Emmanuel Macron opens the file on the responsibility of magistrates and disciplinary procedures, without taking the risk of pointing the magistrate, scalded by the appointment of Eric Dupond-Moretti as keeper of the seals. The Head of State seized the Superior Council of the Magistracy (CSM), as the Constitution allows it, to ask for an opinion before legislating probably in the fall. “I would be grateful if you would give me your opinion, on the one hand, on the possibility of better apprehending the professional insufficiency of the magistrate in his judicial office, while respecting the principle of independence, and on the other hand, to make the system for complaints by litigants more effective ”, wrote the Head of State in the letter that The world was able to consult.

As early as 2017, Mr. Macron said he was in favor of a constitutional reform strengthening the guarantees of independence of the prosecution … and, at the same time, the strengthening of the implementation of the accountability of magistrates. “It is a question of trust and legitimacy in justice”, he wrote in this exceptional referral to the CSM, the institution responsible for ensuring the ethics of magistrates and the independence of the judiciary.

Only three complaints from litigants in six years have given rise to a referral to the disciplinary formation … which did not impose a sanction

One of the innovations of the constitutional reform of 2008 was precisely to allow litigants to complain about the behavior of a magistrate. The goal is missed. Of the approximately 1,700 complaints submitted to the CSM from 2015 to 2020, most were dismissed as inadmissible, the others being deemed unfounded. One of the difficulties is that a lot of people go to the institution thinking they can challenge a judge’s decision. However, apart from appeals (appeal, cassation), calling into question a judicial decision would undermine the independence of the judge guaranteed by the Constitution. In the end, only three complaints from litigants in six years gave rise to a referral to the disciplinary body… which did not impose a sanction.

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Lack of evidence

For their part, the first presidents of appeal courts hardly ever use their power to denounce to the CSM facts justifying possible disciplinary proceedings. In practice, the latter only rules on cases referred to it by the Minister of Justice. The procedure is then transparent with regard to citizens, since disciplinary hearings are public and announced several weeks in advance on the CSM’s website, whose decisions are then posted online. In 2020, there were seven, for a population of more than 8,000 magistrates.

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