Is it still possible to criticise the justice system without being accused of having contempt for democracy and the rule of law? It’s a question worth asking in light of Marine Le Pen’s conviction, on 31 March, by Paris’s Tribunal Correctionnel (criminal court), and the uproar that followed. The former party leader was found guilty of embezzling public funds in a scandal revolving around parliamentary aides for the Front National (FN, which became the Rassemblement National, RN, in 2018). She received a four-year prison sentence (two years suspended and two years to be served outside jail with an electronic bracelet), a €100,000 fine and a five year ban on running for office via a ‘provisional execution’ measure (1).

According to Le Pen, the verdict was ‘political’, and designed to disqualify her from the next elections. ‘Judges have put in place practices we had believed the preserve of authoritarian regimes,’ she claimed, outraged, on TF1 on 31 March. The RN’s president Jordan Bardella denounced the ‘tyranny of judges’ (Europe 1, 1 April). Jean-Luc Mélanchon (La France Insoumise) also criticised the ruling on X, writing that ‘The decision to deselect an elected politician should lie with the people’; Prime Minister François Bayrou spoke of his ‘unease’.

Most of the left, human rights organisations and several senior judges rose up in defence of the justice system. The Human Rights League vaunted ‘the value of the law and of the force of law as tools to regulate and pacify social relations’, denouncing ‘all calling into question of individual judges’. For Christophe Soulard, president of the Cour de Cassation (the final court of appeal), ‘to attack the justice system is not only to undermine judges, but also the foundations of our democracy’ (Le Monde, 2 April). Law professor Jean-Philippe Derosier sang the praises of ‘judges [who] hold on to their legitimacy, independence and impartiality, guaranteed by the constitution, which constrains them to act within the law, which they are charged with applying independent of any partial, partisan or private interest’ (Libération, 31 March). Among politicians, Marine Tondelier (Les Écologistes) accused Le Pen of ‘spitting in the face of the justice system’ (France Info, 2 April), whilst Boris Vallaud (Socialist Party) told the Assemblée nationale on 1 April that ‘to question a decision made by the justice system is to disrespect the elementary principles of the separation of powers and rule of law’. In short, it is unwise to critique the justice system and judges, as doing so risks undermining democratic values.

To see a political opponent convicted is cause to rejoice. But does this justify forgetting years of criticisms of an institution which is eminently political and often inequitable, hard on the weak and soft on the powerful? Judges are not impartial professionals, impermeable to any personal or partisan interest. As researcher Arnaud Philippe has shown, their verdicts are influenced by factors related to the way the law works, but also to their own cognitive biases.

Philippe, an economist, examined the effect of removing minimum sentences in 2014, seven years after Nicolas Sarkozy put them in place. Surprisingly, this change did not lead to a reduction in the range of prison sentences, which remained at the higher level the courts had become used to when the law mandated minimum sentences. ‘It is likely that, despite their denials, judges like the rest of the population still consider that a “real sentence” is a prison sentence,’ Philippe observed (2).

The left has never hesitated to criticise judges who keep foreigners locked up in detention centres in shocking conditions, or those who came down hard on the gilets jaunes and on those who took part in the riots that followed Nahel Merzouk’s death in the summer of 2023. It has also occasionally criticised specific individuals, such as a strict, unfair judge in Paris, or the head of a criminal court in Marseille who denied a defendant’s humanity, saying: ‘It is difficult to even see how anyone can still see you as a human being.’ (3) All this occurred without being considered an attack on democracy or the rule of law.

‘An administrative disagreement’

Le Pen’s trial is a good illustration of the failings of the justice system, but not for the reasons invoked by RN cadres. Their leader’s conviction is no scandal. Between July 2004 and February 2016, the FN did indeed divert €2.9m from the European Parliament to remunerate people working not as parliamentary aides, but for the party. Le Pen does not deny the substance of the facts: she pleaded ‘an administrative disagreement with the European Parliament’, arguing that elected members should be free to use their parliamentary resources as they see fit, as long as it’s within the field of politics. Therefore, along with the other defendants, she had no compunction in claiming that the law was unfit for purpose in this respect, in the name of ‘the separation of powers’.

Denouncing judges and laws, putting the justice system on trial in the media, admitting the facts while saying that they should not be punished: Le Pen’s argument contained all the ingredients of a ‘rupture strategy’ (4). When deftly handled by the communist lawyers Marcel Willard and Jacques Vergès, this form of defence proved successful. But used by political leaders who routinely call for stricter laws and judges, in order to push back against evidence, it is enough to make you smile. Behind Le Pen’s praise of civil disobedience, her defence is testament, above all, to her opportunism.

