Court of Cassation, Paris
In civil matters
5 Quai de l'Horloge 75001 Paris
Referral by motion cause of suspicion legitimate under article 364
For: Mrs Moreau Christel
Mr Lorentz Emeric
Association SEFCA Europe
5 Rue Théophile Leducq 93500 Pantin
APPELLANTS
Against: Mrs. Armelle Guiraud judge of the children with the tribunal for Evry child 9 rue de Mazières 91012 Cedex; Martine Novella Judge for child at the tribunal de grande instance of Nanterre 179/191 Avenue Joliot Curie Nanterre cedex ;Mr Pierre Pedron Vice President, justice for children to the Court of Nanterre; Mr fumble;Mr Becdelièvre;Ms. Favereau magistrate with the 7th Chamber in matters educational Court of appeal of Versailles 5 rue Carnot 78011 Versailles cedex;Ms. Pascale Gaulard j.; Ms. Frédérique Agostini 1era Vice President Assistant. Mr Manuel Pérez Vice-president tribunal de grande instance of Nanterre 179/191 Avenue Joliot Curie Nanterre cedex
Respondents
The modalities of perception and the justifications for the acquittal of the law laid down by Decree in Council of State.
The Constitutional Council said that the perception of rights 35 euros and 150 euros, is consistent with the constitution in its Decision No. 2012-231/234 QPC on 13 April 2012.
Stamp 35 euros
LIKE A Mr magistrate
(1) The application for dismissal for cause of legitimate under article 364 suspicion
It in fact referral is requested because of recusal in the person of several judges of the Court the JDE of NANTAIRE and the Court of appeal of VERSAILLES, is carried out as a discharge for cause of legitimate suspicion, after each of the disqualified judges has responded to or let expire the response time. Provisions specific to decision-making in part based on the denial of justice. Version in force on June 22, 2012
1. Admissibility formal to articles 1-1031, 1031-2 of the code of civil procedure
2. THE EXTINCTION OF THE INSTANCE BY FAILURE TO COMPLY WITH THE TIME LIMITS
This character of the lapse is explained in procedural law by the idea of sanction152 (**).
5 hThe consistency of the interpretation of the texts governing the magistrate occupation
In State . It is up to the parties to the proceedings at the forms and deadlines, and it is therefore logical that the sanction of such guidelines is of public order. This command is indeed often the power and even the duty of the judge to raise Office this way.
The lapse, appears in private law, most often as an instrument for the protection of the general interest linked to the proper functioning of the public service of justice; in other rare cases it tends to protect a part of the manoeuvres of his adversaire154
4 Admissibility with regard to article l. 441 - 1 of the code of judicial organization
5 Denial of justice
6. We call 341-4 of the code of civil procedure section, , and article 47 and article 97 of the code of civil procedure, the top time of our record, and challenge of the magistrate.
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QPC articles 6 and 16 involving a process must be fair and equitable and ensure the balance of the rights of the parties;
S. 61 1 Of the CONSTITUTION française, 1st paragraph
"When, on the occasion of a case pending before a court, it is argued that a legislative provision infringes the rights and freedoms guaranteed by the Constitution, the Constitutional Council can be seized of this question on reference of the Council of State or the Court of Cassation, which pronounces within a specified period.".
REMINDER
The duties of the magistrate and the oath
Set professional standards which is now applied to the magistrates, it is search that the exercise of the profession imposes as special ethical obligations being understood that outside these rules of criminal law and civil law, apply to the magistrate at the same of every citizen.
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With regard to the rules of the civil law applied to the magistrate in the exercise of his judicial activity, it should be noted that civil liability may be sought in the action for recovery of the State whose responsibility would have committed as a result of a defective functioning of the public service of justice, for detachable personal fault (article L.781 -1 of the Code of judicial organization )).
