When Nicolas Sarkozy descended the central courthouse buildings in Bordeaux shortly after 9 a.m. on November 22nd, entering an underground office to be questioned by magistrates leading investigations into the wide-ranging corruption allegations surrounding the affairs of L’Oréal heiress Liliane Bettencourt, the former French president faced a humbling moment in more ways than one.
For not only was Sarkozy about to spend more than 12 hours being interrogated about the suspected illegal financing of his 2007 election campaign by members of the French judicial corps known as investigating magistrates and which he had, when president, attempted to disband; the moment had come five years almost to the day after his predecessor as head of state, Jacques Chirac, found himself, for the first time for any former French president, in the very same situation.
Enlargement : Illustration 1
After years of infighting, Sarkozy, 57, succeeded in taking over leadership from Chirac, who turns 80 next week, of the conservative UMP movement and, as its candidate in the 2007 elections, promised a break with the notorious corruption scandals that surrounded Chirac, who headed the French Right from the early 1980s, and many of his political generation.
Chirac, like Sarkozy, enjoyed immunity from prosecution while in office. After serving two successive terms from 1995 to 2007, Chirac finally stood trial in 2011 on charges of embezzling public funds to finance the conservative party when he was mayor of Paris, between 1977 and 1995.
He was the first French head of state to stand trial since the WWII collaborationist government leader Marshal Philippe Pétain. Chirac was eventually found guilty and was given a two-year suspended sentence.
Sarkozy had arrived in Bordeaux last Thursday morning by private jet from Paris, chauffeured to the Palais de Justice behind blacked-out windows. When he emerged from the building, shortly after 9.30 p.m., he had been made an ‘assisted witness’ to the case, a legal status that implies there is evidence to suspect his involvement in criminal activity - without which he would be considered a simple witness - but which is insufficient to place him ‘under investigation’. The latter is a move that requires, under French law, “serious and concordant” evidence of wrongdoing.
The day-long questioning by magistrates Jean-Michel Gentil, Cécile Ramonaxto and Valérie Noël, and their designation of him as an ‘assisted witness, was undoubtedly a humiliation for Sarkozy. Whereas Chirac had demonstrated, at best, indifference, at worst contempt, for investigating magistrates, Sarkozy has never hidden his outright hostility towards them, culminating in a highly controversial move in 2009, during his presidency, to abolish their role.
Out of a total of 8,000 magistrates of all categories, France counts 540 investigating magistrates. These juges d’instruction , who are also known as examining magistrates, are independent judicial figures who also have the title of judge, and who lead all investigations into matters of serious crime. The position was created more than 200 years ago under the Napoleonic legal system, although their independence has only very recently been tested and, to a degree, established.
They prompt and oversee enquiries conducted by the police, or gendarmerie, and ultimately recommend, at the end of an investigation and subject to concert with the public prosecutor’s office, whether suspects are to be charged and sent for trial, or if there is no case to answer. In theory, they have no account to give to, nor orders to take from, political powers, unlike public prosecutors who are dependent upon a hierarchy that is headed by the justice minister.
Since the early 1980s, that textbook notion of independence has been successfully used as a shield by a number of examining magistrates who opened different investigations into cases of political corruption, by both Left and Right, and notably illegal party funding, in stark contrast to their docile predecessors. Not without difficulty, and sometimes exposed to quite sinister personal pressure, including threats against their lives, became a thorn in the side of a notoriously corrupt political establishment that previously appeared untouchable.
The inherent impartiality of public prosecutors
The rise during the 1980s and 1990s of what were dubbed in France ‘les petits juges’ (‘the little judges’), investigating magistrates who jumped onto the public stage from obscurity, was firstly marked by high-profile financial corruption cases involving the conservative UMP party’s predecessor, the RPR, the centre-right Parti Republicaine and the social-democrat CDS, but also the Parti Socialiste and the Parti Communiste. These were followed by other investigations into the murky practices within the business world, followed by the trials of several high-flying financial figures, including French tycoon Bernard Tapie, Elf Aquitaine oil company CEO Loïk Le Floch-Prigent and Vivendi chairman and chief executive Jean-Marie Messier.
The new generation of magistrates, most notably Renaud Van Ruymbeke, Eva Joly and Éric Halphen, were dismissed by those they upset as being would-be ‘white knights’ who were in fact politically-motivated, and meddlers in financial issues that they understood nothing of, courting the danger of feeding the Far Right and threatening the economy.
Sarkozy had long targeted France’s magistrates since becoming interior minister in 2002. His adopted image of being tough-on-crime, and which was one pillar of his presidential bid, included criticism of the perceived lenient sentences handed down by judges. Under his presidency, between 2007 and 2012, ministers regularly made public comments questioning justice decisions. But it was the parallel power of the investigating magistrates, asserted in a number of major probes during the 2000s, that lay at the centre of the target.
The opportunity to gain popular support for his intended reform of the justice system came with the public outrage over the judicial fiasco that resulted from the 2004 ‘Outreau trial’. This involved the wrongful convictions for paedophile crimes of 13 people from the Boulogne-sur-Mer suburb of Outreau, in north-east France, after a series of grave mistakes by the young and zealous examining magistrate in charge of the case, Fabrice Burgaud, who had just taken up his first post when his investigation began in 2001.
The 13, many of whom had also spent three years in preventive detention before their trial, were eventually cleared of all the charges in December 2005, after the person who first accused them admitted lying. The acquittals, and a letter of apology from then President Jacques Chirac, came too late for one of the 13, who had earlier died in prison in circumstances that remain a mystery.
The case highlighted the solitary and considerable authority that an investigating magistrate holds, and despite, in the case of Outreau, the conjoint role of the public prosecutor in seeking the convictions of the innocent, it was this unchecked power of a figure who is both investigator and judge that disturbed public opinion.
