French legal system

Insofar as the implementation and application of the European Convention on Hu-man Rights is concerned, France should not have faced similar problems as the United Kingdom with regard to treaties, and the French legal system is clearly monistic. The treaties to which France is a party are automatically incorporated into the domestic legal system. According to Article 55 of the Constitution, “duly ratified or approved treaties or agreements shall, upon their publication, have higher authority than statutes, subject, in respect of each agreement or treaty, to its application by the other party”.²⁶⁵ However, the Constitution is hierarchically above international law²⁶⁶. Article 55 of the French Constitution not only requires publication but also subjects the applica-tion of the internaapplica-tional agreement to a requirement of reciprocity. Thus, in principle, an agreement would only prevail over a domestic law where it is also applied by the other party or parties in question. In comparison, although the Finnish legal system is somewhere between a dualistic and monistic system, the Finnish practice of in blanco implementing acts mean that in both legal systems the text of the European Conven-tion on Human Rights is applied as such in the same way as in France.

However, one must remember that human rights conventions are a special case among international agreements. Although they require States parties to them to act in accordance with their obligations under the convention, in the same way as under any other international agreement, these obligations are characteristically not so much obligations vis-à-vis other parties but obligations to provide certain guarantees for the protection of the rights of individuals residing within their jurisdiction. Thus, human rights conventions directly create rights for individuals, and the requirement of recipro-cal application would be misplaced. Considering that international agreements are not specifically transposed into French law, however, they need to be directly applicable to have relevance in the legal system. This also concerns the European Convention on Human Rights. The direct applicability is, according to Sudre, subject to two condi-tions. Firstly, the direct applicability must have been intended by the States parties.

When looking at the wording of international human rights conventions, it is evident that they are intended to create rights for individuals, which can be directly invoked by them before a court. Secondly, the provisions of the convention need to be precise

265 Article 55 of the Constitution reads as follows: “Les traités ou accords régulièrement ratifiés ou ap-prouvés ont, dès leur publication, une autorité supérieure à celle des lois, sous réserve, pour chaque accord ou traité, de son application par l’autre partie.“ Incorporation occurs upon signature not subject to ratification or upon ratification, approval or accession, without the need for a separate statutory or administrative instrument. However, the text must be published in the official Gazette (Journal Officiel) to be valid vis-à-vis third parties. (Treaty Making 2001, p. 167) See also Aust 2013, p.

164, and Lageot 2014, p. 155.

266 See Lageot 2014, p. 156.

enough to make it possible to apply them in a national legal system.²⁶⁷ Although the provisions of the European Convention on Human Rights contain some ambiguity as has been observed in the foregoing, in the same way as any international agreement, they are clearly formulated and, as noted above, have a lot in common with national constitutional provisions and should be without any problems even in a legal system where the text has not been specifically incorporated. According to Lageot, all the human rights provisions of the European Convention on Human Rights and of its additional protocols have been given direct effect in the French Legal system.²⁶⁸ Fur-thermore, there is today a considerable amount of case law of the European Conven-tion on Human Rights supporting the applicaConven-tion of the ConvenConven-tion, although it is another issue to what extent national courts follow its case law. According to Sudre, this view has generally been accepted in France insofar as the European Convention on Human Rights and the International Covenant on Civil and Political Rights are concerned, and these conventions are without doubt directly applied by French courts, but there has been more reluctance to accept direct applicability in respect of certain other human rights conventions²⁶⁹. Thus, the relatively strong wording used in the European Convention on Human Rights seems to be behind its recognition as part of the French legal system, as directly applicable law in France, without having been specifically implemented, and in cases of conflict with national laws, it is to be given precedence. Also, both the European Convention on Human Rights and the Interna-tional Covenant on Civil and Political Rights provide for an internaInterna-tional complaint mechanism.

Insofar as the application of the Convention in France is concerned, however, one should remember that France only ratified the Convention in 1974²⁷⁰. Despite the late ratification and even later recognition of the right to submit individual applications in 1981, France rather rapidly attained a high number of violations of the Conven-tion, and it is today in fact the highest one of the States parties subject to the present study²⁷¹. The French courts have, however, increasingly begun to resort to the text of the European Convention on Human Rights or its protocols, either ex officio or upon

267 Sudre 2007, p. 39. Lageot 2014, p.156 and 157.

268 Lageot 2014, p. 157. According to Lageot, nor have the French courts found it difficult to admit the direct applicability of the Convention (Ibid.)

