In 2017, an investigating judge was reprimanded by the Conseil Supérieur de la Magistrature for serious malfunctions in the Outreau case. This rare decision illustrates the complex issue of judicial accountability. Our system distinguishes between the responsibility of the State and that of the judge himself. This distinction determines the remedies available to you.
Civil liability of professional judges
No direct action against the judge
You cannot take direct action against a professional magistrate. This rule protects judicial independence from potential pressure from disgruntled litigants.
The old system of directly "taking sides" against the judge has been abolished for professional magistrates. Case law confirms this unambiguously (Civ. 1re, 5 March 1980).
Your action must be aimed at the State, which alone is directly liable to you in the event of malfunctioning of the public justice service.
The restrictive concept of personal fault
A member of the judiciary's personal misconduct differs from simple service misconduct. It is essentially intentional misconduct - committed with the intention to cause harm.
The courts adopt a very restrictive interpretation of this concept. A simple error, even a serious one, does not constitute personal fault as long as it is not intentional.
This strict approach considerably limits the personal liability of judges.
The theoretical recourse action
In theory, the State has a right of recourse against a judge who is personally at fault. This action is brought before a civil division of the Cour de cassation.
This mechanism remains purely theoretical. There are no examples in French case law of the State taking recourse action against a judge.
This situation creates a gap between law and practice. Professional magistrates enjoy de facto immunity, if not de jure.
Disciplinary liability of magistrates
Disciplinary liability is the main means of punishing misconduct by members of the judiciary in the performance of their duties.
Definition of disciplinary misconduct
Article 43 of the Order of 22 December 1958 defines disciplinary misconduct as "any breach by a member of the judiciary of the duties of his office, honour, discretion or dignity".
Since the Organic Law of 22 July 2010, the following has also constituted a disciplinary fault "the serious and deliberate violation by a member of the judiciary of a rule of procedure constituting an essential guarantee of the rights of the parties, as established by a court decision that has become final".
This definition covers a variety of behaviours in the professional and private lives of magistrates.
The High Council of the Judiciary
The Conseil Supérieur de la Magistrature (CSM) plays a central role in the discipline of magistrates. It comprises two separate panels - one for judges and the other for prosecutors.
For judges, the CSM acts as a disciplinary board. Its decisions have the force of res judicata.
For public prosecutors, it issues a simple opinion, with the final decision resting with the Minister of Justice.
Possible sanctions range from a simple reprimand to dismissal, including compulsory reassignment, downgrading or temporary exclusion.
Direct referral by litigants
The constitutional reform of 23 July 2008 introduced a major innovation: the possibility for litigants to refer cases directly to the SJC.
Article 50-3 of the Statutory Order states: "Any member of the public who considers that the conduct of a member of the judiciary in legal proceedings concerning him or her is liable to result in disciplinary action may refer the matter to the Conseil supérieur de la magistrature".
This referral is made to a complaints committee, which filters out complaints that are manifestly unfounded or inadmissible.
Two strict conditions govern this referral:
- The complaint may not be lodged against a judge who is still hearing the case.
- It must be submitted within one year of the final decision.
This mechanism, which has been operational since 2011, is still little used and rarely successful.
Special cases
Attacking lay judges
Non-professional judges (labour tribunal councillors, consular judges, assessors of joint rural lease tribunals) remain subject to the adversarial procedure.
Article L. 141-3 of the Code de l'organisation judiciaire defines the cases in which a claim may be brought: fraud, embezzlement, gross negligence or denial of justice.
The procedure, defined in articles 366-1 to 366-9 of the Code of Civil Procedure, begins with an application to the First President of the Court of Appeal. Prior authorisation is required before any action can be taken on the merits.
The State remains civilly liable for the sentences handed down, unless it appeals against the judge.
The contractual liability of arbitrators
As arbitrators do not hold any public office, they are subject to ordinary civil liability law.
The Court of Cassation states that their liability "presupposes the existence of a breach of their duty of impartiality and good faith, or the commission of a personal fault that is equipollent with fraud or constitutes gross negligence or a denial of justice" (Civ. 1re, 15 January 2014).
This liability is exercised by way of a direct action against the arbitrator, without any guarantee from the State.
Current developments and debates
Post-Outreau reforms
The Outreau affair, infamous for its judicial errorshas prompted a deep reflection on the responsibility of magistrates.
The Organic Law of 5 March 2007 attempted to introduce liability for "serious and deliberate breach of a rule of procedure". However, the Constitutional Council censured this provision on the grounds that it undermined the independence of the judiciary.
A revised version was finally adopted in 2010, requiring the violation to be "established by a final judicial decision".
The influence of European law
European case law has had a profound influence on the French concept of judicial liability.
The Köbler ruling by the Court of Justice of the European Union (30 September 2003) established that the State can be held liable for a manifest breach of Community law by a national supreme court.
This case law could eventually lead to an extension of liability for the judicial activity of judges, even in domestic law.
Outlook for development
The debate remains heated between two opposing conceptions:
- Strengthening the independence of judges by limiting their personal liability
- Make them more accountable for the consequences of their decisions
A middle way is emerging with the strengthening of ethical mechanisms. The creation in 2016 of a college of ethics for magistrates illustrates this trend.
The compendium of ethical obligations published by the CSM in 2010 also represents a significant step forward.
The challenge remains to reconcile the independence of judges and the protection of the public against miscarriages of justice.
Given the complexity of judicial liability regimes, our team can guide you towards the approach best suited to your situation. Whether you needengage the responsibility of the State or to report misconduct by a magistrate, we can help you with these sensitive procedures.
Sources
- Code of judicial organisation, articles L. 141-2 and L. 141-3
- Order no. 58-1270 of 22 December 1958 on the status of the judiciary
- Organic Law no. 2010-830 of 22 July 2010
- ECJ Köbler ruling of 30 September 2003
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