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Opinion On The Independence Of Justice

Original Language Title: Avis sur l'indépendance de la justice

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JORF no.0176 of 31 July 2013
text No. 102



Opinion on the Independence of Justice

NOR: CDHX1320084V ELI: Not available



( Plenary Assembly of 27 June 2013)


1. On 14 March 2013, the Government adopted several constitutional bills in Council of Ministers, including the reform of the Supreme Council of the Judiciary. On 21 May 2013, a new bill on the powers of the security guard and magistrates of the Public Prosecutor's Office in criminal policy and the implementation of public action was tabled in the National Assembly. These various bills follow the commitments of the President of the Republic, who had announced that they wanted to guarantee the independence of justice and all judges (1). The CNCDH has self-study on the issue of the independence of the judicial authority in general rather than on each of these bills. These bills dealing only with judicial justice, the CNCDH will not decide on the independence of administrative and financial courts.

(1) Presidential project for 2012. 53rd campaign commitment by François Hollande.



2. The independence of the judicial authority is recognized by Article 64 of the Constitution. It is also recognized by various international instruments, including the Universal Declaration of Human Rights (2), the International Covenant on Civil and Political Rights (3), the European Convention on Human Rights (4), the Charter of Fundamental Rights of the European Union (5). Many recommendations from international bodies regularly recall the importance of this principle, including the UN (6), and the Council of Europe (7).

(2) Article 10: "Every person shall be entitled, in full equality, to a fair and public hearing by an independent and impartial tribunal, which shall decide either on his or her rights and obligations or on the merits of any criminal charge against him or her. » (3) Article 14: 1. "All are equal before the courts and courts of justice. Any person has the right to have his or her case heard fairly and publicly by a competent, independent and impartial court established by law, which shall decide either on the merits of any criminal charge against him or on his or her civil rights and obligations. (...) » (4) Article 6. – Right to a fair trial: “Every person has the right to have his or her case heard fairly, publicly and within a reasonable time, by an independent and impartial court established by law, which will decide whether or not to challenge his or her civil rights and obligations, or whether any criminal charge against him or her is justified. (...) » (5) Article 47: Right to an effective remedy and to access an impartial tribunal: "Every person whose rights and freedoms guaranteed by the law of the Union have been violated has the right to an effective remedy before a court in accordance with the conditions laid down in this article. Every person has the right to have his or her case heard fairly, publicly and within a reasonable time by an independent and impartial court established by law. Everyone has the opportunity to be counseled, defended and represented. Legal aid is granted to those who do not have sufficient resources, as such assistance would be necessary to ensure the effectiveness of access to justice. » (6) See in particular the Basic Principles on the Independence of the Judiciary adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan from 26 August to 6 September 1985 and confirmed by the General Assembly in its resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985 and the Guiding Principles applicable to the role of prosecutors adopted by the Eighth United Nations Congress on the Prevention of Crime and (7) See Recommendation Rec(94)12 F 13 October 1994 on the independence, effectiveness and role of judges, Recommendation CM/Rec(2010)12 of the Committee of Ministers to Member States on judges: independence, efficiency and responsibilities.



3. Following the Council of Europe, the CNCDH emphasizes that "the independence of justice guarantees everyone the right to a fair trial and that it is therefore not a privilege of judges but a guarantee of respect for human rights and fundamental freedoms that allows everyone to have confidence in the judicial system" (8); Indeed, the independence of judges is an "integration of the rule of law and indispensable to the impartiality of judges and the functioning of the judicial system" (9). The guarantee of independent justice is therefore necessary for the entire human rights protection system in France.

(8) Recommendation CM/Rec(2010)12 of the Committee of Ministers to Member States on Judges: Independence, Effectiveness and Responsibilities (adopted by the Committee of Ministers on November 17, 2010, at the 1098th Meeting of Ministers Delegates). (9) Same.



