Former French president Nicolas Sarkozy last week lost his appeal against his conviction in 2021 for corruption and influence peddling, in a case in which he was accused of offering to help a senior magistrate secure a comfortable post with Monaco’s Council of State in exchange for influence and information involving legal procedures concerning him.
The affair, which was uncovered by wiretaps in 2014, centred on what judges in 2021 called “a pact of corruption” involving Sarkozy, 68, his lawyer Thierry Herzog, 67, and former senior magistrate Gilbert Azibert, 76.
The Paris appeals court verdict, reached by three magistrates and delivered on May 17th, five months after the case was heard in court last December, upheld the 2021 convictions against all three, and also the sentences which they were originally handed.
Sarkozy, found guilty, along with Herzog, of active corruption and influence peddling, was given a three-year jail sentence, two of them suspended, and the order to serve the one year of detention at home wearing an electronic tag. Sarkozy, who like every former French head of state sits on the country’s Constitutional Council, was also stripped of his civic rights for three years (essentially barring him from holding public office, or voting).
Enlargement : Illustration 1
Azibert, found guilty of passive corruption and influence peddling, was given the same sentence as Sarkozy, while Herzog, also handed the same jail term, received a three-year ban from practising as a lawyer.
The appeal court’s magistrates ruled that the sentences passed on the three in 2021 were “an indispensable application of criminal law and proportionate to the nature and gravity of the events, having heavily undermined public confidence”, adding that any lesser punishment “would be manifestly inadequate”.
Lawyers for the three men, who all deny wrongdoing, immediately announced their intention to now take their cases to France’s highest appeal court, the Cour de cassation, which has the effect of suspending their sentences before its definitive verdict. Until that final outcome, under French law they benefit from a “presumption of innocence”.
Sarkozy, the first French president to receive a jail sentence on appeal, insisted he was the victim of a witch hunt, telling French daily Le Figaro that “some magistrates are engaged in a political combat”. At the end of his re-trial las December, he told the appeal court: “I won’t excuse myself for a crime that I didn’t commit. I will fight to the end because I am innocent.”
Following the appeal court ruling, Sarkozy received numerous statements of support from his rightwing camp, which some observers have pointed out is used to calling for zero tolerance for convicted offenders (Sarkozy himself has previously argued that no jail sentence of more than six months should be suspended). Similarly, a number of French editorialists in the right-leaning press have attacked the appeal court’s verdict.
Adding to Sarkozy’s legal woes this month, Paris public prosecutors recommended that he, along with 12 others, including three of his former ministers, should stand trial on corruption-related charges over the alleged illegal funding of his 2007 election campaign by the regime of the late Libyan dictator Muammar Gaddafi.
Meanwhile, he has also appealed his conviction in September 2021 in a separate case of illegal campaign financing, this time during his unsuccessful 2012 re-election bid, for which he was handed a one-year jail term. That appeal will be heard in November.
The story of a “pact of corruption”
The case behind the trial of Sarkozy, Azibert and Herzog has its roots in the judicial investigation opened in 2013 into the suspected Libyan funding of Sarkozy’s 2007 election campaign. That probe discovered that Sarkozy and Herzog, knowing that their usual phones were most likely tapped, had bought pre-paid phones under false names so they could communicate discreetly. One of the phones used by Sarkozy was opened under the alias of Paul Bismuth – the name of a former school friend of Herzog’s.
The pre-paid phones were subsequently tapped, in early 2014, when the “pact of corruption” was discovered and a separate, spin-off investigation was opened.
Sarkozy had previously been investigated over suspicions that his 2007 presidential campaign had also received illegal funding from Liliane Bettencourt, the billionaire L’Oréale heiress. While the case against him was finally dropped, his presidential diaries, seized during the investigation, remained in the possession of the justice authorities. Sarkozy was keen to retrieve them to avoid them being used as evidence in other probes, notably the Libyan funding case, and launched legal action before France’s highest appeal court, the Cour de cassation, for the diaries to be returned to him.
