Speech delivered by the first president, #ChristopheSoulard, during the solemn hearing at the beginning of the 2024 judicial year. @Courdecassation

Speech delivered by the first president, Christophe Soulard, during the solemn hearing at the beginning of the 2024 judicial year.

Mr. Speaker of the Senate,

At a time when Parliament has just adopted two important laws for justice, your presence at this hearing, which I am particularly pleased about, testifies to the concern, which I know to be yours and which I share, for the harmonious functioning of the institutions.

Madam Vice-President,

This is also the concern of the President of the National Assembly, whom you represent. You can be sure that the quality of relations between the National Assembly and the Court of Cassation is close to my heart.

Dear Chief of Staff,

You represent the Minister of Justice, who has been retained by the Council of Ministers. I pay tribute to the considerable energy that the Minister of Justice has put into ensuring that Parliament allocates significant additional resources to justice. It has paid off. This success is to be welcomed, while hoping that this effort will continue in the long term, so that the judicial institution has the means to fully assume its task.

Madam President of the European Court of Human Rights, dear Siofra O’Leary,

Your presence at this hearing is further evidence of the quality of the relationship between our two courts. The view of a third court is a driving force that leads us to constantly improve our procedures, while respecting fundamental rights.

Distinguished First Presidents, Presidents and Attorneys General of the Supreme Courts,

Mr. President of the Constitutional Council, dear Laurent Fabius,

How can we fail to welcome the initiative you have taken for a wide-ranging reflection, both national and international, on the rights of future generations? It is an understatement to say that it is urgent and that it concerns us all. In particular, you have involved the Court of Cassation. Rest assured that they are aware of the importance of the issues and the need to consider them together.

This conviction that we must be able to discuss the major issues we share is also the one that leads us to develop ever closer links with the Council of State.

Mr. Vice-President, dear Didier Tabuteau, thank you for the quality of our discussions.

Dear Defender of Rights,

Dear Prosecutor General at the Court of Auditors,

Ladies and gentlemen members of the Supreme Council of the Magistracy,

You took office a little less than a year ago, and these few months have been very intense. I am pleased with the quality and serenity of our exchanges, the richness of which is undoubtedly due to the variety of personalities and the diversity of experiences.

Distinguished Officials representing the civil, military and religious authorities,

Mr. President of the Bar Association of the Council of State and the Court of Cassation, dear Maître Thomas Lyon-Caen,

In December, you were elected President of the Bar Association. You succeeded President François Molinié, with whom I had the great pleasure of working, first in my capacity as President of the Criminal Division, and then today as the first President. Our regular, simple and direct exchanges have made it possible to ensure that the reforms undertaken by the Court, which you have supported, are perfectly synchronised with developments in the practice of lawyers at the Council. On behalf of the Court, I thank you for that. I have no doubt that this harmonious relationship will continue with the President of Lyon-Caen, whom I have already had the privilege of meeting on many occasions.

Ladies and Gentlemen Representatives of the Judicial Professions,

Ladies and gentlemen

Dear colleagues,

The presence at this hearing of representatives of the highest authorities of the country invites us to question the place of justice within the institutions of the Republic.

The inclusion of this hearing in all the hearings of the courts and tribunals, which it inaugurates, invites us to question what the community of judges and, beyond that, that of jurists, represents.

Finally, the particularly charged decorum of this room and the uncomfortable dresses we wear lead us to measure the advantages and disadvantages that attach to the weight of tradition.

Many see this decorum as the immobility of the judicial institution. No less numerous are those, and sometimes they are the same ones, who denounce the ubris of the judges.

We know the form that this denunciation most often takes: the Constitution of the Fifth Republic made the judicial institution an authority; judges have turned it into a power; This suggests that judges are not respecting the Constitution.

Let me look at it from a different angle.

The powers available to judges are first and foremost duties: the duty, prescribed by the Civil Code and sanctioned by the Criminal Code, to settle disputes submitted to them by applying the texts. This duty includes the duty to ensure that the hierarchy of norms desired by the settlor and the legislator is respected. It is this principle that requires, inter alia, respect for the decisions of the Court of Justice of the European Union and those of the European Court of Human Rights. The authority of their decisions derives from the conventions signed by France.

