DELEGATION OF POWER AND CRIMINAL RESPONSIBILITY FOR INVOLUNTARY HOMICIDE JURISPRUDENTIAL
LexInter | December 22, 2003 | 0 Comments

DELEGATION OF POWER AND CRIMINAL RESPONSIBILITY FOR INVOLUNTARY HOMICIDE JURISPRUDENTIAL

DISMISSAL of the appeals lodged by Raynal Léo, Dero Marc, Henry Paul, civil party, against the judgment of the Toulouse Court of Appeal, 3rd chamber, of January 29, 1998, which, for manslaughter, in particular sentenced Léo Raynal to 1 year suspended imprisonment and 30,000 francs fine, Marc Dero to 10 months suspended imprisonment and 20,000 francs fine, and pronounced on civil interests.
THE COURTYARD,

Joining the appeals because of the connection

I. On the civil party’s appeal:

Whereas no means are produced;

II. On the appeal of the defendants:

Considering the briefs produced in demand and in defense;

Whereas it results from the judgment under appeal that the company Chaîne thermale du soleil operates, in Cazaubon (Gers), a thermal establishment called thermal baths of Barbotan; that, on June 27, 1991, during waterproofing work carried out on the roof terrace of the construction, liquid bitumen on fire flowed, through an orifice drilled in the slab, inside the building , on a temporary thermal insulation polystyrene partition which has ignited; that the fire quickly spread to a neighboring partition and to the false ceiling, releasing toxic gases and thick fumes which spread throughout the premises; that 20 curists and an employee, suffocated by carbon monoxide, perished as a result of the incident;

That the installations were not only carried out but also operated in disregard of numerous requirements of the safety regulations against the risks of fire and panic in establishments open to the public and that these irregularities are the cause of the rapid development of the fire, the importance of the smoke, the very poor alert conditions and the difficulties in evacuating spa guests, often elderly or with reduced mobility;

That thus, in violation of the safety regulations, the materials composing the false ceiling and the partitions did not meet the required qualities with regard to fire behavior; that the space between the floor and the false ceiling, through which the toxic gases spread, did not include regular overlap by incombustible materials; that there was no smoke extraction or smoke detection system, nor any opening to the outside; that the establishment was devoid of an alarm device, evacuation signaling, display of instructions in the event of fire and that the staff had never practiced an evacuation exercise; that the disaster area had no emergency exit;

Whereas Léo Raynal, secretary general of the establishment, Marc Dero, mayor of the municipality of Cazaubon and other defendants were referred to the criminal court for manslaughter;

On the single means of cassation proposed for Léo Raynal, alleging the violation of articles 121-3, 221-6 of the Penal Code, 593 of the Code of Criminal Procedure, lack of reasons, lack of legal basis:

“in that the judgment under appeal declared Léo Raynal guilty of manslaughter and sentenced him to one year’s suspended prison sentence and a fine of 30,000 francs;

“on the grounds that” Léo Raynal occupied the functions “of secretary general of the thermal baths of Barbotan since the beginning of the 1990 season; Alain Castex, his predecessor, was declared guilty and condemned by the judgment whose appeal whose penal provisions are final to him; he had exercised the same functions from 1981 to October 17, 1988; the interim was provided by a deputy secretary general, Ms. Dumolie, then by 2 general secretaries without the distribution of their powers being perfectly fixed; for 18 months , he performed alone a function that he defined as essentially commercial and management of the station with attributions of hiring, training and monitoring of staff; to this extent, he was referred to the trial court for nonot having ensured the implementation of active safety measures, in particular by the establishment of safety instructions and the organization of evacuation exercises since on two occasions Robert Chouraqui (D 228-29) had reminded him on 13 December 1990 and 21 May 1991 the failures which it had observed in this regard (judgment under appeal p. 68, paragraphs 1, 2, 3, 4);

