Der Avocat général bei der Cour de cassation und die richterliche Rechtsfortbildung in Frankreich

The Avocat général at the Cour de cassation and Judge-Made Law in FranceThe Avocat général fulfills a specific task before the French Court of Cassation. He does not act as a public prosecutor in criminal or in some civil matters, but gives an independent and impartial opinion on the case. This »second look« can help the Court to obtain more useful and relevant information as well as different opinions and to modify its case law. As an independent member of the judiciary who does not decide on the case, the members of the Parquet général can also coordinate the submission of amicus curiae briefs before the Court on important ethical, social or legal issues. However, the European Court of Human Rights condemned France in 1998, holding that the very specific close collaboration and relationships between Avocats généraux and Justices lead to a breach of Article 6(1) ECHR (equality of arms and fair trial). Since 2002, the Avocats généraux do not receive all the drafts prepared by the reporting judge any more, but only the official objective report which is also sent to the parties. They are not allowed to be present (in silence) during the judges' deliberation on the case anymore. This makes it difficult for them to follow the reasons of some case law evolutions. Yet, the Court of Cassation is currently contemplating changes in its functioning in order to improve the quality of its decision-making and to better benefit from the involvement of the Avocat général in the cassation proceedings.