This is a first for a serving minister. The Keeper of the Seals, Eric Dupond-Moretti, is on trial from November 6 before the Court of Justice of the Republic (CJR) for “illegal taking of interests”. He 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.
Created in 1993 to put an end, in theory, to controversies over the impunity of members of the government, this specialized jurisdiction is the subject of numerous criticisms. What is the CJR? How does it work? Why is she regularly criticized? The World takes stock.
The CJR is an exceptional jurisdiction 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. Offenses committed by these people, unrelated to the conduct of the nation’s policy, fall within the jurisdiction of 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 whatever occasion , can interfere in the assessment of government action.
Before 1993, only Parliament was qualified to bring proceedings against members of the government before 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.
The Court of Justice of the Republic is composed of fifteen judges:
Each of the fifteen judges has a substitute, elected under the same conditions as its holder.
Any person who considers themselves the victim of a crime or misdemeanor attributed to a member of the government in the exercise of their duties can file a complaint with the CJR.
Then, it is the requests 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 designed as a safeguard so that the CJR could not serve as a political weapon against government action.
If the complaint is declared admissible, the investigating committee – made up of three magistrates from the Court of Cassation, but different from those who are part of the fifteen judges – proceeds to hear 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 investigating committee have been ordered.
In the event of a trial, the fifteen judges of the CJR rule, by absolute majority and by secret ballot, on the guilt of the accused and, if he is found guilty, on the sentence imposed.
This is one of the main complaints addressed to the CJR: the election of the twelve parliamentary judges depends on partisan balances in the National Assembly and the Senate, which could risk giving a political color to the judgments rendered. Renewed in July 2022 after the legislative elections, then in October, after the senatorial elections, the CJR welcomes a “rebellious” deputy, Danièle Obono, and a deputy from the National Rally, Bruno Bilde.
The other parliamentary magistrates come from the majority (four), the Republicans (three), the Socialist Party (one), the Independents group in the Senate (one, various right) and the centrist Union (one).
Furthermore, the role of the attorney general at the Court of Cassation, who fulfills the functions of the public prosecutor before the CJR, also raises questions. This magistrate – currently Rémi Heitz – is placed under the authority of the Minister of Justice, who has disciplinary power over him. He is also appointed by decree of the Head of State after an advisory opinion from the Superior Council of the Judiciary. Its independence from 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 took him two years to rule on the non-prescription of the acts alleged against Edouard Balladur and François Léotard in the financial aspect of the Karachi affair, which dates back to the mid-1990s.
Another criticism made of the CJR: the leniency of its judgments. In total, out of ten judgments, she pronounced four acquittals, four suspended sentences and two exemptions from sentence. Criticism has been strong since the inaugural trial in 1999 on the tainted blood affair. The CJR had enshrined the principle of “responsible but not guilty” by releasing Laurent Fabius, Prime Minister at the time of the events, and his Minister of Social Affairs, Georgina Dufoix, both prosecuted for “involuntary homicide”. Former Secretary of State for Health Edmond Hervé was sentenced for “failure to fulfill an obligation of safety or prudence”, but exempted from sentence.
In addition, inconsistencies have been observed 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 mandate of the accused. In 2010, Charles Pasqua was, for example, acquitted by the Court in the case of embezzlement at the Annemasse casino (Haute-Savoie), although he had previously been convicted by the ordinary courts, in the “non -ministerial” of this case, to eighteen months suspended imprisonment.
After François Hollande, Emmanuel Macron also promised to abolish the CJR, without however succeeding in completing the necessary constitutional revision during his first term. “When officials – ministers, civil servants, elected officials – find themselves cited in a procedure for a crisis which is still ongoing, we are far from appeasement and balance”, criticized the President of the Republic in October 2021 In the viewfinder 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 ex-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 2022. François Molins, the former attorney general at the Court of Cassation, who represents the public prosecutor at the CJR, also considered that it is necessary “ put an end to this dissociation between two jurisdictions, which leads to policies being judged by the CJR and non-politics by a common law jurisdiction.” This separation of procedures, he said, “results in conflicting decisions even though the facts being pursued are the same.”
Threatened with disappearance, the CJR is, paradoxically, faced with an increase in its activity with an increase in complaints mainly aimed at the management of the health crisis. In 2020, it received 246 complaints, including 164 related to the epidemic, most often involving members of the government. In 2021, 20,199 complaints were sent to the CJR (a record number), almost all of which concerned Covid-19 and the health pass.
