{"id":396,"date":"2025-03-04T11:33:57","date_gmt":"2025-03-04T11:33:57","guid":{"rendered":"https:\/\/www.rollcom.fr\/skyroll\/?p=396"},"modified":"2025-03-04T12:05:50","modified_gmt":"2025-03-04T12:05:50","slug":"administrative-courts-faced-with-ad-nominem-attacks","status":"publish","type":"post","link":"https:\/\/www.rollcom.fr\/skyroll\/en\/2025\/03\/04\/administrative-courts-faced-with-ad-nominem-attacks\/","title":{"rendered":"Administrative courts faced with ad nominem attacks"},"content":{"rendered":"\n

The Doualemn affair and the dispute over the A69 motorway are both occasions to attack the administrative justice system, which is under increasing public pressure. How can we judge, explain the law today? Should the names of magistrates be anonymised in the face of increasingly personal attacks?<\/p>\n\n\n\n

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I had promised<\/a> to return to the Doualemn case in order to better explain the court decisions. I found that the issue had finally been well covered, in particular by the website France Info, in an article<\/a> that clearly identified the journalist Paolo Philippe, no doubt under the influence of the excellent human rights lawyer Serge Slama.<\/p>\n\n\n\n

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The Algerian influencer has been the subject of several irregular decisions by the authorities. Firstly, Mr Doualemn’s residence permit was withdrawn and he was placed under \u00ab\u00a0urgent\u00a0\u00bb expulsion proceedings. Having lived in the country for many years and having French children, the Algerian influencer could only be expelled \u00ab\u00a0as a matter of absolute urgency\u00a0\u00bb for manifestly serious reasons (which do not require debate or interpretation) and a proven threat to public order. (\u00ab\u00a0This radical measure, which prevents foreigners from defending themselves before a commission, is ordered in very serious situations linked to the protection of public order or in the event of an attack on state security<\/em>\u00ab\u00a0). Yet, the justification seemed questionable (the minister mentioned threats of torture and death, whereas the words translated at the hearing referred to a simple \u00ab\u00a0serious correction\u00a0\u00bb) and there was no direct threat to public order in France. Following the Paris court’s annulment, the prefect of H\u00e9rault hastily<\/a> issued a new decision. However, this hasty expulsion decision is incompatible with the procedure for the withdrawal of the residence permit carried out at the beginning of the year. This withdrawal justifies a judicial debate\u2026 and above all, the law prohibits deportation in this case (article L. 432-12<\/a> of the Entry and Residence Code), an article that Bruno Retailleau, the Minister of the Interior, voted for when he was a senator\u2026. The Melun court has therefore once again annulled the order. While the administration, at the instigation of its minister, is seeking a new decision, the public prosecutor, in a parallel criminal case, has asked for a suspended sentence<\/a> of 600 months’ imprisonment. This shows once again that the facts of the case are not particularly dangerous.<\/p>\n<\/div><\/div>\n\n\n\n

No, I didn’t want to deal with this case, but it was the intervention of a judge that I wanted to comment on. On 12 February 2025, the minister was being interviewed on public radio. A judge challenged him on the air.<\/p>\n\n\n\n

Interview de France Inter 12 f\u00e9vrier 2025, un magistrat reprend Bruno Retailleau ministre de l’int\u00e9rieur<\/figcaption><\/figure>\n\n\n\n

It should be noted that judges are subject to a duty of discretion: an ethics charter, which is regularly updated<\/a>, imposes on them a particularly restrictive duty of restraint: they must speak in their personal capacity without mentioning their capacity as members of the administrative judiciary, and \u00ab\u00a0the utmost restraint must be exercised in the use of social networks<\/em>\u00ab\u00a0. When intervention has taken place, it has been because the issue is serious.<\/p>\n\n\n\n

The judge pointed out that the Melun court’s decision was based on a law passed by the minister himself, but above all, he warned of the consequences of this case: ‘In the last 3-4 days, the Melun administrative court has seen an outbreak of hatred on social networks (\u2026) people have called for the president to be hanged by the neck (\u2026)<\/em>‘. Some people have even used an organisation chart published on the court’s website to try to find out who could have been the author of this ruling, which simply applies the law, by identifying the supposedly foreign first names when the bearers of these first names are just administrative officials.<\/p>\n\n\n\n

This intervention, which was undoubtedly approved by the hierarchy, is by no means isolated. On 6 February, the vice-president of the Conseil d’\u00c9tat sent an email to staff denouncing the attacks on administrative justice. A few days earlier, in another case, the court of Bordeaux was also forced to issue a statement<\/a> denouncing the \u00ab\u00a0increasingly frequent and violent attacks (\u2026) based on a grossly biased analysis of a decision<\/em>\u00ab\u00a0. On 11 February, the Conseil sup\u00e9rieur des tribunaux administratifs was forced to intervene<\/a>.<\/p>\n\n\n\n

In another recent case, where the Toulouse court called into question work on the A69 motorway, journalists are beginning to analyse biographies in order to deduce biases. In this case, the public rapporteur under attack is defending an independent position by pointing out the law, without influencing the court, which may not take this opinion into account.<\/p>\n\n\n\n

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This climate calls for two reflections on the judiciary in France today and the question of anonymising judicial decisions.<\/p>\n\n\n\n

