143RD INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSETHICS, DEONTOLOGY, DISCIPLINE OF JUDGESAND PROSECUTORS IN FRANCE
Eric J. Maitrepierre*

I. INTRODUCTION: ETHICS, DEONTOLOGY, DISCIPLINE:
THREE DIFFERENT WORDS, THREE CONCEPTS
The questions of ethics, deontology and discipline are at the core of the contemporary reflection on therole of justice. Justice only exists by the intervention of men and women who make it. There is not a country
in world which does not wonder how to make its judiciary really independent, how to make its judges andprosecutors more just and more impartial and how to strengthen their integrity. It is often a political andvery significant question, and a question of balance of power between the executive and the judiciary. That isthe case in Canada or in South Africa, in France or in Brazil, in Italy or in Cambodia: the reflection is ongoing
and must lead to new rules which meet citizens’ needs and democratic requirements. The goal is simple:
increased confidence in justice, in prosecutors and in judges.
Whatever the topic, it is always necessary to start by giving a direction to the words. We never should
forget the etymology of the words.
Ethics comes from the Greek word ta éthé that means manners or habit. The latin word (more s), means
habit, has the same signification. It underlines the idea of “ways of acting given by the use”.
1. Mores will be translated in French as “morale” and in English as “moral”.
2. Deontology standards are different from the statutory and disciplinary rules.
3. Ethics means an intention to make well, with the aim of the common good in the exercise of a task.
4. Deontology states the explicit principles which guide this intention, in facts.
5. Discipline is the sanction of the faults made when acting.
6. Ethics relates to the training of a behaviour.
7. Discipline sanctions bad acting. Discipline sanctions immediately or quite immediately a kind of “badly
making” but Ethics characterizes the idea of “to make well”. Ethics is a process.
8. Ethics serves the objectives of global improvement.
9. Discipline is restricted to intervene a posteriori and punctually.
All the difficulty is concentrated on the ambiguous position of deontology, which can have two very
different directions according to whether it is associated with discipline or is directed by ethics. In the firstcase, what is important is the will to make an instrument of control of an a posteriori individual behaviour.
It is the penal model of the infringement and the penalty which plays again, if I may say, on the disciplinary
field.
But, close to ethics, deontology standards become a source of help for a decision-maker exposed to therisks. Together, ethics and deontology create a model of desirable behaviour. Deontology is not restricted* Director of the International and European Department, Ministry of Justice, Paris, France.

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anymore to underline behaviour in a polarity fault/sanction, but becomes a reference to values. Trying tosolve this question supposes as a precondition a democratic will: to recognize an effective independenceof Justice that authorizes to assign duties to it. An assumed responsibility makes independence credible.
Without this preoccupation of a balance, deontology becomes a pure instrument of control.
Nowadays, be a judge is to be visible. No state can hide the courts. The function of judging open is tocivil society which expresses the need for justice but which wants, the other hand, to have a right to see andto criticize. Formerly founded on silence and discretion, confidence in justice finds today its justification in
the transparency of the revealed faults and the reality of the sanctions which are inflicted on prosecutors or
judges who do not act properly.
One cannot be satisfied with an exclusively disciplinary responsibility a posteriori where the power ofthe judge does not cease growing. The ethical approach implies a widened responsibility. Beside a moretransparent system of sanctions, ethics has its own dimension which concerns the standards in a situation.
The individual virtues (fidelity, prudence, honour) are found to apply either only to one individual action or
to the service of an institution.
Deontology is the science of professional duties. Is this moral or is this right? That is the question. The
word and the concept were invented by Jeremy Bentham (1748-1832), an English philosopher, representing the“utilitarian” current in philosophy. The essence of his concept is in a posthumous book, “Deontology or The
Science of Morality”.
The basic idea of Bentham is “to emphasize the ratios which link the interest with the duty in all theevents of the life”. According to him, “the duty of a man could never consist in doing what it is of his interest
not to make”. Thus, “the task of a modern moralist is to show that an immoral act is a false calculation of thepersonal interest and that the vicious man makes an erroneous estimate of the pleasures and sorrows”. It
was Bentham who forged the neologism “Deontology”.
The word “deontology” is derived from two Greek words, “deon ” (what is suitable) and “logos ”(knowledge), i.e. knowledge of what is right and suitable. Its conclusion is that “the base of the deontology is
the principle of utility. In another word, an action is good or bad, worthy or makes indignant, deserves approvalor blame, in proportion to its tendency to increase or decrease the sum of public satisfaction”.
Bentham thus estimates that deontology is a utility moral which is used to limit the need for legal
regulation. But the question still remains on the core nature of deontology. For some people, it is a moral
which is moulted in law. For others, it is a moral sanctioned by the law.

