The role of the military prosecution in France

Abstract

Historically the establishment of a specific military justice dates back to the establishment of permanent armies from the 14th century. It was indeed at the time of the hundred years war that French military justice was created. Indeed, King Philippe VI of Valois wanted to remove from common law justice the “sergeants and soldiers in charge of the guard of castles”. In 1467, the Plessis-Lès-Tours ordinance issued by King Louis XI distinguished military offenses from non-military offenses. It is important to specify that in France, traditionally, all civil and criminal Courts has been always incompetent since the French Revolution to judge appeals against all administrative decisions. It´s the case of disciplinary measures decided by the military hierarchy whose dispute are judged by administrative Courts. French military criminal justice is the result of a recent development towards a gradual adaptation to the intangible principles of the independence of judges and fair trial. A radical reform thus intervened in 1981 and have been applied since 1982. It has been finalized by an ordinance of 2006 then by a law of 2007 homologating this ordinance and reforming some provisions of the wartime military justice code. Now in peacetime the military public prosecutor no longer depends on the Minister of Defense but on the Minister of Justice. The peacetime military courts being abolished in 1982, military criminal cases are therefore judged by common Courts composed of civilian judges and the procedure has been brought into line with common law. However, the traditional code of military justice has not been abolished because it may be applied in wartime, so it has been recast in 2006 into a coherent whole. Only in wartime this modernized code of military justice will be applied. It will be therefore only in wartime that the Minister of Defense will decide the indictments and the military Courts will be reestablished. Consequently, in France in peacetime, the common penal code and law code of criminal procedure are applied to militaries who have committed a criminal offense. Common law offenses (which are described by the French penal code) and special military offenses (which remain described and punished in the military justice code) are now judged by civil courts. So, while the prosecution has important prerogatives in peacetime, it is not at all the same in wartime.