On March 31, Marine Le Pen, leader of the French far -right nationalist party Rassemblement National, was sentenced at first instance, for undue appropriation: public funds intended for collaborators of European parliamentarians to assist their MEP, would instead have been employed in France, for other purposes. The sentence established is 4 years of imprisonment (of which two suspended and two under house arrest with the electronic bracelet), 100 thousand euros, plus the accessory penalty of the inelegitability for five years. The so -called Sapin II law, approved on 9 December 2016, before the election of the current President Emmanuel Macron in 2016, was applied to Le Pen.
The rule, which aims, among other things, to guarantee the transparency of institutions and prevent corrupt phenomena not only in the PA but also in the context of companies and large organizations, e For the part applied in this case it provides that it becomes ineligible who is convicted of crimes “against integrity”. The accessory sanction of the engraver can become executive at the end of the entire trial or after the first degree of judgment in “provisional execution”: this aspect is at the discretion of the judge, but since it exists by law it has always been applied in the manner implemented with the pen “against recurrence”.
French criminal law admits how the Italian one resorted to the merits on appeal and legitimacy in the Court of Cassation, but does not stop the execution of the sentence and it is unlikely that the second instance sentence can arrive in time for the next presidential return (2027).
The sentence
The sentence does not concern only Le Pen, but 9 MEPs of the Rassemblement National, the French sovereignty party, and 12 assistants for signing “fictitious contracts”, within what has been called a “system” of embezzlementthat the Court has considered in place since 2009 with Le Pen in the center.
“It was ascertained,” said the president of the Court of Paris Bénédicte de Perthuis – the contextual motivations of the sentence were read in the classroom, 150 pages given the delicacy of the case – that the assistants, “who passed from one deputy to another”, “actually worked for the party”, and “that their deputy (the MEP) had not entrusted them with any task”.
It was not a question, explained the judge, “to common the work of the assistants but rather to common the resources of the MEPs”. “Nobody,” said the President of the Court, “is tried for having carried out political activity, this is not the theme. The question is, however, to know whether the contracts have been performed or not “.
“This method of contextual motivation”, explains Edmondo Bruti Liberatiprofound connoisseur of the French criminal system, “is usual in France, where after the conclusions there is a hearing for reading the device and motivations. Generally they are slender, but in this case they have been detailed for the delicacy of the story. Also in Italy a similar system would be possible, in accordance with the procedure, but it is not used as never used because a part of the lawyer convinced that a preconceived decision of the judge hides. However, it would be useful to give a scheme of the decision -making path, he would avoid many illustrations pending extensive motivations ». Something similar in Italy has made the Constitutional Court that issued next to the device for a few years, a meager press release that summarizes the reasons for the decision, referring to subsequent reasons for the complete sentence.
Reactions and their context
The sentence was accepted by the interested party with the comment “political sentence”, “reading” publicly shared by many sovereign leaders around the world, including the now inevitable tweet of Elon Musk, who has taken the habit of insolenting the magistrates of the world every time they emit unwanted sentences even outside the United States.
A rather usual comment, in recent policy, with reference to unwelcome sentences to the ruling class.
If the separation of the powers, which is the basis of modern liberally liberal constitutionalism, provides that there is no non -limited power and that popular legitimacy alone cannot be founded a dissolved power from the obligation to bind him to the current law, for some time there has been a manifest impatience of the executive power to the counterweight and in general to the tendency of politics attempted by sovereignty to demand, thanks to the consensus, a legitimacy beyond the law. description of constitutional counterweights as obstacles to popular will, be they judiciary, ordinary and accounting; parliamentary debate; Constitutional shorts; Presidents of the Republic in the event of parliamentary republics; Sovereign legislation for which international agreements and sovereignty sales have been signed; free press towards which the insults are no longer counted.
Recurring temptations in the world
The first spy of this impatience is often a program of “reform” of justice that limits, often in a subtle way, with the disguise of other pretexts, the independence of the judicial power. The last of these reforms, in order of time, took a step ahead a few days ago in Israel, with a law that changes the commission that appoints the judges: as part of a controversial project that for months brought to the square in Israel Every week thousands of people contrary to a bill that provided, among other things, the possibility for the government to climb over the judgments of the Supreme Court, which had been slept for other emergencies after October 7th but which is returning to the agenda.
Attempts to expand the executive and in any case of claimed popular legitimacy of politics in a sovereign sense, at the expense of parliaments and the judiciary, they are a transversal topical topic, which also affects countries of long democratic tradition, so much so as to push different analysts to coin and use more and more often the “sovereign international” expression.
Not by chance the reforms of justice are often under the lens, as a risk of the risk of anti -democratic slip in the event of compression of the independence of the judiciary: think of Europe’s lens on Hungary and Poland in recent years; To the judges, the lawyers and lastly the mayor of Istanbul, the main political opponent of the Erdogan government, and candidate against him, arrested in Türkiye. To the magistrates in the square in Tunisia In recent months, al President of the ABA William R. Bay, the most important association of US lawyers, who on 6 March denounced a “clear and disconcerting scheme” of attacks on judges who emit judgments unwelcome to the administration and to lawyers who represent customers deemed uncomfortable by the government. According to the Association, high state officials have repeatedly invoked the impeachment of magistrates without any proof of illegal conduct, undermining the independence of the judicial power and harming the right of defense. The president of the United States Supreme Court underlined in his annual report growing pressure on the judges and the need to firmly contrast them: “We cannot accept a system in which the government tries to remove the judges only because their decisions do not coincide with the administration’s political line”.
Topics, those of the poor coincidence between judicial decisions and the political line of the administration, which we have heard many times also in Italy and which have recently multiplied. While regarding reforms of the judicial system, the separation of careers that the government defines “the mother of all reforms” is very discussing.
Democracies at risk? Form and substance
When you think of a democracy that “collapses” is generally thought of the strength of the “coup”, but constitutionalists, historians and scholars of public law generally agree in believing that the crisis of contemporary democracies passes for other less flashy means: And in particular for the safeguarding of the form and for the progressive emptying of the substance, of which attacks on free press and judicial power are indicators. Not by chance, for the final outcome of this risky path, partial “democrature” neologize of autocracy, synthesis of democracy (formal) and substantial dictatorship was coined. In a recent interview a Christian family, The Constitutionalist Roberto Binhe had used the metaphor of landslide: «A slow process like the landslides in the mountains does not happen to be all of a blow. But it is a process that is difficult to arrest “, also because it does not attract attention until the traumatic event of the landslide is produced. A concept for which the words of the speech on the Constitution by Piero Calamandrei, (1955): “Freedom is like air: one realizes what is worth when it begins to miss, when you feel that sense of asphyxiation that the men of my generation have heard for twenty years, and that I wish you, young people, to never feel”.
It was a speech in which the students urged to keep his guard high to protect the pillars of democracy, who returns to great relevance if we take into account the fact that according to a survey published on Times on January 27 more than half of the British young people of the Z generation (13-27 years) would consider that “today the United Kingdom would be a better place if there was a strong leader in power that should not worry about elections”.