The ‘provisional execution’ attached to her five-year ban has drawn criticism. However, such measures are not unusual. The penal code states that penalties can be executed provisionally, provided judges give their reasons. In the RN’s case, judges cited the risk of reoffending, as well as the need for proper administration of justice and the defence of public order. On the first point, the court noted that, beyond the absence of admissions of guilt, the defendants had claimed ‘total and absolute impunity’ while employing a concept of the truth that was ‘at the very least narrative’. On the second, the court cited ‘the major disturbance to democratic public order that would be caused in this case by the fact that a person who had already been convicted in a first instance, including a supplementary sentence of ineligibility for embezzlement of public funds, would be a candidate, for example and in particular, in the presidential election, and might even be elected’. This risk was therefore deemed greater than that of the ban with provisional execution not being confirmed on appeal, even if it had, in the meantime, deprived Le Pen of her presidential candidacy. In a press release published the day after the judgment — after Le Pen urged the courts to act quickly — the Paris Court of Appeal committed to retrying the case before summer 2026.

Le Pen will therefore benefit from a short wait for an appeal, in contrast to the ordinary workings of the legal system. In fact, throughout the proceedings, the RN has benefited from a ‘luxury’ justice system many defendants could only dream of. The process was long and meticulous; the accused had every opportunity to present her defence, not least in the media. At the beginning of 2017, Le Pen made it known that she had refused to answer to a summons to appear at the judicial police station, without incurring any penalties. The police and justice system do not hesitate to use force in arresting cannabis dealers and pickpockets, then put them in judicial custody before bringing them before the court, or even to place them in pre-trial detention, or under judicial supervision while waiting for trial. Le Pen has had to endure none of these treatments.

Legacy of Christian morality

In fact, this first class justice system, reserved for politicians, police and CEOs, contrasts with the sentence handed down, which is of average severity. One has only to visit courtrooms reserved for immediate trials (5) to see that defendants there are locked up at breakneck pace, after hearings of astonishing speed, and that provisional execution is commonplace — which flies in the face of the principles of presumption of innocence and effective right to appeal.

Thus, in 2023, the rate of immediate execution of fixed prison sentences, that is to say provisionally notwithstanding appeal, was 87% in immediate trials [‘Références statistiques justice’ (justice statistics), 2024, Ministère de la Justice, Paris, 2024.]]. The rate fell to 66% after an investigation, like the one from which Le Pen benefitted, and moreover she is not yet required to wear her electronic bracelet.

Under the exceptional procedure of immediate trial, the committal order is more systematic than elsewhere because judges are under no obligation to modify sentences of less than one year in prison. They can send convicts to prison regardless of the length of the sentence, even if it’s very short. These convicts formally have the right to appeal, but the brevity of their sentence combined with the wait time for a hearing (four months for a detained person) dissuades them from doing so. Why risk having their sentence increased? Le Pen can conveniently complain that she has been deprived of effective recourse. But she encouraged this deprivation when her party voted, on 3 April, for the Horizons and Independents group bill reestablishing the possibility for judges to give prison sentences of less than one month, and the repeal of the obligation to modify sentences of less than one year.

Some were outraged that Le Pen’s refusal to admit her wrongdoing was held against her, and contributed to a harsher sentence. ‘So she should have pleaded guilty to be granted leniency from the courts. What kind of world are we living in?’ complained Alain Finkielkraut ([Le Point, 3 April). But every day, defendants are kept in pretrial detention, or sentenced to harsher sentences, because they refuse to admit the facts. We have known that admissions of guilt are central to our justice system, a legacy of Christian morality, since Michel Foucault (6). Research has shown that prisoners who admit the facts are more likely to be released from prison (7).

The president of the National Rally (RN) was therefore a victim of a form of violence that she calls for. We should worry that in seeking to defend the decision against her, people will end up not allowing themselves to make any critique of the law and the justice system. Rather than again reenacting the battle between ‘government of judges’ and the defenders of the rule of law (8), a sober analysis of this judgment should lead us to demand that all defendants and accused people facing the justice system receive treatment at least as favourable as that which was granted to Le Pen, and to denouncing the penal severity with provisional execution called for by parliament and currently at work in our courts.