During the presidential campaign, candidate Macron formulated a number of proposals that aimed at strengthening the judiciary and improving both the access to justice and the organization of the judicial system.
Rather than applying this program straightaway, the government has entrusted experts with the task of suggesting the desirable evolution of the judiciary. Their findings were set out in reports that were prepared within the Chantiers de la justice project. These proposals helped to draft the 2018-2022 justice programming bill and the organic bill that accompanies it. Both have been presented to the Council of Ministers on 20 April 2018. Moreover, a constitutional reform has been announced on 4 April 2018 and should take the form of a bill, which will be presented to the Council of Ministers in May.
In addition to the measures announced during the campaign that are now taken – like simplifying and dematerializing judicial proceedings -, the bill also includes measures that did not appear in the candidate’s program – such as the creation of a national antiterrorist prosecutor’s office or the creation of a departmental criminal court. By contrast, a certain number of campaign commitments have not materialized so far – this is particularly the case with the reform of legal aid or the constitutional reform of the Conseil supérieur de la Magistrature.
The announced measures are not being very welcomed by a number of professionals who denounce a logic accused of being “too managerial” and devoted to efficiency. Legislating through ordinances (which do not require the Parliament’s approval) is also being criticized. Finally, professionals are worried about the dematerialization resulting from digitization.
Meanwhile, the digitization of judicial proceedings, as provided by the presidential program, appears difficult to achieve in the current state of investment and technical resources. In addition, the question of the numerous possibilities opened up by artificial intelligence will have to be addressed. All of these approaches should be accompanied by the education and training of all concerned stakeholders.
- A €7.11 billion budget is awarded to the justice system in 2018. That is €6.98 billion excluding pension expenditures. It represents a 3.9% increase compared to the 2017 budget. 1,000 jobs will be created. 39% of the budget will be devoted to the penitentiary administration, thereby allowing security reinforcement, the posting of additional agents and the opening of 3 new prison facilities.
- €530 million are allocated to the digital transformation of justice.
- In prisons: an average occupancy rate of 141% at the national level, with some institutions reaching rates of up to 200%. On 1 January 2018, there were 68,974 inmates for a capacity of 59,765 spaces.
4 october 2017
Presentation of the "Chantiers de la justice"
15 january 2018
Submission of the conclusions of the consultation work on five justice projects
20 april 2018 - 30 april 2018
Presentation of the reform project for Justice to the Council of Ministers
Candidate Macron defended the strengthening of the judiciary by a constitutional reform of the Conseil supérieur de la Magistrature (whose assent would thus be required for the appointment of a magistrate as a member of the Department of Public Prosecution) and by strengthening the prohibition for the Minister of Justice to give instructions to public prosecutors in individual cases.
He also advocated for the simplification of the justice system:
- Through the creation, in each department, of a court of first instance that would merge all local specialized courts of first instance and treat all subjects in dedicated centers: criminal, social, family, commercial, civil, etc.
- Through the creation of a unique reception service for litigants within the former premises of the merged jurisdictions.
- Through the reform of appeal courts so that no appeal court would straddle several administrative regions and that no department would fall within the jurisdiction of a court located in a different region.
Finally, Emmanuel Macron planned to improve access to justice by creating a digital public service of justice, with a single portal of access based on the model of the French website for taxation impots.gouv.fr and by reforming legal aid.
In the field of civil justice, Emmanuel Macron’s program pursued two main objectives:
- Rendering first instance decisions immediately enforceable, with a few exceptions
- Lowering the number of forms of action from 15 to 2 for civil proceedings
- Digitizing and automating repetitive tasks (registrations, convocations or disclosure requests for example) and providing judges with decision support tools
- Simplifying guardianship management for the elderly
- Simplifying the treatment of criminal proceedings.
- Creating a simple, quick and exclusively digital procedure for the resolution of everyday disputes
- Promoting the creation of amicable dispute resolution platforms, which could help conclude enforceable agreements when run by multidisciplinary structures that would include lawyers, bailiffs or notaries.
In the field of criminal justice, Emmanuel Macron’s program focused on:
Enforcement of sentences:
- Making sure that anyone sentenced to imprisonment for a duration of up to 2 years is actually detained before any adjustment measure is taken
- Introducing a principle of systematic examination of a possible sentence adjustment when the sentence is two-thirds complete
- Making sure that detainees’ sentences are adapted to their actual behavior and that they are automatically enrolled in a work or training course
- Renovating old prison facilities to meet decent housing standards and replacing the ones that cannot be renovated
- Creating 15,000 additional prison places over the 5-year period, which amounts to about a fourth more than today
- Creating an agency for alternative measures to incarceration to encourage the development of community service as an alternative modality for the enforcement of sentences
- Increasing the resources of the Prison and Probation Service (SPIP) with the aim of reaching an average of 40 individuals per agent.
- Encouraging the placement of non-delinquent minors in educational assistance in secondary and high boarding schools with reinforced monitoring. If integration proves impossible, the minor would then be placed in an educational home with external schooling.
