As a great sage put it, “with great power comes great responsibility”.
Many think that a magistrate is above the law… Yet, we cannot say it enough, a magistrate is above all a man, or a woman, susceptible to commit faults or reprehensible acts. So, we might as well put an end to this unbearable suspense: No, the magistrates are not above the law and their responsibility could be engaged in criminal (1), civil and disciplinary (3).
In criminal matters, it is clear. Since the law of January 4, 1993, the magistrate no longer enjoys any immunity or privilege. So it does not matter whether he commits an offense related or not to his duties, (which would be the case for acts of denial of justice, article 434-7-1 of the penal code; active or passive corruption, article 434 -9 of the penal code; or abuse of authority, article 432-4 of the penal code) he will be tried in the correctional system.
However, in matters of civil liability it is necessary to distinguish whether he committed a fault outside the exercise of his functions, that is to say in the framework of his private life (1) or on occasion. of the exercise of its functions (2).
The fault committed outside of his functions
In his daily life, a magistrate is a citizen like the others subject to the same rules and the same laws as any citizen.
For all actions relating to his private life without any connection with the exercise of his functions, such as a divorce, a dispute between neighbors, an unpaid ... He could be sued by the victim or his creditors and be sued in court like any litigant.
The only difference with the average citizen, is that he will be judged on another jurisdiction, that is to say a different court than the one where he usually exercises his functions: his case will be relocated.
This measure is not a freebie. It avoids any risk of partiality and the judges in charge of the case will not have the unpleasant task of condemning a work colleague.
The fault committed in the exercise of its functions
You might as well point out straight away that the fault will not be linked to an error of assessment on a file. If you have the impression of having been misjudged… The remedies are precisely made to punish these errors! So, no need to consider suing a magistrate on the pretext that you do not agree with his decision.
It is to avoid such dilatory, vindictive or unfounded appeals that the responsibility of magistrates for faults committed in the exercise of their functions follows a derogatory regime.
Clearly, you cannot directly turn yourself against a magistrate. As with all people working in the public service (teachers, doctors, etc.) who make mistakes in the performance of their duties, the State will have to be sued before an administrative tribunal.
The procedure appears in article 11-1 of the ordinance of 58 regulating the statute of the magistracy.
For example, suppose that during a proceeding the magistrate violates the law or applies it badly. This is the case when we place an accused in pre-trial detention when the law does not allow it for the charges.
No, no… we don't smile! It happened in Épinal in 2010! The case is interesting, because it will allow us subsequently to illustrate the unsuspected springs of the disciplinary procedure.
In this sad case, an accused spent 3 days in prison illegally (1). But for purely procedural reasons the Court of Cassation did not annul the decision (2).
A deprivation of liberty exercised illegally would seriously make it possible to initiate a liability action against the State before the administrative judge. If the magistrate's fault was accepted, the State would be ordered to compensate the victim.
According to the procedure, the State may take action against the magistrate at fault (recourse action), before a Civil Chamber of the Court of Cassation, to obtain reimbursement of the sums allocated to the victim.
Finally… in theory, because according to the latest figures (2008), 182 actions were brought against the State, and 47 concluded with his conviction for a total sum of 1, 100 euros… But no individual prosecution has been brought against the guilty magistrates!
Why ? Well it would seem that the systematic prosecutions against the magistrates would oblige them to take out professional liability insurance (insurance that the law imposes on lawyers and notaries), which in the long term… would disempower them.
All that for that, you will say to me. No sanction? While the illegality is proven? Well, we will object that the error is human ... but admit that it is difficult to pass when it comes to individual freedoms. A sad case that does not promote the reconciliation of the litigant with justice. Hence the interest in carefully examining the disciplinary procedure.
The disciplinary procedure
Article 48-1 of the organic law of March 5, 2007, provides that after any conviction, the State transmits the decision to the Keeper of the Seals who immediately notifies the heads of the Court of Appeal in order to decide on the advisability disciplinary proceedings.
Indeed, whether it is about faults detachable from his functions, or committed during his functions, it must be recognized that a magistrate prosecuted ..., it is disorder, even ... very bad genre!
So the hierarchy watches as surely as Caesar among his own. And if the attitude of the magistrate turns out to be reprehensible, disciplinary proceedings may be considered. This will have repercussions on his case and therefore on his progress.
Indeed, the magistrate is bound by oath to submit to ethical rules according to which he is required to do honor to the magistracy, day and night, and to which any breach will give rise to disciplinary proceedings.
After all, knowing the law helps to respect the principle of legality. It is an ethical rule.
Thus, in the event of illegal detention (among other things…), it seems more appropriate to exercise the disciplinary route rather than the judicial route to sanction the disregard of legal texts.
And as since 2010, the way of disciplinary proceedings against magistrates has been opened to litigants! This deserves to be studied with a lot of attention, which is why a detailed note is entirely devoted to it.
(1) A person prosecuted for driving without a license in a state of recidivism, incurred 2 years of imprisonment. The prosecutor wants him to appear immediately but the next court hearing is in 3 days. He urgently seizes the Judge of Freedoms and Detention (JLD), requests provisional detention pending trial, and… Obtains it! While to be placed in pre-trial detention (art. 143-1 and 144 of the Code of Criminal Procedure), one must incur at least 3 years of imprisonment… Yes, in the mind of the legislator, pre-trial detention, it is is for the criminal, what the devil!
(2) The Court of Cassation (Ch. Crim, May 9, 2012, n ° 10-87331) dismissed the appeal on the grounds that the orders of the JLD are not subject to appeal (article 396 of the code of criminal procedure for provisional detentions ordered awaiting the next useful hearing).