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Revue internationale de droit pénal

Vol. 72 2001/1-2
The presumption of innocence and the cour d’assises : is France ready for
adversarial procedure ?
Michel Bonnieu [*]

Plan de l'article
I. Introduction

In France there is no lay participation in criminal trials except in the Cour d’Assises commonly
referred to as les Assises. Therefore it must be stressed that lay participation is to be found
neither in criminal courts at first instance nor in the criminal chambers of the courts of appeal.
And, of course, there is no lay participation in the Supreme Court called Cour de Cassation. In
that respect the la Cour d’Assises is a unique example in the French judicial system.
Another peculiarity of the Cour d’Assises is that it does not sit full time. It is not a permanent
court.
The Cour d’Assises is a mixed lay assessor court composed of three professional judges and nine
« jurors » drawn by lots from the electoral lists.
When referring to the la Cour d’Assises it would be better to use the plural since, as one may
easily understand, there is not a single Cour d’Assises on the French territory.
It should also be mentioned that special Juvenile Cour d’Assises judge young people if they are
charged with crimes allegedly committed between the age of 16 and the legal age of majority
which is 18 in France.
Articles 231 onwards of the Code of Criminal Procedure (CPP) regulate the existence of the
Cour d’Assises and lay participation. Article 232 reads : Il est tenu des assises à Paris et dans
chaque département. It means that terms of Court called sessions are periodically held for the
trial of a certain list of crimes and related offences in Paris as well as in the 100 French
administrative “départements”. Once a session is over the Cour d’Assises splits up and the
judges and lay assessors never sit together again in a criminal trial. It has been named Cour
d’Assises since 1808 in the former Criminal Instruction Code.
After two hundred years of existence, the Cour d’Assises may today be at a turn in its history.
However, the legitimacy of the use of lay assessors does not seem to be at stake. However some
verdicts have caused confusion and suspicion of possible miscarriages of justice. Originally the
Cour d’Assises was meant to be a democratic institution, a protection against absolute monarchy.
It was founded as a reaction to the omnipotence of the Parlements of the 18th century and the
introduction of lay assessors was then perceived as a guarantee for defendants. This humanist
point of view has been altered by realities and today the Cour d’Assises sometimes gives the
same impression of omnipotence as the former Parlements. The reason is that decisions of the
Cour d’Assises may not be reviewed whereas the decisions of “lower” criminal Courts may be
sent to the Court of Appeal. Therefore there is an urge to reform the Cour d’Assises.
But then, a first contradiction manifests itself : is it possible to review decisions which are
supposed to express “the will of the people”? If so there is a second paradox related to the key
principle of intime conviction. As a consequence of intime conviction the law does not impose an
obligation to give reasons in the judgements of the Cour d’Assises. If a possibility to review its
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2 Principle of unity. It sits in Bordeaux.4 Opening of sessions. is the specific reasoning applied to law ready to accept “external principles” such as intime conviction ? In my opinion this issue explains why no major reform of the Cour d’Assises was passed in its two hundred years of existence.3 Venue of sessions. Each session opens at the date and time determined by the First President. Therefore the common situation is four sessions per year. of the département. defendants should be put in a position to understand on what grounds they have been convicted. The session is closed when the complete list of cases has been examined. 2. I will present a brief history of the Cour d’Assises and an overview of the criticisms of this institution. The Cour d’Assises usually uses the premises of the Court of Appeal as well as those of the main Tribunal Correctionnel. I shall try to give you my personal opinion as an examining magistrate. 2. Before concluding. [2] If necessary. Before I deal with the Cour d’Assises as such I would like to introduce some information about ongoing reforms of the French judicial system. However. 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. It may vary from one session to the other according to the number and importance of cases but the principle is. For instance les Assises de la Gironde refers to the Court d’Assises which has jurisdiction for criminal trials in the area of Bordeaux. I shall summarize in a third part the different proposals that have been made. It is the heritage of our philosophers. In a second part.decisions is to be implemented. Such is the case in Paris where four autonomous sections can be in session at the same time. II. 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 main city in Gironde. to reform the Cour d’Assises. General Organisation of the Cour d’assises. I also would like to inform you that my sources almost exclusively originate from what we call in France l’exposé des motifs of bills respectively submitted to the French Parliament in 1997 and in 1999.1 Seat of the Cour d’Assises The Cour d’Assises is to be found in Paris as well as in each administrative division of the French territory called département. 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. The legal existence of the Cour d’Assises begins at that moment. There is only one Cour d’Assises per département. that the session cannot be closed if all of the cases have not been 2 . 2. I shall mainly focus on the 1997 project because it almost came into force. additional sessions may be convened for urgent cases or when a great number of cases are pending. [1] That explains why each Cour d’Assises is named after the département where the Courseats. In that context how can the rationality of French law integrate the irrationality of intime conviction? In other words. particularly Descartes. 2. so far. Therefore I shall start with part V of my paper called “the presumption of innocence throughout criminal proceedings” since this question is currently being debated in Parliament. Two types of sessions must be distinguished : ordinary ones and additional ones. At this juncture. The venues are organized on a quarterly basis starting from the first of January. Hence a necessity to give reasons ! French law is based on rationality. To be more specific the resort is made up of several départements which are under the jurisdiction of the Court of Appeal.

