Impartiality, administrative law, magistrate mediator, rapporteur public, Council of State, Administrative Justice Code, human rights, fair trial
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Abstract
The Council of State affirms the principle of impartiality in administrative law, ruling that a magistrate mediator cannot participate in the formation of a judgment as rapporteur public in the same dispute.
Extract
[...] It is not only applied in administrative law but also in other branches of law. It is essential to the right to a fair trial. In this case, since the judge was first a mediator and then a rapporteur public in the same case, he cannot bring a new, unbiased view to the file, as expected in the context of a judgment. The Council of State has therefore affirmed the application of the principle of impartiality for the administrative magistrate mediator becoming rapporteur public. [...]
[...] The Conseil d'État answered the present question in the affirmative. It is on the basis of Articles L213-1 and L213-2 of the Administrative Justice Code that it ruled that "the principle of impartiality opposes an administrative magistrate chosen or designated as a mediator ( . ) participating in the formation of a judgment tasked with resolving the dispute submitted to mediation or concluding as rapporteur public on it." The Conseil d'État thus joined the position of the administrative court of appeal. [...]
[...] In this case, a contract was established between, on the one hand, a public entity, the Province of North New Caledonia and, on the other hand, the GEMCO company. This contract concerns the realization of works and the creation of a canal. A price was set. However, the province refused to accept it. After an unsuccessful mediation, the parties brought the matter before the Administrative Tribunal of New Caledonia. Its decision did not satisfy them. Consequently, an appeal was lodged. [...]
[...] The stakes of impartiality are high. An impartial decision goes in the direction of a fair trial, it is one of its components. Impartiality also allows to avoid conflicts of interest, to strengthen the legitimacy of the administration (all the more so as it is largely questioned today), to protect the rights of the administered but also to avoid a sanction emanating from the European Court of Human Rights in case of bad application of article 6§1 of the Convention. [...]
[...] A person cannot be both judge and party to the proceedings. In this case, although the Council of State does not clearly specify the role of the mediator, it is clear that their presence in the procedure creates a conflict of impartiality. Indeed, a litigant could legitimately doubt the impartiality of the judge in this context. It is therefore preferable to avoid such a situation and to render a totally impartial solution. We regularly say that "when there is a doubt, there is no doubt". [...]
