How are Whistleblowers being assassinated by the French Justice? (Part II)
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How are Whistleblowers being assassinated by the French Justice? (Part II)
Remember upon the conduct of each depends the fate of all.
Alexander the Great
The French Law protects Corruption
The French law however complex and rich it may be, could still be improved in order to efficiently fight the corruption.
Mr Idea, one of my sources, explains that the French law must be put in place by dealing with the problem upfront. He supports the following reasoning: “The empowerment of those who know and remain silent responsibly is a prerequisite to any realistic discussion on ethics, in addition to the protection of the whistleblower. In order to seriously fight against the corruption we can not only attack its effects that force the victims to very long procedures and with improbable results. First and foremost, we must as much as possible dry up the source of the corruption which mainly stands in the protection afforded to ‘the ones who know’ in the name of a respect of individual freedoms which in a misguided way comes to oppose the natural right of the victims or all parties to a fair trial”.
Mr Idea’s analysis is reinforced by the deep reflection of the former Head of the Central Service of Prevention of the Corruption with the Ministry of Justice, who proposed to define a new offence: “With this new offence, it would reverse the burden of proof as far as corruption is concerned. It would be up to the elected official to provide the proof of the lawful origin of the property he or she possesses. This reversal of the burden of proof already exists in the Penal Code for drug smugglers and pimps. This is not something new. Why not apply it to the breaches of integrity (such as favouritism, illegal financial interests, influence peddling etc…)? Some French Deputies proposed it in 2013 during the consideration of the laws regarding transparency, without success. The government opposed it. However this principle exists in France for other forms of criminality without affecting the principle of presumption of innocence. It exists abroad, in the United Kingdom and in several countries of the African continent. This is a subject that is discussed within the framework of the G20 anti-corruption working group of which I participate in for France” as he explained to me.
“In keeping with the spirit of the Article 4 of the Declaration of Human Rights (keystone of our judiciary): “Freedom consists in being able to do everything that does not harm others” and Article 10 of our Civil Code: “Everyone is obliged to assist justice for the manifestation of the truth”. But there is a long way to go because in reality the victim or the plaintiff who exposes himself is at first sight credible because he is punishable. He is not as much considered as the one who, holding information but refusing to speak, is at first sight non credible because he is non punishable. In judicial proceedings, unless the opponent is justified, the “knowing” must be explained without abusing the duty of reserve”. Indeed, the truth does not break down and the “duty of reserve stops where iniquity starts” as the British law has admitted for more than one hundred and sixty years (Gartside vs. Outram case, 1856, United Kingdom). This is particularly true in the case of written civil proceedings which give pride of place to bribery and corruption in the sense that one hardly ever has a copy of the corruption pact, which does not need to be written to exist. While criminal proceedings at first sight allow the better understanding of the truth of the facts through the oral debates.
Photo: Giammarco Boscaro, Unsplash
In order to do so, it would be advisable to modify only one word into another one included in Article 145 of the Code of Civil Procedure: “If there exists a legitimate motive to preserve or to establish before any trial the proof of facts of which candepend the resolution of a dispute, the legally admissible measures of inquiry maybe ordered at the request of any interested person on request or in summary proceedings”. By replacing “may” by “must”. Providing that the judge “may order” shows that the proposition is well founded by law. But a devastating doubt is necessarily established since the law gives the judge, without any possibility to oppose it, the power to derogate from the spirit of the laws and not to do justice by delivering a judicial truth contrary to the truth of the facts. The doors of the justice are then very wide open to trafficking in influence, corruption and manipulations.
In this, it is fair to say that the French law protects the corruption. One must thus put it in the right place by giving strength to the law of common sense: “who does not say a word, consents”. Without being a freedom fighter and on the contrary to what is suggested in a biased and doubtful way, changing one word would have tremendous positive consequences on the economy and the image of the French justice. The “ones who know” would thus find an interest in cooperating. Instead of being subject to jokes further down the line (the race of the policeman and the thief), the fear of the sanction would then have a deterrent effect beforehand, at the source of the corruption.
