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Why is a judge and not the police investigating Sarkozy?

AFP file

For those unfamiliar with France’s judicial system, it may be startling to see a judge both gathering evidence and launching a probe against ex-president Nicolas Sarkozy. FRANCE 24 takes a look at how French law works in such cases.


When Jean-Michel Gentil ordered a formal investigation into Nicolas Sarkozy's dealings with French billionaire Liliane Bettencourt, he gave the French legal system the right to dig around in the former president's actions and dealings (une mise en examen in French).

Before we get to what the courts are looking for, let's pause on Gentil -- a juge d'instruction, the kind of judge that gathers evidence and is charged with finding the truth. (Gentil was given the task by a presiding judge.)

16 June 2010: French investigative website Mediapart reveals the existence of audio recordings secretly taped by Liliane Bettencourt’s butler. The tapes suggest Liliane Bettencourt, the billionaire L’Oréal heiress, evaded taxes with the help of the Elysée Palace, among other things.

6 July 2010: Bettencourt’s former accountant accuses Patrice de Maistre (once in charge of managing the Bettencourts’ fortune) of asking her to withdraw 150,000 euros to give to Eric Woerth, Nicolas Sarkozy’s campaign fund manager, to fund Sarkozy’s 2007 presidential bid.

30 January 2012: France’s Cassation Court (the country’s highest court) validates the secret recordings as trustworthy. Investigating magistrates in Bordeaux (including Jean-Michel Gentil) are given the task of exploring the dossier.

16 June 2012: Nicolas Sarkozy no longer benefits from presidential immunity after losing the election to François Hollande. The next day, Sarkozy sends Gentil a copy of his 2007 diary.

22 November 2012: Sarkozy is interrogated for 12 hours, comes out an “assisted witness” (there’s no formal investigation, but Sarkozy is questioned in the presence of his lawyer).

21 March 2013: Gentil launches a formal investigation into Nicolas Sarkozy for “abus de faiblesse” (taking advantage of Liliane Bettencourt for her money).

Anyone familiar with the Adversarial System (present in the US, UK, Australia and some parts of Canada) is probably asking: why is a judge gathering evidence in a case? Will he be the one to judge the case when the trial takes place? Doesn’t that make him biased? If Gentil has decided Sarkozy may have done something illegal (and launches a formal investigation) doesn’t that mean he thinks the former president is guilty?

Two systems

The Adversarial system is based on the idea that it’s up to the plaintiffs and defendants (usually, through their lawyers) to gather evidence in their favor, or that incriminates the other party. During the court session, the judge’s role is to make sure the law is respected (it’s up to the jury to decide if the accused is guilty). In the Adversarial system, competition between the plaintiffs and defendants (or their lawyers) is deemed the best way to get to the truth.

France uses the Inquisitorial system, along with the rest of continental Europe, and many countries in South America, Africa and Asia. According to this tradition, which is tied to Common Civil Law, the truth is uncovered through questioning those most familiar with the dispute by a judicial authority. It's up to an "independent" prosecutor or investigating magistrate to distinguish between reliable and unreliable evidence. He or she has two missions: to endeavor to discover facts and represent the interests of the state. To discover the facts, he or she can interview complainants, witnesses and suspects in the case's preliminary phase, steering the investigation in one way rather than another. Ultimately, he or she decides whether or not there is enough evidence to go to trial.

That's what Gentil has been doing (usually the examining magistrate works alone, but because this is a big case, 2 other judges are working alongside Gentil). As a juge d’instruction he interrogated Sarkozy back in November. On March 21st, Gentil interrogated him again. But this time, Gentil also brought in the Bettencourts’ former butler – a face off, if you will, that was meant to allow him to gather as much information as possible. Information that suggests Sarkozy may be guilty of a crime, as well as information that suggests the former president may be innocent. It’s after that “confrontation” that Gentil launched the formal investigation against Sarkozy.

Gentil also questioned other witnesses, and opened formal investigations into 11 other men, including Patrice de Maistre, once in charge of managing the Bettencourt’s fortune, and Eric Woerth, Sarkozy’s campaign fund manager in 2007 while the reported cash exchange was taking place. Woerth and de Maistre were targeted by formal investigations (mise en examen) back in February and December 2012, respectively. Woerth is under scrutiny for handling stolen goods. De Maistre is being investigated for fraudulent abuse of a person’s ignorance or weakness (like Sarkozy), complicity in breach of trust, aggravated fraud, and money laundering.

Reviewing the evidence

So what happens now? Sarkozy’s lawyer, Thierry Herzog, is appealing Gentil’s decision to open a formal investigation (legally he has 6 months to do so). A different judge will look at Judge Gentil’s evidence and how he gathered it, and determine if there is any reason to modify the magistrate’s decision to call for a mise en examen. If Herzog wins his appeal, Sarkozy may not be tried in court.

If he loses the appeal, the case will proceed to the next stage, where the magistrate will decide whether to refer the case for trial or take other measures. If there’s a trial, it won’t be Gentil who’ll be judging Sarkozy. A panel of 3 different judges will. They’ll be looking at the evidence Gentil has gathered, asking specific questions to the accused (and their lawyers). At the end of the trial, the judges will decide whether or not Sarkozy is guilty of taking advantage of Liliane Bettencourt, and what his punishment should be.

Considerable differences exist between the Adversarial and Inquisitorial justice systems, though elements of both systems often co-exist. Legal analyst Eric Lisann says American legal practitioners would be disconcerted by a system such as the one in France, where the same individual or office conducts the investigation and gathers evidence, and then proceeds to determine guilt. This could create a perception that the fact finder has a predetermined notion regarding the strength of the case, that ultimately could be inconsistent with the concept of “innocent until proven guilty, as it applies, say, in the American system. Also, lawyers play a much smaller role in the court process.

But the Inquisitorial system can also have the advantage, Lisann says, of “avoiding misunderstandings at an earlier stage in the case”. In addition, in the Adversarial system, by competing to prove one’s case to the judge, parties are encouraged to win, not uncover the truth. They can end up creating confusion – in their favor – in the process. Finally, the Adversarial system is sometimes blamed for failing to protect witnesses, especially weak ones (like children), for whom being grilled by lawyers in a courtroom can do more harm than good.

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