On Wednesday, November 13, the prosecution requested against Marine Le Pen five years in prison, two of which are closed, a fine of 300,000 euros, but also a sentence of five years of ineligibility, accompanied by provisional execution. Many political commentators, most of them classified on the right or the extreme right, denounce political requisitions, and a potential obstacle to the proper functioning of democracy if the leader of the RN should not be able to run in 2027.
In reality, however, examination of the law and its application does not show any unfavorable treatment. Article 131-26-2 of the penal code, introduced in 2017 by the law for confidence in political life, provides for an additional penalty of ineligibility necessarily pronounced against those guilty of crimes or certain offenses. The article lists the categories of offenses concerned, including serious violence, sexual assault, acts of terrorism… or even embezzlement of public funds, i.e. the specific offense charged with the RN.
Violations of integrity
If article 131-26-2 now centralizes the facts giving rise to ineligibility, this additional penalty was already provided for in the event of the conviction of persons holding public authority for breaches of the duty of probity (the category in which registers the embezzlement of public funds). For a long time “optional”, the penalty of ineligibility was, for these violations of integrity, made obligatory with the Sapin 2 law, which came into force on December 11, 2016. That is, twenty days exactly before the end of the period covered by the trial of parliamentary assistants (which ends on December 31, 2016). As a result, the Sapin 2 law applies to Marine Le Pen and her co-defendants.
However, the fact that the punishment is “mandatory” does not make it automatic. By virtue of the individualization of sentences, established as a supreme principle by the Constitutional Council in 2005, the judge retains the possibility of ruling out ineligibility “by a specially motivated decision […] taking into consideration the circumstances of the offense and the personality of its author.. A nuance which clearly appears in article 131-26-2 of the penal code, as it previously appeared in the provisions introduced by the Sapin 2 law. Reason why the Constitutional Council, seized in 2017 by right-wing parliamentarians, considered that the mandatory ineligibility sentence does not disregard the principle of individualization of sentences. The wise men also emphasized that it is up to the judge “to modulate its duration”. Note that the principle of a mandatory sentence from which it is possible to deviate is similar to the operation of the defunct minimum sentences.
But despite the latitude offered to the courts, none of the convictions for embezzlement of public funds handed down in recent years has resulted in a specially reasoned decision with a view to excluding the additional penalty of ineligibility. Thus, according to the statistics transmitted to CheckNews by the Ministry of Justice, there were six convictions in 2017 aimed at repressing embezzlement of public funds, and as many sentences of ineligibility. It's still 15 out of 15 in 2018, 13 out of 13 in 2019, 17 out of 17 in 2020 then 2021, and finally 30 out of 30 in 2022. For 2023, the data still remains provisional (20% comes from estimates), but To date, the chancellery lists 30 sentences of ineligibility for as many convictions on the basis of embezzlement of public funds. “What we can deduce from these figures is that in the cases submitted to them, the courts have not found it necessary to set aside the penalty of ineligibility. But that doesn't mean they couldn't do it.”insists the ministry.
As part of the trial against the RN, the public prosecutor, in its requisitions, went so far as to justify the penalty of ineligibility required in view of the seriousness of the facts and the personality of its authors: misappropriation of public funds “massive, operated by elected representatives of the French people to the highest positions and to circumvent the rules of transparency in matters of party financing”.
“Everyone seems to discover the provisional execution”
The debate on the supposed severity of the requisitions also relates to the provisional execution which attaches the penalty of ineligibility. A modality which, without depriving the convicted person of their right to appeal, implies that this appeal does not suspend the application of the sentence pronounced at first instance. In this case, such a measure would have serious (political) consequences: it could deprive Marine Le Pen of a candidacy in the next presidential election of 2027.
Several commentators have denounced this aspect of the requisitions. The editorialist Alain Duhamel thus, on the set of BFMTV, described it as “extremely rare”asserting: “The prosecutors, certainly very competent but sometimes a little strange, have unearthed an exceptional system which allows for immediate enforcement” the penalty of ineligibility. “This is the first time that provisional execution has been pronounced in the indictment. It’s something unprecedented”added essayist Naïma M'Faddel on CNews.