- In cases of proven delinquency, the minor should be placed in a “closed” educational center, where schooling and training would take place and whose absences would be strictly controlled.
- Setting up programs to help parents of minors in difficulty (support groups, education advice, help with learning French for immigrant parents) in schools so that they are associated with their children’s care rather than be sanctioned.
Finally, the candidate Macron presented avenues for enhanced cooperation between European courts and judicial services, which would be initiated by the Franco-German couple.
In October 2017 the government launched the Chantiers de la justice – its future work on justice – entrusted to renowned experts, around 5 topics:
- Digital transformation
- Simplification of criminal procedure
- Simplification of civil procedure
- Reform of the judicial system
- Sentencing efficiency.
These Chantiers’ conclusions, handed over in January 2018 to the Minister of Justice, have been used to feed the 2018-2022 justice programming bill and the accompanying organic bill. These laws have been presented to the Council of Ministers on 20 April 2018. Moreover, a constitutional reform has been announced on 4 April and should take the form of a bill, which will be presented to the Council of Ministers in the course of May.
This justice programming bill includes a number of reforms that are in accordance with Emmanuel Macron’s program.
Since Emmanuel Macron’s election, a number of reforms have been initiated, in accordance with his program.
In the field of civil justice:
- Merging the various civil courts of first instance : the civil lower and special courts would be absorbed by the court of first instance (tribunal de grande instance) and some of them would be allowed to specialize in certain types of litigation
- Allowing court proceedings with no hearings when the parties consent to it
- Dematerializing the entire procedure for disputes concerning an amount inferior to a limit determined by the Council of State (Conseil d’État)
- Dematerializing the entire procedure for payment injunctions that would fall within the jurisdiction of a special court of first instance with a national competence
- Regulating and certifying online dispute resolution platforms while specifying their obligations and allowing the use of automated tools
- Simplifying the commencement of legal proceedings in the case of emergency procedures.
In the field of criminal justice:
- Enabling online filing of complaints and online claims for criminal indemnification
- Taking into account personality investigations in criminal sentencing
- Developing alternatives to detention (home arrest under electronic surveillance, creation of a single traineeship penalty, extension of the scope of community service, extension of the fixed fine, greater scope of settlement and of plea bargaining, new prohibition penalties, single probation penalty)
- For sentences of imprisonment of 1 to 5 years, systematic release under constraint when two-thirds of the sentence have been completed, unless otherwise decided by the enforcement judge
- No sentencing adjustment for penalties of more than one year
- Improving detention conditions, in particular through a real estate program
- For minors, enabling gradual exits from closed educational centers through the possibility of temporary housing in other childcare facilities and creation of an educational measure of daycare reception (between placement and open environment).
In addition, the reports drafted within the Chantiers de la justice framework led the government to provide for measures that were not necessarily considered during the campaign but are now included in the justice programming bill.
In the field of judiciary organization:
- Progressively increasing the justice department’s resources in order to go from a 7 billion euro budget in 2018 to one of 8.3 billion by 2022
- Gradually creating 6 500 full-time jobs by 2022
- Removing the “Court of Justice of the Republic” and providing that members of government will henceforth be judged by the Paris Court of Appeal
- Removing the possibility for former French Presidents to be ex officio members of the Constitutional Council
In the field of civil justice:
- Encouraging amicable resolution of conflicts: possibility of an injunction to meet a mediator or of ordering a mediation with both parties’ agreement, obligation to conduct an attempt of amicable resolution in the case of neighborhood disputes or when the interest at stake is below a certain amount
- Reducing the role of the courts for certain acts by entrusting, if need be, their missions to other actors (such as public and ministerial officers or public bodies): acts of notoriety, maintenance allowances, modification of marital regimes, , apostilles and certifications, management of the funds in case of remuneration seizure, modification of the use of residential premises, management of guardianship accounts
- Specifying the rules determining the rates of regulated professions and adding the possibility to allow for discounts
- Clarifying the conditions under which all court decisions will be made available to the public and will be pseudoanonymised.
In the field of criminal justice:
- Establishing an experimental departmental criminal court composed of professional magistrates and simplifying the procedures for serious crimes in order to speed up the judgment of criminal cases
- Increasing the number of criminal cases heard by a single judge , notably on appeal
- Extending the single judge system, notably on appeal
- Extending the possibilities of electronic communications interception, geolocation, sound techniques, image capture and data
- Modifying the criminal procedure in order to extend investigators’ prerogatives, to extend the possibilities of investigation under pseudonym, to extend the duration of police custody and of flagrancy investigations, to simplify access to both information and instruction (allowing the use of video conferences for instance)
- Facilitating negotiation in criminal matters: widening the possibilities of penal composition, modifying the procedure on prior recognition of guilt
- Developing alternatives to detention for sentences of less than one year: no imprisonment of less than one month, sentences of less than six months executed outside prison facilities (home arrest under electronic monitoring, semi-liberty, outside placement) unless otherwise decided by the judge, bracelet or detention for sentences between 6 months and 1 year.
