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Statement by Grégor Puppinck before the Conservative Group of the Parliamentary Assembly of the Council of Europe on June 20, 2025, and at the reception held at the ECLJ on June 18, 2025, on the theme of “Judicial obstruction of free elections.”

Recent years have been marked by attempts at judicial obstruction of free elections, that is, the misuse of the judicial system to disqualify candidates from presidential elections. This practice was thought to be confined to dictatorships, but it is making a worrying comeback among Council of Europe member states, particularly this year, with the bans on Călin Georgescu and Marine Le Pen from standing in the presidential elections in Romania and France. We can also cite the cases of Donald Trump, Ekrem İmamoğlu, the mayor of Istanbul currently in prison, and Jair Bolsonaro, who is facing very serious charges. Each of these figures was the opposition favorite in presidential elections and was the victim of the political use of the justice system to prevent or attempt to prevent their candidacy for the presidency.

I will now outline the “judicial trap” in five stages that has been set for Marine Le Pen to prevent her from standing in the next presidential election. This trap is based on a combination of five fundamentally unjust decisions that make it impossible for Marine Le Pen to stand for election until the final decision is made by the Court of Cassation, by means of a simple first instance decision that cannot be appealed, namely the imposition of an additional penalty of provisional enforcement of the penalty of ineligibility.

The sixth “act” falls to the European Court of Human Rights, which is in a position to order France to suspend the provisional enforcement of the ineligibility penalty and to condemn it for violating Marine Le Pen's rights.

1. The selective denunciation of the socialist president of the European Parliament

It has long been common and well-known practice to entrust national policy tasks to assistants of members of the European Parliament. This practice has been encouraged by the difficulty of distinguishing between national and European political activity, by the vagueness of the rules and by the absence of sanctions.

However, on March 9, 2015, Socialist MEP Martin Schulz, then President of the European Parliament, reported MEPs from the RN (formerly FN) group to the European Anti-Fraud Office (OLAF) for employing parliamentary assistants to work for the party. This triggered legal proceedings at European and national level against the MEPs and their assistants, including Marine Le Pen.

This practice was so common within the European Parliament that an investigation published in 2023 revealed that between the beginning of 2019 and the end of 2022, nearly one in five MEPs, or around 140 members, were found to have misused funds intended to pay parliamentary assistants. However, according to this investigation conducted by Follow the Money and Die Welt, only a small proportion of them were prosecuted[1], while the others were given the opportunity to regularize their situation confidentially. According to the investigation, “there is a considerable gap between the number of cases known to Parliament and the number of cases referred to prosecutors”. But Parliament refused to tell the investigative journalists how many cases had been referred to the courts. As a result, the investigation adds, the procedure used by Parliament gives it “broad discretion to decide which cases to pursue, opening the door to political targeting”. The investigation adds: “What emerges from the cases that have been made public is that the MEPs concerned often come from parties hostile to the EU establishment.” This led Nicholas Aiossa, Director of Transparency International EU, to say: “I believe that the institution sometimes treats MEPs differently depending on their political group”, citing the example of Martin Schulz, then President of the Parliament, who openly accused the FN when he referred the case to OLAF and the French Ministry of Justice. This reveals a practice of specific and personal targeting (Navalnyy v. Russia [GC], 2018, § 167-170).

Such was the trap set by Socialist MEP Martin Schulz.

Marine Le Pen was convicted on March 31, 2025, by the Paris Criminal Court for misappropriation of public funds and fined €100,000, sentenced to four years in prison, including two years under house arrest with electronic monitoring, and two additional years suspended. In addition, and most importantly, the court sentenced Ms. Le Pen to the maximum penalty of five years of ineligibility, accompanied by an exceptional order of provisional enforcement. This is an extremely harsh sentence. Other RN leaders were also convicted.

For almost identical offences, on February 5, 2024, the same chamber of the same Paris criminal court acquitted Mr. François Bayrou and sentenced five former MoDem MPs to prison terms and suspended sentences of ineligibility.

2. Retroactive application of the Court of Cassation's case law on misappropriation of public funds

Marine Le Pen was initially charged with “breach of trust” and ‘complicity’ before these charges were reclassified by the judge as "misappropriation of public property ." In convicting Marine Le Pen, the Paris Criminal Court made retroactive application of a June 27, 2018 decision of the Court of Cassation, which extended to members of parliament the scope of Article 432-15 of the Criminal Code, which punishes the misappropriation of public funds by public officials.

3. The sentence of ineligibility for five years under a subsequent law

The acts alleged against Ms. Le Pen were committed before the entry into force of the Sapin II Law of December 9, 2016, which made the additional penalty of ineligibility mandatory in cases of misappropriation of public property (Article 432-17 of the Criminal Code).

