It could be a sort of judicial interpretation of the “chicken-and-the-egg” dilemma, in which former socialist justice minister Jean-Jacques Urvoas is the egg.
Urvoas was justice minister from January 2016 to May 2017 under the presidency of François Hollande. While serving his last weeks in the post, between the two rounds of this year’s presidential elections held on April 23rd and May 7th, he passed on details to Thierry Solère, then a conservative Member of Parliament, of a confidential justice ministry document about a police investigation into suspected tax fraud, money laundering and influence peddling by Solère. The investigation was a preliminary one, opened and led by the public prosecution services.
The investigations targeting Solère, re-elected as an MP in June and who has since jumped political ships, having joined President Emmanuel Macron’s party LREM in November after being excluded from the conservative Les Républicains party for his dissident support for Macron’s centrist government, were launched, as Mediapart first revealed, in September 2016. They centre on his alleged non-declaration of part of his income and also property tax liability, and a potential conflict of interest through the generous remunerations he received as an "advisor" to a waste retreatment firm while serving as an MP.
Solère had declared his support for Macron’s presidential bid before the latter’s election, and he was reportedly aware that he was in a favourable position to become a member of Macron’s future government, in which case it would be vital for him to know about the progress and likely outcome of the investigation. Earlier this month, the investigative and satirical weekly Le Canard enchaîné revealed that it was during a police search of Solère’s home in June this year that the message to him from Urvoas containing confidential information about the case was found on one of Solère’s mobile phones, transmitted via the encrypted app Telegram.
France’s Cour de justice de la République, the CJR, which is dedicated to investigating and eventually prosecuting members of government for misconduct, is now tasked with deciding whether Urvoas committed an offence.
But back to the chicken and the egg. If Urvoas is the egg, the chicken is the great, gaping institutional failing that since forever allows a justice minister – as also a minister of the interior – to be informed whenever they so wish about the state of an ongoing investigation, which in reality is usually a most sensitive one, and including when the said investigation targets a minister’s political ally or adversary, or quite simply a friend.
The highest French authorities, whether this be successive governments of the Left or the Right or the Constitutional Council, constantly refuse to repair this failing despite it being at the heart of the public’s mistrust of the justice system and, beyond this, the perception of the practice of democracy. “Our system of government can be said to be democratic, but we are not democratically governed,” wrote French historian Pierre Rosanvallon in his 2015 work Le Bon Gouvernement. It would be difficult to put it any better.
Proper measure should be taken of what the Urvoas affair tells us, for far from being an anecdotal event it reveals a serious disease regarding the management of justice in France, and which is called submission.
If Urvoas acted as he did, it is because he was able to. It is not that he has the right to violate the secrecy of an investigation, but rather that he can gain access to such confidential information. In the vertical power structure of the French justice system, public prosecutors are hierarchically answerable and submissive to the political powers that be, primarily in the form of the justice minister.
Through their central position in the judicial chain, public prosecutors quite naturally have a detailed understanding of the cases in progress, especially when these are preliminary investigations, like that which concerns Solère. Whether upon their own initiative or that of their hierarchy, public prosecutors pass certain information up the chain; this goes first to the chief prosecutor of the jurisdiction concerned, which in turn sends it on to the justice ministry’s department of criminal affairs and pardons (the Direction des affaires criminelles et des grâces), the DACG, and finally, when deemed appropriate, the information lands on the desk of the justice minister or his inner cabinet. All in the name of submission.
This was true of the case of Jean-Jacques Urvoas and Thierry Solère, as recounted by Le Canard enchaîné in its report published on December 13th. But here lies the wider issue: it is one thing to be shocked at the actions of a minister who is caught in the act, it is another to take remedial and enduring measures to change the institutional system that allows such wayward behaviour. It is comparable to the state’s enforcement, understandably, of the 130kph speed limit on motorways, while legally allowing the sale of cars that are capable of travelling at more than 200kph.
Among the cardinal values upon which the French republic is built is the notion of the separation of powers. In his 1748 work, The Spirit of the Laws, French political philosopher Montesquieu wrote that to prevent abuse of power “it is necessary that by the very disposition of things power should be a check to power”. That strong message is clearly put, but three centuries later it is still absent from practice.
“There really must be something done about political interference in judicial affairs,” said one French public prosecutor, talking to me after the revelations concerning Urvoas, whose name is withheld here. “Each time I travel abroad and explain the status of the French public prosecution services I am ashamed.”
“We’re the first to be responsible for this,” he added. “When I see the way in which many prosecutors behave…We have been brought up in a culture of submission.”
The Urvoas affair has prompted a number of magistrates to make their views known via Twitter, but anonymously because of the regulations of their profession that prevent them from speaking out on such matters. One example was from the @ProcEpique account by a person who presents themselves as being a public prosecutor in provincial France, who posted a message (see immediately below) reading: “Rhaaaaaa! The notorious ‘sending up information’ to the justice ministry. This ‘tradition’ to which our old political class is attached is a crime in other countries. It sums up all of their conception of justice: muzzled.”
Raaaaaâ! Les fameuses « remontées d’informations » au ministre de la Justice...
Cette « tradition » à laquelle tient notre vieille classe politique est un délit dans d’autres pays... Elle résume toute leur conception de la Justice: muselée... https://t.co/4TZvHAUntB
Raaaaaâ! Les fameuses « remontées d’informations » au ministre de la Justice...
In 2010, the European Court of Human Rights, which has supranational jurisdiction to which all 47 member states of the Council of Europe must comply, gave a ruling in the case of “Medvedyev and others V. France”, concerning the arrests of crewmen of a ship off the French coast, in which it sets out that a French prosecutor cannot be regarded as a judicial authority because they did not have “the requisite guarantees of independence from the executive”. That was quite a slap.
The two principal unions representing French magistrates, the Union syndicale des magistrats (USM) and the Syndicat de la magistrature (SM), recently attempted to enforce change by placing the issue of judicial independence before the Constitutional Council. They argued that the submissive nature of the public prosecution services’ relations with the political powers manifestly contravened the judicial independence set out in the French constitution. But their efforts were in vain; on December 8th, the Constitutional Council threw out the unions’ case in a ruling that represented a major challenge for anyone's powers of understanding. It maintained that the French constitution, in all its “dispositions” gave the guarantee of “the independence of the magistrates of the prosecution services”, but that “this independence must be reconciled with the prerogatives of the government”. In other words, public prosecutors are independent, but they cannot be allowed to be so.
Among the Constitutional Council’s panel of wise men and women who deliberated on the issue was the council’s president, Laurent Fabius, and also Lionel Jospin, both former prime ministers, along with Michel Charasse, a former minister.
The Urvoas affair, revealed just days after that ruling, now appears as if a boomerang for the Constitutional Council. How many other justice ministers, with a sentiment of impunity, have acted in the same manner?
The French version of this article can be found here.
English version by Graham Tearse