“It’s a Christmas present for the corruptors,” denounced Anticor’s lawyer, Vincent Brengarth, on Tuesday, December 27. A few hours earlier, the anti-corruption association learned that the government had chosen not to renew the approval which had allowed it, since 2015, to intervene effectively in court in cases of breaches of probity.
Since the law of December 6, 2013 relating to the fight against tax fraud and serious economic and financial crime, anti-corruption associations can obtain, under certain conditions, an approval allowing them to become a civil party in corruption cases. violation of probity, particularly in the event of inaction by the public prosecutor's office, a body of magistrates hierarchically subordinate to the executive power.
When a complaint is dismissed, approval allows an association to become a civil party, which forces the prosecution to forward its complaints to an investigating judge and thus relaunch the investigations. The civil party also has access to the file. This is a safeguard against the risk of political burial in corruption cases where action by the prosecution could prove difficult.
This approval is granted by the executive power and must be renewed every three years at the request of the associations concerned.
Only three anti-corruption associations have so far benefited from this approval. Transparency International has been approved since 2014, and saw this authorization renewed in 2017, 2020 and July 2023. The Sherpa association obtained approval in 2015, renewed in 2019 and November 2022.
The Anticor association obtained its first approval on March 7, 2015 by the Minister of Justice Christiane Taubira. It was renewed by the Minister of Justice Nicole Belloubet in February 2018. On April 2, 2021, Prime Minister Jean Castex renewed the approval at the last minute: the decree was published an hour and a half before the end of the deadline.
In 2020, an internal crisis shook the association. The president, Elise Van Beneden, just elected but contested internally, called new elections, which she won in June 2020. Internal criticism did not stop, however, and the grievances of her opponents were published in the press.
It is in this deleterious context that the Prime Minister at the time, Jean Castex, must decide on a new approval. To qualify, an association must meet several criteria: have existed for at least five years, have sufficient members, demonstrate its experience in the fight against corruption and have internal functioning consistent with its statutes. The internal disagreements are notorious and the executive could have found a justification for the non-renewal of Anticor's approval, whose complaints did not spare Macronie (Richard Ferrand, Alexis Kohler, Eric Dupond-Moretti) . However, Jean Castex renews it.
But the decree is poorly written. A sort of “yes, but” which hardly suits legal acts: while renewing the approval, the text emphasizes the shortcomings – not all founded – of the association with the required criteria. The management of the association as its detractors agree, the Prime Minister's text is shaky, but the first has no interest in challenging it in court. Unlike the latter.
An Anticor member and a former member, banned by the association's ethics committee, filed an appeal with the administrative court. Both are represented by Franck Thiriez, lawyer for Richard Ferrand in the Mutuelles de Bretagne affair, and charged with a mission on the National School of Administration by the President of the Republic, Emmanuel Macron. The court ruled in their favor in June 2023. Contested by the association, the decision was confirmed by the administrative appeal court.
After the first instance judgment, Anticor filed a new application for approval. The decision should have fallen to the Minister of Justice, Eric Dupont-Moretti, who decided to step aside, that is to say not to deal with this file, because Anticor was involved in the procedure which took him before the Court of Justice of the Republic – from which he has since emerged exonerated. The decision should have been made by the Prime Minister, Elisabeth Borne, but she herself deported herself, entrusting the file to the Minister of Foreign Affairs, Catherine Colonna, who had until December 26 to make her decision. The absence of a response since this date constitutes an implicit refusal, without the ministry having justified its decision.
The association announced that it would challenge the implicit rejection of the approval before the administrative court. At the same time, it will appeal to the Supreme Court to request the annulment of the appeal decision concerning the 2021 approval.
Several political and financial cases currently in the hands of the courts could not have seen the light of day without the approval of Anticor, which allowed it to become a civil party in cases dismissed by the prosecution or to relaunch investigations " in slow motion.”
In recent years, Anticor has also become a civil party to relaunch the investigation into Alexandre Benalla's Russian contracts or the awarding of the 2022 Football World Cup to Qatar.
Created in 2002, Anticor is involved in 161 legal investigations in France. The end of this approval should a priori have no consequences for cases in which the association was already a civil party before April 2021, such as the Kohler, Alstom or Triangle Tower cases.
On the other hand, the complaints for which the association became a civil party after the contested renewal of its approval in 2021, canceled by the administrative justice system, could be affected. This is the case of the Russian aspect of the Benalla affair or the investigation into favoritism concerning real estate operations in L’Haÿ-les-Roses.
“In cases after April 2, 2021, we will no longer be able to have access to the investigating judge’s file or ask him for investigative actions, such as the hearing of a witness or an expert opinion,” the magistrate explains to Le Monde. Eric Alt, administrator of Anticor. For cases that will be judged before a criminal court, we will not be able to become a civil party at the hearing. This can be problematic in cases where the prosecution chooses to request the application of the law alone, without further requisition. »
Finally, for offenses which have been the subject of complaints by Anticor without the constitution of a civil party, a dismissal by the public prosecutor could put an end to any investigation, without the association being able to involve an independent investigating judge. . Eric Alt thus cites the complaint filed in June against », he regrets.
Even before the announcement of the refusal to renew Anticor's approval by the executive, the principle of this procedure was already the subject of criticism. “If, to be able to fight against corruption, we must not hinder the government, then we must remove from the government the power to grant approval,” fumed Elise Van Beneden in Le Monde in June.
Sherpa recalled Tuesday that she “has been calling for reform for years.” In January, the association denounced, in a long text, the vague criteria of the system and an issue by the Ministry of Justice, which "generates a significant risk of arbitrariness, undermines the legal security of structures and puts jeopardize the continuity of their activities.
In 2021, when Anticor struggled to obtain its renewal, two deputies, Bruno Questel (LREM) and Cécile Untermaier (Socialist Party), led a “flash” mission on the capacity of associations to take legal action. The elected socialist then proposed entrusting the High Authority for Transparency in Public Life (HATVP) with the competence to issue approvals.
On Tuesday, the former attorney general at the Court of Cassation François Molins agreed that it would be “healthier for our democracy if it was not the government which ruled on requests for approval but an independent administrative authority like the HATVP” .
In a column in Le Monde published in June, the secretary general of the Public Ethics Observatory, Raphaël Maurel, also supported this proposal, and estimated that “a simple reform of the 2013 law (…) would make it possible to neutralize this problematic situation for the future”.