The criminal court therefore had the option of not imposing the penalty of ineligibility, but also had the obligation to give reasons for its decision if it did impose that penalty. However, the court merely referred to the alleged “seriousness of the acts committed” and justified its decision by invoking “the will of the legislature”, as expressed in the 2016 law, “to better punish breaches of integrity in order to restore public confidence in public officials”. It is well known that it is completely contrary to criminal law to apply a more severe criminal law to facts that occurred before it came into force.

It should be noted that Marine Le Pen was sentenced to the maximum period of ineligibility provided for by the applicable law: five years. Conversely, François Bayrou, who was reported by a member of parliament, was acquitted by the same chamber of the same court for similar acts, while five former MoDem members of parliament were given suspended prison sentences and were declared ineligible to stand for election. As for Jean-Luc Mélenchon, he has not yet been tried.

Finally, France is the only European country in which a member of the European Parliament has been sentenced to ineligibility for these acts. This was not the case for the few members of parliament from other countries who were prosecuted for the same acts.

4. Provisional enforcement of the sentence of ineligibility

However, Marine Le Pen's conviction in the first instance would not have been sufficient to prevent her from standing in the presidential election, as the enforcement of the sentence of ineligibility would in principle have been suspended for the duration of the appeal proceedings against the first instance judgment. It was to prevent this possibility that the criminal court decided, on an exceptional basis, that the sentence of ineligibility imposed on Marine Le Pen would be enforced provisionally, i.e. immediately, removing the suspensive effect of the appeal.

a. This provisional enforcement has two major characteristics

It removes the suspensive effect of the appeal, which has the effect of making the penalty of ineligibility immediately effective despite the appeal.
There is no effective remedy against the decision to provisionally enforce the disqualification from office. This decision cannot be challenged or be the subject of any request for suspension, unlike decisions to provisionally enforce other penalties, such as pre-trial detention, which can be challenged at any time.

It is the absence of effective remedies against this provisional enforcement decision in the French judicial system that opens the way to the European Court of Human Rights.

b. The four conditions for provisional enforcement

Such “provisional enforcement” is provided for by law, but only as an exception and if four conditions are met. These four conditions for provisional enforcement, established by case law, are as follows:

The existence of a risk of reoffending before the appeal judgment;
The existence of a risk of non-enforcement of the sentence;
The existence of a risk of serious disturbance to public order;
Respect for a proportionate infringement of “the freedom of the voter” in the event of a sentence of ineligibility with provisional enforcement (Constitutional Council, March 22, 2025).

In the Le Pen case, none of these four conditions are met.

Regarding the risk of reoffending before the appeal judgment

It is clear that there is no such risk and that there is no material evidence to suggest that such a risk exists. However, the judge believed that this could be inferred from the fact that the defendants did not plead guilty. The criminal court criticized Ms. Le Pen and her co-defendants for their “defense strategy,” accusing them of “challenging both the court's jurisdiction and the facts.” The court explicitly states that it is imposing the penalty of ineligibility because of “the failure to acknowledge the facts” (p. 406) and criticizes the applicant for “continuing to maintain that the acts prosecuted cannot be covered by criminal law” (p. 413). The court even suggested that the sentence would have been lighter if the applicant had agreed to testify against herself. However, the right of a person to deny the facts of which they are accused and not to contribute to their own incrimination are at the heart of the right to a fair trial and are essential components of the rights of defense guaranteed by Article 6 of the European Convention on Human Rights.

Regarding the risk of non-enforcement of the sentence

The criminal court considers that the sentence imposed on Ms. Le Pen is likely not to be enforced if she is elected President of the Republic. The judgment states that “the enforcement [of the sentence] would be rendered meaningless in the event of elections taking place before this conviction becomes final.” (p. 416). In so ruling, the court is seriously mistaken, since election does not have the effect of preventing the sentence from being enforced, but merely of postponing it until after the end of the term of office. The immunity enjoyed by the President of the Republic is only temporary; it merely suspends the limitation and foreclosure periods for the duration of the term of office (Article 67 of the Constitution).

Regarding the risk of serious disturbance to public order

Provisional enforcement of a sentence may be imposed when the suspensive effect of the appeal would cause serious disruption to public order. This is the case, for example, for a criminal held in pre-trial detention. The criminal court should have provided evidence of the possible existence of such disruption in the absence of provisional enforcement. This was not the case. For the criminal court, “serious disruption of democratic public order” would be caused by “the fact that a person who has already been convicted at first instance, in particular to an additional penalty of ineligibility, for misappropriation of public funds and could subsequently be convicted definitively, is a candidate, for example and in particular in a presidential election, or is even elected.” Thus, for the court, it is the very possibility of standing for election, or even of being elected, in accordance with the law, that undermines “democratic public order”. In fact, it is clear that the aim and justification of the judgment is to prevent Ms. Le Pen from standing as a candidate.

