Was the decision to summon Nicolas Sarkozy on Tuesday “unconstitutional”, as the former President of the Republic said? The judges of the Paris Criminal Court had asked to hear the former tenant of the Elysee as a witness in the so-called “Elysee polls” case, for which five former advisers and collaborators are judged.
Refusing to answer the judges, Nicolas Sarkozy argued about the “separation of powers” and explained that he could not answer the questions asked, “not having the right”, citing the Constitution. “Article 67-1 of the Constitution provides for irresponsibility only for acts linked to the exercise of the office of President of the Republic. This irresponsibility, which could be called immunity, does not stop with the end of the exercise of the mandate: it is final, ”he said, wishing to settle the question of whether he could be heard. as a witness.
What exactly does the Constitution say about this? 20 minutes looked into the question, and asked two specialists in constitutional law whether hearing the former president as a witness in this trial respects, or not, this founding text of the Fifth Republic.
What does article 67-1 say?
He is written there that “the President of the Republic is not responsible for acts performed in this capacity” unless he is dismissed or brought to appear before the International Criminal Court.
This means that a former president cannot be prosecuted for facts which took place during his tenure. On the other hand, he can be prosecuted for acts which took place before or after his five-year term. This is why, for example, Nicolas Sarkozy was tried for the so-called wiretapping affair.
If a former President of the Republic “is not responsible” according to the Constitution, does this mean that he cannot be heard as a witness?
This is where the question gets tough. All the delicacy lies in the interpretation of the meaning of this responsibility. According to Pierre Esplugas-Labatut, professor at the University of Toulouse 1 Capitole, this article 67 and its paragraph 1 “clearly establish the principle of the inviolability of the person of the President of the Republic, that is to say that the President enjoys procedural immunity ”. This immunity applies when a former president is called upon to testify on facts which took place at the time of the exercise of his functions, estimates this specialist in public law, which was the case on Tuesday.
However, there may be an ambiguity in the interpretation of this responsibility, notes Julien Padovani, lecturer in public law at the University of Paris 1 Panthéon Sorbonne: “If you have an interpretation stricto sensu, you feel that the responsibility is to be sued. And so, in doing so, a former President of the Republic can quite well be summoned as a simple witness. “
On the other hand, “if you have an interpretation lato sensu [au sens large] responsibility, in its etymological sense, which means “to report”, then it is possible to consider that in this case, by summoning him as a witness, he is necessarily asked to give an account, whether directly or indirectly. “
Beyond the theory, remarks the specialist, this convocation is “different from a simple testimony”. The former president was called to testify in a case where former employees of the Elysee are being tried. “If we take a step back and leave the analysis of the texts, it is difficult not to see in this summons, under constraint, a form of accountability, whatever the judge’s intention. », Notes Julien Padovani. However, “this dose of responsibility, particularly political, is contrary to paragraph 1 and to the separation of powers in general”.
If this famous paragraph on the responsibility of the former presidents of the Republic contains only one sentence, it therefore remains open to interpretation.
Did Nicolas Sarkozy have the right to remain silent in front of the judges?
Yes, says Julien Padovani, because of professional secrecy, if we consider that the secrets of the Elysée Palace are part of professional secrecy.