In the coming days the judicial inspectorate, the Inspection Générale de la Justice (IGJ), will deliver a report to justice minister Nicole Belloubet about a case involving a judge, Éric Alt. This follows the decision by the minister on July 5th 2019 to refer two complaints to the IGJ about Alt, who is a judge in the industrial tribunal division of the judiciary and also vice-president of the anti-corruption organisation ANTICOR. Alt is a well-known figure in the fight against corruption, and has played a role, too, in the association Sherpa which works for victims of financial crimes, and in the judges' representative body the Syndicat de la Magistrature (SM). He also has his own blog on Mediapart.
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Once she has received the report Nicole Belloubet has two options; she can either chose to leave the matter there or send Éric Alt to appear before the disciplinary panel of the judge's ruling body the Conseil Supérieur de la Magistrature (CSM).
Eric Alt has come under fire from the minister over two issues. First of all he represented ANTICOR in person - when its president was unavailable – on February 28th 2018 to confirm that the organisation was joining as a civil party in the alleged financial impropriety case involving Richard Ferrand, a close ally of President Emmanuel Macron and currently president of the National Assembly. Moreover, Alt did not make clear at the time that he was also a judge. The investigating judges in charge of the case at the time, Renaud Van Ruymbecke and Cécile Meyer-Fabre, apparently did not recognise him. After it emerged that the Parisian judge had represented ANTICOR during a hearing, the Ferrand case was, as a legal precaution, moved to a court at Lille in northern France.
The second complaint is that when interviewed on France 3 television on February 16th 2019 Éric Alt was not sufficiently measured in his response to comments made by a prosecutor from Ajaccio in Corsica. During a joint press conference both the prosecutor and the prefect of Corsica had made ironic references to ANTICOR's formal complaint to the national financial crimes prosecution unit about an alleged European Union agricultural payments fraud case that they felt should have come under their local remit in Corsica. In response, Éric Alt said that the prosecutor had somewhat “thrown away” his “appearance of impartiality” (see interview here).
The president of the Syndicat de la Magistrature, Katia Dubreuil, who is helping Alt's case at the IGJ, thinks the executive is making unfounded accusations against the judge. “One can wonder at the reasons which led the minister to call for this administrative inquiry, when the judicial management involved in the Ferrand affair and his own line management in the Corsican affair had earlier taken the view that Éric Alt had committed no fault. So to us it seems incongruous that the minister should take the matter up with the inspectorate.”
In September 2019 both the SM and another judge's representative body, the Union Syndicale des Magistrats (USM), sent a joint letter to Nicole Belloubet calling on her to go back on her decision to launch an inquiry into Alt. Then in October fifty judges wrote a joint op-ed article announcing that they were joining ANTICOR out of solidarity with their colleague.
To many, the minister's concerns about Éric Alt's action seem relatively trivial in nature. It is true that the Ferrand affair was moved to another court jurisdiction by the top appeal court, the Cour de Cassation, in July 2018 because Éric Alt's personal presence in the case could have given rise to doubts about the impartiality of the Paris court.
But the Cour de Cassation came to a different view on this very same question during the recent trial involving the right-wing politician Patrick Balkany and his wife Isabelle, in which both ANTICOR and Sherpa had initially joined the proceedings as civil parties. “These elements are not of a nature as to raise a doubt about the impartiality of the High Court of Paris, given that Mr Éric Alt is not part of the team in charge of judging the affair, that he has no criminal law role, and that more than 300 judges are assigned to the jurisdiction in question,” the criminal division of the Cour de Cassation ruled on May 28th 2019, rejecting claims of potential bias by the couple's son Alexandre Balkany who was also on trial.
Katia Dubreuil said that Éric Alt simply represented ANTICOR in a formal part of the Ferrand case and that this did not constitute “the slightest disciplinary mistake. He doesn't work in the same offices as the investigating judges and the [financial crimes prosecution unit]; he doesn't do criminal law, and he didn't discuss the case with them.” The president of the SM also pointed out that not all cases are moved to another jurisdiction just because a judge represents one of the parties in a hearing. “In cases of contempt of court you carry out proceedings and reach a judgement in the same court where the colleague [editor's note, the judge in whose court the contempt occurred] presides,” she said. “A Parisian judge was tried in Paris for defamation. And the case of a Parisian judge who was the subject of a murder attempt was investigated in Paris. These are very thin lines.”
In relation to the Corsican case, Katia Dubreuil said that ANTICOR had “committed itself to supporting the farmers who were victims of the European agriculture subsidy fraud when the state services did not react. It was ANTICOR which referred it to the [European Union anti-fraud unit] OLAF, then made a formal complaint to the [French financial crimes prosecution unit]; it had precedence in this case.” She continued: “When the Ajaccio prosecutor denigrated the actions of ANTICOR during a press conference, even though the state services had been castigated by OLAF, that indeed posed a problem over the appearance of impartiality. Éric Alt just responded to this in a measured manner, in his capacity as vice-president of ANTICOR, and in a manner in line with his professional responsibility.”
