2.1 Seat of the Cour d’Assises

11The Cour d’Assises is to be found in Paris as well as in each administrative division of the French territory called département. [1] That explains why each Cour d’Assises is named after the département where the Courseats. For instance les Assises de la Gironde refers to the Court d’Assises which has jurisdiction for criminal trials in the area of Bordeaux. It sits in Bordeaux, the main city in Gironde.

12The Cour d’Assises usually uses the premises of the Court of Appeal as well as those of the main Tribunal Correctionnel, of the département.

2.2 Principle of unity.

13There is only one Cour d’Assises per département. However, in the most populated areas in which the crime rate is very high the Cour d’Assises may be divided into several sections according to the number of cases to be judged. Such is the case in Paris where four autonomous sections can be in session at the same time.

2.3 Venue of sessions.

14Two types of sessions must be distinguished: ordinary ones and additional ones. The venues are organized on a quarterly basis starting from the first of January. Therefore the common situation is four sessions per year, one every three months according to a calendar established by the First President of the Court of Appeal which is the highest court in the judicial district called ressort. To be more specific the resort is made up of several départements which are under the jurisdiction of the Court of Appeal. [2] If necessary, additional sessions may be convened for urgent cases or when a great number of cases are pending.

2.4 Opening of sessions.

15Each session opens at the date and time determined by the First President. The legal existence of the Cour d’Assises begins at that moment. Therefore any judicial act which is carried out before that date and time would be null and void with the exception of some preparatory writs issued by the President of the Cour. The session is closed when the complete list of cases has been examined. It may vary from one session to the other according to the number and importance of cases but the principle is, that the session cannot be closed if all of the cases have not been adjudged. In order to ensure a smooth organization, examining magistrates are requested to make a provisional list of cases they expect to send to the next session of Assises. This list has to be communicated three months in advance.

3.1 Presidency of the Cour d’Assises.

16According to § 244 CPP, the President must be chosen from the bench of the Court of Appeal. By way of a court order, the First President of the Court of Appeal has jurisdiction to appoint the President of the Assises for each session. The President has specific powers during the session. Here are two examples: (1) § 309 CPP enables him/her to take all appropriate measures to ensure order, security and quiet during proceedings; (2) Art 310 of the same Code that the president is vested with a discretionary power in order to provide, in his honor and conscience, any appropriate measure for the ascertainment of the truth. However the law strictly limits his/her powers.

3.2 Professional assessors.

17The First President of the Cour d’Appel appoints professional judges for the session. They must be judges of the bench either selected from the Court of Appeal or any other court of the département. Their number is limited to two and they are called assessors.

18It must be mentioned that can examine magistrate, even though he/she is a judge of the bench, cannot be appointed as assesseur in the cases he/she has previously investigated. There is a strict separation between the examining magistrate and the Cour d’Assises in order to protect the principle of the presumption of innocence.

3.3 Lay assessors.

19The Criminal Procedure Law enacted on July 28,1978 regulates the selection of the jurors. The selecting of the lay assessors is quite a long-lasting and complex procedure. The main concern in selecting the jury is that the non-professional judges must be a representative sample of the population in the département.

20The second concern is that the list has to be established at random. In that respect, a provisional annual list is drawn by lots from electoral lists. The number of people varies according to the population of the département. Then this list is checked and reduced by a specific judicial committee according to various criteria such as nationality, age, capacity, profession, etc. Some people for some reasons or others are not eligible. Here are some examples illustrating this point: persons convicted of a crime, persons whose professions do not permit them to be selected (member of the government, of parliament, magistrates, police officers) or people linked to a party in the case. After several stages the names of 35 persons plus ten substitutes are drawn in open court for the 4 sessions of the year at least 30 days before opening of the first session.

21Then in a last stage nine lay participants plus two “substitutes” are drawn by the President, in open court, just before the examination of each case. The defendant and the public prosecutor have a right to exclude jurors, respectively five and four, without giving any reason.

