Court of Cassation (France)

The Court of Cassation (Cour de cassation in French) is the main court of last resort in France. It has its seat in the Paris Hall of Justice.

The Court judges final appeals with respect to the "normal" system of justice, excluding cases of administrative justice, which go before the Conseil d'État.

Organization

The court itself comprises the judges, the prosecution service and the administrative staff. In addition, there are lawyers admitted to practice at the bar of the Cour de cassation.

Judges and Chambers

In total, the Court includes about 85 judges (conseillers) and about 40 assistant judges (conseillers référendaires). The are assigned to six different chambers (chambres):

• First Civil Law Chamber (première chambre civile) (dealing with issues relating to professional organizations, individual rights, copyright and contracts)
• Second Civil Law Chamber (deuxième chambre civile) (divorce, malfeasance and civil procedure)
• Third Civil Law Chamber (troisième chambre civile)(property and urban affairs)
• Commercial, Economic and Financial Law Chamber (corporations, bankruptcy, commerce, banking and patents)
• Social Law Chamber (chambre sociale)(labor, worker compensation and social security)
• Criminal Law Chamber (chambre criminelle) (penal law)

Each chamber has a chief judge called the President. The entire court is headed by a chief judge called the First President. The First President, the highest judicial officer of France, has responsibilities relating to administering the courts and disciplining judges. The current First President is Guy Canivet.

There is, in addition to the six chambers, a Mixed Chamber (chambre mixte). The Mixed Chamber includes the First President and also a number delegates from at least three different chambers whose responsibilities are covered by the case in question. Each participating chamber is represented by its President, its most senior judge and two other judges.

Finally, there is a Full Assembly of the Court (Assemblée plénière). It is made up of the First President and the President, senior judge and one other judge from each of the six chambers. The Full Assembly is the highest division of the Court.

Prosecution service

The parquet général is headed by the Chief Prosecutor (procureur général). The Prosecutor is a magistrate, but does not actually try cases (his role is to give legal advice to the Court, in a similar manner to the Commissioner of the Government of the Conseil d'État). He brings cases to the Court "in the name of the law." He may also bring cases before the Court of Justice of the Republic (Cour de justice de la République), which tries government officials for crimes committed while in office. The Chief Prosecutor is aided by the First Prosecutor (premier avocat général) and about 22 Prosecutors (avocats généraux).

Bar

The lawyers (avocats), while not employees of the Court and not technically part of it, play an important role in the correct application of justice.

With the exception of a few categories of litigation, it is compulsory to use an avocat when referring matters to the Cour de Cassation or the Conseil d'État. Lawyers permitted to practise before those high courts are known as avocats au Conseil d'État et à la Cour de Cassation or avocats aux Conseils. Admission to this order (bar) is particularly difficult, with special classes and a hard exam. The role of these specialized lawyers includes advising litigants on whether their pleas are admissible, especially considering that cassation cases only review points of law and not points of fact.

Proceedings

The main role of the Court is to reverse or affirm judgments of lower courts on points of law. As the highest court in France, it also has other duties.

Appeals

Appeals (called pourvois en cassation) are taken from the Cour d'Appel (court of appeal), except for certain small claims where it is impossible to go to the Cour d'Appel. The Court of Cassation then has the sole power of confirming or overturning lower appeal court decisions – it is said to "quash" (casser) them, thus an overturning is called a "quashing" (cassation).

Unlike the Cour d'Appel (which can entertain appeals on the ground that the lower court made incorrect factual findings), the Court of Cassation decides matters on questions of law or questions of procedure, not questions of fact.

Lower courts can ask for the opinion of the Court early in the proceedings, on a point of law which is new and complex; in this case, the opinion will not be binding.

A case is heard by a panel of three or five judges from the appropriate chamber. In civil cases, there are three judges unless the First President or the President of the chamber orders five judges to sit on the panel. In criminal cases, three judges are used; again, the First President or President of the chamber may demand the use of five judges. Additionally, any one of the three judges originally assigned to the panel may order an expansion of the panel to five judges. If the matter involves the responsibilities of multiple chambers, the President may order the Mixed Chamber, rather than a panel, to review the case.

The Court of Cassation can affirm the earlier decision (rejet du pourvoi, dismissal of the appeal) or annul it ("cassation"). Annulment may be on part of the decision only (cassation partielle). Sometimes, the Court may overturn a lower court decision and decide the case itself (cassation sans renvoi), if all the facts necessary for such a decision are on the record.

