Freedom to defend oneself, publicity, fairness: the other guarantees of a fair civil trial

In a previous article, we saw the extent to which the adversarial principle is essential to guaranteeing a balanced debate before the civil courts. But a fair trial is not just about being able to respond to your opponent's arguments. Other fundamental principles, sometimes less well known but just as important, help to ensure that justice is done in conditions that respect the rights of everyone and the public interest.

This article looks at these additional guarantees: the fundamental freedom to choose how and by whom to be defended, the requirement for transparency through public access to justice, and finally the rules designed to ensure fair and serene debates. Together, these principles form an essential framework for the proper administration of justice.

Freedom of defence: choosing how and by whom to be defended

The right to defend oneself is at the heart of the trial. This freedom covers two main aspects: the right to defend oneself and the right to choose one's representative or assistant.

Defending yourself: an increasingly theoretical right?

Article 18 of the Code of Civil Procedure states that the parties "may defend themselves, except in cases where the law provides otherwise".. In theory, you therefore have the right to defend yourself, to present your arguments and to plead your case without an intermediary.

However, the reservation set out in the text ("except in cases where the law...") has become the overwhelming majority of situations before the main civil courts. Successive reforms have considerably extended the scope of the compulsory representation by a lawyer. This is now the rule before the Court of First Instance (article 760 of the Code of Civil Procedure) and the Court of Appeal. This obligation has even been extended to areas where it did not previously exist, such as before the Enforcement Judge or, for certain cases, before the Commercial Court (article 853 of the Code of Civil Procedure).

This development, motivated by a desire to professionalise and speed up proceedings, makes the freedom to defend oneself largely theoretical in many cases. Of course, even when you are represented by a lawyer, the judge still has the option of hearing you in person (article 20 of the Code of Civil Procedure), but this is only an option for the judge, not a systematic right for you.

Choosing your defence counsel: a fundamental freedom, but with limits

Whether or not representation is compulsory, Article 19 of the Code of Civil Procedure enshrines the parties' freedom to "freely choose their defence counsel, either to represent them or to assist them".. This freedom of choice is recognised as a fundamental right, essential to the effective exercise of the rights of the defence and to a fair trial (guaranteed by article 6 of the European Convention on Human Rights). The relationship of trust between the litigant and his or her counsel is of paramount importance here.

However, this freedom is not absolute and is subject to legal limits:

• Limitations linked to the status of the defender :
  • Where representation is not compulsory (for example, before the Conseil de Prud'hommes or the Tribunal Paritaire des Baux Ruraux), the law lists the persons authorised to represent or assist a party (lawyer, but also spouse, cohabitee, PACS partner, parent, union representative or approved association representative, depending on the jurisdiction - see for example article 762 of the Code of Civil Procedure or R. 1453-2 of the Labour Code). You cannot choose just anyone.
  • When the representation is the choice is restricted to professionals who benefit from a monopoly: mainly the lawyers before the Court of First Instance and the Court of Appeal, and avocats aux Conseils (specialist lawyers at the Court of Cassation and the Council of State) before these high courts (article 973 of the Code of Civil Procedure).
• Geographical limits for lawyers: postulation
  • Even if you choose a lawyer, another limit applies before the Court of First Instance and the Court of Appeal: the rule of the territorial postulation. In principle (since the amended Act of 31 December 1971), to carry out procedural acts, you must instruct a lawyer registered with the bar in the jurisdiction of the Court of Appeal where the court is located (article 5 of the 1971 Act). If your usual litigator is not from that jurisdiction, he or she will have to call on a local "postulant" colleague, except in cases where postulation has been extended (in particular at national level before the TJs since the "Macron" law of 2015, with exceptions such as seizure of property). This rule is designed to ensure a good knowledge of local practices and to facilitate relations with the court.

Open courts: transparency as a guarantee of trust

Another principle essential to democratic justice is that of publicity. The idea is that justice should not be dispensed in secret, but in full view of the public. This fosters public confidence and is a guarantee against arbitrariness. This openness concerns both the debates and the decisions themselves.

Open court: an open door to the hearing

Article 22 of the Code of Civil Procedure sets out the principle: "Debates are held in public, except where the law requires or permits them to be held in chambers".. Article 433 confirms this rule.

This means that, barring exceptions, anyone (members of the public, journalists) must be able to attend the hearing, listen to the pleadings and see how the trial is being conducted. This transparency is seen as a condition for a fair trial (article 6 of the European Convention on Human Rights), as it allows democratic control over the action of judges and encourages them to be more rigorous.

