Another peculiarity of the Cour d’Assises is that it does not sit full time. It is not a permanent court.

The Cour d’Assises is a mixed lay assessor court composed of three professional judges and nine « jurors » drawn by lots from the electoral lists.

When referring to the la Cour d’Assises it would be better to use the plural since, as one may easily understand, there is not a single Cour d’Assises on the French territory.

It should also be mentioned that special Juvenile Cour d’Assises judge young people if they are charged with crimes allegedly committed between the age of 16 and the legal age of majority which is 18 in France.

Articles 231 onwards of the Code of Criminal Procedure (CPP) regulate the existence of the Cour d’Assises and lay participation. Article 232 reads : Il est tenu des assises à Paris et dans chaque département. It means that terms of Court called sessions are periodically held for the trial of a certain list of crimes and related offences in Paris as well as in the 100 French administrative “départements”. Once a session is over the Cour d’Assises splits up and the judges and lay assessors never sit together again in a criminal trial. It has been named Cour d’Assises since 1808 in the former Criminal Instruction Code.

After two hundred years of existence, the Cour d’Assises may today be at a turn in its history. However, the legitimacy of the use of lay assessors does not seem to be at stake. However some verdicts have caused confusion and suspicion of possible miscarriages of justice. Originally the Cour d’Assises was meant to be a democratic institution, a protection against absolute monarchy.

It was founded as a reaction to the omnipotence of the Parlements of the 18^th century and the introduction of lay assessors was then perceived as a guarantee for defendants. This humanist point of view has been altered by realities and today the Cour d’Assises sometimes gives the same impression of omnipotence as the former Parlements. The reason is that decisions of the Cour d’Assises may not be reviewed whereas the decisions of “lower” criminal Courts may be sent to the Court of Appeal. Therefore there is an urge to reform the Cour d’Assises.

But then, a first contradiction manifests itself : is it possible to review decisions which are supposed to express “the will of the people”? If so there is a second paradox related to the key principle of intime conviction. As a consequence of intime conviction the law does not impose an obligation to give reasons in the judgements of the Cour d’Assises. If a possibility to review its decisions is to be implemented, defendants should be put in a position to understand on what grounds they have been convicted. Hence a necessity to give reasons ! French law is based on rationality. It is the heritage of our philosophers, particularly Descartes. In that context how can the rationality of French law integrate the irrationality of intime conviction? In other words, is the specific reasoning applied to law ready to accept “external principles” such as intime conviction ? In my opinion this issue explains why no major reform of the Cour d’Assises was passed in its two hundred years of existence.

Before I deal with the Cour d’Assises as such I would like to introduce some information about ongoing reforms of the French judicial system. Therefore I shall start with part V of my paper called “the presumption of innocence throughout criminal proceedings” since this question is currently being debated in Parliament. At this juncture, I shall try to give you my personal opinion as an examining magistrate. In a second part, I will present a brief history of the Cour d’Assises and an overview of the criticisms of this institution. Before concluding, I shall summarize in a third part the different proposals that have been made, so far, to reform the Cour d’Assises. I shall mainly focus on the 1997 project because it almost came into force. I also would like to inform you that my sources almost exclusively originate from what we call in France l’exposé des motifs of bills respectively submitted to the French Parliament in 1997 and in 1999.

The Cour d’Assises usually uses the premises of the Court of Appeal as well as those of the main Tribunal Correctionnel, of the département.

It must be mentioned that can examine magistrate, even though he/she is a judge of the bench, cannot be appointed as assesseur in the cases he/she has previously investigated. There is a strict separation between the examining magistrate and the Cour d’Assises in order to protect the principle of the presumption of innocence.

The second concern is that the list has to be established at random. In that respect, a provisional annual list is drawn by lots from electoral lists. The number of people varies according to the population of the département. Then this list is checked and reduced by a specific judicial committee according to various criteria such as nationality, age, capacity, profession, etc. Some people for some reasons or others are not eligible. Here are some examples illustrating this point : persons convicted of a crime, persons whose professions do not permit them to be selected (member of the government, of parliament, magistrates, police officers) or people linked to a party in the case. After several stages the names of 35 persons plus ten substitutes are drawn in open court for the 4 sessions of the year at least 30 days before opening of the first session.