II. AN HISTORICAL APPROACH TO PROFESSIONAL DEONTOLOGY IN FRANCE
Deontology in France “met the law” when the first Code of Ethics, for medical practitioners, was createdby a regulation of 27 June 1947. What is the value of this code and those which came later on? It cannot be
doubted that it is, formally, administrative regulations: a great majority of theses “codes” are decrees of theexecutive branch of the government. But here the State, while legislating, does nothing but sanction: it is
not the State which works out. The codes are generally discussed within responsibility and leadership of theprofessional orders (in particular for health professionals). Generally these professional orders then proposethat the government gives them consistency by lawful meaus. Moreover, for lawyers, there is a paradox: forthem deontology remains essentially abstract: there is not a single word written that could be considered the
beginning of a code of conduct.
Let us be clear: deontology concerns thus the capacity of reflection of the professional bodies to which itis addressed. The codes which enact it are endorsed by the government. It is thus with this distribution oftasks that the government supervises and imposes professional deontology.
Therefore, we have to return to the definition of the word: it happens quite often today that deontology
not only includes what belongs to it naturally but also all the “professional duties”, moral and legal. Briefly,
deontology tends to be understood as additional rules that the professional must respect, whether these rules

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have a moral origin or are the result of a technical regulation. This is why it is more suitable to speak about“rights and deontology” of such professions rather than simply deontology.
In addition it should not be denied that contemporary deontology tends to move away from its normal
source to become legal, i.e. dependent on a process of control and sanctions. The result is, step bystep, a professional regulation where the government, by simplification, through its concern to arrive
at a consensus, by safety, and even by a form of demagogy, entrusts the development of deontology toprofessional organizations (authorities of the type of “the Higher Council”, professional orders, trade unions,etc.).
At the end of the process, deontology, as it is conceived in France, is a strange mixture of “soft law” and“hard morals”. In the worst of the cases, it can even be the mechanical voice of a conscientiousness having
lost any reference point to the real problems of the people to which it applies. Deontology should not sink insuch confusion.
Deontology can also exist outside of legal frameworks. In fact, it should be underlined that this slow
conquest of deontology by the law is due to an inescapable contemporary phenomenon. In a society which isaffirmed as secular, the only point of convergence ends up being the law.
The rule of law, it is a State/government which, little by little, conquers all capacities. It is the government
being introduced into all the aspects of life since it replaces Providence, chance, the conscience. As
opposed to what many legal authors write, the rule of law is not the deterioration of the Legal State but its
absolute triumph. All becomes law, all is moulted in law. A law which, to be accepted, can take on multiple
alternatives (law of the State, law of the European Union, law of the professions, etc.), which can evenaccept a certain control (Constitution, international treaties, etc.). But finally, that is law nevertheless: it isthe drift of a civil society which tends to reduce the role of morals by transforming it into rights.
However, it is certain that if any disciplinary fault is a deontology fault, any failure with deontology does
not involve a disciplinary action or an action of civil liability. The aggravated behaviour of a judge during thehearings; behaviour not confraternal of a lawyer; the lack of eagerness of a bailiff to execute an order of thecourt, certainly constitute deontology failures for which it is advisable to formulate adapted remedies. But
these remedies will be different from those which the discipline or the civil liability applies. Comparative
studies show that the various legal systems do not consider deontology and ethics in the same way.

III. REFLECTION ON ETHICS AND DEONTOLOGY OF JUDGESAND PROSECUTORS IN FRANCEIn France, the debate on deontology and responsibility of judges was renewed at the beginning of thiscentury, in particular by the installation of a Commission on reflection on ethics in the magistracy, under thechairmanship of a member of the Constitutional Council in June 2003. Several reasons justified this revival.
It was initially a question of answering specific difficulties inherent in the democracy of opinion which isours. Justice is made under the great expectation and requirements of citizens, the citizens of the rule of law,and especially, of the media. The media are capable of deeply emphasizing miscarriages of justice. It is likely
to throw discredit upon the judicial institution and to make citizens’ lose the legitimate confidence that theyshould have in the judicial system. The answer of the judges and prosecutors thus passes by a reflection
publicly shown and constructive on their own deontology.
It was then a question of reinforcing the public image of equitable lawsuits, for civil cases as for criminalcases. One cannot be unaware of the requirements that the European Court of Human Rights (in the cityof Strasbourg, in the east of France) made weigh on judges when it ruled on the requests formed against
the French State. I recall that the European Court is competent to rule on the litigations relating to theapplication of the European Convention on Human Rights. This convention, in its Article 6, provides inparticular that any person is entitled to an equitable lawsuit, within a reasonable time and in front of an
impartial judge. A citizen of a country having ratified the Convention can, after having exhausted thepossibilities for appeal in his or her country, sue before the Court his or her own government. It is the State

