Former president Nicolas Sarkozy has been placed under formal investigation as part of a corruption probe by examining magistrates in relation to 'active corruption', 'influence peddling' and receiving information as a result of the violation of rules on professional secrecy. Just after 11.30pm on Tuesday evening, July 1st, having been held for questioning all day, he was brought before examining magistrates Patricia Simon and Claire Thépaut and emerged at 2.20am on Wednesday having been put under investigation – mis en examen in French.
The ex-head of state, the first former president to have been held and questioned in custody, is suspected of having 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 presence of the offence of 'active corruption' - the most serious faced by Sarkozy - came as a surprise to legal observers as the original investigation was not launched under this heading.
According to some reports Sarkozy, who denies any wrongdoing, had been expecting to be questioned about the affair but not to be placed in custody, and not to be placed under formal investigation at the end. In March Sarkozy made clear his anger at the judicial actions taken against him by writing a newspaper article in which he likened the phone taps on him to the behaviour of the Stasi secret police in East Germany.
And in an interview with TF1 television and Europe 1 radio broadcast on Wednesday evening Nicolas Sarkozy made clear his anger and “shock” at the way he was treated by the judges. The former president declared: “The situation is sufficiently serious for me to tell the French people what the situation is regarding a political abuse of process by a section of the judiciary today.” He directly criticised one of the examining magistrates, Claire Thépaut, who is a prominent member of the left-leaning judges' union the Syndicat de la magistrature (SM), and who spoke at length in an article for Mediapart in May 2012 expressing hope that the judiciary would face “calmer” conditions under the presidency of the newly-elected François Hollande.
“Is it normal that they chose a magistrate who is a member of the SM, whose political obsession is to destroy me?” The former president complained that he was kept in police custody for 15 hours before being seen by the two magistrates at 2am. He contrasted this with the treatment of former socialist budget minister Jérôme Cahuzac who left the government last year over a tax scandal. “Cahuzac didn't spend a second in police custody. There is a desire to humiliate me,” he insisted. “There are things which are in the process of being organised, the French people should know this.” Sarkozy added: “I am profoundly shocked. Is it normal for my conversations to be recorded then broadcast by journalists? I say to all those who are listening or watching that I have never betrayed them and have never committed an act against the Republic's principles and the rule of law.” However, the former president declined to say if or when he would be returning to front-line politics, saying he would make a decision at the end of August or the beginning of September.
Thierry Herzog and Gilbert Azibert, 67, who had been in police custody since Monday morning, were also brought before the examining magistrates on Tuesday evening and similarly placed under formal investigation. However, 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 released from custody without any further action. It was this court division that was handling the part of the Bettencourt affair that Sarkozy and his lawyer are said to have wanted information on. For judges to put someone under formal investigation it means they consider they have 'serious and concordant' evidence that the person was involved in the crime that has been alleged.
If charged with and convicted of 'active corruption', Sarkozy could face a jail sentence of up to ten years and a fine of one million euros. If charged and convicted of 'influence peddling', the former president could face a prison term of up to five years and a fine of €500,000. Article 433-2 of the French criminal law code defines the offence of influence peddling - trafic d'influence in French - as “the fact, by anyone, of seeking or agreeing to, at any time, directly or indirectly, offers, promises, gifts, presents or any benefits whatsoever, for themselves or for others, to abuse or to cause to be abused their real or supposed influence with the aim of obtaining from a [public] authority or a public administration honours, jobs, business or any other favourable decision”.
'Active corruption' is defined by article 433-1 of the French criminal law code as “the act, by anyone, of offering without the right to do so, at any time, directly or indirectly, offers, promises, gifts, presents or any advantages to a person exercising public authority, charged with a public service mission or who holds elected public office, for themselves or for others; 1: either so that they carry out or do not carry out, or because they have carried out or have not carried out, an act within their role, mission or office, or facilitated such an act by their role, mission or office; 2 or in order that they abuse or because they have abused their real or supposed influence with a view to obtaining from a public authority or administration honours, jobs, business or any other favourable decision.”
In March 2013 Nicolas Sarkozy was placed under investigation in relation to the Bettencourt affair. Proceedings were later dropped, though not before the judicial action against him had sparked a major political row. The Bettencourt affair is also central to the current probe into alleged corruption by Sarkozy, which relates to the former president's diaries. These had been seized by judges investigating the Bettencourt affair. Once the case against him in the Bettencourt affair had been dropped, 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.
The investigation into the current affair began in February 2014 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 attempts to find out how the courts were dealing with the key issue of those diaries.
In one conversation recorded by the police in January 2014, Sarkozy's lawyer Thierry Herzog informs Nicolas Sarkozy of the content of the memo from the rapporteur at the appeal court the Cour de Cassation which was handling the issue. In the call Thierry Herzog is optimistic. He thinks that the official opinion of the general prosecutor on the issue will be favourable to his client. Nicolas Sarkozy asks him if “our friend” - the senior appeal court judge Gilbert Azibert – has information that contradicts this. Herzog says no
The following day, on Wednesday January 29th, there is a fresh call at 7.25pm. Herzog informs his client that he has just spoken to “Gilbert”. The judge had suggested that they do not pay attention to the “deliberately neutral” content of the rapporteur's report over the diary affair. According to “Gilbert”, the rapporteur is in reality in favour of their seizure being annulled. Nicolas Sarkozy's mole at the Cour de Cassation said that the official advice of the advocate general – the senior prosecutor – on the issue of the diaries would be given as late as possible, but that it, too, would conclude by calling for the diary seizure to be annulled.
