On Thursday January 28th, the criminal division of France's top appeal court, the Cour de Cassation, heard an appeal from former French president Nicolas Sarkozy against a decision by investigating magistrates in July 2014 to place him under formal investigation over corruption allegations. Sarkozy was placed under investigation – one step short of charges bring brought – for “corruption” and “influence peddling” plus breaching professional secrecy rules over claims that he used his lawyer, Thierry Herzog, to obtain confidential legal information about the Bettencourt affair from senior judge Gilbert Azibert. In return Azibert is said to have sought help in getting a top job in Monaco. The two other men are also under formal investigation and were part of Thursday's appeal hearing.
The stakes could hardly be higher. If the Cour de Cassation's verdict – expected on March 22nd – validates the formal investigation then it is likely, though not certain, that Sarkozy, Herzog and Azibert will all be formally charged and sent for trial. In the meantime Nicolas Sarkozy, president of the conservative opposition party The Republicans (LR), is expected to stand in the Right's primary in the autumn of 2016 to choose a candidate for next year's presidential election.
Meanwhile the judges at the Cour de Cassation are themselves in an unusual situation as they deliberate on what has been dubbed the 'Paul Bismuth affair', so-named after the alias used by Sarkozy for phone conversations when he – correctly - feared his phones were being tapped by the judicial authorities. For the examining magistrates who have carried out the investigation, Patricia Simon and Claire Thépaut, ordered searches of offices at the Cour de Cassation itself, questioned senior staff and placed Azibert, the senior advocate general at the Cour de Cassation, under investigation.
The Bettencourt affair is the backdrop to the current probe into alleged corruption by Sarkozy, which centres on the former president's diaries. These had been seized by judges investigating the Bettencourt affair. Once the case against him in that affair was dropped, the former president wanted to annul the seizure of these diaries, to stop them being used in other affairs that threatened him. The claim is that Azibert spoke to colleagues at the Cour de Cassation and consulted documents on the court intranet to find out the progress of the legal moves to get the diaries returned, and then reported back to Herzog.
As a senior magistrate in the civil division of that court, Azibert had no business involving himself in matters that related to the Bettencourt affair, which was being dealt with by the criminal division of the Cour de Cassation. In return for his information Azibert is said to have wanted Sarkozy's help in obtaining a plum job as a state advisor in Monaco. According to taped conversations Sarkozy agreed to this request, though ultimately did not follow through on it. All three men deny any wrongdoing.
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In Thursday's hearing Patrice Spinosi presented the former president's appeal against being placed under investigation. He told the judges at the Cour de Cassation that “Nicolas Sarkozy [is the] object of every judicial fantasy”, the victim of “lengthy and dragnet” telephone taps, in other words unlawful ones. In essence the lawyer argued that making available the transcripts of the telephone taps put on Sarkozy in one investigation (into claims his 2007 campaign was funded by Colonel Gaddafi's Libya) for another probe (the current 'Paul Bismuth affair') had deprived his client of the right to check the procedural validity of those phone taps.
Citing European law, Spinosi spoke of the need to apply the principles of “proportionality and necessity” to these infringements of his client's privacy. According to him, it was a “dubious procedure” that had triggered the proceedings against the former head of state in the Bismuth affair, and needed to be struck down.
Representing Thierry Herzog, barrister Emmanuel Piwnica highlighted the “confidentiality of conversations between the lawyer and his client. An absolute confidentiality, inviolable”. This confidentiality, he argued, was undermined by the judicial phone taps put on the telephone line belonging to Nicolas Sarkozy - who is also a lawyer – and even the tap on the phone that he used under the pseudonym Paul Bismuth to talk with his lawyer and friend, Thierry Herzog.
Gilbert Azibert's lawyer, Hélène Farge, told the court that the procedure had been “hijacked” and that the police and judges' investigations had been pursuing facts which were not within their remit. Finally, lawyer Claire Waquet, also representing Azibert, suggested that the national financial crimes prosecution unit (PNF) was not in law the correct body to start the probe into the Bismuth affair, that the hi-tech company Elektron should not have been chosen to carry out the phone taps, and that the seizure of working documents at the Cour de Cassation itself constituted “an infringement of the confidentiality of judges' deliberations”.
The lawyer representing the prosecution at the Cour de Cassation, François Cordier, responded to each of the points raised by the appellants' barristers, firstly noting that the Libyan-Sarkozy funding affair was covered by judicial confidentiality. Therefore it was impossible for the legitimacy or otherwise of the phone taps in that affair to be openly challenged, as Nicolas Sarkozy's lawyers hoped. Cordier also tackled the question of lawyer-client privilege and confidentiality, reminding the court of the legal principle that “the defence stops where the offence begins”. In other words, a lawyer who commits an offence that is revealed in a tapped telephone call cannot then invoke lawyer-client confidentiality to ask for that very same phone tap to be struck down. According to him the examining magistrates, the police and the financial prosecutor's office had all respected the procedural rules.
However, François Cordier did argue that two transcripts of the phone taps – a conversation between Nicolas Sarkozy and Thierry Herzog on another issue and a discussion between Thierry Herzog and the head of the Paris Bar, Pierre-Olivier Sur – should have been struck down. He also called for another part of the appeal to be granted, relating to the working documents seized at the Cour de Cassation itself. But according to criminal lawyers present in court these are relatively small points which do not undermine the validity of the entire phone tap procedure in this affair. Attention now turns to the verdict due on March 22nd, and in particular to the impact it will have on Nicolas Sarkozy's political ambitions.
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- The French version of this article can be found here.
English version by Michael Streeter