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which will be condemned if there is violation of the Convention, i.e. if it did not do anything, or did not makeenough effort to implement a justice which is impartial, equitable and gives decisions in reasonable time.
It is obvious that the instruments of the Council of Europe lead to a reinforcement of the subjective andobjective impartiality of judges, to the introduction of a professional duty of diligence, to the increase inprofessionalism of judges and prosecutors. The reflection on the deontology makes it possible to adapt theinternal standards to these European requirements.
It was finally a question of answering new demands of the citizens with regard to their judges. The
rule of law confers on judges an essential mission. It is certain that the rule of law, the legal safety, theprinciple of effectiveness of the rights can be ensured in a rule of law only via judges: the recourse to judges,
which since 1996 is at the level of a constitutional value in France, is a protected human right. In the same
direction, judges have increasingly important capacities: since they can control the conformity of the internallaws to the provisions of the European Convention on Human Rights, and draw aside the application from
it if necessary, judges are located even above the legislative power. This new mission, these increased
capacities, are not legitimated if they are not accompanied by an equal increase in responsibility. Of course,
it is particularly true in countries such as France where the legitimacy of the judges does not come from an
democratic election process.
The turning in the reflection on the questions of ethics is a famous criminal case known in France as the“Outreau case” (named after a small city in the North of France).
What about this case? It was a criminal case of sexual abuse of minors. Based upon the complaints ofseveral minors, in 2001, the police began an investigation of a supposed network of paedophiles. Some of the
defendants were parents of these minors. The investigation, begun with the police, was entrusted, under
the regulations of French penal procedure, to an examining magistrate. Several people were remanded incustody before the trial to avoid pressure on the minors.
Moreover, one of the defendants died in prison, probably by suicide. Several psychological experts
appointed by the examining judge confirmed the charges alleged by the children. In May and June 2004, thecriminal trial opened before the criminal court, called in France “court d’assises ”. Finally, after the hearings,
of 17 people charged:•••

Four were convicted after pleading guilty to incest;
Six were convicted but deny the facts;
Seven were finally discharged;

However, the burden of proof appeared during the hearings to be particularly insufficient. The six people
convicted made an appeal. The case was judged again in November 2005 (the French penal procedure allows
a second judgment in a criminal case in a law dated 15 June 2000). From the first days of the hearing, thecharges and the evidence broke down, following the declarations of the principal witness already convicted. She
declares that the six appealing convicted persons had not done anything. She said she had lied. Her husband
finally confirmed that she had lied. During the hearings, the psychological experts were also criticized, so muchthey appeared unprofessional. The denials of two children who admitted having lied weakened the charges
further. Finally, the decision of the criminal court was a general acquittal on 1 December 2005. The Ministerof Justice ordered an investigation into the miscarriage of justice revealed by this case. The president of the
Republic himself presented his excuses to the discharged people on 5 December 2005. It provoked very great
emotion all through the country.
A Parliamentary committee was set up to try to shine some light on the judicial miscarriage which led tothis disaster. Between 10 January and 12 April 2006, the committee heard 221 people over more than 200
hours (judges, former defendants of the case, journalists etc). As any Parliamentary committee, this one had
six months to publish its report. The committee had numerous powers, including the power to force any
person to testify in front of it. It could also have access to all the documents it wished. It was set up with 30
members, divided proportionally between the political representation in the French National Assembly.
This committee highlighted many problems concerning this case and criticized the entire system of258

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criminal investigation. It underlined:
•
•
•
•
•
•

the non-observance of the presumption of innocence;
the abuse of committal and preventive custody;
the bad quality of the psychological experts and psychiatrists;
the inexperience and the loneliness of the examining judge;
the absence of understanding of the prosecutor;
the inefficiency of the appeal procedure during the investigation.

The role of the media, which charged the defendants at the beginning of the case and supported them atthe end, was also criticized.
The report of the committee led to an important reform of the criminal procedure in March 2007. The
rights of the defendant were increased; the criminal procedure reinforced protection and control of thesecond degree of jurisdiction and created an obligation of video tape recordings of hearings by police.
Especially for the question of deontology and discipline, which concerns us, the Outreau case createdthe bases of a new approach which takes account at the same time of the need for a better training of
judges and prosecutors. High representatives of the parliament and of the judiciary suggestted working
on deontology in terms of “coding”, and for the first time suggested the possibility of citizens directly
denouncing miscarriages at the High Council of the Judiciary (CSM).
This reflection is joined not only with a reform of the criminal procedure but also by the law of 5 March
2007, with a new approach to the deontology, seen under the angle, on one hand, of the development of a“collection” of deontology obligations for judges and prosecutors, and on another hand, under the angle oftheir recruitment and initial training.

