Questionnaire - France

Answers for France.

1. The proportion and the number of cases in the administrative courts who have been waiting longer than the time limits set down by the European Court on Human Rights. 
Council of state (Conseil d’Etat)
9 174 pending cases in 2008 (31 December)

On January the 1st (2009), 84 cases were older than 3 years old.

The “average expectable length of proceedings” is about 9 months.
The average length of proceedings is from 14 months to 18 months, depending on the type of litigation.

Courts of appeal (Cours administratives d’appel)
30 918 pending cases in 2008 (31 December)

The “average expectable length of proceedings” is about 13 months (13 months and 15 days)
The average length of proceedings for “regular proceedings” is about 16 months (16 months and 25 days)

Administrative court – first instance (Tribunaux administratifs)
210 408 pending cases in 2008 (31 December)

The “average expectable length of proceedings” is about 12 months (12 months and 29 days)

As for the emergency proceedings, the average length of proceedings fluctuates between 5 to 39 days depending on the kind of procedure.

National Court on Asylum right – first instance (Cour Nationale du droit d’Asile)

The “average expectable” length of proceedings is about 10 months.
The average length of proceedings for “regular proceedings” is about 15 months (15 months and 6 days)

The causes of delay

2. Is the number of cases judged by the administrative courts increasing each year ? If, yes what is the evolution during the past years? For the first instance, the courts of appeal, the supreme court? 
In administrative Courts (first instance) and in Courts of appeal, the number of cases judged is increasing each year.
The number of cases judged by the council of state and the National Court on Asylum right tends to decrease.

Council of state (Conseil d’Etat)

Courts of appeal (Cours administratives d’appel)

Administrative court – first instance (Tribunaux administratifs)

National Court on Asylum right – first instance (Cour Nationale du droit d’Asile)

3. Lack of resources at the courts, shortage of judges.
3.1. What is the number of the administrative judges in your country and the number of cases registered each year?
As the number of cases registered and the number of the judge change each year, the following data amount to the number of cases registered in 2008.

Council of state (Conseil d’Etat)
10 250 registered 
The number of cases registered before the council of state tends to decrease since 2004.

. about 280 judges.

Courts of appeal (Cours administratives d’appel)

.29 733 registered 
(+ 4,7% compared to 2007)

.249,31 judges.

Administrative court – first instance (Tribunaux administratifs)

.176 313 registered (+ 3,7% compared to 2007)

.666,86 judges.

National Court on Asylum right – first instance (Cour Nationale du droit d’Asile)
21 636 registered

.10 judges.

3.2. The number of judges is increasing or not ?
Yes the number of judges is increasing.

3.3. Is there inadequate support staff? The judges have assistants or not? 
Each court has a number of assistants according to the size of the court. Generally there is 1 assistant for 5 judges. 
This is not enough to enable judges to have an efficient collaboration with the assistants (unless when the assistant work only with the president of the panel), all the more so as the job of assistant is a part-time job.
3.4. Are judges obliged to deal with things that are not really judicial matters, and that other personnel could do instead? 
Yes, French administrative judges have to chair administrative committees (i.e.: disciplinary committee for local civil servants, dentists or medical practitioner; local committee about taxes; committee controlling the elections in universities...).

4. An uneven geographical distribution of courts within the country
In your country do some courts have too much workload and others not, due to demographical changes or other evolutions?
Yes, the courts which have jurisdiction over the big towns and over airports (Paris and its suburb, Marseilles, Lyon...) have much more workload than the others and the recent reforms have been mostly conceived in order to remedy for their obstruction by overload.
Furthermore, the law has recently changed the jurisdiction of the courts regarding the immigration law: It often depends on the location of the detention centre where the foreigner is detained. Therefore, the courts which have this centres in there geographical jurisdiction have more cases for this particular kind of litigation.