Then in a last stage nine lay participants plus two “substitutes” are drawn by the President, in open court, just before the examination of each case. The defendant and the public prosecutor have a right to exclude jurors, respectively five and four, without giving any reason.

The mixed court must decide the case. This means that the Court is collectively responsible for all questions of law, fact, guilt and sentence. The Cour d’Assises is thus responsible for the ascertainment of truth and the procedural fairness of the criminal trial. It has to determine the issue of guilt including aggravating or mitigating circumstances. Then the Cour d’Assises must apply the law to the facts of the case and determine the sentence.

Lay assessors and professional magistrates alike have the duty to seek the truth and ensure the equal application of the law. In fact lay assessors are vested with a preponderant role thanks to the “majority rule” which has prevailed since 1958.

Therefore, decisions of the lay assessors and professional judges have to be based on their intime conviction as a result of oral proceedings.

The President formulates the questions in precise terms. They must be answered in the order put by the President according to the provisions of § 356 CPP. They must relate precisely to facts of the case as they were presented at trial, and not necessarily those described in the indictment.

There is a distinction between primary and additional questions. According to § 349 CPP the question on guilt should be : Is the defendant guilty of such and such a fact ? If the defendant is charged with several crimes and offences a question must be put for each offence. If the answer to the question is “yes” it implies that judges have rejected any possible cause of diminished responsibility, insanity or any other legal defence. The criminal intent with which the defendant allegedly committed the acts must also be specifically mentioned by use of adverbs such as volontairement meaning willingly. Indications of the place and date of the alleged facts should also be included in the questions whenever possible. The questions must refer to the acts and should not include legal matters. Thus questions requiring of the lay assessors the judicial qualification of the facts or of the status of the defendant may not be posed. For instance the question about murder should be put as follows : Is the defendant guilty of the death of the victim ? Additional questions are related to the issues of aggravating and mitigating circumstances, complicity or legal excuses.

Lay assessors have a decisive role. According to § 339 CPP, eight votes at least are required to reach a verdict against the defendant. On the other hand, five dissenting votes are sufficient for a decision of acquittal. This rule is applied to the questions on guilt and aggravating circumstances which require at least eight yes votes. Of course the questions related to excuses and mitigating circumstances, which have to be answered negatively require eight no answers. For all other issues in favour of the defendant only seven votes are required. Blank votes are considered to be in favour of the defendant.

The Court first votes on the maximum sentence applicable as indicated in the law. If the verdict cannot be reached there is a second vote. If there is still a tie the Court has to vote on a lower sentence and so on and so forth until an agreement on the sentence is reached. Since the Law of October 9,1981, imprisonment for life has replaced capital punishment. Therefore crimes against persons such as aggravated murder, murder or rape are punishable on this basis. For other criminal offences the minimum punishment possible is five years imprisonment. The results of the vote appear on the question sheet which is signed by the President and the First lay assessor. No reasons are given.

The judgement is pronounced publicly in the presence of the defendant and the public prosecutor. The President reads the declaration of the Court, that is to say, the court’s answers to the questions according to the principle of intime conviction. This declaration takes the place of reasons.

The government has tried to combine the necessity of strengthening the rights of the defence with the necessity of ascertaining the truth as a duty of the state (examining judge and public prosecutor). Quite unexpectedly there is no particular recommendation concerning the Court d’Assises. Before I briefly describe the salient modifications proposed in the bill on the presumption of innocence issue, I would like to make two preliminary observations.

The first one is related to the position of the examining magistrate. The situation of the examining magistrate may seem quite peculiar; that is why it has been solemnly emphasised that the objective of the bill is to ensure his/her neutral position between the defendant, the public prosecutor and the victim. According to the draft text the examining magistrate will still be duty-bound to carry out the investigations, to seek the truth, and to guarantee the respect for the presumption of innocence. The Government thinks this aim should be achieved with some substantial modification of his/her powers and by means of the introduction of adversary techniques in the neo-inquisitorial procedure governing proceedings at this stage.

