5.  The applicant was born in 1978 and lives in Limay.
6.  On 24 September 2008 the Société Générale bank lodged a criminal complaint against a person or persons unknown for forgery, uttering forged documents, and fraud, following complaints by Mr Nicolas Sarkozy, the then President of France, about four fraudulent payments to mobile telephone companies from his bank account for a total amount of 176 euros (EUR).
7.  On 25 September 2008 the preliminary investigation was entrusted jointly to the fraud squad and the serious crime squad. On the same day Mr Sarkozy himself filed a criminal complaint, which was joined to the investigation. On 23 October 2008 the public prosecutor of Nanterre opened a judicial investigation in respect of fraud committed as a premeditated joint enterprise, to the detriment of the companies concerned, Mr Sarkozy and eight other individuals including relatives of his. During the judicial investigation Mr Sarkozy applied to join the proceedings as a civil party.
8.  On 11 June 2009 the investigating judge committed the applicant and six other individuals to stand trial before the Nanterre Criminal Court on a charge of fraud committed as a premeditated joint enterprise. They were accused of having obtained 148 telephone lines, mobile telephones and the payment of subscriptions using the references of payment cards and bank accounts belonging to a third party.
9.  Before the trial court, the applicant claimed that Mr Sarkozy’s application to join the proceedings as a civil party was inadmissible. He argued, first, that the possibility for the serving President to intervene as a civil party, when it was impossible to bring proceedings against him or to have him summoned as a witness during his term of office (see Article 67 of the Constitution, paragraph 17 below), would create an imbalance in the proceedings. Secondly, he contended that the President’s power to appoint judges and prosecutors under Articles 64 and 65 of the Constitution (see paragraphs 17, 22 and 25 below) cast doubt on the impartiality of the judicial proceedings to which he was a party.
10.  In a judgment of 7 July 2009 the court found the applicant guilty of the charges against him and sentenced him to one year’s imprisonment, after establishing his participation in the preparatory acts and his role in the organisation of the fraud. It held that Mr Sarkozy’s application to join the proceedings as a civil party was admissible on the basis of his right of access to a court, but deferred its decision on his claim for damages until the expiry of a one-month period after the end of his term as President (see Article 67 of the Constitution, paragraph 17 below). The court took the view, with reference to Article 6 of the Convention, that the President’s status before the court would entail a breach of the equality of arms principle because, as a civil party, he could not, for the duration of his term of office, be the subject of any sanction for bringing unjustified proceedings or be prosecuted for malicious or rash accusations, or be questioned or confronted with the defendant (ibid., see also, paragraph 31 below). It further emphasised that the President’s power to appoint judges and prosecutors was capable of creating the appearance, for the defendant, that he was not being tried by an independent and impartial tribunal.
11.  In a judgment of 8 January 2010 the Versailles Court of Appeal varied the judgment and sentenced the applicant to eight months’ imprisonment. It found the applicant guilty, based on his own confessions and the statements of other defendants, together with the material discovered during searches. In respect of the civil claim, it ordered the applicant to pay EUR 1 to Mr Sarkozy in respect of non-pecuniary damage and, jointly with the other defendants, EUR 2,500 for costs at first instance and on appeal:
“... L.S., [the applicant] and F.T. contend that the special status of the Head of State rules out, in the present proceedings, any summons, interview, confrontation, investigative act or adversarial debate concerning Mr Sarkozy. It is not so much the securing of equality in the factual or legal arguments which matters, but the equal opportunity, for each of the parties, to submit its own ‘arms’ and to discuss those of the other party. In the present case, it is clear that this submission and discussion were effective throughout the proceedings, both during the judicial investigation and first-instance proceedings and before this court. A fair hearing has thus been guaranteed, not only in the balance between the parties but also through the effectiveness of the adversarial debate.
As regards the second aspect, concerning the impartiality of the tribunal which has allegedly been undermined by the supposed partiality of the public prosecutor and the President’s intervention in the proceedings when he is the guarantor of judicial independence and authority, a distinction must be made. On that first point, the submissions by the public prosecutor of Nanterre rightly observe that the criminal proceedings were brought by the public prosecutor’s office, which is not subject to any application for withdrawal, and the proceedings did not therefore depend on a civil-party intervention. On the second point, many civil or criminal courts, in particular in press-related matters, have, on many occasions, admitted proceedings brought by the serving President of the Republic, who in that capacity is also chair of the National Legal Service Commission, without at any time considering that he was in any way contravening his constitutional duties.”
The Court of Appeal further sought to ascertain whether the impartiality of the tribunal could also be called into question in the light of the theory of appearances. It pointed out the ambiguity of the Head of State’s status, which “[came] from the fact that it [was] wholly intended to protect him from attacks before the courts, but [did] not prevent him from acting as an ordinary litigant when he decide[d] to have recourse to judicial proceedings”. It emphasised, however, that the public prosecutor’s office was not affected by the guarantee of the right to an impartial tribunal and that the President’s powers of appointment had not infringed the right to a fair trial:
“... the fact that, in the present case, the public prosecutor’s offices both of Nanterre and of Versailles had endeavoured to ensure that the case was examined as quickly as possible, and exceptional means of investigation were deployed (serious crime squad and fraud squad), could no doubt be attributed to the identity of the victim, but also to the fact that members of his family were affected by the same offences, those factors suggesting that a large-scale action targeting the Head of State and his family was likely to have been organised on account of their identity.
