By Vincent SizaireAssociate professor, member of the Center for Criminal Law and Criminology, Paris Nanterre University – Paris Lumières University.
The French president Nicolas Sarkozy has been convicted of criminal conspiracy in a case related to Libya financing of his 2007 presidential campaign. Condented to five years in prison, he must appear before the court on October 13 to hear the date of his imprisonment. This unprecedented judgment marks a turning point in the practices of French justice, which has gradually released from political power. The republican principle of the full and complete equality of citizens also proclaimed in 1789 also enshrines, but that for a long time remained in the theoretical sphere.
Nicolas Sarkozy has been convicted of criminal conspiracy by the Paris Criminal Court on Thursday, September 25, after the transfer of millions of euros of illicit funds of the late Libyan leader Muamar El Gaddafi to finance his 2007 electoral campaign. As expected, the decision quickly caused the anger of much of the political class.
It is perfectly legitimate to argue against the sentence for considering it unfair and unfounded. This applies, in the first place, to the defendants, who have every right to resort to the sentence.
However, the context in which these protests are produced is a political polvorín: in fact, in April, the leader of the extreme right party National Group, Marine Le Pen, It was already convicted Five years of disqualification to exercise public office after being convicted of helping to embezzle 2.9 million euros of EU funds for their party. As a result, Sarkozy’s last sentence provides a new opportunity to a large part of the ruling classes to enliven the controversy about what the French call the “Judges government” And others would call “Juristocracy”.
The first French postwar president to be imprisoned
It is true that the sentence may seem especially severe: a fine of 100,000 euros, five years of disqualification and, above all, five years in prison with a deferred arrest warrant that, combined with provisional execution, forces the convicted to begin fulfilling his prison sentence even if he resorts.
But if we analyze more carefully the crimes committed, the penalties do not seem disproportionate. The facts are undeniably serious: organize the secret financing of an electoral campaign with funds from a corrupt and authoritarian regime, Libya – whose responsibility in An attack on a plane in which more than 50 French citizens died He has been recognized by the courts – in exchange for defending him in the international scene.
Since the maximum penalty It is ten years in prisonthe sanction can hardly be considered too severe. But what is questioned is the very principle of the conviction of a political leader for the courts, which is considered and presented as an intolerable attack on institutional balance.
However, if we take the time to put it in a historical perspective, we see that the sentences issued in recent years against members of the ruling class are, in fact, of a movement to free the judiciary from other powers, in particular of the Executive. This emancipation finally allows the judiciary to fully apply the requirements of the Republican legal system.
The equality of citizens before the law
It should be remembered that the revolutionary principle proclaimed on the night from August 4 to 5, from 1789 was that of the full and complete equality before the lawwhich led to the corresponding disappearance of all special laws – “privileges” in the legal sense of the term— of those who enjoyed the nobility and the high clergy. The 1791 Criminal Code went even further: not only those in power could be tried before the same courts as the other citizens, but also faced more severe sentences for certain crimes, in particular those related to corruption.
The principles on which the Republican legal system is based cannot be clearer: on a democratic society, in which every person has the right to demand not only the full enjoyment of their rights, but also, more generally, the application of the law, no one can pretend to benefit from an exception regime, and even less the elected charges. It is because we trust that their illegal actions will be effectively punished, as well as those of other citizens and without waiting for a highly hypothetical electoral sanction, which our representatives can really be considered.
When the law favored the powerful
However, for a long time, this requirement of legal equality remained largely theoretical. Assumed and located in a more or less explicit relationship of subordination to the government During the first empire (1804-1814)the Judiciary remained Under the influence of the Executive at least until the mid -twentieth century. Therefore, until the end of the last century, the principle of equality before the law was ranked with a unique privilege of “notability” that, except in exceptional situations or in especially serious and media cases, guaranteed a relative impunity to the members of the leading classes whose criminal responsibility was questioned.
The situation only began to change after the end of World War II, in the 1940s. As of 1958, the magistrates were recruited by public tender and benefited from a relatively protected status, as well as a dedicated school, The National School of the Magistracy. The latter gradually adopted a demanding ethical code, promoted in particular by the Recognition of judicial trade unionism in 1972.
Thus emerged a new generation of judges who took their mission very seriously: to guarantee, with total independence, the correct application of the law, regardless of the history of the accused.
Bernard Tapie, Jacques Chirac, Nicolas Sarkozy …
In this context, something happened that had been unthinkable a few decades before: the prosecution and condemnation of prominent figures under the same conditions as the rest of the population. From the mid -1970s, the movement gained impulse in the following decades with the conviction of important business leadersas the soccer and Adidas Bernard Tapie tycoon, and after national political figures, such as the former conservative minister Alain Carignon or the mayor and deputy of Lyon, Michel Noir.
The conviction of former presidents of the Republic as of the 2010 – Jacques Chirac in 2011, Nicolas Sarkozy for the first time in 2021– They completed the normalization of this trend. Or, rather, they ended the democratic anomaly to give preferential treatment to elected and, in general, the ruling classes.
This movement, which initially derived from changes in judicial practices, was also backed by certain modifications of French legislation. An example is the Constitutional review of February 2007which consecrates the jurisprudence of the Constitutional Council according to which the President of the Republic cannot be subject to criminal actions during his mandate, but that allows to resume the process as soon as the position leaves.
It is also possible to mention the creation, in December 2013, of the National Financial Prosecutor’s Officethat, although it does not enjoy statutory independence from the Executive Power, it has been able to demonstrate its de facto independence In recent years.
Any reference to “judicial tyranny” aims to attack this historical evolution. This rhetoric seeks to defend the sovereignty of the people less than that of the oligarchic rulers.
Vincent Sizaire He is an associated professor, a member of the Center for Criminal Law and Criminology, Paris Nanterre University – Paris Lumières University.
This article was originally published in The conversation. Read the original.