III. examining magistrates are requested to make a provisional list of cases they expect to send to the next session of Assises. Later the Criminal Procedure Ordinance enacted on the 20th of April 1945 raised their number to seven. 3. just before the examination of each case. 3. respectively five and four. The selecting of the lay assessors is quite a long-lasting and complex procedure. even though he/she is a judge of the bench. Some people for some reasons or others are not eligible. Their number is limited to two and they are called assessors. Then in a last stage nine lay participants plus two “substitutes” are drawn by the President. The defendant and the public prosecutor have a right to exclude jurors. persons whose professions do not permit them to be selected (member of the government. 3. cannot be appointed as assesseur in the cases he/she has previously investigated. in his honor and conscience.5 Jurisdiction of lay assessors. [3] A number of additional jurors . The main concern in selecting the jury is that the non-professional judges must be a representative sample of the population in the département. security and quiet during proceedings. This list has to be communicated three months in advance. It must be mentioned that can examine magistrate. However the law strictly limits his/her powers.usually two . Since the legislative enactment of the Code of Criminal Procedure in 1958 the sitting jury shall have nine members. Professional Judges and Lay Participation in the Cour d’assiseS.3 Lay assessors. (2) Art 310 of the same Code that the president is vested with a discretionary power in order to provide. profession. The First President of the Cour d’Appel appoints professional judges for the session. The number of lay assessors is a recurrent issue. The Criminal Procedure Law enacted on July 28. The President has specific powers during the session.called jurés suppléants are drawn on the same occasion. in open court. The number of people varies according to the population of the département. age. 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. of parliament. etc.adjudged. Here are two examples : (1) § 309 CPP enables him/her to take all appropriate measures to ensure order. without giving any reason. 3. Then this list is checked and reduced by a specific judicial committee according to various criteria such as nationality. police officers) or people linked to a party in the case. any appropriate measure for the ascertainment of the truth. In order to ensure a smooth organization. Here are some examples illustrating this point : persons convicted of a crime. a provisional annual list is drawn by lots from electoral lists. capacity. the President must be chosen from the bench of the Court of Appeal.2 Professional assessors. By way of a court order. The 1941 law reduced their number to six. 3.1 Presidency of the Cour d’Assises. the First President of the Court of Appeal has jurisdiction to appoint the President of the Assises for each session.4 Number of lay assessors. According to § 244 CPP. 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. They must be judges of the bench either selected from the Court of Appeal or any other court of the département. The second concern is that the list has to be established at random. magistrates. In that respect. 3 .1978 regulates the selection of the jurors.

