(SCC0039)

Written evidence submitted by France (Senate)

Questions:

1. What powers do investigative committees in your Parliament have to summon witnesses and call for the production of documents? Are these powers set out in legislation or in standing orders?
2. Are there any recent examples from your Parliament of contempts relating to investigative committees, including non-compliance of witnesses summoned to appear before a Committee?
3. What sanctions are available to your Parliament in cases of non-compliance or other contempts on the part of witnesses?
4. What rules and guidelines do you have to ensure witnesses and potential witnesses before select committees are treated with fairness and due respect?
5. What is your assessment of the effectiveness of your Parliament’s powers and sanctions to deal with contempts?

Answer from the French Senate

Our answers to your previous questionnaire #3266 from December 2016 remain valid. Please refer to this document as we will not rehearse it entirely but provide some more clarifications.

The legal framework for committees of inquiry was set out in 1958 as part as the establishment of the Fifth Republic in the legislative act relative to the functioning of parliamentary assemblies (Art. 5 ter & 6, Ordonnance n° 58-1100 du 17 novembre 1958 relative au fonctionnement des assemblées parlementaires). It provides rules for the creation of committees of inquiry, their remit, their powers, general proceedings and criminal sanctions against specific offences. All the rules are common to the National Assembly and the Senate, as both chambers enjoy the same powers in his matter.

Legal literature considers committees of inquiry as quasi-judicial bodies since :

-          they enjoy powers of audit and monitoring on documents and on-site;

-          they can summon anybody to testify before them and require the use of public force against reluctant witnesses;

-          witnesses (over 16yo) must take an oath before testifying;

-          offences are of a criminal nature similar to those relative to judicial testimonies (same provisions of the criminal code);

-          witnesses can be accompanied by a legal counsel[1].

Sanctions (maximum) :
- failure to appear before the committee of enquiry, refusal to give evidence or refusal to take the oath : 2 years’ imprisonment + 7500 € fine + deprivation of civil rights up to 2 years
- refusal to disclose documents : 2 years’ imprisonment + 7500 € fine + deprivation of civil rights up to 2 years
- perjury : 5 years’ imprisonment + 75 000 € fine
- aggravated perjury (against money…): 7 years’ imprisonment + 100 000€ fine
- witness tampering : 3 years’ imprisonment + 45 000 € fine

These sanctions are not in the hands of the committee or the chamber. The offence triggers a judicial inquiry at the request of the committee’s chairman (or the Bureau of the Senate after the release of the final report): the matter is referred directly to the Prosecutor General and then a criminal lawsuit is initiated.  The Prosecution Service decides whether an indictment should be initiated or not.  Criminal sanctions may only be imposed by a tribunal.

The last example of referral to the Prosecutor General dates from March 2019 when the Bureau of the Senate laid charges of perjury before a committee of inquiry against 3 witnesses, including the Chief of staff and a former aid of President Macron. It was related to the so-called “Benalla Case” where an aid of the President was accused of impersonating a police officer and benefiting from ”free-ride” treatment on several occasions.

A modification of rules about proceedings or sanctions does not appear necessary.

September 2020