a crucial decision for Nicolas Sarkozy

The Court of Cassation must rule early Wednesday afternoon on the appeal filed by Nicolas Sarkozy in the context of the so-called “Bismuth wiretapping” case. In May 2023, the former President of the Republic was sentenced on appeal to 3 years in prison, including 1 year in prison – to be executed in the form of electronic surveillance – and 3 years of ineligibility, sentences significantly higher than the requisitions of the general public prosecutor’s office. The two other protagonists in the case, Me Thierry Herzog and retired magistrate Gilbert Azibert, were also convicted. They appealed to the supreme judicial court for their part.

If the appeal is rejected, Nicolas Sarkozy’s conviction will become final, but he will refer the matter to the European Court of Human Rights (ECHR). Otherwise, a third trial would be organized, on very different legal bases. (read the interview with M^e Thorny).

Reminder of context

This tortuous and atypical case of corruption and influence peddling broke out in early 2014. At the time, the courts were investigating supposed “Libyan financing” of the 2007 presidential election. Nicolas Sarkozy was wiretapped. Following an blunder, the investigators discovered that their target was using another line, opened in the name of “Paul Bismuth”, to speak discreetly – they believe – with his lifelong friend and lawyer Thierry Herzog.

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Over the course of countless conversations shamelessly intercepted, even though they could a priori be classified as defense secrets, it seems that the two men are discussing, among a thousand other subjects, a sort of fraudulent pact which would involve a third man, Gilbert. Azibert, first advocate general at the Court of Cassation.

Reminder of the context: Nicolas Sarkozy, who benefited from a dismissal of the Bettencourt affair, wishes to recover his presidential diaries, seized during the procedure. After having suffered several refusals, he filed an appeal in cassation and the outcome of this appeal, to use a euphemism, is not indifferent to him. Gilbert Azibert would have been commissioned to find out “from the inside” about the fate of the request transmitted to the criminal chamber – or even, it is not very clear, to try to influence advisors in a direction that would please the applicant. In exchange for this, Nicolas Sarkozy would intervene with the Monegasque authorities so that a position presented as « of prestige » be attributed, on the Rock, to the magistrate whose career in France is coming to an end.

The affair within the affair

One of the singularities of the case lies in the circumstance that the prosecution, represented by the National Financial Prosecutor’s Office (PNF), only has the Herzog-Sarkozy wiretapping to support its certainties. On the transcribed extracts, the first relates to the second what Gilbert Azibert would have said or accomplished for the benefit of the former president. But, despite the very encouraging predictions made by M^e Herzog on the basis of alleged diligence by Gilbert Azibert, Nicolas Sarkozy’s appeal will be rejected. And the first advocate general will not obtain any position in Monaco.

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As if all this wasn’t complicated enough, a case within a case arises. On February 26, 2014, the police officers responsible for monitoring the “Bismuth” line became convinced that the two users had been warned that they were being listened to. The PNF then opens a preliminary investigation parallel to the investigation into Libyan financing, not subject to the rules of adversarial proceedings, in order to identify the mole. To this end, dozens of detailed telephone bills (“fadettes”) from lawyers, but also from some magistrates and journalists, are seized and analyzed, without any specific suspicion being placed on any of them. Several personalities from the bar, including the future Minister of Justice Éric Dupond-Moretti, are even geolocated.

Despite this profusion of resources implemented over several weeks, the investigation did not make it possible to identify any mole. However, instead of being immediately closed or attached to the investigation file for further investigations, it remains dormant for five years – which would no longer be legal today. Defense lawyers who asked for clarification were first told that it did not exist, then that it did not concern Nicolas Sarkozy. At the beginning of 2020, while the trial is set for November, the PNF finally transmits the elements of the preliminary investigation closed without further action on the grounds that the violation of the secrecy of the investigation was « insufficiently characterized ». In other words, it does not exist in law.

The Court of Cassation had validated the wiretapping in a Byzantine manner, estimating that M^e Herzog was not Nicolas Sarkozy’s advisor (himself a lawyer) when they were talking about a case which was not yet the subject of a judicial investigation. Will she take another look at the case, in the light of the new case law of the ECHR?

Bygmalion and “Libyan financing”, these other upcoming deadlines

The “Bismuth wiretapping” file is not the only one on Nicolas Sarkozy’s legal agenda. The former head of state has in fact filed an appeal against his conviction on appeal, pronounced last February, in the context of the Bygmalion affair. The court handed down a sentence of one year in prison, including 6 months suspended, adjustable in the form of electronic monitoring – the public prosecutor’s office had requested twelve months fully suspended.

Barely had the sentence been pronounced, Nicolas Sarkozy’s lawyer announced the filing of an appeal to the Court of Cassation which would suspend its execution. « The judgment of the court of appeal is highly questionable, argumentait M^e Vincent Desry. Nicolas Sarkozy had no knowledge of this fraud. » That is to say an excess of some 20 million euros of the authorized ceiling (22.5 million) for the 2012 presidential election. The decision is not expected before the second half of 2025.

Furthermore, the so-called “Libyan financing” trial of the 2007 presidential election is due to open on January 6, 2025 before the Paris Court. The debates are scheduled to last until April 10. Prosecuted among other defendants, including two of his relatives, Claude Guéant and Brice Hortefeux, Nicolas Sarkozy will answer for concealment of embezzlement of public funds, passive corruption, illegal financing of an electoral campaign and criminal conspiracy. The former President of the Republic, who denies all the charges against him, faces up to 10 years in prison.