Three terms, two convictions (at first instance then on appeal), and… a new candidate! The mayor of Aix-en-Provence Maryse Joissains-Masini formalized it Friday: she is running for municipal elections on March 15 and 22.
And this, despite his conviction, in May 2019, to six months suspended imprisonment and one year of ineligibility for embezzlement of public funds and illegal taking of interests. Because the elected representative has filed a cassation power, which suspends the judgment.
No more automatic ineligibility
This is the case in France: a person convicted and declared ineligible can, sometimes, stand for election. The current government had planned to include in the law the obligation to have a clean criminal record to be a candidate. But this track had been abandoned by the majority, in July 2017. Being comparable to an “automatic penalty”, it could have been revoked by the Constitutional Council, had justified at the time Nicole Belloubet, the Minister of Justice. Many citizens are however in favor of it, and several of them had also submitted it to us as part of our “Parisian Lab”, during the Great Debate in early 2019.
Instead of the clean criminal record, parliamentarians have simply extended the list of crimes and crimes for which the judge can decide on a sentence of ineligibility. But there is nothing automatic since 2010, and this remains at the discretion of the magistrate alone. “The judge has more room for maneuver, but he still has to sentence. Most often, when the facts have nothing to do with the exercise of the mandate, no ineligibility is pronounced, ”notes Jean-Baptiste Perrier, professor of law at Aix-Marseille University. Even when this is the case, an appeal or cassation appeal suspends the application of the penalty, as for Maryse Joissains Masin.
Office resignation for mayor definitively sentenced
If he is already elected to the municipal council when he is sentenced, but he appeals or appeals in cassation, a mayor can also remain in office ... unless the criminal judge declares the sentence provisionally enforceable, according to a decision rendered by the Council of State in 2012.
On the other hand, if the elected official is definitively condemned, he “is immediately declared resigning by the prefect”, according to article 236 of the Penal Code. And a possible appeal against this administrative decision is not suspensive.
Without waiting for the prefect to decide, a convicted mayor has a short time to choose to resign on his own. François Pelletant, the mayor of Linas (Essonne), himself decided to leave office at the start of January after his final sentence of three years ineligibility and two years suspended prison sentence for fraud and illegal taking of interest.
Note that an elected official can also be declared ineligible by an administrative court, "more often than not during an electoral dispute, such as a rejection of campaign accounts or a dispute over the conduct of the election," notes Romain Rambaud , professor of public law at the University of Grenoble-Alpes and specialist in the electoral code. The mayor of Villemomble (Seine-Saint-Denis), Patrice Calméjane, definitively sentenced by the Council of State last November to four months of ineligibility for an error in his campaign accounts, had to immediately leave office.
Voters to decide
The former mayor of Levallois-Perret Patrick Balkany has finally decided to throw in the towel, a few months after his sentence to five years in prison for laundering tax fraud. At first, he had planned to campaign ... although imprisoned. Conversely, other candidates, convicted in criminal proceedings but without the penalty of ineligibility, intend to stand for re-election. Like, for example, the outgoing mayor of Firminy (Loire), Marc Petit, sentenced to six months suspended prison sentence for sexual assault.
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In other words, the only situation in which a candidate could not stand for election after a conviction is when he has had a definitively ineligible period, and the ballot falls before he has finished to serve his sentence. Former Minister Alain Carignon, who served twenty-nine months in prison and was also sentenced to five years of ineligibility in 1996 for corruption and misuse of corporate assets, was unable to stand in several elections. But he returned to politics in 2002, after five years had passed. And on March 15 and 22, he will be a candidate in Grenoble, a city he has long directed.
It remains to be seen what the attitude of the voters will be, between the desire to extend the mandate of an elected official whose record can sometimes be considered satisfactory, and the aspiration for more exemplarity in politics.