3.4 Number of lay assessors.

22The number of lay assessors is a recurrent issue. The 1941 law reduced their number to six. Later the Criminal Procedure Ordinance enacted on the 20^th of April 1945 raised their number to seven. Since the legislative enactment of the Code of Criminal Procedure in 1958 the sitting jury shall have nine members. [3] A number of additional jurors - usually two - called jurés suppléants are drawn on the same occasion.

3.5 Jurisdiction of lay assessors.

23The lay assessors are placed under oath. Therefore the jurisdiction of the lay assessors is not different from that of the professional magistrates. No other restriction to curb the power of the lay assessors.

24The mixed court must decide the case. This means that the Court is collectively responsible for all questions of law, fact, guilt and sentence. The Cour d’Assises is thus responsible for the ascertainment of truth and the procedural fairness of the criminal trial. It has to determine the issue of guilt including aggravating or mitigating circumstances. Then the Cour d’Assises must apply the law to the facts of the case and determine the sentence.

25Lay assessors and professional magistrates alike have the duty to seek the truth and ensure the equal application of the law. In fact lay assessors are vested with a preponderant role thanks to the “majority rule” which has prevailed since 1958.

3.6 Rights and obligations of lay assessors during the proceedings.

4.1 Principle of oral proceedings

30Even though there is no clear indication in the law, proceedings before the Cour d’Assises are oral. [4] However according to a Supreme Court precedent [5] the trial must be oral. Therefore, the intime conviction of the Cour d’Assises must be based on oral proceedings and not on the written documents of the file. But on occasion the President shows some documents such as photographs of the victim or the weapon used or other relevant evidence to the lay assessors.

4.2 Principle of public hearing

31This principle is the direct application in the national procedure of the European Convention on Human Rights (ECHR). For the specific case of the Cour d’Assises this principle is laid down in § 306 CPP. There is an important restriction to the said principle in the same article. The press and public may be excluded from the trial for reasons of morals, public order or national security interests or where interests of juveniles or the parties so require.

32Therefore, decisions of the lay assessors and professional judges have to be based on their intime conviction as a result of oral proceedings.

4.3 Principle of intime conviction.

33This principle is very important in French procedure. It is first mentioned in the oath put to the lay assessors. [6] Then before the Court retires to a secluded room to deliberate, the President has to read to the lay assessors a sort of ethics code which ends up with the following question: « Do you have an intime conviction?.

4.4 Lay judges and hearings.

34Lay judges are duty-bound to pay proper attention to the testimony. They do not have access to the file. Therefore their intime conviction has to be based on the testimony of the defendant, the victim, the witnesses and the experts. They are allowed to put questions.

4.5 Questions put to the jury.

35Since the 1941 reform professional judges and lay assessors deliberate and vote together on the questions of guilt and sentence. The President has to prepare the question sheet, which is the document upon which the decision of acquittal or conviction is based. No other reasons are given in the judgement.

36The President formulates the questions in precise terms. They must be answered in the order put by the President according to the provisions of § 356 CPP. They must relate precisely to facts of the case as they were presented at trial, and not necessarily those described in the indictment.

37There is a distinction between primary and additional questions. According to § 349 CPP the question on guilt should be: Is the defendant guilty of such and such a fact? If the defendant is charged with several crimes and offences a question must be put for each offence. If the answer to the question is “yes” it implies that judges have rejected any possible cause of diminished responsibility, insanity or any other legal defence. The criminal intent with which the defendant allegedly committed the acts must also be specifically mentioned by use of adverbs such as volontairement meaning willingly. Indications of the place and date of the alleged facts should also be included in the questions whenever possible. The questions must refer to the acts and should not include legal matters. Thus questions requiring of the lay assessors the judicial qualification of the facts or of the status of the defendant may not be posed. For instance the question about murder should be put as follows: Is the defendant guilty of the death of the victim? Additional questions are related to the issues of aggravating and mitigating circumstances, complicity or legal excuses.

4.6 Voting procedures.

5.1 Introduction.

43A reform of criminal procedure is soon to be enacted. Some observers believe that France is gradually changing from a neo-inquisitorial to an accusatory criminal justice system. Many reforms of our criminal procedure have been undertaken in the last 20 years, [7] including the 1996-1997 attempt to reform the Cour d’Assises. And yet a bill which will profoundly amend the Code of Criminal Procedure is currently under study by the French Parliament.

