On 28 September 2023, the Constitutional Council (“Conseil constitutionnel”) issued its ruling on a priority preliminary ruling on the issue of constitutionality (hereinafter “QPC”) raised by François Fillon in connection with the criminal proceedings brought against him for misappropriation of public funds, complicity, and concealment of this offence, as well as concealment and complicity of misuse of corporate assets.

Following an initial ruling by the Paris Criminal Court on 29 June 2020, and an appeal ruling on 9 May 2022, which sentenced him to four years’ imprisonment, including one year of unsuspended/unconditional imprisonment, and a fine of 375,000 euros, François Fillon appealed to the French Supreme Court (“Cour de cassation”). On 6 April 2023, François Fillon submitted two QPC, one of which was referred to the Constitutional Council by the French Supreme Court on 28 June 2023.[1]

In its decision, the Constitutional Council granted this QPC, which concerns the first paragraph of Article 385 of the Code of Criminal Procedure (hereinafter “CPP”),[2] according to which the accused may no longer invoke a nullity of the proceedings before the criminal court, seized by referral from the investigating magistrate or the investigating chamber. The Constitutional Council explained that neither this nor any other provision provides for an exception to this principle, even in cases where the accused has been made aware of the grounds for nullity at a late stage, i.e. after the close of the investigation.[3] It therefore declared that this lack of exception infringes the right to an effective legal remedy and the rights of the defense, and that the terms of the first paragraph of Article 385 of the Code of Criminal Procedure were in breach of the Constitution.[4]

Before looking back at the reasons for this declaration of unconstitutionality (II), it is worth recalling that this decision by the Constitutional Council is part of the Fillon saga, which began in 2017 shortly before the French presidential elections (I).

I. A retrospective on the judicial saga of the Fillon camp

In 2017, shortly before the French presidential election, a scandal emerged concerning François Fillon, then a candidate for “Les Républicains”. The newspapers “Le Canard enchaîné” had in fact published the first lines of what would later be referred to as the “Penelopegate” affair. It was claimed that Penelope Fillon, François Fillon’s wife, employed as his parliamentary assistant between 1998 and 2013, had never visited the National Assembly nor attended any parliamentary proceedings. It was also alleged that Penelope Fillon had been fictitiously employed as a literary advisor for the “Revue des deux mondes”, earning 135,000 euros a year, although she only published two book reviews. Finally, other fictitious employment was alleged concerning François Fillon’s children, who had been employed by him when he was a senator between 2005 and 2007.

Following these revelations, a preliminary inquiry was opened by the National Financial Prosecutor’s Office, prior to the appointment of investigating judges to open a judicial investigation in February 2017 and the indictment of François Fillon on 14 March 2017.

On 29 June 2020, the Paris Criminal Court sentenced François Fillon to five years’ imprisonment, including 2 years of unconditional/unsuspended imprisonment, a fine of 375,000 euros and a 10-year election ineligibility for misappropriation of public assets, complicity, and concealment, as well as complicity in misappropriation of corporate assets and concealment of this offence. His wife, Penelope Fillon, was given a three-year suspended prison term and fined 375,000 euros.

Following an appeal, on 9 May 2022, the Paris Court of Appeal upheld François Fillon’s conviction, and issued a sentence of four years’ imprisonment, including three years’ of unsuspended/unconditional imprisonment, a fine of 375,000 euros and 10 years’ election ineligibility, as well as two years’ of suspended imprisonment and a fine of 375,000 euros for Penelope Fillon.

As part of the appeal before the French Supreme Court, François Fillon submitted two QPC. Only the one concerning paragraph 1 of Article 385 of the CPP was referred to the Constitutional Council. In this QPC, François Fillon criticized this article for preventing him from raising a ground of nullity regarding the investigative proceedings before the criminal court, even though he had not been able to find out about this argument prior to the closure of the investigative proceedings.

In the present case, the belatedly discovered argument concerned the statements made in 2020 (when the investigative proceedings were closed in 2019) by Eliane Houlette, prosecutor at the National Financial Prosecutor’s Office at the time of the investigation into the fictitious jobs, who told the parliamentary commission investigating the independence of the judiciary that she had received “enormous pressure” in 2017 regarding the fictitious jobs affair from the Paris Public Prosecutor, her superior, in particular regarding the procedural choice of the National Financial Prosecutor’s Office to conduct a preliminary inquiry as opposed to opening a judicial investigation.

Before the Criminal Court and the Court of Appeal, François Fillon had raised this argument as a means of invalidating the criminal proceedings, but this was dismissed by the appeal judges given that Article 385 of the CPP prohibited raising such a ground of invalidity after the close of the investigation.

Given that François Fillon had only been aware of these statements and their content after the close of the investigation, he had been denied the opportunity to raise the grounds of nullity based on Eliane Houlette’s statements. He therefore argued in this QPC that Article 385 of the CPP infringed his rights of defense and his right to an effective legal remedy.

II. End of the impossibility of invoking lately discovered grounds of nullity

The Constitutional Council recalled that the nullities that may be raised in the context of a judicial investigation are subject to a specific framework. In addition to the jurisdiction of the investigating chamber, they are subject to various time limits, in particular those set out in Articles 173-1 and 175 of the CPP,[5] which limit the possibility of raising nullities within a period of between one and three months from the last act (interrogation, interview, etc.).

The rules governing the nullity of judicial investigations are also governed by paragraph 1 of Article 385 of the CPP, which provides that, in the event of a referral for trial of the case by order of the investigating magistrate, the criminal court no longer has jurisdiction to rule on the nullity of the proceedings, which are in principle cleared during the course of the investigation. Thus, once the examining magistrate has issued a referral order, the parties can no longer raise any nullity concerning the previous proceedings.

According to the Constitutional Council, the impossibility of raising nullities subsequent to the referral order to the criminal court, and the absence of any derogation from this mechanism, particularly in the event of the discovery of an element subsequent to the referral order, constitutes an infringement of the rights of defense and the right to an effective judicial remedy provided for in Article 16 of the Declaration of the Rights of Man and of the Citizen of 1789.

In its decision of 28 September 2023, the French Constitutional Council declared unconstitutional the terms “except when referred by the investigating magistrate or the investigating chamber” in Article 385 of the French Criminal Procedure Code, on the grounds of infringement of the right to an effective judicial remedy and the rights of the defense.[6]

To avoid the excessive consequences that this decision could entail, and in application of Article 62 of the Constitution, the Constitutional Council has decided to postpone the repeal of these provisions until 1 October 2024.[7]

However, this decision of unconstitutionality will be fully effective as it can be invoked until the promulgation of a new law or, at the latest, until 1 October 2024, in current and future proceedings in the event that, as in the Fillon case, the grounds for nullity could not have been known before the referral order.[8]

These effects, designed to put an end to the unconstitutionality of paragraph 1 of Article 385 of the CPP, open up a whole new field of possibilities. While this declaration in no way prejudges the merits of the proceedings in the Fillon case, it does enable François Fillon, but also Nicolas Sarkozy and Thierry Herzog in the separate wiretapping case, who intervened in the proceedings before the Constitutional Council, to return to the competent courts and raise these grounds of nullity, leaving it up to those courts to rule on them.