Lunes, 17 de agosto de 2026
FRANCE
Marine Le Pen’s Gambit
Marine Le Pen has turned her criminal conviction into a presidential gambit. Oxford political scientist Giovanni Capoccia explains how her appeal to the Court of Cassation suspends enforcement of the judgment and allows her to campaign, while placing the judiciary under unprecedented political pressure. "Never before has a leading presidential candidate made judicial accountability a central issue of a presidential campaign," he writes.
President of Rassemblement National parliamentary group Marine Le Pen leaves after the verdict in the appeal trial.Alexis Sciard / Zuma Press / Europa Press
As the American experience shows, even established liberal democracies are vulnerable to attacks to the rule of law. France may soon follow in the track of the US. By announcing her candidacy in a prime-time television interview within hours of the Paris Court of Appeal largely upholding her criminal conviction, the leader of the Rassemblement National has placed one of Europe's oldest constitutional democracies on a path toward a direct confrontation between electoral politics and judicial authority.
The legal facts are straightforward. Le Pen was convicted of orchestrating a scheme to misuse European Parliament funds to pay party staff in France and personal aides. The Court of Appeal upheld the substance of the lower court's judgment and imposed a three-year prison sentence, with two years suspended and one to be served under house arrest with electronic monitoring. At the same time, however, it shortened her period of electoral ineligibility, allowing her to run in the presidential election in spring 2027.
Le Pen announced that she would appeal to the Court of Cassation, which, under French law, suspends the execution of the appellate judgment. Until the country's highest court rules, she remains free to campaign without serving her sentence.
Her candidacy inevitably places pressure on the Court of Cassation. Asked what would happen if the court upheld her conviction during the campaign, Le Pen’s response was a trope of contemporary populism: "The French people will decide." The familiar rhetoric of victimhood is equally evident. In the same interview, Le Pen portrayed her conviction as an unjust personal ordeal that mirrors the daily struggles of ordinary French citizens.
The Court of Cassation has already announced that it intends to hear the case on an accelerated timetable, aiming to rule by January 2027 rather than after the usual delay of a year or more. That would allow voters to know whether Le Pen's conviction had been upheld before the presidential election in April.
The court, however, does not fully control its own timetable. Le Pen's lawyers, who have repeatedly used procedural mechanisms to delay proceedings over the past several years, can challenge the constitutionality of the criminal provisions applied in the case. The court would then have to decide whether to refer the question to the Constitutional Council, which would itself have three months to rule. In that scenario, a final judgment would almost certainly not come until after the presidential election.
That prospect creates obvious incentives for institutional conflict. A President Le Pen would have every reason to weaken the authority and independence of the judiciary. If the legislative elections that would almost certainly follow produced a parliamentary majority for the Rassemblement National and its allies, the conflict could affect the constitutional balance of the Fifth Republic.
For years, Le Pen has pursued a strategy of dédiabolisation, moderating her image and rhetoric to make herself an acceptable candidate for the Élysée. Many have consequently come to regard her and her party as belonging within the arc républicain – the French term for the democratic mainstream. The way she started her presidential campaign – by affirming that “the people” will decide what independent judges should– should give them pause.
But the implications extend well beyond France. Donald Trump's return to power has already demonstrated that even long-established constitutional democracies are vulnerable to erosion of the rule of law. The French Fifth Republic may soon become the first major Western European democracy to confront a comparable challenge. Liberal democratic institutions ultimately depend on political actors accepting the constraints they impose. France undoubtedly possesses strong institutional and social safeguards to resist full-scale democratic backsliding. But the struggle to preserve the rule of law may prove long, and its outcome remains far from certain.
The legal facts are straightforward. Le Pen was convicted of orchestrating a scheme to misuse European Parliament funds to pay party staff in France and personal aides. The Court of Appeal upheld the substance of the lower court's judgment and imposed a three-year prison sentence, with two years suspended and one to be served under house arrest with electronic monitoring. At the same time, however, it shortened her period of electoral ineligibility, allowing her to run in the presidential election in spring 2027.
Le Pen announced that she would appeal to the Court of Cassation, which, under French law, suspends the execution of the appellate judgment. Until the country's highest court rules, she remains free to campaign without serving her sentence.
