The conviction of Nicolas Sarkozy for conspiracy in the Libyan funding case and his sentence of five years imprisonment with a deferred detention order – which means he will soon be jailed – has sparked a political and media furore in France.
But, as is often true in cases involving public probity, politicians and editorialists rushed to the airwaves to comment on a ruling they had clearly not read. In doing so, they piled up mistakes on top of exaggerations, sowing confusion in public debate as they did so.
The more than 400-page ruling of the Paris court, presided over by judge Nathalie Gavarino, which Mediapart has read and examined, makes it possible to answer factually and legally the questions raised by this historic judgement.
What was involved in the conspiracy for which Nicolas Sarkozy, Claude Guéant and Brice Hortefeux were convicted?
Criminal conspiracy is a crime, punishable by ten years in prison, that involves the preparation of other crimes. The term has grim overtones because in the public mind it is often linked to drug trafficking, organised crime or, worse, terrorism. But legislators – MPs, senators and the executive – made provision that conspiracy could also cover offences against probity, actions which undermine the very basis of democracy.
According to the Paris court, this is precisely the case in the Libyan funding affair. For Nicolas Sarkozy and his former aides Claude Guéant and Brice Hortefeux were found guilty of having reached an understanding in the autumn of 2005 to discuss, in secret, a corruption pact with the Gaddafi regime in Tripoli, with a view to illegal Libyan funding of the approaching 2007 presidential campaign.
More precisely, the court says in its ruling that in October and December 2005 Claude Guéant, Sarkozy's chief of staff, and Brice Hortefeux, his junior minister, negotiated the terms of this pact in Tripoli with the number two of the Libyan regime, Abdullah Senussi, under the authority of and on behalf of then French interior minister Nicolas Sarkozy. Yet Abdullah Senussi, at the time head of Libyan military intelligence, was wanted by the French justice system, having been sentenced in absentia six years earlier to life imprisonment for organising the bombing of the UTA DC-10 flight (which killed 170 passengers and crew over Africa in 1989).
Enlargement : Illustration 1
All these discreet dealings in Libya were overseen and even organised through the toxic middleman Ziad Takieddine, who had “exclusivity” in relation to the Sarkozy team's contacts in Tripoli, according to the court judgement. Takieddine was, moreover, present at every meeting between Sarkozy’s lieutenants and Senussi.
According to the ruling, “no coherent or credible explanation” was given by Claude Guéant and Brice Hortefeux for their successive meetings with Senussi. They tried to portray these meetings as a “trap” whereas the investigation, with the backing of documents, showed they had been planned. “Claude Guéant gave an account of his meeting with Abdullah Senussi [that was] devoid of all credibility”, the ruling tartly notes. Brice Hortefeux's arguments were “equally lacking in credibility”, insist the judges in their verdict, which points out that the two men put themselves in a “position of dependence vis-à-vis Ziad Takieddine”.
“The meetings with Abdullah Senussi on the fringes of official trips could only be linked to a corrupt pact,” the judgement concludes.
According to the evidence gathered by the long criminal investigation, the pact identified by the court consisted, on the Libyan side, of covert funding of Nicolas Sarkozy’s 2007 presidential campaign and, on the French side, of commitments to look into Abdullah Senussi’s legal situation in France and support Libya’s return, as a former pariah state, into the community of nations.
How do Guéant's and Hortefeux's meetings with Senussi involve Sarkozy?
This is the response of the court in its judgement: “So, at a time when Nicolas Sarkozy was seriously considering [editor's note, in October 2005] his candidacy in the presidential election, in a context of rivalry with [fellow rightwing politician] Dominique de Villepin with a risk of a double candidacy [editor's note, on the Right], his closest aide and the candidate’s friend met, three months apart and in conditions of great secrecy, and through the intervention of Ziad Takieddine, who was working for the Libyan government and whom both of them knew well, the number two of the regime, Abdullah Senussi, whose legal situation was a major concern for the Libyans, something they were not unaware of.”
