It is a big slap in the face for the Ministry of Justice and its holder Eric Dupond-Moretti.
This Friday, the Council of State suspended the possibility of using videoconferencing in criminal hearings, provided for by article 2 of the ordinance of November 18.
This provision, motivated by the health situation, had led to an outcry from lawyers, many of whom had seized the highest administrative court.
The Council of State considered that the text was "a serious and manifestly illegal attack on the rights of the defense and the right to a fair trial".
This decision further weakens the continuation of the trial of the January 2015 attacks, suspended for three weeks by the illness of one of the accused.
Although the ministry denies it, this text seemed to have been hand sewn to apply to the situation of this historic trial.
The order in fact provided for the extension of the use of videoconferencing before the criminal courts once the proceedings were over.
However, the special assize court which judges the Charlie Hebdo, Montrouge and Hyper Cacher attacks had just finished examining the facts before several defendants tested positive for Covid-19.
At this stage, the court must still hear the end of the pleadings of the civil parties, the requisitions of the national anti-terrorism prosecutor's office (PNAT), the defense pleas and the last words of the accused.
But due to the worsening state of health of Ali Riza Polat, who suffers from digestive problems, the debates have been suspended since October 31.
A measure unanimously denounced by lawyers
The use of videoconference would therefore have allowed the resumption of the trial.
Last Monday, the lawyers, both in the ranks of the civil parties and on the benches of the defense, took turns at the bar to criticize almost unanimously such a possibility.
The Council of State's decision proves them right.
"The seriousness of the penalties incurred and the role devolved to the private conviction of magistrates and jurors give a specific place to the oral nature of the debates", develops the interim order, referring to the specific case of assize trials.
“During the indictment and pleadings, the physical presence of the civil parties and the accused is essential, and more particularly when the accused speaks last, before the closing of the proceedings”, the text continues.
Videoconference in Assize Court: according to Éric Dupond-Moretti (@E_DupondM), "this order is not binding" pic.twitter.com/weRmqlmhqs
- BFMTV (@BFMTV) November 22, 2020
This decision is a personal snub for Eric Dupond-Moretti.
The former tenor of the bar, star of the Assize Court, had wet his shirt to defend this order hated by his former peers.
"We wait for justice to work, we must know what we want," he pleaded on the set of BFMTV.
In a press release, the ministry said it took note of the decision.
"This possibility was considered on an exceptional basis and for the limited duration of the state of health emergency", recalls the Chancellery, which adds that "the ministry remains mobilized alongside the courts to ensure the continuity of the public service of justice" .
President of the Association of Criminal Lawyers (ADAP), one of the organizations which had referred the matter to the Council of State, Me Christian Saint-Palais does not hide his great satisfaction.
"The Council of State has imposed the force of the principles which must guide the criminal trial", he welcomes.
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The whole question now is to know what will happen to the continuation of the trial of the January 2015 attacks. According to several sources, Ali Riza Polat's state of health has not improved significantly.
A new suspension seems likely.
Everyone seems to want to avoid the outright referral of the case because that would require starting the hearings from scratch.
And as trouble is flying in a squadron, the trial of the aborted Thalys attack also had to be interrupted this Friday: one of the defendants is sick, he vomited Thursday evening and had a fever on Friday noon.
It must now be tested for Covid-19.
Whether or not the debate continues will depend on the results.
His role does not appear to be central in this case, a severance of his case could be possible.
However, this possibility seems unlikely for the trial of the January 2015 attacks.
