Tribune. The question of confidence in the judicial institution of the French and of those who reside on the territory of our Republic is once more raised within the framework of the States General of Justice, launched by the President of the Republic, in Poitiers, on the 18th October 2021. However, a central question is omitted from the subjects proposed for discussion, that of the status of public prosecutors within the judicial authority.
Indeed, the reform of the statute of the prosecution, announced for at least two five-year terms, but still postponed, will not take place during the one that ends, sacrificed on the altar of “affairs”, the last avatar of which is the indictment of the Keeper of the Seals, Eric Dupond-Moretti, for “illegal taking of interests” and the questioning by the latter of the National Financial Prosecutor’s Office.
The prerogatives constitutionally and legally available to the executive power to make or break the careers of public prosecutors, in particular public prosecutors and public prosecutors, nevertheless cast a permanent suspicion on the treatment by the prosecution of so-called “sensitive” files, in particular politico -financial. It has also been noted by various institutions, such as the European Court of Human Rights or The Organization for Economic Co-operation and Development. The latter was particularly critical in front of the reluctance of France to initiate prosecutions in matters of corruption, this, it is true, before the creation of the National Financial Prosecutor’s Office. [en 2014].
Unclear criteria
The prohibition made to the Minister of Justice, since the law of July 25, 2013, to send instructions to prosecutors in individual cases has not put an end to this suspicion. Especially since the umbilical cord that connects the prosecution to the executive continues, both through the provisions of the statutory ordinance of 22 December 1958 providing that public prosecutors are placed under the authority of the Minister of Justice and the obligation devolving on public prosecutors and public prosecutors to send information reports to “their” minister during “sensitive” procedures. The criteria for this feedback remain very vague, uncertain and ultimately left to the appreciation of the executive.
The career of magistrates is above all, and always, in the hands of the Keeper of the Seals, who can thus decide whether or not to promote a particular magistrate. Admittedly, the Superior Council of the Magistracy (CSM) intervenes in this process of appointment, but it does not have, in the texts, the certainty to have the last word.
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