We do not yet know if the court's president, Dominique Pauthe, has just delivered the final or penultimate judgement of the Cour de Justice de la République (CJR) or whether this institution, created in 1993, still has a few years left in it. On two occasions already, in 2013 and 2019, there have been plans to scrap this special court, whose role is to try government ministers accused of wrongdoing while in office. But on each occasion the measure was shelved.
The most recent judgement from this special court came on Thursday March 4th 2021 when it acquitted former French prime minister Édouard Balladur. He had been accused of complicity in the misuse of corporate assets over the sale of submarines to Pakistan and frigates to Saudi Arabia between 1993 and 1995, when Balladur was prime minister in the final years of François Mitterrand’s presidency. This case became known as the 'Karachi affair' (see some of Mediapart's background here and here). The CJR, meanwhile, found Balladur's defence minister from that period, François Léotard, guilty of a similar charge and gave him a suspended two-year prison term and a fine of 100,000 euros.
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These verdicts at least have the virtue of providing further evidence of the in-built partiality of this institution, which is designed more to show indulgence to politicians than to judge them. At the Karachi trial the two accused exhibited open scorn for the judges' questions and even refused to appear in court when the prosecution summed up its case and made its final pleas for conviction and sentences. Nor did either man deign to turn up to court for the delivery of the judgement on Thursday March 4th.
By allowing a dozen Parliamentary 'judges' – six each from the National Assembly and the Senate – and three professional judges to vote by secret ballot on whether to acquit or convict a minister facing charges relating to their duties in office, we have enshrined inequality in the law.
The acquittal of Édouard Balladur and the suspended sentence given to François Léotard on Thursday vividly show that. One of them was not punished at all and the other was punished leniently at the end of what was an extraordinary case. The original investigation into the Karachi affair and the subsequent trial that took place in a criminal court showed that the ministers and their teams had introduced middlemen into arms deals between 1993 and 1995. And that two state-run companies handed these middlemen 160 million euros in secret commissions. This money was then siphoned off for covert political funding, in particular Balladur's own, unsuccessful, presidential bid in 1995.
The seriousness of these facts led the criminal court in June 2020 to impose five-year prison sentences, with two years suspended, on the two ministers' aides; Nicolas Bazire, who was Balladur's ex-chef of staff, and Renaud Donnedieu de Vabres, Léotard's former policy advisor. Those very same facts led the Cour de Justice de la République (CJR) to acquit the former prime minister and give a suspended jail sentence to his defence minister.
The record of justice by politicians for politicians handed out during the court's 28 year history speaks for itself. In 1999 the CJR acquitted the former prime minister Laurent Fabius and the social affairs minister Georgina Dufoix in a case involving HIV-contaminated blood. It convicted junior health minister Edmond Hervé for a “breach of duty of safety and care” though it did not give any punishment. In 2004 the court found the former junior minister for the disabled, Michel Gillibert, guilty of “defrauding the state” and gave him a three-year suspended prison sentence. In 2010 Charles Pasqua, who appeared before the court in three cases arising from his time as interior minister, was given a one-year suspended jail term for “misuse of assets” involving a weapons agency at the ministry. In 2016 Christine Lagarde, who had been finance minister under President Nicolas Sarkozy – and who was subsequently managing director of the International Monetary Fund and who is currently head of the European Central Bank – appeared before the CJR over an arbitration process that had ruled in favour of businessman Bernard Tapie. She was found guilty of “negligence” but the court handed out no sentence.
There have thus been acquittals, convictions with no punishment and suspended sentences. Whatever their personal politics the political judges, who are chosen according to the particular Parliamentary arithmetic of the day, are collectively inclined to spare their colleagues.
The CJR has its own scale of punishment. The proof of this came in the Balladur trial and the closing speech by the prosecutor general François Molins, as he outlined what the prosecution thought the sentences should be. Though he strongly backed the lengthy investigation from beginning to end, taking the view that the “elements in the case leave no room for doubt”, the prosecutor called for Édouard Balladur to be given a one-year suspended prison sentence upon conviction and for François Léotard to be handed a two-year suspended jail term. He justified this leniency because of how long ago the events had taken place but also, and openly, because of the “character of the defendants”, pointing out that “Mr Balladur spent more than fifty years serving the state”.
So while holding high office might usually be considered as an aggravating factor in such cases, here it was being held up in Balladur's defence. The prosecutor general's call for lenient sentences also came across as a repudiation of the tougher sentences meted out by the judges in the criminal trial of these ministers' aides.
The CJR has already shown in the past its very different approach to that of standard criminal trials. In 2010 it acquitted former interior minister Charles Pasqua for “passive corruption” in a case involving the Annemasse casino in the French Alps. This was despite the fact that, based on the very same investigation, a criminal court had in 2009 convicted the two men accused of corrupting Pasqua, Casino boss Michel Tomi, and his daughter Marthe Mondoloni, of “active corruption”.