Therefore. 4.2 Prohibition of communication. 3. Proceedings Before the Cour d’assises. 3. Lay assessors and professional magistrates alike have the duty to seek the truth and ensure the equal application of the law.3 Prohibition to express personal opinion. Lay assessors are free to move about whenever the session is suspended. 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. fact. 3. applause.1 Principle of oral proceedings Even though there is no clear indication in the law. the President has 4 . After deliberations lay assessors still have an obligation of confidentiality concerning any question related to the case. [4] However according to a Supreme Court precedent [5] the trial must be oral.6.6 Rights and obligations of lay assessors during the proceedings.6. No other restriction to curb the power of the lay assessors.2 Principle of public hearing This principle is the direct application in the national procedure of the European Convention on Human Rights (ECHR). This means that the Court is collectively responsible for all questions of law. For the specific case of the Cour d’Assises this principle is laid down in § 306 CPP. Lay assessors may communicate with each other. But they are not allowed to discuss facts related to the case with third persons. the lay assessors may not express their own opinion in any way about the facts of the case in relation to the possible guilt of the defendant.The lay assessors are placed under oath. IV. It is first mentioned in the oath put to the lay assessors. In case of violation of this rule the lay assessor can be replaced. proceedings before the Cour d’Assises are oral. The Cour d’Assises is thus responsible for the ascertainment of truth and the procedural fairness of the criminal trial. In fact lay assessors are vested with a preponderant role thanks to the “majority rule” which has prevailed since 1958. Therefore the jurisdiction of the lay assessors is not different from that of the professional magistrates. sighs etc. Lay assessors have a right to put questions to the defendant and to witnesses after formal authorisation by the President. Therefore. guilt and sentence.. During the trial. Then the Cour d’Assises must apply the law to the facts of the case and determine the sentence.3 Principle of intime conviction. The press and public may be excluded from the trial for reasons of morals. 4. public order or national security interests or where interests of juveniles or the parties so require.4 Principle of confidentiality. decisions of the lay assessors and professional judges have to be based on their intime conviction as a result of oral proceedings. is therefore prohibited. they may not express their personal opinion on any evidence brought by the public prosecutor. the intime conviction of the Cour d’Assises must be based on oral proceedings and not on the written documents of the file.6. [6] Then before the Court retires to a secluded room to deliberate. Similarly. The mixed court must decide the case. The expression of personal attitudes such as nodding. 3. This principle is very important in French procedure. It has to determine the issue of guilt including aggravating or mitigating circumstances. There is an important restriction to the said principle in the same article. 3.1 Right to put questions.6. 4.

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. that is to say. The results of the vote appear on the question sheet which is signed by the President and the First lay assessor. If the verdict cannot be reached there is a second vote. eight votes at least are required to reach a verdict against the defendant. which have to be answered negatively require eight no answers. Vote on sentence takes place immediately after the guilt verdict.2 Vote on sentence. Therefore crimes against persons such as aggravated murder. Unlike the vote on guilt. 4.1981. If there is still a tie the Court has to vote on a lower sentence and so on and so forth until an agreement on the sentence is reached. 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.6. They do not have access to the file. and not necessarily those described in the indictment. The vote is secret. The President formulates the questions in precise terms. No other reasons are given in the judgement. 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. with one substantial difference. imprisonment for life has replaced capital punishment. The procedure is similar to the previous one. On the other hand. For other criminal offences the minimum punishment possible is five years imprisonment. Thus questions requiring of the lay assessors the judicial qualification of the facts or of the status of the defendant may not be posed. Of course the questions related to excuses and mitigating circumstances. They are allowed to put questions. Indications of the place and date of the alleged facts should also be included in the questions whenever possible. According to § 339 CPP. which is the document upon which the decision of acquittal or conviction is based.6. Each member of the Cour d’Assises has to answer yes or no on a piece of paper to one question after the other. Blank votes are considered to be in favour of the defendant. a simple majority is required. 4.to read to the lay assessors a sort of ethics code which ends up with the following question : « Do you have an intime conviction?. Since the 1941 reform professional judges and lay assessors deliberate and vote together on the questions of guilt and sentence. 4. Since the Law of October 9.5 Questions put to the jury.6 Voting procedures. Lay assessors have a decisive role. murder or rape are punishable on this basis. 4. There is a distinction between primary and additional questions. The questions must refer to the acts and should not include legal matters. seven votes. No reasons are given. Therefore their intime conviction has to be based on the testimony of the defendant. 5 . They must relate precisely to facts of the case as they were presented at trial. If the answer to the question is “yes” it implies that judges have rejected any possible cause of diminished responsibility. complicity or legal excuses. For all other issues in favour of the defendant only seven votes are required. Lay judges are duty-bound to pay proper attention to the testimony. The Court first votes on the maximum sentence applicable as indicated in the law.4 Lay judges and hearings. They must be answered in the order put by the President according to the provisions of § 356 CPP. the witnesses and the experts. 4. five dissenting votes are sufficient for a decision of acquittal. This rule is applied to the questions on guilt and aggravating circumstances which require at least eight yes votes.1 Vote on the guilt issue. the victim. Lay assessors and professional magistrates vote on every question separately. The President has to prepare the question sheet. insanity or any other legal defence.