Jacques Barthélémy, representing the contracting authority in 1991, contested his status as operator, indicating that, according to him, it should be attributed to the general secretaries; neither the law nor the regulations have given a definition of what is “the operator” within the meaning of the safety regulations in establishments open to the public; it is certain that this notion encompasses those who use a structure on a daily basis in order to obtain from it in an optimal way, yield, profit, satisfaction, functioning; to exploit is to assert, to take advantage, to use advantageously; to this extent, exploitation can take place at different levels, in different circumstances, but it is at the local level, at that of everyday life, that the an establishment open to the public is used as a spa establishment and not only, as Léo Raynal claims, at the central level, which he ultimately suggests would have been only a totally enslaved mechanism; it is at the local level that we take day-to-day decisions in accordance with the instructions received, according to the circumstances that arise and reporting on them where appropriate; Léo Raynal had at the local level within the framework of the “fixed technical-administrative structure represented by the thermal establishment, a power of organization, by the recruitment, the training, the deployment of the personnel, the hierarchical power over this one, a small budget allowing instruction, daily safety, a power of representation which, if it entailed application of any instructions also entailed initiative and responsibility; to this extent he is an operator; Zealous servant of CTS, always at his service, Léo Raynal never indicated having received precise instructions which could concern the safety in the establishment, he never mentioned reports which he would have sent to the general manager , whose existence he singularly mentioned the first time before the trial court, except to point out the need to remedy the truly unbearable water infiltration for spa guests; he simply indicated that he had taken an establishment in good working order, being however confronted with a controller of the CRAM who reminded him insistently that
furthermore, this controller only had in perspective the regulation of work, and secondarily only that of the public; Did Léo Raynal ask himself this simple question: who is responsible for the safety of curists during their stay in the establishment? We have to admit: that it was only after the accident that the head of the maintenance department became responsible for maintenance and safety! ; that the safety register has only been established for hotel establishments and even does it mention that the periodic inspection of fire extinguishers; that staff did not know the location of the fire extinguishers; he had, by his instructions, limited the use of the distribution network of messages considered inappropriate and which had therefore fallen into disuse; that he does not had not informed the personnel likely to use it that there was a sound system in each swimming pool although, perhaps, he himself was unaware of its existence; that it never envisaged, and a fortiori implemented the least training in fire safety for the personnel who permanently accommodated people often elderly and with reduced mobility; his remarks at the hearing concerning the absence of request of the personnel in relation to such training in no way exonerated him from his lack of initiative in this matter; Léo Raynal had all the power: it came within his competence as head of establishment to organize for the staff in service in a care establishment, visits, an understanding of the places, the means of prevention, the methods of ‘ evacuation, means of disseminating an alert, means of immediate fire fighting, of organizing exercises and of course of drafting and posting safety instructions, which could have been done without waiting for the election a CHST; however, his attention had been drawn several times to the situation of his establishment by the controller of the CRAM; he had a statute, means, a salary which should lead to face the problems concerning, in addition to that of the personnel, the security of the public; in this total lack of awareness of these problems, he tolerated work dangerous for the public to take place in the presence of the public without making the slightest observation about this risky situation (contested judgment p. 70, 71 and 72 paragraphs 1, 2 and 3); means of disseminating an alert, means of immediate fire fighting, of organizing exercises and of course of drafting and posting safety instructions, which could have been done without waiting for the election of a CHST; however, his attention had been drawn several times to the situation of his establishment by the controller of the CRAM; he had a statute, means, a salary which should lead to face the problems concerning, in addition to that of the personnel, the security of the public; in this total lack of awareness of these problems, he tolerated work dangerous for the public to take place in the presence of the public without making the slightest observation about this risky situation (contested judgment p. 70, 71 and 72 paragraphs 1, 2 and 3); means of disseminating an alert, means of immediate fire fighting, of organizing exercises and of course of drafting and posting safety instructions, which could have been done without waiting for the election of a CHST; however, his attention had been drawn several times to the situation of his establishment by the controller of the CRAM; he had a statute, means, a salary which should lead to face the problems concerning, in addition to that of the personnel, the safety of the public; in this total lack of awareness of these problems, he tolerated work dangerous for the public to take place in the presence of the public without making the slightest observation about this risky situation (contested judgment p. 70, 71 and 72 paragraphs 1, 2 and 3); means of immediate firefighting, organizing exercises and obviously writing and posting safety instructions, which could have been done without waiting for the election of a CHST; however, his attention had been drawn several times to the situation of his establishment by the controller of the CRAM; he had a statute, means, a salary which should lead to face the problems concerning, in addition to that of the personnel, the security of the public; in this total lack of awareness of these problems, he tolerated work dangerous for the public to take place in the presence of the public without making the slightest observation about this risky situation (contested judgment p. 70, 71 and 72 paragraphs 1, 2 and 3); means of immediate firefighting, organizing exercises and obviously writing and posting safety instructions, which could have been done without waiting for the election of a CHST; however, his attention had been drawn several times to the situation of his establishment by the controller of the CRAM; he had a statute, means, a salary which should lead to face the problems concerning, in addition to that of the personnel, the security of the public; in this total lack of awareness of these problems, he tolerated work dangerous for the public to take place in the presence of the public without making the slightest observation about this risky situation (contested judgment p. 70, 71 and 72 paragraphs 1, 2 and 3); organize exercises and obviously write and post safety instructions, which could have been done without waiting for the election of a CHST; however, his attention had been drawn several times to the situation of his establishment by the controller of the CRAM; he had a statute, means, a salary which should lead to face the problems concerning, in addition to that of the personnel, the safety of the public; in this total lack of awareness of these problems, he tolerated work dangerous for the public to take place in the presence of the public without making the slightest observation about this risky situation (contested judgment p. 70, 71 and 72 paragraphs 1, 2 and 3); organize exercises and obviously write and post safety instructions, which could have been done without waiting for the election of a CHST; however, his attention had been drawn several times to the situation of his establishment by the controller of the CRAM; he had a statute, means, a salary which should lead to face the problems concerning, in addition to that of the personnel, the security of the public; in this total lack of awareness of these problems, he tolerated work dangerous for the public to take place in the presence of the public without making the slightest observation about this risky situation (contested judgment p. 70, 71 and 72 paragraphs 1, 2 and 3); however, his attention had been drawn several times to the situation of his establishment by the controller of the CRAM; he had a statute, means, a salary which should lead to face the problems concerning, in addition to that of the personnel, the security of the public; in this total lack of awareness of these problems, he tolerated work dangerous for the public to take place in the presence of the public without making the slightest observation about this risky situation (contested judgment p. 70, 71 and 72 paragraphs 1, 2 and 3); however, his attention had been drawn several times to the situation of his establishment by the controller of the CRAM; he had a statute, means, a salary which should lead to face the problems concerning, in addition to that of the personnel, the security of the public; in this total lack of awareness of these problems, he tolerated work dangerous for the public to take place in the presence of the public without making the slightest observation about this risky situation (contested judgment p. 70, 71 and 72 paragraphs 1, 2 and 3);

