Disciplinary right in France

In French Right, the disciplinary right is the branch of the right which fixes the rules of sanction of the faulty behaviors made by people within a group of people having same quality.

General considerations

Elements common to the disciplinary right

The disciplinary right includes/understands four elements:

a whole of as a preliminary definite disciplinary actions;
the existence of a disciplinary fault;
an authority in charge to inflict the disciplinary action;
a disciplinary proceedings.

The disciplinary right is generally attached to the administrative law, but it comprises also elements concerned with the Private law and the criminal law.

The disciplinary right must respect the principle of the Droits of defense. That implies that the person blamed is at least informed, and that it is generally invited to present her written defense or by oral examination. Moreover, the majority of the disciplinary proceedings provide that the person can be assisted, according to the cases:

of a lawyer;
of a par (fellow-member, school-fellow,…) ;
of a member of his family.

Lastly, constituting a decision making objection, a disciplinary action must always be justified.

Differences within the disciplinary right

The disciplinary right applying to very different people, it presents important alternatives.

It is in particular the case for the disciplinary authority. There exists generally a group of people, called disciplinary board or disciplinary commission , of which a part at least of the members are pars of the people likely to be submitted in front of him, and are generally elected within the group. It is not however the case for the prisoners.

Certain authorities include/understand exclusively or almost exclusively pars, while in others these pars are in minority. But especially, the quality and the role of these authorities are not the same one:

is the authority has an advisory role, and it is with the administrative authority to impose the sanction after the commission decided;
is the authority decides itself and acquires then the quality of jurisdiction.

In the first case, the sasine of the commission is obligatory only to inflict the most serious sanctions. In the other cases, the meeting of the disciplinary board is essential.

The number, the nature and the extent of the sanctions which can be marked vary according to the procedures and from qualities of the people. However, the weakest sanction takes in general the name of warning . The sanctions can be temporary or permanent, and can go, for the professionals, until prohibition to exert.

Disciplinary right and criminal law

The disciplinary right and the criminal law have jointly to sanction behaviors considered as bearing reached with the Communauté. Certain elements of penal procedure are included in the disciplinary proceedings, in particular the respect of the Droits of defense.

The criminal law like the disciplinary right respect the light principle '' nulla poena sine '' (“no sorrow without law”): just as the penal sanctions, the disciplinary actions can be marked only if they are expressly envisaged by a text.

On the other hand, whereas the criminal law applies the light principle nullum crimen sine (“no incrimination without law”), the disciplinary right sanctions any bearing act reached with the good performance of the group or the service or bearing wrong to the very whole profession.

The criminal law and the disciplinary right apply each one on their side the rule Non (a) in idem , according to which one cannot be condemned twice for the same fact, which excludes the cases from Récidive or persistence of the faulty behavior after a first sanction (Infraction continues). On the other hand, the criminal law and the disciplinary right being independent, the rule not (a) in idem does not make obstacle so that the same behavior can be sanctioned at the same time penally and on the disciplinary level. There is no either obligation so that a faulty behavior is sanctioned twice: a fault can involve very well a judgment with penal without giving place to disciplinary action, the reverse being also possible. In general, the procedures are so independent that it is not necessary to await the result of to engage the other and to complete it. However, in certain cases, the disciplinary proceedings can be suspended time that the penal jurisdiction statue.

Like the penal sanctions, the disciplinary actions can, under the terms of a Loi, being extinct by the Amnistie.

Special disciplinary rights

The disciplinary right is declined differently according to whether it applies to such or such category of the population.

Educational field

The pupils of the Secondary education can be translated in front of the board of directors of their college or their college, made up as a disciplinary board. This council can pronounce various sorrows being able to go until final exclusion. The less serious sanctions are directly marked by the chief of establishment (principal or headmaster).

