How are Whistleblowers assassinated by the French Justice? (Part III)
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How are Whistleblowers assassinated by the French Justice? (Part III)
Fire tests gold, suffering tests brave men.
Five years after the Sapin II law was passed, what about ethics within justice?
Françoise Nicolas’s case is symbolic in terms of legal costs to be paid by the whistleblower. As a civil servant employed by the Ministry of Foreign Affairs, she explained to me that since the summer of 2015 the consequences of her situation as a whistleblower have come in many different forms and led to numerous procedures. Since she suffered the physical attack, the former diplomat has spent over 50,000 euros in solicitor’s fees. However her case has come up against the ‘reasons of state’ even though no-one in her administration has disputed the existence of the fictitious expenses which she disclosed. She certifies that she has lost everything before the different courts, which each time held motives that left her helpless and incredulous. Here is what this civil servant wrote to me in February 2017 about her experience with the French justice: “I failed to obtain the withdrawal of my administrative file of defamatory documents written by the Ambassador shortly after my arrival because the Administrative Tribunal of Paris judged in 2011 that the fact of writing that I went drunk to the office because I was a ‘single woman who could not stand the living conditions in Africa’ was not insulting. Consequently, it was of little importance to demonstrate the false character of these allegations. The Council of State validated this analysis”.
Photo : Françoise Nicolas, personal collection
“I was automatically transferred to Nantes in 2010. In 2011, the Administrative Tribunal in Paris judged that the Ministry of Foreign Affairs had acted ‘because of the consequences of the incident on the relations between France and Benin’, thus validating the defense of the administration by invoking the personality of my attacker, protected by her lover as she had a child out of wedlock. The lover was then the brother-in-law of the Beninese Head of State Yayi Boni and had made a very formal appeal to his high ranking relations. The Council of State had also validated this decision. Not a single magistrate would even report the serious anomalies: absence of an investigation, dismissal of the cleaning agent who had saved my life and has not been auditioned, incontestable demonstration of the production of false documents by the administration, such as a false job description etc”.
“In 2016, the ‘reasons of state’ was again accepted by the Administrative Tribunal in Nantes to reject my requests for an administrative investigation and for functional protection. My case has become even more absurd as since 2011, Yayi Boni divorced his wife and is no longer the Head of State (which was the reason for applying to the ‘reasons of state’). Therefore, the lover of my attacker is only now the former brother-in-law of a former Head of State. During the public hearing in court I had the opportunity, for the first time, to speak about the context of the internal reporting of these “serious accounting and legal malfunctions” relating to empty files which had however been financially charged. I have never been listened to. The Court has rejected my requests based on the ‘general interest’ relating to the personality of my attacker”.
This forthright woman, worn out by years of fighting in the courts, continues to describe to me the number of important obstructions she is confronted with:
“In 2011, a first criminal complaint was filed in France. My lawyer at that time voluntarily undermined the facts making sure that this would lead to a faster investigation. It is not so. On the contrary, from 2011 until 2014, the ‘investigation’ was characterized by a certain number of obstructions: nobody was able to explain the reasons why my file was blocked twice in one year in cities located in the south of France. The three hearings were very basic. Nobody was astonished by obvious inconsistencies. It would take the intervention of Elisabeth Badinter to the Public Prosecutor in Rennes in July 2014 to see the last act: he closed the case without further action through lack of evidence”.
“In 2015, I filed a new criminal complaint against persons unknown for attempted murder, with civil proceedings for damages at the Tribunal Grande Instance in Nantes. Even though I am financially depleted the bond was set at one month of my salary which further aggravated my financial situation. The investigating magistrate validated the attempted murder and auditioned me in January 2017. I was destabilized by his animosity towards me. The judge also did not find the blatant inconsistencies in the affidavits, evidence given under oath. Two out of three persons claimed that I had said things that I had not as I was made voiceless by the strangulation (medically established aphonia). The Ambassador described me as being ‘unbalanced’, which was denied by several psychiatric experts and professional evaluations. The Ambassador reinvented the scene without even ensuring that there was a minimal consistency with the other depositions and versions given etc. Whereas I produced photos of my wound taken by a medical doctor after the attack, witnessing a puffed-up face, a neck abraded by the strangulation, the judge seemed to discover them in the file. The list is long.”
Eleven years after blowing the whistle on legal and accounting wrongdoings, the legal files of the whistleblower are far from being closed. In 2018 a Court of Appeal refused the civil servant the advantage of the functional protection, due to each civil servant. This refusal is supposed to be re-judged by the Nantes Administrative Court in 2022. In 2018, she was also discharged of a defamation complaint but her lawyer did not start a procedure which would have allowed her to receive compensation. In 2018 again, she was struck off the Administration giving the grounds of a disability. She explains that she now survives thanks to odd jobs which make up her 800-euro retirement although ten years ago, her salary at the Ministry of Foreign Affairs was around 7,000 Euros.
