Two months to the day after the attempt to search our offices on February 4th in relation to the Benalla affair, Mediapart this week handed a summons to the state's legal agent informing them of the case that we intend to bring against it before the courts in Paris.
In the course of 36 pages, supplemented by 27 documents, our lawyers Emmanuel Tordjman and François de Cambiaire from the law firm Seattle set out in detail in the April 4th summons the “unusual and exceptional harm of particular seriousness” caused by this attempted search. They ask the courts to rule that Mediapart was not the target of the proceedings opened by the Paris prosecutor that led to the search and that as a result, and taking account of the harm caused to Medapart's duty to inform on an issue of major general interest, the state itself is liable for this action.
If the state – contrary to what it has always maintained – insists that Mediapart was indeed the target of these proceedings, our lawyers show that, as it stemmed from a preliminary investigation that was “opened in a precipitate manner and without legal base”, this “unfair and disproportionate” attempted search constitutes a “breach of the protection afforded to keep [journalists'] sources secret”. They conclude: “Owing to the succession of mistakes thus outlined, the Republic's Paris prosecutor has committed a major error making the state liable”.
As a result, in addition to ordering the state to pay it a euro by way of damages and interest, Mediapart demands that an order is made for a legal statement to be published on the home page of the Ministry of Justice's website which reads: “In a judgement dated […] the High Court in Paris has ordered the state's legal agent to compensate Mediapart for the harm caused by the attempted search of its premises on February 4th 2019, which caused serious harm to its reputation and to the protection of the secrecy of journalistic sources.”
Enlargement : Illustration 1
It was at 11.10am on Monday February 4th that two prosecutors, Yves Badorc and Aude Duret, accompanied by three detectives (a divisional superintendent from the criminal brigade, a police captain and a sergeant) arrived at Mediapart's premises.
In the absence of the publishing editor – I was at that very moment in the process of giving evidence at a court in Paris in the proceedings that MP Denis Baupin has taken against us – it was Fabrice Arfi, the joint head of our investigation unit who greeted them, and who heard prosecutor Yves Badorc say: “It's a home visit, in other words a search.”
Having pointed out that this search had not been authorised in advance by a judge with the requisite authority – known in French as a 'juge des libertés et de la détention' or JLD – Fabrice Arfi was lawfully able to oppose the search, forcing the prosecution and police team to turn around and leave.
However, the same prosecutor, Yves Badorc, did not rule out returning after getting the go-ahead from a 'JLD', which is proof of the Paris prosecution office's initial determination to commit this rare violation in relation to the press, in breach of fundamental rights and, in particular, of the protection of sources which is described as the “cornerstone of the freedom of the press” by the European Court of Human Rights (ECHR).
In fact the ECHR has already condemned France twice over searches carried out at the offices of journalists – the cases involved the publications Le Midi Libre and L’Équipe – on the grounds that they were disproportionate in nature.
This attempt to search Mediapart's premises was the very first action taken under a preliminary investigation opened by the prosecutor's office in Paris in relation to breach of privacy and the possession of unlawful devices to intercept telecommunications in the wake of the online publication of our article 'Affaire Macron-Benalla : les enregistrements qui changent tout' on January 31st 2019 (published in English as 'Macron security aide affair: the secret recordings that change everything'). The decision to carry out a search was taken by the Paris prosecutor Rémy Heitz, who was recently installed by President Emmanuel Macron as the head of the prosecution authorities in Paris.
Yet the opening of this investigation was a political act. Our summons fully demonstrates this: it has no legal basis; it is based on no credible information; it does not concern Mediapart's work in any way; it bears witness to a dysfunction of the public justice system made worse by a misuse of procedure. In fact, this preliminary investigation claims to protect the breach of privacy of a person who does not exist, given that their identity has not even been revealed.
In particular, it has been established that the pretext for the investigation was nothing other than a letter sent by prime minister Édouard Philippe's chief of staff to the Paris prosecutor informing him of questions that a journalist from the publication Valeurs Actuelles had asked the prime minister's office after Mediapart's revelations were published. The chief of staff made it clear that the letter was “in no way” a formal report of an alleged offence or an “article 40” procedure whereby a public servant is obliged to report an offence they have witnessed to the justice system. Instead the letter was simply “sharing with the justice system in complete transparency some parts of a response sent to the press”.