The SM president said it was paradoxical to nitpick over what Éric Alt had done. “He is one of those judges who brings a certain number of issues such as the fight against corruption into public debate,” she said. “The heads of judicial bodies are allowed to express themselves publicly without causing a problem, for example on domestic violence. It's important that the fight against corruption also gets highlighted.” She said that if justice minister Nicole Belloubet did refer the two cases to the ruling body, the CSM, then that would amount to a persistent “desire to intimidate all judges who speak out and get involved.” Katia Dubreuil concluded: “Judges' freedom of expression, and their involvement in union or associations, are guaranteed under the European Convention on Human Rights and there are legal precedents on these matters.”
Was the Élysée involved?
Several sources say they detect the hand of the Élysée behind Nicole Belloubet's decision to call for an administrative inquiry into Éric Alt. It was indeed ANTICOR who were behind the Ferrand affair from the start, and who then kick-started it again in the face of inertia from prosecutors. National Assembly president Richard Ferrand, a key figure in President Macron's La République en Marche (LREM) party, was finally placed under formal investigation for “illegal conflict of interest” in September 2019.
The subsequent reaction of President Macron's allies to Ferrand being placed under investigation was astonishing. Gilles Le Gendre, who is president of the ruling LREM group of MPs at the National Assembly, said on LCI television: “All it took today for this formal investigation to occur was a complaint from an association. Can an association influence the normal workings of the institutions? The answer is no!” Many critics, however, believe that prosecutors protect the powerful and point out that Richard Ferrand has sought to cling on to his job despite being placed under investigation. All of which, say the critics, has a devastating impact on voters' trust in their elected representatives and institutions.
The president of ANTICOR, Jean-Christophe Picard, is almost amused by the reaction to his organisation's involvement in the case. “As far as I'm concerned it was the Ferrand affair that annoyed them. The inquiry into Éric Alt shows a form of panic over an association such as ANTICOR having the authorisation to use its rights to be a civil party in corruption cases, and using those rights,” he said. “We are criticised for using our authorization in cases which affect powerful people, but that's our right. If you want to stop fighting against breaches of probity on the pretext of not overloading the courts, that gets worrying.”
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The ANTICOR president continued: “Éric Alt used his freedom to speak out in the Corsican case and just signed some papers in the Ferrand case. He's an industrial tribunal judge and what he deals with as judge has nothing to do with ANTICOR, it's completely separate, there's no conflict of interest. The [La République] En Marche! MPs take the liberty of commenting on a judicial investigation despite the separation of powers, and they would have people believe that we are judges in our own cases, that ANTICOR judges cases. It's very serious.”
Jean-Christophe Picard said he fears that the Ministry of Justice might withdraw its authorisation for ANTICOR to join cases as civil parties, as indeed happened with Sherpa in January 2019. That anti-corruption association only had its authorisation restored a few days ago. Sherpa itself said in statement on November 25th : “While the association is reassured by this decision in its favour [editor's note, to restore its authorization], it remains that fact that it was given belatedly in a context that is generally unfavourable for associations acting in the judicial arena.”
ANTICOR president Jean-Christophe Picard meanwhile said he worried about the “quite vague criteria” that the Ministry of Justice uses to decide whether to renew this authorisation every three years; these criteria include the age of the non-governmental organisation involved, the number of members it has, its activity, its funding and so on. “What is worrying is that the ministry did not give any justification or reasons for refusing to renew Sherpa's authorisation. The next deadline for us is in two years,” said Picard. “If they take the authorisation away from us that solves the problem, we'd no longer be able to take legal action. And when cases are buried by the prosecution authorities, well, they'll stay so definitively.”
It is indeed NGOs who have, since the start of the 2000s, triggered judicial cases involving improperly-acquired goods, the affair of the Élysée opinion polls and the case involving the current chief of staff to the president, Alexis Kohler. And under the presidency of Emmanuel Macron it is still ANTICOR which is rekindling cases of public importance and overcoming inertia or shortcomings on the part of prosecutors. It is curious, then, that both Sherpa and ANTICOR have recently been the subject of attacks in the press and in the courts, with questions raised about the issue of impartiality.
“We've been told nonsense about ANTICOR,” said Jean-Christophe Picard. “I read that [editor's note, former justice minister] Christiane Taubira had been behind our current authorisation, which is wrong. It was renewed last year by [current justice minister] Nicole Belloubet. I read that there were questions over our funding. Yet we don't get any grants and all our accounts are online on our website. We have 3,500 members. Seventy-five percent of our income comes from memberships, the rest comes from individual donors and not companies, with an average of 107 euros per donation. This enables us to pay our lawyers.”
The president of ANTICOR adds: “We don't cost anyone a penny and judges are not obliged to go along with us, If they do so it's because we must be right.” The executive's control over prosecutors and the burying of cases does, in any case, create a worrying climate, the NGOs believe. Meanwhile Jean-Christophe Picard and the lawyers at ANTICOR are getting read to rekindle the Kohler affair. “We were surprised that a decision was taken to take no further action in this case in the middle of August [2019], when there was a vacancy at the head of the national financial crimes prosecution unit.”
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The French version of this article can be found here.
English version by Michael Streeter