According to the summary of the phone conversation, “Gilbert” had lunched with the advocate general. Lawyer Thierry Herzog is delighted with the devotion of their informant. He has “toiled away” he tells Nicolas Sarkozy. In an astonishing turn of phrase the lawyer concludes that the court of appeal should follow the advocate general's advice “unless the law ends up by winning”. The recorded conversations also raised wider suspicions that Sarkozy and his inner circle had a network of insiders inside the French Establishment who could relay information.
In the current case Nicolas Sarkozy has now been obliged to stop using Thierry Herzog as his lawyer, because he is also under investigation, and is now represented by lawyer Pierre Haik. Meanwhile the likely lines of defence have been emerging from Herzog's own lawyer Paul-Albert Iweins, now that all those under investigation have had the right of access to the judges' case against them. “There is in this case a lot to say and to contest, and we are going to do so,” Iweins told Europe 1 radio. “For example, the illegality of the phone taps.”
Apart from their legality, the lawyer also disputed the interpretation of the phone tap transcripts. “They are a discussion between friends that have been wrongly interpreted,” said Paul-Albert Iweins. “We're not in a situation where one person corrupts another. Even more so as this judge [editor's note, Gilbert Azibert] was not appointed in Monaco. There is no active corruption. There is no passing of money. You will see that there will be nothing in this case – but it will drag on,” he said.
Iweins highlighted the fact that one of the phone taps took place after the affair had come to light in March and after Herzog's home had been searched by police officers. This involved a call the lawyer made to the president of the Bar Council in Paris, Pierre-Olivier Sur. “The president of the bar, who is the lawyers' necessary confidante, was being listened to. That's a world first. I denounce all the phone taps and this one most of all,” said Iweins.
Speaking on France Info Pierre-Olivier Sur said he was “astonished” to see that his name appeared in the affair. He said the phone call in question came from Herzog who had recently suffered a “very violent” search of his home, who had not slept for several days and who psychologically was in a poor state. “He called me in the middle of the night on his mobile. I am extremely shocked that this phone tap should have been transcribed.” He said the judges had gone “too far” and that to transcribe this conversation was an “absolute scandal”.
A scandal too far?
Politically, the timing of this new judicial investigation could not come at a worse time for Nicolas Sarkozy who is widely assumed to be preparing a political comeback in time for the 2017 presidential election. Some senior figures in his right-wing UMP party are now said to be wondering whether Sarkozy will be able to return to front-line politics with this and other judicial affairs hanging over him. These include the Libyan funding affair, the Tapie affair and also the Bygmalion scandal involving the UMP and the funding of Sarkozy's 2012 presidential campaign. Supporters claim that the judicial action against him amounts to harassment deliberately designed to damage his chance of a political return.
Having largely stayed quiet on Tuesday when Sarkozy was detained in custody, senior figures in the UMP expressed their support for the former president on Wednesday following the news that he was under investigation for 'active corruption'. The former prime minister and current mayor of Bordeaux Alain Juppé, tipped by many as the most likely UMP candidate for the French presidency in 2017 if Sarkozy does not stand again, Tweeted about his “friendship” for his colleague. “He is of course presumed innocent. I hope his defence will show his innocence,” wrote Juppé.
Former agriculture minister Bruno Le Maire, speaking on RTL radio, also expressed his “support and friendship” for Sarkozy. A close ally of Sarkozy's former prime minister François Fillon, MP Jérôme Chartier, went on i-Télé to show his support. “I have come here this morning to tell you that I believe in Nicolas Sarkozy's innocence.”
One line of attack that is emerging among hard-line supporters of Sarkozy is an attempt to discredit Claire Thépaut, a theme picked up by the former head of state himself. A political journalist on news channel i>Télé Jean-Jérôme Bertolus suggested the judge was a “personal enemy”of Nicolas Sarkozy, without, however, supporting this assertion with any evidence. This, however, did not stop a loyal Sarkozy supporter Nadine Morano, a former minister, from expressing her doubts on Twitter. “The judge Claire Thépaut in charge of the N. Sarkozy case wrote an article against him in 2012: impartial...?” she wrote.
Speaking on France Info radio Christian Estrosi, mayor of Nice and a close ally of Sarkozy, declared: “I call into question the impartiality of one of the judges involved, who has harboured hatred against the president.” Like other supporters he wondered why it was necessary to hold the former head of state in custody rather than simply calling him to appear before the judges. After Sarkozy was placed under formal investigation over the Bettencourt saga there were attempts by some on the Right to rubbish the lead examining magistrate in that case, Jean-Michel Gentil.
Speaking on BFM TV, prime minister Manuel Valls defended the judges against any suggestion they were politically motivated. “They are examining magistrates, they are independent judges. The government doesn't ask ask judges to carry out investigations, they act and exercise their role in an independent manner,” he said. The prime minister added: “This situation is serious, the facts are serious...[the case] involves magistrates, senior judges, a lawyer, a former president of the republic.” But he said it was important to show respect for basic principles which include both the independence of the judges and the “presumption of innocence”.