the public prosecutor and the victim. Some observers believe that France is gradually changing from a neo-inquisitorial to an accusatory criminal justice system. and to guarantee the respect for the presumption of innocence. Before I briefly describe the salient modifications proposed in the bill on the presumption of innocence issue. The public prosecutor also attends. A reform of criminal procedure is soon to be enacted. If the examining magistrate has kept the person in detention on remand up to the date of the trial. that is to say. 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. Many reforms of our criminal procedure have been undertaken in the last 20 years. a strong presumption of guilt weighs against him/her. I would like to make two preliminary observations. Some aspects of the adversary principle have been introduced. The situation of the examining magistrate may seem quite peculiar. The second observation refers to the possible influence of examining magistrate’s decisions on lay assessors. And yet a bill which will profoundly amend the Code of Criminal Procedure is currently under study by the French Parliament. 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. The Chambre d’Accusation is composed of three professional Bench magistrates. The recommendations are organised around four main ideas. may have a great influence. The 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. the criminal lawyer will try to use this to instil a doubt on the issue of guilt in the lay assessors’ minds. The President reads the declaration of the Court. In fact one can say that at this stage of the procedure the adversary character of the proceedings depends mostly upon the examining Magistrate. especially on nonlegally trained lay assessors. Quite unexpectedly there is no particular recommendation concerning the Court d’Assises. The issue of pre-trial detention is a prime example. that is why it has been solemnly emphasised that the objective of the bill is to ensure his/her neutral position between the defendant. Presumption of Innocence Throughout Criminal Proceedings 5. This declaration takes the place of reasons. The main points of the draft text on the question of presumption of innocence follow. The 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). According to the draft text the examining magistrate will still be dutybound to carry out the investigations. [7] including the 1996-1997 attempt to reform the Cour d’Assises.1 Introduction. 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. On the contrary. In both cases the legal reasons might be completely different and the examining magistrate. 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. 6 . For the time being. the court’s answers to the questions according to the principle of intime conviction.The judgement is pronounced publicly in the presence of the defendant and the public prosecutor. some measures which the examining magistrate does or does not take. to seek the truth. The first one is related to the position of the examining magistrate. decisions taken by examining magistrates during investigations may be appealed to a specialised division of the Court of Appeal named Chambre d’accusation. V.