269 Sudre 2007, p. 40

270 The late ratification was explained by both problems in national legislation, particularly as regards the rules on the safeguards for people in custody after arrest, and political resistance (Steiner 1997, p. 276-278).

271 According to the Court’s statistics on 31 December 2012, the total number of violations found was 646 out of 877 judgments.

it being invoked by one of the parties to the case at hand²⁷². Lageot suggests that the application of the Convention includes taking fully account of the case law of the European Court of Human Rights and that there are almost standard references to the case law in national judgments²⁷³. Despite this, according to Pacteau, the references to judgments of the European Court of Human Rights have not entailed quotations of the case law, or its interpretations and doctrine.²⁷⁴ His view appears to be confirmed by an overview of judgments of the Cour de Cassation from the past few years²⁷⁵. Lageot has analysed the French judgments from the perspective of whether the French courts actually apply methods of interpretation similar to those of the European Court of Human Rights and suggests that it is only seldom clear and where they do so, the method most often applied is that of proportionality²⁷⁶. In the view of Margénaud, national judges in France in the field of civil and criminal law have, however, sometimes even shown excellent knowledge of the Convention²⁷⁷. The case law of the European Court of Human Rights has also gradually had an impact on the work of the judiciary

272 See Steiner 1997, p. 282-288. Most of such case law has until late 1990s relates to criminal proceedings under Article 5 of the Convention (Ibid. p. 282), but the Convention has also had an impact on a variety of other types of national case law including those under Articles 6 and 8 of the Convention (Ibid. p. 294-304). According to Margénaud, between January 1986 and September 1997, there were already as many as 5717 judgments issued by the Cour de cassation in which the Convention was referred to, of which a great majority (4642 judgments) were criminal law ones. In the view of Margénaud, there is no doubt that there is a positive tendency to take the Convention into account in national case law, although this conclusion has been made exclusively in the light of the case law of the Cour de cassation. (Margénaud 1998, p. 232) His conclusion appears to be supported by the application of the Convention in the field of administrative law, however, and by 1997, there were approximately 550 judgments of the Conseil d’Etat alone, in which the Convention had been referred to. (See Pacteau 1998, p. 252) In the light of the analysis made by Lageot, this practice has continued, and Lageot suggests that the French courts have never hesitated to apply the provisions of the Convention (Lageot 2014, p. 162).

273 Lageot 2014, p. 166 and 169. According to Lageot, the principle of proportionality is usually applied only if the case law of the European Court of Human Rights forms a sufficient basis for it. (Ibid. p. 180)

274 Pacteau 1998, p. 259. He suggests, however, that there is perhaps no obligation to do so as, formally, the Convention does not constitute part of the applicable administrative law in the French legal system. (Ibid. p. 161) As suggested in section 3.2.2 below, more profound references may appear in the non-published documentation relating to the judgments, which have not been covered by the present research.

275 See e.g. Cour de Cassation, Première chambre civile, Arrêt n° 688 du 11 juin 2009, Arrêt n° 689 du 11 juin 2009, Arrêt n° 1308 du 10 décembre 2009, Arrêt n° 1309 du 10 décembre 2009, Arrêt n° 198 du 25 février 2010, Arrêt n° 343 du 31 mars 2010, and Arrêt n° 301 du 17 mars 2011.

276 Lageot 2014, p. 178-181.

277 Margénaud 1998, p. 244.

in France, which has been particularly strong in the field of criminal proceedings²⁷⁸, and Pacteau suggests that some degree of dialogue between national courts and the European Court of Human Rights could be already said to exist towards the late 1990s, and although such a dialogue takes place rather slowly²⁷⁹, this view is already shared by other scholars²⁸⁰. The existence of a dialogue is nevertheless hard to conclude from the relatively brief references to the case law of the European Court of Human Rights.