When overturned, the case is remanded to one of the Cours d'Appel, usually not the one which decided it previously, and never with the same judges. The decision of the panel or Mixed Chamber is not binding, however; the Cour d'Appel, which may decide the case as it pleases (but the decision of the higher court has a persuasive value). The decision of the Court of Appeal may again be appealed to the Court of Cassation. In this case, the Full Assembly of the Court hears and decides the case; it may, again, confirm an earlier decision or quash it and remand the case to the Cour d'appel. In the latter case, the determination of the Full Assembly on points of law is binding; the actual facts, however, may be reviewed by the court retrying the case.

The decisions of the court are extremely brief, citing the facts of the case, the relevant codal or statutory texts and a statement of the decision; there is no ratio decidendi or reasoning included in the judgment to guide in the interpretation of the decision, as is typical in common law jursidictions. It is left to doctrinal writers to explain the import of these decisions. The court often drastically changes the way the Civil code or other statutes are interpreted. There are legal reporters such as the Recueil Dalloz and treatises written by legal scholars where judgments are analysed and explained in the context of prior decisions. Much of this information is available through on-line database services as well.

Where no appeal is made but the government disagrees with the interpretation of the law in the lower court, it may order the chief prosecutor to "appeal to the Court in the interest of law" (former un pourvoi dans l'intérêt de la loi). The chief prosecutor may also do this by himself or herself. This may be done in both civil and criminal cases. The Court will then state the law. However, since the lower court judgement was satisfactory to all parties involved (as they chose not to appeal it), it will be enforced unchanged.

If the government is dissatisfied with the law as stated by the courts, it may ask the parliament to rewrite the law (as long as no constitutional question is involved).

Unlike common-law jurisdictions, there is no strict adherence to stare decisis in France (and most other civil law countries). The precedents of the Court of Cassation are not binding on lower courts when they hear another case, but they are often followed. The doctrine that judges should follow such higher level cases is known as jurisprudence constante.

The most serious criminal cases (felonies, French crimes) are tried by jury in the Cour d'assises (one in each Département). In the past, their decisions could not be appealed to a Cour d'appel, and until January 1, 2001, could only be appealed to the Court of Cassation, which would review the case on questions of procedure and law only, and when overturning, which was uncommon except for capital cases, choose another Cour d'assises to rehear the case. An argument for this situation was that allowing appeals to professional judges after a ruling by a popular jury would in essence deny popular sovereignty. Since 2001, Cour d'assises decisions may be appealed on question of fact to the Cour d'assises of another Departement, which the Court of Cassation will choose, with an extended jury. The case will then be fully retried. Appeals to the Court of Cassation are still possible on procedural questions, jury-based Cours d'assises not being the fittest place to hear them.

Other duties

The Court publishes a yearly report on justice in France. The report includes a section on suggested changes of legislation concerning justice, including criminal procedure.

The Court orders compensation to innocents who have been sent to jail or prison.

Some high level members of the court are de jure members of special ad hoc courts, the investigation commission of the High Court of Justice (Haute Cour de Justice), which may be convened to judge the President of the Republic for high treason, the Court of Justice of the Republic (Cour de Justice de la République), which may be convened to judge ministers or ex-ministers for crimes committed in the course of their official duties, and the Conseil supérieur de la magistrature, the disciplinary court of the judiciary. The High Court of Justice has never been convened in the Fifth Republic and the Court of Justice of the Republic only rarely.

Other courts

The Court of Cassation is not the only court of last resort in France. Cases against the state or local authorities, including all decisions from the executive branch, are heard by different courts (tribunaux administratifs) and the court of last resort in those cases is the Conseil d'État which also has other, non-judicial, duties. In cases where there appears to be a conflict between the judicial and the administrative orders of courts, whether both want to act on a case (positive conflict) or refuse to act, thinking the other is competent (negative conflict), the Tribunal of Conflicts (Tribunal des Conflits) decides on the issue. It is composed of 4 members from each high court, and sometimes (usually only in the case of a tie vote) the Minister of Justice, who would preside.

Neither of these courts has the power of judicial review over statute law – essentially, laws voted by the Parliament (except in case of unconventionality). Another body, the Constitutional Council, has that power; it is not a court and does not hear cases. Before the law is enacted, the President of the Republic, the president of either house of the parliament, or, more commonly, 60 members of parliament from the same house may ask for a review. Some laws, mostly pertaining to the organization of government (loi organique), come before the conseil constitutionnel for review without anyone asking. There is no review after a law has been enacted. In particular, there is no review of laws enacted before the present constitution came into effect, in 1959. However, courts may take a restrictive view of the application of statutes.

Appeals against decisions of the French judiciary may be taken to the European Court of Human Rights. Occasionally the courts may also request the opinion of the European Court of Justice with respect to the laws of the European Union.

See also

• Cour d'assises
• Justice in France

External links

• Official site
• Cour de cassation cases (English translations)