I. ― A crisis justice


4. The tabling of these various bills in Parliament comes as justice has been going through an important crisis in recent years. The stigmatization, on the part of the political class, of the work of justice is indeed frequent. This stigmatization has fuelled in public opinion the myth that judges would be laxists. Under the previous two legislatures, the laws have been passed to progressively restrict the power of judges: floor sentences or succession of laws restricting the judge's office in the area of foreign law, for example. In addition to these laws, from 2002 to 2012, more and more specific instructions were sent to the Public Prosecutor's Office, for example, to require the application of floor sentences for recidivism or to use the immediate appearance procedure for certain types of facts.
5. In addition, the critical insufficiency of the justice budget, which is reflected in the ranking of France in relation to the other Council of Europe countries (10), has important consequences on the work of judges on a daily basis. The establishment, within the framework of the Organic Law on Financial Laws, of objectives and performance indicators relating to judicial activity has had important consequences on the functioning of the public service of justice: the favourable ones: the reduction of the average processing time of proceedings, the reduction of the rate of civil and criminal cases and the rate of enforcement of court decisions. On the other hand, others are more questionable: increase in the number of civil and criminal cases handled by a single magistrate, criminal response at all costs (11). Similarly, performance indicators also restricted the discretion of judges, forced to systematize their work to meet performance objectives. In total, this reform was "the opportunity for the chancery to establish a very centralized framework" (12) which had an effect of "strengthening political authority over judicial authority" (13).

(10) CEPEJ report. (11) Finance Bill for 2013, Annual Justice Performance Project. (12) Didier Marshall "The Impact of the Organic Law on Financial Laws (LOLF) on Jurisdictions", Revue française d'administration publique 1/2008 (n° 125), p. 121-131. (13) Jean-Paul Jean, "Le ministère public entre modèle jacobin et modèle européen", Revue de science pénale 2005, p. 670.



6. Finally, the progressive reforms of the French criminal procedure have had the effect of reversing the subtle balances of power between the prosecutor ' s office and the judiciary. The issue of the statute of the Public Prosecutor ' s Office and its relationship with the executive branch has become a major subject of screaming. This context leads to an extensive reform to protect the independence of justice. Such a reform should go through a clarification of the links between the Prosecutor's Office and the Ministry of Justice, on the one hand, and a strengthening of the role of the MSC, on the other.


II. ― Clarifying the links between the seal guard and the parquet


7. Two factors militate for a refouling of the relations between prosecutors and the Ministry of Justice: on the one hand, the subordination of prosecutors to the Ministry of Justice hinders the pacified treatment of cases that concern the political world and, on the other hand, the impartiality of justice that is not seized of cases of which it should be known (14) ; on the other hand, repeated criticisms of the European Court of Human Rights in respect of

(14) If article 30 of the Code of Criminal Procedure is usually interpreted as prohibiting orders not to prosecute, the same is not true for requisitions of non-place or relax. In addition, the close dependence of the Public Prosecutor's Office on chancery leaves all suspicions to be planted.



8. Two questions, not unrelated, but distinct, must be addressed: on the one hand, the general instructions, and the subordination link in the custody of the seals of the Public Prosecutor's Office; on the other, the individual instructions of the guard of the seals at the Public Prosecutor's Office.


II-1. Acknowledging greater independence from the prosecution service


9. In Recommendation (2000)19, the Committee of Ministers of the Council of Europe expressed its wish regarding the role of the Public Prosecutor in the criminal justice system. He has distinguished different legal traditions, each of which has its own characteristics. Some government departments are independent; others are hierarchically submitted to the Minister of Justice; some receive individual instructions, while others cannot receive them. These different legal traditions can, if surrounded by sufficient guarantees, be as protective of human rights as one another. A hierarchical prosecution service to the Minister of Justice must have a more limited power than an independent prosecutor's office, and important rights must be recognized to the parties involved in the case, particularly in the initiation of prosecution. Conversely, an independent prosecutor ' s office in the Ministry of Justice requires that it be recognized a proper authority to coordinate its criminal policy.
10. One of the ambiguities (15) of the statute of the French Public Prosecutor's Office (16), which the bills examined do not rise, is that it does not choose between these different forms of legal traditions. In many ways, ambiguity is constitutional. The prosecutors are members of the judicial authority (17), and in this regard are independent (18). Some read in the jurisprudence of the Constitutional Council a recognition of the constitutional character of the principle of unity of the body (19). The Constitutional Council also considered "that under Article 20 of the Constitution the Government determines and conducts the policy of the nation, especially in the field of public action"; and that the principle that "the Minister of Justice conducts the public policy determined by the Government. It ensures consistency in its application in the territory of the Republic" did not ignore "the French conception of the separation of powers, nor the principle that the judicial authority includes both the magistrates of the siege and the prosecutors, nor any other principle or rule of constitutional value" (20).