To fail to admit this is to place oneself outside the law.

But the judge’s mission is not limited to respecting the hierarchy of norms. It must also untangle the skein of ever-increasing number and complexity of texts and bring into line those that lay down a principle with those that regulate a particular situation. It does so by seeking the will of the legislator and with the presupposition that the latter does not contradict itself. Numerous decisions of the Court of Cassation bear witness to this sometimes difficult research.

The judge must also apply the texts to situations that have not been contemplated. The legislator adopts a law at a given time and according to a given situation. The judge, on the other hand, must apply it over the long term. This is not a new aspect. Portalis already pointed this out, and I would add that any law student is urged to admire the way in which the jurisprudence of the 20th century has been able to adapt the rules of civil liability to the development of automobile traffic and the rules of contract to the development of salaried work.

But the implementation of these powers-duties is not sufficient to describe the function of the judge. To this must be added the ingredients that constitute authority.

The power is imposed on the basis of formal criteria: for example, the fact that a judge has been duly appointed and that he or she complies with the rules of jurisdiction and procedure defined by the texts.

The criteria of authority are less well defined, more fluctuating and therefore more difficult to identify. But they always contribute to the acceptance of the decision and are therefore of particular importance. Need we remind you that in Latin the word “autorictas” translated the idea of increasing the effectiveness of an act?

Authority is not a degraded power. It adds to power.

What are the ingredients? I see four of them.

The first is knowledge and experience: The judge applies general knowledge to particular situations, and he does so all the better when he has other similar situations in mind. This general knowledge is a prerequisite. That is why it is necessary that the major recruitments that will take place over the next few years are not accompanied by a drop in level, whether in the first three competitions or in the upcoming professional competition. Let us hope that the modalities of the latter will be such as to ensure this quality.

It’s not enough to recruit quality candidates. They must then be trained for a sufficiently long time. In this respect, we should not underestimate the burden that this initial training places not only on the National School of Magistracy but also on the magistrates who are in jurisdiction.

As for in-service training, which is too often discontinuous, it could perhaps be conceived more as a global project that it would be up to each judge to define in the long term. In other words, continuous training. I know, Madam Director, dear Nathalie Roret, that this is an idea that is close to your heart.

Beyond this general knowledge, there is knowledge of each case. To all those who think they can express their opinion on this or that case that is making the headlines, I say that only the magistrates who are in charge of the case and have precise knowledge of it are able to have an informed opinion, which will be the basis of their decision. This is not the expression of any corporatism but a simple observation of common sense and, among those who know the case, I obviously include the magistrates for a day, the assize jurors, as I include all the lay magistrates. Only these people are aware of the complexity of each case and the difficulty of making a decision.

The second ingredient of authority is respect for the rules of ethics. Litigants must be guaranteed that the person who judges them does so with respect for their person and without his decision being biased by considerations other than those which should require the study of the case.

The judiciary is very concerned about ethical issues. The ENM is giving them an increasingly important place, both in initial and continuing training. The Superior Council of the Judiciary has drawn up and revised its compendium of ethical obligations and is preparing, at the request of the legislator, to establish a code of ethics.

As for the College of Ethics of Judicial Magistrates and the CSM’s Ethics Support and Monitoring Service, they respond to the increasing number of questions from magistrates on these issues. This increase in referrals to ethical bodies by the magistrates themselves should be seen as a sign of the salutary concern for irreproachable behaviour. It cannot be stressed enough that these various bodies, starting with the SJC itself, always include people from outside the judiciary. It should be seen as a guarantee against the risks of self-dealing.

The ethical obligations of magistrates apply in particular when they speak publicly. In a report that it very recently submitted to the Minister of Justice, the CSM recalled that the principle is freedom of expression and that this freedom can even, in certain circumstances, be transformed into a duty when it comes to defending the rule of law and the independence of the judicial authority.

The expression of the magistrate is all the more important when he occupies a high position in the hierarchy of the institution, particularly when he is head of a court or jurisdiction. In this regard, the speeches delivered at the solemn opening hearings are a privileged moment to publicly expose the subjects of satisfaction and concern of magistrates and civil servants, both with regard to the situation of the court where they exercise their functions and with regard to the evolution of the judicial institution.

