Impartiality Investigation in the Court of Assizes: The Right to a Fair Trial

Imagine yourself in Béziers, in a courtroom of the court of assizes. You are accused of a serious crime. The president of the court, who leads the proceedings and questions witnesses, may have made statements that make you doubt his impartiality. You ask for those statements to be recorded, then for an investigation to be carried out. But the court says it does not remember, and refuses to listen to the audio recording of the proceedings. What can you do?

That is precisely the question the Court of Cassation had to answer on 8 January 2025. A question that goes to the heart of a fair trial: how to guarantee the impartiality of the judge when doubts arise during the hearing?

In this decision, the highest French court reiterates a simple but fundamental rule: if the court has no precise memory of the contentious statements, it must conduct an investigation, and in particular listen to the audio recording of the proceedings if it exists. A ruling that strengthens the rights of the defence and the transparency of justice.

The Facts: A Story Like Many Others

The case took place within the jurisdiction of the court of assizes of Hérault, in Montpellier. A man, let us call him Mr X, was being tried for criminal offences. During the proceedings, his lawyer considered that the president of the court had made statements likely to call his impartiality into question. He immediately asked for those statements to be officially recorded in the minutes.

The court, questioned on this point, declared that it had no memory of the words in question. The lawyer insisted and then requested that the audio recording of the proceedings, provided for by Article 308 of the Code of Criminal Procedure, be listened to. Reminder: since 2011, hearings of the court of assizes are systematically recorded, unless a reasoned decision to the contrary is made.

The court refused. It considered that it did not have to listen to the recording, as it had no doubt about its impartiality. For it, the incident was closed. But the defence did not see it that way. After Mr X's conviction, his lawyer appealed to the Court of Cassation, alleging a violation of the rights of the defence and the principle of impartiality.

The judicial process was standard: judgment at first instance, then appeal to the Court of Cassation. But the twist came from the Supreme Court's response: it quashed the court of assizes' decision, on the grounds that the court should have, before ruling on the incident, conducted an investigation, if necessary by listening to the audio recording.

The Reasoning of the Court — Analysed

The Court of Cassation relied on two essential texts. First, Article 6 of the European Convention on Human Rights (ECHR), which guarantees the right to a fair trial and an impartial tribunal. Second, Article 308 of the Code of Criminal Procedure, which provides for the audio recording of proceedings before the court of assizes.

The reasoning is clear: when the defence raises an incident concerning impartiality and asks for specific statements to be recorded, the court cannot simply say 'I do not remember'. It must verify the facts. The most reliable means is to listen to the audio recording, if it exists. This is an obligation, not a mere option.

The Court of Cassation specifies that this investigation must be carried out before ruling on the incident. In this case, the court of assizes erred by refusing to listen to the recording, even though the defence expressly requested it. In doing so, it deprived the accused of a fundamental guarantee: the ability to challenge the impartiality of the judge on the basis of objective evidence.

This decision confirms previous case law. Already in 2019 (Crim., 5 June 2019, no. 18-84.789), the Court had held that the audio recording could be used to resolve an incident. But here it goes further: it imposes an obligation to investigate, on pain of cassation.

In practice, what must judges do? If the defence alleges specific statements, the court must first try to remember. If it cannot, it must listen to the recording. If the recording does not exist (reasoned decision not to record), it must resort to other means: hearing witnesses present, etc. But in no case may it simply 'move on'.

This solution is logical: how can impartiality be guaranteed if what was said cannot be verified? This is progress for judicial transparency.

What This Changes for You — Practically

This decision directly concerns people tried before a court of assizes, i.e. for crimes (murder, rape, armed robbery, etc.). But its implications are broader.

For a defendant: you now have a clear right to demand that the audio recording be listened to if you believe the president or an assessor has been partial. Do not let such an incident pass. Your lawyer must raise it immediately, by a request for 'official record'.

For a lawyer: this is an additional procedural tool. If the president makes inappropriate statements ('you look like a liar', 'this witness is in bad faith'), you can request the recording to prove it.

For a witness or civil party: although the decision mainly concerns the accused, the principle of impartiality benefits everyone. If you attend proceedings and the president seems partial, you can alert the lawyer.

Let us take a concrete example: in Sète, a man is tried for aggravated assault. The president tells him: 'You have already been convicted, you are a repeat offender anyway'. The lawyer considers this prejudges guilt. He requests the recording. The court must listen to it. If the recording confirms the statements, the court must recuse itself or refer the case. Otherwise, the trial continues.

What happens if the court refuses? As in our case, the conviction can be quashed on appeal. But be careful: is the appeal suspensive? No, in criminal matters, the appeal is not suspensive. So the person remains in detention until the Court of Cassation rules, which can take a year. Hence the importance of asserting this right during the hearing.

In terms of timing: the incident must be raised immediately. After the verdict, it is too late. The amount of costs? No direct cost, but a request for an investigation costs nothing. If the case is referred, legal fees increase.

Four Tips to Avoid This Type of Dispute

• Tip 1: Note everything said at the hearing. If you are accused, ask your lawyer to take precise notes of the president's statements. Once the hearing is over, it will be difficult to prove unrecorded words.
• Tip 2: Request the recording as soon as the incident occurs. Do not delay. Make a written request to the president: 'I request that what you have just said be officially recorded, and that the audio recording be listened to to verify its content.'
• Tip 3: If the court refuses, have the refusal noted. Your lawyer can ask for the refusal to be mentioned in the minutes. This will serve as evidence in case of an appeal.
• Tip 4: In advance, check that the recording is indeed planned. The law requires recording, but the court may waive it by a reasoned decision. If so, your lawyer can challenge that decision before the trial.

Further Reading: Related Case Law and Developments

This decision is part of a protective line for the rights of the defence. Already, the ruling Crim., 5 June 2019, no. 18-84.789 had paved the way by allowing the use of the recording to resolve an incident. But the Court of Cassation went further in 2021 (Crim., 13 January 2021, no. 20-82.456) by ruling that the failure to record, without valid reason, could render the proceedings void.

The trend is therefore clear: judges must guarantee transparency of proceedings. The audio recording is an essential tool, and its use must not be hindered. In the future, one can imagine that this obligation to investigate could be extended to other jurisdictions (criminal court, court of appeal) where recordings exist.

One point remains unresolved: what if the recording has been erased or is unavailable? The Court of Cassation has not yet ruled, but one might think that the court should then resort to other evidence (testimonies, hearing notes).

What You Must Absolutely Remember

Here are the key points to remember:

• 1. If you are tried in a court of assizes and the president makes statements that seem partial, immediately ask for them to be officially recorded and for the audio recording to be listened to.
• 2. The court has no right to refuse without reason. If it does not remember, it must investigate, particularly by listening to the recording.
• 3. If the court refuses, this can be grounds for quashing the conviction on appeal.
• 4. This right exists now, since the ruling of 8 January 2025.
• 5. Do not wait: act during the hearing, not after.

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