Analysis
14 July 2018

Constitutional Council rules Executive prosecutorial oversight not in breach of separation of panel on the independence of the Public Prosecutor towards the executive

Bastille Day Newsletter 2018 - Enforcement / Court Decisions

 

Article 5 of the legal ordinance of December 22, 1958 provides that: “Prosecutors are placed under the direction and control of their hierarchy and under the authority of the Minister of Justice. At the hearing, their word is free.”

The independence of the Public Prosecutor is a long-standing debate and is subjected to harsh criticism. The judges union representatives indeed considered that the abovementioned provisions violate the principle of the separation of powers. On December 8, 2017 the Constitutional Council however ruled that article 5 of the legal ordinance of December 22, 1958 was in compliance with the Constitution. The Constitutional Council indeed considered that this article is compatible with the independence of the judiciary. Indeed, pursuant to article 30 of the French criminal procedure code the Minister of Justice provides general instructions with regard to the criminal policy to prosecutors but not for individual cases. The Constitutional Council thus considered that the provisions of the French constitution guarantee a well-balanced system between the independence of the judiciary and the government prerogatives and do not violate the principle of the separation of powers.

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