However, the CSM also recalls, in the same opinion, that the freedom of expression of judges must be reconciled with the obligation of confidentiality. The fundamental purpose of the obligation of secrecy is to preserve citizens’ confidence in an impartial public authority. It is particularly important for the magistrate because of the particular mission assigned to him and precisely because it is perceived as binding on the entire judicial institution.

The third ingredient on which the judge’s authority is nourished is respect for the adversarial process, which permeates all judicial proceedings. A court decision is always based on the arguments provided by the parties. This means that lawyers and, before the Court of Cassation, lawyers at the Councils, actively participate in the construction of case law.

It should be noted that the judge is not bound by a purely passive role in this regard. He can also provide food for debate after subjecting it to contradiction.

These maintenance are not limited to the means which it automatically raises. By asking the parties, during the hearing, to clarify the meaning of a particular argument put forward by them, or even to respond to any objections that might be raised to it, the judge ensures the quality of the debate. By submitting to the parties the outline of the reasoning that could be his own, he is already testing its relevance. In this way, it reduces the risk that its decision will be met with objections that it had not considered but which it will no longer be able to take into account once it is rendered.

This is the challenge of the interactive hearing, which is currently the subject of an experimental project within the Court of Cassation.

But the discussion doesn’t end when the hearing ends. It continues between the members of the panel of judges, according to the principle of collegiality, which obliges each judge to submit his or her own analyses to the critical gaze of other judges and thus to become aware of the personal preconceptions they contain.

Collegiality is at the heart of the Court of Cassation’s activity. Unfortunately, its practice is declining in the courts of first instance and appeal due to lack of time. Let us hope that the expected increase in the number of staff will make it possible to reverse the trend and restore the attractiveness of civil functions in the lower courts.

The report of the Committee of the Estates General of Justice stressed the need, as well as the need, to strengthen the team around the judge. The Ministry of Justice’s Orientation and Programming Act followed this recommendation by providing for the recruitment of large numbers of judicial attachés and by distinguishing, among the tasks of court clerks, those relating to procedural assistance and those relating to decision-making support. Judges will have to learn to work with this strengthened team without delegating what is at the heart of their mission.

The fourth ingredient of authority is the quality of the writing of the decisions rendered. For some time now, the Court of Cassation has been embarking on the path of enriching the reasoning of its most important judgments. It is no longer content to compare the decision referred to it with its interpretation of the rule of law, which is posited as a postulate, but justifies that interpretation itself. By imposing this constraint on itself, the Court of Cassation subjects its reasoning to a test of solidity.

But it is also a way for the Commission to account for what it does and to place each judgment in a chain of jurisprudence, thus making the evolution of the latter more transparent and predictable.

It is in the same concern to ensure legal certainty that the Court of Cassation no longer hesitates to impose temporal limits on its reversals of case law.

And it is to better show what it does that the Court of Cassation is developing its communication policy using many and varied media, and that it broadcasts on digital platforms the public part of its most solemn hearings.

Beyond the qualities I have just outlined that give judges their authority, there are the qualities that the judicial institution as a whole must have. The authority of the judiciary is not only the result of the authority of each of its members. It also has to do with the way it arranges everyone’s roles.

The construction of case law is a collective endeavour. It is already so because collegiality is at the heart of the activity of the Court of Cassation. By exploring possible developments and measuring their effects, the Advocates-General also participate in joint action. But this construction is also collective in that the case law of the Court of Cassation is built on the basis of the decisions rendered by the lower courts.

This collective dimension will take on a new dimension with the publication of all judicial decisions online. After the rulings of the Court of Cassation and the Courts of Appeal, the decisions of nine judicial courts have been posted online for a few days. The process will become more widespread in the coming months. It is made possible through close cooperation between the Court and the Ministry of Justice.

This knowledge of the case law of the trial judges will not fail to feed the reflection of the Court of Cassation. But it will still be necessary to classify and prioritize these decisions, which will number in the millions per year, otherwise case law and litigation will be confused. This is what the Court of Cassation is currently doing, with the support of correspondents in each court of appeal. In doing so, it follows the recommendations of the report drawn up at its request under the direction of Professors Cadiet and Chainais and President Sommer, with the collaboration of Professor Jobert and Referendum Counsellor Jond-Necand.

