A case with no evidence. That was the main theme of the defence lawyers as they gave their closing speeches in the corruption trial featuring Nicolas Sarkozy which ended in Paris this week.
On Tuesday the prosecution had called for jail sentences against the former president, his friend and lawyer Thierry Herzog and retired judge Gilbert Azibert. On Wednesday and Thursday lawyers representing the three defendants urged the judges at the 32nd criminal chamber of the Paris courthouse to show courage and independence by acquitting their clients.
“With the criminal law people's lives and their honour is at stake. That's why the burden of proof in criminal law is the most demanding,” began Jacqueline Laffont, representing Nicolas Sarkozy, who denies charges of corruption and influence peddling. Yet prosecutors from the financial crimes prosecution unit, the Parquet National Financier (PNF), had failed to produce evidence of the alleged offences for which they demanded jail terms for the defendants, she said. “The prosecution has been shaky, it even foundered, during the debates,” said the lawyer, who said that the words employed by the PNF prosecutors “were as strong as their evidence was weak”.
This case, Jacqueline Laffont said, had “started with a belief, an assumption” which was that the “use of an encrypted phone line” [editor's note, in fact the phones at the heart of the case were pre-paid mobiles bought under the alias 'Paul Bismuth'] necessarily indicated “criminal behaviour”. Echoing what Nicolas Sarkozy himself had said during the trial, his lawyer explained that encrypted message systems such as Signal and Telegram today enabled many people to talk confidentiality, without this in any way being seen as reprehensible.
Jacqueline Laffont argued that the investigation had not been able to demonstrate that the 'Bismuth' phones were bought because Thierry Herzog and his client had discovered that their official lines were being tapped as part of the investigation into alleged Libyan funding of the former president's 2007 election campaign. She also attacked other “assumptions” made by the PNF and the investigating judges. In her view the prosecution was based solely on hypotheses and intellectual constructs.
Enlargement : Illustration 1
For there to have been corruption and influence peddling there needed to have been a pact agreed, said the lawyer. “Where is the pact? Who? When? Where?” The prosecution did not say, she contended. She also spoke ironically about the meagre results achieved by senior judge Gilbert Azibert, who is accused of having sought to help Sarkozy by gathering information about the fate of his official diaries which were in the hands of judges at the time. In early 2014 the judge is said to have asked colleagues at the top appeal court the Cour de Cassation for information on behalf of his co-accused, and is also said to have sought to influence some of them in relation to an appeal in the Bettencourt affair. But in vain.
“The thesis that Gilbert Azibert infiltrated the Cour de Cassation collapsed,” said Jacqueline Laffont. The questioning of another judge, Patrick Sassoust, as well as the transcripts of the phone taps could, however, suggest otherwise.
“Judges talk among themselves, they talk with lawyers and are sometimes married to lawyers, without being criminals,” continued the lawyer. “That's life in the Palais [editor's note, Palais de Justice, the courthouse in Paris]. In this case there were informal conversations” which broke no law.
Jacqueline Laffont said that her client Nicolas Sarkozy had not intervened on behalf of Gilbert Azibert with the authorities in Monaco to land him a plum job to recompense him for services rendered inside the Cour de Cassation. “The phone checks carried out in the preliminary investigation contain evidence for the defence that was hidden from us for six years!” she complained. Her client nodded in agreement.
The lawyer said that this case boiled down to “19 extracts of conversations out of 3,700. Despite an extraordinary investigation nothing was found. This case is about intercepted conversations between a lawyer and his client.” This was thus unlawful evidence she concluded – even though the Cour de Cassation has validated the phone taps in this case.
Dominique Allegrini, representing Gilbert Azibert, adopted a more scathing tone. His client was a very senior judge whose only mistake was to be passionate about the law, began the lawyer. The barrister then attacked the fact that claims of “receipt of information damaging to professional confidentiality” were being levelled at his client - who had obtained from Thierry Hertzog a judgement from the judicial investigation chamber in Bordeaux delivered in the Bettencourt affair - when large extracts of that judgement had been published by Mediapart.