Thus, without there being any evidence that the President intervened directly in the proceedings, it is certain that the local public prosecutor’s office, of its own initiative, showed a manifest zeal, which could not, however, have undermined the legitimate interests and fundamental rights of those concerned. The defendants have not demonstrated that they have suffered as a result of any breach by the French institutions of the principles which must govern a fair trial.
Moreover, ... Article 64 of the Constitution states ... that the President is the guarantor of the judicial authority, and this provision legitimises, at the highest level of the hierarchy of legal norms – and even when the President of the Republic is a party to the proceedings – his powers over the public prosecutor’s office, while also ruling out any doubt as to the independence of the judiciary ... [The applicant] cannot dispute the President’s capacity to act as an ordinary citizen.
In addition, even supposing that French judicial organisation and the Convention are incompatible, only a reform of the Constitution would be capable of resolving that contradiction.
In those conditions, as there is nothing to show that the public prosecutor’s office or the power to appoint judges and prosecutors caused any concrete impairment of the independence or impartiality of the judges, the objection is unfounded.”
12.  The applicant appealed on points of law and, in addition to complaining of a breach of his right to a fair trial, argued that Article 2 of the Code of Criminal Procedure (see paragraph 31 below) was unconstitutional as it did not preclude the President of the Republic from joining criminal proceedings as a civil party. In the meantime, in pleadings of 16 August 2010, the applicant asked the Court of Cassation to refer a question to the Constitutional Council for a preliminary ruling on constitutionality (question prioritaire de constitutionnalité – “QPC”) relating to the compatibility of the above-mentioned Article 2 with the principle of the separation of powers and the rights of the defence, and with the right to a fair trial.
13.  In a judgment of 10 November 2010 (Bull crim., no. 180) the Court of Cassation decided not to seek a preliminary ruling on constitutionality on the following grounds:
“The question, which does not pertain to the interpretation of a constitutional provision that the Constitutional Court has not yet had occasion to apply, is not a new one.
The question raised does not have any serious merit in so far as it seeks, in reality, to clarify the scope of Article 2 of the Code of Criminal Procedure, in the light of Article 67 of the Constitution, and thus falls within the jurisdiction of the ordinary courts.”
14.  In his opinion before the Court of Cassation, the Advocate-General called for the partial quashing of the judgment of the Court of Appeal in so far as it had not stayed its ruling on Mr Sarkozy’s civil action until the end of his term of office. The Advocate-General took the view that the fact that no proceedings could be brought against the President (for malicious, improper or de facto fanciful accusation), or that he could not be summoned to testify, had not created, in the circumstances of the case, any inequality between the parties, while acknowledging that this inability could cause serious difficulties in other proceedings if mainly based on accusations or evidence emanating from the President. However, in the Advocate-General’s view, the President’s power to appoint judges and prosecutors was such as to cast doubt on the objective impartiality of any private disputes to which the President might be a party during his term of office. He nevertheless indicated that the fact of declaring inadmissible the President’s application to join the proceedings as a civil party would have the effect of depriving him of his right of access to a court and concluded that it was necessary to opt for a compromise solution in the form of suspending any civil action brought by the President for the defence of his personal interests until the end of his term of office.
15.  In a judgment of 15 June 2012 the Plenary Court of Cassation quashed the Court of Appeal’s judgment in so far as it had not given sufficient reasons for the prison sentence handed down against the applicant. For the remainder, it found as follows:
“First, the President of the Republic who, in his status as victim, is entitled, under Article 2 of the Code of Criminal Procedure, to exercise his rights as a civil party during his term of office, joined proceedings that had already been initiated by the public prosecutor, and the appellant has not been granted a discontinuance or an acquittal.
Secondly, the judgment observes that the appellant was found guilty on the basis of both his own confessions and the statements of other defendants, together with the evidence gathered during searches.
Thirdly, the Court of Appeal, in assessing, without contradiction, the particulars of the case, found that the public prosecutor’s action had not breached either the legitimate interests or the fundamental rights of the accused persons.
Fourthly, the judgment finds in precise terms that the guarantee of the right to an independent and impartial tribunal, under Article 6 § 1 of the Convention, applies only to judges and not to the prosecution.
Lastly, the mere fact that judges are appointed by the President does not render them subordinate to him, since once they have been appointed, they enjoy tenure and are not subjected to any pressure or instructions in the exercise of their judicial duties. After finding that each party was able to present its arguments and discuss those of the opposite party throughout the judicial pre-trial investigation and the hearings both at first instance and before the Court of Appeal, the judgment indicates that the defendant had not demonstrated that he had sustained a breach of his right to a fair trial on the part of the French institutions. The Court of Appeal thus rightly concluded that the principle of the equality of arms had not been infringed. ...”
16.  In a judgment of 24 January 2014 the Versailles Court of Appeal set aside the applicant’s sentence, replacing it with a suspended term of ten months’ imprisonment.