REPORT ON THE EXCHANGE AND SUMMARY

Transcription

1 REPORT ON THE EXCHANGE AND SUMMARY Instructions: 1. The report must be sent to the EJTN within one month after the exchange. 2. Please use the template below to write your report (recommended length: 4 pages). 3. Please write in English or French. Should this not be possible, the report can be written in another language but the summary must be in English or French. 4. Please read the guidelines for drafting the report (in Annex). Feel free to add any other relevant information in your report. 5. The summary shall contain a synthesis of the most important information of the report. 6. Please note that NO NAMES, neither yours nor the ones of the persons you met during your exchange, should appear in the report in order to ensure anonymity 1. Initials can be used when necessary. Identification of the participant Name: First name: Nationality: Austria Country of exchange: France Publication For dissemination purposes and as information for future participants in the Programme please take note that, unless you indicate otherwise, EJTN may publish your report in its website. In this case the report will remain anonymous and your name and surname will not appear. To this aim, please do not mention any names in the reports. Initials can be used instead. Please tick this box if you do not wish for your report to be published For completion by EJTN staff only Publication reference: 1 To that purpose, the first page of this report will be taken out before any possible publication Réseau Européen de Formation Judiciaire/ (aisbl) Rue du Luxembourg 16B, B-1000 Bruxelles; Tel: ; Fax: ; exchanges@ejtn.eu

2 For completion by EJTN staff only Publication reference: Identification of the participant Nationality: Austria Functions: future judge Length of service: 3 years Identification of the exchange Hosting jurisdiction/institution: Tribunal de grande instance de Metz City: Metz Country: France Dates of the exchange: 30/09/ /10/2012 Type of exchange: one to one exchange group exchange general exchange specialized exchange (please specify : ) I - Programme of the exchange REPORT My exchange took place from 30th of September 2012 till the 14th of October 2012 at the Tribunal the Grande Instance de Metz, France. In order to understand all different aspects of the local system and to comply with the universal approach of my current training programme in Austria I requested a rotational programme through all different fields of law / departments. Fortunately, the tutor of the hosting institution agreed and developed a placement programme which allowed me to experience two different fields of law / departments each day. Due to the flexible programme I was able to attended hearings in civil law (with both, collective and single judges), family law, criminal law, commercial law, hearings at the juvenile court (civil and criminal law) and support the local prosecutors. Furthermore, I had the opportunity to spend one afternoon each with the examining and the enforcement of sentences magistrate.

3 During the two weeks in Metz, I had the possibility to attend the above mentioned hearings, take part at deliberations, access local files and read judgements. All of this allowed me to gain insight into the French legal system. For details please see the enclosed programme. The flexible and diverse placement programme not only gave me access to local resources, but also allowed me to meet the magistrates in charge of the various departements. Already on the first day of my exchange programme I had the honour to meet the President of the Cour d'appel de Metz and the President of the Tribunal de Grand Instance de Metz. II - The Hosting Institution The Tribunal de Grande Instance de Metz is a regional court of first instance, which deals with civil and criminal law. It is situated in the Palais de Justice, as well as the Cour d'appel (court of appeal). Metz is also home to the Tribunal d'instance (district court), which deals with minor cases. The highest court in France is the Cour de cassation (supreme court) in Paris. The Tribunal de Grande Instance de Metz hosts also the prosecution and the Tribunal pour Enfants (juvenile court). The majority of cases are dealt by a collective of three judges (either three professional judges; two professional judges and one lay judge; or one professional judge and two lay judges), however some cases are dealt by a single judge. The Tribunal de Grande Instance de Metz is lead by the president, who is supported by first-vicepresidents and vice presidents. Beside the judges, court clerks (greffiers) play an important role in the day-to-day operations of the court. Court clerks must be present at each hearing. III - The Law of the Host Country / IV - The Comparative Law Aspect of the Exchange The French substantive law is similar to the Austrian substantive law in many aspects. However, the procedural law is different in some aspects. In my opinion, the biggest difference in the procedural law (in the criminal law and the civil law) between France and Austria is the principle of immediacy. France: In criminal hearings the presiding judge brings forward recorded testimonies from witnesses, which were recorded by the police investigators beforehand. After the records were acknowledged the presiding judge interrogates the accused, who can defend her-/himself and bring forward her/his view of the matter. Furthermore, the prosecutor and the defence counsel are allowed to interrogate the accused. But the witnesses are not heard in front of the court and nobody; not the presiding judge, the prosecutor nor (what is really important in my view) the accused/defence counsel are allowed to interrogate the witnesses. This method does not allow any further discussions of the witnesses testimonies, hence any discrepancies cannot be clarified and the judges, prosecutors and accused/defence counsel are dependent on the work of the investigating police. This lays a great burden on the investigating police due to the possiblity of new