(15) Jean-Paul Jean, "Le ministère public entre modèle jacobin et modèle européen", Revue de science pénale 2005, p. 670. (16) Christine Lazerges, (dir) "Procurator's Figures" – the legal paths ― PUF 2006. (17) "The judicial authority (...) includes both the magistrates of the siege and the public prosecutors," Constitutional Council, 11 August 1993, Decision No. 93-326 DC. (18) Article 64 of the Constitution. (19) Guy Canivet, "Le juge judiciaire dans la jurisprudence du Conseil constitutionnel", Cahiers du Conseil constitutionnel, no. 16, June 2004. (20) Decision No. 2004-492 DC of 2 March 2004, Law on the Adaptation of Justice to Changes in Crime.



11. However, if the Constitutional Council sees no contradiction between the subordination of a prosecutor's office and the independence of justice, it is not the case of the European Court of Human Rights. On the occasion of its decision Mill v. France (21), the court considered "that, because of their status as recalled, members of the public ministry in France do not fulfil the requirement of independence with respect to the executive, which, according to a constant jurisprudence, counts, in the same way as impartiality, among the guarantees inherent in the autonomous notion of "magistrate" within the meaning of Article 5, paragraph 3". At this point of reasoning, it is appropriate to point out that the criticisms of the European Court of Human Rights in the Moulin decision are multiple, and do not relate only to the lack of independence of the Public Prosecutor's Office vis-à-vis the executive and the parties but also to the fact that it is a party pursuing.

(21) European Court of Human Rights, 23/11/2010, Moulin c/France.



12. CNCDH considers that two solutions can, in principle, be considered. The separation of the judiciary into two separate bodies is one: on the one hand, the public prosecutor, a hierarchical body, submitted to the Minister of Justice, who would abandon his independence; on the other, the judges of the seat, fully independent. To be acceptable in terms of rights and freedoms, this hypothesis should be accompanied by a significant evolution of the French criminal procedure; It would then be necessary to allow for the initiation of prosecutions that do not depend exclusively on the prosecutor ' s office, particularly in cases where the probity of the elected officials is involved, and where the civil party ' s constitution may seem more difficult to implement. In addition, it would be necessary to transfer some of the prosecutor's powers to a magistrate at the office, strengthen the defence rights, particularly during the preliminary investigation, and increase the budget allocated to legal aid.
13. The other solution is to recognize greater independence from the public prosecutor's office. Such reform would not solve all problems. Contrary to what is advanced by some commentators, it would not allow itself to respond to the decisions of the European Court of Human Rights Medvedyev (22) and Moulin (23). However, the independence of the prosecutor's office seems to be necessary in view of the progressive developments in the French criminal procedure. As a result of successive reforms, including the expansion of the prosecutor's powers during the preliminary investigation, his role has evolved to gradually become that of a quasi-jurisdiction of instruction. In addition, the opportunity for prosecutions has been banished as prosecutions are only one of the many modalities of the criminal response. While the criminal response rate was 83.5 per cent in 2007, it is expected to reach 90 per cent in 2015 (24). This increase in the rate of the criminal response is due to the creation of a quasi-judicial power of the prosecutor's office; for almost half of the offences (47%, 51% for minors), the criminal response is only provided by the prosecutor's office, the only prosecutor's authority. For other cases, the orientation towards derogatory procedures such as the immediate appearance has such consequences on the defendants that it can be considered a pre-judgment: it most often leads to the issuance of a filing warrant. The right to an independent and impartial tribunal therefore requires that new statutory guarantees of independence be recognized in the Public Prosecutor's Office.

(22) European Court of Human Rights, Grand Chamber Decision 29/03/2010, Medvedyev v. France. (23) However, the terms of the Constitutional Council's decision of October 21, 2011 should be taken into account: "The prosecutor's office is not a party to the trial like another, the public prosecutor's office is not in a situation identical to that of the person prosecuted or the civil party." QPC of 21/10/2011. (24) Finance Bill for 2013, annual Justice Performance Bill.



