French state sentenced over attempt to search Mediapart's offices

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On July 6th, a French court ruled against the state over its attempted search of Mediapart’s premises on February 4th 2019, which it found was “neither necessary in a democratic society, nor proportionate to the objective sought”. The ruling, which was notably severe for the Paris public prosecution services, further enshrines the freedom to inform and the protection of sources, writes Mediapart’s publishing editor Edwy Plenel in this analysis of the case.

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“Disgraceful, disgusting, Stalinian” was how, in an interview published on February 10th 2019, high-profile French lawyer Éric Dupond-Moretti described what he said were Mediapart’s “methods”, supposedly justifying an attempted search of our editorial offices, ordered by the Paris public prosecutor’s office six days earlier.

That attempt was thwarted by our refusal – in the exercise of our legal right to protect our sources – to allow entry to the two deputy prosecutors and three officers of the judicial police who arrived at the entrance to our offices on the morning of February 4th 2019. This unprecedented move by the public prosecution services caused widespread indignation, except among the entourage of French President Emmanuel Macron.

It followed the publication by Mediapart of an article that revealed extracts of a compromising, recorded conversation involving Alexandre Benalla, the French president’s disgraced former security aide and protégé. “I couldn’t care less about the Benalla case, I don’t know about it and I don’t want to comment on it,” added Dupond-Moretti in the same interview.

Emmanuel Macron and Alexandre Benalla. © Photo montage by Sébastien Calvet / Mediapart Emmanuel Macron and Alexandre Benalla. © Photo montage by Sébastien Calvet / Mediapart

It is not known whether that sycophantic zeal was behind Dupond-Moretti’s subsequent appointment, in July 2020, as justice minister, a post he still holds today. But what we do now know for certain is that the justice system over which he presides as minister is not at all of his opinion. That is the sense of a ruling pronounced on July 6th by the 1st civil chamber of the Nanterre judicial court, in which it passed sentence on the French state for having violated the freedom of the press and its right to protect its sources – fundamental democratic rights – by deciding to raid Mediapart’s offices.

Whatever the justice minister may think of it, this exceptional ruling, for which the judges’ arguments were as clear as they were severe, establishes the shameful conduct of the state to which we fell victim, and places its illegality on record (the key extracts of the ruling, in French, can be found here).

“The measure carried out on February 4th 2019, which did not produce any effect because of the refusal made by the company Mediapart, must be described as a [police] search,” noted the court in its ruling. “[…] The measure, serious in itself for every organ of the press, was not limited alone to the obtaining of the recordings, eventually copies of them, but [also included] the verification of their authenticity and the manner in which they were captured, investigations which necessarily involved access to an appliance and its eventual metadata which are of a nature to allow, directly or not, the identification of a source. […] This approach thus constituted an interference with the freedom of expression exercised by the company Mediapart, which was all the more serious given that violating the secrecy of sources can only be considered in exceptional circumstances. […] This interference […] has no proven legal grounds, which in itself shows its disproportion and, by this serious fact alone, excludes any justification for the violation. […] Consequentially, the contentious search was neither necessary in a democratic society, nor proportionate to the objective that was sought.”     

This ruling, underlining the importance of an independent justice system in face of abuses by the executive powers, is the outcome of a legal marathon engaged by our lawyers, Emmanuel Tordjman and François de Cambiaire from the Paris law firm Seattle. Its starting point was the complaint delivered in our name, on April 4th 2019, to the state’s legal representative (l’agent judiciaire de l’État) with the aim of obtaining a judicial decision that recognised the “abnormal, special and particularly serious prejudice” caused two months earlier by the attempted search of Mediapart’s offices, “bringing serious damage to its reputation and the protection of the secrecy of journalistic sources”.

To say the least, the path thereafter was arduous. The principal obstacle was that the state doggedly denied the reality of the events, even declaring that “the attempted search springs from the imagination of Mediapart”, and refusing to communicate the documents related to the attempted raid. These included the official document recording our refusal to allow the search, and which was countersigned, in our offices at the time, by Fabrice Arfi, the co-editor of our investigative team.

It all began on January 31st 2019, when Mediapart published an investigation which included extracts from sound recordings, as well as elements from a number of sources and also documents. That investigation revealed, among other things, how Emmanuel Macron’s former security aide, Alexandre Benalla, and Vincent Crase, a security manager for Macron’s LREM party had – before their convictions for assaulting May Day marchers in 2018 while posing as policemen – violated their conditional bail terms which banned contact between them.

Beyond that illegal meeting, our report also revealed their business dealings – while Benalla was working at the French presidential office, the Élysée Palace – with a Russian oligarch close to Vladimir Putin and who is suspected of links with the mafia. Finally, the investigation also revealed how Benalla continued to say he had the support of the French president after he was sacked as his aide following the May Day scandal, and had text messages to support his claim.

