In connection with the General Assembly of AEAJ in Lisbon the Working Group Independence and Efficiency will discuss the system with lay participation in the Administrative courts. We will therefore ask a representative from each country to give an oral representation at the WG meeting based on the following questions:
1°) Do you have lay judges in your countries? ( If not: 1. What is the reason for this? 2. If your country has lay judges in general courts you may describe that system instead.)
2°) In what kind of courts? Which instances?
3°) How are the lay judges nominated? Politically or in other ways?
4°) How many lay judges serve in the same bench?
5°) What is the purpose with the lay judges? (To represent the public, to possess local knowledge, to have special competence, other?)
6°) Do they swear an oath?
7°) Do they have an individual vote?
8°) Can they overrule the professional judge?
9°) Is there any discussion going on in your country concerning the role of the lay judges?
10°) What is your personal experience of working with lay judges?
11°) Do you have others, besides the professional judges, who may take part in the adjudication process, like experts in different fields?
1°) Do you have lay judges in your country?
Yes, not in administrative courts, only in some ordinary courts. But it is very interesting to study this topic also about France, not only the practice but mainly the theory.
2°) If not, what is the reason for this?
It is possible to explain the absence of lay judges in administrative courts in France by important historical reasons.
The French administrative courts system is completely separated from the ordinary courts. This separation is a very important principle in France, which have a constitutional value. And it is quite inconceivable to imagine that lay judges would be involved in the control of the executive and other public authorities (review of acts, liability, taxation, litigations, elections).
The activity of the administrative courts were originally made by the administration itself. And the administrative judges were high civil servants (the members of the Council of State still have this statute).
If the principle of separation of the administrative and judicial authorities originates in the edict of Saint-Germain-en-Laye of February 1641, it was established, in its modern accepted meaning, by the revolutionary law of August 16 and 24, 1790. The creation, in Year VIII (1799), of the councils of prefecture and the Council of State, heir of the king’s council, completed the birth of French administrative justice. The French administrative court system has been built from the Council of State. The history of the Council of State and its evolution explains the evolution and the current characteristics of administrative justice in France.
The Council of State originates from the 13th century. The kings, who had the power to dispense justice and hand down judgments as the court of last resort, delegated this judicial power to royal courts and “parlements”. But the French king still retained the power to override them at will. Specifically, French kings maintained their privilege to decide major issues and hand down judgements when administrative acts were in dispute. The judgments of the King’s Council of State were regarded as being issued under the King’s residual proper jurisdiction (justice retenue), that is, the sovereign’s reserved power to dispense justice in certain matters.
The jurisdictional dualism rests on a specific conception of the state and the separation of powers and the purpose of the administrative court on the principle that ”to judge the administration is still to manage the administration”. This is the principle of separation of administrative and judicial authorities, which is the basis for the jurisdiction of administrative courts and not the separation of powers.
3°) Do you have others, besides the professional judges, who may take part in the adjudication process, like experts in different fields?
It is important to describe about the administrative courts system two other situations.
a) Inside the system of the Administrative courts: a sort of exception with the National court for asylum law
The National court for asylum law (Cour nationale du droit d’asile) is the French administrative court set up to review appeals from decisions of the National agency for Asylum (Office de Protection des Réfugiés et Apatrides - OFPRA), granting, refusing or withdrawing refugee status and subsidiary protection.
The Article L 731-1 of the French law code for rights of foreigners states: "The Commission on Refugee Board is an administrative court, under the authority of a president, a member of the Council State appointed by the vice president of the Council of State."
The chamber is chaired by a professional judge (or honorary), assisted by two assessors who are qualified persons.
One of the assessors, the "UNHCR assessor", seated to the left of the President and to the right of the rapporteur, is appointed by the United Nation Refugee Agency. This mechanism is not contrary to the principle that the judicial role acting "on behalf of the French people" can not be entrusted to a foreign body.
The other assessor, the «OFPRA assessor", seated at the right of the president and the secretary left) is a qualified person appointed by the Vice President of the Council of State on a proposal from one of the ministers represented in the board of OFPRA.
b) The Administrative committees
Administrative judges are presidents of many administrative committees which are not courts. Their composition consists of representatives of professions and administrative authorities. These committees are usually searching an amicable settlement in order to avoid litigation proceedings before an administrative court.
The most important is the departmental committee on taxes.
It occurs when disagreements persist between the administration and the taxpayer. Its role is to advise and to try to find a consensus between the administration and taxpayers (Article 59 of the code about Tax Procedures). This commission which is not a court is looking for a consensual solution to avoid future legal actions.
Under Article 1651 of the Tax Code: “The provincial board of direct taxes and taxes on sales is chaired by an administrative judge. It also includes three taxpayer representatives and two representatives of the administration having at least the rank of inspector. One of the representatives of taxpayers is an accountant. The chairman of this commission has a casting vote.”
3. If your country has lay judges in general courts, you may describe that system instead
20 000 lay judges are acting in certain specialized courts belonging to the ordinary courts system.
a) In civil courts
Lay judges are judging commercial and labor disputes.
Members of the commercial courts, known as “consular judges”, are elected by their peers as well as a complex two-stage procedure. This method of appointment gives those judges legitimacy on their experiences in commercial matters.
The judges of commercial courts are business men. They are designated by a two-stage election with their peers. The judges are elected by an electoral college composed of delegates consular and judges or former judges of the commercial court. Consular judges are themselves elected by and from the merchants which are on the register of commerce and companies. Those judges are elected for a period of four years. They can make up to four consecutive terms. They receive legal training provided by the National School of Magistrates.
Similarly, members of labour courts (Conseils de Prud’hommes) are appointed at professional elections held nationwide, every 5 years. If this method of electing councilors prud’homaux gives some representation, it does raise an issue under the requirement of impartiality. The labor judges are elected in two colleges: by the employees on one hand, and by the employers on the other. Each "college" (employers and employees) elects the same number of councilors.
b) In criminal courts
French criminal justice gives place to the jury: this system leads to entrust temporarily the power to judge to ordinary citizens. This method of appointment is based on a mystical principle: the jury embodies national sovereignty, which allows justice to be directly made by the people. The jury’s role is limited however in the French system in the judgment of the most serious offenses under the Assize Court (cour d’assise).
In the “Cour d’assises”, there are nine (in first instance proceedings) or twelve (in appeal proceedings) jurors sit around three professional judges. The judges’ opinion adds up to the one of the jury to definitely convict the defendant, with a majority of seven (in first instance) or nine (in appeal) needed in order to convict the defendant. During these procedures, judges and jurors have equal positions on questions of facts, while judges decide on questions of procedure. Judges and jurors have also equal positions on sentencing.
Finally, certain specialized courts have lay judges among their assessors appointed temporarily to the performance of their duties: the Juvenile Court consists of the following addition of a professional judge and two assessors appointed for four years by the minister of justice according to their interest in children’s issues and their competence in this field.