Friday, January 29, 2010

Withered Laurels

Dominique de Villepin's victory march through the TV studios will have been cruelly short. The parquet will appeal the not guilty verdict. In fact, the verdict was not really "not guilty," despite Villepin's insistence that he had been "blanchi." It was more in the nature of a Scottish verdict of  "not proven." As Le Monde notes:

Si les trois juges considèrent que l'implication politique de l'ancien premier ministre dans cette affaire est bien supérieure à celle qu'il a voulu reconnaître – ils estiment notamment sans l'écrire explicitement que M. de Villepin ment lorsqu'il assure n'être pas intervenu lorsque Imad Lahoud a été placé en garde à vue ou qu'il dément avoir été en contact régulier avec Jean-Louis Gergorin ...

Indeed, the judges really held that Villepin's innocence rests on his not having been sure until October 2004 that the listings were fake. On the other hand, this is also the basis for believing him guilty of something, if not precisely a crime: if he entertained doubts about the veracity of the listings, he nevertheless continued to work with the people who were using them to get at his rivals. Furthermore, as many observers have noted, the verdict leaves open the question of cui bono. Who profited from the operation, and who might have initiated and/or paid for it? Well, Villepin certainly stood to profit, but that's not evidence that he initiated the affair. Would Gergorin have done this on his own? He, too, claims to have been a dupe. Lahoud? Seems unlikely. So we are back where we started, looking for a prime mover not among the three men convicted--a prime mover who may or may not exist.

The prosecutor's motives are clear. He's now the fall guy, and he wants to prove that his prosecution of Villepin was motivated not by politics (or orders from the Elysée) but rather by evidence that he insists is in the record:

Dans le dossier, il y a tous les éléments pour entrer en condamnation. Un jugement a été rendu. Mais la justice n'est pas encore totalement rendue.

But a court has already judged this record. It is a peculiarity of the French system that the prosecution can appeal a verdict of not guilty without alleging a technical flaw or new evidence. When Sarkozy said yesterday that he would not appeal as a civil party, he was actually mistaken about the law: he had no right to appeal. Only the parquet or the defendant did on the question of the relaxe; Sarkozy could have appealed only the dommages et intérêts. This was reported as a slip by the president, but I wondered at the time if it wasn't meant to be a signal to the parquet: "No appeal! This case has become a political liability!" Of course it may also have been intended as the opposite signal: "I'm not going to keep this going, I don't want to look like a bloodthirsty avenger, but you still have the option, and it would please me if you availed yourself of it."

On the other hand, the prosecutor has every reason of his own to continue the case: it is now his honor that is at stake, his judgment to prosecute Villepin in the first place. He is out to prove that he had every legal rather than political reason to do so by convicting Villepin in a retrial. But at this point, I think, trop, c'est trop.

N.B. Of course another explanation of the prosecutor's action is that he is following orders from on high. Probably most people in France believe this, since he is subordinate, ultimately, to the chief executive. Of course there is no evidence that this is the case. For many, that is proof that it is so, especially if they have firm convictions about the character of the individuals involved. I refrain from drawing any conclusions in this regard. A subordinate may act on orders. He may act in a way that he supposes will please his superior. He may act to defend his own honor. He may act to defend his idea of justice. He may act out of personal enmity. I see no reason to choose among these explanations in the absence of hard evidence.


kirkmc said...

Can someone please explain why, in the French legal system, appeals can be initiated simply because either side didn't like the verdict? I really find that hard to understand.

One note about Villepin: last night he was on the news on France 2 saying how excellent the legal system was for proving he was innocent. This morning, they're Sarkozy's lackeys. Natuarlly, he's just saying what fits the moment and his pre-scripted ideas.

The prosecutor made an interesting point, however. He said that since the two people who were found guilty were appealing, it made no sense for there to be a new trial _without_ Villepin on the dock as well.

Leo said...

Art, Maître Eolas disagrees with you on Sarkozy's right to appeal.

the reason is simple: It's the right to a second hearing of your case facing a different court. As far as I know, the French is not the only legal system where this is permitted. It this matter, the US systme might be an exception (but I am not too sure).

Unknown said...

Well, Eolas is the expert, although I see that another expert disagrees.

As for the right to appeal, Kirk, the exception here is the state's right to appeal. No one would want to deny a defendant the right to appeal a verdict that went against him; this is fundamental to our idea of justice, although in the US the defendant needs to provide some grounds for appeal, such as a technical error, new evidence, bias, etc. But we generally don't allow the prosecution to appeal, because the courts are supposed to protect citizens against the power of the state as well as the people against violators of the law. The French system, as usual, exalts the role of the state as protector of the people. In a US court, the jury is independent and delivers the "people's verdict." In a French court, the judges and jury hear the case jointly in the name of the people, and the state plays a dual role, both partisan (the prosecutor) and neutral (the court). To be sure, the same duality exists in the US, but the independence of the judiciary is more fundamental, as is wariness of the state's interest.

Unknown said...

on the question of the motivation behind the apppeal, surely this must feature among the "affaires réservées" which are directed from the top of the ministry of justice, no?

Unknown said...

But the Garde des Sceaux is also supposed to exercise a certain independence of judgment, which of course is always open to question. Something like an American special prosecutor is needed, but even then there are always suspicions of influence, or else of excess of zeal AGAINST le pouvoir, as in the case of Kenneth Starr. These kinds of clashes are inevitable in a human system of justice. In any case, there is a reason why the prosecutorial arm is also known as le ministère publique: it is supposed to be looking out for the public's interest.

Unknown said...

Another jurist who disagrees with Eolas:
Pourquoi l'Elysée annonçait-il hier dans un communiqué que Nicolas Sarkozy ne faisait pas appel?

De toute façon, Nicolas Sarkozy, en tant que partie civile, ne pouvait pas faire appel du jugement de relaxe. Même un étudiant en deuxième année de droit connaît cette règle: la partie civile ne peut faire appel au pénal que sur les intérêts civils. Or, Villepin a été relaxé, il n'a rien à payer.

MYOS said...