This is a first for a minister in office. The Keeper of the Seals, Eric Dupond-Moretti, was referred to the Court of Justice of the Republic (CJR), Monday, October 3, for “illegal taking of interests”. The Minister of Justice is accused of having taken advantage of his position to settle scores with magistrates with whom he had had trouble when he was a lawyer. What he disputes. His lawyers immediately announced that they would appeal to the Court of Cassation.
Created in 1993 to put an end, in theory, to the controversies on the impunity of members of the government, this specialized court is the subject of numerous criticisms. What is the Court of Justice of the Republic? How does it work? Why is it regularly criticized? The world make the point.
What is the Court of Justice of the Republic?
The Court of Justice of the Republic is an exceptional court established by the constitutional reform of 1993. It is the only body competent to judge crimes and misdemeanors committed by members of the government – Prime Minister, ministers, secretaries of State – in the exercise of their functions. The offenses committed by these people, unrelated to the conduct of the nation’s policy, are within the jurisdiction of the ordinary criminal courts.
The CJR was set up with a view to preserving the principle of separation of powers (legislative, executive and judicial): it seemed contrary to the balance of powers that magistrates of the judicial order, on any occasion whatsoever , can interfere in the assessment of government action.
Prior to 1993, only Parliament was qualified to bring proceedings against members of the government in what was then called the High Court of Justice. The latter was composed solely of parliamentarians elected by each Assembly. Seized after the vote of an identical text by the two Assemblies, it was rarely convened.
Who are the judges who make up the CJR?
The Court of Justice of the Republic is composed of fifteen judges :
- three judges from the Court of Cassation (they are elected for three years by their peers from the Court of Cassation, and one of these three judges is appointed president of the CJR);
- twelve parliamentarians (six elected from the National Assembly and six elected from the Senate). After their election within each Assembly, parliamentary judges take oath and “promise to fulfill their functions well and faithfully, to keep the secrecy of the deliberations and votes and to conduct themselves in everything as worthy and loyal magistrates”. Their functions end at the end of their mandate.
Each of the fifteen judges has a substitute, elected under the same conditions as its holder.
How does this court work?
Any person who considers himself to be the victim of a crime or misdemeanor attributed to a member of the government in the exercise of his functions may file a complaint with the CJR.
Then, it is the complaints commission – made up of seven magistrates from the Court of Cassation, the Council of State and the Court of Auditors – which decides whether or not to initiate proceedings. This commission was thought of as a safeguard so that the CJR could not be used as a political weapon against government action.
If the complaint is declared admissible, the investigating committee – made up of three judges from the Court of Cassation, but different from those who are part of the fifteen judges – proceeds to the hearings of the complainants and the accused persons. It can then refer them to the CJR or dismiss the case.
Since 1993, 22,095 requests have been received by the CJR and fifty-two referrals to the investigation commission have been ordered.
In the event of a trial, the fifteen judges of the CJR decide, by absolute majority and by secret ballot, on the guilt of the defendant and, if found guilty, on the sentence imposed.
A semi-judicial, semi-political body, regularly under fire from critics
This is one of the main grievances addressed to the Court of Justice of the Republic: the election of the twelve parliamentary judges depends on the partisan balances in the National Assembly and the Senate, which would necessarily risk giving a political coloring to the judgments returned. Renewed in July, on the occasion of the legislative elections, the CJR welcomes for the first time a “rebellious” deputy, Danièle Obono, and a deputy from the National Rally, Bruno Bilde. The other parliamentary magistrates come from the right (five), the presidential majority (three), the Socialist Party (one) and the Autonomist Party of French Polynesia (one).
Furthermore, the role of the public prosecutor at the Court of Cassation, who fulfills the functions of the public prosecutor at the CJR, also raises questions. This magistrate – currently François Molins – is placed under the authority of the Minister of Justice, who has disciplinary power over him. He is, moreover, appointed by decree of the Head of State after an advisory opinion from the Superior Council of the Judiciary. Its independence with regard to the executive power is thus questioned.
The CJR is also criticized for the slowness of its procedures. In nearly thirty years, eight ministers and two secretaries of state have been tried. It thus took him two years to rule on the non-prescription of the charges against Edouard Balladur and François Léotard in the financial aspect of the Karachi affair, which dates back to the mid-1990s.
Another reproach made to the Court: the leniency of its judgments. In total, out of ten judgments, the CJR pronounced four acquittals, four suspended sentences and two waivers of sentence. The criticisms were sharp from the inaugural trial, in 1999, on the affair of contaminated blood. The CJR had enshrined the principle of “responsible but not guilty” by releasing Laurent Fabius, Prime Minister at the material time, and his Minister of Social Affairs, Georgina Dufoix, both prosecuted for “involuntary homicides”. The former Secretary of State for Health Edmond Hervé had meanwhile been sentenced for “breach of an obligation of safety or prudence”, but exempted from punishment.
In addition, there have been inconsistencies between the decisions of the CJR and those taken by an ordinary criminal judge – in particular because the CJR only judges facts that occurred during the accused’s term of office. In 2010, Charles Pasqua had, for example, been acquitted by the Court in the case of embezzlement at the Annemasse casino (Haute-Savoie), when he had previously been convicted by ordinary justice, in the section “no -ministerial” of this affair, to eighteen months of suspended imprisonment.
A suspended jurisdiction?
After François Hollande, Emmanuel Macron had also promised to abolish the Court of Justice of the Republic, without however succeeding in completing, during his first term, the necessary constitutional revision. “When officials – ministers, civil servants, elected officials – find themselves cited in a procedure for a crisis that is still ongoing, we are far from appeasement and balance”, had castigated the President of the Republic in October 2021. In the sights of the Head of State: the investigation carried out by the CJR into the action of the executive in the management of the crisis due to Covid-19. This procedure resulted in several searches of ministers or former ministers, as well as the indictment of the former holder of the health portfolio Agnès Buzyn, for “endangering the lives of others”.
The Estates General of Justice recommended its disappearance in a report submitted in July. François Molins, the Attorney General at the Court of Cassation, who represents the public ministry at the CJR, also estimated, August 31 on France Interthat need “put an end to this dissociation between two jurisdictions, which leads to the judgment of politicians by the CJR and non-politicians by a court of common law”. This separation of procedures, he says, “results in conflicting decisions when the facts pursued are the same”.
Threatened with disappearance, the CJR is, paradoxically, faced with an increase in its activity with an inflation of complaints aimed mainly at the management of the epidemic due to Covid-19. In 2020, the Court received 246 complaints, including 164 in connection with the epidemic, most often implicating members of the government. In 2021, the record number of 20,199 complaints were sent to the CJR, almost all of which concerned Covid-19 and the health pass.
Source: Le Monde