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With regard to the rules of criminal law, they apply to the magistrate in the exercise of his activity in various cases, such the corruption (article 434-9 of the penal Code) the denial of justice (article 434-7-1) the abuse of authority (section 432-1) the violation of professional secrecy (226-13) etc... For the rest, the Court of cassation made result from the constitutional principle of independence of the judges, the result that "their adjudicative decisions cannot be criticized, both in their reasons that in their".
"device, by the sole exercise of the remedies provided by law." that "this principle, that of deliberative secrecy are obstacle that a court decision may be considered as constituting in itself a crime or an offence", adding "it is same as the magistrate of the Prosecutor's Office.". Therefore that it is of principle that the Crown takes the requisitions and freely develops the observations that he believed adequate for the good of justice. »
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Order n ° 58-1270 of 22 December 1958 change with the status of the Judiciary Organization Act defines the professional obligations of the magistrate of the four main provisions.
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First article 6 contains the oath that any magistrate upon appointment to his 1st position and before: "I swear to well and faithfully perform my duties, to religiously maintain the secrecy of the deliberations of and lead me in as a worthy and loyal magistrate.".
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Then, section 10 provides that "any political deliberation is prohibited in the judiciary - all manifestations of hostility to the principle or the form of the Government of the Republic is"
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Prohibited to judges , and any demonstration of political nature incompatible with the reserve that impose duties - is also impeding the functioning of the courts. »
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Then article 43 defines the disciplinary: "any breach by a magistrate to the duties of his State to the honour, delicacy or dignity, constitutes a disciplinary fault - this fault is assessed for a member of the Prosecutor's Office have a magistrate in the framework of the central administration of the Ministry of justice with the obligations flowing from the hierarchical subordination.".
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By the decision of May 11, 2010, the Criminal Chamber recognizes that single infringement of the rights of the defence, in the case of the principle of equality of arms, is likely to lead to the nullity of the criminal procedure Article 6 of the European Convention of the rights of human - right to a fair trial
"1. Every person has a right to that his case be heard fairly, publicly and in a timely, by independent and impartial tribunal established by law, which will decide, or challenges on its rights and obligations of a civil nature, to the merits of any charge in criminal matters against it.". The judgment must be made publicly, but access to the courtroom may be barred to the press and to the public during all or part of the trial
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In the interests of morals, public order or national security in a society
Democratic where the interests of juveniles or the protection of the privacy of the parties to the trial so require, or to the extent strictly required by the Court, when in special circumstances the advertising would impair the interests of justice
In conclusion:
Finally the article 79, paragraph 1 provides that "honorary magistrates are required to the qualification which is necessary to their condition".
Specific texts provide the incompatibilities and prohibit a magistrate to exercise national political mandates or the European Parliament or in a jurisdiction or the magistrate had five years before, a local term or when her spouse is parliamentary.
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The disciplinary of Nanterre and judges of the Court of appeal of Versailles of the 7th special House of minors : Mrs. Armelle Guiraud. Ms. Martine Novella and Mr Pierre Pedron. Ms. Favereau; see the judgment of January 07, 2011 in the 7th House, or is not the person who delivered the judgment, but people who were not present on the day of the hearing to: Mrs.: fumble; and Becdelièvre . (article 43) is first defined without reference to the oath (section 6) which provides certain ethical obligations yet. The Higher Council of the judiciary, the Council of State on use, allow to apprehend in a casuistic way what is meant by duties of the State of the judiciary: "Honour"; Delicacy; "or dignity"
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"The CCJE wishes to emphasize that the compelling need to preserve the independence of the judges assumed that when considering the drafting of a declaration of ethical standards, it is based on two essential principles:
(i) Firstly, it should refer to the fundamental principles of ethics and assert that it is impossible to draw up an exhaustive list of prohibited the judge behaviour which would be previously defined. the principles enacted should be instruments of self-control of the judges, i.e. General rules that are guides to action.