14. However, the CNCDH is aware that the issue of the independence of the prosecutor does not solve the difficulty of the French criminal procedure system. It should not be forgotten that the prosecutor, as the European Court of Human Rights recalls, is also a party prosecuting the criminal proceedings in which he is charged. This difficulty, which also raises the question of the uniqueness of the judiciary, maintains in the minds of the public a great deal of confusion that may harm the confidence in the impartiality of the judges. The need for a profound reform of the procedural system appears obvious but cannot be made in precipitation and imposes a profound reflection and debate involving jurists, professionals, elected officials and civil society, which does not prevent, until such reform can be implemented, that the measures recommended here are adopted.
The CNCDH recommends that, on the occasion of the examination of Bill No. 845 on the powers of the Public Prosecutor's Office for Criminal Policy and Public Action, articles 5 (25) and 43 (26) of the Statute of the Judiciary be amended and that the independence of the Prosecutor's Office be included. In this regard, it seems necessary to remove the powers of the seal guard as "in charge of investigation and instruction" (27).

(25) Article 5 of Ordinance No. 58-1270 of 22 December 1958 on the Organic Law on the Status of the Judiciary: "The prosecutors are under the direction and control of their supervisors and under the authority of the guardianship of the seals, Minister of Justice. At the hearing, their speech is free. (26) Article 43 of Ordinance No. 58-1270 of 22 December 1958 on the Organic Law relating to the Status of the Judiciary: "All failure by a magistrate to the duties of his state, honour, delicacy or dignity constitutes a disciplinary fault. (...) The fault is appreciated for a member of the Prosecutor's Office or a magistrate of the central administration of the Ministry of Justice in the light of the obligations arising from his or her subordination. » (27) This is indeed the title I of Book I of the Code of Criminal Procedure, the guard of the seals on it after the judicial police and before the public prosecutor and the investigating judge, pursuant to Law No. 2004-204 of 9 March 2004.



15. However, the CNCDH does not oppose the power of the Seal Guard to define and coordinate criminal policy. However, this power must not have the effect of corseting the discretionary power of the Public Prosecutor's Office, in disregard of the principles of appropriate prosecution and individualization of sentences.
The CNCDH recommends that the terms of general criminal policy instructions be abandoned for the benefit of those of general guidance circulars. It would then be up to the Attorneys General and Attorneys of the Republic to specify, adapt and implement these guidelines by taking into account the specific context of their jurisdiction, as the very opportunely specifies.article 39-1 of the Code of Criminal Procedure adopted by the National Assembly (26).

(28) Thus the term "instruction" involving a narrow subordination is not adapted.



II-2. Prohibit individual instructions


16. Recognition of the independence of the public ministry necessarily involves abandoning individual instructions. The statutory recognition of this independence and the transfer to the MSC of career management skills currently assigned to the Ministry of Justice would be sufficient guarantees for the disappearance of these individual instructions.
17. However, in the case that its recommendations for the independence of the public ministry would not be heard, the CNCDH is obliged to examine the issue of the pure and simple suppression of individual instructions. Certainly, in a number of cases, individual instructions may allow for better consideration of the general interest (29). However, practices that are too often followed in the past have led to the fear of diversion of these instructions for the personal purposes of government officials. Moreover, they are, in fact, not always written. Also, when they intervene in a criminal trial, the person involved is not necessarily informed of it, whereas it may have a significant influence on the outcome of the trial. They pose a grave threat to the right to a fair trial.

(29) Jacques-Henri Robert argues that "If they were to be deleted, the state would be, in France, the only litigant who would not have the right to give his representative, before the judicial courts, the instructions he considers in a case that interests him. These instructions are particularly useful when the Government wishes to give its opinion on the conduct and outcome of a collective proceeding conducted before the Commercial Court in respect of a company that employs a large number of people. In the crisis period we are going through, the Government must not deprive itself of this instrument. Jacques-Henri Robert, Public Prosecutor's Office: The State, deprived of the right to a lawyer, the legal week, general edition ― no 18, 29 April 2013, the week of doctrine ― the life of ideas cf. also Jean Pradel « Should we delete individual instructions », in Dalloz, compendium no 20, 6/6/2013 p. 1361.



