The University of Texas at Austin   School of Law

Main menu:

Case:
CE, Ass., 14 février 1996, p. 34 Case Maubleu
Date:
14 February 1996
Translated by:
Professor John Bell FBA
Copyright:
Professor B. S. Markesinis

14 February 1996

On the argument based on the breach of the principle of the public nature of hearings before the Bar Council

Considering that, under the terms of art. 6 of the European Convention on Human Rights ratified by France by the Law of 31 December 1973 and published in the Journal Officiel by a decree of 3 May 1974:“ In the determination of his civil rights… everyone is entitled to a fair and public hearing … by an independent and impartial tribunal established by law” ; as art. 192 of the challenged decree [of 27 November 1991] provides that “the hearings before the Bar Council (Conseil de l’ordre des avocats) shall not be in public…Nevertheless, the Bar Council may decide that its hearings shall be in public if the accused avocat so requests…”; as it follows from these provisions that the avocat in question has the right, if he so requests, to have his case heard in public, though the Bar Council has the option not to accede to his request if the public nature of the hearing is likely to threaten a confidence protected by law; as thus the cited provisions of art. 192 of the decree are not contrary to the provisions of art. 6 (1) of the European Convention on Human Rights;

On the argument concerning the breach of the rights of defence

Considering that, under the terms of art. 193 of the challenged decree, “During the disciplinary hearing or from the investigation to the hearing, any person capable of throwing light on the investigation may be heard subject to challenge on both sides (contradictoirement)…”

Considering that this provision does not prevent the avocat under investigation to make use of his option to call witnesses so that they may be heard; as it follows therefore that the cited provisions do not infringe either the right to a fair hearing or the respect due to the rights of the defence;

On the argument based in the infringement of the principle of the impartiality and independence of the tribunal

Considering that it follows from the combined provisions of arts. 16, 180, 181, 189, 190, 191 and 196 of the challenged decree that in disciplinary matters, the head of the Bar (Bâtonnier) undertakes an investigation into the behaviour of the avocat in question, in appropriate cases nominates a reporter, can order the committal of the avocat to the Bar Council, chairs the disciplinary panel of the Bar Council, and finally makes representations to the Cour d’appel; as, contrary to what the applicant claims, the exercise of these different functions does not involve the head of the Bar exercising the functions of prosecutor, nor acting like a party in the hearing; as thus the criticised provisions do not infringe the fairness of the proceedings not the principles of the impartiality or independence of the court;

On the argument based on the breach of art. 47 of the New Code of Civil Procedure

Considering that, under the terms of art. 24 of the Law of 31 December 1971: “The decision of the Bar Council on disciplinary matters can be appealed to the cour d’appel either by the avocat in question or by the public prosecutor”; as it follows therefore that the provisions of art. 47 of the New Code of Civil Procedure so not apply to disciplinary tribunals involving avocats, as they state “when a judge or a court official is party to litigation which falls within the competence of the court in whose area he exercises his functions, the claimant may refer the case to an adjoining court …” and this is not compatible with the legislative provisions just cited;

Considering that it follows from all that has been said that M. Maubleu is not justified in asking for the annulment of the challenged decree;…

Back to top

This page last updated Friday, 30-Sep-2005 17:17:06 CDT. Copyright 2007. All rights reserved.