In the field of administrative justice:
- Reducing the number of cases heard by administrative courts, extending the experimentation of mandatory mediation, using honorary judges, recruiting assistant lawyers or paralegals
- Implementing collegiality in contractual and pre-contractual emergency proceedings
- Reinforcing the administrative court’s powers of injunction
Concurrently, a number of measures announced by candidate Macron during the presidential campaign have not (yet) been realized.
Measures that have been announced but are not yet engaged:
- Establishing a unique reception service for litigants during the year 2018
- Using the website justice.fr to allow litigants to access their file and make appointments online
- Improving technical means (network throughput, hardware – ultraportable smartphones, videoconference, large documents exchange platform, e-mailed letters)
- Unique referral procedure to start proceedings before civil courts
- Online referral of the civil judge and online legal aid application
- Possibility of online access to the litigant’s file during civil proceedings
- Immediate enforceability of first instance decisions
- Reinforcing the powers of the Conseil supérieur de la Magistrature (High Judicial Council) by requiring its approval for the nomination of new prosecutors.
Partially kept promises:
- The justice system has not (yet) experienced a profound reorganization of appeal courts, but only simple experiments at the regional level (so that the first presidents and attorney generals can animate and coordinate several courts of appeal located in the same region and the possibility that certain courts designated by decree specialize for certain civil disputes).
- The announced measures are still far from a digital public service of justice with a single access portal on the model of the French website for taxation impots.gouv.fr.
- Although online platforms of amicable resolution of disputes are regulated and certified, there is no mention, at this stage, of the possibility to conclude enforceable agreements that would have the force of a judgment when the platform is managed by a professional structure which includes lawyers, bailiffs or notaries.
- Although alternative measures to imprisonment are present in the project, the creation of an agency is not on the agenda.
- Despite measures relating to minors, nothing has really been done on the placement, with reinforced monitoring, of non-delinquent minors in educational assistance, on “closed” educational centers or on programs to help parents of minors in difficulty.
Promises that have not been kept (yet):
- No strengthening (for now) of the prohibition on the Minister of Justice against giving instructions in individual cases
- No reform of legal aid
- No automation of repetitive tasks or deployment of decision support tools.
Rather than immediately applying the campaign program, the government entrusted experts with the task of deciding on the desirable evolution of the judicial institution. This approach led it to engage in reforms consistent with the presidential program while taking into account reports delivered as a result of the work produced by the Chantiers de la justice.
The government has thus introduced in the justice programming bill, measures that were not included in the program: the departmental criminal court, the reform of the criminal procedure towards an extension of investigators’ prerogatives, diversion measures. These measures are not only justified by the wish for better organization and greater efficiency of the justice system, but also by the objective to save costs.
For the time being, the announced reforms are facing reluctance from a number of professionals, who fear that a logic that is too “managerial” and focused on efficiency will jeopardize the rights of litigants, be it in terms of access to justice or of rights of defence. It is certainly because of this resistance that the government has, for example, limited the reorganization of the justice system and committed not to close any jurisdiction.
Another source of tension is the method adopted: the justice programming bill includes several enabling provisions to legislate through ordinances (which do not require the Parliament’s approval).
Besides, the digital transformation, although appearing in the campaign program, generates skepticism among certain professionals, who see in the procedures’ dematerialization a reduction of the guarantees offered to litigants. It is also made difficult by the current state of equipment and the need to train all the actors of the judicial world.
Despite the government’s obvious concern to carry out the investments required to modernize the current equipment, the digital transformation announced by the presidential program appears difficult to achieve. It is necessary to make sure that the current tools whose further deployment is announced (Cassiopée in particular) have the necessary functionalities to achieve effective dematerialization of procedures (transmission and sharing of documents, transmission to different departments and jurisdictions). It is actually essential that the procedures’ dematerialization relies on a national digital platform, which would be accessible to all the involved jurisdictions and services, as well as attorneys. The tool should allow moving from paper mode to “everything digital”. As it stands, the issue of assessing the technical means necessary to ensure the dematerialization promised by the presidential program remains to be addressed.
Beyond the implementation of an effective dematerialization of procedures, the question of the possibilities offered by artificial intelligence will have to be considered. Both court offices and judges could benefit greatly from new technologies to automate simple and repetitive tasks, such as drafting acts and decisions. It will also be necessary to further clarify the conditions under which, at the time of the open data policy, the tremendous possibilities offered by mass data analysis tools could be exploited. Finally, the courts will have to consider the conditions under which they themselves could offer litigants the litigation services that are currently provided by Legaltechs. All these steps should be accompanied by the education and training of all concerned actors.
In addition, it would be desirable to provide the Court of Cassation with the means to become an actual Supreme Court that rules on the most serious matters. Finally, it will be necessary to consider an in-depth reform of legal aid, including its funding.