4 or different evidence or unexpected changes which could occur during the trial or after the testimony was given. Austria: In criminal hearings in Austria the accused, all witnesses and victims and sometimes even authorised experts, are heard and interrogated by the presiding judge in detail to all accusations. This allows the presiding judge to clarify any potential discrepancies between the recorded testimonies of the accused and the witnesses. After the presiding judge the prosecutor and the accused/defence counsel are allowed to interrogate the witnesses and can question the witnesses testimonies. As seen in precedent cases, the accused or the witnesses sometimes change their testimony during further interrogation in front of the court. These further interrogations may lead to different testimonies of witnesses, confessions, new evidence etc. Another difference concerning the principle of immediacy exists in the civil procedural law. Civil matters in France are dealt within written proceedings where the barrister has the possibility to plead at the end. Emphasis is put on documentary evidence as, similar as in criminal hearings, no parties and no witnesses are heard directly in front of the court. The Austrian civil procedural law states that all the parties, witnesses and authorised experts have to be heard in front of the court. Therefore, the presiding judge and the parties/barristers are able to interrogate the other party or the witnesses. Timing and daily management of the cases are different in France. All parties/accused/counsels are cited in front of the court at the beginning of the official hearing, regardless of the order during the hearing i.e. the case might be dealt at the end of the hearing. Furthermore, the deliberation is held at the very end of the hearing, which implies that all involved parties have to wait for their judgments until all cases are dealt and the judges, after deliberation, reached a conclusion (if issued the same day). This procedure is applied for all cases and does not distinguish between simple or complexe cases. As a result even simple cases may be dealt at the end of the hearing. This means that all involved parties from one hearing have to spend the whole morning/afternoon at the court. In Austria on the other hand one case is dealt with after another and the parties/accused/counsels are cited in front of the court at a predefined time. This method allows better and more structured planning for involved parties, however it also limits flexibility for the judge. As a matter of fact the exact timing of a case is hard to plan, because of unforeseen changes or unpunctuality of involved parties. Therefore this creates some unforeseen break time for the judges. In France however, the judge could just suspend a case and deal with another one first what practically eliminates waiting time for the judges and better utilise the facilities. I find it quite remarkable that at the Tribunal pour Enfants one judge deals with criminal law as well as parental custody/legal guardianship aspects and therefore covers the whole spectrum for children and teenagers up to the age of 18. Noticeable was also a difference in penalties which are slightly stronger than in Austria and people can be placed under police custody slightly easier than in Austria. V - The European Aspect of the Exchange