18. Bill 845 provides for the prohibition of individual instructions. If this prohibition is indeed salutary, however, one may doubt its effective application. Three types of influences on the Public Prosecutor's Office in targeted cases must be distinguished:
- written instructions. If they exist, they are rare. The bill would lead to their disappearance;
- oral instructions. They are more common and can take various forms. It is to be feared that the bill will not be able to respond to such practices. CNCDH recommends that the prohibition for the Ministry of Justice of the faculty to give individual instructions to the prosecutor ' s office be included in the Code of Criminal Procedure ;
― in a number of situations, it is to be feared that the prosecutor's magistrate would not anticipate the wishes of the ministry, which would not have to take hold with the magistrate. The custody of the seals on the career of judges in general, and prosecutors in particular, may induce such behaviour. Only recognition of the independence of the Public Prosecutor's Office (see II-1) and a strengthening of the MSC's powers on the evolution of the career of all judges could effectively combat such instructions.
The CNCDH underlines the risks of seeing individual instructions continue as long as the independence of the public ministry has not been recognized. It therefore recommends that the principle of prohibition of individual instructions be expressly incorporated in the Code of Criminal Procedure.


III. ― Refounding the independence of a genuine judiciary:
for a strengthened MSC


19. To be real, the independence of justice must be recognized by the Constitution (30). However, if the Constitution recognizes the independence of the justice system, it provides a significant nuance as long as this independence is guaranteed by the President of the Republic. However, if guarantor there must be, it can only be the Supreme Council of the Judiciary, an independent body.
CNCDH recommends that Article 64 of the Constitution be amended to include the principle that the Supreme Council of the Judiciary is the guarantor of the independence of the judiciary (31).

(30) See, in particular, Rec(94)12 F, 13 October 1994, on the independence, effectiveness and role of judges and the fundamental principles relating to the independence of the judiciary. (31) In his commentary to the articles of the Constitution, the late Professor Guy Carcassonne described the first paragraph of Article 64 as "incongru", which made the President of the Republic the guarantor of the independence of the judicial authority and added: "as much to proclaim that the wolf is the guarantor of the security of the shepherd" (The Constitution, 9th edition, 2009, p. 312, Seuil).



III-1. Composition of the MSC


20. The composition of the MSC must lay its legitimacy and guarantee its independence. The legitimacy of the institution requires that the MSC be not a corporatist defence body of the magistrates and that an important part of its members be composed of external personalities. In this regard, the composition of the MSC as it is the result of Constitutional Law No. 2008-274 of 23 July 2008 of the modernization of the institutions of the Fifth Republic has made undeniable progress by withdrawing the presidency and vice-chairing of the institution to the President of the Republic and the Seal Guard. It also provided that, from now on, magistrates are a minority within it (32).

(32) In a very singular way, clause 22 of section 2 of the Constitutional Bill provides that: "The Minister of Justice may participate in the MSC training sessions, except in disciplinary matters. If it seems quite normal that the guard of the seals may be heard at his request or at the request of the MSC, however, while he is no longer a member, his participation in the sessions appears to be a serious anomaly that should be rectified.



21. The draft constitutional law submitted by the Government to the National Assembly is based on this point: the composition of the Supreme Council of the Judiciary is a good part of the judiciary, which is again a majority. To justify this evolution, the explanation of the reasons for the constitutional bill states that this evolution "is in the direction of the Council of Europe's recommendations". However, in most cases, the Council of Europe simply asks that the proportion of judges be at least equal to that of non-magistrates. Nothing prevents us from recommending equality between magistrates and non-magistrates. The introduction of this parity would have the advantage of avoiding network games, and improving citizens' eyes on the MSC suspected of connivence and self-care. The National Assembly heard these remarks, and amended the draft constitutional law so that the various formations of the MSC (training with regard to the magistrates of the headquarters, training with regard to the prosecutors, plenary training) are composed of magistrates and non-magistrates.
Like the National Assembly, the CNCDH recommends that the CSM be composed equally of magistrates and non-magistrates and that the presidency of the CSM be entrusted to an elected figure in its own right, who would have a dominant voice in the event of equal sharing of votes.
22. In addition, some echoes regarding the current operation of the MSC are a strong absenteeism of external figures due to lack of availability.
CNCDH requests that members of the MSC be given full and paid time to the activities of the MSC.
23. The independence of the MSC in relation to political power must be guaranteed by the mode of appointment of its members. With regard to members of the non-judicial MSC, the CNCDH welcomes the mechanism established by the draft Constitutional Law, which creates a panel of personalities, to designate six of the eight non-judicial members and thus composed (33): Vice-President of the Council of State, President of the Economic, Social and Environmental Council, Ombudsman of Rights, First President of the Court of Cassation, Attorney General, Court of Cassation, First President of the Court. The CNCDH is pleased that the National Assembly has provided that among these personalities is "the president of an advisory body for the protection of public freedoms and the defence of human rights", while regretting that the reference to the CNCDH has not been expressly retained. If these personalities are appointed by the executive, the procedure leading to their appointment is surrounded by guarantees. Several are appointed by Order in Council of Ministers (34), following procedures to ensure their independence (35). The duration of their mandates (36) prevents the risks of a college of the same political colour as that of the Government (37).

