« Parliamentarians and local elected representatives are, through their commitment and the mandate they hold, the representatives of national and local democracy. They occupy a fundamental place in the functioning of our institutions and any attack against them also constitutes an attack on the republican pact. “: it is with these vibrant words that Eric Dupond-Moretti, in his capacity as Keeper of the Seals, begins his circular of December 7, 2020 relating to the judicial treatment of offenses committed against persons vested with an elective mandate. .
Ironically, a little over two years later, the Minister of Justice has put himself in a position to be overtaken by his own circular. Indeed, by acknowledging having carried out, in the middle of the Hemicycle, two arms of honor in reaction to the words of Olivier Marleix, president of the group of deputies Les Républicains (LR), the keeper of the seals could expose himself to prosecution for contempt before the Court of Justice of the Republic. From a legal point of view, the demonstration is very simple.
To begin with, article 433-5 of the Penal Code provides that “Constitute an outrage punishable by a fine of 7,500 euros, words, gestures or threats, writings or images of any kind not made public or the sending of any objects whatsoever addressed to a person entrusted with a public service mission, in the exercise or on the occasion of the exercise of its mission, and likely to undermine its dignity or the respect due to the function with which it is invested..
Thus, for the offense of contempt to be characterized by a gesture, several conditions must be met: the public nature of this gesture; the fact that this gesture is addressed to a person in charge of a public service mission; the fact that this gesture is likely to achieve the dignity or respect attached to the function of the person who receives it; the fact that the quality of the victim is known to the author of the gesture; and the fact that the author is aware of the outrageous nature of his gesture.
in public
In this case, the fingers of honor or arms of honor, gestures whose nature leaves no doubt as to their outrageous character and the awareness of this character by their author, were committed in public on the occasion of a session of questions to the government.
Moreover, these gestures would have been addressed to a member in the exercise of his functions, which are obviously known to the minister. These functions can be attached to the category of “person entrusted with a public service mission”which the magistrate Vincent Delbos defines in the Dalloz directory dedicated to contempt as ” the person who, without having received a power of decision or command deriving from public authority, is responsible for performing acts or exercising a function whose purpose is to satisfy a general interest », which fits perfectly with the situation of parliamentarians.
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