The phone taps revealed that Sarkozy and Herzog – who beyond being Sarkozy’s lawyer is also a longstanding friend of the former president – convinced Azibert, a senior magistrate at the court, to help them to retrieve the diaries by influencing his colleagues to that end, and to collect confidential information on the progress of other cases of interest to them, notably the long-running and complex Bettencourt case.
He was not entitled to access the information (he was attached to the civil chamber and not the criminal chamber handling the cases), which is why he, Sarkozy and Herzog were also found guilty on appeal of “receiving” information gained by a “violation of professional secrecy”.
Azibert also informed them that judges at a special Paris court –the Cour de Justice de la République – dedicated to investigating and eventually trying wrongdoing by members of government, were interested in Sarkozy’s diaries in relation to a case targeting former minister and International Monetary Fund managing director Christine Lagarde over a vast award from public funds handed to the tycoon Bernard Tapie, when questions were raised over Sarkozy's involvement in the payout.
Azibert – whose career has included posts as head of the prison administration, director of France’s magistrates training school, and senior prosecutor at the Bordeaux court of appeal – was well known to both men: he was a friend and influential contact of Herzog’s, while he was promoted under Sarkozy’s presidency to the post of secretary general at the justice ministry, where he served from 2008 to 2010. He was subsequently appointed as senior counsel for the prosecution at the civil chamber of the Cour de cassation.
He was due to retire in 2013, but his position at the Cour de cassation was prolonged for a further two years by a decree issued by Sarkozy in May 2012, just after the latter had lost his re-election bid but before newly-elected president François Hollande had taken up office.
The “pact of corruption”, as described in the 156-page document detailing the appeal court judgment, consisted of Sarkozy offering to help Azibert with his ambition to become, after his retirement in 2014, a member of Monaco’s Council of State, an advisory body on legislation in the principality, in return for Azibert’s influence in retrieving the diaries, and collecting information on the other cases of interest to the former president. Herzog, as Sarkozy’s right-hand man in the “pact”, acted as a go-between with Azibert on Sarkozy’s behalf.
Enlargement : Illustration 2
In the end, Sarkozy failed to secure a place for Azibert on the Monaco state council, while the former president and Herzog appeared to have been tipped off towards the end of February 2014 that their pre-paid phones were tapped, and stopped using them. Meanwhile, in March the Cour de Cassation finally rejected Sarkozy’s bid to have his diaries returned.
A judicial investigation opened, also at the end of February, into the suspected influence peddling revealed by the phone taps was soon informed by the police fraud squad, the DNIFF, that they believed the Sarkozy and Herzog suddenly stopped using the lines under surveillance following a tip-off.
As the judicial investigation closed in on the three men, who were placed under investigation, they attempted to have it invalidated on the grounds that the wiretapping was an illegal violation of the privacy afforded to conversations between a lawyer and their client. After a lengthy legal procedure, their attempt was definitively rejected in 2019.
What the appeals court judgment says
Transcripts of the wiretapped conversations, some of which were played in court last December during the appeal hearings, appear in the magistrates written judgment (see further below). “The proof of a pact of corruption emerges from a body of grave, precise and corroborating evidence resulting from the very close links of friendship knotted between the protagonists […] and telephone taps demonstrating the accomplished acts and the proposed compensation,” the appeal court magistrates ruled last week.
In their 156-page judgment, studied by Mediapart, they write: “Contrary to what the defence has argued, it is of little importance to know who took the initiative, solicitation or assent, as of the moment that the magistrate [editor’s note, Gilbert Azibert] accepted to carry out a service in return for compensation. By assenting to the proposition of the corruptor, the corrupt magistrate seals the pact of corruption. […] It is not necessary that the agent executed his engagement in order for the crime of passive corruption to have been committed.”
Enlargement : Illustration 3
Concerning “active corruption”, which Sarkozy and Herzog were convicted of, the judgment details that this is, as opposed to soliciting or assenting, “to make a proposition of a corrupting nature”.
