In 2014, the political and legal scandal surrounding the wiretapping of Nicolas Sarkozy began when the existence of confidential phone conversations between the former President of the Republic and his lawyer was revealed to the public.
In essence, as part of a judicial investigation aimed at clarifying the financing of Nicolas Sarkozy’s 2007 presidential campaign, known as the “Kadhafi affair”, the former President of the Republic was placed under wiretap surveillance.
These wiretaps were put in place because the former president, using the alias “Paul Bismuth”, was suspected of trying to obtain confidential information from a magistrate of the Cour de cassation, Gilbert Azibert, information regarding legal proceedings against him pending before this Court, in exchange for help securing a position in the Principality of Monaco.
They revealed exchanges that led to charges of passive corruption, influence peddling, and violation of investigative secrecy, the first stages of a long judicial saga.
On 1 March 2021, after seven years of investigation, the Paris Criminal Court sentenced Nicolas Sarkozy to three years’ imprisonment, including one year suspended. Thierry Herzog and Gilbert Azibert received suspended prison sentences. After the convictions were upheld by the Paris Court of Appeal in May 2023, the three defendants appealed to the Cour de cassation.
In its ruling of 18 December 2024, the Supreme Court ruled on several key aspects of criminal procedure, including the legality of wiretapping, the lawyer-client privilege, and the characterization of influence peddling and corruption. By rejecting the defense’s arguments, the Court confirmed that the evidence, including wiretaps between lawyers and clients, could be used and that all elements of the offenses had been established.
I. The Cour de cassation considered that the grounds for nullity raised were unfounded
The procedure established that the defendants were aware of the grounds for nullity before the close of the judicial investigation
In a 2023 decision, the Constitutional Council, deciding on a priority preliminary ruling on constitutionality (QPC) in the case of fictitious jobs involving former Prime Minister, François Fillon, declared unconstitutional the first paragraph of Article 385 of the Code of Criminal Procedure. The court had ruled that the defendant was unable to raise before the Criminal Court, at the end of a judicial investigation, a plea based on the nullity of the proceedings, even though no exception was provided for in the event that the plea of nullity became known after the order for referral to the court, infringed the right to an effective judicial remedy and the rights of the defense.
Relying on this declaration of unconstitutionality, which the Constitutional Council had ruled could be invoked in the proceedings, the three defendants had challenged the validity of the preliminary investigation reports relating to breaches of professional secrecy that had allegedly enabled the defendants to be informed of the wiretapping of the telephone line known as “Paul Bismuth,” which they used and which had been conducted in parallel with the main investigation. They stated that they had been informed of the existence of this investigation after the investigation had been closed.
However, the Cour de cassation considered that it was clear from the proceedings, in particular from the documents submitted during the previous hearings, that the defendants were aware of the preliminary investigation. Several factors led the Court to consider that the defendants were aware of this investigation, in particular because they had contested the investigating judge’s refusal to incorporate the preliminary investigation into the judicial case file, both before the Investigating Chamber and subsequently before the Cour de cassation.
Furthermore, the Court held that the irregularity of the preliminary investigation—whether due to the inclusion of elements drawn from the main investigation, the lack of proper follow-up, or procedural deficiencies—did not, in itself, constitute a circumvention or misuse of procedure likely to compromise the search for the truth. Nor did it amount to such a procedural flaw as to justify the nullity of the entire proceedings.
For more information on the issue: Fillon saga: Final conviction of former prime minister in fictitious employment scandal confirmed
The breach of confidentiality of correspondence between a lawyer and their client must be discussed before the investigating court
The former President of the Republic and his lawyer criticized the Court of Appeal for failing to exclude recordings of their telephone conversations from the proceedings, without conducting any examination of their content.
Nicolas Sarkozy argued that if a lawyer-client conversation could be used when the lawyer is suspected of having participated in an offense, such use must not infringe upon the client’s rights of defense. In this case, the exchanges had taken place on a line exclusively dedicated to exchanges with his lawyer and concerned the legal proceedings in which he was involved, so that the comments exchanged could not be considered unrelated to the exercise of defense rights. Both defendants also challenged the control of the transcripts. Nicolas Sarkozy contested the use of the transcripts without any prior examination of the content of the conversations, while Thierry Herzog criticized the failure to verify the legality of the wiretaps and the acceptance of potentially unlawful evidence.