The political dimension of the judgment is clear, and the judges make no secret of it. For example, they criticize Marine Le Pen and her co-defendants for having “an undemocratic conception of political activity and the requirements and responsibilities that go with it”. They also criticize her for her critical views of the European Union (EU), stating that “the harm to the interests of the European Union is particularly serious insofar as it is caused, not without a certain cynicism but with determination, by a political party that claims to oppose the European institutions.” (p. 402) Thus, if the political party had been pro-EU, the damage to the interests of the European Union would have been less.

It should be noted that the concept of “democratic public order” does not exist in French positive law, but has great potential, as it would make it possible to subject French political life to respect for this democratic public order, including its values, under the control of the courts.

In fact, it was Ms. Le Pen's immediate and irrevocable ineligibility that caused a major disturbance to public order. Moreover, the fact that members of the MoDem were only given suspended sentences for the same acts did not cause any disturbance.

Concerning respect for “the freedom of the voter”

In its decision of March 22, 2025, published a few days before the judgment of March 31, 2025, the Constitutional Council emphasized the need to ensure “the preservation of the freedom of the voter,” i.e., to ensure that a penalty of ineligibility does not disproportionately deprive citizens of their right to vote. This was a clear message from the Constitutional Council to the Criminal Court, which did not take it into account. Indeed, it is impossible to imagine a more disproportionate disqualification for a candidate who, according to an IFOP poll conducted on March 26, 2025, was polling at 37% for the first round of the upcoming presidential elections. (Decision No. 2025-1129 QPC of March 28, 2025)

5. The obstacle: the reactivation of provisional enforcement in the event of an appeal

Regardless of the judgment handed down by the Court of Appeal, an appeal in cassation subsequently lodged by the public prosecutor's office or by the applicant will have the effect of reactivating the provisional enforcement of the penalty of ineligibility imposed at first instance until the final decision in cassation is handed down. This is the case law of the Court of Cassation (Cass. crim., Sept. 28, 1993, No. 92-85.473) and the Council of State (Dec. 20, 2019, 92-85.473). The Court of Cassation “holds that when provisional enforcement has been ordered at first instance, an appeal against an appeal judgment that has not ordered provisional enforcement restores the enforceability of the first instance judgment” (N. Michon, "Provisional enforcement and ineligibility...”, Gaz. Pal., May 6, 2025, p. 23). The Council of State adopted the same position, stating that “the suspensive effect of the appeal in cassation lodged by M.A... against this judgment [of the Court of Appeal] resulted in the maintenance of the provisional enforcement ordered at first instance”.

Thus, even if Marine Le Pen is acquitted by the Court of Appeal, the penalty of ineligibility will remain in force until the end of the cassation proceedings, if the public prosecutor's office appeals to the Court of Cassation.

Marine Le Pen and her millions of voters have therefore fallen victim to a veritable “judicial trap” aimed at preventing her from standing and being elected President of the French Republic in 2027.

6. The sixth act: the European Court of Human Rights

However, a sixth act is possible before the European Court of Human Rights.

The latter has the power and duty to preserve French democracy by doing justice to Marine Le Pen and her millions of voters.

Several violations of the Convention are caused by:

the very principle of the applicability of provisional enforcement to a non-final sentence of ineligibility;
the absence of suspensive effect of the appeal in the event of provisional enforcement;
the impossibility of exercising an effective remedy against the decision imposing provisional enforcement;
the decision imposing, in this case, the provisional enforcement of the sentence of ineligibility;
the partiality of the court.

The ECHR should find that there has been a violation of the rights to presumption of innocence and to a fair trial, to free elections, to the right to appeal in criminal matters, and to the prohibition of abuse of power, as guaranteed by the European Convention and its additional protocols.

It is for the European Court to give a fair judgment.

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[1] Simon Van Dorpe, Peter Teffer and Hans-Martin Tillack, Follow the money et Die Welt, “Almost 140 EU lawmakers misused money for assistants, new figures show”, 23 November 2023, https://www.ftm.eu/articles/european-parliament-protects-faulty-politicians?utm_source=chatgpt.com&share=SruD%2BbBs%2Bpr6k7Cg7F4M30mWLwPKWF7j1lUj3Fg36T3znIOvImElYXN6f5yoZH8%3D