Why isn't this corrupt politician going to prison when we happily put petty criminals behind bars? It is a question that keeps stubbornly cropping up after virtually every political corruption case in France. Some might grumble that it is based on simplistic and populist reasoning. But that doesn't mean it isn't also based on some reality. For while the number of offences of dishonesty is on the rise, we see very few politicians sent to the Republic's jails, which are, by the way, bursting at the seams (72,809 prisoners in jails with 60,698 places in November).
One initial observation: the political focus at the moment is on combating petty crime, an approach that is supposedly a hit both in the media and electorally. Meanwhile, the police and the legal system are poorly-equipped to fight effectively against corruption: they lack staffing numbers and other resources.
In addition, a certain number of judges are reluctant to jail those involved in white collar crime, out of cultural bias, because they doubt the usefulness of the measure itself, or simply because they fear for the future of their careers if they do.
This has led to repeated exasperation on the part of citizens over the rather lenient legal treatment reserved for politicians, with scant regard for the principle of equality before the law. This is despite the toughening of the legal arsenal available to judges, and despite the demands for exemplarity and integrity that are supposed to influence the country's elected politicians.
Enlargement : Illustration 1
In the 1990s an apparent 'clean-up' operation launched by judges did indeed lead to the jailing of several leading regional politicians. The list included Alain Carignon at Grenoble in south-east France who served time from 1996 to 1998, Michel Mouillot at Cannes in the south of France who was in jail from 1996 to 1997, and again from 2005 to 2007, Jean-Michel Boucheron at Angoulême in south-west France, who was incarcerated from March 1997 to July 1998, and also tourism minister Léon Bertrand, in French Guiana, who was behind bars from November 2009 to March 2010, then from September 2018 to April 2019. At the time still a political novice, the politician and businessman Bernard Tapie also languished in prison from February to July 1997 after a match-fixing football scandal involving the teams Valenciennes and Olympique de Marseille.
But with very rare exceptions the real political heavyweights, such as former president Jacques Chirac, former interior minister Charles Pasqua and former foreign minister Roland Dumas, have all been spared jail time, with limited investigations dragging on interminably, sometimes ending with just a suspended prison sentence.
Then, in a pendulum swing, the fight against corruption and in favour of transparency appeared to go into retreat, and prison once again became almost a taboo for politicians, at least until very recently. In view of recent events, it does seem as though some judges have now rediscovered some toughness, marking yet another swing of the pendulum.
Two allies of former president Nicolas Sarkozy have thus recently found themselves behind bars. One is Patrick Balkany, the former mayor of the wealthy Paris suburb of Levallois-Perret for the rightwing Les Républicains, who served time from September 2019 to February 2020, then from February 2022 to August 2022. The other is Sarkozy's former chief of staff and ex-interior minister Claude Guéant, who was in prison from December 2021 to February 2022.
Nicknamed the 'Catalan Balkany', Alain Ferrand, the rightwing mayor from Barcarès in southern France, was also jailed from January to February 2022. Meanwhile, the case of former minister Georges Tron was an exception, as his time in prison from February 2021 to March 2022 followed a conviction for rape and sexual assault.
But though they grab the headlines, such prison sentences remain rare.
A legal system that goes soft on the powerful
There are numerous mechanisms that explain the relative leniency that politicians often enjoy. In the preliminary inquiry stage and during the investigation, investigating magistrates usually avoid putting the suspects in temporary custody, even though this is legally possible for cases involving dishonesty in which offences are punishable by more than three years imprisonment. This includes corruption, which in theory can be punished by custodial sentences of up to ten years.
Temporary custody, which obviously denies someone their freedom, can be justified in particular when it “preserves material evidence or clues”, “stops pressure being put on witnesses or victims” or is used to “stop a fraudulent enterprise”.
But when it comes to economic and financial cases there is a tendency to err on the side of caution: it is often left to the trial judges to decide on any custodial sentence. So rather than resort to temporary custody, an investigating judge will often prefer to leave a white-collar suspect at liberty but under judicial supervision. They thus avoid the risk of being accused of operating like a “government of judges” of “prejudging guilt” or even pushing someone towards suicide.