Is Françoise Nicolas’s dramatic case an isolated case?
Alain Gautier is a former employee at Vortex who denounced fraud. He pointed out that the public prosecutor had been seized by four Health and Safety Inspectors in the departments of Essone (April 2013), Vienne (August 2013), Rhône (November 2014) and Herault (September 2015) concerning four reports exposing undeclared working hours. For three years, the employees had been waiting for an investigation to be made. Without the intervention by the Senator Eric Bocquet at the Senate, those reports would not have been investigated and would have expired. Was the public prosecutor’s department waiting for its statute of limitation? The CEO of Vortex, Guilhem Sala was a former executive at the Department of Public Transport at the General Council of Herault before he joined Vortex in 2006. He became Managing Director in 2008 after capturing almost all of the public offers for schools in Herault relating to handicapped children. Would this explain it? Alain Gautier still stands tall and with dignity in spite of the problems, the fatigue and the weight of his discoveries.
After his alert, he faced three different procedures at the Administrative Tribunalconcerning his dismissal. He has been summoned three times by Vortex about these procedures, three times by the Direccte (Health and SafetyInspectors), three times by the representatives of the Ministry of Labour and thus a total of nine interviews and twelve defense cases in the frame of these procedures. The three procedures were discussed in Administrative Courts and two of them are still pending totalizing forteen defence files within the context of these procedures.One can add discussions prior to disciplinary sanctions (warning and discharge).
Photo: Alain Gautier with his Vortex colleagues in front of the Lyon Conseil des Prudhommes on October 8, 2020 - personal collection
He has also been summoned to subpoena as a direct witness in a defamatory trial which his former employer Vortex initiated against the daily newspaper L’Humanité, which published an investigation on June 9th, 2015, and against three employees. Vortex lost in a judgment pronounced by the 17th Chamber of the Criminal Court in Paris on October 28th, 2016. They also lost on appeal of the judgement on June 29th, 2017.
In the discharge judgement dated November 28, 2019 about a web article, the magistrate’s court picks out that « the investigation lead by the accused is serious and his talks rely on checked facts (…). As such, on December 22, 2017 the accused made 151 documents certified by a bailiff as of proof of facts. (…) Another judgement of the Montpellier County Court dated June 23, 2016 sentenced the company Vortex for fraudulent financial set-ups and social goods embezzlements ». One can however wonder why the November 28, 2019 discharge judgementwas only passed on to the whistleblower eight months after the deliberation. No appeal of the judgement was made by the official liquidator, the judgement is thus a final one.
While discharging Alain Gautier, the Court ratifies the fact that «the two managers-shareholders of Vortex have made a fraudulent financial set-up by the assembling of holding companies which misappropriate the profit and the social goods of the company. Between 2009 and 2015, by the means of communicating vessels, available dividends and management fees in the amount of 13 millions euros managements fees have as such been distributed to the two managers-shareholders to the detriment of the financial health of the company and to the expected service quality towards users and organization authorities. »
It doesn’t make sense however that the former Vortex employee was ruled out of court as far as his requests in damages and the reimbursement of his expenses,the Montpellier court explaining its decision as such: « In the case in point, it is not demonstrated that the company Vortex had been dishonest or rashly dishonest, therefore the abuse of process to go to court is not established. As aconsequence, Gautier Alain and the company Kardol will be ruled out of court as far as their requests in damages. »
During his September 5, 2019 hearing, Alain Gautier had witnesses subpoenaed for an amount of €1,234.72, he had already paid bailiff in the amount of €1,942,51 before the request of the Vortex CEO to refer the hearing initially scheduled on December 17, 2018. If the company Vortex has been ordered to pay cost seems normal, or even obvious however it was not the case. Is this a way to make the whistleblower pay for his action, to make sure that nobody will follow the path of truth and ethics?
Why are an elected representative and a citizen treated differently at court ?
It is interesting to wonder why another sentence was passed on November 20, 2018. In fact, a similar trial to Alain Gautier’s opposed the company Vortex and Nathalie Perrin Gilbert, the Mayor of the First Arrondissement of the city of Lyon. The Lyon Court of Appeal confirmed the decision made by the LyonMagistrates’ Court on June 19, 2018 arguing: « The company Vortex committed an abuse while taking the initiative of initiating criminal proceedings. Several committed facts were exact and, while starting this action, it had only tried to artificially create a backfire to the proceedings which it was itself subjected to.»
