France's recently-appointed justice minister Éric Dupond-Moretti is facing a formal complaint over claims that he has an unlawful conflict of interest as a minister.
The complaint was registered on September 30th by the Cour de Justice de la République (CJR), a special court which handles allegations against government ministers over acts they perform as part of their official duties.
This legal complaint follows Éric Dupond-Moretti's recent call for three prosecutors in the country's financial crimes prosecution unit the Parquet National Financier (PNF) to face disciplinary action.
That was in the wake of a report by Ministry of Justice inspectors into the behaviour of the PNF when it examined the phone records of prominent lawyers in Paris. This was as part of an investigation to discover who may have tipped off former president Nicolas Sarkozy and his lawyer Thierry Herzog that they were having their phones tapped – quite legally – as part of a criminal investigation.
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The inspectors' report in fact cleared the PNF of any improper behaviour but Dupond-Moretti – who was at the time was one of the prominent lawyers targeted by the PNF and who is a close friend of Thierry Herzog – insisted that three PNF prosecutors should nevertheless be disciplined over the affair.
The justice minister's stance has, however, angered judges and prosecutors.
And now Mediapart has learnt that on September 30th a complaint was registered by the CJR against the justice minister alleging that he unlawfully had an interest in an issue that he has responsibility for, contrary to Article 40 of France's criminal code.
The complaint - number 155/2020 - was made by Raymond Avrillier, an honorary deputy mayor of the city of Grenoble in south-east France. Avrillier is a dogged campaigner against corruption who played a key role in the conviction and jailing of former Grenoble mayor and government minister Alain Carignon, who was given a four-year jail prison sentence for corruption in 1996. The anti-corruption activist also triggered the investigation into claims that opinion polls were improperly and unnecessarily commissioned at public expense at the Élysée under the presidency of Nicolas Sarkozy. That case is due to come to trial in the future.
It is now down to lawyers on the CJR's petitions committee to assess whether the complaint is well-founded and, if so, potentially to launch an investigation into Éric Dupond-Moretti.
Meanwhile Dupond-Moretti has already faced controversy over his double conflict of interest.
The first of these conflicts concerns the fact that as justice minister he is calling for action against prosecutors from the PNF even though as a barrister he started legal action against those same prosecutors, accusing them of being “nutters” who used “the methods of spooks”.
His legal action and outburst followed the revelations in Le Point magazine in late June this year that back in 2014 the PNF had discreetly sought to discover the identity of the judicial or legal 'mole' who had illegally tipped off Thierry Herzog and Nicolas Sarkozy over the judicially-approved phone taps placed on them as part of the corruption case known as the 'Bismuth' affair.
The identity of that mole was never discovered.
When Éric Dupond-Moretti was named as justice minister by President Emmanuel Macron in July, he dropped the legal action against the “nutters” at the PNF, whose boss he had now become. But he used the report by the ministry's inspectors into the PNF's behaviour over the hunt for the 'mole' to justify his call for disciplinary proceedings against three prosecutors. This was despite the fact the report had found no unlawfulness or irregularities on the part of the PNF.
The second conflict of interest is centred around his close friendship with Thierry Herzog who will, along with Nicolas Sarkozy, stand trial for alleged “corruption” and “influence peddling” in the 'Bismuth' affair later this year. During this summer Paris Match magazine ran an article about Dupond-Moretti's holiday with his “old friend”, Thierry Herzog. Yet it is the PNF – which is under the justice minister's authority - that is prosecuting the case against Herzog and Sarkozy. Éric Dupond-Moretti dismissed any suggestion of a conflict of interest, and said his “privacy” should be respected.
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Yet it is this double conflict of interest that lies at the heart of Raymond Avrillier's complaint to the CJR. In his statement of complaint the anti-corruption activist states: “The magistrates at the PNF targeted by name and publicly in the press release by Mr Éric Dupond-Moretti, and in the proceedings that he is starting against them, are in fact the magistrates targeted by the complaint against persons unknown made by the lawyer Mr Éric Dupond-Moretti [editor's note, in the legal action he started before he became justice minister], and Mr Éric Dupond-Moretti could in this way obtain as a minister some information and even the punishment of these magistrates that are in his personal interest as a lawyer.”
The anti-corruption campaigner adds: “Following Mr Éric Dupond-Moretti's decision to start it, this administrative investigation, which implicates the PNF, also provides helpful arguments to Mr Thierry Herzog, a personal friend of Mr Éric Dupond-Moretti, concerning the PNF for his trial set for November 2020 … Mr Thierry Herzog thus has an interest in the administrative investigation Mr Éric Dupond-Moretti has opted for in relation to the PNF.”
The complaint states that this situation could meet the criteria for “unlawfully holding an interest” - a criminal law version of a conflict of interest. This is defined under Article 432-12 of the criminal code as “the act by a person holding public authority or charged with a public service mission or by a person with a public elected mandate, of taking, receiving or maintaining, directly or indirectly, any interest whatsoever in an undertaking or an operation in which they, at the time of the act, entirely or in part, had responsibility for ensuring the supervision, the administration, the liquidation or the payment”.
This offence is punishable by a maximum of five years imprisonment and a fine of up to 75,000 euros.
Mediapart asked the minister's office for comment but they had not responded by the time this article was published.
This official complaint to the CJR comes at the worst possible time for the justice minister, who currently has to deal both with the universal wave of anger caused by his actions against the PNF, and questions from the Élysée who are worried about his ability to quell the controversy.
In an extremely rare move François Molins, the chief prosecutor at the country's top criminal appeal court, the Cour de Cassation, spoke out publicly on the issue on September 30th. He told RTL radio: “It's not the judiciary that's in danger but the independence of justice.” He also criticised the mixing of different issues “which is the opposite of the principle of neutrality”.
This statement criticising the justice minister echoes the mood among magistrates and judges across France in recent days. The two main bodies representing the judiciary and prosecutors, the Syndicat de la Magistrature (SM) and the Union Syndicale des Magistrats (USM), have both gone on the offensive and have criticised what they see as “dangerous attacks” in a country governed by the rule of law. Meanwhile magistrates based in the court system in Paris have unanimously approved a statement declaring that they are worried about operations aimed at the “destabilisation and intimidation of the judicial institution … just before a particularly sensitive trial is held involving a former president of the Republic and someone asserted to be a close friend of the justice minister”.
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- The French version of this article can be found here.
English version by Michael Streeter