Separating the actions of which ministers are accused from those of their aides in this way is not a tenable position. In the Balladur case, the case went to the CJR after the investigating judges Renaud Van Ruymbeke and Roger Le Loire said in February 2014 they were not the competent authorities to deal with any possible “accusations” against the two ministers. Instead the two judges, who had wrapped up their investigation, said that the case involving the former ministers should be referred to the special court. Though judges Van Ruymbeke and Le Loire had carried out numerous enquiries in relation to Balladur and Léotard, neither man was questioned. Four months later the judges sent the rest of the accused – minus the two ex-ministers – for trial at a criminal court.
Meanwhile Édouard Balladur and François Léotard were finally questioned in May and July 2017 by the investigations section of the CJR. Various witnesses were also interviewed but the aides who worked directly for the former ministers – and who had been sent for trial at a criminal court - were not questioned. Instead the CJR's investigators were happy simply to consult their statements from the earlier criminal investigation.
During the Balladur trial the court seemed unperturbed by the refusal of these former aides to appear in court, even though they were key witnesses. This was despite the fact that the court could have ordered them to appear. Both Nicolas Bazire and Thierry Gaubert, a former aide to the budget minister of the day Nicolas Sarkozy, declined to appear on a matter of principle. Bazire's lawyer said that his client had appealed against his conviction in the criminal trial in June 2020, and that “as a defendant” in his own appeal, he could not answer questions “as a witness” before the CJR.
The CJR accepted this, even though Bazire had also sent the court a letter laying out a new theory that he had not advanced up to then. This was that, rather than coming from secret arms deal commissions as claimed, the cash used to help fund the Balladur election campaign in fact came from the 'special funds' - cash available for state emergencies or covert operations - to which French prime ministers at the time had access. This claim proved something of a damp squib, and no proof was supplied to back up the theory.
Meanwhile the absence of key witnesses – another, Renaud Donnedieu de Vabres, was ill – forced the presiding judge Dominique Pauthe to set aside a day of the hearing to the reading out of the evidence they had given during questioning as part of the original criminal investigation in 2011 and 2012. This meant that the former ministers never had to face their aides' evidence in person.
Édouard Balladur and François Léotard themselves defied the court by refusing to appear when the prosecution gave its final summing up. During the hearing the former prime minister recalled, somewhat bitterly, his role in setting up the CJR when he was in office. It was established during the second so-called political 'cohabitation' – where a president of one political persuasion governs with a prime minister and government of a different political hue – by the constitutional law of July 27th 1993. This replaced the previous high court of justice with the Cour de Justice de la République (CJR). The reform stemmed from proposals made by a constitutional reform committee set up in 1992. The former prime minister said he had favoured the presence of judges from the highest appeal court, the Cour de Cassation, in the new CJR. In any event, he had not expected to be caught in its clutches.
His former defence minister, François Léotard, was more aggressive when he was cross-examined. He sought to put the president of the CJR in his place by refusing to speak about any contracts with dubious middlemen that he had supported. “That's basic housekeeping stuff you're talking about,” he complained. “I'm not a housekeeper. I had 5,000 soldiers in Bosnia, and I was the one who brought back the dead. I make no apologies for saying that to you. I appointed someone to take charge of that [editor's note, the contracts]. He looked after it well. And I just dealt with big matters.” Léotard denied the right of the CJR to “blame the French executive” and simply pointed to the responsibility of his aides - who were not in court themselves.
The recent proposals to abolish the CJR meant there were question marks over whether the Balladur trial would even take place. On August 28th 2019 the court's abolition still featured as part of a constitutional bill to “renew democratic life” that was presented to ministers. However, this part of the reform was eventually left out. In its official assessment of the proposed law, the constitutional advice body the Council of State said in June 2019 that the abolition of the CJR was “justified” having regard for the “criticism that, in particular, the composition of the Cour de Justice de la République attracts” and by the “need to bring the criminal responsibility of members of the government closer to the common law [regime]”.
The planned reform by the current government under President Emmanuel Macron proposed replacing the CJR with a new system that would still have treated ministers differently. Under the plan, ministers and former minsters would have faced legal proceedings and been judged by “competent bodies” which would have consisted of “professional judges”. However, these would have come from the “court of appeal in Paris” which is a “common law jurisdiction”. This new system was to have been reserved for ministers or former ministers.
The problem with such a system is that it still separates the actions of which ministers are accused and those of their aides or accomplices. “The separation of the trials can allow for better account to be taken of the particularity of ministerial responsibility, which is liable to be lost to view during simultaneous trial with people who fall under the jurisdiction of the common law,” said the State Council, backing the idea of the new system in 2019. “In addition, being able to call co-actors and accomplices at the trial could deprive the latter of the possibility of appealing.”
Reform of the CJR is now set to feature in manifestos at the next presidential election in 2022.
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- The original French version of this article can be found here.
English version by Michael Streeter