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Also, although there is so much overlap that reciprocal effect, should the ethics remain independent of the system of discipline of judges, in the sense that the ignorance of one of these principles should not be in itself a cause of implementation set of disciplinary, civil or criminal liability; then the ethical principles should be the emanation of the judges themselves. they should be designed as an instrument of self-regulation of the body, generated by itself, allowing the judiciary,
To gain legitimacy by the exercise of functions under generally accepted ethical standards. "A broad consensus should be provided, possibly under the auspices of a person or body mentioned in paragraph 293, which could also have the task to explain and interpret the statement of principles of professional conduct".
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France, the Higher Council of the judiciary launched a reflection towards the adoption of ethical standards. The last recommendation above is for the moment followed, since a consultation is launched in the profession, with designation of representatives of the judges in each court of appeal.
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The judges have knowingly developed Parties at trial "custodial services", in a position of strength, to the detriment of another party, the parents.
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In such conditions created by judges of the children Mrs Guiraud. Novella and Mr Pedron, debates may not be impartial.
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"It is fundamental that the judges of the children forget their roles of counterforce to the intervention of social services: their roles as guarantor of individual freedoms."
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The debates conducted only by judges of the children Mrs Guiraud, and Novella, and Mr Pedron , without the presence of the parents, and only the presence of welfare to children at these hearings Is A VIOLATION of the. IMPATIALITE are not respected article 388-1 of the civil code, neither meets the requirements article 6 §1 of the European convention for the rights of man and fundamental freedoms protection.
Article 6 - Right to a fair trial
Every person has a right to that his case be heard fairly, publicly and in a reasonable time , by an independent and impartial tribunal established by law, which will decide, or challenges on his rights and duties civil in nature, or the merits of any charge in criminal proceedings against it. The judgment must be made
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publicly, but access to the courtroom may be barred to the press and to the public during all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the privacy of the parties to the trial so require, or to the extent strictly required by the tribunalwhere in special circumstances the advertising would impair the interests of justice.
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Any person charged with an offence is presumed innocent until his guilt has been legally established.
Any accused is entitled inter alia to:
Be informed, within the shortest time, in a language which he understands and in detail, the nature and the cause of the charge against him;
Have the time and facilities for the preparation of his defence;
defend himself or have the assistance of an advocate of his choice and, if he has no means of paying a defender, able to be assisted free of charge by a lawyer, when the interests of justice so require; query or question witnesses and to obtain the calling and interrogation of the defence witnesses under the same conditions as the witnesses
Article 8 - Right to respect for private and family life
Any person is entitled to respect for his private and family life, his home and his correspondence.
There may be interference by a public authority in the exercise of this right only to the extent that this interference is prescribed by the Act and that it constitutes a measure which, in a democratic society, is necessary to national security, public safety, to the economic well-being of the country, the defence of the order and the prevention of criminal offencesthe protection of health or morals, or the protection of the rights and freedoms of others
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Article 13 - Right to an effective remedy
Any person whose rights and freedoms recognized in the present Convention have been violated, is entitled to an effective remedy before a national court, even though the infringement allegedly committed by persons acting in the exercise of their official duties
Such findings demonstrate the failures of the magistrates, and the denis thereof.
Article 29 - Decisions of the Chambers on the admissibility and the merits
If no decision was taken pursuant to articles 27 or 28, or no decision under section 28 , a Chamber to rule on the admissibility and the merits of the individual motions under section 34. The decision on admissibility may be considered separately.
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A house rule on the admissibility and the merits of the State introduced motions under article 33 . Unless the Court in exceptional cases, the decision on admissibility is made separately.
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Such methods of manipulation of children are filthy, and only a totally impartial magistrate of the parties.
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For these reasons :
We undertake prosecutions for the following reasons:
1) Criminally blameworthy conduct whether or not it has resulted in criminal prosecution.
(3) Breach or professional failure which give rise to delays taken by the judges in the performance of their missions through the use of their functions to private purposes, the behavior of a lack of impartiality.
The State professional failures present some serious, repeated, are of a disciplinary nature.
(4) I request that all orders are lifted.
