The discipline of magistrates falls within the competence of the Superior Council of Magistracy (CSM).
Disciplinary misconduct, defined in article 43 of the 1958 ordinance, is established in the event of:
- Breach of ethical rules (honor, delicacy, dignity ...)
- Serious and willful violation of a rule of procedure in a decision that has become final
- Breach of deliberate secrecy and the obligation of reserve
The CSM can be seized by the Minister of Justice, the first Presidents of the Court of Appeal and the Attorneys General whenever the heads of courts notice a breach of ethical rules within their jurisdictions or that the State transmits to the Keeper of the seals a decision having condemned him to damages (for proven fault of a magistrate in the exercise of his functions).
All this looks like a fairly banal disciplinary procedure, except that ... benefiting from the side effects of the "Outreaux" turmoil, the litigant now has the right to seize the CSM on the same basis as the State and the heads of courts !
First step forward, since the law of June 25, 2001, the disciplinary hearings of the CSM are public (except in camera).
The big change came with the constitutional reform of July 23, 2008, which allows any litigant having to complain about the behavior of a magistrate to initiate disciplinary proceedings against him by seizing the CSM.
Warning ! Prosecuting a magistrate in disciplinary proceedings will not call into question the decision he has rendered. Likewise, it will not be possible to obtain his challenge a posteriori. The disciplinary does not allow a case to be re-judged by side roads.
The only question that occupies the CSM is to know if the magistrate behaved badly towards you with regard to his ethical obligations (absence of prejudices, respect for the contradictory, loyal and objective attitude, absence of connivance with a party…).
The disciplinary route is neither simple nor trivial. So before sharpening your finest feather, take a look at the filters put in place by the legislator.
1st filter: A case definitively judged for 1 year
Disciplinary proceedings cannot be initiated against a magistrate who is investigating an ongoing case. This is an essential prerequisite, otherwise you will see your application automatically rejected.
So no need to rush to your letter paper at the end of a stormy audience (except to take notes, so as not to forget anything…). We will have to wait until the case in which the incident occurred has been finally judged for at least a year.
The purpose of this measure is to protect the independence of magistrates.
A year after the proceedings have definitively ended (and all avenues of appeal have been exhausted), if the incident appears too serious to you to simply be thrown into the dustbin, then you may consider bringing the matter before the CSM.
The request must specify the name of the applicant (the applicant), the facts and the complaints with which the magistrate is charged. Once ready, you will have to overcome a second obstacle.
2nd filter: The Applications Commission
The request arrives on the desk of a Requests Commission whose role is to filter referrals. There are two committees, one for requests concerning judges and one for prosecutors.
These commissions are made up of 2 professional judges and 2 people from civil society appointed for their merits to sit on the CSM. The members of these Commissions who investigate the case will not sit at the disciplinary hearing.
If the Commission decides on the merits of the prosecution, it refers the matter to the CSM within two months.
From there, the procedure will normally follow its course, regardless of whether it is the litigant, the heads of the courts or the Keeper of the Seals who seized the CSM (Article 51 and following of the 1958 ordinance).
The magistrate concerned will be suspended throughout the investigation. The suspension decision falls to the CSM for a magistrate of the seat and to the Keeper of the Seals for a magistrate of the public prosecutor's office.
The prosecuted magistrate may be assisted by a lawyer and have the file communicated.
Disciplinary procedure for magistrates
It begins with the appointment of a rapporteur in charge of investigating the actions of the magistrate. He proceeds to hearings and conducts necessary and useful investigations (but these are not investigative powers like the police, he does not hear witnesses, just the people concerned), which leads him to go there ( in jurisdictions) to assess the situation.
He then makes a report which will be read at the hearing and the disciplinary formation will pronounce a sanction in a reasoned decision.
As this is a judicial decision, the magistrate concerned may lodge an appeal on points of law before the Council of State.
Disciplinary procedure for public prosecutors
The disciplinary formation of the Public Prosecutor's Office appoints a rapporteur responsible for carrying out investigations, hearing the persons concerned and making a report. The formation issues an opinion on the sanction it deems the most appropriate and proposes it to the Minister of Justice.
Indeed, the prosecutors being subject to their hierarchy, it is the Keeper of the Seals who will decide on the sanction to be applied.
As this is a decision rendered by the Minister, any dispute must be brought before the Council of state by following the Excess of Power Recourse procedure.
The penalties incurred may be the following (followed by the number of times they were pronounced between 1959 and 2009):
- The reprimand with entry in the file (19)
- The automatic displacement (37)
- Withdrawal of certain functions (3)
- Withdrawal from office with automatic displacement (24)
- The ban on being appointed to the functions of a single judge (1)
- Lowering one step (2)
- Lowering of step with automatic displacement (5)
- Temporary exclusion (maximum of one year - without treatment) (0)
- The demotion (1)
- Automatic retirement (24)
- Revocation (18)
Apart from any disciplinary action, the general inspectorate of judicial services (the super police of the justice police!), The first President of a Court of Appeal and the Attorney General, can give warnings to magistrates. These warnings will be erased from their file after three years (if during this period of time no new facts were accused).
Cases giving rise to disciplinary sanctions
To get a clear idea of the cases submitted to the CSM sitting in disciplinary matters which, it should be remembered, are now public, we offer you this little anthology:
- Perverse sexual behavior (Decision P1 (prosecution) of January 14, 1959, Collection of disciplinary decisions of the CSM)
- Debts following a disproportionate lifestyle in relation to the magistrate's income and failure to pay alimony (Decision S (seat) 13 of June 21, 1962, Collection of disciplinary decisions of the CSM)
- Tumultuous bond a magistrate who required the intervention of the police placed under his authority (Decision S (seat) 79 of July 20, 1994, Compendium of disciplinary decisions of the CSM)
- Theft and frequentation of prostitutes (Decision of July 11, 2007, CSM activity report for 2007, p. 203)
- Loan of large sums (to repay gambling debts) obtained from a person the magistrate had tried a year earlier in correctional (Decision S (headquarters) 223 of January 21, 2015 on the CSM website)
It emerges that the magistrates were men and women like the others ...
All the decisions can be consulted on the site of the Superior Council of Magistracy which, after the legal earthquake caused by the Outreaux affair, (yes, again…) has demonstrated transparency and modernity by making it accessible to every citizen all of his activities.