The words “electronic bracelet”, “corruption”, “closed prison” suddenly attached to the name of a former president of the French Republic: unpublished. The symbolic significance of the conviction of Nicolas Sarkozy – who announced through his lawyer Jacqueline Laffont, to appeal to the Court of Cassation – can only worry those who were already contemplating with apprehension the weakening of our democratic base, the mistrust growing against politicians.
Do justice and politics mingle dangerously? Pierre Egéa denounces “a form of legal impressionism” and rebels: “When we pull the thread of this strange judicial ball, we have all the elements of a case that has become state on an infinitesimal basis. It is likely that the citizens hardly find themselves there.”
The Express: The conviction of Nicolas Sarkozy to three years in prison, one of which is firm, strikes because it is unpublished. Never had a President of the Republic been sentenced to a prison term. How does this decision inspire you?
Pierre Egea: This conviction on appeal of a former President of the Republic says a lot about the way judges have taken up issues of corruption in the public sphere. The General Prosecutor’s Office had requested three years of suspended imprisonment against Nicolas Sarkozy. The formation of judgment goes further than the requisitions of the Advocate General.
“It’s hard not to see that we’re taking it up a notch”
The conviction of a former President of the Republic is not a first. Jacques Chirac was sentenced in 2011 for embezzlement and breach of trust, in the case of the fictitious jobs of the city of Paris, to two years in prison, suspended, against the opinion of the prosecution, which had requested the release. It’s hard not to see that we’re going up a notch. Nicolas Sarkozy is today condemned for corruption. Beyond the legal qualification, the word, heavy with meaning, can only strike a public opinion that is fairly distrustful of politicians. This judicial decision constitutes an additional stage in a movement which began in the 1990s when the proliferation of “affairs” led the public authorities to react by passing laws intended to moralize political life: law on the financing of political parties in 1988 then 1990, Sapin law of 1993 relating to the prevention of corruption and the transparency of economic life and public procedures, creation of the offense of favoritism integrated into the Penal Code of 1994. Closer to us, the Cahuzac affair , a real political earthquake, led in December 2013 to the creation of the National Financial Prosecutor’s Office (PNF) then, to the vote of the Sapin 2 law relating to transparency and the fight against corruption which created the French Anti-corruption Agency. The fight against corruption has become a priority and the PNF, a true judicial fortress, is its armed wing. The zeal of the PNF has never been denied, both in the Fillon case in 2017 where the speed of public action was unprecedented and in the present case where clearly, the judicial institution sought to demonstrate the fault with constancy that an evil spirit might call stubbornness.
Nicolas Sarkozy also pays for his bad relations with the magistrates…
It must be admitted that Nicolas had extremely difficult relations with the magistrates. The tumultuous history of his relationship with the judicial institution begins in 2007 when he likens them to peas. Naturally, the judiciary whose esprit de corps is strongly anchored did not appreciate the compliment. Let us remember the famous “wall of idiots” where the image of Nicolas Sarkozy was pinned in good place.
Several examples come to mind. Thus the convocation of Nicolas Sarkozy by judge Jean-Michel Gentil, who had also failed to warn the prosecution, in the Bettencourt case where he is indicted before benefiting from a dismissal.
Second example with the so-called “Elysée polls” affair. The former president could not be called into question since he benefited from the criminal immunity of the President of the Republic for acts performed in the exercise of his functions (article 67 of the Constitution). Failing to judge the former President of the Republic, it was possible to hear him as a witness and to confront him with his former collaborators. Obviously, Nicolas Sarkozy refused the thankless role assigned to him by the civil party and indicated to the president of the 35th correctional chamber that under article 67 of the Constitution, he would not defer to the summons. This position, interpreted by the president of the 35th chamber as an obstruction of justice, justified, according to him, the issuance of an arrest warrant, creating an unprecedented situation and a baroque figure, that of the witness who is asked to incriminate himself. . It goes without saying that the testimony was cut short, Nicolas Sarkozy forced to be present refused to answer the questions. It was obviously a testimony for nothing, a kind of legal hazing.
Moreover, and in general, note that the former president could not benefit from the leniency of the judges following his departure from the Élysée. A month after the end of his mandate, he was heard as an assisted witness and then indicted in various cases concerning facts prior to his election (case of the Libyan financing of the 2007 presidential campaign) but also acts committed during the exercise of the mandate but separable from the functions (financing of the presidential campaign of 2012) to say nothing of subsequent events. It is an understatement to say that in the case of Nicolas Sarkozy, the judicial authority did not tremble when implementing all the arsenal offered by the code of criminal procedure to ensure the effective prosecution of offences.
What is the specificity of the wiretapping case in which he has just been sentenced?
