Nicolas Sarkozy definitively sentenced to wear an electronic bracelet for a year

« QWho can imagine for a single moment General de Gaulle being indicted? » scoffed François Fillon in 2016. “Can we imagine a former President of the Republic wearing an electronic bracelet? » could complete the former Prime Minister, if he himself had not since been caught by the judicial patrol and sentenced to one year in prison in Penelopegate – the Court of Cassation will say next year whether it must be equipped with the same housing.

Nicolas Sarkzoy, for his part, will have to come to terms with it. And prepare for it. This Wednesday, December 18, the criminal chamber, in fact, rejected the cassation appeal that he had filed after his conviction on appeal in the Bismuth case; this resulted in him being sentenced on May 17, 2023 to three years’ imprisonment, including one year’s imprisonment, accompanied by deprivation of civil rights for the same duration.

Declaring him guilty of “corruption” and “influence peddling”, the Paris Court of Appeal confirmed the first instance judgment, showing itself to be more severe than the prosecutor who, in his requisitions, had only asked for reprieve. In their leniency, the “second judges” had nevertheless provided for an adjustment of the sentence from the beginningspecifying in their judgment that the firm part of his sanction would be carried out at home, in the form of “electronic surveillance”.

The case before the ECHR?

By rejecting the appeal filed by the former president’s defense, the Supreme Court makes its conviction final in this case. His advisor to the Court, M^e Patrice Spinosi has already indicated that he will appeal to the European Court of Human Rights (ECHR) on the basis of Article 6 (right to a fair trial), but this appeal is not suspensive. Nicolas Sarkozy will therefore soon be summoned before a sentence enforcement judge, who will indicate to him the concrete terms of the execution of his sentence (date of installation of the device, time range, prohibitions, etc.).

ALSO READ Cassation, electronic bracelet… What awaits Sarkozy after his convictionThe rejection of his appeal comes at the worst time when the trial of the Libyan financing of his presidential campaign in 2007 is due to open on January 6, just after the holidays. The State is being prosecuted for “concealment of embezzlement”, “passive corruption”, “illegal financing of an electoral campaign” and “criminal conspiracy”. He faces ten years of imprisonment and will appear alongside thirteen other defendants, including three of his former ministers, Claude Guéant, Brice Hortefeux and Éric Woerth.

Nicolas Sarkozy was, moreover, convicted twice in the Bygmalion affair, for exceeding the electoral spending ceiling for his failed 2012 campaign. This prosecution earned him, on February 14, 2023 on appeal, a six-month sentence. of firm imprisonment, also adjustable – sentence suspended from the cassation appeal which he also filed in this case.

Nicolas Sarkozy is still targeted by two other cases: he was indicted on October 6, 2023 for “concealment of witness tampering” and “participation in a criminal association with a view to committing judgment fraud in an organized gang”. The National Financial Prosecutor’s Office suspects him of having tried to obtain, with others, a retraction from the businessman of Lebanese origin Ziad Takieddine, the main accuser – himself being prosecuted – in the Libyan affair.

Finally, justice is investigating a suspicious transfer (500,000 euros) from a Russian group, for which Nicolas Sarkzoy is suspected of having engaged in illicit lobbying activity – the preliminary investigation is still ongoing.

“Help”

The wiretapping affair (known as Bismuth, named after the private telephone line he used with his lawyer Thierry Herzog) is therefore the first to result in a firm and definitive conviction of Nicolas Sarkozy, surrounded on all sides by the cases. It concerns the corruption pact that the former head of state had made with Mr.^e Thierry Herzog and ex-magistrate Gilbert Azibert, also convicted in this case.

While he was (already!) investigating the Libyan financing of the 2007 campaign, investigating judge Serge Tournaire discovered the existence of a secret telephone line between the former president and his lawyer friend. The wiretaps allowed the magistrate to discover that the two men sought to obtain information from an advocate general then in office at the Court of Cassation, Gilbert Azibert, in exchange for the promise of a position in Monaco for which Nicolas Sarkozy had to intercede with the authorities of the principality – wiretaps reported a “helping hand”. While the “deal” seemed well underway, discussions on the Bismuth line came to a sudden halt, until Nicolas Sarkozy ended up giving up intervening in favor of the magistrate.

A third case then came to be grafted into this unnecessary file, as The Point was able to reveal it in its time: in complete discretion, the PNF carried out a preliminary investigation aimed at flushing out the mole who, within the judicial system or at the bar (the fadettes of M^es Éric Dupond-Moretti, Jacqueline Laffont and Hervé Temime were secretly examined), could have alerted Nicolas Sarkozy and Thierry Herzog that the Bismuth line was being listened to. This investigation came to nothing, no “mole” having ever been unearthed.

Gilbert Azibert was never transferred to sunny Monaco and it is not proven that Nicolas Sarkozy obtained the information he expected from him. However, all were convicted. The offense of corruption, like poisoning, is a “formal” offense; it doesn’t matter if it leads to a result, a reward. The intention to achieve this, as long as it is characterized by material elements, is sufficient to “consummate” the offense.

The question of professional secrecy of the lawyer

M^e Spinosi, lawyer at the Council of State, had invoked in support of the appeal filed by Nicolas Sarkozy a serious attack on the rights of the defense in this case. As he often does, the jurist called on European law to the rescue, in particular a judgment of June 16, 2016 of the ECHR relating to the professional secrecy of the lawyer and the exchanges that he can have with his clients. At the time, the Strasbourg judges took a “half-hearted, half-baked” position, considering that wiretapping could constitute admissible “interference” – without violation of the rights of the defense, therefore – as long as the interception left presume the lawyer’s participation in an offense.

“What is listened to can be used against the lawyer, but cannot be used against his client”, tried to support M^e Spinosi before the Court of Cassation. The rejection of the appeal would constitute a regrettable precedent, he explained on Tuesday December 17 to Figaro. “For the first time in France, a person would be declared guilty on the basis of surprise exchanges with his lawyer,” he was indignant as if in anticipation.

M^e Spinosi had raised another argument: the impossibility – since declared unconstitutional – for a litigant to raise new “exceptions of nullity” (procedural defects) before a court when it has been seized by an investigating judge, then the only person competent to “purge the nullities”. The PNF’s investigation, in search of an untraceable mole, was concealed from the defense, who was unable to discuss it at the time of the trial of the Bismuth case, in clear violation of its rights, thus having pleaded M^e Spinosi before the criminal chamber, as he had already done – without more success – in the Fillon affair. It should be remembered that, since this case, the law has changed: to be able to examine a lawyer’s fadettes (detailed invoices), the prosecution must now obtain authorization from the judge of liberties.

To Discover

Kangaroo of the day

Answer

The Court of Cassation has just rendered a decision contrary to the jurisprudence of the ECHR,” regrets Mr.^e Patrice Spinosi in a press release published following the rejection of the appeal. “Beyond the personal case of Nicolas Sarkozy, it is a matter of concern for the freedoms of all”, continues the lawyer, referring to “a sad day”. M^e Spinosi confirms that he will refer the matter to the European Court of Human Rights to “obtain the guarantee of the rights that French judges have denied [à Nicolas Sarkozy] “. A former President of the Republic will, thus, initiate an action before European judges “to condemn a State over whose destiny he presided”, observes M^e Thorny.

Former President of the Republic Jacques Chirac was indeed sentenced (in 2011) to two years in prison in the case of fictitious jobs in the City of Paris, but this sentence was suspended. Never before has a former president been sentenced to a harsh sentence, adjustable, certainly, but certainly leading to deprivation of liberty.