5) All our children, we are made to question admissibility: "Clear;" Marie-Laure; Clara; Christophe; Charles; Louis; "Amélie and Christian Lorentz"
(6) We are asking that the leaders of the social assistance at Suresnes and Placement Rambouillet family child, be prosecuted for misappropriation of the truth, and manipulation in the same way as the Magistrates because it overrides their judgment.
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(7) We are asking that each child who have been traumatized by this case, be compensating for height of 150,000 euros, by the State and EUR 60 000 for each child by the general Council of the 92.
(8) - for the visa of articles 341 of the code of civil procedure and 6 § 1 of the Convention for the protection of the rights of man and fundamental freedoms, the finding of the causes for disqualification of judges and the invalidity of the decision of these last for impartiality
(9) We ask that articles 47 and 97 of the civil procedure code, are respected.
(10) As the articles 341-4 of the CPC; Västberga-1 of the code of judicial organization and article 226-13 for violation of professional secrecy, indeed judges of children Ms. Guiraud and Ms. Novella were disclosed on a site: "justice.cloppy.net", elements of the judicial record, (see the records to the public prosecutor of Nanterre).
According to the Code of Civil Procedure: " " As it is stated in section 75 of the Act No. 91-647 of 10 July 1991,
Only Section 349 either rule on the challenge acrte
If the judge opposes recusal or does not respond, the application for recusal is considered without delay by the Court of appeal or, if it is directed against an assessor of an echevinale Court, by the president of this Court pronounced without appeal.
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REMINDER texts
. Under the terms of article 176 of the CCPC, "any proceedings will be extinguished by discontinuation of prosecution for three years 168 (**)". Paragraph 2 of the same text provides that "this time will be increased by 6 months in all cases where it will take place at request in continuance of instance169 (**)". Thus, when since the last act of procedure170 (**) it took more than three years, or in cases where there were held in continuance of suit demand, more than three years and 6 months, the instance is outdated and therefore extinct. However, so the lapse could actually play, a number of conditions must be met to allow its implementation.
Indeed , the lapsing of the Act is the result of a defect that's very generally of the failure to comply with a specification designed to speed up the course of the proceedings. In addition, and this is undoubtedly his characteristic, the lapse is objective; It operates normally right. This character of the lapse is explained in procedural law by the idea of sanction152 (**). The sunset appears indeed as the sanction of a lack of due diligence of the parties. It is up to the parties to the proceedings at the forms and deadlines, and it is therefore logical that the sanction of such guidelines is of public order. This command is indeed often the power and even the duty of the judge to raise Office this way
-the lack of referral to the Court within the statutory time limit; It's here the late placement assignment before the tribunal155 (**), or the statement of appeal to the Court of appel156 (**).
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-the default appearance of the applicant; This defect causes the staleness of the citation to two conditions: the absence of justification by the applicant of a reason legitimate non-
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Appearance, this justification for the judge to refer the matter to a later hearing. and the lack of judgment on the merits by comparing respondent; the
judge cannot rule on the merits at the request of the defendant and cannot proceed to office157 (**); In addition, this il is required to rule on the merits, the judge must give reasons for its decision and cannot confine itself to deny the applicant by the finding of the absence of comparution158 (**). This cause of lapse of the application is not in default of appearance of the applicant in case of appeal, the Court of cassation having decided upon that the failure of the appellant's appearance "is not sufficient to render null and void the statement of appeal" 159 (**); the Court of appeal must in this case, the appellant has been regularly summoned, found that the appeal is not supported and confirm the judgment;
-the failure of (**).
B / the extinction of the instance to null and void quote.
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72 Observes that the extinctive cause of the instance is the result each time a deficiency of the applicant, and non-parties. The latter before a Court of a dispute, but because of the non‑compliance of a formality required by law, in a time-limit for the proper conduct of the proceedings, his initial application is not taken into consideration. There is therefore a time for as a time to act. However, if this time escaped the applicant forced to bend to the measurement of time fixed by the law, the defendant is recognize an alternative. First branch of the alternative, the respondent wishes to terminate the instance to which it is party to that bad BRM, it is sufficient to apply to the judge the extinction to lapse. But the defendant may prefer to opt for the second branch of the alternative. He can not ask the judge to see the sunset or, and the result is the same, require a judgment on the merits, the judge having, in the latter case, than the faculty to refer the matter to a later hearing.
