French budget minister Jérôme Cahuzac earlier this month announced he was suing Mediapart for defamation after this website published an investigation revealing that he had held for a number of years, before he became a member of the government, a secret Swiss bank account. Since its first report, Mediapart has published further information (see links at end of page 2) including a tape recording in which a voice identified by witnesses in the affair as that of Cahuzac can be heard discussing the account. While the government stands by its budget minister, who denies ever holding a bank account abroad, the justice authorities have made no move to investigate the case, prompting Mediapart’s Editor-in-Chief Edwy Plenel to write to the Paris public prosecutor’s office on December 27th demanding an independent judicial enquiry. In this interview, Mediapart’s lawyer, Jean-Pierre Mignard, argues that the judicial inertia is the result of the long-standing submissive hierarchical relationship between the prosecutor’s office and the executive political powers, one which President François Hollande has previously pledged to bring to an end.
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MEDIAPART: Some have expressed surprise at Mediapart’s letter addressed to the public prosecutor’s office about the Cahuzac affair. Why is this initiative, if unusual, a legitimiate one?
Jean-Pierre Mignard: There is no reason for opposing the principle, or to take offence at it being sent. Monsieur Cahuzac, for his part, has already taken the matter up with the public prosecutor’s office, via the Minister of Justice. There is symmetry in the reaction. More than any individual citizen, but acting at the same level, a journal is a whistleblower at the service of the public interest. By writing this letter, you are following the logic of this all the way. You are assuming responsibility for the information you have published, and you are asking the justice authorities to take up the matter. The European Court of Human Rights in Strasbourg, and the criminal chamber of the [Paris] Appeals Court repeat this in their rulings. To argue the opposite would be tantamount to a change in political society.
But let’s get to the heart of the [different legal] procedures that have been launched. Monsieur Cahuzac complains that he has been defamed by Mediapart’s revelations, and he most certainly is. To maintain that there exists a secret bank account hidden in Switzerland with the aim of, even partially, escaping fiscal responsibilities is defamatory by nature.
It is for Mediapart, as it is for any publication, to provide the proof of the claims or to demonstrate it has acted in good faith. It should be noted that, in almost all legal cases of defamation, judges take into consideration the issue of good faith when deciding to dismiss cases against journalists, because proof is rarely there to be provided. I’ll return to the issue of proof later.
In jurisprudence, the criteria for dismissing cases [brought against journalists] are the legitimate aims in publishing the information, the seriousness with which an investigation has been carried out and, therefore, the contradictory nature of the published information, the absence of any personal animosity and the moderate language used in its presentation. If these four criteria are met by the publishing organ, it is judged to have acted in good faith. In other words, if what has been presented is sufficiently detailed, this suffices for the [defamation] case to be dismissed. It may appear strange, but a complaint for defamation can be thus concluded, with the plaintiff defamed while the journalist has argued that his work was carried out in good faith.
MEDIAPART: You mean that the existence of proof, in the clear and definitive sense of the term, is not an essential issue in a case brought against the press?
J-P M.: No, upon condition, all the same, that what is asserted is not plucked out of the air. For what does one mean by proof? Often, there is not the least proof at the start of an investigation. Any police officer would confirm that. One has only leads, and if there is more than one then this can be referred to as a series of leads. But this series of leads can be sufficient for charges to be brought and the holding of a trial. Put differently, it’s not the defamation suit brought by Monsieur Cahuzac which will shine a light on this affair. It is not an adequate judicial solution.
MEDIAPART: What, then, is the judicial solution?
J-P M.: It cannot come from Mediapart alone. Mediapart has no justification for launching a lawsuit, other than that of contesting the defamation action and responding in turn by bringing a case for improper proceedings.
However, I have heard your journalist colleagues demand you provide proof, like [Molière’s penny-pinching character in The Miser] Harpagon demanding his purse. But, as I said, it is often only at the stage of leads that affairs begin, rarely with proof. Now, it is not for Mediapart or any journalist to present proof – that would take the cake – it is for the justice authorities to find. Those who condemn Mediapart about this demonstrate either their ignorance or a notion of democracy that is in need of an intensive medicating dose of vitamins.
