Will Éric Dupond-Moretti be convicted or acquitted? While a one-year suspended prison sentence was requested in mid-November at the end of a week of trial, the Minister of Justice will be decided on his fate this Wednesday at 3 p.m.
Whatever decision is taken by the Court of Justice of the Republic this Wednesday, November 29, 2023, it will have serious consequences. And for good reason, it will be the decision of a historic trial, Éric Dupond-Moretti being the prime minister in office to have been taken to court. As a reminder, he faces up to five years of imprisonment and a ban on holding public office. During this trial, which took place over a week starting on November 6, the judges were tasked with determining whether the Minister of Justice took advantage of his arrival in the government to settle scores with certain magistrates. Magistrates with whom he had had disagreements during his career as a lawyer which preceded his political career.
During the requisitions, the prosecutor general of the Court of Cassation, Rémy Heitz, had requested from the Court of Justice of the Republic (CJR) that the minister tried for illegal taking of interests be found “guilty”, requesting a sentence of one year in prison suspended. However, while the penalty of ineligibility is in principle mandatory in the event of conviction, Rémy Heitz considered that the Court could “dispense with it”, relying on its “wisdom”.
At the time of the verdict, the Macron camp holds its breath. First of all because the Minister of Labor, suspected of favoritism, has been on trial since Monday before the criminal court in Paris for a public procurement case which dates back to his mandate as mayor of Annonay. But also because in the event of conviction of Éric Dupond-Moretti, the entire executive could be discredited. In addition, the question of his retention within the government will also arise, even if the sentence is symbolic. Finally, in the event of acquittal, the honor of the Minister of Justice will certainly be cleansed, but at what price? His ties with the magistrates, far from being in good shape before the trial, could emerge even more damaged.
Only the CJR is empowered to judge a member of the government, it is therefore this body which must rule on the case of Éric Dupond-Moretti. Created in 1993, the CJR ruled on 11 cases and its decisions were often considered too lenient: five suspended sentences, four acquittals and two convictions with exemptions from sentence were handed down.
This indulgence would come, according to the jurists detractors of the CJR, from the composition of the jury formed by three professional magistrates, six deputies and six senators. The majority of jurors therefore come from the political world and could be motivated by political thoughts more than by the application of the law, according to the fears of jurists. For the trial of Éric Dupond-Moretti, of the 12 parliamentary jurors, five are from the majority and seven from the opposition. One name particularly displeased the minister’s entourage, that of LFI MP Danièle Obono who belongs to the same political family as Ugo Bernalicis, author of a complaint against the minister. It is a lack of impartiality on the part of the LFI MP that is feared, but this criticism could also be addressed to the members of the majority brought to judge the minister. Note that parliamentarians are required to judge independently of their conviction and political affiliation; they also take an oath.
If the fact of being judged by peers questions the impartiality of the judgment, in the case of the Minister of Justice the question of the impartiality of magistrates also raises difficulties as highlighted by the Attorney General of the Court of Cassation , Remy Heitz. The career of certain magistrates called to testify or judge effectively depends on the minister being judged. “We must rise with the permanent concern for neutrality, objectivity, in a word, impartiality,” he said at the opening of the trial, adding that “there must be no outcome only a victory: that of truth and that of justice”.
Tried for “illegal taking of interests”, Éric Dupond-Moretti faces up to five years of imprisonment and a fine of 500,000 euros in accordance with article 432-12 of the penal code. This text also specifies that all interests “likely to compromise [the] impartiality, [the] independence or [the] objectivity” of the incriminated person are subject to the sanction. These interests are not necessarily linked to the search for personal financial gains or profits as indicated by a judgment of the Court of Cassation in 2000.
Éric Dupond-Moretti also and above all risks leaving the government if he is found guilty of the facts with which he is accused. An additional sentence of disqualification from holding public office could indeed be imposed. Even without this sentence, the “general rule” that a convicted minister cannot remain in office would apply, as the Prime Minister recalled in October. And if the sentence could be the subject of an appeal in cassation, it would be difficult for the former tenor of the bar as for the head of government to ignore this “general rule”.
If a conviction is possible, an acquittal of the minister is just as possible. The Minister of Justice would then be cleared of all suspicion of justice and could remain at Place Vendôme.
Éric Dupond-Moretti is accused of having used his position as Minister of Justice to carry out retaliatory actions against magistrates in two different cases. According to the investigating commission of the CJR, consulted by franceinfo, the Minister of Justice “retained an interest likely to compromise his impartiality, independence or objectivity” “by initiating then following the contentious administrative investigations” until that Matignon takes over responsibility for these files in October 2020.
After his appointment to the Ministry of Justice, Éric Dupond-Moretti effectively opened administrative investigations against judge Edouard Levrault then three magistrates from the National Financial Prosecutor’s Office (PNF). The first had estimated that his ouster from the principality of Monaco was due to his investigations into the Russian businessman, Dimitri Rybolovlev, and the director of the Monegasque judicial police at the time, Christophe Haget, both men having been defended by Éric Dupond-Moretti. The three others were at the origin of the review of the telephone records of Éric Dupond-Moretti and other lawyers in the so-called “wiretapping” affair concerning Nicolas Sarkozy and in link with Libyan financing. The lawyer then denounced an “abuse of authority” and an “attack on privacy”.