44The government has tried to combine the necessity of strengthening the rights of the defence with the necessity of ascertaining the truth as a duty of the state (examining judge and public prosecutor). Quite unexpectedly there is no particular recommendation concerning the Court d’Assises. Before I briefly describe the salient modifications proposed in the bill on the presumption of innocence issue, I would like to make two preliminary observations.

45The first one is related to the position of the examining magistrate. The situation of the examining magistrate may seem quite peculiar; that is why it has been solemnly emphasised that the objective of the bill is to ensure his/her neutral position between the defendant, the public prosecutor and the victim. According to the draft text the examining magistrate will still be duty-bound to carry out the investigations, to seek the truth, and to guarantee the respect for the presumption of innocence. The Government thinks this aim should be achieved with some substantial modification of his/her powers and by means of the introduction of adversary techniques in the neo-inquisitorial procedure governing proceedings at this stage.

46For the time being, decisions taken by examining magistrates during investigations may be appealed to a specialised division of the Court of Appeal named Chambre d’accusation. The Chambre d’Accusation is composed of three professional Bench magistrates. The public prosecutor also attends.

47The Chambre d’Accusation is the judicial body which has jurisdiction to send the case to the Cour d’Assises by way of a decision called mise en accusation from where its name is derived. In fact one can say that at this stage of the procedure the adversary character of the proceedings depends mostly upon the examining Magistrate.

48The second observation refers to the possible influence of examining magistrate’s decisions on lay assessors. Even though the lay assessors and the professional judges of the Cour d’Assises have the duty to reach their own decisions based on the oral proceedings, some measures which the examining magistrate does or does not take, may have a great influence, especially on non-legally trained lay assessors. The issue of pre-trial detention is a prime example. If the examining magistrate has kept the person in detention on remand up to the date of the trial, a strong presumption of guilt weighs against him/her. On the contrary, if the defendant has not been put in custody or if the investigating magistrate has released him/her after a short period based on legal criteria he must apply, the criminal lawyer will try to use this to instil a doubt on the issue of guilt in the lay assessors’ minds. In both cases the legal reasons might be completely different and the examining magistrate, who is not a party in the trial cannot be heard as a witness even though he/she is supposed to be in a neutral position and duty-bound to ascertain the truth.

49The main points of the draft text on the question of presumption of innocence follow. The recommendations are organised around four main ideas. Some aspects of the adversary principle have been introduced.

5.2. Recommendations strengthening the rights of the defendant.

50Some adversarial aspects have been included, especially at the stage of the investigation. The examining magistrate is still in charge of the investigation but a criminal lawyer must assist the defendant during the proceedings.

5.3 Recommendations reforming pretrial detention.

53Some adversarial elements will also be implemented here. The Investigating magistrate will no longer be in charge of pretrial detention. The bill proposes the creation of a judge in charge of pretrial detention who would occupy a neutral position. The issue of pretrial detention would be debated by the judge, public prosecutor and defense openly in adversarial proceedings and written reasons for the decision should be given.

54Pretrial detention would be limited to certain cases:

(1) offences against the person if they are punishable by a minimum term of two years imprisonment; (2) Offences against the property punishable by a minimum term of three years. The period of pretrial detention would be limited. The idea is that by virtue of the principle of the presumption of innocence, any pre-trial detention decision should be based on legitimate and exceptional reasons. Hence, the practice of detention on remand should be strictly limited in order to prevent potential abuse. The bill tries to combine the principle of necessity and the principle of proportionality.

55In the case of unnecessary detention (in cases ending in dismissal, discharge or acquittal) the defendant would be given a right to financial compensation.

5.4 Recommendations concerning length of proceedings.

56A new article will be included in the Code of Criminal Procedure aimed at limiting excessive length of proceedings in order to comply with the European Convention on Human Rights. The aim is to emphasise the right to be judged within reasonable time.

