Decision

Decision no. 2017-680 QPC of 8 December 2017

Union Syndicale des Magistrats (Magistrates' Union) [Independence of the Magistrats du Parquet (public prosecutors)]

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE UPON a priority matter of constitutionality on 27 September 2017 by the Conseil d'État (Decision no. 410403 of that same date), under the conditions set out in Article 61-1 of the Constitution. This matter was referred by the Union Syndicale des Magistrats [Magistrates' Union]. It was registered by the General Secretariat of the Constitutional Council under number 2017-680 QPC. It concerns the conformity of the rights and freedoms guaranteed by the Constitution under Article 5 of Ordinance no. 58-1270 of 22 December 1958 relating to the status of the judiciary.

Having regard to the following texts:

  • the Constitution;
  • Ordinance no. 58-1067 of 7 November 1958 concerning the Organic Law on the Constitutional Council;
  • Ordinance no. 58-1270 of 22 December 1958 concerning the Organic law on the status of the judiciary;
  • the Code of Criminal Procedure;
  • the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council for priority matters of constitutionality;
    Having regard to the following items:
  • the observations presented by the applicant labour union, registered on 18 October 2017;
  • the observations presented by the Prime Minister, registered on 19 October 2017;
  • the observations from the intervening party presented on behalf of Mr. Patrick N. by Olivier Le Mailloux Esq., Attorney at the Marseille Bar, registered on 2 October and 6 November 2017;
  • the observations from the intervening party presented on behalf of the Syndicat de la magistrature [Magistrates' Union] by the firm Sevaux et Mathonnet, Attorney at the Conseil d'État and the Cour de Cassation, registered on 19 October 2017;
  • the observations from the intervening party presented for the labour union Force ouvrière Magistrats [Magistrates' Labour Union] by the firm Spinosi et Sureau, Attorneys at the Conseil d'État and the Cour de Cassation, registered on 19 October and 6 November 2017;
  • the documents produced and attached to the case file;

After having heard Mr. François Saint-Pierre, Esq., attorney admitted to the Lyon Bar for the applicant labour union, Mr. Le Mailloux, for Mr. Patrick N., Mr. Patrice Spinosi, Attorney at the Conseil d'État and the Cour de Cassation for the labour union Force ouvrière Magistrats, Mr. Paul Mathonnet Attorney at the Conseil d'État and the Cour de Cassation for the Syndicat de la magistrature, and Mr. Philippe Blanc designated by the Prime Minister at the public hearing of 28 November 2017;

And having heard the Rapporteur;

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE ON THE FOLLOWING:

  1. Article 5 of the Ordinance of 22 December 1958 mentioned hereinabove establishes: “The Magistrats du Parquet [public prosecutors] are placed under the management and supervision of their managers and under the authority of the Garde des Sceaux, Minister of Justice. At the hearing, they are free to speak”.

  2. The applicant labour union, together with the intervening parties, claim that these provisions infringe on the principle of the independence of the judiciary resulting from Article 64 of the Constitution, in that they put the Magistrats du Parquet under the management of the Garde des Sceaux, when these magistrates belong to the judicial authority and in this capacity should benefit, as Magistrats du Siège [members on the bench], from the constitutional guarantee of this independence. On the same grounds, they also argue that this Article 5 infringes on the principle of the separation of powers, under the conditions relating to the principle of independence of the judiciary. One of the intervening parties claims that such provisions, on the same grounds, infringe on the right to a fair trial and the rights of defence.

  3. Consequently, the priority matter of constitutionality is based on the terms “and under the authority of the Garde des Sceaux, Ministre de la Justice” mentioned in the first sentence of Article 5 of the Ordinance of 22 December 1958.

  • On the reference legislation:
  1. According to Article 16 of the Declaration of the Rights of Man and the Citizen of 1789: “A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all”.

  2. Pursuant to Article 20 of the Constitution, the Government shall determine and conduct the policy of the Nation, specifically as it pertains to the areas of the activities of the public prosecutor.

  3. The first Subparagraph of Article 64 of the Constitution states: “The President of the Republic shall be the guarantor of the independence of the judicial authority”. It follows from the independence of the judiciary, which the Magistrats du Parquet are part of, a principle according to which the public prosecutor freely exercises his legal actions, by seeking to protect public interest.

  4. According to the fourth Subparagraph of Article 64 of the Constitution: “The Magistrats du Siège are irremovable from office”.