5 Unfortunately, during my exchange I did not have personal and direct experiences with the European community law or judicial cooperation within the European Union. All cases I have seen / was involved have dealt with French national law. However, the European community law is implemented in the French national law and respected by the judges. Furthermore, the French authorities make requests for judicial assistance to other Member States of the European Union. VI - The Benefits of the Exchange I absolutely enjoyed and greatly appreciated the exchange programme at the Tribunal de Grand Instance de Metz and I strongly believe that I learned a lot about the French judicial system. As the recent past has shown that the Community law is gaining importance and the judicial cooperation between the Member States of the European Union is increasing, it is, in my opinion, absolutely crucial in today s interlinked world to understand the functioning of other EU-Member States judicial systems in order to create a more united European Union and facilitate further cooperation / harmonisation. Gaining insights into other judicial systems, exchanging experiences and opinions also promotes critical questioning of current systems and helps to develop more efficient best practice models. Furthermore, I would like to highlight that it was very valuable to talk and discuss with my French colleagues the different training and development programmes for judges and future judges. As mentioned above I was able to gain experience in most fields of law and departments of the Tribunal the Grand Instance de Metz. This allowed me to gain a good understanding of the French procedural and substantive law, which will most likely be useful for my day to day work as a judge in Austria. Last but not least, the exchange programme broadened my mind and further developed my international experiences and interpersonal skills. VII - Suggestions There is not much to say it was a great experience. Given the valuable insights I gained during this period I can only recommend it and would suggest to better promote the programme in Austria. Every judge and prosecutor as well as future judges and prosecutors in Austria would benefit from the exchange programme and it would be desirable that more judges and prosecutors in Austria would take advantage of the exchange programme and gain valuable insights in the judicial systems of other EU Member States.

6 SUMMARY My exchange took place from 30th of September 2012 till the 14th of October 2012 at the Tribunal the Grande Instance de Metz, France. The Tribunal de Grande Instance de Metz is a regional court of first instance, which deals with civil and criminal law. It is situated in the Palais de Justice, as well as the Cour d'appel (court of appeal). Metz is also home to the Tribunal d'instance (district court), which deals with minor cases. The highest court in France is the Cour de cassation (supreme court) in Paris. The Tribunal de Grande Instance de Metz hosts also the prosecution and the Tribunal pour Enfants (juvenile court). In order to understand all different aspects of the local system and to comply with the universal approach of my current training programme in Austria I requested a rotational programme through all different fields of law / departments. Fortunately, the tutor of the hosting institution agreed and developed a placement programme which allowed me to experience two different fields of law / departments each day. Due to the flexible programme I was able to attended hearings in civil law (with both, collective and single judges), family law, criminal law, commercial law, hearings at the juvenile court (civil and criminal law) and support the local prosecutors. Furthermore, I had the opportunity to spend one afternoon each with the examining and the enforcement of sentences magistrate. The majority of cases are dealt by a collective of three judges (either three professional judges; two professional judges and one lay judge; or one professional judge and two lay judges), however some cases are dealt by a single judge. I absolutely enjoyed and greatly appreciated the exchange programme at the Tribunal de Grand Instance de Metz and I strongly believe that I learned a lot about the French judicial system. Furthermore, I would like to highlight that it was very valuable to talk and discuss with my French colleagues the different training and development programmes in regards to qualifying for a judge. As mentioned above I was able to gain experience in most fields of law and departments of the Tribunal the Grand Instance de Metz. This allowed me to gain a good understanding of the French procedural and substantive law, which will most certainly be useful for my day to day work as a judge in Austria. Last but not least, the exchange programme broadened my mind and further developed my international experiences and interpersonal skills and I can only recommend it strongly to every judge and prosecutor as it is a very valuable instrument to further develop Community wide collaboration in judicial matters.

7 ANNEX GUIDELINES FOR DRAFTING THE REPORT I- Programme of the exchange Institutions you have visited, hearings, seminars/conferences you have attended, judges/prosecutors and other judicial staff you have met The aim here is not to detail each of the activities but to give an overview of the contents of the exchange. If you have received a programme from the hosting institution, please provide a copy. II- The hosting institution Brief description of the hosting institution, its role within the court organisation of the host country, how it is functioning III- The law of the host country With regard to the activities you took part in during the exchange, please develop one aspect of the host country s national law that you were particularly interested in. IV- The comparative law aspect in your exchange What main similarities and differences could you observe between your own country and your host country in terms of organisation and judicial practice, substantial law..? Please develop. V- The European aspect of your exchange Did you have the opportunity to observe the implementation or references to Community instruments, the European Convention of Human Rights, judicial cooperation instruments? Please develop. VI- The benefits of the exchange What were the benefits of your exchange? How can these benefits be useful in your judicial practice? Do you think your colleagues could benefit of the knowledge you acquired during your exchange? How? VII- Suggestions In your opinion, what aspects of the Exchange Programme could be improved? How?