IV. A NEW APPROACH TO DEONTOLOGY: TOWARDS A CODE?
Article 64 of the constitution of 4 October 1958 states: “The President of the Republic guarantees theindependence of the Judicial Authority. He is assisted by the High Council of Judiciary (CSM). A Law isdrafted for the status of judges and prosecutors. The judges are irremovable. ”
The Parliament, at the time of the vote on the law of 5 March 2007, related to the recruitment, training
and the responsibility of judges and prosecutors, quite naturally decided, taking into account the essential
role of the CSM in the institutional framework of the Judiciary, that “the High Council of Judiciary shalldevise and publish a collection of deontology obligations for judges and prosecutors” (Article 18).
This order of the Parliament has a precise objective. But it gives the CSM any latitude to reach thatpoint. No particular requirement, no policy, no calendar are fixed.
From April 2007, the CSM set up a working group with a double challenge: reflection and drafting.
With this intention, the CSM initially took rather traditional steps of research of precedents and comparative
data, in particular of foreign countries. The CSM then engaged in a step more innovating. It started from the ideathat the wish of the Parliament to write such a collection reveals a situation in which exists, before all kinds ofother considerations, a crisis of public confidence in the justice system.
The CSM wanted to know the state of mind of judges and prosecutors but also that of the opinion. It thus
ordered two surveys at a polling organization.
These surveys have not yet been completely analysed by the CSM. They will be however extremely
useful to know which operational conclusions precisely to draw. But right now one can say that France, likeother countries, but without admitting it openly, will take the way of something that looks like a code. The
surveys reveal that judges and prosecutors have a good image of the judiciary. They are sceptics howeveron the image that French citizens have: they consider that French people are critical of their justice system.
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magistrates, since 63% of French citizens rely on their justice system.
The French people place honesty, integrity, impartiality and legality of the core of the deontologicalvalues which they require for judges and prosecutors. Up to 94% consider that the creation of a collection ofrules will improve the daily functioning of justice. Among those who know of the existence of the CSM, 84%
estimate to trust it to work out the collection of deontology obligations.
It is thus too early to know what will come out from this work but there is an obvious conclusion.
The idea has advanced, in France, for 10 years, towards what is not called yet a code but which looks likea code. It will probably not be a whole book of prohibitions or regulations. It will not be a kind of “tencommandments” nor a collection of recipes (even if France is the country of good cooking!). It will not bea text with a disciplinary vocation. It will be rather a compromise between all of these things, a mixture ofdeontology rules resulting from international texts and of conclusions - by broad topics - that exist, issued
from the disciplinary decisions published since 1958.

V. DISCIPLINE
Before speaking about the disciplinary questions in France, it is important to precisely set out the
number of judges and prosecutors in France, a country of sixty two million inhabitants.
As of 31 December 2008, the total staff of professional judges and prosecutors in courts, including theSupreme Court, was 7,817 (5,886 judges, that is to say 75.30%; 1,931 prosecutors, i.e. 24.70%), which
represents 112 judges and prosecutors (+1.45%) more than at 31 December 2007.
The number of judges and prosecutors working out of jurisdictions (i.e in the Ministry of Justice,Inspection of the Judicial Services, magistrates detached in other ministries, including at the National
Judicial Academy, magistrates in positions working abroad in international institutions) rose on this date to491.
The real number of active judges and prosecutors was thus: 8,308 (868 in the high-rank hierarchy (HH),i.e 10.45% of the body; 4,512 of the first rank, i.e 54.31% of the body; and 2,928 of the second rank, i.e
35.24% of the judicial body).
It is necessary to add to that approximately 20,000 magistrates are not professionals but work in a
temporary capacity in specialized courts like the commercial courts, the juvenile courts or the courts
regulating litigations rising from contracts of employment.
The body of professional judges and prosecutors is thus relatively not very important. Compared withother European countries, France has a lower number of judges per 100,000 inhabitants.
France:Germany:
Italy:The Netherlands:
The United Kingdom:
Spain:

11. 9/100,000
24. 5/100,000
11/100,000
12. 7/100,000
7/100,000
10. 1/100,000

For the prosecutors, France is definitely lower than the average.
France:Germany:
Italy:The Netherlands:
The United Kingdom:
Spain:

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2. 9/100,000
6. 2/100,000
3. 8/100,000
4. 1/100,000
4. 6/100,000
4. 5/100,000

143RD INTERNATIONAL TRAINING COURSE
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From all that, we can say:•••That prosecutors and judges are professionals;
That the judicial body is not very important compared to the population;
That France falls within a European average.