The idea is that by virtue of the principle of the presumption of innocence. Some adversarial aspects have been included. Pretrial detention would be limited to certain cases : (1) offences against the person if they are punishable by a minimum term of two years imprisonment. 5. [8] They aim at granting greater protection for the defendant’s reputation. VI. The aim is to emphasise the right to be judged within reasonable time. These recommendations are related to the freedom of the press. the questioning of witnesses. especially at the stage of the investigation. the right to counsel is granted only in a similar vein. Some adversarial elements will also be implemented here.2. When the investigative phase is completed. The person is mise en examen by the examining magistrate at the very beginning of the proceedings (notification of charges).5. the spot. Under the current law. he has the right to ask the magistrate to undertake some acts which he regards as necessary to ascertain the truth. A 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 issue of pretrial detention would be debated by the judge.3 Recommendations reforming pretrial detention. it has been proposed that the examining magistrate should only question a defendant in the presence of a criminal lawyer. (2) Offences against the property punishable by a minimum term of three years. any pre-trial detention decision should be based on legitimate and exceptional reasons. the practice of detention on remand should be strictly limited in order to prevent potential abuse. The examining magistrate is still in charge of the investigation but a criminal lawyer must assist the defendant during the proceedings.2.2. public prosecutor and defense openly in adversarial proceedings and written reasons for the decision should be given. Criticism of the Cour d’assises. This is a convenient transition back to the issue of the Cour d’Assises. discharge or acquittal) the defendant would be given a right to financial compensation.F could be assessed. 5.5 Recommendations concerning communication with the media. 5.1 The right to counsel during police and judicial hearings. In this respect pictures showing a handcuffed person should neither be published in the press nor shown on television. Hence. The bill tries to combine the principle of necessity and the principle of proportionality. In case of infringement of this rule. He/she may dismiss the case.2 Enhancement of defendant’s rights during judicial proceedings. the examining magistrate has three options. visits of the scene. 7 . appointment of experts. From then on as a defendant. send it to a criminal court or send it to the Cour d’Assises through the Chambre d’accusation. 5. especially during the first hearing called Interrogatoire de première comparution during which the magistrate must notify the defendant of the charges against him/her. etc. The existing right of response should be broadened and the period to exercise it would be increased from eight days to three months. heavy fines reaching 100 000 F. The period of pretrial detention would be limited. The bill proposes the creation of a judge in charge of pretrial detention who would occupy a neutral position. In the case of unnecessary detention (in cases ending in dismissal. 5. The Investigating magistrate will no longer be in charge of pretrial detention. Recommendations strengthening the rights of the defendant.4 Recommendations concerning length of proceedings. It has been recommended that the person detained or remanded in custody for the purpose of either police questioning or judicial investigation shall have a right to legal assistance from a professional lawyer from the beginning of the investigation (“first hour principle”) after the suspect has spent 20 hours in custody.

Ordinance of the Vichy Government of April 20. 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. because it is strictly limited to points of law. which had previously been prepared by the administrative authorities. 6. 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. [10] Sharp criticisms emphasise the fact that the French procedural system does not comply with § 2.. jurors occasionally would bring in acquittal verdicts in cases where the guilt of the defendant was obvious.1941.1932. however. Quite recently this possibility was successfully used. which was initially limited to the guilt question. The 1958 Code of Criminal Procedure changed little in the organisation of the Cour d’Assises. 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. These courts were named Cour d’Assises in the 1808 Criminal Instruction Code because they were not permanent courts. In principle the victim cannot appeal criminal decisions. made the jurors and the professional magistrates collectively responsible for all questions of law. that is. A law enacted in 1978 reformed jury selection and introduced the principle of drawings by lots from the outset. guilt and innocence whilst reducing the number of lay assessors to seven. 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. Finally a law enacted on March 5. a minimum of five. 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. Efforts were also made to ensure a more democratic selection of jurors who were drawn by lots but from lists. Thus anyone who met the legal requirements could participate if his/her name was picked. Parallel efforts were made to extend the jurisdiction of the jurors. The Supreme Court does not review the facts of the case and the questions of guilt and sentence. The selection of the jurors was based on criteria such as wealth.6. social position or education. Thus the initial desire to have the decisions on guilt and sentence decided by the people has been achieved. In order to avoid severe sentences by professional magistrates.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 8 . 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. united jurors and professional magistrates to decide the question of sentence.1 Brief history of the Cour d’Assises The Cour d’Assises finds its origins in English tradition.2 Appeal to the Cour de cassation. 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. [9] This is not a full appeal. The 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. From 1808 to 1941 the Cour d’Assises did not change very much. The system of yes and no questions put to the jurors was implemented as early as 1791. fact. The jury was perceived as an efficient instrument against absolute monarchy. There is another limited way for the defendant to have the decision reviewed.

