Conciliation between Trade Union Freedom and Judicial Impartiality

Extract

[...] A solution consolidating both equity and independence In addition to the sole principle of impartiality, it is the European right of any person to be heard by an independent and impartial tribunal that has been recalled. The French judges have indeed conformed to the European protection of the fair trial. They did so by giving a precise and strict framework to the suspicion of partiality. This allows judges to ensure a balance between the rights and freedoms of litigants and the serene exercise of the function of judging. [...]

[...] By the same occasion, the judges recalled the principle of independence of magistrates. This decision provides keys to the evaluation of the general principle of impartiality, retaining a rigorous and fair approach. A wide protection is thus granted to magistrates. However, the limit seems light between the breach of the principle of impartiality and its respect. It then falls to the judges not to leave room for doubts about their opinions, to make a distinction. [...]

[...] The latter filed a request seeking to challenge the presiding judge of the first chamber called upon to rule on the said dispute due to his membership in the magistracy union which has "very frequently taken very hostile political positions against the Front national". The judge did not acquiesce to this request. Following a decision made in first instance, an appeal was lodged. The Versailles Court of Appeal made a ruling on 14 March 2002. It dismissed the association's request. [...]

[...] It found the absence of notorious enmity between the magistrate on the one hand and the requesting party on the other hand. Consequently, it retained the impossibility of any reasonable doubt as to the impartiality of this magistrate. A cassation appeal was then lodged by the Front national association. The appeal consists of three grounds. First, the applicant criticizes the Court of Appeal for not sufficiently motivating its decision. Then, it is criticized for violating Article 341 8° of the Civil Procedure Code ("there is a notorious friendship or enmity between the judge and one of the parties") for not recusing the judge. [...]

[...] They prioritized, in this case, trade union freedom, therefore a personal freedom over a collective right. In fact, based on articles 341 8° of the Code of Civil Procedure and article 6§1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the judges affirmed the fact that the membership of a magistrate in a union constitutes the exercise of a fundamental freedom protected. In addition, the mere fact that a judge belongs to a union cannot be interpreted and considered as evidence of hostility or partiality. [...]