“while Léo Raynal had been appointed secretary general of the spa of Barbotan-Les-Thermes by Mr. Bouzereau, general manager of the company Chaine Thermale du Soleil, operators of the spa; that the court of appeal found that he did not benefit from any delegation of powers from his employer; that he could not be considered as “the operator” of the spa establishment and that he did not fall within “the nature of his missions or of its functions to face the problems concerning, in addition to that of the personnel, the safety of the public “; that the court of appeal deprived its decision of legal basis with regard to the aforementioned texts”;

Whereas, to find Léo Raynal guilty of manslaughter, the second degree court notes that in application of Articles R. 123-3 and R. 123-43 of the Construction and Housing Code, the operators of establishments open to the public are required, during operation, to comply with the preventive and protective measures designed to ensure the safety of persons; that they must ensure that the installations or equipment are maintained and maintained in accordance with the provisions of the regulations against the risks of fire and panic;

That the judges expose that the company Chaîne thermale du soleil, employer of the defendant, operated about twenty thermal spas; that Léo Raynal, in his capacity as secretary general of the Barbotan thermal baths since April 1990, represented the company on site, ensured the daily management of the establishment, ensured its proper functioning and exercised hierarchical authority on the personnel, of which it ensured the recruitment, the training and the deployment; that they deduce from this that it was incumbent on him, as head of establishment, in view of his status and the means at his disposal, to ensure the protection of the public and employees and the implementation of the prescribed measures by the safety regulations;

That the judgment adds that, although on two occasions the safety controller of the regional health insurance fund had informed him of the shortcomings noted in terms of safety, Léo Raynal showed inertia, limiting himself to organizing the election of an occupational health and safety committee, while it was up to it, in application of the safety regulations, to organize, under its responsibility, personnel training exercises, preventive measures and warning, the methods of evacuation and immediate fire fighting, as well as the posting of safety instructions; that the judges retain that the failures attributable to the accused, who, moreover, tolerated the execution of dangerous work in the presence of the public,

Whereas in determining thus, the court of appeal justified its decision; that the alleged inexistence of a delegation of powers by the head of the company, who has the quality of operator, is not such as to exonerate the employee from his criminal liability, since the latter has personally failed in the obligations which fell to him as head of establishment;

From which it follows that the plea must be rejected;

On the single means of cassation proposed for Marc Dero, alleging the violation of articles 6 and 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 8 of the French Declaration of Human Rights and citizen of August 26, 1789, 34, 37 and 66 of the Constitution of October 4, 1958, 111-3, 111-4, 121-1, 221-6, 222-19 and 121-3, paragraph 3, of the Penal Code, L. 2122-24 and L. 2212-1 of the Local Authorities Code, L. 123-1 and L. 123-2, R. 123-1 to R. 123-52 of the Construction and Housing Code , 591 and 593 of the Code of Criminal Procedure, lack of reasons, lack of legal basis, overall violation of the rights of the defense:

