The French budget minister, the Swiss account and the judicial inertia that begs major reform

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French budget minister Jérôme Cahuzac earlier this month announced he was suing Mediapart for defamation after this website published an investigation revealing that he had held for a number of years, before he became a member of the government, a secret Swiss bank account. Since its first report, Mediapart has published further information including a tape recording in which a voice identified by witnesses in the affair as that of Cahuzac can be heard discussing the account. While the government stands by its budget minister, who denies ever holding a bank account abroad, the justice authorities have made no move to investigate the case, prompting Mediapart’s Editor-in-Chief Edwy Plenel to write to the Paris public prosecutor’s office demanding an independent judicial enquiry. In this interview, Mediapart’s lawyer, Jean-Pierre Mignard, argues that the judicial inertia is the result of the submissive hierarchical relationship between the prosecutor’s office and the executive political powers, one which President François Hollande has previously pledged to bring to an end.

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French budget minister Jérôme Cahuzac earlier this month announced he was suing Mediapart for defamation after this website published an investigation revealing that he had held for a number of years, before he became a member of the government, a secret Swiss bank account. Since its first report, Mediapart has published further information (see links at end of page 2) including a tape recording in which a voice identified by witnesses in the affair as that of Cahuzac can be heard discussing the account. While the government stands by its budget minister, who denies ever holding a bank account abroad, the justice authorities have made no move to investigate the case, prompting Mediapart’s Editor-in-Chief Edwy Plenel to write to the Paris public prosecutor’s office on December 27th demanding an independent judicial enquiry. In this interview, Mediapart’s lawyer, Jean-Pierre Mignard, argues that the judicial inertia is the result of the long-standing submissive hierarchical relationship between the prosecutor’s office and the executive political powers, one which President François Hollande has previously pledged to bring to an end.

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MEDIAPART: Some have expressed surprise at Mediapart’s letter addressed to the public prosecutor’s office about the Cahuzac affair. Why is this initiative, if unusual, a legitimiate one?

Jean-Pierre Mignard: There is no reason for opposing the principle, or to take offence at it being sent. Monsieur Cahuzac, for his part, has already taken the matter up with the public prosecutor’s office, via the Minister of Justice. There is symmetry in the reaction. More than any individual citizen, but acting at the same level, a journal is a whistleblower at the service of the public interest. By writing this letter, you are following the logic of this all the way. You are assuming responsibility for the information you have published, and you are asking the justice authorities to take up the matter. The European Court of Human Rights in Strasbourg, and the criminal chamber of the [Paris] Appeals Court repeat this in their rulings. To argue the opposite would be tantamount to a change in political society.

But let’s get to the heart of the [different legal] procedures that have been launched. Monsieur Cahuzac complains that he has been defamed by Mediapart’s revelations, and he most certainly is. To maintain that there exists a secret bank account hidden in Switzerland with the aim of, even partially, escaping fiscal responsibilities is defamatory by nature.

It is for Mediapart, as it is for any publication, to provide the proof of the claims or to demonstrate it has acted in good faith. It should be noted that, in almost all legal cases of defamation, judges take into consideration the issue of good faith when deciding to dismiss cases against journalists, because proof is rarely there to be provided. I’ll return to the issue of proof later.

In jurisprudence, the criteria for dismissing cases [brought against journalists] are the legitimate aims in publishing the information, the seriousness with which an investigation has been carried out and, therefore, the contradictory nature of the published information, the absence of any personal animosity and the moderate language used in its presentation. If these four criteria are met by the publishing organ, it is judged to have acted in good faith. In other words, if what has been presented is sufficiently detailed, this suffices for the [defamation] case to be dismissed. It may appear strange, but a complaint for defamation can be thus concluded, with the plaintiff defamed while the journalist has argued that his work was carried out in good faith.   

MEDIAPART: You mean that the existence of proof, in the clear and definitive sense of the term, is not an essential issue in a case brought against the press?