Some improvements have also taken place in the constitutional provisions on the protection of fundamental rights, although the original provisions from 1789 and 1946 still exist. The ratification of the European Convention on Human Rights has not as such entailed amendments to constitutional law, but the French Constitution has undergone amendments since the signing of the Convention to take into ac-count, in particular, political changes²⁸¹, the membership of France in the °European Union²⁸², and more recently in 2008 (entry into force on 1 March 2010), to provide for a mechanism of review of legislation after its entry into force with regard to consti-tutional rights and freedoms²⁸³. The latter reform brings the French system of control of constitutionality closer to the German system, although there still are differences, particularly the lack of a possibility to complain over measures taken by the national authorities. The new indirect constitutional complaint has three steps: 1) the question raised by a litigant, 2) the single or double transmission decision by a court, and 3) the ruling by the Constitutional Council on the constitutionality of the legislative act or provision.²⁸⁴ Some new rights have been introduced into the French Constitution in

278 See Steiner 1997, p. 289-294, and Lageot 2014, p. 170. The 1993 reform of the Code penal (code of criminal procedure) was aimed at achieving compliance with the requirements of the European Convention on Human Rights (Steiner 1997, p. 293), and the Code penal was amended for a second time to comply with the Convention in 2011 (Lageot 2014, p. 170). The case law has also had a significant impact on other types of cases, such as administrative law cases (Lageot 2014, p. 170-175).

279 Pacteau 1998, p. 281.

280 See Lageot 2014, p. 182-184.

281 Boyron 2011, p. 121. A new constitution was drafted in 1958 as a result of the Algerian war, the threat of a military coup, and a political crisis, and has later undergone amendments. No new list of rights was included in the constitution, but the old one was maintained.

282 See Favoreu and Oberdorff 2000, p. 97.

283 Décret n° 2010-148 du 16 février 2010, Code de procedure civile, Article 126-2 and seq., Code de procedure pénale, Article R49-22 and seq. Under the new legislative provisions, three courts (Conseil constitutionnel, Conseil d’État and Cour de cassation) have the possibility to state on the unconstitutionality of provisions of law and, where necessary, to repeal those provisions. For more detailed comments on the reform, see Pfersmann 2010, p. 223. Until the entry into force of the amendment, the Constitutional Council has only been able to exercise such review within one month of the adoption of the bill. See also Boyron 2011, p. 139.

284 Pfersmann 2010, p. 236.

1971, 1999, 2005, and 2008²⁸⁵. Those amendments have not, however, entailed stronger protection for the rights included in the Convention, but a large part of the Conven-tion rights still rely on the text of the ConvenConven-tion in France. From the point of view of the protection of fundamental rights, the most important new element common with the German system is the possibility of an individual litigant to raise the question of constitutionality, although Pfersmann considers the requirement of the initiative of a litigant to be at the same time a weakness of the system.²⁸⁶ Pfersmann also draws at-tention to the importance of reasoning judgments, which in his view is a requirement by the law in respect of decisions on constitutionality.²⁸⁷ In respect of general courts of law, particularly Cour de Cassation, inadequate reasoning of judgments has been one of the problems France has faced before the European Court of Human Rights. The overall impact of this constitutional reform on the protection of fundamental rights and particularly on the resolution of problems at the national level, which at the outset should at least in the long run contribute to a decreasing number of complaints before the European Court of Human Rights, remains to be seen.

In conclusion, despite the rather clear status of the Convention in the French legal system, and the long existence of national provisions on fundamental rights, which would give reason to believe that no major problems should occur, there have been problems for other reasons. Despite the differences between the legal systems of France and Finland, the technical criteria for the direct applicability of the Convention exist in both legal systems, but the French courts have perhaps been slower in adapting themselves to the practice of applying it, and even slower in making references to the European case law. Furthermore, when compared with Finland, the transition of the legal culture of protecting human rights under the Convention appears to have taken place rather slowly, despite the long traditions of respect for fundamental rights in the French legal system. This concerns particularly the general attitudes towards the European control mechanism.

285 Boyron 2011, p. 136. Those rights include, in particular, strengthened protection of equality between men and women, and environmental rights.

286 For more details, see Pfersmann 2010, p. 236-238. Pfersmann points out, however, that the same weakness also exists in the German system, although the latter is in some respects a stronger system. In both systems, the constitutional complaint does not entail a right to have the question examined on the merits, but only the constitutionality of the provision or a legislative act will be examined. (Ibid. p. 237)

287 Pfersmann 2010, p.242. This requirement, in the view of Pfersmann, concerns particularly those cases where primary legislation is annulled, whereas routine-like decisions declaring the complaint inadmissible, for example, do not need to state such detailed reasons.