The Criminal Chamber considered that the defendants’ arguments were unfounded since the validity of these wiretaps could be challenged before the investigating judge, an option that was not exercised in this case, and that the trial court was only competent to assess the probative value of the evidence. The Court also emphasized that the case law of the European Court of Human Rights does not impose an absolute ban on the use of statements exchanged between a lawyer and his client in cases where those statements reveal sufficient evidence to presume the lawyer’s participation in an offense and where this does not undermine the client’s defense rights.
II. The Cour de cassation considered that all elements of the offenses were established
The unity and indivisibility of the Public Prosecutor’s Office do not confer party status on all the magistrates who compose it, and its opinion is a milestone in obtaining a favorable decision
In connection with this case, Thierry Herzog transmitted a ruling of the investigating chamber to Gilbert Azibert, then serving as a magistrate at the Public Prosecutor’s Office of the Court de cassation.
Respectively prosecuted for breach of professional secrecy and concealment, Thierry Herzog and Gilbert Azibert argued that the rulings of the investigating chamber notified to the lawyers were not covered by investigative secrecy, and that the principle of unity and indivisibility of the Public Prosecutor’s Office allowed any member of that office to be aware of the court’s decisions.
However, the Cour de cassation found Thierry Herzog guilty of breaching professional secrecy, considering that the ruling delivered in chambers was an act of an ongoing investigative procedure, and thus remained covered by secrecy.
The Criminal Division also found Gilbert Azibert guilty, holding that the principle of unity and indivisibility of the Public Prosecutor’s Office did not grant prosecutors who were not parties to the proceedings the authority to receive documents protected by secrecy, since in this case, Gilbert Azibert was assigned to a civil chamber entirely unrelated to the case, and thus became aware of the ruling for reasons unrelated to his official duties.
The former President of the Republic and Thierry Herzog also argued that the offense of influence peddling could not be established, as they were unable to obtain a favorable decision from a magistrate of the Public Prosecutor’s Office. Indeed, Nicolas Sarkozy contended that the Advocate General, whose role ends at the deliberation stage, does not take part in the decision-making process, so the intention to obtain a favorable decision could not be proven.
The Court de cassation held that it was immaterial whether the Advocate General’s opinion constituted a decision or not, as he took part in the preparation of that decision. In this case, the aim of the influence was to obtain, through the Advocate General’s opinion, a favorable ruling from the Court.
Consideration of magistrate status and recognition of causal link in convictions for influence peddling and corruption
Thierry Herzog challenged the choice of the legal classification of the facts. He argued that the specific offense of influence peddling to obtain a favorable decision from a judicial officer, as provided for in Article 434-9-1 of the Criminal Code, should prevail over the general offense under Article 433-1(2) of the Criminal Code, which covers influence peddling to obtain a favorable decision from a public authority or administration.
On this point, however, the Court de cassation held that Article 433-1(2) of the Criminal Code, which is not a general offense, in fact allows for the magistrate status to be taken into account as an aggravating factor, whereas Article 434-9-1 of the Criminal Code does not consider the status of the perpetrator.
Nicolas Sarkozy also challenged his conviction on the grounds of a lack of intent with respect to the offenses of influence peddling and corruption. He argued that both offenses require the presence of specific intent, and more precisely, a purpose that would establish the causal link between the advantage offered and the act of corruption or influence. However, the Court of Appeal merely noted the existence of an expectation of a ‘helping hand’ for a position in Monaco, without establishing a direct causal link between that expectation and the actions of Gilbert Azibert.
Thierry Herzog, for his part, argued that the acts in question did not meet the legal elements of either corruption or influence peddling, since there was no clear agreement between the parties to obtain a decision in exchange for benefits. According to him, the Court of Appeal relied solely on a vague phone exchange, without establishing a concrete link between Gilbert Azibert’s actions and the expectation of an advantage.
For his part, Gilbert Azibert, convicted of passive influence peddling and passive corruption, argued that there was no formal acceptance of a benefit, as he had merely made a comment [i.e. ‘yes, well, that’s nice’] during a conversation in which Nicolas Sarkozy and Thierry Herzog informed him that the steps to obtain a position as a magistrate in Monaco had already been taken.
The Criminal Division upheld the Court of Appeal’s decision, considering that the elements relied upon by the latter were sufficient to establish the causal link, since Gilbert Azibert had sought to obtain a benefit in return for his actions—namely, a position at the Council of State of Monaco with the help of Nicolas Sarkozy—regardless of the fact that the offer of this benefit came after Azibert’s actions.