Only the justice authorities have at their disposal the far-reaching investigative powers that permit the discovery of the truth, within the respect of the rights of the different parties. It is simply now a case of deciding whether the public battle that has been fought until now is one that can set them in motion.
MEDIAPART: In other words, the complaint lodged by Monsieur Cahuzac and recognised by the public prosecutor’s office is not something that will lead to the discovery of the truth?
J-P M.: No, it is an action for defamation with the aim of satisfying the demands of one of the parties involved. There is no procedure [underway] to investigate the facts themselves, rather a procedural formality which aims only to verify whether the authors of the articles are identifiable, and whether they have an address where an eventual summons against them can be sent. It therefore appears that no-one in this case wants to move quickly, nor has an interest in doing so.
MEDIAPART: There is a need, then, for a separate legal procedure to be launched?
J-P M.: To discover the truth, definitely, beyond your revelations and the denial of Monsieur Cahuzac. For this, the public prosecutor’s offices in Paris or Agen, the two which have jurisdiction, must open a preliminary investigation into the leads that have already been produced in public.
MEDIAPART: Are these leads sufficient to prompt an investigation?
J-P M.: I don’t know the fine detail of the case but, like millions of people, I have followed the saga of the [voicemail] recording of what Monsieur Cahuzac is supposed to have said and which was made public here [at Mediapart], which was at first dismissed out of hand by him and which was later authentified by a former head of the bar in Agen, a political opponent of Monsieur Cahuzac, and then [also] by a former investigating magistrate, Monsieur [Jean-Louis] Bruguière, who was himself a [general election] candidate who stood against Monsieur Cahuzac.
He [Bruguière], and it’s quizzical, showed so little curiosity that he claims he didn’t find out what was on [the recording], and destroyed it. Monsieur Bruguière suffered a certain number of setbacks in the investigations that he was in charge of. But if he, out of a moral sense, destroyed leads or proof, then some of his failures become, in retrospect, explicable.
With this amount of muddle, and because the issues are grave, the public prosecutor’s offices in Paris or Agen need to take over and to demand that these two people give the recording [and copies] to the justice authorities, and also to question them. It is, it seems to me, the least that one can ask for.
Instead of calling upon Mediapart to provide proof and, while doing so, attacking it, as I read here and there in very hastily prepared [media] commentaries, your colleagues should address their calls for action to the public prosecutor’s offices. In a democratic society, there exist rules of law and it is judges, and notably investigating magistrates, and they alone, who are competent to evaluate the solidity of proof or the existence of leads. For judges, not a gathering of journalists.
The opening of a preliminary investigation does not mean Monsieur Cahuzac has done wrong, rather it is the minimum required to satisfy the curiosity of the justice authorities [into the affair] at the stage we’ve reached today. Afterwards, it will be for the public prosecutor’s office to make an appreciation [of the evidence]. Either it continues the investigation, or it calls for the opening of a formal judicial investigation, or it dismisses the case because there was nothing tangible or sufficient.
MEDIAPART: In its letter to the public prosecutor’s office, as in an earlier editorial it published, Mediapart has suggested that an independent magistrate be placed in charge of this investigation. Just such a magistrate is already active in an ongoing investigation into the activities of the UBS bank in France, and allegations of tax evasion. Instead, you suggest a preliminary investigation be carried out by the public prosecutor’s office, which is hierarchically dependent, or subservient, to the Minister of Justice. Why?
J-P M.: I am entirely in agreement with your letter, except for one point. It is too early to call for the magistrate in charge of the UBS case to be involved. The justice authorities must first gather together the leads. And then the public prosecutor decides, either to pass the affair on to the magistrate with a demand for further investigation, either he opens a separate investigation, meaning the appointment of a different magistrate, either the case is thrown out.