The elected representative and the whistleblower had both been sued for defamation because they had denounced Vortex’s social dumping.
This defamation complaint against the Mayor of the First Arrondissement de Lyon was produced on December 13, 2017, which is precisely the day after Alain Gautier’s summons to appear at the Magistrates’ court. The main facts reproached are common to the two proceedings and the documents produced for their respective defence are identical.
It took only eleven months to juge Nathalie Perrin Gilbert (as of December 13, 2017 til November 20, 2018) whereas Alain Gautier obtained his judgement only thirty one months after having been issued a writ against, on December 12, 2017.
As far as the treatment of the justice is concerned, a third difference is to be acknowledged between the two files as the judgement was passed on to the elected representative the day after the deliberation.
Alain Gautier won all the proceedings. Four other proceedings are still pending.
On April 20, 2020, the Montpellier Commercial court ordered Vortex’s compulsory liquidation, which presented a massive debt in the amount of €25 millions. The economic and financial section of the Montpellier SRPJ search Vortex headquarters in St Jean-de-Védas on July 22, 2020. The seven investigators of the judicial police would have taken with computers. However, five years before, the two managers shareholders cashed €15 millions after the selling of the group shares for its recapitalization on June 24, 2015.
How can a company working mainly with public markets, which was evaluated to an amount of €15 millions in 2015 and generated dividends and management fees in the amount of €13 millions between 2009 and 2015, present a deficit of €25 millions five years later!!??
The community is paying a high price. Alain Gautier was right when he blew the whistle several times and informed the public powers of wrongdoings and questionable practices of the Vortex managers. However one should tell how and where the whistleblower has so far been protected.
How could a whistleblower protect himself and avoid years of proceedings, avoid years of unemployment and problems linked to precariousness and violence of the situations described above?
In parallel, how can the company / the administration protect its interests? How can they make a difference between a real whistleblower, who stands up for ethics and another whistleblower who proclaims to be ethical but who would be an agent, acting for a competitor for example and would have as a goal to weaken the company?
How can one stop to manage the consequences, namely with beautiful words which only are a public and media curfew but which do not help the fate of citizens nor transparency nor the general interest?
How can one reconcile the managements and the employees, how can they work together in total confidence?
Intellectually, the laws move thinks in the right direction however the above-mentioned exemples show that in practice, with a few exceptions, protection is non-existent.
Surveys prove the fact that if ethics is taken into consideration within companies, it allows productivity, image gains to arise and saves sales partnerships. Furthermore, detecting offence within a company/administration allows it to better analyse and understand the risks it is exposed to. The UBS scandal is a school case: if UBS had listened my internal alerts and had made sure that the problems linked to the wrongdoings I had blown the whistle on, the bank would never had suffered from media campaigns making a dent into its image, it would have avoided a very costly trial, a huge fin, numerous redundancies, stressed employees, the closing of several of its agencies etc.
The strengthening a company goes through the training of the employees, raising awareness of problematic or illegal situations (anti-corruption, cyber-criminality etc.) thanks to serious games. While delivering digital innovative solutions for training and evaluate skills, the motto is the following: once one knows, one can decide (to alert).
Company employees and managers can each inform oneself by video modules to raise awareness as of a citizen belonging to a professional community, of which everyone must defend the common interest.
As such, being trained and informed, the employees will not expose the company anymore with the excuse that they ignored the wrongdoings and will not voluntarily or clumsily wrongly alert. As far as the company is concerned, it will be able to understand how to make a difference between a real whistleblower, as defined within the Sapin II law and a company weakening agent.
Act together with ethics
Once trained, if employees / civil servants wonder if something is wrong, they will be able to lift a doubt thanks to a digital tool anonymizing the exchanges. This tool, developed by a whistleblower, allows dangerous conversations, lifts doubts and potential alerts: an alert is not always one! Sometimes, it is doubts on the validity of a decision made by the Management according to a particular situation.
The gathering of these tools Training – Information – Action as described above is developed toward economic protection and strengthening of the company and the administration. The concept targets transparency to protect from fake whistleblowers and allows real whistleblowers to feel confident.
It is a must to bring transparency to all levels because above serious unfairness suffered by honest citizens, France weakens on a daily basis.
Some countries use our lack of ethics to discredit our country and seize markets. Thanks to ethics, while strengthening our companies and our administrations, we will be able to impulse a standard of excellence, an inspiring model so that France can lend credibility to the “country of human rights”.
Cover Photo: Alex Vasey site Unsplash
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