Judges
Judges are responsible for stating and applying the law by making court decisions. Whilst performing their duties judges remain seated, so they are often referred to as the ‘sitting judiciary’.
During a trial, their task is to settle a dispute on the basis of the evidence, testimonials, and expert opinions presented to them. At the end of the trial, they give their decisions, through orders, judgements, or rulings.
Judges have a duty to be neutral and impartial: they must be completely independent of the parties, without attachment, emotions or prejudices. During the trial, the judge must remain unmoved by what is said by the parties and must not reveal their own opinions or political affiliation.
Judges must respect the adversarial principle, i.e. not base their judicial decisions on evidential arguments that have not been shared or debated by all parties beforehand. If a new argument is presented by a lawyer but the parties have not exchanged the relevant documents, the judge is obliged to reject the evidence. Nevertheless, if the judge thinks the evidence is relevant, the trial may be postponed so that the new evidence can be examined.
The sitting judiciary includes both professional and lay judges. Professional judges may be competent to hear any case, both civil and criminal (and other matters).
There are also judges with more specific skills, qualified in a particular field:
The Investigating Judge (juge d’instruction) leads investigations in criminal matters. The aim is to establish the innocence or guilt of the accused by means of evidence. They collaborate with the judicial police.
The Bail and Custodial Procedures Judge (juge des libertés et de la détention) rules whether the defendant should be placed on remand, and on requests for release or extension of the remand. They are also competent to decide on house arrest with electronic surveillance in certain cases, court-ordered restrictions for cases, entry and search measures in terrorism cases, visits or seizures, particularly in cases relating to public health, firearms, etc.
The Enforcement Judge (juge de l’application des peines) supervises the custodial measures of convicted persons. They decide on possible conditional releases and sentence adjustments.
The Juvenile Judge (juge des enfants) is a specialised judge competent in criminal matters to investigate and judge minors who have committed an offence. In civil matters, they can adopt reformatory support measures. They intervene when a child’s health, safety or morality are threatened or when the conditions for the child’s education appear to be compromised.
The Litigation and Guardianship Judge (juge des contentieux de la protection) is responsible for the protection of adults.
The Compensation for victims of terrorism Judge (juge de l’indemnisation des victimes d’actes de terrorisme) has exclusive jurisdiction over disputes relating to compensation for victims of terrorism, since a law of 23 March 2019.
Lay judges are also responsible for stating the law, the difference is that they have not been trained to be judges. They have another job, but they can be called upon for certain cases. This is the case of the people’s (popular) jury: citizens are drawn by lot to judge the accused in a criminal trial before the Court of Assizes.
There is also an appointed jury or Industrial Tribunal (conseil des Prud’hommes). These advisers, appointed every 4 years, are called upon to settle certain disputes between private employees and their employers.
Once the judge has made a decision, the case is closed and the effects must apply. If one of the parties does not agree and believes that the judge has misapplied the law, they can appeal to have the case tried a second time.
Judges must simply apply the law, they are not creators of law.
However, with the evolution of society, they can, in their judicial decisions, make what are called ‘reversals of case law’, allowing them to adopt a solution contrary to a decision issued in a previous similar case. This allows the law to evolve, adapting to societal changes and new needs. However, the creation of the law remains the remit of the legislators.
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