CLASIFICACION DEL RIESGO
ANÁLISIS Y DIAGNOSTICO
3.5 Impacto económico de los problemas
Although employed by the state, French procureurs are not civil servants (in contrast with CPS prosecutors) but magistrats.409 As such, they find themselves in a
paradoxical position: they are part of the judiciary whose independence is constitutionally protected, but are also part of a hierarchy with the Minister of Justice at the top. Their status of magistrat appears to empower procureurs to act independently from their hierarchy in certain cases. As magistrats, they see themselves as subservient to the rule of law first and foremost. This accountability to
407 A summons is a written order to attend a court to answer an allegation. It is an alternative to a charge
to start a prosecution.
408 See chapter 6.
409 There is a direct line of management from the lowest grade of public prosecutor in a local CPS office
up to the national head of the prosecution service, the DPP. Thus, section 3 POA describes the prosecutorial functions it lists as ‘Functions of the Director’, not Crown Prosecutors, and section 1 (6) states that ‘every Crown Prosecutor shall have all the powers of the Director as to the institution and conduct of proceedings but shall exercise those powers under the direction of the Director’. During the parliamentary debate, some members of the House of Lords suggested giving a special status to Crown Prosecutors to protect them from pressures, some going as far as proposing a status ‘comparable to that of a circuit judge’ (HL Deb 29 November 1984, vol 457, col 1061 [Lord Elystan-Morgan]. See also HL Deb 29 November 1984, vol 457, col 1021 [Lord Elwyn-Jones]). The government categorically rejected this suggestion and insisted Crown Prosecutors were civil servants just like any other.
the law is dominant in the professional discourse of magistrats. The compendium of ethical obligations of magistrats410 issued by the CSM in 2010 provides in its preamble
that: ‘As members of the judicial authority, magistrats draw their legitimacy from the law, which requires them to be independent and impartial, principles also imposed on the other powers. Disregarding these imperatives would compromise public confidence.’ The tension between this accountability to the law and hierarchical subordination was expressed clearly by one procureur I interviewed:
Procureur (referring to the hierarchical structure of the parquet): well, the hierarchical functioning is clear in a parquet, there is a head, the Code says it, but at the same time, we are not in an administrative system of transfer of powers or signatures. Magistrats don’t get their power from the head
of the parquet but from the law. (Emphasis added) [Interview respondent
FR1]
Procureurs I interviewed were almost unanimous in assuring me that they would refuse to carry out an act demanded by their superior if they disagreed with it, even giving me examples of occasions when they had actually decided not to follow an order.
Procureur: Personally, I believe that my status as magistrat means that if
I really disagree and I have a moral dilemma on what I’m asked to do, I must tell my superior and my superior can always deal with the case himself. I have a duty to be loyal which means that when I am going to make a decision which I know goes against what my manager would have decided, I have a duty to inform him and if he disagrees with me, he can always take the file back.
[He went on to describe an occasion in his former post where he had a disagreement with his superior and refused to carry out a direct order.] We receive instructions telling us to do this rather than that, I follow them, and it doesn’t bother me. But, where we do have the status of magistrat is when I think – and I hope to be able to carry on exercising my role like this – is to be able to say: ‘Here I can’t [do as his superior has asked]. I morally cannot do it. And I won’t do it’. Then, the Procureur [de la République] does what he feels like, maybe I’ll be disciplined for not respecting the instructions! Personally I think... when it’s explained
410 Conseil supérieur de la magistrature, Recueil des obligations déontologiques des magistrats. 2010
(Dalloz 2010) <http://www.conseil-superieur-magistrature.fr/recueil-des-obligations-deontologiques- des-magistrats> accessed 22 March 2012.
properly... I did discuss it afterwards with my previous Procureur [de la République] and she understood: she asked me once, then twice, she saw I wasn’t going to do it, she understood the moral dilemma I had. [Interview respondent FR7]411
Procureurs interviewed by Mouhanna expressed similar views412 and those
interviewed by Hodgson considered their accountability to the courts more important than their accountability to their hierarchy.413
This relative independence of subordinates from their direct hierarchy is further enabled by the fact that their appointment, career progression and discipline matters are dealt with centrally, by the Ministry of Justice, in consultation with the CSM. The head of the local parquet I observed explained to me that, although she carried out appraisals of her staff by giving them a performance mark, she had no influence over who came to work in her parquet and was not in a position to dismiss any of her subordinates, by contrast to the power of Chief Crown Prosecutors (CCP) in England and Wales to hire or dismiss Crown Prosecutors. Furthermore, this ability to disobey orders from their hierarchy is officially recognised in article 5 of the Ordonnance of 22 December 1958414 regulating the status of the magistrature which sets out the
subordination principle, but immediately adds: ‘in court, their speech is free.’ This means that procureurs must follow their hierarchy’s instructions in written decisions, but are free to ‘make such oral submissions as [they] believe to be in the interest of justice.’ (Art 33 CPP). This principle was illustrated in my own fieldwork, when I attended weekly meetings of the local parquet. At one of these meetings, the
411 The exact same view was expressed by other procureurs: FR3, FR4, FR8, and FR9.
412 Mouhanna, ‘Les Relations Police-Parquet En France : Un Partenariat Mis En Cause?’ (n 94) 513. 413 Hodgson, ‘Hierarchy, Bureaucracy, and Ideology in French Criminal Justice’ (n 283) 238–239. 414 Ordonnance no 58-1270 of 22 December 1958 portant loi organique relative au statut de la
Procureur de la République reminded her subordinates of the national policy for prison sentences defined in a recent circular from the Minister of Justice.