The establishment of an observatory of judicial disputes, the OLJ, is based on the same idea. Its experimental phase has already begun thanks to the involvement of the courts of appeal of Versailles, Rennes and Nancy. I thank them for that.

The aim is to use a mechanism for the feedback of information, followed by its processing and dissemination, to identify emerging disputes and to provide all courts with information that is both procedural (which courts are seized of the same dispute, at what stage of the proceedings they are) and substantive (preparation of documentation, identification of solutions already adopted).

Such an observatory will promote a network of all jurisdictions. Academics will be invited to participate.

The OLJ will give more meaning to the judge’s work.

Beyond the question of the resources allocated, this is a major issue for the future of the judicial institution and in particular for young magistrates.

Artificial intelligence will be a great help here. I am not afraid to say that the Court of Cassation is particularly active in this area, thanks in particular to its research and innovation laboratory, which is part of the documentation, studies and report department headed by President Zientara. Of course, the judge’s mission cannot be entrusted to artificial intelligence. But the latter, like digital instruments in general, can be of great help. That is why we should be concerned about a reduction in the resources allocated to them.

Open data and the Observatory of Judicial Disputes mark a profound transformation of the role of the Court of Cassation, which must develop ever closer cooperation with the lower courts.

Some believe that it will abandon its traditional function and even prophesy its demise. I believe quite the opposite. The availability of all court decisions creates the risk that the same value will be attributed to each one. The principle of equality before the law could be seriously challenged if the same interpretation of the texts were not adopted from one jurisdiction to another. It is to ward off this risk that the Court of Cassation exists. Its role will become even more important as the risk increases.

However, open data highlights another need. That of an equality of treatment even more demanding than that which is made possible by the unity of interpretation of the law. Beyond what might be called “de jure” jurisprudence, there is a need for “de facto” jurisprudence. This is to be understood as a harmonization of judicial decisions applied to situations that are very similar from a factual point of view. For example, decisions fixing the amount of damages or compensatory benefits. Here, too, the predictability of the law and legal certainty are at stake. The Observatory of Judicial Disputes will also have this role: to allow such “de facto” case law to emerge. Knowledge of such case law can only facilitate the development of alternative dispute resolution methods.

The judge rules “in the name of the French people”, that is, as a representative, and yet, with a few exceptions, French judges are not elected. Is this a fatal flaw? In a report tabled following a general reflection mission that Mrs. Christiane Taubira, then Minister of Justice, had entrusted to the Institut des hautes études sur la justice, Antoine Garapon, Sylvie Perdriolle and Boris Bernabé pointed out that the virtue of this incomplete political power of the judge is precisely that it makes him insecure and constantly obliges him to justify himself and to seek the support of his fellow citizens. By conferring on him a priori recognition, the election would relieve the judge of this quest for recognition.

I fully agree with this analysis.

Our constant concern to strengthen our legitimacy, that is, to increase our authority, is a powerful driving force. It must lead us to constantly improve our knowledge, to improve our decision-making processes, to better explain our decisions, to submit them to collective discussion, and to comply with strict rules of ethics, all for the benefit of a coherent case law that ensures legal certainty for everyone.

Is this anything other than the modern version of prudence, which Aristotle made a condition of the legitimacy and authority of the judge?

I began my remarks by evoking the heavy decorum that surrounds us and the no less burdensome dresses that the regulatory power itself has designed and which limit our movements. There is a debate within the Court itself between those who wish to see this dress lightened, which is considered outdated, and those who think that it remains an indispensable sign of solemnity.

Rather than choosing between these two propositions, we may prefer to choose the meaning we want to give to our outfit. To choose to see in their heaviness the sign of the constraints we accept, in their secular character, the mark of the inscription of our decisions in a history and in their uniform character, which was once mocked, the sign of collegiality. Of course, they are solemn, but it is the solemnity that we give to our deliberations, aware that reasoned discussion holds a value that must be preserved, today more than ever. And I am personally convinced that this pageantry does not prevent the judicial institution, and in particular the Court of Cassation, from renewing itself in perpetual motion.

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