The right to reason emotion. Friday morning, the Constitutional Council decided one of its most sensitive human affairs of recent years. The wise men of the Montpensier Gallery did not give right to Gérard Fesch on the priority question of constitutionality concerning the mode of the judicial rehabilitation of condemned to death but, rare fact, opened the way to the legislator by affirming that this last "would founded to institute in favor of the rightful claimants of a person condemned to the death penalty a legal procedure tending to the restoration of his honor ” .
Gérard Fesch has been fighting for many years for the rehabilitation of his father Jacques Fesch guillotined in 1957 for the murder of a police officer. His exemplary behavior in detention and his mystical and spiritual journey during his years in prison before his execution was so intense and ardent that he inspired the young generations to the point that the Church addressed in 1987 a request for investigation for his beatification. Through his lawyers Patrice Spinosi and Éric Dupond-Moretti, Gerard Fesch leads another fight: that of the rehabilitation of his father. To this end, Maître Spinosi pleaded during the hearing before the Constitutional Council the idea of a rehabilitation which would be "a republican pardon" .
Judicial rehabilitation aims to promote the reclassification of the convicted person. It erases all the disabilities and forfeitures that result from a criminal convictionA semantic shift that the Constitutional Council refused to accomplish because he first recalled, "judicial rehabilitation aims to promote the reclassification of the convicted person. It erases all the incapacities and forfeitures which result from a criminal conviction and prohibits any person who, in the exercise of his functions, has knowledge of recalling their existence ” . In other words, by definition persons condemned to the death penalty and executed escapes this strict legal definition which is the subject of constant jurisprudence of the Constitutional Council.
Read also: Can Jacques Fesch, sentenced to death, be rehabilitated?
The Constitutional Council therefore rejected the argument of a breach of equality which would have been contrary to article 6 of the Constitution. In fact, during the proceedings, the lawyers pointed out the difference in treatment in terms of rehabilitation between death row inmates and others sentenced to criminal punishment.
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In French law, in fact, the rehabilitation of a convicted person is only possible by his heirs one year after his death (article 785 of the Code of Criminal Procedure), while the request for rehabilitation can only be made after a five-year time limit for convicted criminals (Article 786 of the Code of Criminal Procedure). Incompatible deadlines which for lawyers led to a breach of equality. But the High Court has held that "the difference in treatment which results from the contested provisions is based on a difference of situation and directly related to the subject of the law" .
On the other hand, the Constitutional Council recalling the abolition of the death penalty by the law of October 9, 1981 considers that “the legislator would therefore be justified in instituting a judicial procedure, open to the beneficiaries of a person sentenced to the penalty of death whose sentence has been carried out, tending to the restoration of his honor by reason of the pledges of amendment which he has been able to provide ” .