While none of the information we published was challenged, the Paris public prosecution services took no action over the serious new offences that were detailed in the report. However, answerable to the executive, due to a French specificity which places him hierarchically accountable to the justice minister, the senior Paris public prosecutor at the time, Rémy Heitz, promptly targeted the messenger in order to suppress the message. That was how, on the morning of February 4th 2019, the two deputy prosecutors, accompanied by three officers from the judicial police, including a commissaire (detective superintendent) from the brigade criminelle (crime squad), arrived at Mediapart’s offices when they announced to journalists Fabrice Arfi and Michaël Hajdenberg, who received them, that: “This is a domiciliary visit – in other words, a search.” The journalists legitimately refused to allow the search on the grounds that it had not been authorised beforehand by a “judge for release and detention” (juge des libertés et de la detention, or JLD), a magistrate primarily concerned with deciding whether or not a suspect should be detained but who also has responsibility for authorising certain types of action by the public prosecution services.

After the frustrated search party left our premises, threatening to return with the agreement of a JLD, the prosecutor who led it never made any further contact. Meanwhile, the attempted raid caused outrage among journalists, rights activists and numerous political figures. Following that, the prosecution services claimed that the operation was not to search Mediapart’s premises but simply to visit them in order to obtain the sound recordings we had revealed and which were unknown to the justice authorities. That was a version which really did come from the imagination of the prosecutor’s office, such as it is discredited by all the facts of the case, as now established by the Nanterre court ruling.    

The proof that this violent intrusion had no other aim than to intimidate Mediapart and to try to identify its sources, is illustrated by the fact that on Friday, February 1st 2019, the day following the publication of our report, we were contacted by a police officer, at the behest of the examining magistrates in charge of the investigations into Benalla, who politely asked us to hand over the recordings contained in the article. We agreed straightaway and had, as promised, organised the transfer of the recordings on the morning of Monday, February 4th, less than two hours before the attempted search of our offices. As detailed precisely in the Nanterre court ruling, the recordings were sent to the police officer at 9.40am, while the search party arrived at our premises at 11.10am.

The Nanterre court ruling, underlining “the effect of intimidation” that was intended by that five-strong group “belonging to the intermediate hierarchy of the Paris prosecution services and, for one of them, the police institution”, noted the “coercion characteristic of a search” and that “the judicial authorities, confronted with an organ of the press benefitting from a heightened legal protection, had at their disposal a simple means, not very intrusive and not constraining, which consists of the sending of a requisition”. Instead of which, the court found, the prosecution services chose “the immediate use of a measure that is intrinsically coercive, or likely to be so in the case of a refusal, and significantly more intimidating”.      

We soon learnt that the prosecution services’ rush to take action, to the point of committing an unlawful act, was spurred by the executive itself, for which the chief Paris public prosecutor was the zealous executant; it was a simple rumour in the media that led the prime minister’s office to directly prompt the investigation into Mediapart’s sources. As of that moment, it became necessary to deny the evidence, to the point of absurdity. That was how, apart from refusing to transmit the legal evidence of the attempted search, and even claiming that it never existed, the state’s legal representative, via their lawyer, also claimed that Mediapart was the only party that was responsible for the prejudice it caused because of the publicity it gave to the events. That improbable argument, which is about the journalistic duty to inform, led the judges of the Nanterre court to underline the essential role of a press which alerts the public, one which prefers to sound the alarm instead of remaining silent.

“The publicity that Mediapart gave it,” wrote the judges in their ruling, “is consubstantial with the exercise of its freedom to inform, the particular circumstances, already analysed, having been able to allow it to understand, rightly or wrongly, that it was the object of a form of pressure aimed at impeding its journalistic activity, a point which had justified its press conference and which, moreover, founded the support of numerous other media. And, with [regard to] violations of the confidentiality of [judicial] investigations that sometimes pepper the news, the company Mediapart could legitimately prefer to take responsibility for the disclosure of the information, an attitude apt at limiting the harm to its reputation which an unanticipated disclosure would have aggravated.”        

An ultimate problem, as unusual as it was mysterious, occurred before the July 6th ruling, and which no doubt illustrates the sensitive nature of a case that tests the independence of magistrates with regard to the political powers. A ruling was initially expected to be pronounced on May 30th, but we learnt with surprise that the presiding magistrate, Daniel Barlow, a former secretary general of the Conseil Supérieur de la Magistrature, the body that acts as a watchdog to guarantee the independence of French magistrates in face of the executive, had decided that “in conscience” he should “abstain” from judging our case.

The proceedings were therefore delayed until a hearing held on June 22nd, when magistrate Marie-Odile Devillers was the new presiding judge, assisted by the same two other judges on the panel as before, namely Julien Richaud and Julia Vanoni. It was those three magistrates who sentenced the French state to pay Mediapart one symbolic euro as “integral reparation of its prejudice”, to which was added the sum of 10,000 euros in accordance with Article 700 of the civil law procedure code.  

One can obviously only rejoice at the ruling. By penalizing the state’s abuse of power, it highlights the vital necessity in a democracy for an independent justice system and a free press. But in doing so, it also underlines the fragility of this, such as it is that this independence and freedom depends upon the integrity and the courage of magistrates and journalists who uphold such principles. That is a good reason, if ever one was needed, to support them.

A press conference (in French) organised by Mediapart on February 4th 2019 following the attempted search of its premises earlier that day.

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