For the time being, decisions taken by examining magistrates during investigations may be appealed to a specialised division of the Court of Appeal named Chambre d’accusation. The Chambre d’Accusation is composed of three professional Bench magistrates. The public prosecutor also attends.

The Chambre d’Accusation is the judicial body which has jurisdiction to send the case to the Cour d’Assises by way of a decision called mise en accusation from where its name is derived. In fact one can say that at this stage of the procedure the adversary character of the proceedings depends mostly upon the examining Magistrate.

The second observation refers to the possible influence of examining magistrate’s decisions on lay assessors. Even though the lay assessors and the professional judges of the Cour d’Assises have the duty to reach their own decisions based on the oral proceedings, some measures which the examining magistrate does or does not take, may have a great influence, especially on non-legally trained lay assessors. The issue of pre-trial detention is a prime example. If the examining magistrate has kept the person in detention on remand up to the date of the trial, a strong presumption of guilt weighs against him/her. On the contrary, if the defendant has not been put in custody or if the investigating magistrate has released him/her after a short period based on legal criteria he must apply, the criminal lawyer will try to use this to instil a doubt on the issue of guilt in the lay assessors’ minds. In both cases the legal reasons might be completely different and the examining magistrate, who is not a party in the trial cannot be heard as a witness even though he/she is supposed to be in a neutral position and duty-bound to ascertain the truth.

The main points of the draft text on the question of presumption of innocence follow. The recommendations are organised around four main ideas. Some aspects of the adversary principle have been introduced.

Pretrial detention would be limited to certain cases :

In the case of unnecessary detention (in cases ending in dismissal, discharge or acquittal) the defendant would be given a right to financial compensation.

When the investigative phase is completed, the examining magistrate has three options. He/she may dismiss the case, send it to a criminal court or send it to the Cour d’Assises through the Chambre d’accusation.

This is a convenient transition back to the issue of the Cour d’Assises.

The 1791 Constitution laid down the principle that in criminal matters the facts would be judged by jurors chosen at random with the assistance of professional magistrates who would decide legal questions and sentence. The system of yes and no questions put to the jurors was implemented as early as 1791.

These courts were named Cour d’Assises in the 1808 Criminal Instruction Code because they were not permanent courts.

From 1808 to 1941 the Cour d’Assises did not change very much. The main preoccupations at that time were to ensure a better representation of the diversity of the French population and to initiate a closer relationship between professional judges and lay assessors. Efforts were also made to ensure a more democratic selection of jurors who were drawn by lots but from lists, which had previously been prepared by the administrative authorities. The selection of the jurors was based on criteria such as wealth, social position or education. A law enacted in 1978 reformed jury selection and introduced the principle of drawings by lots from the outset. Thus anyone who met the legal requirements could participate if his/her name was picked.

Parallel efforts were made to extend the jurisdiction of the jurors, which was initially limited to the guilt question. In order to avoid severe sentences by professional magistrates, jurors occasionally would bring in acquittal verdicts in cases where the guilt of the defendant was obvious. Finally a law enacted on March 5,1932, united jurors and professional magistrates to decide the question of sentence.

Ordinance of the Vichy Government of April 20,1941, made the jurors and the professional magistrates collectively responsible for all questions of law, fact, guilt and innocence whilst reducing the number of lay assessors to seven.

The 1958 Code of Criminal Procedure changed little in the organisation of the Cour d’Assises. The number of lay assessors was raised to nine though and it has been ensured that whatever sentence pronounced against the defendant requires at least the votes of a majority of the lay assessors, that is, a minimum of five. Thus the initial desire to have the decisions on guilt and sentence decided by the people has been achieved.