Gilbert Azibert exercised no influence over his colleagues at the Cour de Cassation and he did not get hold of any confidential document about the Bettencourt appeal, insisted his lawyer, who categorically denied any suggestion of influence peddling and corruption. As additional proof of this, Dominique Allegrini pointed out that Gilbert Azibert had not carried out the necessary steps to obtain the post in Monaco, which never came to fruition. There was therefore no recompense for the interest he took in the Bettencourt affair, a case which he was not in charge of anyway.
Nearly every time there was a pause in the hearing a relaxed-looking Nicolas Sarkozy left his chair and went to the press benches to chat with journalists. His friend Thierry Herzog looked a little less relaxed. Two acclaimed barristers appeared on his behalf to conclude the trial, a sign that his position may be an uncomfortable one.
The former head of the Paris Bar and the National Bar Council in France, Paul-Albert Iweins, addressed the issue of a lawyer's duty of confidentiality towards a client. This, he said, stopped Thierry Herzog from answering questions about the transcripts of the telephone conversations with his client and friend Nicolas Sarkozy. Like his colleagues, Paul-Albert Iweins was very critical of “a case that is full of fantasy but empty of evidence”.
It was shocking, he continued, that Nicolas Sarkozy, who was then leader of the right-wing political opposition in France, had been eavesdropped by investigators for a total of seven months, in which he spoke about politics and defence strategy in legal cases. The lawyer also attacked the fact that conversations between a lawyer and his client had been recorded, transcribed by the police and sometimes published by Mediapart. Nicolas Sarkozy concurred, shaking his head and slapping his thigh with his hand as the barrister outlined his criticisms.
Paul-Albert Iweins said there had never seriously been any question of offering Gilbert Azibert a plum retirement post in Monaco. Thierry Herzog had simply been looking to please a friend. “There were two parallel acts of friendship, but with no causal link between them,” said the lawyer. This same argument was used in another case, over the Légion d'Honneur award granted to financial advisor Patrice de Maistre by Éric Woerth, who was treasurer of the conservative UMP party from 2003 to 2010, and treasurer of Sarkozy’s 2007 presidential election campaign. Maistre, who managed the wealth of L’Oréal heiress Liliane Bettencourt, had donated generously to both the UMP and Sarkozy's campaign.
The well-known barrister Hervé Temime concluded the case for the defence. Tying together all the points made by his colleagues, he spoke vehemently against a “prosecution case out of synch with the hearing”, noting that the PNF prosecutors had not used the word “proof” nor the word “pact”. He declared: “If we weren't before a court I'd say that we were in madhouse!”
After a trial lasting three weeks, the first trial of a former president of the French Republic for corruption left one with an ambivalent impression. Between a very cautious presiding judge and fairly understated prosecutors, the judicial and prosecution figures in the case often seemed to be treading on eggshells. The phone tapped recordings were themselves not played to the hearing, though this is something that could have been done.
The defence pushed around the PNF prosecutors, who did not get much chance of a comeback until their own summing up in the case. Also, unlike in many criminal cases in France, the prosecution could not count on a credible parallel civil litigation case on behalf of the victims to help them in court. Ranged against them on the defence benches were around a dozen lawyers who were aggressive and who benefited each day from the silent but very visible support of between thirty and fifty legal colleagues massed in their gowns on the public seats.
The court will have to decide between the competing views of the investigating judges and the PNF, for whom the evidential strength of the phone tap transcriptions is enough proof in itself, and those of the defence, who just see those recorded conversations as inconsequential personal gossip. The judges in the 32nd criminal chamber will have to work hard to avoid adopting the mindset that the accused are not simply ordinary people accountable to the law but are instead a former head of state, an influential lawyer and a former senior judge.
All three of the defendants deny any wrongdoing. Judgement in the case was reserved until March 1st 2021.
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- The original French version of this article can be found here.
English version by Michael Streeter