Of course, there are exceptions to this principle exceptionsjustified by the need to protect other interests :

• The law requires the council chamber (non-public hearings) to protect privacy, particularly in family matters (divorce, parental authority - see articles 248, 298 of the Civil Code, 1189 of the Code of Civil Procedure) or to protect business secrecy (article L. 153-1 of the Commercial Code). Non-contentious matters are also heard in chambers (article 434).
• The judge may decide to hold the hearing in chambers if there is a risk that publicity will infringe privacy or disturb the serenity of the proceedings (article 435).
• The parties may jointly request but the judge is not obliged to accept.

Article 446 of the Code of Civil Procedure stipulates that this irregularity must be raised before the end of the hearing in order for the case to be declared null and void, which rarely happens.

Publicising judgments: finding out what has been decided

The principle of publicity also extends to court decisions themselves. Article 451 of the Code of Civil Procedure (based on the Act of 5 July 1972) provides that "Litigation decisions are handed down in open court..

In practice, this often means that the decision is made public by its available at the court registry of the court, a procedure provided for in article 450 and deemed to comply with European requirements.

The exceptions to publicity of the judgment are similar to those for the debates: non-contentious matters, certain matters relating to the status and capacity of persons, protection of privacy or business secrecy.

This principle of publicising decisions has taken on a new dimension with the development of theOpen Data on court decisions. Following the Digital Republic Act (2016) and the Justice Reform Act (2019), court rulings are to be made available online and accessible to the public, after an anonymisation procedure designed to protect the personal data of the parties and the identity of the judges and court clerks. This is a major challenge that seeks to balance the transparency of justice with the protection of individual rights.

A calm and fair framework for debate

Finally, if justice is to be dispensed properly, debates must take place in a climate of respect and fairness.

The French language as a rule

The Ordinance of Villers-Cotterêts of 1539 and article 2 of the Constitution state that French is the language of justice in France. Decisions must be drafted in French. However, article 23 of the Code of Civil Procedure provides some flexibility: the judge is not obliged to use an interpreter if he understands the language in which a party is speaking. Specific provisions (article 23-1) also exist to ensure communication with deaf or hard-of-hearing persons (LSF interpreter, etc.).

The duty to act in a reserved manner: respect for the law

Article 24 of the Code of Civil Procedure states the obvious: "The parties must always show due respect for the law".. This applies to both words and writing, and concerns respect for the court, opponents and court officers. The judge has the power to police the hearing in order to punish breaches (calls to order, deletion of offensive writings, etc.).

Fair discussion: a standard of good faith

Although the Code of Civil Procedure does not contain an article explicitly proclaiming a "principle of fairness" for judicial proceedings (unlike arbitration proceedings, see article 1464), case law has nevertheless enshrined the idea that the judge must "respect and ensure the fairness of debates". (Civ. 1ère, 7 June 2005).

This standard of fairness can be invoked to sanction behaviour considered unfair or dilatory, for example the repeated communication of pleadings just before closing to disorganise the opposing defence.

This idea of loyalty is sometimes linked to the principle of theestoppelor "prohibition on contradicting oneself to the detriment of others". Imported from common law, this principle has been timidly recognised by the Cour de cassation (Assemblée Plénière, 27 February 2009). However, its application in French law remains very limited: it does not sanction the simple fact of changing one's mind or argument, but rather a change of procedural position that would mislead the adversary and cause him harm, revealing manifest bad faith. Its invocation remains exceptional.

A fair civil trial is therefore much more than a simple exchange of arguments. It is based on a set of guarantees relating to the freedom to defend oneself, the transparency of the judicial institution and the fairness of exchanges. Knowing these principles will enable you not only to ensure that your own rights are respected, but also to understand the legitimate expectations the justice system has of you. If you believe that one of these fundamental principles has been disregarded in your case, or if you would like advice on how to ensure that this framework is scrupulously respected, our firm is at your disposal to analyse your situation.

Sources

• Code of Civil Procedure: articles 18, 19, 20, 22, 23, 23-1, 24, 433, 434, 435, 446, 450, 451, 760, 762, 853, 884, 973, 1464.
• Civil Code: articles 248, 298, 1189.
• French Labour Code: article R. 1453-2.
• Code of administrative justice: article R. 432-1.
• French Commercial Code: article L. 153-1.
• Law no. 71-1130 of 31 December 1971 reforming certain judicial and legal professions: article 5.
• Act no. 72-626 of 5 July 1972 instituting an enforcement judge and relating to the reform of civil procedure: article 11-2.
• Law no. 2016-1321 of 7 October 2016 for a Digital Republic.
• Law no. 2019-222 of 23 March 2019 on programming 2018-2022 and reform for the justice system: article 33.  
• Constitution of 4 October 1958: article 2.
• European Convention for the Protection of Human Rights and Fundamental Freedoms: article 6.
• Cour de cassation case law: Civ. 1ère, 7 June 2005, no. 05-60.044 (fairness of debates); Ass. plén. 27 February 2009, no. 07-19.841 (estoppel).