“The succession of comments by Messrs Herzog and Sarkozy during the conversation […] of February 5th 2014 demonstrate that the two accused make a link between the approach to Gilbert Azibert and the envisaged reward,” the magistrates add. The transcript of the wiretapped conversation in question then follows (the style of speech, faithfully translated here, is disjointed):
Nicolas Sarkozy: — So Gilbert was …found that it further reinforced our chances?
Thierry Herzog: — Yeah, very, very well. He said that it was …that it reinforced our chances […] This morning he told me he has an appointment at the end of the morning, with one of the counsels in order to explain properly what would be needed…but he tells me he’s optimistic.
Nicolas Sarkozy: — Right. But he confirms that the [Court de Cassation’s] rapporteur is for us?
Thierry Herzog : — Ah yes. But, uh, he tells me: ‘I am optimistic, That rarely happens to me, but here, uh, you can tell the president [editor’s note, ex-president’s are occasionally called by their former title] that I am optimistic, I know’.
Nicolas Sarkozy: — Right.
Thierry Herzog: — (inaudible) The atmosphere is good.
Nicolas Sarkozy: — Do you think that it’s necessary… (inaudible)
Thierry Herzog: — No, because it’s not practical. I told him that afterwards you will receive him but that you knew…
Nicolas Sarkozy: — Of course
Thierry Herzog: — …perfectly well what he’s doing, OK. And so he was very happy.
Nicolas Sarkozy: — Me, I’ll have him moved up.
Thierry Herzog: — He spoke to me about a thing in Monaco, because he would like to be appointed to the ‘outside tower’ [a reference to the Council of State]. I told him, listen, uh…
Nicolas Sarkozy: — I’ll help him.
Thierry Herzog: — …don’t you worry, but of course, I told him ‘don’t worry, let all this pass and as it’s not before March that the person retires [from the Monaco Council of State], you will always have the time to, to see the president. He’ll receive you, you know that very well’.
Nicolas Sarkozy: — Because, because he wants to work in Monaco?
Thierry Herzog: — Well yes, because there is a post that will be freed up at the Monegasque Council of State and, uh, he was well placed. But, simply, he told me, uh, ‘I don’t dare ask. Maybe I need a hand’. So I told him: ‘Are you kidding, with [all of] what you’re doing?’…
Nicolas Sarkozy: — No, don’t worry, tell him. Call him today telling him that I’ll look after it, because me, I’m going to Monaco and I will see the prince.
Another transcript detailed in the appeal court judgment is a conversation between Herzog and Azibert on March 3rd 2014:
Thierry Herzog: — Right, the approach has been made, yes.
Gilbert Azibert: — Yes
Thierry Herzog: — Yes. OK. Uh, the approach in Monaco has been made.....
Gilbert Azibert: — Yes, well that’s nice.
Thierry Herzog: — Uh... I’ll tell you in.... No, it’s the least of things. I’ll tell you about it simply, when we see each other in person.
The magistrates then note: “By not protesting when Thierry Herzog tells him that ‘the approach in Monaco has been made’, and by replying ‘that’s nice’, Gilbert Azibert demonstrates that he accepts the compensation […] The crime of active corruption is fully accomplished by the simple proposition of the corrupter.”
On the subject of the influence peddling charges, the judgement states: “Nicolas Sarkozy as much as Thierry Herzog naturally believed they had turned to the right person by addressing themselves to Gilbert Azibert. By his natural authority, his judicial competence recognised by all professionals, his career, his numerous relations with the country’s highest magistrates, his position in the hierarchy of the Cour de cassation as first counsel for the prosecution, Gilbert Azibert presented all the qualities for convincing the Cour de cassation magistrates in charge of the Bettencourt case.”
“He was not a personal friend of the former head of state, but it emerges from the investigations that he had his confidence on a political and professional level. He was the friend of Thierry Herzog and also, for more than 20 years, of Patrick Ouart, the former ‘justice’ advisor in the cabinet of Nicolas Sarkozy during his presidency. Gilbert Azibert exercised the post of secretary general of the justice ministry […] under the same presidency.”