In the civil court proceedings, the balance achieved by criminal proceedings would be approached by having an article of similar scope of that of the Article 434-4 of the Criminal Code, which provides for the fact of destruction, subtracting, concealing or altering a private or public document or an object of the nature to facilitate the discovery of a crime or an offense, the search for evidence or the conviction of the guilty parties, shall be punishable by a sentence of three years in prison and a fine in the amount of forty-five thousand euros. A penalty of five years imprisonment with a fine in the amount of seventy-five thousand euros when the facts are committed by a person, who by virtue of his / her duties, is required to contribute to the manifestation of the truth.
In order to validate or not the interest of this proposal, it would suffice to make a comparative study of the way in which the different judicial systems of the democratic countries treat the question of the silence of their ‘ones who know’.
Whereas France ranked 23rd in 2016 among the developed countries in the matter of fighting the corruption and information published by Le Figaro in 2017 stated that 75% of the French people on a continuous basis do not have confidence in their justice, Mr Idea wishes that the main authorities and NGO associations who wish to fight the corruption give serious thought to this fight.
The Malfunctions of the French Justice
At the beginning of 2015, a lawyer told me that in fact it would be sufficient to apply the law and that it would be appropriate to remember the debates on the law concerning the moralization of political life which resulted in the whistleblower himself being more penalized than the crooked ones. “As a matter of fact”, as he explained to me, “if the louts demonstrate that the whistleblower is dishonest, which is easy in their position, they by construction have all the means to destroy the whistleblower”.
To echo the words of this lawyer, Richard Armenante, a whistleblower on the subject of the malfunctions of the justice in France, indignant, former entrepreneur, a son of Resistance fighters, former Deputy Mayor to Robert Vigouroux in Marseille from May 1989 to May 1995, graduated from the INHEST (National Institute for High Studies in Security and Justice) thus summarizes the judicial struggle in France: “The real disorder in France stands in the justice”. He stated that his case against a judicial administrator has many troubling irregularities. His case is highlighted to be amongst one of the most characteristic cases where the responsibility of the French State and its justice is heavily engaged.
He explains that he had to wait until 2009, that is fifteen years after the facts, to receive the pieces of the investigation case file and amazingly become acquainted with a certain number of facts that had been hidden from him until then. “The judicial administrator used all the means to my prejudice by multiple complaints and threats, in particular by destroying and hiding documents in his defense (favourable to Richard Armenante) and exceeding his powers. Without the justice ever finding anything wrong with it!”, he confided to me, vexed, disappointed and exhausted from this fight. He assures me that these elements make it possible to reconstruct a puzzle that once assembled, demonstrate the severe excesses of the justice, the administration and complicity. A justice which accuses, which does not listen to the witnesses in their defense (such as magistrates and tax inspectors in particular), hide information, subtract irrefutable defense information, make some pieces of exculpatory information disappear and cheats to support a “cronyism caste”. His accusations are serious, at the level of his exasperation.
Photo: Richard Armenante's personal collection
He continued on: “In France, injustice has turned into a profession. The French justice is ranked in a survey by the European Commission for the Efficiency of Justice (CEPEJ) as 37th out of 43 European countries and is behind Armenia and Azerbaijan, a shame for a country which gives lessons to the whole world”. Several elements throw a special light on the functioning of the French justice. Mr Armenante declares himself as “a victim of harassment, withholding of information, forgery and the use of forgeries, a true denial of justice, iniquitous judgment, abuse of authority for the benefit of a receiver who has several times been condemned, victim of an administration and judiciary which refuse to reverse their decision, a more than fifteen-year legal slowness, which is unjustifiable, unspeakable and unbearable, decisions, withdrawals, hesitations, sanctions, questions without answers, useless evidence, absences of debates”. Now, Richard Armenante obstinately wants to “break the truth”. He explained that he had to make investigations on behalf of the justice, to find the proof of his innocence and judicial mismanagement. He now claims to have all the elements to prove without fear what he states as a ‘conspiracy in organized band’. “A democracy that does not evolve is subjected to mediocracy. Therefore, don’t expect Al Capone to give you a fair answer but a gangster’s one (…). In France nowadays telling the truth has become a revolutionary act”.