5.5 Recommendations concerning communication with the media.

57These recommendations are related to the freedom of the press. [8] They aim at granting greater protection for the defendant’s reputation. In this respect pictures showing a handcuffed person should neither be published in the press nor shown on television. In case of infringement of this rule, heavy fines reaching 100 000 F.F could be assessed. The existing right of response should be broadened and the period to exercise it would be increased from eight days to three months.

58When the investigative phase is completed, the examining magistrate has three options. He/she may dismiss the case, send it to a criminal court or send it to the Cour d’Assises through the Chambre d’accusation.

59This is a convenient transition back to the issue of the Cour d’Assises.

6.1 Brief history of the Cour d’Assises

60The Cour d’Assises finds its origins in English tradition. The British institutions of the 18^th century were greatly admired by the French philosophers of the lumières who recommended adopting the form of a jury to try criminal matters in France. The National Sovereignty principle contained in the 1789 Declaration on Human Rights pronounced during the French Revolution implied that justice should be administered by the people. The jury was perceived as an efficient instrument against absolute monarchy.

61The 1791 Constitution laid down the principle that in criminal matters the facts would be judged by jurors chosen at random with the assistance of professional magistrates who would decide legal questions and sentence. The system of yes and no questions put to the jurors was implemented as early as 1791.

62These courts were named Cour d’Assises in the 1808 Criminal Instruction Code because they were not permanent courts.

63From 1808 to 1941 the Cour d’Assises did not change very much. The main preoccupations at that time were to ensure a better representation of the diversity of the French population and to initiate a closer relationship between professional judges and lay assessors. Efforts were also made to ensure a more democratic selection of jurors who were drawn by lots but from lists, which had previously been prepared by the administrative authorities. The selection of the jurors was based on criteria such as wealth, social position or education. A law enacted in 1978 reformed jury selection and introduced the principle of drawings by lots from the outset. Thus anyone who met the legal requirements could participate if his/her name was picked.

64Parallel efforts were made to extend the jurisdiction of the jurors, which was initially limited to the guilt question. In order to avoid severe sentences by professional magistrates, jurors occasionally would bring in acquittal verdicts in cases where the guilt of the defendant was obvious. Finally a law enacted on March 5,1932, united jurors and professional magistrates to decide the question of sentence.

65Ordinance of the Vichy Government of April 20,1941, made the jurors and the professional magistrates collectively responsible for all questions of law, fact, guilt and innocence whilst reducing the number of lay assessors to seven.

66The 1958 Code of Criminal Procedure changed little in the organisation of the Cour d’Assises. The number of lay assessors was raised to nine though and it has been ensured that whatever sentence pronounced against the defendant requires at least the votes of a majority of the lay assessors, that is, a minimum of five. Thus the initial desire to have the decisions on guilt and sentence decided by the people has been achieved.

6.2 Appeal to the Cour de cassation.

67

Court d’Assises decisions are meant to express « the will of the people ». Therefore they are final decisions as far as the issues of guilt and sentence are concerned.. However the decisions of the Cour d’Assises may be appealed to the criminal chamber of the Supreme Court called the Cour de Cassation by the convicted person and the public prosecutor. In principle the victim cannot appeal criminal decisions. [9] This is not a full appeal, however, because it is strictly limited to points of law. The Supreme Court does not review the facts of the case and the questions of guilt and sentence.

68There is another limited way for the defendant to have the decision reviewed. The convicted person is allowed to make a request called a recours en révision for the reopening of the case on the ground of new or newly discovered facts or evidence. Quite recently this possibility was successfully used. [10]

69Sharp criticisms emphasise the fact that the French procedural system does not comply with § 2.1 of Protocol n°7 of the European Convention on Human Rights which guarantees the right of a convicted person in a criminal trial to have his/her conviction or sentence reviewed by a higher court. They see a paradox in the fact that a full right of appeal is possible for the decisions of the lower criminal courts whereas the most serious offences punishable with a minimum term of fifteen years of imprisonment are tried only in one instance.

70At this junction, it should also be remembered that capital punishment was abolished in 1981 in France. This means that people have been executed without having a possibility to fully review the decision.