MEDIAPART: Why have the justice authorities not opened, in the interest of getting to the truth, an investigation into the leads such as that you have just referred to?
J-P M.: Because everybody is in an awkward position. The government is because it is standing behind its minister on the principle of solidarity, although this principle all the same has its limits. On top of that, it has promised it will not interfere in the affairs of justice. Now, the Minister of Justice has involved the public prosecutor’s office, as she is allowed to by a special procedure used by Monsieur Cahuzac. But, on this point, I am not at all sure of the validity of the procedure undertaken by the Paris public prosecutor’s office in this case.
The justice minister cannot [by law] take legal action following an approach by one of their colleagues, or former colleagues, unless the person in question has been defamed in the framework of their functions or an act relating to their functions. In this case, the function has as much protection as the individual. This, it seems to me, is not the case here. Because in question are not Monsieur Cahuzac’s actions as a minister, but events that, if they were established, concern the responsibility of an individual. The exercise of his functions is not in question, but rather the private individual that he is.
We can see very well, as I said, that nobody’s in a hurry in this case, because Monsieur Cahuzac, whose lawyers are competent, could have reacted by filing a suit against the publication [online by Mediapart] of the recording [of the conversation], demanding, through summary proceedings, its withdrawal, and so on. Whereas there’s been nothing of the sort. It even appears that he had to file a second complaint, no doubt because of this imbroglio regarding the status of minister and private individual and, as a result, the admissibility of the procedure itself.
MEDIAPART: Mediapart did its job of investigation, which it is ready to account for within the framework of the laws governing the press. Jérôme Cahuzac sticks to his denial, while the government sits it out, biding time. Other media follow the scoreboard, as if the whole thing was a duel. And all the while, the justice authorities are silent, as if paralysed. Do you not think that the Cahuzac affair is something of a textbook case regarding the justice system and its democratic role?
J-P M.: I will be very clear. The tie between the executive political powers and the public prosecutor’s department must be cut, and quickly.
We find ourselves today in an absurd situation that cannot continue. We have an executive, the president and the government included, which, unlike its predecessor, clearly does not have an interventionist approach, but which finds itself all the same forced into intervening to a minimum degree. The public prosecutor’s offices which should open an investigation […] into the issue that is filling the front pages of the newspapers, aren’t doing so. Maybe they are waiting for a phone call from the Minister of Justice – who, for reasons of non-interventionism, won’t call, either to say one thing or the other. That is the honourable attitude of the minister and her ministerial cabinet. I respect and share that, but their goodwill is not, or is no longer, enough. The proof is there to see.
The law must change. Fast. Behind the public prosecutor’s offices are two centuries of submission to the orders of the executive political powers, and a behavioural effort is required to change the paralysis that they display when faced with cases of power and money. Let’s not despair, I know a lot of young public prosecutors who are waiting for just that.
There is no other solution than to set about enacting, and quickly, the promise made by President Hollande to modify the 1958 organic law on the status of public prosecutor’s offices. There could be a large consensus found through a congress [on the issue] of the two parliamentary houses. The opposition should see its interest in this. It would be a major reform. It has been promised.
The members of public prosecutor’s offices should be free and independent and only submissive to the law, appointed by the High Council of the Magistrature to which they are answerable. This is the application of the principles used for distinguishing a magistrate from a civil servant in the justice system as set out by the European Court of Human Rights.
It is for them to breathe the air of the high seas of freedom, which is neither a state of disorder nor, even less so, one of iniquity. What we see today is a muddle which benefits no-one. A bit more democracy and [application of the values of the French] Republic would do us the world of good. It is, after all, for that reason that we changed presidents. Come on, courage be with you.
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For more on the issues raised in this interview, see links below:
The French budget minister and his secret Swiss bank account
French budget minister caught on tape discussing his secret Swiss account
Revealed: the man who handles the budget minister's own personal fortune
The budget minister and his Swiss bank account – the unanswered questions