The judges continue: “Claude Guéant and Brice Hortefeux took particular care in their repeated statements in court to keep Nicolas Sarkozy at a distance from their links with Ziad Takieddine and, above all, from their two unofficial, off-schedule meetings with Abdullah Senussi, which is not credible given their closeness and the risk they were thereby taking both for the minister and the [future] candidate. It is even less credible that Claude Guéant, who was on a preparatory trip, did not tell Nicolas Sarkozy about it, given that the latter was to travel to Libya a few days later.”
Was Libyan money paid to fund the campaign?
The answer is yes, as the court notes in its judgement. In fact, it clearly states: “Libyan dignitaries, including Abdullah Senussi, sent money with the aim of funding the campaign.” And there is solid proof for this claim.
First, there are the handwritten notebooks of former Libyan prime minister Shukri Ghanem, whose existence Mediapart revealed in 2016. The court says it has no doubt about the authenticity of these journals, which were discovered by chance in the Netherlands during a Norwegian corruption investigation unconnected with the Libyan funding case in France. In April 2007 Ghanem, who kept a near-daily diary until his suspicious death in Austria in April 2012, noted several payments by Libyan dignitaries for Sarkozy’s campaign. It detailed both the sums and the names associated with them: 1.5 million euros from Bashir Saleh, 3 million euros from Saif al-Islam Gaddafi, Gaddafi's second son, and 2 million euros from Abdullah Senussi.
The second piece of evidence: the “three sources of funding” noted by Shukri Ghanem in his notebooks “match the financial flows uncovered” by the investigation, the courts emphasises in its judgement. That is to say, the 1.5 million euros from Saleh landed in November 2006 in the Singapore account of middleman Alexandre Djouhri; the 3 million euros from Saif al-Islam were paid in January 2006 into a Lebanese account belonging to Ziad Takieddine; and the 2 million euros from Senussi were received in November 2006 in the same Takieddine account. All this is documented in bank records.
The Ghanem notebooks, whose content has been confirmed by the courts, carry decisive weight in this case. They prove that the funds paid by the Libyans in 2006 were intended to fund Nicolas Sarkozy’s campaign. And the date when Ghanem recorded these payments - April 2007 - shows that the Libyan affair, contrary to Sarkozy’s defence, cannot simply have been an invention of the Gaddafi regime in 2011 to take revenge for the war against them led by France.
The proof of Libyan payments to fund the campaign, following the secret meetings of Guéant and Hortefeux with Senoussi in Tripoli when they were operating under Sarkozy’s authority, in the end contradicts the former president’s claim outside the court after his conviction that he had been condemned only because of some plan cooked up by two over-zealous aides.
Why was a detention order issued against Nicolas Sarkozy?
This is not the first time a former president has been sentenced to prison in France – Nicolas Sarkozy had already been so sentenced in the so-called Bismuth phone-tapping case – but it is the first time a court has added a detention order. That is to say, the immediate enforcement of incarceration, even before any subsequent appeal hearing. It means that Nicolas Sarkozy will soon be going to prison. He is due to meet prosecutors at the Parquet National Financier (PNF) financial crimes unit on October 13th to arrange his detention.
In its ruling, the court cites the “utmost seriousness” of the facts revealed in the Libyan case as one reason to justify this measure.
It says: “While Nicolas Sarkozy acted at the time of these events as a candidate [editor's note, for the presidential election], he also held ministerial functions which he used to prepare corruption at the highest level, notably by endorsing the meetings of his chief of staff [Claude Guéant] both with a middleman able to provide him with a covert clearing house to outwit state oversight of financial flows [Ziad Takieddine], and with the number two of the Libyan regime [Abdullah Senussi] sentenced [in 1999, to life] for acts of terrorism committed mainly against French and European citizens [the bombing of airliner UTA DC-10 which killed 170 including 54 French on September 19th 1989]. He also endorsed the meeting of his friend and supporter [Brice Hortefeux], who was himself a junior minister, with that person.”
The judges continue: “The conspiracy he [editor's note, Nicolas Sarkozy] formed with Claude Guéant, Brice Hortefeux and Ziad Takieddine had as its aim the preparation of corruption at the highest level once he was elected president of the Republic, who is guardian of the Constitution and guarantor of national independence. This conspiracy thus concerns the acceptance of funding from a foreign state in return for dealing with the criminal case of a man convicted of terrorism, and for maintaining ties with Libya. These are therefore facts of the utmost seriousness, of the kind to damage citizens’ trust in those who represent them and who are meant to act for the common good, but also in the very institutions of the Republic.”