5. The organisation of the courts
5.1. The proportion of single judges and collegial judges. Is judging in chambers at first instance regarding as a source of delay? (It has been judged as a source of delay by the Court on Human Rights).
Example : Administrative justice in France was originally exclusively 
organised in colleges. But the intervention of single judges is increasing 
more and more. These single judges can perhaps work faster, but are they as 
independent as collegial judges ? Some of these single judges decide without 
an hearing. Are the reflections about this subject similar in the different 
European countries?
As it has been said in the above example, judging in chambers (not only at first instance) is regarding as a source of delay and a new reform plans to broaden the cases judged by single judge (also in courts of appeal, for immigration law).
5.2. Is there a specialisation of courts or of judges in your country ? Is it a way of avoiding delays?
Specialized courts have been created for some specific cases as the National Court on Asylum right but it does not appear to have improved the lengths of proceedings. In fact, this court has suffered from a lack of material and human resources for several years.
Administrative judges have usually no specialisation but the courts are divided into chambers to which are assigned specific kinds of litigation. In doing so, the judges consider regularly the same kind of cases and get used to the legal problems related to these cases and to the laws that has to be implemented. Hence, they might work faster. However, this kind of specialisation is not possible in small courts.

6. Inadequate procedural rules.
6.1. Are the procedural rules themselves creating delays, for instance by giving the parties too much time to answer?
For the taxation litigation, the administration has 6 months to answer the first writing of the claimant. It may be a source of delay. But mostly, the cases are not judged in time because there are too many for the number of judges.
Expertise may also cause serious delay for public contracts litigation and hospital liability litigation.
Interlocutory actions may also cause delay (when a court asks to an other a question of law: for example the administrative court ask an advice to the supreme court or when a court suspends the procedure waiting for a judgement of the civil court, for example on nationality). 
6.2. Oral hearings - Are the proceedings in the administrative courts mainly in writing (percentage)? If there are possibilities for oral hearings, are these hearings, in your opinion, too many or too few? Has your country been criticized by the European Court of Human Rights for not holding oral hearings? What is happening in oral hearings (are they prepondaretly devoted to take evidence (witnesses and experts) or to the question of law?
Most of the cases are dealt through writing proceedings and I believe that the vast majority of the administrative judges prefer this kind of proceedings. However, there are discussions about the advantages that could bring oral hearing in immigration litigations. 
Nowadays, the oral proceedings are devoted to emergency proceedings. The time of the hearing is then used for both production of evidences (usually writing documents) and question of law.
I have not heard that France would have been sanctioned by the European Court of Human Rights for not holding oral hearings.
6.3. In order to accelerate proceedings, do you think that the using of witnesses and experts ought to be encouraged? Are witnesses heard by the courts themselves or by the administration during the previous administrative procedure? Does the court nominate experts of its own or does he usually just refer to the expertises ordered by the administration? Which kind of experts does the administration use (civil servants who are employees of the administration or independent experts)? Which kind of experts are nominated by the court? Who has to cover the costs of all these experts? Are there rulings concerning recovery of these costs if the administration or the party wins the case? Can such costs be covered for parties who enjoy themselves of legal aid. 
1. French administrative judges rarely hear witnesses. Usually, the claimants make their witnesses filling in writing statements and send it with the copy of the identity card of the witnesses to the judge. These documents are taken like evidence. It is virtually the only way witnesses interfere in the procedures. Hence, the using of witnesses is not a source of delay.
2. As for expertises, it is one of source of delay. Therefore, I do not think their using should be encouraged as a way to accelerate proceedings.
The administration usually uses civil servants as experts or, when it has subscribed to an insurance policy, the expert of the insurance company (by example for engineer works). 
When a court orders an expertise, the experts are nominate by the judge. The experts are selected on a list of certified experts according to their specialisation.
The cost of the expert is usually covered temporary by the party who asked for it. But the party who lose the case will have to bear the cost of it at the end of the procedure.
The party who enjoy the legal aid does not have to pay the cost of the expertise.

6.4. Appeal - Is leave to appeal required to enable a court of appeal to consider a case? If not, do you think there ought to be?
No, leave to appeal is not required in France and I do not thing there ought to be.
6.5. What kinds of restrictions of judicial review are existing : a./ between the challenged decision of the administration and the first level of administrative jurisdiction? b./ between the different levels of the lawsuit within the administrative justice?
1. For some specific administrative decisions, the claimant has to present a request first before the administration then, if he/she is not satisfied with the answer of the administration, filing a claim before a court. If this compulsory preliminary procedure is disregarded, the judge has to reject the claim without hearing.
2. There are a several “filter” rules that should be respected by the claimants and the claim. If it is obvious (without need of investigation) that these rules are disregarded, the claim will be dismissed without hearing and without seeking the administration’s point.
The claimant has to have personal and direct interest in the claim, be in civil capacity to do it. Some litigations require the assistance of the lawyer. The claim must be written in French and it must provide supporting factual and legal arguments. In immigration cases, the judge has the possibility to reject the claim if the judge considers that it is obvious that the claim have no chance to be successful (in first instance only, but the council of state wants to broaden this rule for appeals).
3. The council of state has a specific filter.
After a summary proceeding (the claim is not sent to the administration but there may be a hearing), the council of state may dismiss the case because it manifestly fails to observe the basic rules to be heard or because the judges consider that there is no serious argument in the request.
4. When a case belong to a litigation which is judged by a single judge (the list of these litigations is provided by the law), the claimant is generally not enable to lodge for an appeal but have only the possibility to file a claim before the council of state.

