Can you be protected by presidential immunity, but still be summoned by the court to explain the facts that took place during your mandate as head of state?
In an unexpected twist, the magistrate Benjamin Blanchet finally answered in the affirmative, therefore demanding that Nicolas Sarkozy come and explain himself to the court on the case of the Elysee polls, judged in the 32nd chamber for fifteen days. .
The former President of the Republic is expected this Tuesday at the beginning of the afternoon for his hearing as a witness in this case for which several of his former collaborators, including Claude Guéant and Patrick Buisson, are being prosecuted for "favoritism" and "Concealment of favoritism".
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Ten years after the facts, Nicolas Sarkozy will be questioned at the request of the Anticor association, civil party in this trial, about hundreds of surveys ordered without a tender procedure by the Elysee Palace from two former relatives , Pierre Giacometti and Patrick Buisson. He had so far refused to answer the examining magistrate, claiming his immunity - which also prevents him from being among the defendants. Then summoned as a witness at the trial, he did not go to the first day of the hearing and explained it by a letter from his lawyer. The court ultimately rejected his arguments and issued a
“warrant”
for him. The former president, who mentioned on the sidelines of one of his trips
"provocations"
, however, wanted to reassure the judges by letting it be known that he would go to the summons.
In case of refusal, the court would have mandated the police to make him appear anyway.
But Nicolas Sarkozy recalled the day after the decision that he had
"always responded to the summons"
made to him.
In similar circumstances, his predecessor Jacques Chirac had made the same argument to refuse to testify in the Clearstream or Karachi cases - without the judges finding fault.
The summons of Nicolas Sarkozy in a case where he is protected by his presidential immunity constitutes a first which did not fail to react.
Indeed, in similar circumstances, his predecessor Jacques Chirac had made the same argument to refuse to testify in the Clearstream or Karachi cases - without the judges finding fault.
And if François Hollande had been auditioned as a witness in the investigation into the death of two journalists in Mali, it was of his own free will.
But this time the court, which considers that the testimony of the former president
"is necessary for the manifestation of the truth",
maintains that his immunity
"does not preclude a hearing as a witness".
Bitter discussions
The question has since been the subject of bitter discussions among jurists.
On the one hand, the testimony of the former president is undoubtedly necessary to bring out the truth in this case where he is presented by the defendants as the originator.
Claude Guéant had also tried to argue, by a priority question of constitutionality rejected by the court, that the immunity of the head of state should also protect the advisers when the judged facts are committed out of obedience to the president.
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On the other hand, recalled the professor of public law Olivier Beaud and the lawyer Daniel Sulé Larivière in a forum in
Le Monde
,
"the immunity of the president provided for by article 67 al.
1
(of the Constitution, Editor's note)
not being personal but functional, it remains applicable after the end of his mandate. ”
Clearly, the two jurists therefore believe that the judge here disregarded the Constitution - or that at the very least, the arbitration concerning the hearing of Nicolas Sarkozy as a witness could only be decided by the Constitutional Council.