“In the present case, Gilbert Azibert had tried to influence the prosecution counsel so that he would render a decision in favour of overturning a ruling that validated the seizure of the presidential diaries, a decision beneficial for Nicolas Sarkozy because it could convince the counsels in charge of examining the Bettencourt appeal, but also because it could be later re-applied in the context of other affairs if this appeal was declared to be inadmissible.”
“Gilbert Azibert also sought to influence the advisors of the criminal chamber in charge of studying the appeal so that they quashed the decision to seize the diaries. The decision to quash [the seizure] would to all evidence have also been favourable for Nicolas Sarkozy.”
The magistrates underline that the investigation had established that Azibert provided Sarkozy with confidential information about the opinions and dates of deliberations of the counsels and rapporteur before these were officially announced. “It emerges from the telephone taps that he [Azibert] became Nicolas Sarkozy’s informant, by the intermediation of Thierry Herzog, a role made possible by the duties he was in charge of at the Cour de Cassation and the amicable relations he kept with some of his colleagues,” they write.
On the subject of criminal chamber counsel’s opinion in favour of Sarkozy’s appeal for the return of his diaries, they note: “The maintaining of that opinion was crucial for Nicolas Sarkozy, for the case in question but also and above all for the other cases in which he was implicated. Moreover, during several telephone conversations, Thierry Herzog had explained to him that the opinion of the counsel, even if the appeal was rejected, would keep all its interest if he wanted to present it again in support of other appeals, in the cases of Tapie, Karachi or the Libyan financing.”
The magistrates also underline: “Thierry Herzog, Nicolas Sarkozy and Gilbert Azibert were aware of the illicit nature of the acts committed. They used pre-paid telephones [bought] in dubious conditions, without respecting the requirement of presenting an identity card, using the assumed name of Bismuth. Messrs Herzog and Sarkozy took many verbal precautions to conceal the identity of some of their contacts: ‘our friend’, ‘the other correspondent’, ‘our friend who has a complicated wife’.”
Explaining their verdict concerning Sarkozy, they write: “The crimes for which Nicolas Sarkozy is guilty are of a particular gravity, having been committed by a former president of the [French] Republic who, under the terms of article 64 of the constitution of October 4th 1958, was as such ‘the guarantor of the independence of judicial authority’. He told the court that at the time of the events he envisaged a return to political life.”
“The Republic grants former presidents with a certain number of advantages, in recognition of their service as head of state and to allow them to pursue, in an efficient and professional manner, their activities as public personalities, notably to represent France during international events. They are provided with three permanent collaborators (seven during the five years following the end of their term in office), a security officer as well as a furnished apartment. For activities linked to their duties as former presidents, the hospitality expenses and travel expenses, for them and a collaborator, are taken care of.”
“Article 56 of the constitution of 1958 makes provision that former presidents of the Republic are by right made life-long members of the Constitutional Council. Nicolas Sarkozy benefitted, at the time of the events, from the advantages that come from his former position. In return, he had the duty to be a citizen who is perfectly respectful of the law and the institutions of our country. Whereas in fact he used his statute of former president of the Republic, and political and diplomatic relations that he forged when he was in exercise, to promise a gratification to a magistrate who served his personal interest.”
“Moreover, as a lawyer, Nicolas Sarkozy knew the deontological obligations of that profession.”
“In these conditions, the court [responsible for the 2021 verdict], by pronouncing a sentence against him of three years’ imprisonment, two of which are suspended, has made an indispensable application of criminal law and proportionate to the nature and gravity of the events, [they] having heavily undermined public confidence, and [which is] adapted to the personality, the social and professional situation of the person who perpetrated them. Any other punishment would be manifestly inadequate. It is proper that this sentence be confirmed […] The court considers, like the first judges, that the unsuspended [one-year] jail term should be executed in its totality under the regime of detention at home under electronic surveillance.”
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- Mediapart's report in French containing more extracts from the court of appeal judgement can be found here.
This English version, with added reporting, by Graham Tearse