A French appeals court on Tuesday ruled that former president Nicolas Sarkozy should remain under judicial investigation for allegedly taking advantage of the mental frailty of L’Oréal heiress Liliane Bettencourt in order to obtain funding for his 2007 election campaign.
In a series of rulings detailed in a 115-page document, the court rejected all but two appeal motions lodged by several suspects in the case, who now face being charged and sent for trial, which in all probability will be held next year. The two motions that were upheld (outlined further below) concern a part of the evidence collected against two suspects in the case (Bettencourt's former wealth manager and the former manager of her Indian Ocean island d'Arros), but the decision will have no consequence on the charges that may now be brought against them.
The three magistrates in charge of the investigation into a wide-ranging series of suspected corruption scams surrounding the financial affairs of Bettencourt, Europe’s wealthiest woman, wound up their enquiries earlier this year after placing 12 people, including Sarkozy, under investigation for “abuse of weakness” over their suspected roles in exploiting Bettencourt , notably to obtain political funding.
Under French law, being placed under investigation is a legal status one step short of charges being brought, and must be justified by “serious or concordant” evidence of wrongdoing.
Various appeals lodged by Sarkozy and other suspects cited in the case have delayed until now a final decision by the magistrates as to who should be charged and sent for trial.
The Court of appeal in Bordeaux, where the judicial investigation is based, threw out appeal motions lodged by Sarkozy and five others who had contested the validity of an expert medical examination of Bettencourt, who will turn 91 next month, and which concluded that she was suffering from “mixed dementia” and “a moderately severe stage [sic] of Alzheimer’s disease”. The examination, in June 2011, found that the “slow degenerative cerebral process” began in September 2006.
Bettencourt, who has a 30% stake in cosmetics giant L’Oréal, founded by her father, is ranked by Forbes as the 9th wealthiest individual worldwide with an estimated fortune of 22.2 billion euros (for more on the background to what has become known as 'the Bettencourt Affair', which developed from a high society feud into a major political scandal, see here).
The appeals by Sarkozy and five others placed under investigation centred on the fact that one of the five medical experts appointed to examine Bettencourt, Sophie Gromb, head of the medical expert witness unit at the Bordeaux CHU teaching hospital, was a friend of one of the three magistrates leading the investigation, Judge Jean-Michel Gentil. Gromb had been a witness at Gentil's marriage on June 30th 2007.
The appeals court found no evidence that Gromb’s personal relation with Gentil had influenced the experts’ findings. It ruled that because the two other magistrates leading the investigation alongside Gentil had no knowledge of his friendship with Gromb, the results of the medical examination of Bettencourt, ordered by all three in a collegial decision, could not have been instrumented in advance. It also underlined that Gromb was one of a panel of five experts and that their findings were reached after impartial agreement between them. Finally, the court declared its confidence in Gromb’s skill and reputation.
Sarkozy’s lawyer, Thierry Herzog, had also joined to his appeal motion a demand that agendas belonging to the former president which were seized during a police search of his home and offices could not be held as evidence because they were protected by both presidential immunity laws and others protecting the security of national defence secrets. This was also rejected by the appeals court as groundless.
The court also dismissed a demand presented by Liliane Bettencourt’s disgraced former wealth manager, Patrice de Maistre, and her one-time friend François-Marie Banier, a former novelist and celebrity photographer, that the three investigating magistrates be removed from the case for reason of their alleged impartiality.
Maistre was placed under investigation by the magistrates on December 15th 2011 for “abuse of weakness”, “conspiring in breach of trust”, “aggravated fraud” and “money laundering”. He was later additionally placed under investigation on March 22nd 2012 for “misuse of company assets”, and also for “active influence peddling”, on June 12th 2012. He notably spent 88 days in preventive detention, beginning March 22nd 2012.
Banier, who obtained what a police investigation estimated to be almost 1 billion euros in gifts from Bettencourt over a ten-year period, was placed under investigation in December 2011 for “abuse of weakness”, “breach of trust”, “aggravated fraud” and “money laundering”.
The appeals court on Tuesday also upheld the placing under investigation of businessman Stéphane Courbit and tax lawyer Pascal Wilhelm. Their rejected appeals had argued that there was insufficient evidence against them to justify the requirement of “serious or concordant” evidence of wrongdoing. Courbit, a reality TV show and online gambling entrepreneur and a client of Wilhelm, received an investment of more than 143 million euros in his company LOV from Liliane Bettencourt in May 2011. He was placed under investigation on February 19th 2013 “fraud” and “receiving the proceeds of abuse of frailty”.