(33) The draft submitted by the Government provided for the designation of five external personalities; following the amendment of the text by the National Assembly, it is now six personalities, which allows for parity between magistrates and non-magistrates. (34) This is the case of the Vice President of the Council of State (art. L. 133-1 of the Administrative Justice Code) and the first President of the Court of Auditors (art. L. 121-1 of the Financial Courts Code). (35) The first president of the Court of Cassation is proposed by the MSC; the president of the CESE is elected by the assembly of the CESE; the Defender of Rights and the first President of the Court of Accounts shall be appointed according to the procedure provided for in Article 13 of the Constitution. (36) The Defender of Rights shall be appointed for six non-renewable years. The first president of the Court of Auditors and the first president of the Court of Cassation shall be appointed without a maximum duration and shall be removable. (37) The Senate Committee of Laws proposes to abolish the College responsible for appointing non-Muricipal members of the MSC and returning to the current system: designation by the Presidents of the Republic, the Senate and the National Assembly, with approval to the three-fifths by the laws of the two assemblies. The president of the MSC would again be the first president of the Court of Cassation and not elected to it. This return to the status quo offers less guarantee than the original project since the three presidents can belong to the same political majority, as was the case under the previous legislature, as is the current situation. Will the approval by a qualified majority of parliamentarians suffice to ensure pluralism?



24. The independence of MSC members is also controlled by Parliament. Following the amendment of the text by the National Assembly, the competent commissions of each assembly shall approve by a majority of the three-fifths each name proposed by that College.
25. With regard to judges, the CNCDH calls for a reform of the mode of election of these representatives. The voting mode is currently a vote by college, which has the effect of overrepresenting the hierarchy.


III-2. MSC powers


26. Currently, the Ministry of Justice remains, to a large extent, master of the evolution of the career of the magistrates of the headquarters and the public prosecutor. Indeed, for most judges, it has the initiative of the evolution of their career, the MSC having only a veto power. Thus, greater independence of justice necessarily involves the transfer of part of these powers to the MSC.
Power of the MSC on the evolution of the career of judges:
27. The draft constitutional law allows for the submission of all magistrates of the headquarters and the public prosecutor to the CSM's consistent opinion, with some magistrates appointed on the proposal of the MSC. This bill is an undeniable step forward with regard to prosecutors and will put an end to certain practices of the executive who pass the MSC's opinions (38). It should be pointed out that, to a certain extent, this bill will constitutionalize a practice that has been respected since 1997 by the seal guards Elisabeth Guigou, Marylise Lebranchu, and more recently by Michel Mercier and Christiane Taubira.

(38) Seven negative opinions not followed by twelve in 2003-2004; nine out of ten in 2006; nine out of fourteen in 2007.



28. However, the constitutional bill could have gone further. The real major reform would have been to entrust a power of proposal to the MSC for all judges. This would have required the MSC to allocate means that go hand in hand with this power, and to place a part of the direction of judicial services and the general inspection of judicial services under the authority of the MSC. At a minima, the MSC's proposal power should be expanded to the hierarchy of the Prosecutor's Office: Attorneys General and Attorneys of the Republic (39).

(39) In the state of the constitutional bill adopted by the National Assembly, the financial prosecutor, whose creation is provided for by another bill, would be chosen exclusively by the Chancellery and then submitted to the CSM's consistent opinion.