Five years after the Sapin II law was passed, what about ethics within justice?
The slowness of the justice can be attributed to its malfunctions, as well as its cumbersome procedures. Christian Chavagneux, economist and editorial writer in Alternatives Economiques, almost four years ago wrote that “the whistleblower has indeed been the Man of the Year 2014”. Each of those concerned by corruption cases finds that time is very long when abandoned to isolation, precariousness or even stigmatized by the media whilst facing ultra-powerful opponents, whose financial means allow them to be extremely well advised. The journalist Sandrine Foulon found the right words when she described in 2015 the hard battle of those who face corruption: “A twelve-year procedure for Jacques Poirier (as a veterinarian and a former executive at Aventis Pharma) after he had questioned his company’s importation from China of heparin, an anti-coagulant which was then produced from pork intestines. He exposed a ‘health scandal’. Is this reasonable? ” Indeed, is this reasonable that the justice of one of the most powerful countries in the world passed sentence more than a decade after the facts were exposed?
Cop one day, cop for ever?
Nathalie Le Roy, a police commander of the financial police (fraud squad), then an investigator on a three-year temporary assignment employed by the French Financial Services Authorities (the AMF – Autorité des Marchés Financiers) has also been suffering pressures for several years because she had recorded without her knowledge a magistrate of the financial department of the Paris Prosecutor, in the Société Générale vs. Jérôme Kerviel case. By taking the decision to make the recording public, in which Mrs Chantal de Leiris, the former Deputy Public Prosecutor said not only that Société Générale was not unaware of what the trader Jérôme Kerviel was doing, but in addition that pressure would have been exerted on the investigation and on the public prosecutor’s department, Mrs Le Roy had taken high risks. The civil servant has however explained her decision several times: she could not have imagined the idea that Société Générale could emerge unscathed from this scandal. The home and office of Nathalie Le Roy, Jérôme Kerviel’s apartment as well as the office of his former lawyer David Koubbi have since been searched for using this source of information. In May 2017, the lawyer and his client were kept in police custody in the context of this piece of information. The press informed us during the summer of 2017 that claims of manipulation of the justice charges of “witness tampering”, “trial fraud”, “forgery and the use of forgeries” had been rejected by the investigating magistrates. They dismissed the case for lack of evidence and in favour of the bank. This woman of honour stayed at her post however she suffered pressures because she dared disclose facts which, without her, would have remained hidden to all of us.As manywhistleblowers, Nathalie Le Roy has been in sick leave while the instruction is stillpending.
The police commander may have given courage to other policemen paving the way for them to stand up for the truth. Several civil servants working for the Ministere de l’Interieur (Ministry of Interior)multiply interviews where the subjects linked to their security, the security of the French citizens and the one of our country are being tackled.
Photo: Nathalie Leroy, personal collection
As a policeman since 1986, Alain Devigne is one of the ones who dare speak the truth, he has been blowing the while for two decades about “dishonest behaviours, questionable standards namely about suspicious links between cops and informers". As many who speak the truth, one tries to make him look crazy.
Alexandre Langlois is probably the one who has experienced the most media cover, namely because he published a book during fall 2019 (L'ennemi de l'Intérieur. Dérives et dysfonctionnements de la Police nationale, Talma studios) and because he resigned while claiming that he is employed as a policeman in the service of the people and for his colleagues, referring to Article 12 of the Declaration of Human Rights. In the frame of the law regarding global security, he has namely declared that he was “leaving the police for the same reasons he had joined it, for the defense of individual liberties and for the general interest”. Before leaving his employer, the VIGI union former member had be summoned to the police disciplinary committee having made his hierarchies angry because of his position namely when he denounced manipulated figures of criminality, suicides within the institution or wrongdoings in the Benalla scandal or maintain law and order aboutthe Yellow Vests (Gilets Jaunes).