Wilhelm, who succeeded Patrice de Maistre as wealth and investment manager for Liliane Bettencourt in 2010, was placed under investigation for “abuse of weakness” in June 2012 and also, in February this year, for “fraud”.
The two appeals that were upheld involved the cancellation, for reasons of irregular procedure, of evidence gained through taps of phone conversations conducted by Patrice de Maistre, and a statement made by Carlos Cassina Vejarano, a former administrator of d’Arros, Bettencourt’s private island in the Seychelles, and who was placed under investigation in October 2012 for “abuse of frailty” and “fraud”. This, however, has no consequence on the legal action against them because of parallel evidence gained when both men were questioned by the magistrates in the presence of their lawyers.
Following the Bordeaux appeals court rulings on Tuesday, Nadine Morano, a conservative Member of Parliament and a senior official in Sarkozy’s UMP party, virulently questioned the impartiality of French magistrates. She referred to the disclosure in the French press earlier this year that the Paris headquarters of Left-leaning magistrates’ union, the Syndicat de la magistrature, (SM), featured a wall where photos of mostly conservative politicians, including Morano, were posted up under the title, “The wall of prats”. “There’s talk of this [medical] expert examination in 2011, and we can clearly see that this procedure is quite strange,” she told French rolling news television channel BFMTV. “So I ask that a list be published of those magistrates who are members of the shameful union of the magistrature [SM], because are we who are on the wall of prats being taken for prats? We have a right to know who judges us and if these magistrates show proof of impartiality.”
Her comments were met with rebuke from both the SM and the largest of the magistrates’ unions, the l’Union syndicale des magistrats (USM). “The reality is that magistrates have offered he proof of their independence, and whether that pleases or not Madame Morano is another problem,” commented USM president Christophe Régnard.
“Not only is there no reason for us to publish a list of judges who are members of this union, this demand is also mad,” said SM president Françoise Martres. “We are in a democratic country where the freedom of expression for unions exists. As it stands, the Syndicat de la magistrature has all the same the right to express opinions.”
Morano’s comments echo a series of furious statements by conservative allies of Sarkozy after he was placed under investigation for exploiting Bettencourt’s mental frailness in March this year.
It now remains to be seen whether the three Bordeaux-based magistrates in charge of the Bettencourt investigation will decide to send Sarkozy for trial. Of all those placed under investigation in the corruption case, the evidence against him appears to be the less solid. On June 28th, the Bordeaux public prosecutor’s office recommended that the case against him be dismissed, although that recommendation is advisory and the three investigating magistrates will have the final decision.
The public prosecutor’s office argued that there was no absolute proof that Sarkozy received funds from Bettencourt, which evidence suggests was between February and April 2007 and via cash withdrawls from Bettencourt’s bank account in Switzerland. It underlined that if such a transfer was made, it would have involved the knowledge of Liliane Battencourt’s late husband André, who died in November 2007, and which therefore excludes the exploitation of Liliane’s mental frailty.
While a number of those placed under investigation in the tentacular investigations concerning the affairs of Liliane Bettencourt have already been sent for trial, a decision on what charges are to be brought and against whom in the principle corruption case in which Sarkozy is concerned is expected to be made known by the magistrates next month.
Those facing trial in the Bettencourt affair
The judicial investigations into the wide-ranging Bettencourt affair have resulted in six separate cases, including that of breach of privacy concerning the publication of the so-called 'butler tapes'.
The principle one of these concerns the alleged abuse of frailty of Liliane Bettencourt and illegal political funding, in which 12 people are placed under investigation, including former president Nicolas Sarkozy.
They are:
Nicolas Sarkozy: The former French president (2007-2012) placed under investigation for “abuse of frailty” on March 21st 2013.
Éric Woerth: Former budget minister (later labour minister) under Nicolas Sarkozy, treasurer of Sarkozy’s 2007 presidential election campaign, and treasurer of Sarkozy’s conservative UMP party. He was placed under investigation on February 8th 2012 for “passive influence peddling” and, on March 9th 2012, for “receiving” illicit cash payments from Patrice de Maistre.
Patrice de Maistre: Former wealth and investment manager for Liliane Bettencourt, placed under investigation on December 15th 2011 for “abuse of weakness”, “conspiring in breach of trust”, “aggravated fraud” and “money laundering”. He was later additionally placed under investigation on March 22nd 2012 for “misuse of company assets”, and also for “active influence peddling”, on June 12th 2012. He notably spent 88 days in preventive detention, beginning March 22nd 2012.