Moreover, presiding judge Nathalie Gavarino also justified the measure by the behaviour of Nicolas Sarkozy who, during the trial debates, repeatedly played down his final conviction for corruption in the Bismuth phone-tapping case and who took the opportunity to discredit justice, an art he has mastered.
Are there victims in the Libyan affair?
This is a point completely overlooked in the torrent of reaction to Nicolas Sarkozy’s prison sentence. The court did indeed recognise that there are two categories of victims in this conspiracy case.
The first category consists of the families of the victims of the UTA DC-10 bombing. The court ruled that they had indeed suffered moral harm as a result of the negotiations by Sarkozy’s team with the murderer of their loved ones, the state terrorist Abdullah Senussi. To make matters worse, the investigation was able to show that efforts were actually made between 2005 and 2009 to look into Senussi’s legal situation in France. A meeting on the issue was even held at the Élysée in May 2009, the court judgement notes.
Enlargement : Illustration 2
Nicolas Sarkozy, Claude Guéant and Brice Hortefeux were, moreover, ordered by the court to pay joint damages to some of the victims’ families.
The second category of victims is represented by anti-corruption NGOs, who represented civil society in this trial. For the first time, the three main associations - Sherpa, Anticor and Transparency International - joined as civil parties in the same case. Again, the accused were ordered to pay them damages jointly.
Why was Nicolas Sarkozy acquitted for illegal campaign funding when undeclared cash clearly circulated in it?
Some of the millions of euros of Gaddafi regime money received by Ziad Takieddine to fund the 2007 campaign “gave rise to large cash withdrawals at times that matched the time frame of the election campaign”, according to the judgement. As far as the judges were concerned, Ziad Takieddine's bank accounts, hidden under the names of offshore companies in innumerable tax havens, were “typical of the functioning of a covert clearing house”. “Not all the flows could be traced,” the judges admit, precisely because Takieddine, a past master at concealment (and that is the reason why some people turned to him), had managed to “make the money trail so opaque as to be untraceable”.
Yet the judgement did establish that large sums of cash in high-value notes did indeed circulate in the Sarkozy campaign, where they should have been declared by his treasurer Éric Woerth. The latter told the court that the cash in question - he admitted to 35,000 euros being in circulation - had been sent anonymously by supporters via the French postal service La Poste, a claim dismissed by the investigation. For the court, Éric Woerth’s explanations were “devoid of any credibility”.
The judges add in their judgement: “In this case, the court, while giving no credence to the explanations advanced by Éric Woerth, notes that it does not emerge, in an indisputable way, from the proceedings that these sums came from Libyan funds.”
The existence of a safe rented in a Paris bank by Claude Guéant during the presidential campaign was also not, as far as the judges are concerned, proof that the covert funds in the campaign were of Libyan origin. Although Claude Guéant’s arguments to justify this discreet safe rental were judged “fanciful” - he said he had put Nicolas Sarkozy's speeches and some personal papers there - the court ruled that this element of the case was not “sufficient proof” from a legal point of view.
But this does not fully answer the question as to why, when undeclared cash clearly circulated during the campaign, there was no conviction for illegal campaign funding. The court’s answer is technical. There are three elements to it.
- By law, the main perpetrator of illegal campaign funding can only be the candidate. All his subordinates are, legally, his accomplices.
- There is no evidence in the case that Nicolas Sarkozy, the candidate, knew personally of this cash flow (unlike his treasurer), which is why he had to be acquitted.
- If the main perpetrator is acquitted, alleged accomplices cannot be convicted. That is why Éric Woerth, who did not even show up at court for the judgement, was acquitted.
Why was Nicolas Sarkozy acquitted on corruption charges when the court itself considers that a corrupt pact existed?
