index.shtml?contents#cassation) (English translations)fr:Cour de cassation