The candidates with the baccalaureat, the students of the public higher education and, in certain cases, those of private college education, are subjected to the university jurisdictions. The boards of directors of the universities constitute the jurdictions of the first degree, the jurisdiction of the second degree being the National council of higher education and research (CNESER). The teacher-researchers also concern the university jurisdictions, except the hospital teacher-researchers. For the latter, there exists a distinct jurisdiction, the the disciplinary of the members of personnel teaching and hospital jurisdiction.

The teachers of the private and the directors of private establishments are subjected, for the faults which they can make, with specific jurisdictions. The academic councils of state education are qualified in their connection in the first resort, and the superior council of education in second authority.

Public agents

The civils servant strictly speaking can incur disciplinary actions, being able to go until the revocation, which puts an end to the quality of civil servant. Are also envisaged lowerings of level even of retrogradations (return to the class or the lower rank), or, for oldest, the put at the retirement of office. For the most serious sanctions, the consultation of a disciplinary board is obligatory. The disciplinary board is the equal administrative Commission. The file can however be re-examined, in certain cases, by a commission of recourse. For the public office of State and the hospital public office, this commission is resulting from the superior council of the public office considered. For the territorial public function, the commission of recourse is departmental or inter-secondary road. Some body have particular rules. It is the case of the teacher-researchers (see higher) . It is also that of the magistrates of the administrative order, for which the jurisdiction directly exerts the discipline on its members.

The magistrates of the legal order have particular guarantees of independence. The discipline of these magistrates is entrusted to a collegial authority, the superior council of the magistrature. The question of the responsibility for the magistrates is the subject however of important debates and of the reforms are considered.

The Militaire S subjected to the general status of the soldiers can be the subject of procedures and disciplinary actions. Their disciplinary mode is of a particular complexity:

the sanctions, according to the case, are inflicted by authorities of 1st, 2nd or 3rd level;
the composition of the disciplinary board varies from a rank with the other: the number of members rises as one goes up in the hierarchy, and the precise composition changes according to the ranks;
there exist two orders of sanctions: disciplinary actions itself, and professional sanctions;
the number of the sanctions is very high and includes/understands original sanctions as the “blame of the minister”.

Regulated professions

The regulated professions, which are in general liberal professions, ensure the discipline of their members. In fact the professional orders exert this role. In general, the decision of first authority is made by the district council of the order, that of second authority by the national council. The disciplinary sections of these councils are jurisdictions.

Are thus subjected to a disciplinary mode:

medical and paramedical professions: doctors, pharmacists, midwives, male nurses, veterinary surgeons;
auxiliary of justice: lawyers, notaries, ushers;
the Architect S.

Embarked people

The captain S, officers and Sailor S of the Merchant navy, the passengers and any person being, in a regular way, irregular or exceptional on board a Navire of the merchant navy are subjected to the disciplinary and penal Code merchant navy. Taking into account the insulation which a community of life constitutes at sea, this text gives to the captain an important capacity to institute the proceedings, to proceed to the investigations necessary and to even take conservative measures even sanctions with regard to the contraveners.

The people being on a military ship who would make faults, if they are French soldiers, are subjected to the common right of the military discipline (see higher) . If they do not have the quality of French soldier, they cannot be the subject of disciplinary actions, but can be subjected to the military Justice.

Sportsmen

In the case of the Sporting S, the disciplinary right touches at the same time with the private law and the public law. The sporting federations are associations, subjected to the private law. They however are held to exert a disciplinary role under the terms of the law (code of the sport, Article L.232-21). The rules of procedure of the federations must envisage the existence of two degrees of authorities discipliniaires. The French Agence of fight against doping exerts also a disciplinary role under the terms of the L.232-22 article of the same code.

Prisoners

The people held in the French prisons can be the subject of disciplinary actions. The disciplinary mode is established by chapter 5 of title 2 of the book V of the Criminal procedure code (third part: simple decrees). The disciplinary commission is chaired by the director and is composed of frameworks and supervisors. The sanctions can go until the placement in disciplinary cell.

See too

Code of conduct

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