Constitution et Institutions Françaises

Introduction aux Institutions Juridiques et Judiciaires

• The principle of separation of powers was formulated by the English philosopher John Locke in the late 17th century and theorized in France by Montesquieu in his work De l'esprit des lois in 1748.
• This principle is enshrined in the Declaration of the Rights of Man and of the Citizen of 1789 and has constitutional value.
• The classical theory of the separation of powers distinguishes three main functions within different political regimes:
  • Legislative function: the creation of general rules.
  • Executive function: the execution of these rules.
  • Judicial function: the resolution of disputes.
• The separation of legislative, executive, and judicial powers prevents their concentration in the hands of one person or group.
• In France, this is the system of separation of powers, and the course will examine the various bodies embodying these powers.

Partie 1 - Les Institutions Juridiques

Section 1 : Le Président de la République

• The President of the Republic is the head of state in republican countries.
• The President is elected for five years by direct universal suffrage.
• The President embodies the authority of the state, ensuring respect for the constitution, presiding over the Council of Ministers, promulgating laws, and commanding armed forces.
• The President can dissolve the National Assembly and, in serious crises, exercise exceptional powers (Article 16 of the Constitution).
• The President appoints the Prime Minister and, on the proposal of the Prime Minister, the members of the Government (Article 8 of the Constitution).
• Emmanuel Macron was elected the eighth President of the Fifth Republic on May 7, 2017.

Section 2 : Le Premier ministre et le Gouvernement

• The Government comprises ministers under the authority of the Prime Minister, who is appointed by the President.
• The Prime Minister directs government action.
• The current Prime Minister of France is Michel Barnier.
• The government is a collegiate and joint body.
• Under the leadership of the Prime Minister, the Government defines and implements national policy and manages public administration and the armed forces.
• Ministers direct their ministries and related decentralized services and public institutions.

Section 3 : Le Parlement

• The Parliament consists of the National Assembly and the Senate.
• This bicameral system has two chambers.

Section 4 : Le Conseil constitutionnel

• The Constitutional Council was established by the Constitution of the Fifth Republic on October 4, 1958.
• Its role includes verifying the constitutionality of laws.
• This is based on the theory of hierarchy of norms, formulated by Hans Kelsen.
• This theory posits that lower-level norms must conform to higher-level ones.
• The Council performs a priori and a posteriori review.
  • A priori: examines laws before they become effective.
  • A posteriori: reviews laws already enacted to ensure they comply with the constitution.

Partie 2 - Les Institutions Judiciaires

Section 1 : Notion de dualité juridictionnelle

• Since the French Revolution, the French justice system has been organized on two orders: judicial and administrative.
• The judicial order addresses disputes between individuals or entities and offences against criminal law.
• The administrative order handles disputes between individuals and the public administration or between different public bodies.
• In cases of conflicting jurisdiction, the Tribunal des Conflits determines the competent body.

Partie 3 : Les Juridictions de l'Ordre Administratif

Section 1 : Les juridictions administratives de droit commun

• The administrative courts resolve disputes between individuals and the administration, or between different administrative bodies.
• They act as the first instance court (that is, the first court to hear the case).
• They can be asked to review administrative decisions (such as refusal of building permits) or to hold the administration liable for damages (e.g., as the result of a hospital's error).
• They can also review the validity of local elections (municipal, cantonal, regional, or European).
• At the end of the trial, the administrative court can:
  • Cancel the administrative decision
  • Modify the decision
  • Order the administration to compensate the harmed party
  • Reject the legal action

Section 2 : Les juridictions spécialisées

• Specialized administrative courts deal with specific types of cases and must comply with specific rules.

Section 3 : Le Conseil d'État

• The Council of State is the supreme court of the administrative order.
• It is the final court of appeal for cases coming from administrative courts.
• It verifies that laws and administrative acts conform to the law and verifies they have been adopted with the correct procedure.
• It provides legal advice to the government.

Titre 4 : Les Principes de Fonctionnement de la Justice

• Independence: Judicial independence prevents external pressures (from the legislative or executive power) on judges in their decision-making, guaranteeing impartiality.
• Gratuitousness: The state funds the remuneration of judges but court fees and lawyer's fees are the responsibility of the parties. A legal aid system exists for those with limited resources.
• Double degree of jurisdiction: The possibility of appealing court decisions to a higher court ensures that judgments are reviewed by multiple courts of law. This is a necessary component of a fair justice system.
• Right to a fair trial: The principle of a fair trial offers protections to all parties in a legal proceeding, such as the right to a fair and impartial court, equal representation, respect for the law, and an equitable process.
• Presumption of innocence: A person is presumed innocent until proven guilty in a court of law. This is a fundamental principle of justice and fairness.

Partie 3 : Les Magistrats

• Judges (magistrats du siège): Independent and responsible for applying and interpreting laws.
• Prosecutors (magistrats du parquet): Represent the public interest and initiate legal proceedings while enforcing the right of the law based on the facts.