Let us add to that historical and sociological information. France is a country of Law and of rights but it
is not a country of judges. By saying that, I want to emphasize that justice is not a powerful political bodyand that the balance of power is not in France what it is in the United States, for example. In addition, judges
and prosecutors do not come from the bar. They are recruited via competition after having obtained a law
degree. They have a career, from approximately 25 years old, until (on average) 63 years with a hierarchicalprogression.
The question of discipline was tackled over a long period of time, with discretion. The magistracy did notwish that is evoked on the public opinion the faults made by judges and prosecutors, both in the service andoutside the service.
Therefore, since 1996, before the legislator agreed with this practice by the law of 25 June 2001, theCSM had decided that with regard to disciplinary matters that the hearings of the CSM would be public, toconform to the principles of the equitable lawsuit and the spirit of the decisions of the European Court of
Human Rights, already evoked.
In addition, the first edition of a collection of the disciplinary decisions of the CSM was published in thefirst half of 2006. The Council had decided the drafting of this work, by a will of transparency, to fight thecriticism of corporatism often conveyed against the magistracy and, finally, to inform the judges and theprosecutors of the jurisprudence regarding their duties. As it stated, the Council wanted “to allow the judges
and prosecutors to know their professional requirements, and to allow citizens to know the conditions of an
impartial exercise of justice”.
By these two series of initiatives, the Council had thus shown the importance which it intended to give tothe questions of deontology and discipline.
The publication of this work was truly a revelation. It showed that over a priod of fifty years, 201
judges and prosecutors were disciplined. It was possible to find all kinds of misconduct: paedophilia, theft,
acceptance of gifts, absence of any work, delays in addressing files, and excesses of all kinds, including inprivate life. One finds magistrates who lodge young delinquents in their residence and drive after consuming
alcoholic beverages. One finds on the other hand very few cases of corruption. When there are some, thecorruption relates to small sums and, curiously, is matched with small counterparts. All in all, the corruptersoffer little for small services.
To those who claim that J&Ps are never sanctioned for their failures, the CSM delivered a strong denial:
a book of 863 pages, in which their problems dating from 1958 are indexed (1958 was the foundation yearof the CSM). By reading that, professionals, citizens and media discovered strange cases or astonishingdecisions. Former disciplinary decisions, in particular, show that the evaluation of faults varies with time andwith a new level of conscience. What was slightly condemned twenty years ago is heavily sanctioned today.

VI. DISCIPLINARY ACTION: CONDITIONS AND PROCEDURES
The deontology questions, as I have just explained, are in full reflection. However, discipline in between
was based, for a long time, on precise rules.
As I previously mentioned, Article 64 of the Constitution of 4 October 1958 states: “The President of
the Republic guarantees the independence of the Judicial Authority. He is assisted by the High Councilof Judiciary (CSM). A Law is drafted for the status of judges and prosecutors. This law is Regulation N°
58-1270 dated 22 December 1958.
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respect the duties and obligations which appear in the regulation dated 22 December 1958 (law related tothe statute of the magistracy).
Thus, pursuant to Article 6 of the statute, any judge or prosecutor, before his or her nomination to his or
her first position, takes an oath “to well and accurately fulfil his or her functions, to maintain the secrecy ofthe deliberations religiously and to act a worthy and honest judge (or prosecutor)”.
Article 10, relating to the duty of reserve, forbids judges and prosecutors from “any politicaldeliberation”; “any demonstration of hostility to the principle or the organisation of the government of the
Republic”; “any demonstration of a political nature not compatible with the reserve that their functions
impose on them”; and “any joint action likely to stop or block the functioning of the courts”.
The statute of the magistracy also envisages a series of incompatibilities, such as prohibition on
practicing any other profession, public or private, or on holding an elective public office. Moreover, Article
43 of the statute of the magistracy defines the disciplinary fault as “any failure by a magistrate in the duties
of his or her situation and duties of the honour, scrupulousness or dignity”.
The CSM is the disciplinary authority of judges and prosecutors. The Council of State is a judge of
cassation of the disciplinary decisions pronounced by Council. Indeed, if the judges receive a warning of thechiefs of court within the framework of the hierarchical disciplinary proceedings, it is the Council sitting in
disciplinary formation which intervenes when the faults justify disciplinary continuations.
In accordance with Articles 50-1 and 50-2 of the statute, the disciplinary action with regard to judges
belongs to the Minister for Justice as well as to the first presidents of the Court of Appeal, while thedisciplinary power is exerted by the CSM. The disciplinary proceedings respect the rights of defence andthe principle of the contradictory debate. The disciplinary decisions are justified in a drafted decision andpronounced publicly during a hearing.
Article 45 of the statute draws up the list of the applicable sanctions, from the reprimand with inscription
in the administrative file of the judge/prosecutor until the dismissal with suspension of the rights to theretirement pension, but does not lay down any rule of correspondence between the faults and the sanctions.
The disciplinary actions applicable to judges and prosecutors are:1°