So there was no victim, no report of an offence, no hint of a complaint; yet nonetheless there was a hastily-opened investigation whose very first action was to try to search Mediapart! This was just after the publication of our revelations which had informed the justice system that the two main protagonists in the Benalla affair – the president's former security aide Alexandre Benalla and Vincent Crase, the former joint head of security of the ruling La République en Marche party – had not respected their bail conditions. Mediapart also revealed Benalla's personal role in a security contract with a Russian oligarch.
Our audio extracts – which were published after we had assured ourselves of their authenticity and probity and the absence of any falsification or manipulation, a judgement which the legal system has subsequently confirmed – revealed facts in the public interest while scrupulously respecting the privacy of the two protagonists and the protection of sources, something which guarantees the press's warning role.
Not only did Mediapart commit no offences targeted by the preliminary investigation, it could not have been suspected of doing so either. The judges at the Paris prosecutor's office who specialise in press issues know this very well. They are perfectly aware of our acquittal in the Bettencourt affair in relation to recordings made by Liliane Bettencourt's major-domo which were revealed and published on our site in 2010.
Whether the format is a witness statement, a written document, a recording, a photograph or a video, we report on facts that relate to the general interest, which we make public within the framework of the press law which gives legal status to the legitimacy of the aim that is pursued, in the service of freedom of information.
Finally, this attempted search represents a dysfunctioning of the public justice system on top of being a misuse of procedure. By making enquiries like any diligent prosecutor, the Paris prosecutor would have learnt that in the context of the judicial investigation into Alexandre Benalla and Vincent Crase, a judicial demand was sent to Mediapart as early as February 1st 2019 on behalf of investigating judges who wanted to obtain copies of recordings that we had revealed the day before.
Before the attempted search even took place we had thus undertaken to handing over a copy to independent magistrates, which was then duly done on February 4th. By coming to “visit” us the prosecutors can therefore not claim that this anti-freedom act was the only way of obtaining the recordings that we had published.
This attempted search thus amounts to a “form of intimidation of Mediapart's journalists” and, through them, a form of pressure on the sources who inform them, as our lawyers explain in their summons. They write: “Some persons who wanted to hand over to Mediapart information and/or documents on issues of general interest will now hesitate, or even refuse in some cases, to do so, because of the dissuasive nature of the attempted search carried out and out of the obvious fear of being able to be identified one day.”
They continue: “The court will note the difficult situation that Mediapart finds itself in proving the exceptional gravity of the harm [it has suffered] as it would find itself forced to have to infringe the secrecy of sources by revealing the identity of those who would no longer want to supply it with information.”
The concrete nature, seriousness and unusualness of the harm suffered are therefore clear, and that is why we are asking for symbolic compensation in order to strengthen the protection of the public's right to know. Without the free exercise of this right there is no longer a genuine, living, pluralistic democracy.
Even if its execution was finally prevented, the decision to search Mediapart's premises is a head-on attack on our investigative work, which has been shown under three successive presidencies, in particular through our revelations in the Karachi, Bettencourt, Gaddafi-Sarkozy, Jérôme Cahuzac and now Benalla affairs.
We have no other choice than to take legal action to protect the legitimacy of our work and defend the secrecy of sources that guarantees such work.
“The attempted search of Mediapart,” says our legal summons, “provoked great anxiety in the journalist profession and in wider opinion by creating the feeling that the press's freedom to investigate was now in peril. Even if it did not succeed, it was felt as a pressure, even a threat, against a journal and its sources investigating affairs that are sensitive for the executive. The way this attempted search was put into operation has supported the belief that Mediapart carried out its news operation in a manner that was illegal and contrary to its ethics, damaging its professional reputation.”
Faced with the serious harm suffered, whose responsibility lies with a prosecutor who is subject to the executive, we call for justice delivered by independent judges to “recall the effectiveness and the importance of press freedom, and of the secrecy of journalistic sources, by condemning the state for the dysfunctioning of the public justice system in order that it may never again be exploited or used for ends other that those strictly set out in law”.
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- The French version of this article can be found here.
English version by Michael Streeter