  5. According to the fourth to the seventh Subparagraphs of Article 65 of the Constitution: “ The section of the High Council of the Judiciary with jurisdiction over judges shall make recommendations for the appointment of judges to the Cour de cassation, the Chief Presidents of Courts of Appeal and the Presidents of the Tribunaux de grande instance. Other judges shall be appointed after consultation with this section. The other Magistrats du Siège are nominated upon its favourable opinion.
    “The section of the High Council of the Judiciary with jurisdiction for the Magistrats du Parquet shall give its opinion on the appointment of the Magistrats du Parquet.
    “The section of the High Council of the Judiciary with jurisdiction for the Magistrats du Siège shall act as disciplinary tribunal for the Magistrats du Siège. When acting in such capacity, in addition to the members mentioned in the second Subparagraph, the Magistrat du Siège belonging to the section with jurisdiction over the Magistrats du Parquet.
    “The section of the High Council of the Judiciary with jurisdiction for Magistrats du Parquet shall give its opinion on disciplinary measures regarding the Magistrats du Parquet. When acting in such capacity, it shall comprise, in addition to the members mentioned in the third Subparagraph, Magistrats du Parquet belonging to the section with jurisdiction over the Magistrats du Siège.

  6. It follows from all of these provisions that the Constitution grants independence to the Magistrats du Parquet, from which flows from the free exercise of their legal activity, that this independence must be reconciled with the Government's prerogatives and that it is not ensured by the same guarantees as those applicable to Magistrats du Siège.

  • On the constitutionality of the contested provisions:
  1. The contested provisions place the Magistrats du Parquet under the authority of the Garde des Sceaux, the Minister of Justice

  2. This authority can be noticed by the exercise of the power of appointment and sanction from the Garde des Sceaux towards the Magistrats du Parquet. Pursuant to Article 28 of the Ordinance of 22 December 1958, the decrees allow appointments to be Magistrats du Parquet to be made by the President of the Republic upon the proposal of the Garde des Sceaux, after the competent section of the High Council of the Judiciary has given its opinion. Pursuant to Article 66 of the same Ordinance, sanction decisions of a Magistrat du Parquet are made by the Garde des Sceaux after the competent section of the High Council of the Judiciary has given its opinion. Furthermore, pursuant to the second Subparagraph of Article 30 of the Code of Criminal Procedure, the Minister of Justice may address to the public prosecutor general instructions on criminal policy specifically in terms of the necessity to ensure in the entire territory of the French Republic that citizens are equal before the law. Pursuant to the provisions of Articles 39-1 and 39-2 of the same Code, it is the public prosecutor's authority to implement these instructions.

  3. Pursuant to the third Subparagraph of this same Article 30, the Minister of Justice may not address to Magistrats du Parquet any instructions regarding individual cases. Under Article 31 of the same Code, the public prosecutor exercises the public action and formally requests the law be enforced with respect to the principle of impartiality to which it is bound. Pursuant to Article 33, it can freely make oral submissions as it believes to be in the interest of justice. Article 39-3 grants the Prosecutor of the Republic the mission to oversee that the judicial police investigation seeks the truth and that it is carried out, both for exculpatory and incriminating purposes, with respect to the rights of the victim, the claimant and the suspect. Pursuant to Article 40-1 of the Code of Criminal Procedure, the Public Prosecutor freely decides if it is appropriate to initiate a prosecution.

  4. Finally, it follows from the provisions of Article 5 of the Ordinance of 22 December 1958 that, before any jurisdiction, the Magistrats du Parquet are free to speak during the hearing.

  5. It follows from the foregoing that the contested provisions ensure an equal balance between the principle of the independence of the judiciary and the Government's prerogatives under Article 20 of the Constitution. Therefore, they do not infringe on the principle of the separation of powers.

  6. Consequently, the contested provisions, which also do not infringe on the rights to a fair trial, on the rights of defence or any other right or freedom that the Constitution guarantees, should be declared constitutional.

THE CONSTITUTIONAL COUNCIL DECIDES:

Article 1. - The words “under the authority of the Garde des Sceaux, Ministre de la Justice” mentioned in the first sentence of Article 5 of the Ordinance no. 58-1270 of 22 December 1958 laying down the organic law on the status of the judiciary are constitutional.

Article 2. - This decision shall be published in the Journal officiel of the French Republic and notified under the conditions provided for in Article 23-11 of the Ordinance of 7 November 1958 referred to herein above.

Deliberated by the Constitutional Council in its session of 7 December 2017, in attendance: Mr. Laurent FABIUS, Chairperson, Ms. Claire BAZY MALAURIE, Mr. Michel CHARASSE, Mr. Jean-Jacques HYEST, Mr. Lionel JOSPIN, Ms. Dominique LOTTIN, Ms. Corinne LUQUIENS, Ms. Nicole MAESTRACCI and Mr. Michel PINAULT.

Made public on 8 December 2017.

JORF no. 0287 of 9 December 2017 text no. 186

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