By Julien Jeanneney, Professor of public law at the University of Strasbourg and member of the University Institute of France
What was the starting point of your joint reflection?
It all starts from an experience shared by two lawyers from our group – Jacqueline Laffont before the senatorial commission devoted to “the Benalla affair” in 2019, and Yann Utzschneider before that on bottled water in 2025. They measured the determination of parliamentarians to ignore the parallel criminal proceedings in progress and the risk, for their clients, of self-incrimination by answering their questions – like the difficulty, for the lawyer, of having his presence accepted. From there appeared to them the need to better articulate the control function of Parliament and the rights of those interviewed.
The urgency is all the greater as commissions multiply, under the combined effect of the “drawing right” of minority groups and political fragmentation: since July 2024, the National Assembly has created nineteen, the Senate eight.
In principle, a commission cannot be created if criminal proceedings concern related facts, nor can it continue its work if such a procedure is initiated. We therefore understand that the French legislator did not feel the need to guarantee, before these commissions, the rights of the defense. The whole difficulty comes from the growing tendency of parliamentarians to evade this rule, by duplicating the criminal investigation of a commission bearing, under another name, on the same facts.
Before a judge, the litigant has rights: to remain silent, not to incriminate himself, to be assisted by a lawyer. In front of parliamentarians, nothing of the sort. He takes an oath, must tell the whole truth, under penalty of perjury. His remarks are public, filmed, archived online. Thus he finds himself faced with an alternative so neither branch is satisfactory. If he remains silent, he risks being prosecuted for refusing to appear. If he speaks, he risks providing the judges with the elements that will convict him. The constraint is explicit: during a recent hearing, the president of a commission mentioned perjury “including by omission”.
We have documented these situations from a historical, theoretical and practical perspective. We conducted a comparative analysis covering five other major democracies – United Kingdom, Germany, Italy, Spain, United States – and the European Parliament. We also interviewed parliamentarians-lawyers who have sat on such commissions, to compare our analyzes with their experience.
The diagnosis, upon arrival, is gloomy: the legal regime resulting from the organic ordinance of 1958 relating to the functioning of parliamentary assemblies is both ignored by those who should respect it and structurally insufficient.
You interviewed three lawyers who, as deputies, participated in such commissions of inquiry. What have they brought to your thinking?
Their gaze is enlightening. André Vallini chaired, in 2006, the commission on the Outreau affair; Raphaël Gauvain was a member, in 2019 and 2020, of that on the attacks on the Paris police headquarters; Sacha Houlié was rapporteur, in 2020, of that on the independence of the judiciary, then vice-president, in 2026, of that on the vulnerabilities of the digital sector. All of them, because they are also lawyers, have experience of both roles.
Their analyzes confirm, from within these commissions, the deviations that we had observed from the outside. André Vallini recalls the extent to which the presence of cameras – the Outreau commission having been the first to be filmed and broadcast live – changed the behavior of deputies, now concerned about the perception of their interventions. Raphaël Gauvain recognizes that some parliamentarians come to oppose big bosses for their moment of glory on social networks. Sacha Houlié notes how the trivialization of these commissions has been accelerated by the arrival, in the Assembly, of parties which maintain “militant confusion in the separation of powers”. When such a tool of political control becomes an instrument of visibility, those summoned risk suffering the consequences.
Their opinions differ on the remedies. André Vallini fears that the presence of a lawyer will blur the boundary with the court. Sacha Houlié pleads for such a presence only in cases where an encroachment on a criminal procedure has been noted. Raphaël Gauvain judges, conversely, that it is appropriate to uphold the rights of the defense without hesitation, this deviation now being inevitable.
These differences reinforced two convictions: a better guarantee of the rights of those interviewed would not weaken parliamentary control, quite the contrary; the legitimate concern to preserve the autonomy of assemblies must encourage us to favor reasonable solutions, within the reach of parliamentarians themselves, without upsetting their powers.
What are the main proposals in your report?
They deploy in two directions. Under constant law, firstly, it would be a question of stopping ignoring the existing legal framework. Article 6 of the organic order of 1958 prohibits the creation of a commission of inquiry into facts giving rise to legal proceedings, or the continuation of its work if these proceedings are triggered en route. This rule is regularly circumvented by tortuous titles intended to avoid explicitly targeting the coveted facts. When “the Cahuzac affair” broke out in 2013, it was a commission on “possible dysfunctions in the action of the government and state services” which was created – however the name of the resigning minister appears from the first paragraph of the report, which should be systematic, is sometimes neglected when it takes place; its conclusions are sometimes ignored. Respect for the current framework would already be enough to correct many deviations.
Beyond that, parliamentary self-discipline having shown its limits, more structural reforms are necessary. Inspired by several contemporary democracies, we propose: to extend the prohibition of accumulation to the preliminary investigation, which concentrates the majority of prosecutions; to enshrine the right to silence, the right not to self-incriminate and the right to the assistance of a lawyer; to give the person being interviewed the option of requesting a closed session or, at the very least, non-broadcast of their hearing; to impose prior notification of rights and transmission in advance of the topics covered.
None of these proposals require constitutional revision. None subjects the acts of the assemblies to the control of an external judge: parliamentary autonomy remains complete. None, above all, weakens the control function of Parliament. A better-structured investigation gains authority, its conclusions escape the criticism of the prosecution, its report is more convincing. It is because we value parliamentary control that we propose to back it with guarantees worthy of great liberal democracies.
Find here the report of the Paris Bar devoted to the rights of defense before parliamentary commissions of inquiry, to which Jacqueline Laffont, Camille Potier, Capucine Briand, Minh Thu Vu Ngoc, Anaé Fouquet-Chevalier, Yann Utzschneider, Emmanuel Mercinier Pantalacci, Rémi Lorrain, Léon Del Forno, Aurélien Disalvo and Julien Jeanneney.
