The Cour de cassation is the main court of last resort in France. It has its seat in the Paris Hall of Justice. Belgium (Cour de cassation in French and Hof van Cassatie in Dutch), Senegal and other francophone countries have similar highest courts.
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2 Organization 3 Other courts 4 External link |
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 or reasoning that is stated in the judgment to guide in the legal interpretation of the decision as is common in most common law jursidictions. It is left to doctrinal writers to explain the import of these decisions. The court often drastically change the way in which 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 analyzed and explained in the context of prior decisions. Much of this information is available through on-line database services as well.
Unlike the case law decisions of common law courts, the Cour de cassation can only confirm the earlier decision, (rejet du pourvoi, dismissal of the appeal) or overturn it ("cassation", annulment). Annulment may be on part of the decision only (cassation partielle, partial annulment). 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. However, the highest court decision does not bind the Cour d'Appel, which may decide the case as it pleases (while the decision has of course a very strong persuasive value). The decision of the (second) Cour d'Appel may come again to the Cour de cassation. The Cour de cassation will convene in assemblée plenière (in bench) to hear the case. If overturned again, the decision of the Cour de cassation is then binding to the third court of Appel that will hear the case. Sometimes, the Court may overturn a lower court decision and decide the case itself (cassation sans renvoi), if the facts as stated by the lower court allows it (e.g if with those facts, the court decides that no tort has been done, contrary to the finding of the lower court the case will not be remanded; if the Court decides, contrary to the lower court that a tort has been done, the case will be remanded, at least to decide the damages). The Court may also, where a point of European Law is involved, request the opinion of the European Court of Justice; such opinion is binding. Third parties not involved in the cases, but with a genuine interest in its oucome may also appeal to the Court in civil, but not criminal, cases.
When no appeal is made and the government, while without an interest in the case, disagree with the interpretation of the law in the lower court, it may order the chief prosecutor (see below) to "appeal to the Court in the interest of law" (former un pourvoi dans l'intérêt de la loi). The chief prosecutor may do it by itself too. 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. Note that if the government is dissatisfied with the law as stated by the courts, it may ask the parliament to rewrite the law. No constitutional question is involved here.
Unlike common law jurisdictions there is no strict adherence to stare decisis in France, nor in most civil law countries. The precedents of the Cour de cassation are not binding to lower courts when they hear another case. Yet 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 Court of Appels, and until January 1 2001, could only be appealed to the Cour de cassation, which would review the case on procedural questions 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 Cour de cassation will choose, with an extended jury. The case will then be fully retried. Appeals to the Cour de cassation are still possible on procedural questions, jury based Cours d'assises not being the fittest place to hear them.
Some high level members of the court are de jure members of special ad hoc courts, the High Court of Justice (Haute Cour de Justice), which may be convened to judge the President of the Republic for high treason, and the Court of Justice of the Republic (Cour de Justice de la République), which may be convened to judge ministers oror ex-ministers for crimes committed in the course of their official duties. The High Court of Justice has never been convened in the Fifth Republic and the Court of Justice of the Republic only rarely.
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. Attorneys admitted to pleading before those high courts are known as avocats au Conseil d'État et à la Cour de Cassation or avocats aux Conseils. Their role includes advising litigants on whether their pleas are admissible, particularly that cassation cases only review points of law and not points of fact.
Neither of these courts has the power of judicial review over laws voted by the parliament. Another body known as the conseil constitutionnel has that power and, which technically, is not a court; it 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, sixty members of parliament from the same house may ask for a review. Some laws, mostly pertaining to the organisation of government, and called loi organique comes 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 law enacted before the present constitution came in effect, in 1959.
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.
Cour de cassation cases (English translations)Proceedings
The main role of the Court is to infirm or confirm judgments of lower courts on points of law; as the highest court in France, it also has other duties.Cassation
Appeals (called pourvois en cassation) are taken from the Cour d'Appel (Court of Appeal), except for some really small claims where it is impossible to go to the Cour d'Appel. The court, which is a large, almost legislative body in style, has the sole power of confirming or overturning lower appeal court decisions - it is said to "break" them, in French casser, thus an overturning is called a cassation. Furthermore, it judges matters according to points of procedure ("Did the lower courts follow the correct procedure?") and law ("Did they interpret law correctly?"), not on points of fact (while the Courts of Appeal do judge on fact as well as law; basically they retry cases). Lower courts are also allowed to ask for the opinion of the Court early in the proceedings, on a point of law which is new and complex. The opinion will not be binding. Other duties
The Court publishes a yearly report on justice in France; it also orders compensation to innocents who have been sent to jail or prison.Organization
The court itself comprises the judges, the prosecution service and the administrative staff. In addition, there are attorneys admitted to practice at the bar of the Cour de cassation.Judges
The Court is divided into 6 divisions, or chambres:
Each division is headed by a president (président). In addition, the Court itself is headed by the "first president" (premier président), currently Guy Canivet.Prosecution service
The parquet général is headed by the chief prosecutor (procureur général).Bar
The attorneys (avocats), while not employees of the Court and not technically part of it, play an important role in the correct application of justice.Other courts
The Cour de 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 the two 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), made of 3 members from each high court, and, if necessary, presided by the Minister of Justice, decides on the issue.External link