"The leader of the Rassemblement National has placed one of Europe's oldest constitutional democracies on a path toward a direct confrontation between electoral politics and judicial authority"At first glance, this appears to be little more than a legal manoeuvre to preserve her candidacy. In fact, it embodies a far riskier political strategy. It places France's highest court at the centre of a presidential campaign and raises the prospect of an unprecedented confrontation between the executive and the judiciary. Le Pen had another option. She had repeatedly declared that she would not run for president if sentenced to house arrest. She could have stepped aside in favour of her protégé and Rassemblement National president, Jordan Bardella, whose popularity now exceeds her own. She would almost certainly have retained considerable influence over a Bardella presidency. By deciding to run despite her conviction, she has dramatically raised the stakes of the 2027 election.
Her candidacy inevitably places pressure on the Court of Cassation. Asked what would happen if the court upheld her conviction during the campaign, Le Pen’s response was a trope of contemporary populism: "The French people will decide." The familiar rhetoric of victimhood is equally evident. In the same interview, Le Pen portrayed her conviction as an unjust personal ordeal that mirrors the daily struggles of ordinary French citizens.
The Court of Cassation has already announced that it intends to hear the case on an accelerated timetable, aiming to rule by January 2027 rather than after the usual delay of a year or more. That would allow voters to know whether Le Pen's conviction had been upheld before the presidential election in April.
The court, however, does not fully control its own timetable. Le Pen's lawyers, who have repeatedly used procedural mechanisms to delay proceedings over the past several years, can challenge the constitutionality of the criminal provisions applied in the case. The court would then have to decide whether to refer the question to the Constitutional Council, which would itself have three months to rule. In that scenario, a final judgment would almost certainly not come until after the presidential election.
"The Court of Cassation has already announced that it intends to hear the case on an accelerated timetable, aiming to rule by January 2027"Undoubtedly, the Court of Cassation could dismiss such a constitutional challenge within 24 hours if it considered it manifestly unfounded. But doing so during a presidential campaign would certainly provoke accusations – even louder than those that followed Le Pen’s first conviction – that unelected judges were attempting to eliminate the "people's candidate" by denying her legal rights. If the court subsequently upheld Le Pen's conviction, those attacks would only intensify.
What would happen if Le Pen wins the presidency
The greatest challenge, however, may come after polling day. Under the French Constitution, a sitting president cannot be prosecuted or have criminal judgments enforced during the presidential term. Should Le Pen win the presidency – as current polling suggests remains entirely plausible – proceedings against her would not be terminated, as happened in Donald Trump's case in the United States, but merely suspended until she leaves office.That prospect creates obvious incentives for institutional conflict. A President Le Pen would have every reason to weaken the authority and independence of the judiciary. If the legislative elections that would almost certainly follow produced a parliamentary majority for the Rassemblement National and its allies, the conflict could affect the constitutional balance of the Fifth Republic.
"A President Le Pen would have every reason to weaken the authority and independence of the judiciary"The combination of Le Pen's legal troubles, her electoral strength, and the semi-presidential nature of the Fifth Republic could therefore push France into an open confrontation between executive power and judicial authority. This is a distinct possibility given her decision to run after her conviction. Never before has a leading presidential candidate made judicial accountability a central issue of a presidential campaign. François Fillon, after becoming the subject of a criminal investigation in 2017, withdrew from a race that he had a good chance of winning. Other French presidents, from Jacques Chirac to Nicolas Sarkozy, have faced criminal investigations and convictions, but this has never led to a constitutional conflict with the judiciary. That may become one of the defining questions of the 2027 campaign. And if Le Pen were to win the presidency, France's constitutional order could come under severe strain.
For years, Le Pen has pursued a strategy of dédiabolisation, moderating her image and rhetoric to make herself an acceptable candidate for the Élysée. Many have consequently come to regard her and her party as belonging within the arc républicain – the French term for the democratic mainstream. The way she started her presidential campaign – by affirming that “the people” will decide what independent judges should– should give them pause.
But the implications extend well beyond France. Donald Trump's return to power has already demonstrated that even long-established constitutional democracies are vulnerable to erosion of the rule of law. The French Fifth Republic may soon become the first major Western European democracy to confront a comparable challenge. Liberal democratic institutions ultimately depend on political actors accepting the constraints they impose. France undoubtedly possesses strong institutional and social safeguards to resist full-scale democratic backsliding. But the struggle to preserve the rule of law may prove long, and its outcome remains far from certain.
Giovanni Capoccia
Profesor de Política Comparada en el Departamento de Política y Relaciones Internacionales de la Universidad de Oxford.
Catedrático de Política Comparada en la Universidad de Oxford. Trabaja sobre democracia, extremismo y retroceso democrático. Está ultimando un número especial de una revista coeditada sobre 'La lucha contra el iliberalismo en las democracias liberales'.
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