The court’s explanation on this point is even more technical than for the illegal campaign funding. The judges, as we have seen, ruled that a corrupt agreement was indeed negotiated in autumn 2005 in Tripoli; this pact being part of the conspiracy. Moreover, in law, the money involved in corruption does not have to arrive at its target (in this case, the presidential campaign) for corruption to be established.
So why was there an acquittal on the corruption charge? For a very precise reason, according to the judges: corruption is only possible if the corrupted party holds public authority that can guarantee the promise of a quid pro quo to the corrupter.
Yet, at the time of the pact, Nicolas Sarkozy was “not yet holder of public authority, which would only be conferred on him later by the office [editor's note, of president]”. He was “only” a candidate, which is not legally a public authority. “It appears that Nicolas Sarkozy's actions could have amounted to the offence of corruption if he carried out, after taking office, the pact that had been made before,” the judges write. “Yet no clear positive action to this effect on the part of Nicolas Sarkozy once he was elected president of the Republic has emerged from the case,” they conclude. There is little doubt this legal interpretation will be fiercely debated on appeal.
Why was Thierry Gaubert, who received 440,000 euros of Libyan money, acquitted?
A former aide to Nicolas Sarkozy in the 1980s and 1990s, a close friend of Brice Hortefeux and an associate of Ziad Takieddine, businessman Thierry Gaubert received, in February 2006 in the Bahamas, 440,000 euros from Ziad Takieddine’s Libyan monies. This transfer took place a few days after the Hortefeux-Senussi meeting in Tripoli.
While they did not take seriously his explanations in the dock about the origin of the funds, the judges still ruled that “no link was established between Thierry Gaubert and Libya […] and nothing shows that he knew the transfer […] came from that country”. This interpretation of the evidence in the case is very likely to be challenged by the PNF, since the prosecutors say that they unearthed exchanges from 2006 between Brice Hortefeux, Thierry Gaubert and Ziad Takieddine that did indeed involve Libya.
The judges also note that “Thierry Gaubert's emails and notes show that ties with Nicolas Sarkozy were not completely broken but remained limited and institutional”. As for the note “NS campaign” found in Gaubert's diary before he received the money from Takieddine, the court judged that this could be linked to a press article published the same day on changes to the statutes of the rightwing UMP party (now Les Républicains) before the presidential election. This was an explanation that Thierry Gaubert himself had never given during the investigation, but which suddenly appeared during the trial hearings.
Be that as it may, for all these reasons, the receipt of 440,000 euros in a tax haven by Thierry Gaubert covers only one offence: laundering the proceeds of tax fraud, for which he has already been convicted. In French law a person cannot be tried twice for the same facts. The court’s verdict was thus one of acquittal.
Are the Libyan funds limited to the conspiracy charge?
No. But the attention on Sarkozy tends to obscure any focus on Claude Guéant. For in this multi-faceted case there is also a story of personal corruption that led to the secretary general of the Élysée under Sarkozy being handed the tough sentence of six years in jail; though he will avoid spending time behind bars because of his age and health.
More precisely, the court established in its judgement that the 500,000 euros received by Claude Guéant in March 2008 were sent by middleman Alexandre Djouhri who “completed the operation” with the embezzlement of Libyan public funds organised with Gaddafi’s chief of staff, Bashir Saleh.
Claude Guéant had tried to explain the origin of this 500,000 euros as coming from the sale of two small paintings. For the court, this was nothing but a “cover story to justify fictitiously the receipt of 500,000 euros in 2008”. “There is no evidence that Claude Guéant ever possessed these paintings,” the judges ruled, for whom “anomalies taint the credibility of Claude Guéant’s account” and a “version” of events which “defied all logic”.
In the end, say the judges, there exists a “body of serious, precise and consistent evidence linking Alexandre Djouhri to the payment of 500,000 euros to Claude Guéant”, in exchange for which the Élysée secretary general leaned on EADS – the European aerospace and defence company that merged into Airbus - so that the middleman could pocket hidden commissions linked to a contract for planes sold to Libya.
Are those who were convicted still presumed innocent?
From the moment they have lodged an appeal to challenge the ruling of the criminal court, all those convicted in the Libyan case benefit under French law from the presumption of innocence.
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- The original French version of this report can be found here.
English version by Michael Streeter