6.6. What changes in procedural rules may, in your opinion, help accelerating procedures? In particular, what could be a court’s reaction if witnesses (also those who live abroad) do not appear before court or if experts are in delay to deliver their expertise.
French administrative judges rarely hear witnesses. Usually, the claimants make their witnesses filling in writing statements and send it with the copy of the identity card of the witnesses to the judge. These documents are taken like evidence. It is virtually the only way witnesses interfere in the procedures.
As for the experts, if they have accepted to make the expertise at first and do not fulfil their mission (omitting to provide their report or disregarding the time limit), they may be sanctioned by paying frustratory expenses and compensation (after having been heard by the court). They may also be replaced.

7. Goals set up by the Government or administrative authorities or stated by law
7.1. Has your government set up specific goals for how fast the administrative cases should be dealt with (before the administration and before administrative jurisdiction)?
The council of state, which manages the activity of the administrative courts, plans regularly goals for each court regarding the length of proceedings.
At the same, time specific laws provide time limit for particular litigations.
7.2. Are there time limit rules laid down by law for certain cases? Could you enumerate the subjects ? The custody of mentally ill, children, drug or alcohol misuses, immigration cases...
See 7.3
7.3. If yes, what happens when the time limits are not followed?
There are to types of time limit:
Compulsory time limit 
If the time limit has not been followed, the case is transferred to the upper court (the council of state in that case).
This rule applies for election litigation (for city election). 
Indicative time limit 
If the time limit has not been followed, nothing happens but the judges might be “reprimanded” for not having respected the time limit.
This rule applies for the immigration litigation, for the litigation where the claimant is a prefect (filing a claim against a city act), for emergency procedures, for election litigations other than city election litigation.
The possible tensions with fundamental rights.
This part of the topic can be connected to the aforementioned general issues of CJ-S-JUD, “The balance between independence and effectiveness” and “The responsibilities of judges in the terms of the independence of judges”. In some countries, the government has taken measures in order to accelerate the procedures, which interferes with the independence of judges.

8. A new system of remuneration partly based on individual salaries for judges : look further questions number 11 to 13.

9. The matter of the responsibilities of the president of the court (or other entities within the courts). 
9.1. What may or must they do in order to fasten procedures?
They may suggest to the administration to answer faster to the requests. 
9.2. Is it possible, in your country, that the president of the court can remove a case from a judge that is dealing with the case too slowly? 
Yes, but only if the case has not be registered for a hearing.
9.3. If yes, can this be done without interference with the independence of the judge?
Yes, because when a president removes a case from a judge, the judge has not started to work on the case. Otherwise, it could be suspicious.

9.4. What happens when a case has been unduly delayed – will there be disciplinary measures against a judge who is responsible for the delay? Can the judge be prosecuted?
Example : The Swedish government laid a proposition to the Parliament with a law “Declaration of priority of cases in court”. An applicant should be able to turn to the court and ask for priority if his case has been unduly delayed. Then the president of the court can decide that a certain case should be dealt with with priority and the judge in question must follow this decision. If he does not there can be disciplinary actions against the judge. 
The judge may be sanctioned: low assessment (which has an impact on the further career), low bonus paid, transfer. 
The State can also persecute a judge (civil liability). We had one “precedent” (for a case lasting over 9 years after the hearing).