J-P M.: No, upon condition, all the same, that what is asserted is not plucked out of the air. For what does one mean by proof?  Often, there is not the least proof at the start of an investigation. Any police officer would confirm that. One has only leads, and if there is more than one then this can be referred to as a series of leads. But this series of leads can be sufficient for charges to be brought and the holding of a trial. Put differently, it’s not the defamation suit brought by Monsieur Cahuzac which will shine a light on this affair. It is not an adequate judicial solution.

MEDIAPART: What, then, is the judicial solution?

J-P M.: It cannot come from Mediapart alone. Mediapart has no justification for launching a lawsuit, other than that of contesting the defamation action and responding in turn by bringing a case for improper proceedings.  

However, I have heard your journalist colleagues demand you provide proof, like [Molière’s penny-pinching character in The Miser] Harpagon demanding his purse. But, as I said, it is often only at the stage of leads that affairs begin, rarely with proof. Now, it is not for Mediapart or any journalist to present proof – that would take the cake – it is for the justice authorities to find. Those who condemn Mediapart about this demonstrate either their ignorance or a notion of democracy that is in need of an intensive medicating dose of vitamins.  

Only the justice authorities have at their disposal the far-reaching investigative powers that permit the discovery of the truth, within the respect of the rights of the different parties. It is simply now a case of deciding whether the public battle that has been fought until now is one that can set them in motion.

MEDIAPART: In other words, the complaint lodged by Monsieur Cahuzac and recognised by the public prosecutor’s office is not something that will lead to the discovery of the truth?

J-P M.: No, it is an action for defamation with the aim of satisfying the demands of one of the parties involved. There is no procedure [underway] to investigate the facts themselves, rather a procedural formality which aims only to verify whether the authors of the articles are identifiable, and whether they have an address where an eventual summons against them can be sent. It therefore appears that no-one in this case wants to move quickly, nor has an interest in doing so.

MEDIAPART: There is a need, then, for a separate legal procedure to be launched?

J-P M.: To discover the truth, definitely, beyond your revelations and the denial of Monsieur Cahuzac. For this, the public prosecutor’s offices in Paris or Agen, the two which have jurisdiction, must open a preliminary investigation into the leads that have already been produced in public.

MEDIAPART: Are these leads sufficient to prompt an investigation?

J-P M.: I don’t know the fine detail of the case but, like millions of people, I have followed the saga of the [voicemail] recording of what Monsieur Cahuzac is supposed to have said and which was made public here [at Mediapart], which was at first dismissed out of hand by him and which was later authentified by a former head of the bar in Agen, a political opponent of Monsieur Cahuzac, and then [also] by a former investigating magistrate, Monsieur [Jean-Louis] Bruguière, who was himself a [general election] candidate who stood against Monsieur Cahuzac.

He [Bruguière], and it’s quizzical, showed so little curiosity that he claims he didn’t find out what was on [the recording], and destroyed it. Monsieur Bruguière suffered a certain number of setbacks in the investigations that he was in charge of. But if he, out of a moral sense, destroyed leads or proof, then some of his failures become, in retrospect, explicable.

With this amount of muddle, and because the issues are grave, the public prosecutor’s offices in Paris or Agen need to take over and to demand that these two people give the recording [and copies] to the justice authorities, and also to question them. It is, it seems to me, the least that one can ask for.

Instead of calling upon Mediapart to provide proof and, while doing so, attacking it, as I read here and there in very hastily prepared [media] commentaries, your colleagues should address their calls for action to the public prosecutor’s offices. In a democratic society, there exist rules of law and it is judges, and notably investigating magistrates, and they alone, who are competent to evaluate the solidity of proof or the existence of leads. For judges, not a gathering of journalists.

The opening of a preliminary investigation does not mean Monsieur Cahuzac has done wrong, rather it is the minimum required to satisfy the curiosity of the justice authorities [into the affair] at the stage we’ve reached today. Afterwards, it will be for the public prosecutor’s office to make an appreciation [of the evidence]. Either it continues the investigation, or it calls for the opening of a formal judicial investigation, or it dismisses the case because there was nothing tangible or sufficient.          

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