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The binding of the instance at the initiative of the defendant is required to the judge, despite the lapse of the citation. There is therefore a kind of unilateral control of the referral by the defendeur161 (**).
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In this judgment to the visa of article 6 § 1 of the European Convention on human rights, the first Civil Chamber of the Court of cassation ensures that the popular adage the cobbler is the worse shoed does not check for fair trial. Indeed, the applicant to appeal is a lawyer sued under a disciplinary procedure, which invokes an infringement of its rights of defence.
3. Any litigant is entitled inter alia to:
has) be informed, within the shortest time, in a language which he understands and in detail, the nature and the cause of the charge against him;
(b) have time and facilities for the preparation of his defence;
(c) to defend himself or have the assistance of an advocate of his choice and, if he has no means of paying a defender, able to be assisted free of charge by a lawyer, when the interests of justice so require;
(d) examine or question witnesses and to obtain the calling and interrogation of witnesses to discharge under the same conditions as witnesses for the prosecution;
(e) be assisted free of charge by an interpreter if he does not understand or speak the language used at the hearing. »
■ Civ. 1st, 9 Jul 1996., Bull. Civ. I, n ° 301
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■ Civ. 1st, 25 f e vr. 2010, n ° 09 - 11.180.
■ Civ. 1st, 11 March 2010 n ° 09 - 12.453.
■ ECHR June 23, 1981, the account Van Leuven and De Meyer v. Belgium, no. 6878/75; 7238/75.
■ ECHR 18 f e vr. 2010, Baccichetti c. France, n ° 22584/06.
The denial of justice: article 4 of the Civil Code
The prohibition on the judge to commit a denial of justice has.The refusal of the judge to exercise his office
B. in case of denial of justice, the judge is liable to criminal sanction
II. the legal consequences of the application of article 4 of the Code Civil Customs ' expansion of the grounds of referral under the influence of European law
B. the power given to the judge hone defective laws
Summary of presentation
The Civil Code of 1804, "civil constitution of the France" according to Dean Carbonnier, is a synthesis between the revolutionary gains and the return to order intended by Napoleon I. This Code inherits from a suspicion that the judges have inspired the revolutionaries. The judicial power is tightly muzzled and monitored. Evidenced by section 4 which punishes the denial of justice, i.e. the refusal of the judge to rule in a case that has been submitted. Offences, the judge is subject to criminal punishment. First, this article is interpreted as repressive by the historical context. Nevertheless, with the
return to grace of judges and the expansion of their powers, its positive scope is gradually highlighted.
[...] Thus, jurisprudence for example penalizes judge that delegates to the liquidator notary to decide the amount of compensation in assessment. The denial of justice
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is therefore an extensive design of the concept of fault heavy and is indicative of malfunction of services of justice due to the responsibility of judges, under the terms of article 4. The requirements of a fair trial within the meaning of article 6 of the European rights Convention of human, and access to justice are not fully met which cause injury to individuals. [...]
[...] The framers of the Civil Code had already thought evoking a criminal sanction against the judge who would commit a denial of justice. Of course, the penalty is not detailed. However, the prohibition of denial of justice is the mark of the rule of law, i.e. the submission of all law, including judges and the State. The judgment rendered by the judge, which responds to the complaint, is the backbone of this system. This duty to deal make effective the right of legal action that article 30 of the new Code of civil procedure defined as follows: the right of the author of a submission, to be heard on its merits so that the judge say well or ill-founded, access to justice is one of the basic rights and fundamental freedoms. [...]
We are seeking compensation under article 700 of the Code of Civil Procedure.
And this is that justice . For the Lorentz family / Moreau
A title of information this fact 1009 days any visit to the PARENT despite the judgments of the Court of appeal of Versailles
Mr Lorentz Emeric and Mrs Moreau Christel
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