Nicolas Sarkozy summoned to the “Elysee polls” trial, a gray area of ​​presidential immunity

The 32e chamber of the Paris Criminal Court is categorical: the testimony of Nicolas Sarkozy during the trial of the so-called “Elysee polls” case is “Necessary for the manifestation of the truth”. To hear it, the magistrates took an unprecedented decision under the Ve Republic, Tuesday, October 19, by issuing a warrant against the former President of the Republic – who had precisely claimed this status to decline the invitation of justice to testify to the charges against five of these former collaborators .

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Is the convocation of the tribunal constitutional? The lawsuit concerns the purchase of hundreds of opinion polls during his tenure, between 2007 and 2012. A period during which “The President of the Republic is not responsible for acts performed in this capacity”, states article 67 of the Constitution, recalled by Mr. Sarkozy in a letter read at the hearing by the president of the court. He had already refused during the investigation, without consequence, to be heard in this case.

Inviolability and irresponsibility of the incumbent president

Presidential immunity, last reformed in 2007, in fact covers two principles. First of all, the inviolability of the Head of State makes any coercive measure against a sitting President of the Republic impossible. “He may not, during his mandate and before any French court or administrative authority, be required to testify or be the subject of an action, an act of information, investigation or prosecution”, says Article 67. The inviolability ends one month after his departure from power and two exceptions are provided for before this date: a dismissal procedure can be initiated and entrusted to the Parliament constituted as the High Court of Justice; prosecution can be initiated by the International Criminal Court.

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Irresponsibility, the second principle, continues after the term of office of a President of the Republic: a former head of state cannot be prosecuted for acts that took place during his term of office and related to the exercise of its functions. In the affair of the “Elysée polls”, Mr. Sarkozy is not prosecuted: as a witness, his summons cannot therefore “ undermine criminal irresponsibility ”, judged the judges of the 32e bedroom.

“Does he benefit today from presidential inviolability? The answer is clearly no “, believes Julien Jeanneney, professor of public law at the University of Strasbourg and author of an article on ” Presidential dignity before the criminal court ”, published in the Public law review. « As such, he has once again become a litigant like the others, whom nothing in the Constitution prevents from being called as a witness. “

“It’s the squaring of the circle”

Jean-François Dreuille, lecturer in law at Savoie-Mont-Blanc University, has another interpretation. “An obligation to come and testify accompanied by a warrant is a criminal action and I do not see how this can be combined with an immunity that does not cease after the expiration of the warrant”, believes the specialist in criminal law, author of the chapter on presidential immunity in the Directory of criminal law and criminal procedure, an encyclopedia by legal publisher Dalloz.

“Nicolas Sarkozy is, even today, criminally irresponsible because of the acts accomplished as president, abounds Mr. Jeanneney. This constraint, which weighs on the magistrates, will have to influence the conditions under which he will be questioned ”. Especially since the decision to summon, by force if necessary, the former president cannot be appealed.

As a witness, Mr. Sarkozy will not have the right to remain silent – reserved for respondents – and will be required to answer questions from the court. “He will be required to take an oath and will therefore have to tell the truth, which could lead him to give evidence of self-incrimination, without being able to be prosecuted. It is the squaring of the circle ”, continues Jean-François Dreuille. The former president could refuse to take the oath, which however constitutes an offense and would open the possibility of new prosecutions against him. “If we push the reasoning, he could quite say” I am the only person responsible “, clear all the defendants and not be prosecuted legally, because his immunity would play fully”, theorizes the researcher.

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In his letter sent to the judges, Mr. Sarkozy cites a precedent: the refusal of Jacques Chirac, just after his departure from the Elysee Palace, to respond to a summons, under the status of witness, of an investigating judge in the Clearstream case – the facts unfolded during his second term. The judge had not issued a warrant against Mr. Chirac. “We have to distinguish two things, Mr. Jeanneney analyzes. The delicacy manifested in practice by magistrates with regard to former Presidents of the Republic because of what they embody and their past functions, and the possibilities open to them by law. “

Mr. Sarkozy was not mistaken, Thursday, by calling on the judges to be more diligent: “There is no need to get excited, to create controversy, there is no need for provocation or unnecessary spectacle”, did he react to a journalist from the Figaro, Wednesday, while pushing back the announcement of its response to the summons. The hearing is scheduled for November 2.

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