6.3 Procedural rules regulating criminal trials.

71The procedural rules regulating the proceedings before the Cour d’Assises are extremely dense and interwoven. Therefore some decisions submitted to the Supreme Court have been considered null and void on the grounds of error in the application of a procedural rule even though the decision on the issues of guilt and sentence was not criticised. To illustrate this point, a decision has been nullified because the clerk of the Cour had forgotten to mention on the register that the witness had been sworn in before his hearing!

6.4 Length of proceedings

72The length of judicial proceedings in criminal cases has been criticised based on the principle of reasonable time limit as protected by § 6 of the European Convention on Human Rights. Due to the fact that the Cour d’Assises does not sit continuously, some cases can be pending for months.

6.5 No reasons given in the decision

73As a consequence of the principle intime conviction and strict limitations on the right to appeal Cour d’Assises decisions, professional judges and lay assessors do not give reasons for their decisions. Decisions may vary greatly between one Cour d’Assises to the other. Today, the people want to understand on what grounds decisions are made. They are no longer willing to accept a verdict just because it is the expression of their will.

7.1 Introduction

74French people don’t view the Cour d’Assises as archaic. They take it for a democratic institution which guarantees the fairness of the criminal trial and the ascertainment of truth. In the French system the Cour d’Assises is the stage where the case in all its elements is for the first time debated openly in adversarial proceedings.

75The Anglo-American practice of consensual disposition of criminal case “plea bargaining” does not exist. The presiding judge and his/her two professional assessors are not elected and their independence is ensured by the principle of non-transferability. They have no reason to influence lay assessors and experience shows that they are quite often overruled. This collective responsibility is a guarantee of the fairness of the trial.

76Moreover French people tend to consider that non legally trained persons are just as able as professional judges to decide questions of fact and guilt because they occupy a neutral position. The form of lay participation in a « mixed court » composed of professional judges and lay assessors collectively responsible for all questions of law, fact, guilt and sentence is not discussed at length either.

77However the debated question is whether a higher Cour d’Assises should be created in order to permit a full right to appeal the present Cour d’Assises decisions.

7.2 Why a reform for the Cour d’Assises?

78A survey published in “Le Figaro” showed that 82% of the population is satisfied with this system. But 71% of the sample also want a reform. In my opinion there is no contradiction. The weaknesses of the system have been stressed before.

79Even though « Cour d’Assises » judgements are the expression of the « will of the people », public opinion does not always trust their sentencing decisions. Such may be the case when all the evidence has not been properly gathered. The principle of intime conviction is not sufficient to ascertain the truth and the issue of guilt. Recent « unusual » verdicts have added confusion. The first degree murder verdict against Omar Raddad (14 years imprisonment) is a prime example. The presidential pardon he was given recently illustrates the confusion. Other cases such as Miss and Tiennot or Seznec, people convicted of murder who have been claiming innocence for years, are very disturbing. Therefore a second trial of crimes should be made possible in order to diminish the likelihood of miscarriages of justice.

7.3 What reform for the Cour d’Assises?

80There is no recommendation concerning the Cour d’Assises in the bill under discussion before the French Parliament even though this question is a bone of contention. However the Minister of Justice has recently declared that she was deeply concerned about the lack of a possibility for a second trial of the most serious crimes. Several reform proposals have been made but so far none has come to fruition. A first proposal consisting in what has been called un appel tournant has been introduced. Basically, the idea was to allow a decision of the Cour d’Assises to be reviewed for all questions of law, fact, guilt and sentence by another Cour d’Assises in another département ).

81A second proposal suggested that Cour d’Assises decisions should be appealed to appeal to a professional court made up exclusively of legally trained judges.

82A third proposal consisted in turning the Cour d’Assises into a first instance court. The trial of crimes would be by a court composed of three professional judges and two assessors selected according to personal criteria. The idea was to abandon selection of jurors by the drawing of lots maintained in the first instance. The existing Cour d’Assises would be maintained as a court of appeal of the first instance decisions.

83These proposals to curb the power or jurisdiction of lay assessors were rejected after serious discussions. A fourth proposal emphasized the hypothetical advantages of a system allowing appeals to a higher Cour d’Assises. It proposed either a diminution of the number of lay assessors in the lower Cour d’Assises or an increase in number for the higher Cour d’Assises.