Other voices were heard, namely the one of Noam Anouar, who denounced racism with the police, which he declares having directly suffered from. Suspended from office last year by his hierarchy because he denoucned police violence during a TV interview and after publishing a book in September 2019 (La France doit savoir, un flic infiltré chez les islamistes raconte, Plon), he continues his work raising awareness as far as wrongdoings in the police. The Francophones can watch the extremely interesting interview given at the end of 2020 together with Alexandre Langlois to media Thinkerview entitled “La police en déconfiture ?” ("The French police in a state of collapse?").
During summer 2020, we learnt that disciplinary action had been taken against another policeman, lance sergeant Amar Benmohamed, because he had denounced violences and racism within the cells of the Paris court.
The common run of people think that being a whistleblower and a cop are notincompatible. However, for whistleblowers of other administrations and for the private sector, it seems that internal whistleblowing lines lack efficiency. Until now, justice seems more violent with the citizens than with their employers.
Photo: Alex Vasey , site Unsplash
At the SNCF, can a whistleblower hide another one?
The railway worker Christian Dezègue makes similar remarks and complains about the fact that he is a whistleblower confronted with the organization of injustice. Overburdened with debt, by legal fees while he had worked forty years, he testified that his story started in 2005 when he joined a corrupted department within the French National Railways (SNCF) training center in 2005. His supervisor had tried to involve him into ‘Mafia’-like practices, which he has refused to support before exposing them. He confesses to have been harassed for several years, forced to leave his job, then he suffered a severe depression lasting two years before joining the association Anticor. He revealed that his alerts would be linked to the arbitrary appointments of children of senior executives - such appointments being contrary to the policies and procedures of the SNCF, appointments to high responsibility positions whereas the lucky beneficiaries did not have the necessary diplomas and embezzlement via their credit cards organized by senior executives. He testified that he sent an email to the Corporate Ethics Department without receiving any answers. The situation of the employee deteriorated, meetings were held until he was proposed, during a face-to-face meeting at the headquarters of the SNCF, an amount of 50,000 euros to leave the company with a confidentiality agreement. He refused that blackmail. That is when dirty tricks started to be played on him and they increased to the point where he had had enough and he ‘insulted’ the manager. The Disciplinary Board then announced his dismissal and it was enacted on June 3rd, 2015. He appealed the decision of the Minister of Labour who authorised his dismissal. For the time being the action of the Employment Tribunal has been suspended with a reprieve to decide the case whilst the Administrative Tribunal makes a decision. He ended up by creating his own blog on the site of the online media Mediapart.
It seems however that the fate of other SNCF employees is less violent in spite of the experiences and the media declarations they can give. As such in 2015, Charles Simon had exposed that he had been paid to stay home for 12 years after he had blown the whistle on embezzlement of funds in an amount of 20 millions of euros to the detriment of the public company. His case was very noisy in 2015 – 2016 because he then gave several TV interviews which were documented and published on social networks. He was also elected Personality of the Year by the readers of the regional daily Courrier Picard. His file would have been closed quite quickly after appearing in the media, most probably by a negociation with his employer just before he was made retired.
A third whistleblower became public after he filled in a complaint at the national public prosecutor’s department. financier. He has alerted “his hierarchy of wrongdoings inplacing orders of computers andservices to IBM”. Made redundant at the end of 2018, Denis Breteau was taken back on board after a decision made by the Lyon Labor Relation Board which then recognized his status as a whistleblower. This decision could make us gain confidence in the justice of our country, with a strictenforcementof the law.
Triple standards? Within the same company, three men and three different managements of their whistleblowings. Would the SNCF have a management manual which would allow them to differently manage whistleblowing cases? Why is the treatment of the alert so neglected? Why would some staff members be luckier than others when they blow the whistle? Is it a question of strategy of the whistleblower to “save his skin”? Would other parameters have to be taken into consideration? Hence, does theSNCF care about itsimage, its reputation with such important wrongdoings being exposed? How much can this strategic mistakes cost the company?
Cover photo : Sebastian Pichler, Unsplash
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