It is a legal earthquake for both France's judicial system and the network of friends and confidants around former president Nicolas Sarkozy. On the morning of Monday June 30th senior judge Gilbert Azibert, aged 67, was taken in for questioning in Bordeaux over his alleged role in the Bettencourt affair. Sarkozy's close friend and lawyer Thierry Herzog was also in police custody at the offices of the fraud squad the Office central de lutte contre la corruption et les infractions financières et fiscales (OCLCIFF) based at Nanterre, west of Paris. A third man, Patrick Sassoust, the advocate general or state prosecutor at the criminal division of France's top appeal court the Cour de cassation – the Court of Cassation - was also being questioned in custody.
On the evening of Tuesday, July 1st Azibert and Herzog were both placed under formal investigation in relation to the probe, a status that is one step short of formal charges being brought. For judges to put someone under formal investigation - 'mis en examen' in French - it means they consider they have 'serious and concordant' evidence that the person was involved in the crime that has been alleged. Patrick Sassoust, however, was released from custody with no further action being taken.
All three men were quizzed as part of a judicial investigation by two examining magistrates into allegations of ‘influence peddling’ and ‘violation of the secrecy of an investigation’, with the questioning continuing the following day. Gilbert Azibert is suspected of having passed on highly confidential information involving the former French president and the Bettencourt affair. In return he is said to have hoped that the former president would help him become a member of the Council of State in Monaco after his impending retirement from the French judiciary.
The investigation, led by examining magistrates Patricia Simon and Claire Thépaut, was launched in February after phone taps on Sarkozy's mobile phone in relation to another investigation – that of illegal Libyan funding of his 2007 presidential campaign – revealed potentially compromising conversations linking Herzog, Sarkozy and Azibert to information regarding the Bettencourt affair.
When news of the investigation first broke in March 2014, Gilbert Azibert went off on sick leave from his position as lead advocate general at the Cour de Cassation and spent two months in the Bordeaux region where he lives. But rather than wait for his scheduled retirement later this year, Azibert decided to resume his position at court in mid-May. To the surprise of some colleagues he even went on a trip to Russia with lawyers from the Cour de Cassation and France's top administrative court the Conseil d'État.
During this period the two investigating magistrates had, one by one, discreetly interviewed judges at the criminal division of the Cour de Cassation, which had dealt with the crucial issue of what should happen to Nicolas Sarkozy's diaries which had been seized as part of the Bettencourt investigation. The former president wanted to annul the seizure of these diaries, which had already been made use of in the Tapie affair, to stop them being used in other affairs that threatened him, such as the Libyan funding scandal. According to judicial sources close to the investigation the judges also listened to the phone tap recordings made by the police, to ensure there were no mistakes or misunderstandings in their transcription.
According to sources, searches of Azibert's office and home also revealed files relating to the Bettencourt affair on his computer. Yet these documents had nothing to do with Azibert's role at the Court of Cassation, where he is in the 2nd civil division, which was not involved in the Bettencourt affair. The questioning of Patrick Sassoust would suggest that – at the very least – contact was made between these two judges over the Bettencourt affair.
The questioning in custody of Gilbert Azibert could lead to the judge being placed under formal examination – one step short of formal charges – for 'influence peddling'. This would mean the end of his career. So far he has not faced any disciplinary action as a judge, though the prosecutor general Jean-Claude Marin did make moves to replace Azibert while he was on sick leave. The fate of Thierry Herzog and Patrick Sassoust also remains uncertain. The phone taps reveal Herzog in deep conversation with Azibert. However, many members of the criminal bar in Paris expressed their support for their colleague Herzog when the affair first broke.
The question immediately arose as to whether Nicolas Sarkozy himself would be questioned in relation to the allegations, and this indeed took place on Tuesday July 1st. While under surveillance by judges investigating the Libyan funding the former president became very discreet when talking on the phone. The former president bought a new mobile phone in Nice in southern France and assumed a new name – 'Paul Bismuth' – in a bid to escape detection. Neither he or Herzog knew that the new phones were also being bugged by the police, who also found out that the lawyer himself had a secret phone.
As part of the investigation magistrates Patricia Simon and Claire Thépaut ordered the search of offices at the Cour de Cassation itself on 4 March, the first time such a search had ever been carried out. Staff at the country's highest appeal court were apparently deeply shaken by the experience.
A string of senior appointments
As a judge, Gilbert Azibert has had a very political career. Having reached the age of retirement in 2012, he continued at the Cour de Cassation after a decree by Nicolas Sarkozy issued on May 9th, 2012, in other words after Sarkozy's election defeat and just before his successor François Hollande was formally invested as president.
A man clearly of the Right, and with a large network of contacts, Azibert occupied senior positions under both Sarkozy and his predecessor President Jacques Chirac. In particular he was head of the prison service the Administration Pénitentiaire (from 1996 to 1999), ran the judicial training school the École nationale de la magistrature (2002 to 2005), was the state prosecutor at the court of appeal in Bordeaux (2005 to 2008) and was then catapulted into the post of secretary general at the ministry of justice (2008 to 2010). Though he was in the running to succeed Jean-Louis Nadal as head of the state prosecutor’s office at the Cour de Cassation in 2011, he eventually lost out to his great rival Jean-Claude Marin. In recent times the judge's professional body the Syndicat de la Magistrature has criticised what it saw as Azibert's authoritarian running of the training school, and also some of his controversial decisions while state prosecutor in Bordeaux.
Thierry Herzog, a friend for 25 years of Gilbert Azibert, has a special place in the Sarkozy circle. He has been “a friend for 30 years” with the former president, the two having met as young lawyers at the start of the 1980s. Herzog became Sarkozy's defender when the latter became a politician, and remained so when he entered the Elysée in 2007. Herzog's practice has been very closely involved in defending the different complaints filed against Nicolas Sarkozy, whether as minister of the interior or president, from the Clearstream affair to the Sarkozy voodoo doll he tried to ban and the hacking of his bank account.
Herzog was a specialist criminal defence lawyer, who was acclaimed and combative in equal measure, and who defended the Tiberi family – Jean Tiberi was mayor of Paris from 1995 to 2001 – before becoming an official advisor to Jacques Chirac. For many years he has kept a close eye on the different affairs that have threatened his friend Nicolas Sarkozy, and he has never been slow to do battle, most notably in the Takieddine affair and the Bettencourt affair. A paid up member of the right-wing RPR party and its successor the UMP, the lawyer was awarded the Legion of Honour by Sarkozy in 2009.
During his long career Herzog has crossed paths with his friend Gilbert Azibert on more than one occasion. In June 2001, for example, Herzog succeeded in getting the annulment of part of the investigation targeting Jean Tiberi's wife Xavière Tiberi over allegations of voting fraud in Paris's 5th arrondissement or district. A few months earlier the lawyer had won a ruling from the court of appeal annulling other proceedings against Xavière Tiberi, this time in relation to allegations of fictitious employment at the general council of the Essonne département – broadly equivalent to a county. In particular she had received 200,000 francs (about 30,000 euros) in 1994 for a 36-page report on the French-speaking world, a report found to be riddled with errors, which some alleged was written after the affair broke in order to justify the payment.
At this period Azibert was the president of the investigations chamber at the court of appeal in Paris, a position he held from 1999 to 2002, which dealt with both Tiberi cases. In that role Azibert was loved by criminal defence lawyers as much as he was hated by examining magistrates. He annulled proceedings in several investigations for what some considered harsh reasons, citing errors in procedure and technicalities, earning him the nickname of “Annulator” (“Annuller”).
-------------------------------------------------------
Read the French version of this article here.
English version by Michael Streeter