More than seven years after it first erupted, the so-called Bettencourt affair still has surprises in store. The latest is the unhesitating move by the French state to attempt to defend the indefensible before the European Court of Human Rights in the case that opposes it and Mediapart.
Following the decision by the French justice system to order the censorship of more than 70 articles published by Mediapart about the Bettencourt affair, we took the case before the ECHR to seek a ruling against France for having clearly violated Article 10 of the European Convention on Human Rights that concerns the right to inform. This summer the court received the response of the French government to our action.
That response (which under the rules of the ECHR can be consulted online via its registry) defies all reason. Prepared by the human rights department of the legal affairs division of France's Ministry of Foreign Affairs and Europe, it contradicts all the rulings by French courts which have now brought an end to the several judicial procedures concerning the cases prompted by the affair. All of these have at last recognised the truth behind the scandal, namely that, on the one hand, the failing health of the late Liliane Bettencourt was taken advantage of by people seeking to benefit from her immense wealth and, on the other hand, that without the revelations of the press, and notably those of Mediapart, these criminal schemes would have continued in secret.
That was the conclusion of the trials heard before the Bordeaux law courts, where all the cases were heard, both in the principal case which ended with heavy sentences pronounced against a number of those within Liliane Bettencourt’s entourage, and also in the cases targeting a number of journalists and which ended with our acquittal, and also the acquittal of the butler who carried out the secret tape recordings.
Those rulings are now definitive, and they cast ridicule on the vast censorship ordered against us by the Versailles appeal court in 2013. That ruling demanded that we must immediately delete all the published reports that cited the secret recordings, and that, if we did not comply, we would be punished with a fine of 10,000 euros per day for each text that had not been taken down. That ruling was sought in a lawsuit brought against us by Patrice de Maistre, the former wealth and business manager of Liliane Bettencourt.
In 2015, Patrice de Maistre was found guilty by a Bordeaux court of having taken advantage of Liliane Bettencourt’s mental weakness for his own personal gain. He was handed a 30-month jail sentence, 12 of them suspended, a fine of 250,000 euros and an order to pay damages, with interest, of 12 million euros. He did not appeal the sentence.
Meanwhile, alas, the Paris appeal court confirmed the staggering decision by the Versailles court and which was the result of a ruling by its civil chamber. Illustrating the numerous failures in the Bettencourt affair, in which one section of the justice system appears ignorant of what was established by another, that chamber had not been informed of the official medical expert reports that formally established the diminished mental faculties of Liliane Bettencourt and that she was affected by this condition at the time of our revelations in the early summer of 2010. As a result, the blindness of the Versailles ruling had the effect of covering up the failure to assist a person in danger – what is called ‘the duty to rescue’ – with the notion of the protection of privacy. The misinformed ruling provided in effect an alibi for a crime, lending its approval to a secrecy that in reality protected delinquents during the plundering of their victim’s wealth.
It is over this Kafkaesque absurdity, prejudicial to the public’s right to know, that we are seeking justice before the ECHR. Because of the so very numerous conflicts within the French justice system in the handling of the Bettencourt case, which included removing it from the jurisdiction of the magistrates of the Nanterre court, close to Paris, and placing it under the management of those in Bordeaux, one could have hoped that the French government would have subsequently recognised the state’s errors and agree to an amicable settlement. But not only has it not done so, it has surpassed its previous stance; with no hesitation in re-writing the history of the case, it now reasons, in order to reject our argument, as if the Bettencourt affair never was, on the pretext that we should never have made transcripts of the recorded conversations on the tapes nor should we have published them. Whereas it is in fact the tape recordings that the justice system has publicly recognised as being the proof of the crimes committed and which allowed it to bring convictions against those who committed them.
After admitting that “the publishing of the contentious articles contributed to a debate of public interest in the sense of the jurisprudence of the court”, the text of the French government’s response then constantly argues the contrary, to the point of defending the proposition that the principal actors of the Bettencourt affair should remain invisible in the media coverage. It even suggests that the “elements with regard to the health [of Liliane Bettencourt], the relationship with her daughter, her deafness and also her estate […] are unrelated to the debate of public interest to which the articles claim to contribute to”. Yet all these “elements” (such as the despoiling of Liliane Bettencourt’s daughter, her only child and heir, Bettencourt’s deafness and impaired mental faculties) were precisely at the heart of the affair, issues which led the French justice system to pronounce sentences against a section of Liliane Bettencourt’s entourage.