5 No reasons given in the decision As a consequence of the principle intime conviction and strict limitations on the right to appeal Cour d’Assises decisions. They are no longer willing to accept a verdict just because it is the expression of their will. Decisions may vary greatly between one Cour d’Assises to the other. it should also be remembered that capital punishment was abolished in 1981 in France.court. At this junction. Moreover 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. fact. They take it for a democratic institution which guarantees the fairness of the criminal trial and the ascertainment of truth. 6. The form of lay participation in a « mixed court » composed of professional judges and lay assessors collectively responsible for all questions of law.3 Procedural rules regulating criminal trials. In my opinion there is no contradiction. But 71% of the sample also want a reform. professional judges and lay assessors do not give reasons for their decisions. 6. The weaknesses of the system have been stressed before. 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. Such may be the case when all 9 . They have no reason to influence lay assessors and experience shows that they are quite often overruled. The procedural rules regulating the proceedings before the Cour d’Assises are extremely dense and interwoven. This collective responsibility is a guarantee of the fairness of the trial. This means that people have been executed without having a possibility to fully review the decision. guilt and sentence is not discussed at length either. Even though « Cour d’Assises » judgements are the expression of the « will of the people ». Today. 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. the people want to understand on what grounds decisions are made. 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. The Anglo-American practice of consensual disposition of criminal case “plea bargaining” does not exist. To illustrate this point. What Will Lay Participation in the Criminal Trial Be Like in France in the 21 st Century ? 7. Due to the fact that the Cour d’Assises does not sit continuously. VII. The presiding judge and his/her two professional assessors are not elected and their independence is ensured by the principle of non-transferability.4 Length of proceedings The 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. 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.1 Introduction French people don’t view the Cour d’Assises as archaic. 7. some cases can be pending for months. However 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. public opinion does not always trust their sentencing decisions.2 Why a reform for the Cour d’Assises ? A survey published in “Le Figaro” showed that 82% of the population is satisfied with this system.

3 What reform for the Cour d’Assises ? There 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. two professional assessors and five lay assessors. 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 Tribunal d’Assises was supposed to have jurisdiction at the département level. 10 . [12] This Cour d’Assises d’Appel would have had jurisdiction to retry the decisions of the lower Cour d’Assises. The trial of crimes would be by a court composed of three professional judges and two assessors selected according to personal criteria. The existing Cour d’Assises would be maintained as a court of appeal of the first instance decisions. Its composition would have been slightly different from the present one. Several reform proposals have been made but so far none has come to fruition. however. Recent « unusual » verdicts have added confusion. The presidential pardon he was given recently illustrates the confusion. The first degree murder verdict against Omar Raddad (14 years imprisonment) is a prime example. fact. The right to have one’s conviction or sentence reviewed would have been made possible. The idea was to abandon selection of jurors by the drawing of lots maintained in the first instance. The principle of intime conviction is not sufficient to ascertain the truth and the issue of guilt. 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. Basically. 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. A fourth proposal emphasized the hypothetical advantages of a system allowing appeals to a higher Cour d’Assises. 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. Therefore a second trial of crimes should be made possible in order to diminish the likelihood of miscarriages of justice. that of the ressort of the Court of Appeal which covers several départements. These proposals to curb the power or jurisdiction of lay assessors were rejected after serious discussions. Other cases such as Miss and Tiennot or Seznec. According to a consulting committee headed by M. Lay assessors were chosen according to the same procedure. 7. [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. are very disturbing. Special 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. the idea was to allow a decision of the Cour d’Assises to be reviewed for all questions of law. (b) before a higher court. that of one presiding professional judge. It recommended setting up two Cour d’Assises in order to permit (a) a proper appeal. A first proposal consisting in what has been called un appel tournant has been introduced. 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. three professional magistrates and nine lay assessors drawn by lots from a larger area.the evidence has not been properly gathered. A second proposal suggested that Cour d’Assises decisions should be appealed to appeal to a professional court made up exclusively of legally trained judges. The Cour d’Assises d’Appel was to have the same composition as the present Cour d’Assises that is to say. guilt and sentence by another Cour d’Assises in another département ). The Tribunal was meant to have the same jurisdiction as the present Cour d’Assises. This reform would have substantial changes in the present system. A third proposal consisted in turning the Cour d’Assises into a first instance court. people convicted of murder who have been claiming innocence for years.