10. Is there a legal remedies against delays in the sense of article 13 ECHR in the respective national procedural laws (see the ECHR’s cases Kudla/Poland, 26 juin 2000 and Sürmeli/Germany, 8 juin 2006, n°75529/01). What kind of legal remedies do we find to be compatible/incompatible with the independence of judges?
Yes, the claimants can put in a claim for damages, whereby they ask a compensation for damages caused by the excessive length of proceedings (Conseil d’Etat, Assemblée 28 juin 2002, MAGIERA n°239575). The judge considers on one hand the complexity of the case and the behavior of the parties and on the other hand the length of the procedure in order to decide if the state should be judged liable for the damages.
However, when the case is pending, there is no remedy to prevent from an excessive length of proceeding.
Judges remunerations and its evolution in the new economical context

11. Could you describe the system of the judges remunerations in your country, and give some information about the level of their remunerations?
The present system of judges remuneration dates back to December 2007. The government, the Prime minister and the attorney general are competent to arrange the system of remuneration. The remuneration of judges is fixed, according to their rank, by a decree “en conseil d’Etat” (that is to say the government has to submit the draft of the decree to the council of state which will issue advice)
French administrative judge are granted by two types of remunerations:
1. First, judges receive what we call the “traitement”:
It is a monthly pay that is determined with a grid that is shared by all the State’ s civil servants./ according to a scale applying to civil servants.The rank and years of experience and service of each individual judge are taken into consideration.
The lower income, granted to beginners, at the present time is about 1 961 euros. The higher income, granted to the president of the administrative court of Paris (first instance), at the present time is about 6 063 euros (gross salary).
Valeur annuelle du point d’indice au 1er juillet 2009 : 55,1217 €
2. On the other hand, judges receive 2 types of yearly allowances :
The first category depends on the background and the responsibility bore by the judge
The lower allowance is 13 000 euros and the higher 31 000 euros a year. This allowance is distributed monthly. [Before the new reform, this allowance was calculated with a percentage of the pay, determined with the grid of the civil servants. The average level was 51 % in 2007. For instance, the lower level of this allowance (for beginners), was about 876,18.]

The second category pertains to a merit system
This allowance is based on an amount that is aligned to a category of judge rank/level. (=reference amount). It is about 25 % of the sum of the first and the second categories of the allowance.
For instance, for the judges who have up to 5 years of seniority, this amount is based on 4500 euros. It can go to 10 500 euros for the longer serving judges.
Each chief of the court calculates this “merit allowance” contingent on the assessment of the judge’s work that he/she makes. He/she can decide to give up to 3 times this amount. But he/she can also decide not to give anything.
However, there is a total amount that is allocated for each court for this budget item. That means that the chief of the court cannot give 3 times the reference amount to every judge of the court. When the chief gives more to one, he/she has to give less to another. [Before the new reform, the “merit allowance” was calculated with a percentage of the pay, determined by the grid of the civil servants. The average level was 13 % in 2007. So, depending on their merits, the judges could get an allowance of more or less 13 percent of their pay.]
This kind of allowance is problematic because we do not know precisely which criteria are used by the chief of the court to assess the judges and grant them with the allowance. There is an assessment that is made with some clear criteria to give to the judges an evaluation on their work. But this assessment is so-called independent of those that is made for the payment of allowances.
As it deals with money, there is no transparency about what the chief of the court gives to each judge: If I am not in good terms with my colleagues, I cannot know how many they get and if it is less or more than my bonus.
3. “NBI”
There is an other type of bonus that compensates managing functions : it is called “NBI” and grants presidents for their function of managing. It goes from 4 961 euros (for presidents of chambers) to 10 473 euros for the president of the administrative court of Paris (first instance).

12. Is there an evolution now because of the economical crisis? Laws or other texts had been adopted recently or are in discussion in your country?
The recent economical crisis has had no impact on the texts providing the remuneration of judges. 
However, the judges remunerations are calculated with an index that normally rise regularly. This index, which is the same for all the civil servants, is set by the government. The government may decide to raise it slower.

13. Do you think that "bonus systems" and “individual subjective salaries” must be regarded as incompatible with the judges independence?
No. As long as the criteria to evaluate the amount of bonus are subjective, there is a risk for independence. 
Besides, there is no real control over the way the presidents of the courts set the bonus or individual salaries. A judge may file a claim against it but, according to the case law, his/her case will likely be dismissed unless the bonus is obviously unfair. (The control of the judge on this kind of decision is limited and the evidence is difficult to bring).
Furthemore, when the criteria are based on objective elements, that is to say mostly the quantity of cases