The Express: Three years’ imprisonment, one of which is firm, and a three-year deprivation of his civic rights while the prosecution had only requested a suspended prison sentence, how do you explain such a conviction for Nicolas Sarkozy? Should we see in this an excess of zeal on the part of the magistrates?
Jean-Eric Schoettl: The conviction pronounced on May 17 by the Court of Appeal goes beyond the requisitions of the prosecution (three years in prison suspended) and confirms the sentence of the criminal court (three years in prison, two of which are suspended, and three years of disenfranchisement). Even if he is not imprisoned, a former President of the Republic is therefore banned from voting for three years and sentenced to spend a year of his life under house arrest under electronic surveillance. This verdict is not common, even for characterized offenses (such as assaults proven against public order agents during demonstrations). The Court of Appeal, like the criminal court before it, therefore pushes the cursor of severity very far. It’s already disturbing.
Which is even more so when we examine the merits of the case. I cannot find any characterization of the offenses of active bribery and influence peddling. The position of the judicial authority, since the start of this affair, has been built on the story of a corruption pact which seems to me to be fantasized: Mr Sarkozy asking Mr Azibert to intervene in his favor before the Court of Cassation in a procedure of limited scope (recovery of presidential diaries seized during a previous instance) in exchange for a magistrate’s post in Monaco.
It seems to me that all the pieces of the puzzle are missing, the assembly of which would sign a real pact of corruption or influence peddling: Nicolas Sarkozy does not ask Mr Azibert, either directly or through Mr Herzog, to intervene with his colleagues from the Court of Cassation; Gilbert Azibert does not intervene with his colleagues responsible for the affair of the presidential agendas, which moreover belong to a different chamber than his; Nicolas Sarkozy asks nothing of the Principality of Monaco in favor of Gilbert Azibert, who is not interested in the job; a post which is neither so prestigious nor so remunerative; Mr. Azibert’s appointment to Monaco did not take place, nor was any pressure exerted by the latter on his colleagues, according to them. The corruption pact imagined by the judge was therefore not consummated and the intention to commit it was not established either. No more than influence peddling.
“If this is a pact of corruption, I accuse myself of having committed countless during my career”
There is no smoke without fire will we reply? But first of all it is not on an impression (and even less on this presumption of permanent guilt which weighs on the former head of state) that the criminal judge must base himself. It is about the double certainty of facts and intentions. Then, what does this “smoke” reveal, in reality? At most, Mr. Azibert would have told Mr. Herzog of a “climate” at the Court of Cassation and that Mr. Herzog would in turn have informed Mr. Sarkozy of this “climate”. Excessive zeal of the friendship between the three men? Maybe. But not corruption pact. If this is a pact of corruption, I accuse myself of having committed innumerable ones during my career by exposing to students or outside interlocutors what was, on such and such a question, the state of spirit of the courts where I served.
Even putting things at worst and assuming (because nothing is established) that an “exchange of services” was once imagined to assess the chances of success of a request for the return of diaries, the condemnation to three years of deprivation of civic rights and the sentence of three years’ imprisonment, two of which are suspended (modified – if we may say so – by the “adjustment of the firm part of the sentence under the regime of house arrest under surveillance electronic”, to which, according to the judge, it is appropriate to submit the former President of the Republic) is it proportionate? Is it proportionate to impose the wearing of an electronic bracelet for a year on a former President of the Republic because the latter would have (this is a pure conditional) considered at some point to recommend to the Principality of Monaco (to carry out monthly vacations paid 350 euros) a personality who gave him his impression of a magistrate (unrelated to decision-making) on his chances of seeing a request for the restitution of diaries come to fruition…?
A former president condemned to wear an electronic bracelet and no longer vote: what are the symbolic significance and the consequences for the institutions of such a decision?
For years, Nicolas Sarkozy has been the bad object of the French intelligentsia, in particular of its state branch, to which the judges belong. With the vast majority of judicial magistrates, he has everything to displease: from the right, former Minister of the Interior with a strong speech, making security remarks and of populist invoice and, last but not least, having used an image felt to be offensive (the “peas”) to portray the judicial career. Not to mention the robust sincerity of his defense during the countless lawsuits of which he has been and remains the object.
There have been acquittals, but today, everything is happening as if the court formations were keen to justify the radical nature of the preliminary investigation and investigation phases. There is an odor of ideological and corporate settling of scores from this hunt. It is the judicial authority which asserts itself symbolically victorious in a tussle with the bad power. The fact that she is both judge and party calls out. But the message is resounding: the political class has better watch out.