Taking this unreal reasoning to its limits, the French government has no hesitation in arguing that Patrice de Maistre, the billionaire’s wealth manager, should have remained “unknown to the public” – whereas he would become one of the principal defendants and convicted in the case. It even writes that “the mention of the name [Patrice de Maistre] was of no use to the public debate to which the articles claimed to contribute to”. Placing itself as the proponent of the secrecy of business dealing and wealth, the French government appears to consider that “the wealth alone” of Liliane Bettencourt was no justification for media interest in her case nor that investigations into her and her entourage be made public.
But it is in fact that same wealth, the tax fraud and evasion that surrounded it, and the financial self-interest it attracted from others, that were the principal stakes of the affair, and of course which made up the dimension of its just public interest. Claiming for Liliane Bettencourt the right to “a legitimate hope of protection of her private life”, which in this case was about protecting those who acted in her name while taking advantage of her weakness, the argument of the French government defies all comprehension when it cites our headlines in which appear the names of former French president Nicolas Sarkozy and his election campaign treasurer and former minister Éric Wœrth, both of whom are referred to in the tape recordings, arguing that “the very important media repercussions of the contentious articles participated in the violation of the privacy of the protagonists”.
In their reply to the submission by the French government, Mediapart’s lawyers, Jean-Pierre Mignard and Emmanuel Tordjman, underline their “consternation” at its silence with regard to the factual issues at stake in the Bettencourt affair. In their submission dated October 12th (and which can also be consulted online at the ECHR registry) our lawyers write: “Everything changes according to whether Madame Bettencourt has enjoyment of her cognitive capacities and an able psychological state, or whether she is incapable of understanding and decision-making due to the pathology from which she suffers […] the French government is silent to the fact that Madame Bettencourt was recognised to have been a victim of serious crimes committed by people among her entourage, of which Patrice de Maistre was one, which were revealed only thanks to the recordings made by her former butler.”
“It is incomprehensible,” the lawyers continue, “that the French government refers to the fact that Madame Bettencourt could call upon a “legitimate hope” for the protection of her private life when it is precisely her state of health and her deafness which allowed for the committing of these crimes. This observation is all the more unjustifiable when the French government refers to the status of Patrice de Maistre as a “collateral victim of the interest by the press in the wealth of Madame Bettencourt”, whereas in reality he partially dispossessed her of it.”
Observing that the French government thus becomes “de facto the spokesperson for the interests of Patrice de Maistre”, our lawyers underline that this leads it to defend a position that is contrary to fundamental rights: “To not say anything, to not let anything be known in order to perpetrate these crimes amid widespread ignorance [of them]. The perpetration of a crime can in no circumstances be given the status of fundamental rights.”
However, the ruling by the Versailles appeal court to censor Mediapart’s reporting of the affair was a violation of fundamental rights. “It is one of the most significant recent judicial acts of journalistic censorship that the French media have known,” said our lawyers. “The effect of the enactment of this ruling was to deprive the public of its right to know, of which it is the preferential creditor, about subjects contributing to a debate of public interest.”
The French government has until November 15th to reply in turn to the response of Mediapart, and we do not yet know what the delay will be before the ECHR rules on the case.
Beyond these legal episodes, the long saga of the Bettencourt affair demonstrates the extent to which establishing the truth is a battle, above all when this upsets interests that are as powerful as they are opaque, and when these are brought together to protect the illegitimate secrecy that protects their reprehensible actions. That is also the case in the vast Libyan political funding affair, first disclosed by Mediapart in the summer of 2011, one year after the Bettencourt revelations, and about which we recently reported fresh developments.
From one affair to another, the truth about each, and which struggles to be recognised, would quite simply never have seen the light of day without the tenacious reporting by an independent press.
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- The French version of this article can be found here.
English version by Graham Tearse