THE PUBLIC PROSECUTOR IS NOT INDEPENDENT.

1-ThePublic Prosecutor is hierarchically placed under the authority of the Minister of Justice, as article 5 of Ordinance No. 58-1270 of 22 December 1958 on the organic law relating to the status of the judiciary states: " Public prosecutors are placed under the direction and control of their hierarchical superiors and under the authority of the Keeper of the Seals, Minister of Justice ".

While the Council(Cons. const., 8 Dec. 2017, No. 20147-680 QPC: JurisData No. 2017-018713) considered that this hierarchical link did not deprive the public prosecutor's office of the " independence " of the " judicial authority ", it should be recalled that this membership of the judicial authority is not recognised by the ECHR(ECHR 10 Jul. 2008 No. 3394/03 Medvedev), nor even by the criminal chamber of the Court of Cassation (Cass. crim, 15 Dec. 2010, No. 10-83.674: JurisData No. 2010-023523; Bull. crim. 2011, No. 207 ) and is not absolute, since the public prosecutor's office remains subject to the directives of the government, to its power of appointment and sanction.

Article 28 of Ordinance No. 58-1270 of 22 December 1958 stipulates that decrees appointing public prosecutors are issued by the President of the Republic after consultation.

This authority is also expressed, as has been said, by a power of sanction, and article 66 of Ordinance No. 58-1270 of 22 December 1958 specifies that a decision to sanction a member of the public prosecutor's office is taken by the Keeper of the Seals after the opinion of the competent panel of the High Council of the Judiciary.

2-The" independence " of the public prosecutor's office-which is even questionable-is therefore " less strong " and full than that of the judges.

As has been said, the European Court has an unequivocal position on this matter:

« the public prosecutor does not meet the requirements of objective impartiality, in the name of which the magistrate must present the required guarantees of independence from the executive "(ECHR 10 July 2008 n°3394/03 Medvedyev).

The Criminal Chamber of the Court of Cassation also has an unequivocal position on the independence of the prosecution:

"Whereas the investigating chamber wrongly held that the public prosecutor is a judicial authority within the meaning of Article 5 § 3 of the European Convention on HumanRights , even though he does not have the guarantees of independence and impartiality required by that text and is the prosecuting party,However, the judgment does not incur censure, since the applicant was released at the end of a period of deprivation of liberty compatible with the requirement of brevity imposed by the said Convention; "(Cass. crim, 15 Dec. 2010, n° 10-83.674: JurisData n° 2010-023523; Bull. crim. 2011, n° 207)

3-In addition, Article 30 of the Code of Criminal Procedure (amended by Article 1of LAW No. 2013-669 of 25 July 2013 on the powers of the Keeper of the Seals and the magistrates of the Public Prosecutor's Office in relation to criminal policy and the implementation of public action) provides:

"The Minister of Justice shall conduct the penal policy determined by the Government. He shall ensure that it is applied consistently throughout the territory of the Republic.

To this end, he shall issue general instructions to the public prosecutors.

He may not issue any instructions to them in individual cases.

Each year, it shall publish a report on the application of the penal policy determined by the Government, specifying the conditions of implementation of this policy and of the general instructions issued pursuant to the second paragraph. This report shall be transmitted to Parliament. It may give rise to a debate in the National Assembly and the Senate. ».

For the application of this text, the Keeper of the Seals at the time, Madame TAUBIRA had taken a circular.(Circular of 31 January 2014 on the presentation and application of Law n°2013-669 of 25 July 2013 on the powers of the Keeper of the Seals and the magistrates of the Public Prosecutor's Office in matters of criminal policy and the implementation of public action - Supplementary Official Bulletin of 14 February 2014 - JUSD1402885C)

It is very important to note that point I.B of the annex to the said circular specifies: " The public prosecutors' offices must inform the Chancellery regularly, in a complete and timely manner, of the most significant proceedings and fully exercise their role of analysis and synthesis ".

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