29. Moreover, for some judges, it should be questioned whether, besides the control exercised by the MSC and the Ministry of Justice, it would not be interesting to provide for an opportunity to hear information without a vote by the competent committees of the parliamentary assemblies. This could be of particular interest to the Prosecutor of the Financial Republic if the latter were to be established.
Disciplinary power of the MSC:
30. The Constitutional Bill CSM aligns the disciplinary regime of prosecutors, which would now fall within the MSC's view of the judges of the office. This is one of the positive points of reform, which the CNCDH fully supports.
MSC's authority in matters of ethics and independence:
31. To truly guarantee the independence of the judicial authority, it is necessary to allow the MSC to intervene in the public debate as soon as the independence of the judicial authority is at stake. The draft constitutional law allows the MSC to respond to the requests for advice made by the President of the Republic, and that of the Minister of Justice "on matters relating to the ethics of the magistrates and on matters relating to the functioning of the justice system". Above all, the draft constitutional law allows for an ex officio power of referral concerning "the independence of the judicial authority and the ethics of the magistrates".
32. The National Assembly recognized the possibility for judges to refer the MSC to "a matter of ethics". This referral is a positive step. However, it should be questioned whether it would not have been preferable to extend this power of referral to all matters relating to the independence of justice. Thus, in the state, a JLD deferred from its position by order of the president of the jurisdiction should be able to appeal to the MSC if it considers that the grounds for this divestiture infringe upon its independence.
33. Following the Advisory Council of European Judges, the CNCDH recommends that the CSM be consulted in the preparation of the draft financial law in its part concerning the budget of justice and the documents annexed thereto, including the annual performance project. This could help avoid setting up indicators with perverse effects, which result in "inducing behaviours that improve the indicator but degrade the result" (40).

(40) Jean Arthuis, "LOLF: cult of indicators or culture of performance?" Information report No. 220 (2004-2005), made on behalf of the Senate Finance Committee, tabled on March 2, 2005.



Strengthen the guarantees of independence for some judges:
34. Judges should also be protected from the pressures that could be exerted on them by the courts. Some functions are particularly exposed to this pressure: these are the cases of judges of freedoms and detention, or president of a court of siege, who hold their power only from a designation by the president of the court. In order to allow them to exercise their functions independently, it is necessary to align their method of designation with that of the investigating judges or the judges of the children and to appoint them by decree, after the advice of the MSC.


IV. – Making the judicial police justice


35. Preventing violations of the independence of justice requires preventing possible pressures that could come from the Ministry of Interior. However, if "the judicial police is exercised, under the direction of the prosecutor of the Republic, by the officers, officials and designated officers" under title I of the Code of Criminal Procedure, and if the activity of judicial police officers and judicial police officers is "controlled" (41) by the board of inquiry, and supervised by the Attorney General (42), officers, officials and agents are subject to the administrative authority of the Ministry of Interior. This submission is further reinforced by the very hierarchical structure of the judicial police: initially limited to only judicial police officers, judicial police acts are now delegated to judicial police officers and deputy police officers. As a result, the reality of the direction and control of the judicial police is essentially the responsibility of the Ministry of Interior, and the control exercised by the prosecutor of the Republic and the board of inquiry is only very partial.

(41) Article 224 of the Code of Criminal Procedure. (42) Articles 12 and 13 of the Code of Criminal Procedure. The Attorney General empowers officers and judicial police officers.



36. The problem is particularly important with regard to human resources management. A possible solution would be to make available a number of police officers who would devote themselves exclusively to the judicial police, who should be jointly managed by the Attorney General's Office and the Chamber of Investigation, at an appropriate level, at each court of appeal. Judiciaries of the Judiciary would have a " right of draw " on the staff so assigned. At the national level, a joint commission "inner, justice", chaired by a magistrate of the Court of Cassation, would determine the number of police officers assigned to each jurisdiction and ensure the advancement of these police officers and their right to return to their original bodies. These police and gendarmes should be guaranteed the same statutory and financial guarantees as in their original employment.
The CNCDH recommends that the Government, after consultation with the police unions and representatives of the gendarmerie, determine the conditions under which a number of police officers could be made available to the Investigation Chambers and the Attorney General.
(Result of the vote: 42 votes for.)


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