“There is a desire to prevent judges from criticizing political power”

2023-06-19 13:00:10

On June 8, an amendment to the draft organic law “relating to the opening, modernization and accountability of the judiciary” was adopted in the Senate which, beyond the diversity of political sensitivities, should concern anyone who is attached to democratic balances .

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This amendment aims to specify that the freedom of association of magistrates is exercised “in compliance with the principle of impartiality which is binding on members of the judiciary”. The problem is not immediately obvious because it is a question of an essential duty of any judge, which is also a legitimate expectation of any litigant: the absence of bias in the decisions taken. However, there is a problem and it is serious.

To understand this, it is necessary to be clear about what the notion of the impartiality of the judge covers, which has already been the subject of numerous reflections and above all of extensive case law – from the Constitutional Council to the European Court of Rights rights through the Court of Cassation, the Council of State or the Superior Council of the Judiciary. It follows in substance that the impartiality of the judge is a fundamental principle with high legal value, but also that one cannot make him say everything and anything, under penalty of preventing justice from being done.

Disdainful of social life

Clearly: a judge is biased if he either expresses his opinion in the case he is examining without having followed the steps of the judicial process, or is in an objective situation of conflict of interest with a party. And that’s all. In other words, the judge’s duty of impartiality is not, never has been and cannot be an injunction not to think or hold opinions.

And this for a simple reason: if they are not quite citizens like the others – because they exercise powers – judges are obviously human and social beings, so that such an imperative would be as unrealistic as dangerous: who would like to be judged by a judge claiming to have no ideas about anything or so disdainful of social life that he would leave no trace, from his birth to his retirement?

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Jurisprudence thus excludes three situations from the scope of bias: the fact that a judge has already taken a position on the legal problem in question, the fact of belonging to a group taking a position on social issues and the fact of have political or trade union opinions known to the parties.

It will be objected that the problem is not that magistrates have ideas, but that they display them. This objection fails for two reasons. The first is that even the most discreet judge, wanting to be the most impenetrable, is by definition led to judge, that is to say, to settle a problem on the basis of a corpus of texts which necessarily leaves him a margin of interpretation. The act of judging is not, cannot be a mathematical operation. There is always a part of the judge and, therefore, the judge always gives himself to be seen.

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