reprimand with inscription in the administrative file;2°

displacement;3°

withdrawal of certain specialized judicial functions;

3° (a) prohibition from appointment to the functions of single presiding judge for a maximum of five years;
4°

lowering of hierarchical level;

4° (a) temporary exclusion of functions for a maximum duration of one year, with total or partial
annulations of salary;5°

downgrading;6°

retirement or admission to cease his or her functions when the judge or the prosecutor is notentitled to a retirement pension;

7°

dismissal with or without suspension of the right to get a pension.

It should be also underlined that apart from any disciplinary action, the General Inspector of the Judicial
Services, the first presidents of appeal courts, the Attorneys General and the directors or heads of departmentsof the Ministry of Justice have the capacity to give a warning to the judges and prosecutors placed under theirauthority. The warning is automatically erased from the administrative file at the end of three years if no new
warning or no disciplinary action was taken during this period.
An innovation of the Law of 2007 was to introduce the disciplinary proceedings when the State wascondemned for operating faults. The new Article 48-1 of the statute of the magistracy states that any final
decision of a national or international court condemning the [French] State for operating faults of the judicial

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service is communicated to the chiefs of Court of Appeal by the Minister for Justice. The involved judge orprosecutor is advised under the same conditions. Disciplinary proceedings can be sued by the Minister ofJustice or the chiefs of Court of Appeal under the conditions drafted in Articles 50-1, 50-2 and 63.
Is it possible for the condemned judge or prosecutor to make an appeal? No right of appeal is expressly
envisaged by the statute of the magistracy. However, for a long time, the Council of State recognizes its
competence as a jurisdiction of cassation because the Council of State considers that the decision of theCSM comes from an administrative authority.
Obviously, there is no particular procedure as regards corruption. Corruption is not aimed at by the texts
like a specific fault opening to a specific procedure. There is no disciplinary list of the faults where the theft
would be found, as well as corruption or the absence of work. A perfect formula is drafted in Article 43 of
the statute: the fault will be “any failure by a judge or a prosecutor with the duties of his (her) condition, thehonour, delicacy or dignity”. That is the framework. But, by its jurisprudence, the CSM says the shapes andthe limits of the disciplinary faults.

VII. INITIAL TRAINING OF JUDGES AND PROSECUTORS ON QUESTIONSOF ETHICS AND DISCIPLINEFrance has a unique academy of training for judges and prosecutors called the National Judicial Academy(ENM). One enters this academy by a competition.
•

First contest: it is necessary to have a Baccalaureate plus four years’ study at a law faculty for the
candidates at the maximum of 31 years old. It is thus a competition opened to students;•

Second contest: it is necessary to have four years of public service for the candidates less than 46
years old. It is thus a competition open to civil servants;•

Third contest: it is necessary to have eight years experience in a private firm for candidates lessthan 40 years old. It is thus a competition, to summarize, open to lawyers.

From now, the recruitment, the initial training and the ongoing training of judges and prosecutors are
more structured around competences and capacities awaited from them today and in a foreseeable future.
These fundamental competences of judges and prosecutors constitute the deep mark of the recent evolutionof the Academy in its various components. Four major principles guide the activity of the Academy:•

The competition must help ascertain the capacity of trainees to acquire these fundamental
competences;•

The initial training must allow the acquisition of these competences;•

The evaluation during 31 months’ training, the examination of capability and the classification, at theend of the training, must allow the checking of the acquisition of knowledge and of know how;•The ongoing training must, in particular, allow the updating of these competences.

