Tribune. For a long time in the shadows, the Court of Justice of the Republic (CJR) has experienced, in recent months, a resurgence of notoriety which again poses the question inherent in any democracy: should we judge politicians (in this case ministers? ) for offenses that may have been committed in the performance of their duties and in direct connection with them? If yes, how ? And, in the hollow, how to avoid the perpetual oscillation between a double suspicion, that of the questioning, by politicians, of the independence of the judiciary and that of the interference of judges in the political function?
From the citizen’s point of view, the situation created by the indictment of Agnès Buzyn and, to a lesser extent, by that of Eric Dupond-Moretti, appears just as prejudicial to justice as to politics. To justice, eternally suspected of wanting to establish a form of government for judges, while the latter lack direct democratic legitimacy. To politics, which would see its political and historical responsibility fade away in favor of criminal responsibility with the consequent loss of the substance of the political function, which would be nothing more than a form of service delivery like any other. Let us force the trait: could we imagine General de Gaulle indicted for “endangering the lives of others” because of the risks that would have involved the fact of having responded to his appeal of June 18?
It is from this double impasse, political and legal, that we must escape at the risk of aggravating citizens’ mistrust of institutions, devitalizing political action and diverting those who would like to devote their talents to it.
Judicialization of social relations
However, we must not overlook three fundamental facts that shed light on the way forward. The first is historical: at the source of the principle of separation of powers lies the prohibition on judges “Under penalty of forfeiture, of disturbing, in any way whatsoever, the operations of the administrative bodies, or summoning the administrators to them for the reason of their functions” (law of August 16/24, 1790).
The second is legal: political action, apart from the simple (but rare) case of the private behavior of a minister, does not necessarily exclude criminal liability. Indeed, the field of penalizing society has considerably extended and now covers not only voluntary acts, but also the damaging consequences of involuntary acts, with criminal liability being assessed in the light of recklessness, negligence or gross default “Exposing others to a risk of particular gravity that could not be ignored” (article 121-3 of the penal code).
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