During a recent aperitif, in the course of a discussion about the alleged government of judges who would act politically, \u00ab\u00a0too far to the left\u00a0\u00bb, I had to remind people of the way we work in the courts. Contrary to what you might think, the judiciary in France is not a power, despite what our great thinker Montesquieu would have wanted when he drew up the ‘principle of separation of powers’, the foundation of representative democracy. Since the French Revolution, the judiciary has been subordinated to politics. The judiciary is seen only as an authority (Article 66 of the Constitution<\/a>). France is unique in having developed a judicial system specific to the State, the administrative judiciary, which also acts as an advisor to the politicians (hence the term Conseil<\/strong> d’Etat and even Conseil Constitutionnel rather than court<\/strong>). Judges are appointed by the political authorities, although once in office they enjoy a degree of independence. But, this independence is limited by a number of mechanisms: career progression, collegiality (an uneven number of judges must combine different points of view and reach a consensus) and reasoning (judges are obliged to argue rationally on the basis of texts – and legislative texts are particularly important – case law and principles). Court decisions can also be challenged through appeal and cassation mechanisms. Presumed opinions can be moderated and challenged by a pool of judges whose social origins make them more right-leaning. It should also be noted that the law prefers order to revolution. Opinion must also come to terms with the facts, which cannot be twisted without being criticised for ‘distorting the facts’. Without a valid argument, the judge is more inclined to defend public order considerations, especially as he is sensitive to the fact that his decision does not excessively disturb people’s consciences, since disturbances can call his authority into question, especially since it is impossible for a judge to enforce his decision, since he is not the master of the administration or the police. Today’s concern is that riots are driven by passions and that reasoning no longer seems possible. Paradoxically, judges are forced to satisfy emotions, their emotions, when their function is to restrain them.<\/p>\n\n\n\n

On the subject of anonymity, this is not a new debate, but one that can be revived in the current context. In 2016, I had some reservations about setting up a working group on the anonymisation of judicial decisions. Knowing the names of judges means rejecting the possibility of arbitrariness.<\/p>\n\n\n\n

Article L. 10<\/a> of the Code of Administrative Justice states: \u2018Judgements are public.They shall mention the names of the judges who handed them down. (\u2026)<\/em> \u2019<\/p>\n\n\n\n

The thinking in 2016 was to take into account the introduction of generalised open data for court decisions and litigation related to counter-terrorism. Judges may legitimately fear reprisals if there is no special protection for administrative judges, as there might be for special judges fighting sensitive cases in court.<\/p>\n\n\n\n

On the other hand, anonymisation detracts from the act of judging by making the decision abstract, and may make judges less accountable by encouraging them to give less justification for their decisions and to moderate them. The risk of arbitrariness is heightened by the increasing number of derogations from the principle of collegiality : decisions by a single judge are favoured in order to limit costs and respond to the growing volume of litigation. Finally, this can lead to a reduction in authority: by not taking on these decisions, the judge runs the risk of being challenged and of not seeing his decision enforced.<\/p>\n\n\n\n

D’un autre c\u00f4t\u00e9, l’anonymisation \u00e9loigne l’acte de juger en rendant la d\u00e9cision abstraite, elle peut d\u00e9responsabiliser \u00e0 moins motiver ces d\u00e9cisions, les mod\u00e9rer. Le risque d’arbitraire est renforc\u00e9 par la multiplication des d\u00e9rogations aux principes de coll\u00e9gialit\u00e9, on favorise les d\u00e9cisions par un seul juge pour limiter les co\u00fbts et r\u00e9pondre \u00e0 une activit\u00e9 contentieuse qui est de plus en plus importante. Elle peut d\u00e9boucher sur une autorit\u00e9 amoindrie : en assumant pas ces d\u00e9cisions le juge prend le risque de la contestation et de ne pas voir sa d\u00e9cision ex\u00e9cut\u00e9e.<\/p>\n\n\n\n

Generalised anonymisation is not desirable, but anonymisation sometimes seems to be a necessity. Article L.10 was amended in 2019 to add: ‘(\u2026) Where its disclosure would be likely to undermine the security or privacy of these persons or their entourage, any element enabling the parties, third parties, judges and members of the court registry to be identified shall also be concealed. (\u2026)<\/em>‘.<\/p>\n\n\n\n

Anonymisation is therefore exceptional and must be justified. Now, in the light of the spirit of the age, it seems that this exception could be further relaxed: \u2026.<\/p>\n","protected":false},"excerpt":{"rendered":"

The Doualemn affair and the dispute over the A69 motorway are both occasions to attack the administrative justice system, which is under increasing public pressure. […]<\/a><\/p>\n<\/div>","protected":false},"author":1,"featured_media":393,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[31],"tags":[],"class_list":["post-396","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-news"],"_links":{"self":[{"href":"https:\/\/www.rollcom.fr\/skyroll\/wp-json\/wp\/v2\/posts\/396","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.rollcom.fr\/skyroll\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.rollcom.fr\/skyroll\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.rollcom.fr\/skyroll\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.rollcom.fr\/skyroll\/wp-json\/wp\/v2\/comments?post=396"}],"version-history":[{"count":5,"href":"https:\/\/www.rollcom.fr\/skyroll\/wp-json\/wp\/v2\/posts\/396\/revisions"}],"predecessor-version":[{"id":417,"href":"https:\/\/www.rollcom.fr\/skyroll\/wp-json\/wp\/v2\/posts\/396\/revisions\/417"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.rollcom.fr\/skyroll\/wp-json\/wp\/v2\/media\/393"}],"wp:attachment":[{"href":"https:\/\/www.rollcom.fr\/skyroll\/wp-json\/wp\/v2\/media?parent=396"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.rollcom.fr\/skyroll\/wp-json\/wp\/v2\/categories?post=396"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.rollcom.fr\/skyroll\/wp-json\/wp\/v2\/tags?post=396"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}