Status and Discipline of Judges
Explanation
This text regulates the rules concerning the judges of the State Council regarding their transfer and discipline. The legislator is keen on the stability of the member in their work, so it is not permissible to transfer them to the public administration until at least one year has passed since their appointment. The transfer requires the approval of the Council's Bureau and a joint proposal from the Minister of Justice and the competent Minister.
In the event a judge commits a violation, they are referred to the Disciplinary Council [Conseil de discipline]. The disciplinary trial is characterized by secrecy, and it guarantees the right of defense as the judge may seek the assistance of one lawyer or one of their colleagues. If the judge does not attend, the trial is conducted based solely on the available documents.
The Disciplinary Council issues its decision swiftly, either on the day of the hearing or on the following day at the latest. The decision must be reasoned. This decision is characterized by being final and enforceable immediately upon its notification, and it is not subject to any method of challenge or review, including cassation [Cassation].
Disciplinary sanctions [Sanctions disciplinaires] range from reprimand up to dismissal from service or removal. In cases of removal with deprivation of the dismissal indemnity or retirement pension, the law preserves the judge's right to recover the retirement deductions that were withheld from them.
The disciplinary path is linked to the criminal path. If a decision is issued convicting or acquitting the judge of a felony or misdemeanor, the decision is notified to the Disciplinary Council to determine the disciplinary consequences. Furthermore, the Minister of Justice has the right, after consulting the President of the Council, to suspend the judge from work [Suspension] if they are criminally prosecuted or referred to discipline.
Official legal articles
Think deeper
Why do you think the legislator prohibited challenging the decisions of the Disciplinary Council through any method of review, and how does this relate to the necessity of swiftly deciding on the judge's status?
Flashcards
When is it permissible to transfer a member of the State Council to the public administration?
After the lapse of at least one year since their appointment, with the approval of the Council's Bureau, and based on the proposal of the Minister of Justice and the competent Minister.
Is the disciplinary trial of a State Council member public or secret?
The trial is conducted in secret.
Is it permissible to challenge the decision of the Disciplinary Council by way of cassation?
No, the decision of the Disciplinary Council is not subject to any method of review, including cassation.
What happens to the retirement deductions in the event the judge is removed and deprived of their retirement pension?
The retirement deductions are returned to them.
Who has the authority to suspend a member referred to the Disciplinary Council from work?
The Minister of Justice may suspend them from work.
Can a member referred to discipline seek the assistance of more than one lawyer?
No, they have the right to seek the assistance of only one lawyer or one of their colleagues.
Practice questions
Which of the following conditions is not required to transfer a member of the State Council to the administration?
The law requires the lapse of one year, the Bureau's approval, and the two ministers' proposal. The law does not require the President's approval (Article 18).
When does the Disciplinary Council issue its decision regarding the member referred to it?
The Disciplinary Council issues its decision on the same day or postpones it to the following day at the most (Article 26).
If the member referred to discipline is absent from attending the hearing, how does the Council act?
If the member referred to discipline is absent, the Council considers the case in light of the documents only (Article 26).
Which of the following sanctions is not considered one of the disciplinary sanctions legally permitted?
The law specifies the sanction of delaying promotion for a period not exceeding two years, not three years (Article 27).
Who decides to suspend a member prosecuted for a felony not arising from the job?
The Minister of Justice may suspend a member prosecuted for a felony not arising from the job after consulting the Council President (Article 31).
What results from the issuance of a decision acquitting a State Council member of a misdemeanor?
Every decision of conviction or acquittal is notified to the Disciplinary Council to decide on the disciplinary consequences (Article 30).
Case problems
Judge (X) was appointed to the State Council six months ago. The Minister of Justice and the Minister of Finance requested their transfer to a position in the Ministry of Finance due to their competence. The Council's Bureau approved the transfer. Is this transfer legal?
Model answer
No, this transfer is illegal.
Members of the State Council may not be transferred to the administration before one year of appointment (Article 18).
Since Judge (X) was appointed only six months ago, the time period condition is not met.
Therefore, the transfer is prohibited even with the approval of the Council's Bureau and the two Ministers.
Self-grading rubric
Judge (Y) was referred to the Disciplinary Council. They attended the hearing accompanied by two lawyers to defend them. After the trial, a decision was issued to remove them and deprive them of their retirement pension. The judge requested the cassation of the decision before the competent authority, and demanded the recovery of their retirement deductions. What is the legal solution for the judge's requests and their situation in the hearing?
Model answer
First, regarding the presence of two lawyers, the concerned party has the right to seek the assistance of one lawyer or a colleague (Article 26). So they do not have the right to use two lawyers.
Second, regarding the cassation request, the decision of the Disciplinary Council is not subject to any method of review, including cassation (Article 26). Therefore their request is rejected.
Third, regarding the retirement deductions, in the event of removal with deprivation of the retirement pension, the retirement deductions are returned (Article 27). Therefore they have the right to recover them.