It is an astonishing affair, an unexpected continuation of the Bettencourt affair for which he also obtained a dismissal. Remember, at the time, Nicolas Sarkozy intends to recover the diaries which Judge Gentil had demanded during the judicial inquiry into the Bettencourt affair. He undertakes legal proceedings which go as far as an appeal in cassation. At the same time, a judicial investigation into the alleged Libyan financing of the 2007 presidential campaign led the investigating magistrate to tap Nicolas Sarkozy’s phone and that of his pseudonym Paul Bismuth with his lawyer, Thierry Herzog. Let’s move on to the major problem in terms of fundamental freedoms that constitutes listening to conversations between a lawyer and his client (the Court of Cassation will validate the process when the client is not indicted). The transcription of the conversations, moreover very allusive, shows that a magistrate at the Court of Cassation, Gilbert Azibert could obtain information on the procedure in progress and that the latter would not be indifferent to his appointment on secondment to the Principality. of Monaco. On this particularly tenuous basis, a new judicial investigation for corruption and influence peddling would lead to the dismissal of Nicolas Sarkozy, Thierry Herzog and Gilbert Azibert before the Criminal Court and then before the Correctional Appeals Chamber.
“With regard to legal qualifications, corruption and influence peddling, the bases are fragile”
There is in this file, an incredible construction: the telephone exchanges between the former president and his lawyer are all elements to be taken into consideration as long as they are dependent. As soon as they are discharged, they become suspects. Informed, the protagonists would have engaged in a mock exchange. The theory of the simulacrum will justify new investigations which will be carried out in vain to identify the “mole” who would have informed them that Paul Bismuth’s telephone was tapped.
With regard to legal qualifications, corruption and influence peddling, the bases are fragile. Corruption is based on a “corruption pact”, the proof of which must be reported. During the trial, there was only talk of a “bundle of clues” resulting from the close ties of friendship between the protagonists, the pact itself consisting in obtaining a favorable decision in return for a position in Monaco. None of the hearings of the magistrates of the criminal chamber made it possible to demonstrate the existence of a lesser attempt by Gilbert Azibert. The decision was also not favorable to the interests of Nicolas Sarkozy and the post in Monaco was not filled but, according to the judges, the wiretaps demonstrate the acts accomplished and the consideration offered. As for influence peddling, a separate offence, it would relate to the real or supposed influence exercised by Gilbert Azibert with the advisers of the criminal chamber or the general counsel. That the influence was not effective matters little from the point of view of qualification.
In short, given the proposed evidence resulting from simple wiretapping, the judges’ assessment was necessarily imbued with considerable subjectivity. The indignation of Maître Jacqueline Laffont, Nicolas Sarkozy’s lawyer at the statement of the judgment was not feigned. The conviction is based on simple, undemonstrative tapping. Corruption and influence peddling are not really proven, they are supposed from the famous “clusters of clues”. We are in a form of legal impressionism that I find very regrettable.
Case in the case, the hunt for the mole will lead to the exploitation of fadettes under conditions which will justify an administrative investigation into three magistrates of the PNF carried out by the Keeper of the Seals Eric Dupond-Moretti who is today referred to the Court of Justice of the Republic for illegal taking of interests.
Therefore, when one pulls the thread of this strange court ball, one has all the elements of a case that has become state on an infinitesimal basis. It is probable that the citizens hardly find their way there.
But isn’t it natural for politicians to be treated like ordinary citizens?
Of course, just as it is natural for corruption to cease! But we must not fall into excess of zeal, the moment when the investigation becomes inquisition. The almost obsessive search for the mole is very revealing in this regard.
I repeat, this case is causing a stir on an extremely tenuous basis. This bothers me because symbolically the repercussions are catastrophic: a former president, a major figure in French political life for the past thirty years, is condemned for corruption on something that is a matter of supposition, on presumptions, bundles of clues, a impression. I understand that the inquisitors rejoice but we tip into a world that leaves me perplexed.
The judge’s enormous leeway generates a very important subjectivity. We are witnessing a pendulum movement, politicians have long enjoyed great impunity and now they come up against a doxa, a dominant judgment of unfavorable presumption. We are in the era of generalized suspicion with regard to politicians. Taking into account the significant part of uncertainty which affected this file, the judges, sensitive to the spirit of the time, to the dominant doxa, could they relax? I hypothesize that they could not, without questioning their impartiality or their virtue.
One year in prison, three years without civil rights: what is the symbolic significance of such a sentence?
For Nicolas Sarkozy, as indeed for Thierry Herzog, the deprivation of civic rights and the ban on exercise are very heavy penalties. They are thus deprived of what constitutes them. To deprive a former President of the Republic, a major figure of the Republican right, of civil rights is a frontal attack on the person, a real punishment.