I’m going to forbid submissions for prison sentences below six months!415
(…) You might not have realised, but we have a new government who clearly indicated that they didn’t want short prison sentences to be requested. (...) Find something else, community work, whatever! (...) Personally, I think heavy fines are more effective sentences.
This prompted a real debate between members of the parquet who clearly disagreed with their superior. In the end, she had to relent:
Procureur de la République: Well, I don’t care what you say at the hearing.
Substitut: You just said you want to forbid us to do this!
Procureur de la République: I know, but I respect the Constitution: as long as your written submissions comply, I don’t mind.416
The meetings were clearly seen as an opportunity to have an open debate about different themes and to give one’s opinion, even when disagreeing with the Procureur de la République. Of course, freedom of speech only applies at court and the vast majority of prosecutorial decisions are in fact taken before the trial. Since they are in writing, they must conform to hierarchical decisions. Nevertheless, the mere existence of this possibility reflects the central belief that individual procureurs are legitimate in applying the law and making decisions in the public interest, even when it goes against direct hierarchical orders (potentially from elected politicians). This accountability to the law was also recognised by Parliament when it decided to strictly restrict the use of mediation for domestic violence cases by law, an admission that policies were not sufficient. Coupled with the strong belief in ‘individualisation’ or ‘adaptation’ of decisions to the circumstances of specific cases in the French criminal
415 In French law, public prosecutors ask for conviction or acquittal and suggest a sentence in their
submissions to the court.
416 This extract from my fieldwork was also used in the methodology chapter to illustrate the open-
justice system, it helps protect the individual discretion of procureurs to a large extent, in tension with the official discourse of centralised hierarchy and equality.
Nevertheless, failures to reform the appointment and promotion process of procureurs
means that doubts over their impartiality in high-profile political scandals remain. Recently, in a case involving the interception of communications of former President Nicolas Sarkozy, both the Minister of Justice and the Minister of the Interior denied having been informed of the procedure, whilst Sarkozy accused the socialist government of using the criminal justice system for political gains. Furthermore, ECtHR decisions challenging the characterisation of the procureur as judicial officer could mean a split of the magistrature and/or a reduction of procureurs’ powers. Finally, access to prosecution policy is difficult, as it is contained in scattered circulars published in chronological order, rather than by subject on the Ministry’s website. It is impossible to know, just looking at a circular, whether it presents the current policy or whether its provisions have since been repealed by later circulars or even Acts of Parliament. This lack of transparency coupled with the lack of accountability for prosecutorial decisions could undermine public confidence. Since their status of
magistrats is the main basis for their legitimacy claim, procureurs could be forced to amend this claim in the future.
Conclusions
The prosecution process at the CPS has become akin to an assembly line, with different members of staff carrying out individual tasks on each case at specific stages of the process. This organisation of the workload means that each decision will be reviewed at a later stage by a different prosecutor. Managers also perform quality checks on
individual decisions to make sure that policies are applied properly. This segmentation and rising bureaucratic accountability contribute to the evolution of the profession of CPS prosecutor. A far cry from the traditional image of the lawyer as an autonomous professional, CPS prosecutors sometimes feel like mere cogs in bureaucratic machinery, simply applying standard policies to individual cases. Some of their workload has even been delegated to unqualified members of staff to make further efficiency savings, further developing the metaphor of the assembly line. In an industrial factory, workers on the assembly line have just enough skills to carry out the specific task assigned to them, but do not have the expertise to make the whole item on their own. Similarly, Associate Prosecutors and paralegal officers are not qualified to make all prosecutorial decisions.
CPS employees are held closely to account for their decisions, but the segmentation of the process means that they lack an overview of the whole process and this can induce a feeling of disempowerment for prosecutors who have little influence on the final outcome of cases. As outcomes come from several decisions taken by different members of staff, any unsuccessful outcome can rarely be traced back to a particular individual. As a result, Crown Prosecutors did not feel responsible for those failures. Paradoxically, the accountability of prosecutors is greater for individual decisions than for final outcomes. Although all these measures are designed to ensure accountability and efficiency, they result in greater inefficiencies taken together as CPS prosecutors are discouraged to discontinue weak cases as early as possible, instead keeping them in the system longer than necessary.
The contrast with French prosecutors could not be starker. Although the French criminal justice system is traditionally described as highly hierarchical and bureaucratic, data I collected paint a different picture. The status of procureurs as
magistrats allows them to have broad discretionary powers, as policies are not strictly enforced. Although targets do exist, there is no audit culture comparable to that existing in England and Wales, which could potentially enable an evaluation of what went wrong if required, as the reasons for decisions are not recorded. The lack of transparency in prosecution policies noted in the previous chapter, coupled with deficient accountability processes and the current debates around the unity of the