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Notebooks BERTRAND: the criminal complaint, a new communication medium

My excellent colleague, Mr. Thierry Herzog told the press yesterday of filing a complaint on behalf of the Head of State, for false accusation, the facts which consists in disclosing the notebooks of Yves Bertrand, former head of General Intelligence.

I note in passing these books are currently at the heart of a number of legal proceedings, insofar as there was much talk in recent days before the 11th Criminal Chamber PARIS, which is examining the case of Angolagate.

But back to the complaint for malicious prosecution, and the comments immediately shown that it can generate among lawyers than we are.

These books were seized in connection with the Clearstream affair, being educated in financial hub of Paris. They have not been given spontaneously by the author, but seized and placed under court administration.

Highlights published last week excerpts. So there was a leak, the books being moved from the trial record where they should stay, to go in the drawer of a journalist.

other hand, it appears that these books were written for private use and not for publication.

Given all this, I remain doubtful about the relevance of the complaint filed by the board of the Head of State, for false accusation, which involves a voluntary and spontaneous termination of a punishable act to an authority that could give a sequence (I summarizes the extreme content of criminality).

Moreover, I question the admissibility of the complaint filed by the Head of State, because of the immunity provided to its earnings per Article 68 of the Constitution. According to the article amended in 2007, the Head of State can not "during his tenure and before any court or French administrative authority, be required to testify nor be subject to an action, an act of information, investigation or prosecution. Any period of limitation or prescription is suspended. "

This article does not preclude a priori the President of the Republic to file a complaint, that is to say, to denounce acts criminally punishable, which he considers to be a victim. The Constitution actually says he can not "be" an action which does not exclude being "subject" of an action.

But in this case, it is clear that equality of arms between the parties, a guiding principle of our legal system from treaty law, no longer fulfilled, so that any proceedings initiated by the President of the Republic would be invalid due to violation of the principle of equality.

Indeed, the person under investigation has its status as the possibility of seeking acts, confrontations with other parties, including the plaintiff. It also has the opportunity to challenge the admissibility of the complainant in a civil action.
But how can it implement the exercise of these fundamental rights against the President as party, since the Head of State can not be subjected to any act of information?

To put it in a word, the President has the right to strike over the others, who are all, without exception, denied the opportunity to respond, or simply to protect and defend themselves.

But these subtleties are of no interest because we know that the complaint filed by the Head of State will have no result, since its purpose is not to succeed, but to enable the Head of State to protest against the charges contained in the famous books, without recourse to the law of the press, highly dangerous material in that it allows a discussion on the truth of the defamatory or offensive.

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The banker and oeillières

I went yesterday to stop by the 11th Criminal Chamber of the Paris court where the trial is taking place called Angolagate.

For those wishing to follow its progress, day by day, I invite them to read the excellent reviews Pascale Robert-Diard , following this trial for the newspaper Le Monde .

At the hearing yesterday, the day the sentence was indeed that of Mr. MESH, a former executive of the cell "compensation" of the Bank Paribas, which has structured the financing of weapons purchased by Angola.

The banker, or rather the bank executive, in a spirit of sincerity said, on a question of the Crown " when you're a banker, he must know to have blinders on," sentence immediately relieved by the President Parlos, which the state has the record of proceedings, sentence set by the press, eager to highlight the cynicism of the bankers, just looking on the underside of the operations they finance.

But most importantly for me, was not there (indignant cynicism of the banking profession, in my view it a little easier, even if it is in tune with the times ...)

No, the key lies elsewhere. After enact the aforementioned statement, the President has indeed added: "the court is not to morality."

No moral in the courtroom. No morals when it comes to justice, then appreciate only the facts, and interested only their legal qualification. Ignore common sense, public opinion, anything that falls within the doxa, to attach to the question whether the continuing violations were committed, and that's it.

It is unfortunate that this very sound maxim, "no morality" is not universally shared by the judiciary ...