84Special mention has to be given to an aborted reform of 1996-1997 because this project almost went into force after its formal approval by the French Parliament shortly before its unexpected dissolution by President Chirac.

85This reform would have substantial changes in the present system. It recommended setting up two Cour d’Assises in order to permit (a) a proper appeal; (b) before a higher court; and (c) respecting the expression of the will of the people:
The Tribunal d’Assises départemental was meant to be a lower Cour d’Assises. Its composition would have been slightly different from the present one; that of one presiding professional judge, two professional assessors and five lay assessors. The Tribunal was meant to have the same jurisdiction as the present Cour d’Assises. It was also expressly provided that this lower court was to give reasons in its decisions in order to enable convicted persons to know exactly the grounds on which the verdict was rendered. The Tribunal d’Assises was supposed to have jurisdiction at the département level. Lay assessors were chosen according to the same procedure. [11] Decisions on guilt and sentence were to be reached by a majority of 6 votes in order to ensure that at least one professional judge agreed with the verdict.

86The Cour d’Assises d’Appel was to have the same composition as the present Cour d’Assises that is to say, three professional magistrates and nine lay assessors drawn by lots from a larger area, however, that of the ressort of the Court of Appeal which covers several départements. [12]

87This Cour d’Assises d’Appel would have had jurisdiction to retry the decisions of the lower Cour d’Assises.

88According to a consulting committee headed by M. Jean-François Deniau the draft text ensured that the new system complied with § 2 of protocol n°7 of the European Convention of Human Rights. The right to have one’s conviction or sentence reviewed would have been made possible.

89The larger number of lay assessors drawn by lots from a wider area, combined with higher judges from the Court of Appeal met the requirements of a higher appellate tribunal (b). The larger number of lay assessors - nine as compared to five for the tribunal - would have made retrial of the former convictions possible even though they were the expression of “the will of the people”(c). In addition, a proposal was made to reduce the minimum age of lay assessors from 23 to 18. There was a heated debate on this proposal because some M.Ps. considered that young people of 18 years of age should not be exposed to the type of cases usually tried by the Cour d’Assises.

90This reform was not enacted because of its cost and the major difficulties in its implementation. It required a double selection of jurors, an increase in the recruitment of professional magistrates especially in smaller courts because the Tribunal d’Assises was supposed to hold more sessions in order to reduce delays...etc.

91The reform would have required at least 100 additional professional judges and 45 clerks. This expense had not been budgeted and some M.Ps objected that it was unrealistic. But the main argument focused on the requirement to give reasons in the decisions. This question has been debated over and over because some professional consider that there is a double contradiction between the necessity to give reasons and the voting procedures of the Cour d’Assises. Votes are secret. [13] Some M.Ps consider there is an initial contradiction between the secrecy of the vote and the obligation to give written reasons in the decision. According to them the vote would not remain secret as it should. They have also pointed out that lay assessors and professional judges alike are bound to reach their own decision based on the oral proceedings. They are not allowed to know what is in the file (except for the President) and this is why their decisions are based on the principle of intime conviction. According to the second contradiction between the necessity to give reasons and intime conviction. It is a nonsense to give reasons for decisions taken in one’s heart. In this regard some proposals were made such as that of giving sui generis reasons, different from those usually done by criminal courts.

92M.Ps also discussed the question of when reasons should be drafted and who would formulate them. It is hardly possible to demand that lay assessors state their own reasons for the verdict. But it is also necessary to ensure that the law is correctly applied and that all relevant circumstances have been taken into account. M.P.s have also insisted on the difficulty giving reasons at the same time as the verdict. It obviously requires more time to draft a decision and it would be difficult to do it after long hours of proceedings and deliberations. On the other hand it would be satisfactory to draft the decision after the verdict has been publicly pronounced. Then lay assessors would have to return after the session is closed.

93MPs had not reached an agreement on these issues but it was more or less decided that the President would have been in charge of drafting the reasons and the first juror would sign the decision as a representative of the nine lay assessors. In that case, what would happen if the lay assessors did not agree with the President?