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France's judicial system

Clear as mud

The Clearstream case raises anew questions of judicial independence

Feb 4th 2010 | PARIS | From The Economist print edition

AFPDe Villepin hits back

HOW independent is the French judicial system? That question has been thrown into sharp relief by the public prosecutor’s decision to appeal against the acquittal on January 28th of Dominique de Villepin, a former prime minister, in the “Clearstream” smear-campaign trial. One of the civil plaintiffs in the case was Nicolas Sarkozy, who has long claimed that Mr de Villepin was out to thwart his political career. Mr de Villepin evidently failed. Mr Sarkozy claimed soon after the acquittal that he accepted the verdict—and yet the public prosecutor promptly decided to appeal. Ever since, rumours have swirled of plots and counter-plots.

Mr de Villepin was quick to cry foul. The decision to appeal, he claimed, had been taken “during a meeting at the Elysée”, Mr Sarkozy’s official residence. He knew, he told French television breezily, because he had himself served there for seven years as chief of staff to President Jacques Chirac. “I know the state, I know the public service,” he said. “There isn’t a shadow of a doubt.”

This week Jean-Claude Marin, the Paris public prosecutor, struck back. He had received no instruction from the Elysée, he insisted. His appeal was a matter of “conscience”, based on a close reading of the 327-page judgment. The judges had not only found the other two main suspects guilty, but also sentenced them to jail terms. It remains unclear who orchestrated their actions. For his part, Claude Guéant, Mr Sarkozy’s chief of staff, said that Mr Marin had neither asked for advice from the Elysée nor received any instruction.

Yet many rum elements to the affair remain. Why did Mr Sarkozy say that he would not appeal, when in criminal trials it is up to the public prosecutor? Why, if not for effect, did Mr Marin announce his appeal on live breakfast radio? (He said, deadpan, that this was because the appeals office closed at 5pm the previous day.) Why did public prosecutors in 2008 consider that there was not enough evidence to send Mr de Villepin to court, only to change their minds a few months later? As Le Monde, a leftish newspaper, said, it all leaves “the suspicion of manipulation”, whatever the reality.

The suspicion hangs in particular over the public prosecutors, who report directly to the justice ministry. The role of the Paris public prosecutor, who is appointed by presidential decree and is in charge of the biggest affairs of state, is considered to be highly political. The incumbent tends to change with the party in power. Nominees often have links to political parties. When the Gaullist Mr Chirac was first elected in 1995, for instance, he dismissed the Paris public prosecutor appointed by the Socialists. Influence is usually subtle and deniable. “The political authorities’ great trick, in affairs of crucial concern to them, is to give a trusted judiciary the illusion of freedom, even while ‘prompting’ the right answer,” says Philippe Bilger, the advocate-general in Paris.

Such worries also explain the unease over Mr Sarkozy’s plan to abolish investigating judges, who have sweeping powers to collect evidence, question witnesses and decide to send suspects for trial. Their robust independence has led to a few miscarriages of justice, but it has also exposed murky dealings among the political and business elite. The government wants to transfer investigative powers to the public prosecutors and turn investigative judges into supervisors, with powers to block or authorise an investigation.

The danger is that this will strengthen the powers of the prosecutors but do nothing to reinforce their independence. Even Mr Marin has argued that there may be a problem. “If appearances are against us to this degree, we need to look again at the status of the prosecution,” he said this week. Outsiders have similar reservations. In a parliamentary resolution last year, the Council of Europe declared that the abolition of French investigative judges was “widely suspected of being part of an attempt by the political authorities to increase their influence on the handling of sensitive cases.”

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