Pascal Wilhelm: A tax lawyer who succeeded Patrice de Maistre as wealth and investment manager for Liliane Bettencourt, placed under investigation for “abuse of frailty” on June 13th 2012 and also, on February 11th 2013, for “fraud”.
Alain Thurin: Liliane Bettencourt’s former nurse was placed under investigation on July 11th 2012 for “abuse of frailty”.
Fabrice Goguel: Liliane Bettencourt’s former chief tax lawyer was placed under investigation on September 6th 2012 for “abuse of frailty”, “fraud” and “breach of trust” all in connection with his management of the judicial and fiscal arrangements concerning the ownership of Bettencourt’s Seychelles island, d’Arros.
Carlos Cassina Vejarano: A former administrator of d’Arros, he was placed under investigation on October 26th 2012 for “abuse of frailty” and “fraud”.
Patrice Bonduelle: A notary (solicitor) who served Liliane Bettencourt between 2010 and 2011 was placed under investigation in November 2012 for “conspiring in abuse of frailty”.
Jean-Michel Normand: A notary (solicitor) who served Liliane Bettencourt when her will was modified and gifts offered in favour of François-Marie Banier, was placed under investigation on January 15th 2013.
Stéphane Courbit: A reality TV show and online gambling entrepreneur and a client of Pascal Wilhelm, whose company LOV received an investment of more than 143 million euros from Liliane Bettencourt in May 2011. He was placed under investigation on February 19th 2013 “fraud” and “receiving the proceeds of abuse of frailty”.
Under French law, the examining magistrates in charge of a criminal investigation have the ultimate power to decide who should stand trial for offences which, in the magistrates’ opinion, there is “grave or concordant” evidence that they committed. However, the public prosecutor’s office also has a say in the procedure, and makes its own recommendations over who, among those placed under investigation, should or should not, stand trial.
The public prosecutor’s office in Bordeaux, where the cases are managed, has recommended that the cases against Sarkozy, Woerth, Courbit, Bonduelle, Wilhelm and Thurin should be dismissed. It is now for the three magistrates in charge of the investigation to decide the final outcome.
In a second case, the three judges on July 4th overruled the prosecutor’s recommendation to dismiss charges against Éric Woerth and Patrice de Maistre for influence peddling, and they will now stand trial at a date to be announced.
In a third related case, magistrate Isabelle Prévost-Desprez was placed under investigation in July 2012 for “violation of professional secrecy” for allegedly passing on to two journalists from Le Monde classified information from her early investigation into the Bettencourt affair. The Bordeaux public prosecutor’s office in June recommended she should stand trial.
In the trail of that, a fourth case involves a lawsuit by Le Monde against former public prosecutor Philippe Courroye and his deputy, Marie-Christine Daubigney, for their illegal consultation of the phone records of its journalists investigating the Bettencourt affair. After the two magistrates were placed under investigation, the case against them was overturned by two appeal court rulings, the latest in June. However, further legal procedures engaged by Le Monde could still lead to a new case being opened agaisnt Courroye and Daubigney.
The fifth case concerns the secret recording of conversations between the L’Oréal heiress and her close advisors that were made between 2009 and 2010 by her butler, Pascal Bonnefoy. He and five journalists were placed under investigation for invasion of privacy, the latter for publishing the contents of the tapes which revealed for the first time in public the extent of corruption surrounding Liliane Bettencourt's fortune. They are Mediapart’s editor-in-chief Edwy Plenel, the website’s investigative journalist Fabrice Arfi, his former colleague Fabrice Lhomme, the editor of weekly news magazine Le Point, Hervé Gattegno, and the magazine’s editor-in-chief, Franz-Olivier Giesbert. All six have now been charged and sent for trial.
Finally, the largest magistrates’ union, the USM, filed a lawsuit on April 9th against Member of Parliament for the conservative UMP party, Hervé Guaino, a former advisor to Sarkozy when the latter was president, for his alleged “insulting a magistrate” and “the discrediting of an act or decision” of justice. This referred to Guaino’s highly controversial public outburst against Bordeaux magistrate Jean-Michel Gentil after he placed Sarkozy under investigation in March, who Guaino said had “dishonoured the justice system” and had “dirtied France live and in front of the world”. That case is currently the subject of a preliminary investigation by the Paris public prosecutor’s office. If pursued, Guaino faces a maximum sentence of one year’s imprisonment and separate fines of 15,000 euros and 7,500 euros respectively.
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English version by Graham Tearse