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In French law, theministère public orle parquet is the authority charged with defending the interests of society and of the application oflaw. It is primarily made up of magistrates, but is sometimes represented by other persons such as police officials. Itsmagistrates can be referred to as "standing" magistrates, as opposed tomagistrats du siège (seated magistrates). Its closest equivalent in some English-speaking countries is the (office of the)director of public prosecutions[1] and theattorney general in others.
The termministère public translates literally as "public ministry" and that institution can exercise a public action (action publique) in penal infractions that cause a disturbance of theordre public, and can also initiate prosecutions or non-prosecutions. It can intervene in all jurisdictions of the judiciary, but has never really exercised the same role in the administrative areas, except for financial venues (juridictions financières).
In France,the ministère public (in the person of anAttorney-general, aprocureur de la République or one of hissubstituts or representatives) is designated as "le parquet" in legal jargon. The wordparquet itself may have stemmed from theOld French, where it meant a "small park or enclosure". The term "parquet" goes back to themedieval expression "parquet des Gens du Roi". The origin of this use and meaning of the word is not known with certainty, but the most probable hypothesis is that these magistrates were separated from the magistratesdu siège in a sort of "park".[2]
The location of theministère public has been called the "parquet" because in the Great Chamber (la Grand-Chambre) of Paris the enclosure delimited on three sides by the seats of judges and on the fourth by abarre or handrail, this heart of the room, a closed and dedicated space,(sacré), a small parc or parquet, that the people of the king (les gens du roi) crossed to take their places and where thegens d'armes, gendarmes, came forward to relate the findings of their investigations, to erect (en dresser) theprocès-verbal.[3]
The name "standing magistracy" ("magistrature debout"), comes from the fact thatministère public magistrates formerly stood to speak, notably whenprenant les réquisitions, asking for a sentence, unlike themagistrats du siège, seated magistrates, who remained seated for the entire hearing.
Theministère public first appears as a concept at the end of the 18th century, when the kings of France caused their interests to be defended by procureurs, or prosecutors, who little by little put themselves exclusively at the service of the kings. Theparquet modeled itself little by little withprocureurs, prosecutors,avocats, lawyers andsubstituts, designations which remain in contemporary French justice.[4]
Prior to theFrench Revolution, theministère public was embodied byofficers called the Gens du roi (King's men), so that the Attorney-General of the king was the key role of theparlements of theAncien Régime.
The question of whether to keep theministère public arose at the time of the Revolution, but this was resolved in the affirmative by the law of the 16th and 24 August 1790, notably in article 8 of title II. TheFirst Republic reprised the idea as theaccusateur public, or public accuser. Until 1970, jurisdictions existed which had aparquet, in general the penal jurisdictions and the civil common law jurisdictions, and jurisdictions with noparquet existed as well, thejuridictions d'exception non répressives such as thecouncilde prud'hommes for example. Article 3 of law no 70-613, the law of the 10th of July 1970, authorised the prosecutor of the Republic to exercise public action before all first degree jurisdictions[2]
The drive to install aministère public before administrative jurisdictions other than theCour des comptes was translated by the ordinances of February 2 and March 12, 1831, which created the function of "government commissioner" before theConseil d'État. Not until 1862 were government commissioners introduced toles conseils de préfecture. Given that administrative justice works differently, the absence of hierarchy between the commissioners and a more rapid passage from the function of « commissaire du gouvernement » to that of judge, these persons never really exercised the role d'un ministère public, except in comparison to a public minister (ministère public) of theCour de cassation[2] The government rebaptized "rapporteurs publics" in 2009.
One of the specifics of the parquet is that it is indivisible: each member represents the whole and the members are thus interchangeables. Any action by a member commits the entireparquet. In a trial, the magistrates of the parquet may mutually replace one another without stopping the proceedings, which is forbidden to the magistratesdu siège results in their case of nullity of the judgment.
Another specific is the non-responsibility of theparquet; a magistrate of theparquet is responsible only for his own mistakes but cannot be assigned court costs as another plaintiff might after losing a trial. He cannot be prosecuted for either injury or defamation caused by what he says in a hearing. Personal faults tied to public service can on the other hand be prosecuted by virtue of the State's power of recourse, but only in front of the civil chamber of the Cour de cassation.
The magistrates who compose it are the same as those of thesiège (chair). Generally a magistrate, in the course of his career, will carry out the functions of the chair as well as of theparquet.
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| First grade |
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| Outside the hierarchy |
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Its composition varies with the jurisdiction:
The role of theministère public, which is to defend the interests of society, the public order and the application of the law, is exercised in three areas: anaction publique before a penal jurisdiction, anintervention before a civil jurisdiction, and theattributions administratives.
He represents the interests ofsociety and to do so he exercises anaction publique (in other words prosecution as the plaintiff, intervening in the trial as a principal party). He can act both in theinstruction and the judgment phases.
The services of thepolice judiciaire (PJ), or judicial police, are at the disposal of theministère public for seeking out infractions, which allows him to decide whether or not to set off theaction publique.
In common law administrative jurisdictions (i.e. as opposed to specialised administrative jurisdictions),commissaires du gouvernement (government commissioners) existed, and were loosely related to the judiciary'sministère public, albeit their functions were closer to giving a general opinion on legal matters pertaining a case rather than actively defending the interests of society of the government, despite their name. Their transformation intorapporteurs publics in 2009[7] confirmed that they were not of the same nature as theministère public. Furthermore,Rapporteurs public has been confirmed to be fully independent and impartial in their functions.[8]
Article 6 of the law of February 4, 1850 bearing on the organisation of thetribunal des conflits provides that the functions of theministère public will be filled by two commissioners of the government chosen every year by the President of the Republic, one from among themaîtres des requêtes on the State Council (Conseil d'État), the other from theparquet of theCour de cassation. Le tribunal ne peut statuer qu'après avoir entendu les conclusions du commissaire du gouvernement (art. 4 de la loi). Si le rapporteur appartient au Conseil d'État, alors le commissaire du gouvernement doit être un magistrat de la Cour de cassation, et réciproquement (art. 7 de la loi).
Theparquet is not considered an independent judicial authority in the meaning of article 5 of theConvention de Sauvegarde des Droits de l’Homme et des Libertés Fondamentales.[9] The European court for the rights of man condemned France in November 2010 for having conferred on it jurisdictional functions.[10]
In 2013 the law was again modified, eliminating the oral instructions transmitted par theChancellerie to prosecutors.[11]
At the same time theEuropean Court of Human Rights confirmed in a new verdict on June 27, 2013,Vassis et al vs France,[12] that the Frenchparquet cannot be considered a judicial authority in the sense ofarticle 5§3 of the Convention.[13]
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