As of 2005, Sarkozy called for a reform of the justice system, and it was in January 2009, when president, that he unveiled his plan to replace investigating magistrates by public prosecutors, appointed by the political powers of the day. The initiative caused an avalanche of protest from both magistrates’ professional associations and unions, and also among the then left-wing opposition.
But such a major reform, proposed amid others already engaged by the Sarkozy administration and notably the major one of extending the minimum retirement age, required such lengthy preparation that it was postponed until the former president’s hoped-for second term of office.
But it was also muddied by the scandals revealed by the Bettencourt affair in 2010, and which illustrated the inherent incapacity of public prosecutors to lead investigations with impartiality.
This essentially involved the role, in the early stages of the investigations into allegations of corruption surrounding the affairs of Liliane Bettencourt, of Nanterre public prosecutor Philippe Courroye, an ally of Sarkozy who had appointed him to his post despite objections by France’s high council of magistrates, the CSM. Courroye, 53, who in 2011 was found by France’s highest court to have illegally obtained records of mobile phone conversations and text messages of French journalists covering the Bettencourt affair, led a controversially slow-moving and ultimately inconclusive preliminary investigation into the emerging evidence of political corruption revealed by both Mediapart and witnesses to the case. Under existing French law, public prosecutors can lead preliminary investigations before the involvement of an independent investigating magistrate.
Prosecutor Courroye’s seemingly one-sided management of the case was highlighted by his approach to one of the key witnesses in the illegal political funding allegations, Liliane Bettencourt’s former accountant, Claire Thibout, whose lawyer denounced “a furious campaign by the Nanterre public prosecutor’s office”.
After giving an exclusive interview to Mediapart in July 2010 (see the English version here), in which she recounted how she had been asked to prepare 150,000 euros in cash to be handed over to Sarkozy’s 2007 election campaign treasurer, she alone was summoned for repeated and grueling questioning over a period of just several days, more in the style of a suspect than a witness. “She has had enough of being the object of such a furious campaign,” said lawyer Antoine Gillot. “Everything is being done to get her to go back on her statements.”
Judicial swings and roundabouts
Courroye was solely in charge of the preliminary investigation into the most politically embarrassing aspects of the Bettencourt case, notably the illegal funding allegations, influence peddling, money laundering and tax evasion. He was also at loggerheads with another magistrate based in Nanterre, Isabelle Prévost-Desprez, who was in charge of a separate preliminary investigation into a complaint filed by Liliane Bettencourt’s daughter, Françoise Bettencourt-Meyers, against socialite François-Marie Banier for allegedly taking advantage of Liliane’s diminished mental capacities to obtain almost 1 billion euros in gifts.
The media coverage of the personal and professional feud between the Courroye and Prévost-Duprez, who in contrast led an enquiry that appeared headed for a full-blown investigation into the evidence of corruption hanging over the Bettencourt household, eventually led to an extraordinary decision by the higher judicial authorities, in October 2010, to remove them both from the cases and to hand all investigations into the affairs of Liliane Bettencourt over to magistrates in Bordeaux.
Sarkozy’s election defeat in May to Socialist Party candidate François Hollande and the election of a socialist government in June have effectively buried, for the next five years at least, the threat to abolish the system of examining magistrates.
Meanwhile, one of the best-known among their midst, Judge Renaud Van Ruymbeke, was last month cleared of any sanctions against him over his management of the Clearstream affair. Sarkozy, when interior minister in 2006, had accused Van Ruymbeke of incriminating him in the scandal “on the basis of a lie” obtained from his secret meeting with a dubious source in the investigation.
The unconventional method used by Van Ruymbeke had led to a justice ministry investigation and a subsequent freeze on any further career promotion for the magistrate, who had hoped to be appointed as president of the chamber of the Court of Appeal. The freeze was overturned in October by the high council of magistrates, the CSM, after the justice ministry announced it had abandoned any disciplinary proceedings against him. Ironically, Van Ruymbeke, 60, who was subsequently forced to remain an examining magistrate, has since become the head of another major investigation in which Sarkozy is also implicated, involving illegal political funding of former prime minister Edouard Balladur’s presidential election campaign (see more here and here).
As for Nanterre prosecutor Philippe Courroye, he was removed from his job this summer to be appointed Advocate General of the Paris Appeals Court, a move justified by the justice ministry as necessary to return “serenity” to the Nanterre courthouse. Courroye had fought against his transfer, denouncing a politically-motivated “manhunt” and announcing that he would apply for prolonged sabbatical leave in order to become a lawyer.
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For more on the Bettencourt affair, click on the links below:
How the Bettencourt affair led Sarkozy before the judge
Judge links L'Oréal heiress cash withdrawals to Sarkozy campaign funding
Sarkozy campaign treasurer under investigation for illegal funding, influence peddling
L'Oréal heiress ordered to pay 77.7 million euros after tax scam probe
Behind the bettencourt affair: the battle for L'Oréal
A scandal too far: Bettencourt magistrate is disowned
French prosecutor in Bettencourt affair illegally spied journalists' phone calls
The eerie plot penned by L'Oréal family scandal dandy in 1971
Dinners, cash and Sarkozy: what Bettencourt's accountant told Mediapart
Bettencourt butler bites back: 'I saw L'Oréal family destroyed'
Bettencourt battle back after L'Oréal heiress signs away 143 million euros
The political guard watching over L'Oréal
Bettencourt chauffeur adds to Sarkozy campaign fund allegations
Bettencourt tapes stolen in mystery break-ins targetting Mediapart, Le Point and Le Monde
French interior minister drops libel action against Mediapart
Why we need a strong media in France
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English version: Graham Tearse