France’s Proposed Legal Reform Concerning Investigating Judges

by Eileen Servidio, Ph.D.

Posted July 10th, 2010

I feel confident that many of you are perplexed reading French news concerning a proposed governmental project to eliminate what is referred to in France as the investigating judge. In a very schematic manner, I will try to clarify the issues involved.

President Nicolas Sarkozy and his Justice Minister, Michèle Alliot-Marie, have set about restructuring the French justice system. One of the most controversial items in their plan is the elimination of the investigating judge. Although their enthusiasm in this endeavor seems to have withered, because of opposition to the project and other items on their agenda having taken priority, the project has not been scraped.

The French justice system is what is referred to as “inquisitional” in opposition to the American system which is “adversarial”. But what does this mean practically? In very simple terms it means that in France magistrates (judges) run the show. The judge in the United States is more a “referee” and believes that allowing the parties to “fight it out” more or less on their own is the best way of getting to the truth. Whereas in France a neutral judge controlling the proceedings is esteemed much more efficient; the parties having only a minor role to play.

Before running through the procedure one must first know that in France prosecuting “attorneys” are not lawyers but judges, or if you like magistrates. The investigating magistrates are also judges. These individuals have the exact same formation as any judge in France and they can change functions; that is to say a prosecuting judge (called a standing judge since he stands when he speaks in court) can become a trial judge (called sitting judge since he is allowed to sit while speaking in court). Or vice-versa. In other words, the prosecutors, the investigating magistrates or judges and the trial judges are all in the same profession---they are not attorneys, they are truly judges. Now if one does not understand this, it is almost impossible to understand the French criminal procedure. Adding to this is that they are neither appointed nor elected to be judges. They have to pass an exam and they become judges for life, and this sometimes at a very early age. They are not expected to be nor have they usually been practicing lawyers before.

What generally happens once a crime has been discovered and the police find a suspect and decide to continue the proceedings is that the prosecutor (a judge) takes over the investigation. However, in cases of very serious crime or in cases of a sensitive matter (those for example concerning complicated financial affairs or people in the government) an investigating judge is called in to lead the investigation. This only happens in a small percentage of cases. I have seen statistics speak of anywhere from 4 to 6%.

The elimination of the investigating judge--which is creating much opposition--would mean that the investigation of virtually all cases would be in the hands of the prosecuting judges.

Since they are both judges, one could ask what difference it would make. Actually, rather a lot. Investigating judges are independent. They do not take orders from the political hierarchy. Prosecuting judges are not independent and do take orders from the government. They represent the State in criminal cases. So that in sensitive matters, for example, those that concern a political figure, they could be influenced not to proceed in a case. Of course, any judge in any function can be influenced. However when one’s career is hanging on a decision, the influence can be difficult to ignore. Even more troublesome is the fact that, since prosecuting judges are not independent, they can be given directives that they are obligated to follow. Thus, an investigation controlled by politicians and not judges. The danger in this is so obvious that no more need be said.

This explanation does sound as if I am personally against the reform. And that is true. However, I do believe that a reform is necessary. Perhaps coming from an Anglo-Saxon legal background prevents me from admitting that a 26-year-old (or younger) graduate fresh out of judge school, having no real experience except some internships, could have the proper experience to investigate a serious affair or to judge a case properly. I believe that inexperienced judges should always be working in cohesion with experienced magistrates.

Getting rid of the investigating judges poses no problem in my opinion. However, if the prosecuting judges are to take their place then it is not only desirable but essential that these judges become entirely independent from all governmental influence--something that is not in the reform even though some safeguards are proposed.

I also think, as the reform suggests, that the parties in the affair should have more power over the proceedings. Nevertheless, I would not go as far as the American adversarial system since often this means that your case is as good as your lawyer which has nothing to do with getting at the truth but everything to do with winning or losing.

A neutral, independent, experienced judge or commission of judges should produce a fairer system than that which exists at present in France and in the United States. Call the judge what one likes, but verify that he/she has the qualities necessary to judge intelligently at all the stages of the proceedings.

This editorial expresses the opinion of the author. It does not reflect the opinion of the American Graduate School in Paris.