How to guard against the irruption of the penal in politics?
There is no miracle cure, because this eruption is primarily attributable to a state of mind whose origin can be found in the famous harangue that Oswald Baudot, substitute in Marseilles and member of the Syndicat de la judiciary, address in August 1974 to his junior colleagues: “Be biased. To maintain the balance between the strong and the weak, the rich and the poor, who do not weigh with the same weight, you have to do it a little lean to one side…” This militant and interventionist Manichaeism is found in the “Mur des idiots” affair and in a number of judgments which, making untimely use of certain legal theories (state of necessity, assault), give wrong to the “system” (case of the dropouts of the portraits of the President of the Republic in Lyon, Vincent Lambert case, cancellation of the Huambushu operation in Mayotte).
“The message is resounding: the political class has better watch out”
Many magistrates believe they have a redemptive role: to “purify” the governing bodies. Politicians are a priori suspected of corruption, abuse of power and negligence. Hence the insistence on setting an example: an offense committed by a politician, even outside the exercise of his functions, is more serious than that committed by an ordinary criminal. Prosecutions, like sentences, express this asymmetry. The dream of Oswald Baudot is thus realized: to reverse the maxim with which La Fontaine concludes his fable on animals sick with the plague: “Depending on whether you are powerful or miserable, the court judgments will make you white or black”.
Would the condemnation of Nicolas Sarkozy in the wiretapping affair then have to be placed in a broader context?
The Sarkozy cases are not the only ones, far from it, to see the judicial authority demonstrate, against the politicians, in the name of the famous duty to set an example, of exceptional zeal and severity. With the affair of the parliamentary assistants of François Fillon, the judicial authority sealed a presidential campaign by marginalizing the debate on the issues of the election.
Since taking office, the current Keeper of the Seals has been vilified by a good part of the judiciary, which it expresses through the voice of its unions, which denounce, in its appointment, a “declaration of war”, or of a high judicial hierarchy that is not afraid to scold him publicly. These same high authorities weigh on the functioning of the Court of Justice of the Republic (CJR) at all stages of the surreal procedure initiated against the Minister of Justice and do not have the reflex to withdraw.
The same goes for the health crisis: on September 10, 2021, the CJR’s Investigation Commission indicts Agnès Buzyn on the charge of “endangering the lives of others” and places her under the status of witness. assisted for “abstaining from fighting a claim”. It suffices to refer to the definition of these offenses in the Penal Code to be convinced that neither of the two applies to acts (or omissions to act) that can be directly attributed to Agnès Buzyn (or to Oliver Véran, or previous and current Prime Ministers) in the management of the crisis. Regarding the “endangering the lives of others”, the Court of Cassation fortunately deflated the bladder on January 20. A ray of sunshine.
“The little music of “all rotten” consoles us for our frustrations as citizens”
Public opinion and the media also have their share of responsibility in this drift. Almost all of us take pleasure in the idea that our elected officials are unworthy of our votes. The little music of “all rotten” consoles us for our frustrations as citizens, for our disappointed dream of effective governance, for our personal political insignificance. In this sense, the importance given to the media and judicial chronicle of cases involving the political class reflects not a requirement for integrity, but a morose delight in the recurrent pillorying of public officials for an immorality that we hold to be congenital , the better to be able to immolate them at our convenience. Press and justice are the instruments of this collective desire, never completely satisfied, of lynching.
What questions does all this raise for the functioning of our democracy?
The cases involving François Fillon and Nicolas Sarkozy, the thunderous proceedings against Agnès Buzyn, Olivier Véran, Edouard Philippe and Eric Dupond-Moretti before the Court of Justice of the Republic, raise two questions relating to the criminalization of public life and, more generally , to the disturbances of the separation of powers affecting contemporary democracy.
The first concerns the constitutional bill tabled by the government in 2018, which applied common law to the criminal liability of ministers in the exercise of their functions, on the grounds that the current provisions, relating to the CJR, would be too favorable to the executive. When we see to what brutality and what indifference with regard to the proper functioning of the public authorities leads to the application of the current provisions, we dare not imagine what less “indulgent” provisions would produce.
The second question is structural. Justice wants to assert its independence? Very good. But does it need to camp a purifying counter-power and to fuel the crisis of confidence that our country is experiencing towards its State? The independence of justice is complete today. After the “Wall of idiots”, it is her impartiality that she should demonstrate.