There is another limited way for the defendant to have the decision reviewed. The convicted person is allowed to make a request called a recours en révision for the reopening of the case on the ground of new or newly discovered facts or evidence. Quite recently this possibility was successfully used. [10]

Sharp criticisms emphasise the fact that the French procedural system does not comply with § 2.1 of Protocol n°7 of the European Convention on Human Rights which guarantees the right of a convicted person in a criminal trial to have his/her conviction or sentence reviewed by a higher court. They see a paradox in the fact that a full right of appeal is possible for the decisions of the lower criminal courts whereas the most serious offences punishable with a minimum term of fifteen years of imprisonment are tried only in one instance.

At this junction, it should also be remembered that capital punishment was abolished in 1981 in France. This means that people have been executed without having a possibility to fully review the decision.

The Anglo-American practice of consensual disposition of criminal case “plea bargaining” does not exist. The presiding judge and his/her two professional assessors are not elected and their independence is ensured by the principle of non-transferability. They have no reason to influence lay assessors and experience shows that they are quite often overruled. This collective responsibility is a guarantee of the fairness of the trial.

Moreover French people tend to consider that non legally trained persons are just as able as professional judges to decide questions of fact and guilt because they occupy a neutral position. The form of lay participation in a « mixed court » composed of professional judges and lay assessors collectively responsible for all questions of law, fact, guilt and sentence is not discussed at length either.

However the debated question is whether a higher Cour d’Assises should be created in order to permit a full right to appeal the present Cour d’Assises decisions.

Even though « Cour d’Assises » judgements are the expression of the « will of the people », public opinion does not always trust their sentencing decisions. Such may be the case when all the evidence has not been properly gathered. The principle of intime conviction is not sufficient to ascertain the truth and the issue of guilt. Recent « unusual » verdicts have added confusion. The first degree murder verdict against Omar Raddad (14 years imprisonment) is a prime example. The presidential pardon he was given recently illustrates the confusion. Other cases such as Miss and Tiennot or Seznec, people convicted of murder who have been claiming innocence for years, are very disturbing. Therefore a second trial of crimes should be made possible in order to diminish the likelihood of miscarriages of justice.

A second proposal suggested that Cour d’Assises decisions should be appealed to appeal to a professional court made up exclusively of legally trained judges.

A third proposal consisted in turning the Cour d’Assises into a first instance court. The trial of crimes would be by a court composed of three professional judges and two assessors selected according to personal criteria. The idea was to abandon selection of jurors by the drawing of lots maintained in the first instance. The existing Cour d’Assises would be maintained as a court of appeal of the first instance decisions.

These proposals to curb the power or jurisdiction of lay assessors were rejected after serious discussions. A fourth proposal emphasized the hypothetical advantages of a system allowing appeals to a higher Cour d’Assises. It proposed either a diminution of the number of lay assessors in the lower Cour d’Assises or an increase in number for the higher Cour d’Assises.

Special mention has to be given to an aborted reform of 1996-1997 because this project almost went into force after its formal approval by the French Parliament shortly before its unexpected dissolution by President Chirac.

This reform would have substantial changes in the present system. It recommended setting up two Cour d’Assises in order to permit (a) a proper appeal; (b) before a higher court; and (c) respecting the expression of the will of the people :

The Tribunal d’Assises départemental was meant to be a lower Cour d’Assises. Its composition would have been slightly different from the present one; that of one presiding professional judge, two professional assessors and five lay assessors. The Tribunal was meant to have the same jurisdiction as the present Cour d’Assises. It was also expressly provided that this lower court was to give reasons in its decisions in order to enable convicted persons to know exactly the grounds on which the verdict was rendered. The Tribunal d’Assises was supposed to have jurisdiction at the département level. Lay assessors were chosen according to the same procedure. [11] Decisions on guilt and sentence were to be reached by a majority of 6 votes in order to ensure that at least one professional judge agreed with the verdict.

The Cour d’Assises d’Appel was to have the same composition as the present Cour d’Assises that is to say, three professional magistrates and nine lay assessors drawn by lots from a larger area, however, that of the ressort of the Court of Appeal which covers several départements. [12]

This Cour d’Assises d’Appel would have had jurisdiction to retry the decisions of the lower Cour d’Assises.