The ENM is a professional academy. After courses of higher training for the acquisition of an initialprofessional experiment, it has the role of preparing trainees for the duty of judge and prosecutor in the
judiciary. The objective of training developed in the ENM in its dimension of initial training is defined asfollows: “To train future judges and prosecutors in the various functions by the acquisition of fundamental
skills allowing a decision-making conforms to the law and adapted to its context, respectful of the individual
and the ethical and deontology rules, framed under its national and international institutional environment”.
The initial training lasts 31 months. It alternates courses and training courses, stages in courts, in the
penitentiary premises and in law firms, but also in private companies or international institutions such as theEuropean commission.
It is thus not an academic teaching. The judicial academy does not re-teach what is supposed to bealready learned at the Law faculty. The existence of a competition including written tests and oral tests
guarantees the knowledge by the trainees of a necessary legal background. It is a specific vocational training
which will be focused on the control of fundamental capacities.

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It should be stressed that since December 2008 tests of the contest were modified: psychological tests
have been added. This way, the jury has complementary element, in an opinion written by a psychologist,on the capacity of the candidate to acquire fundamental competences of the judges and prosecutors. This
opinion will be written after aptitude and personality tests. The aptitude and personality tests (the duration
does not exceed three hours), will comprise two types of tests:••

Evaluation of the aptitudes for communication, the relation and the vocational retraining. This test isbuilt upon tools used internationally. They will integrate an approach of the personality appreciating
five main tendencies and an approach of the main pathological tendencies;
Evaluation of the aptitudes of comprehension and reasoning logically. This second test is based on
two traditional tests of appreciation of the aptitudes for comprehension. It studies the capacities ofverbal comprehension and aptitudes to pass quickly from a mode of reasoning to another.

The discussion with the psychologist, carried out in the presence of a professional judge or prosecutor,
lasts a maximum of thirty minutes.
The thirteen fundamental abilities of judges and prosecutors to be acquired are the capacity to:
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identify, adapt and implement the deontologied rules;
analyze and synthesize a situation or a file;
identify, respect and guarantee a procedural framework;
adapt;
adopt a position of authority or humility adapted to the circumstances;
listen and to exchange information;
prepare and lead a hearing or a judicial meeting in the respect of the fair debate rules;
get an agreement or reconciliation;
make a decision, founded in law and, registered in its context, printed with good sense and direction,
and achievable;
justify, formalize and explain a decision;take into account the national and international institutional environment;
work in a team;
be organized, to manage and innovate.

The capacity to identify, to adapt and to implement the deontology rules will be studied by a collective
work in small teaching groups. Members of the CSM are often there, in particular, as teachers. What will beworked on there will be:
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Significance of the oath;
The responsibility;
The collection of the deontology rules;
Jurisprudence;
Disciplinary proceedings;
Deontology of lawyers, rules of the bar associations;
The career and the statute of judges and prosecutors.

The famous “three Is”, integrity, independence and impartiality, are discussed between the trainees andthe professors. The goal is to make an impression, on the conscience of the trainees, on the reflections, therole and the place of judges and prosecutors in the society, on the need for justice, and finally on fundamental
competences of judge or prosecutor out of technical ones.
It is thus seen, to be summarized, that recruitment is not only centred on a control of academic knowledge.
It has also as a main goal to distinguish as much as possible the professional and ethical skills of future judges
and prosecutors.

VIII. THE DIRECT ACCESS OF CITIZENS TO THE CSM
The constitutional reform of 23 July 2008 made a major innovation which tends to give a very new
approach to the questions of discipline. Indeed, from now on, the Council for judiciary can receive complaints

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VISITING EXPERTS’ PAPERS

by citizens under the conditions fixed by a law. This law is currently under discussion before the French
Parliament.
The Parliament is animated by a triple concern:•

To facilitate the exercise by the citizen of the right which is guaranteed to him or her by theConstitution to complaint before the CSM, so that the CSM can sanction the disciplinary faults
made by judges and prosecutors;•

To reinforce the independence of justice, in the spirit of the constitutional revision of 23 July 2008;•

To guarantee the impartiality of the CSM.

On the first point, the Parliament intends to support the creation of a commission of the requests incharge of the filtering of the complaints against judges or prosecutors. It would include a judge, a prosecutor
and two officials external of the judiciary. The citizen could complain before the CSM when he or she
estimates that the behaviour of a judge or prosecutor constitutes a disciplinary fault, even if the judge or theprosecutor is still in charge of the procedure.
On the second point, the Parliament wanted the judge or the prosecutor to be informed of his or her
impeachment as soon as the commission plans to examine the reality of the disciplinary fault. The material
and human resources of the CSM would be reinforced so that the council can carry out investigations. An
immediate prohibition of exercise would be eventually possible with the obligation of the CSM to answer
within 15 days.
Lastly, on the third point, the Parliament wants that the members of the CSM are subject themselves torules of independence, impartiality and integrity. It specified the conditions under which a member of theCSM must abstain from sitting at the bench because of the doubts that his or her presence or participationin hearing and decision could get influence on the impartiality of the CSM decision.
It should be stressed that the different points I evoke are under discussion by the law committee of
the National Assembly. It is too early to say which text precisely will be drafted after the parliamentary
discussion. But, at this stage of the procedure, it is almost certain that there will be very few differenceswith what I expose. It is thus towards a form of control of the activity of the judges and prosecutors. Of
course, this control will be done by an independent organization but it is an invitation to all the judges andprosecutors to have a greater vigilance and the best follow up to their work and their decisions.