Like business leaders, politicians also have another trick up their sleeves; they are often able to hire the best lawyers who are adept at raising procedural issues and often play for time. In the best-case scenarios these lawyers can even get the proceedings annulled altogether. At worst, by making numerous legal challenges they can, at the appropriate time, express indignation at the length of the proceedings and point out how old the case is, while asking the court for leniency.
If necessary, the politicians can also launch a public relations campaign to attempt to soften up public opinion and pile pressure on the judges. Nicolas Sarkozy, in particular, has used this method in the cases in which he has been involved, in particular before the start of his trial for corruption in the so-called 'Paul Bismuth' or phone-tapping case in November 2020 in Paris, when he pontificated in numerous interviews.
Prison sentences with no prison
Standing trial in a criminal court is of course still full of risks for politicians. These are less permissive times, and some prison sentences are starting to be handed out to politicians. On such occasions the politicians are reminded in court judgements that it was they who voted for laws to toughen France's criminal code, especially for acts of dishonesty such as corruption and tax fraud.
For example, in December 2016 the former minister Jérôme Cahuzac was given a three-year prison term by a court for tax dodging. But, crucially, he was not immediately ordered to go to jail. This allowed the former budget minister to remain free until his appeal hearing. And in May 2018 the appeal court in Paris reduced Cahuzac's sentence to a so-called 'adjustable' or 'convertible' sentence – in this case two years – which meant it could be served in other ways other than staying behind bars. Patrick Balkany remains one of the very few politicians who has been immediately sent to jail at the end of his trial, which in his case was in September 2019.
The 'convertible' sentence is a trump card for French politicians. To limit the number of short prison sentences, convertible sentences were introduced some decades ago. Until recently jail sentences under two years were convertible, often to a punishment in which the convicted person was granted limited freedom, or had to wear an electronic bracelet. This threshold was then reduced to one year or under for offences committed after March 24th 2020 (the date the March 2019 law on this came into force).
For economic and financial offences trial judges – and also appeal judges – are sorely tempted to avoid passing sentences that are above those thresholds. Caution is always their watchword. This was what helped Nicolas Sarkozy in his two trials, in the 'Paul Bismuth' or phone-tapping case, and the 'Bygmalion' or 2012 election funding case, as well as Sarkozy's former prime minister François Fillon in an affair involving a fake jobs scam. However, this has not stopped Nicolas Sarkozy appealing against his conviction in both cases, and the 'Bismuth' case is now being reheard on appeal, with the case at the Paris court of appeal starting on Monday December 5th and due to last two weeks.
And even when jail sentences are given, they can still be converted at a later date. For example, having served part of his sentence, Patrick Balkany was later granted conditional release on medical grounds. It was also on medical grounds that his wife, Isabelle Balkany, did not go to prison at all despite being given a four-year jail sentence.
As for former minister Claude Guéant, he obtained his 'conditional' release by finally repaying all the sums he still owed the state, while his state of health was raised too. Conditional release is therefore another trump card for politicians, as they are seen by the courts as people who can be rehabilitated and who are not dangerous. Conditional release is also an easy option for those aged over 70.
The notion that politicians are immune from serious punishment is reinforced by the continued existence of a special court reserved just for them; the Cour de Justice de la République (CJR) is the only court that can investigate and then try ministers over actions they have carried out as part of their official duties. The long list of cases judged by the CJR – on which Parliamentarians sit in the majority when it comes to reaching a verdict – confirms its flaw from the start, that of being an insular, self-serving world of its own: since the first trial in 1999 the court has not sent a single politician to prison.
The litany of lenient verdicts includes acquittals, convictions with no punishment and suspended prison sentences, including in corruption cases in which other participants have spent time behind bars. In doing so politicians may protect themselves, but they run the risk of stoking up anger.
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- The original French version of this article can be found here.
English version by Michael Streeter