According to a consulting committee headed by M. Jean-François Deniau the draft text ensured that the new system complied with § 2 of protocol n°7 of the European Convention of Human Rights. The right to have one’s conviction or sentence reviewed would have been made possible.

The larger number of lay assessors drawn by lots from a wider area, combined with higher judges from the Court of Appeal met the requirements of a higher appellate tribunal (b). The larger number of lay assessors - nine as compared to five for the tribunal - would have made retrial of the former convictions possible even though they were the expression of “the will of the people”(c). In addition, a proposal was made to reduce the minimum age of lay assessors from 23 to 18. There was a heated debate on this proposal because some M.Ps. considered that young people of 18 years of age should not be exposed to the type of cases usually tried by the Cour d’Assises.

This reform was not enacted because of its cost and the major difficulties in its implementation. It required a double selection of jurors, an increase in the recruitment of professional magistrates especially in smaller courts because the Tribunal d’Assises was supposed to hold more sessions in order to reduce delays...etc.

The reform would have required at least 100 additional professional judges and 45 clerks. This expense had not been budgeted and some M.Ps objected that it was unrealistic. But the main argument focused on the requirement to give reasons in the decisions. This question has been debated over and over because some professional consider that there is a double contradiction between the necessity to give reasons and the voting procedures of the Cour d’Assises. Votes are secret. [13] Some M.Ps consider there is an initial contradiction between the secrecy of the vote and the obligation to give written reasons in the decision. According to them the vote would not remain secret as it should. They have also pointed out that lay assessors and professional judges alike are bound to reach their own decision based on the oral proceedings. They are not allowed to know what is in the file (except for the President) and this is why their decisions are based on the principle of intime conviction. According to the second contradiction between the necessity to give reasons and intime conviction. It is a nonsense to give reasons for decisions taken in one’s heart. In this regard some proposals were made such as that of giving sui generis reasons, different from those usually done by criminal courts.

M.Ps also discussed the question of when reasons should be drafted and who would formulate them. It is hardly possible to demand that lay assessors state their own reasons for the verdict. But it is also necessary to ensure that the law is correctly applied and that all relevant circumstances have been taken into account. M.P.s have also insisted on the difficulty giving reasons at the same time as the verdict. It obviously requires more time to draft a decision and it would be difficult to do it after long hours of proceedings and deliberations. On the other hand it would be satisfactory to draft the decision after the verdict has been publicly pronounced. Then lay assessors would have to return after the session is closed.

MPs had not reached an agreement on these issues but it was more or less decided that the President would have been in charge of drafting the reasons and the first juror would sign the decision as a representative of the nine lay assessors. In that case, what would happen if the lay assessors did not agree with the President ?

Since the eighteenth century the decisions of the Cour d’Assises are based on the principle of intime conviction and are supposed to express the will of the people. The theory of popular sovereignty and the principle of secrecy of the vote explain why the law does not impose an obligation to give reasons in the decisions. This is also why no proper appeal has originally thought to have been necessary.

But, the situation is changing. France has to comply with international requirements such as those of the European Convention of Human Rights. Public opinion is in favour of granting a convicted person the possibility of having his/her conviction or sentence reviewed by a higher tribunal.

In my opinion the reform of the Cour d’Assises is on the way. Sooner or later the possibility for appeal will be introduced in France. If so, Cour d’Assises verdicts will require more transparency. They will have to be understood by ordinary people. The main difficulty will then lie in the contradiction between the requirement to give reasons and the principle of intime conviction because Cour d’Assises decisions are taken after a secret vote. Since the vote is secret and based on one’s intime conviction, it is impossible to know the grounds on which lay assessors have based their decision.

The main difficulties facing a reform of the Cour d’Assises may be summarised as follows : Should a professional judge be duty-bound to draft reasons “explaining” the nine lay assessors’intime conviction? That is the question which confronts us at the millennium.