IX. INTERNATIONAL PERSPECTIVES ON THE QUESTIONS OF ETHICS
A. Within the Framework of the Council of Europe
In 2002, the Council of Europe gave a mandate to the Consultative Committee of European Judges(CCJE) to give an opinion on this question of ethics. The European model of deontology which was
adopted rests on a distinction between the ethical dimension of deontology and the disciplinary approach,resulting from the statutes, oaths, rules and disciplinary proceedings existing. The CCJE considers that the
deontology must show the capacity of the profession to reflect on its function, and on the capacities which
are allotted to it.
The CCJE considers the development of a “declaration of standards of deontology” based on someessential principles, not on an exhaustive list of the behaviours prohibited to the judge which would be
defined beforehand, and which is, especially, independent of the disciplinary system. These principles of
deontology should be the emanation of the judges themselves and designed like an instrument of selfchecking of the body, generated by itself, which would make it possible the judicial power to acquire an
additional legitimacy through the awaited performance of its duties in accordance with the unanimously
allowed ethical standards. For the achievement of this objective, the CCJE recommends that the judiciaries
obtain Consultative Committees entitled to answer the interrogations of judges and prosecutors.

B. Within the Worldwide Framework
With its first meeting in Vienna in April 2000, a group of lawyers who worked for the reinforcement of
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of Bangalore. The group of lawyers from common law systems compiled the provisions of national codes of
ethics which seemed to them to have to take a lead in the international plan. A meeting of a delegation in thepresence of the special rapporteur of the United Nations with the Consultative Committee of European Judges(CCJE) led to a modification of project, taking into account the opinion of the so-called civil law judiciaries .
The Bangalore Principles of Judicial conduct were born in The Hague (The Netherlands) in November 2002.
It does not act as more than a code, but as principles which, as in Europe must tend towards the promotion of
ethics rather than the disciplinary action of professional failures (respect for suitability, independence, integrity,
impartiality, equality, competence and diligence, responsibility).

X. CONCLUSIONSIn conclusion, the response to the increased request of citizens is in the definition of rigorous professional
duties, supplied with a true deontology and disciplinary responsibility. It is by the means of a marked
deontology and a strong ethics that will be consolidated the respect in the legal institution and the credibility ofjustice.
The choice made by France is more clearly now than it was two or three years ago. The constitutionaland statutory reforms help a lot for the evolution of the question.
We have the characteristic, in France, to have chosen several legal instruments and several methods.
Separately, they do not solve the problem. But, combined together, they seem to give to the legal body more
ethics and to the citizens a greater confidence in justice:•

The recruitment is done in a more adequate way. It is accompanied by personality tests to be able todraw aside from the candidates identified like having problems of personality;•

The initial training insists more than before on all the ethical and deontology aspects;•

Throughout career, the judges and prosecutors will have access to a collection, constantly updated,of deontology obligations to which it will be able to refer for better reflecting and to wonder about
the limits of action ;•The control is also made by the citizens who will be able without excessive formalities to complain
before an independent disciplinary body. It is likely to invite the judges and the prosecutors to agreater attention with their tasks;•

The publicity of hearings on the CSM and the mediatisation of the disciplinary proceedings oblige
the CSM itself to have a great vigilance on its decisions which must respect the principles of an
exemplary State of law.

In the recent democracies, the judicial independence underlined by governments and the determinationof the professional values are the signs of membership of the rule of law: the existence of codes or collectionsof deontology principle is often the mark of a real democracy. It is certain that the judge cannot force thecitizens to respect the fundamental values of the democracy that if he or she does not respect them itself.
We can say that the judge and the prosecutor is related to the citizens by a democratic pact comprising of theparticular professional requirements founded on values such as the impartiality, independence, diligence in theimplementation of the right. Its legitimacy is related to its competence, its responsibility, and the respect ofwhat is regarded as the bases of the State of law, and either only with its official nomination and attribution ofa part of public authority. The reflexion on deontology makes it possible to consolidate this legitimacy. It is theprice to be paid for a true democracy but I am sure that you will agree with me for saying that this price is not
so high for that.

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