Dossier Essentials - A brush with the law
Samantha David explains the structure and workings of the French legal system; altogether different from its UK counterpart
As opposed to the English legal system, which is largely based on custom and precedent, in 1804 the French system was set out in the Napoleonic Code as a complete, logical structure in itself.
Overall, the code aims to protect the freedoms of French citizens while understanding that one person’s freedom ends where another person’s freedom begins. It also provides a framework for punishing lawbreakers of course, as well as an arena for resolving conflicts between citizens. It also allows those with a grievance against the administration and/or the state to be heard.
The entire modern French justice system is split in two: the ordre judiciaire deals with criminal cases and civil litigation, and the ordre administratif deals with complaints against the state. The ordre judiciaire is further split into two sections, one dealing with la justice civile and the other dealing with la justice p�nale and each branch is served by a variety of specialised courts.
The civil justice system la justice civile starts with a juge de proximit� who deals with conflicts between neighbours, complaints about nonpayment, consumer claims, and general small claims less than €4,000 (�3,714). Next up the chain is the tribunal d’instance which deals with claims worth up to €10,000 (�9,286) and conflicts arising from consumer credit.
At the top is the tribunal de grande instance, which deals with claims worth more than €10,000 (�9,286) as well as family law, for example divorce cases, child custody, inheritance claims and conflicts over property.
Still within the civil justice system, there are also a number of other more specialised courts. The conseil de prud’hommes deals with employment litigation over working or apprenticeship contracts. The tribunal des affaires de s�curit� sociale deals with claims against the social security system. The tribunal de commerce deals with litigation between one business and another. The tribunal paritaire des baux ruraux deals with litigation between landowners and their agricultural tenants.
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The other wing of the ordre judiciaire is la justice p�nale (criminal justice service) and this also starts with a juge de proximit� who deals with the most petty cases of lawbreaking. Next up is the tribunal de police which deals with criminal offences punishable by a fine. Further up is the tribunal correctionnel, which deals with offences punishable by a custodial sentence of up to 10 years in jail and/or other punishments such as financial penalties, fines and community work. The very worst crimes, those which can be punished by long sentences including a life term, are dealt with in the cour d’assises.
Appeal court All the foregoing courts are premi�re instance which means that they are where the initial, first judgment is made. If a party is not satisfied with the judgment, they can appeal to the cour d’appel, which will then look at the case again and give a second and final judgment. Since 2001, in cases originally heard in a cour d’assises, appeals may be lodged at a second cour d’assises. Finally, if there are any remaining doubts about the technical, legal merits of the case then these may be sent to the cour de cassation in Paris, but only for technical legal knotholes to be examined.
The other wing, the ordre administratif, is also served by a variety of courts, starting in the first instance with the tribunal administratif, which deals with litigation between citizens and the French administration at regional, departmental and communal level as well as in relation to disputes between citizens and publicly owned companies.
The kind of complaints dealt with include a refused construction permit, change of dwelling use, opposition to a planned motorway route, demands for compensation for damages caused by council works or other local council activities, refusal of residence permit, the expulsion of a foreigner, contested tax demands, etc. This court can also deal with inter-departmental matters.
As well as this court, there are numerous specialised ones. Among them, the commission des recours des r�fugi�s deals obviously with refugee requests. The commission d�partementale d’aide sociale deals with problems connected to claims for social help, the section disciplinaire des ordres professionnels deals with claims against professional bodies, for example.
In the deuxi�me instance, appeals from those unsatisfied by the first judgment can go to the cour administrative d’appel and finally, if there are any lingering, purely technical and legal questions, the case may go forward to the conseil d’�tat in the Palais Royal in Paris. This court, the conseil d’�tat, can also be asked to judge the legality of certain parliamentary acts proposed by the government.
There is also of course a series of courts dealing with minors. The juge des enfants deals with child protection cases and petty lawbreaking. The tribunal pour enfants deals with more serious offences committed by minors up to age 16 and the cour d’assises pour mineurs deals with serious criminal cases brought against 16 to 18-year-olds.
The age at which a minor can receive a custodial sentence in France is 13 although a report delivered in December 2008 from a committee headed up by Andr� Varinard strongly recommended reducing the age to 12, as part of a raft of reforms aimed at reducing youth offending. It is 14 in Italy, Spain and Germany, but only 10 in the UK and Switzerland. Predictably, the proposed reforms have provoked protest; as we went to print the debate was ongoing. It is expected however that the reformers will eventually win the day.
Unlike in the UK, French judges are career professionals who undergo rigorous legal training and must pass a series of competitive exams to become judges. Juries are no longer present in French courts except the cour d’assises which deals with the most serious criminal cases.
As anywhere else in the world, it is usually best to avoid going to court either as a plaintiff or a defendant. So pay all motoring fines promptly and do not drink and drive; do not assume that ignorance of the law is any excuse for breaking it and take prompt evasive action if court action looms. Many trifling problems can be resolved with a neighbourly chat and a small dose of tolerance.
If that doesn’t work, in country districts the local maire will often intervene to settle matters amicably. A lawyer’s letter setting out your suggested remedies and solutions to a problem can often do the trick and in some areas, a local lawyer can pass you on to a mediation service.
If all else fails and letting the matter drop really truly isn’t possible, but your income is modest, you can apply for legal aid (aide juridictionnelle) to pay your legal costs. Depending on your income, you can be awarded either total or partial financial help. This also depends on the case however. Legal aid is not awarded if a case is thought to have no chance of succeeding or to have been brought malevolently or frivolously. Obviously, defence lawyers are provided by the state to defendants accused of criminal acts.
In many cases, since French courts tend to concentrate on applying the letter of the law rather than entering into common practice or precedent, defendants and plaintiffs are not called to attend proceedings. Nationality hearings for example consist of a greffier (a court official or registrar) presenting a dossier to a judge, who checks it is in order and then rubber stamps it. The same is also often true of divorce proceedings.
The UK functions of a solicitor and a barrister are combined in a legal professional known as an avocat in France. An avocat will inform you of your rights, help you apply for legal aid, compile your dossier with you, prepare your court case and then present it at the relevant tribunal. If you ever had to defend yourself in a criminal case, the French state would supply you with an avocat to ensure your proper defence.
A huissier de justice performs some of the UK functions of a sheriff or bailiff. He or she enacts judgements made by the court – seizures and evictions for example. The huissier also acts as a kind of official witness to the events in court and prepares official reports on court proceedings.
A notaire is a person who can authenticate and/or witness official documents such as marriage contracts, wills and all the documentation connected with buying a house in France.
� For more information see www.justice.gouv.fr and www.conseil-etat.fr
� In cases of confusion, the tribunal des conflits decides whether a case should be heard in the civil, criminal or administrative courts.
� A jury is only used in the criminal cour d’assises. It is composed of nine French citizens, over the age of 23, who are on the electoral roll.
� The form needed to apply for free or reduced-cost legal help is available from tribunals and mairies and can be downloaded from www.vos-droits.justice.gouv.fr (click through to aide juridictionnelle).
� There are consultations gratuites d’avocat (appointments to get free legal advice) available at most tribunals. Ask at the nearest tribunal de grande instance.
� You can also get legal advice from a maison de la justice et du droit. The local mairie should be able to give you the details of your nearest one.
� The guillotine remained the official means of execution until capital punishment was abolished by Fran�ois Mitterrand in 1981. The last criminal to be guillotined in France was Hamida Djandoubi in 1977. He had been convicted of rape, kidnapping, torture and murder.