CheckNews asked the Ministry of Justice for statistics on the use of provisional execution concerning additional ineligibility sentences. The ministry told us that it was not able to quantify the exact proportion for embezzlement of public funds, while being surprised that “everyone seems to discover the provisional execution. But for those who frequent courtrooms, it is something that is regularly used depending on the needs of each case.” In article 471 of the code of criminal procedure, the penalties which “may be declared provisionally enforceable”. This is, among other things, the case of a ban on practicing a profession, suspension of a driving license, or ineligibility.
Former mayors ineligible
Without claiming to be exhaustive, there are numerous recent examples of elected officials sanctioned with a sentence of ineligibility with provisional execution during trials for embezzlement of public funds. Which belies the assertions mentioned above according to which provisional execution is extremely rare or, worse, a first. The former senator and president of French Polynesia Gaston Flosse was convicted for this offense several times, between 2009 and 2022. And the judges each time pronounced additional sentences of ineligibility ranging from one to five years, sometimes assorted provisional execution, sometimes without this measure when the person concerned was already serving a period of ineligibility at the time of the trial.
Another emblematic case, that of Brigitte Barèges, former mayor of Montauban (Tarn-et-Garonne), recently elected deputy with the support of the RN. Sentenced in 2021 for embezzlement of public funds, including five years of ineligibility with immediate effect, Barèges was finally acquitted on appeal. Also in 2021, Ferdinand Bernhard, former mayor of Sanary-sur-Mer (Var), appealed to the Court of Cassation after his conviction on appeal, including a sentence of five years of ineligibility with provisional execution. The supreme court having partially disapproved the decision, he is currently appearing again before the court of appeal.
In recent months alone, we can cite the former mayor of Toulon, Hubert Falco, sentenced on appeal to a sentence of five years of ineligibility accompanied by provisional execution. But also the right arm of the former mayor of Colmar (Haut-Rhin), Joël Munsch, sentenced to three years of ineligibility with provisional execution. Or two mayors of Seine-et-Marne, Jean-François Oneto and Sinclair Vouriot, sentenced to a five-year ineligibility sentence with immediate application. More recently, three years of ineligibility with provisional execution were required against the president of the Somme department, Stéphane Haussoulier, in proceedings for embezzlement, the verdict of which will be rendered on December 3.
Prevention of recidivism
If provisional execution is also regularly ordered, it is because it “meets the general interest objective of promoting the execution of the sentence and preventing recidivism”, indicated the Court of Cassation in a 2022 judgment. In the case of the RN assistants, the prosecution considers that there is reason to prevent repeat offenses to the extent that the party “has already been convicted of fraudulent embezzlement” – conviction became final in June. And where the facts, “repeated for twelve years”, “were only interrupted because there was a complaint from the European Parliament”. Furthermore, the prosecution mentions a “execution imperative [de la peine] within reasonable time limits, while the defendants have “did everything to postpone the court decision”. Never mind “their electoral ambitions”, since the prosecutors believe that they are not “accountants”.
As a reminder, Marine Le Pen is currently on trial, alongside numerous executives of her party, in the affair of the fictitious parliamentary assistants of the National Front, now National Rally. The trial opened on September 30, is due to continue until November 27 and the judges' decision is expected in early 2025 – the position defended by the public prosecutor on November 13 does not prejudge that of the magistrates. The former presidential candidate, considered by the prosecution as a decision-maker within a system of embezzlement of public funds unprecedented by “their scale, their duration, the amounts embezzled”, received the most severe requisitions. The prescribed penalties are in fact proportional to the involvement of each of the defendants in these operations carried out between 2004 and 2016 to the detriment of the European Parliament. Against the mayor of Perpignan Louis Aliot or the European deputy Nicolas Bay, the prosecution thus prescribed lesser penalties, including three years of ineligibility, always with provisional execution.