In this regard some proposals were made such as that of giving sui generis reasons. In that case.s have also insisted on the difficulty giving reasons at the same time as the verdict.Ps also discussed the question of when reasons should be drafted and who would formulate them. lay participation is only found at the Cour d’Assises the court which has jurisdiction to judge crimes and related offences. But the main argument focused on the requirement to give reasons in the decisions. The larger number of lay assessors . According to the second contradiction between the necessity to give reasons and intime conviction.Ps objected that it was unrealistic. The theory of popular sovereignty and the principle of secrecy of the vote explain why the law does not impose an 11 . 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. 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. Votes are secret. This expense had not been budgeted and some M. M. there is a strong demand for additional lay participation at different levels. There was a heated debate on this proposal because some M.would have made retrial of the former convictions possible even though they were the expression of “the will of the people”(c). According to them the vote would not remain secret as it should. what would happen if the lay assessors did not agree with the President ? VIII.P.The larger number of lay assessors drawn by lots from a wider area. The reform would have required at least 100 additional professional judges and 45 clerks. Since the eighteenth century the decisions of the Cour d’Assises are based on the principle of intime conviction and are supposed to express the will of the people. however. M. This reform was not enacted because of its cost and the major difficulties in its implementation. It is a nonsense to give reasons for decisions taken in one’s heart. 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. Conclusion Lay participation in criminal trials is not discussed much in France. But it is also necessary to ensure that the law is correctly applied and that all relevant circumstances have been taken into account.etc. It obviously requires more time to draft a decision and it would be difficult to do it after long hours of proceedings and deliberations.Ps. different from those usually done by criminal courts.. In addition.nine as compared to five for the tribunal . [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. a proposal was made to reduce the minimum age of lay assessors from 23 to 18. They have also pointed out that lay assessors and professional judges alike are bound to reach their own decision based on the oral proceedings. It is hardly possible to demand that lay assessors state their own reasons for the verdict. 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. In fact. It required a double selection of jurors. combined with higher judges from the Court of Appeal met the requirements of a higher appellate tribunal (b). At present. 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. MPs 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.

MODERN & CONTEMPORARY FRANCE (1998). Cour d’Assises verdicts will require more transparency. Since the vote is secret and based on one’s intime conviction.1986. The main difficulty will then lie in the contradiction between the requirement to give reasons and the principle of intime conviction because Cour d’Assises decisions are taken after a secret vote. The main difficulties facing a reform of the Cour d’Assises may be summarised as follows : Should a professional judge be duty-bound to draft reasons “explaining” the nine lay assessors’intime conviction? That is the question which confronts us at the millennium. · Vous êtes juré. But. Publication du Ministère de la Justice. · Les jurés de Cour d’Assises. 22 Septembre 1998. Associate professor-University of ORLEANS (FRANCE). [10] The case of Mr. 1996.1984.1987.(Juge d’Instruction . Traité formulaire. BIBLIOGRAPHIE · ANGEVIN HENRI.crim. [2] 33 Courts of Appeal in France. They will have to be understood by ordinary people. Code de Procédure Pénale 1998-1999.1989. 232.1975. [5] Cass. La réforme de la justice en France : un nouveau coup d’épée dans l’eau ?. In my opinion the reform of the Cour d’Assises is on the way. Pascale.14 March 1984 [6] (CPP § 304 [7] 1970. Rida Daalouche. 03 Juillet 1996. CPC. 12 .Publication de l’Ecole Nationale de la Magistrature.1981.1995.1985. [4] See § 347 CPP.Cour d’Appel de BOURGES). This is also why no proper appeal has originally thought to have been necessary.6(1). [9] CPP § 567.as amended by protocol n° 11.75-85 Peyrot & Vernier “La Cour d’Assises” Que Sais-Je ? · European Convention on Human rights. If so. NOTES [*] Judge. [8] 1881 Law on the press. Public opinion is in favour of granting a convicted person the possibility of having his/her conviction or sentence reviewed by a higher tribunal. LA PRATIQUE DE LA COUR D’ASSISES. [3] Cf. [1] CPP art.1992. · Articles de presse parus dans « Le Monde ». · Projet de Loi n° 2938 portant réforme de la procédure criminelle. · Projet de Loi n° 1079 renforçant la protection de la présomption d’innocence et les droits des victimes. LITEC 1989. the situation is changing. France has to comply with international requirements such as those of the European Convention of Human Rights. § 296. · Les Assises. it is impossible to know the grounds on which lay assessors have based their decision. · Feuillee-Kendall.obligation to give reasons in the decisions. Publication du Ministère de la Justice . « Le Figaro » et « Libération » au cours des années 1996-1997 1998 et 1999. Sooner or later the possibility for appeal will be introduced in France.

[13] See above 13 . [12] See above.[11] See above.