Judicial Fair

The provisional execution of the sentence imposed on Marine Le Pen is a political decision by its effects. Anyone claiming otherwise is either a hypocrite, ignorant, or both.

As a supplement to Michael Shellenberger’s interview of Pascal Clérotte this morning, let’s dive into some law.

Pascal Clérotte: Ban on front-runner Marine Le Pen is “nail in the coffin of French democracy”

In France, ineligibility is a supplementary penalty tied to a main criminal sentence. Since the Law for Confidence in Political Life of September 15, 2017, Article 131-26-2 was added to the French Penal Code, making it mandatory to impose an ineligibility penalty on anyone convicted of a crime or offense listed in that article.

However, "mandatory" doesn’t mean "automatic"—the separation of powers ensures that. The legislator isn’t a judge, and the judge retains sovereign discretion to apply it or not. In plain terms, the judge can choose whether to enforce it.

Under Article 471 of the Code of Criminal Procedure, a criminal court judge can order the provisional execution—immediate enforcement despite an appeal—of the sentence, including the mandatory ineligibility, without needing additional justification. Here again, the judge has discretion; nothing is forced upon him.

While the Electoral Code stipulates that the govnerment must declare the automatic forfeiture of elected mandates in cases of provisional execution of an ineligibility sentence, this doesn’t seem to apply to an ongoing parliamentary office.

The Constitutional Council (France’s version of the US Supreme Court), faced with multiple petitions seeking to establish the automatic forfeiture of parliamentary offices due to ineligibility sentences with provisional execution, systematically rejected them. It emphasized that automatic forfeiture cannot be recognized “in the absence of a final conviction.” It further noted that provisional execution of the sentence “has no effect on an ongoing parliamentary office.”

As a result, Marine Le Pen and other convicted defendants with parliamentary offices retain them by right. Therefore the provisonal sentence has no immediate effect, thus should not have been inflicted.

The Constitional council ruled the day before Mrs Lepen sentencing that provisonal sentence execution shall not impede voter’s freedom of choice.

Members of Parliament are not liable for misappropiration of funds as per the French penal code (article 432—15).

We can therefore draw the conclusion that the court opted for provisional execution with the intent of preventing Marine Le Pen from running in any election, including the 2027 presidential race, for five years.

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Update 04/02/2025 : the court at last published its ruling, pressured by the public to do so. The court justifies the provisonal execution as follows:

“The court considers the significant disturbance to democratic public order that would arise if a person, already convicted at the initial trial stage—particularly with an additional penalty of ineligibility for misappropriating public funds—were to run for an office like the presidency, or even be elected, especially since such a conviction could later be upheld as final.”

The court thus claim to have the power to dedice who can run in the next French presidential election.

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A judge rules in society’s interest in every sense of the term. He has the duty to consider all consequences of his ruling and ensure it doesn’t cause more harm than the wrong it seeks to address. "Dura lex sed lex" (the law is harsh, but it is the law) doesn’t excuse enforcing the law without wisdom.

In this case, the provisional execution—barring a politician who leads the polls with 40% of the French electorate from running in the 2027 presidential election—causes far more tort than it redresses.

Beyond the widely observed double standards in justice—François Bayrou (sitting Prime Minister) was acquitted at first instance for similar acts, and Jean-Luc Mélenchon, to our knowledge, for the same acts, faces no prosecution—this provisional execution further erodes the little trust French citizens have in the judiciary. The courts are now suspected of meddling in politics to sideline candidates they disfavor. Whether this is true or not is beside the point. The court had a duty to consider this and reject provisional execution to avoid undermining public confidence in the judicial system.

Worse still, the court issued its ruling before even drafting it. As noted by . Philippe Prigent, a constitutional lawyer and Mrs. Noëlle Lenoir, an honorary member of the Constitutional Council, “this is proof that the court decided the outcome before conducting its legal reasoning.” This raises a massive impartiality issue.

Even more shocking, the court provided copies of the ruling to journalists before the defense.

Digging deeper, the presiding judge, speaking on a 2020 podcast, expressed admiration for Judge Eva Joly, a former green Member of the EU Parliament and presidential candidate. As Prigent highlights, “Given Eva Joly’s very marked political engagement (with the Greens), this statement seriously calls into question the apparent impartiality of the presiding judge who just convicted the National Rally leader. Arbitration rulings (where the bar is lower) have been overturned for less.”

Who are these trial judges giving interviews about their personal motivations, inspirations, and professional philosophy, oblivious to how this will eventually undermine their impartiality? Judicial independence is merely a tool for impartiality, which must remain beyond reproach, or decisions risk being overturned. When there’s doubt, there’s no doubt.

This court has just driven the final nail into the coffin of French democracy. As Mitterrand reportedly said at his last cabinet meeting: “The judges killed the monarchy; they will kill the Republic.”