“in that the judgment under appeal condemned Marc Dero, mayor of Cazaubon, of the count of homicides and unintentional injuries;

they were then already in service; that this last circumstance, even in the absence of an opening declaration from the operator, could not be legitimately ignored on the part of the mayor, who could and should provoke the visit of a safety committee who did not did not fail to note the numerous shortcomings at the origin of the incident; that thus, the mayor took no steps to put an end to irregular exploitation; that he could not draw personal argument neither of the prefectural authorizations of opening of the thermal season nor of the decision of release of MM. the prefects of Gers, whose responsibility does not have to be assessed by the Court because of the final nature of their exoneration; that the same applies to informal visits by the preventionist; that it is therefore established that the mayor did not perform the normal procedures required by the irregular situation of an establishment receiving the public, of which he knew or should have known that he was at least classified in the third category (article R. 123-19 of the Construction and Housing Code) and that it had not been visited by a safety commission since 1986 although it had in the meantime been put into operation without authorization; that the mayor lacked, to carry out these diligences, neither competence nor means nor powers; that he was experienced and had the power to put an end to the exploitation of which he knew existed from the law and the regulations; that there is no need to evoke a balance of power between the operator and the municipality; that no negotiation is possible with regard to the safety of persons; that compliance with these rules only required the mayor to arrange for a visit to the security commission without evading his responsibilities, a reason taken from the role of state services in the operation of small rural municipalities or from the fact that the prefect had, he thought, taken charge of the problems; that to admit the contrary would be to empty the regulation of its content; that the mayor’s faulty abstention is causally related to the circumstances of the fire of June 27, 1991, since the visit of the safety committee, if it had been organized, would not have failed to reveal the irregularity of the’

“1 ° whereas, on the one hand, the alleged failure by the mayor to exercise his general police powers is outside the scope of the criminal law relating to offenses incriminating recklessness, negligence or breach to an obligation of safety; that therefore, the applicant’s conviction cannot legally be based on a failure by the mayor to exercise his general police powers within the meaning of articles 2122-24 and 2212-1 of the General Code of Communities territorial;

“2 ° whereas, on the other hand, the alleged lack of exercise by the mayor of his special police powers is only blameworthy if it is not justified and reveals a character of sufficient gravity which can only be blamed on the mayor. ; that in the absence of an opening declaration from the operator, the mayor cannot be held responsible ex officio for the absence of an on-site visit by the safety committee, which could then also act in ‘office or at the request of the prefect under Articles R. 123-35 and R. 123-45 of the Construction and Housing Code;

“3 ° whereas, on the third part, the final release made in favor of Messrs. The prefects of Gers did not prevent the mayor of the town from taking advantage of the appearance resulting by him from the taking over of the file by the prefectural authority, since this element was likely to exonerate him; by refusing here to respond to the defendant’s defense in favor of ineffective considerations on the final discharge of certain co-convicts, the Court deprived its decision of motives and violated the rights of the defense;

“4 ° whereas, from the fourth part, the Court deduced from hypothetical and inoperative reasons the knowledge which it believed to be able to lend ex officio to the mayor of the commune relative to the irregular operation of the 2 disputed swimming pools;

“5 ° then, in any event, that the causal link as stated by the Court between the damage and the breach alleged against the applicant is also hypothetical”:

Whereas, to retain the guilt of Marc Dero, the judges state that in his capacity as mayor, common law authority for the special police of establishments open to the public, he was responsible for ensuring the execution of the regulations on the protection against fire and panic risks in these establishments by virtue of Articles R. 123-27 et seq. of the Construction and Housing Code; that, in particular, by application of articles R. 123-46 and R. 126-52 of the said Code, the opening of the establishment was subject to his authorization, after opinion of the competent safety committee, and that he had the power to order the closure of establishments operated in violation of regulatory requirements, setting, where appropriate,

Whereas the judges describe the important place of the Barbotan thermal baths within the municipality of Cazaubon, with 1,600 inhabitants, and relate all the factual circumstances from which it follows that the mayor was informed of the irregularity of the situation of the establishment with regard to applicable regulations; that they find that he had issued 2 building permits, relating to a global construction operation; that the new thermal facilities were operated as they were built, without having been the subject of an authorization to open to the public or of a reception visit by the safety committee at the end of the works and that he was necessarily aware of the unauthorized operation of the 2 swimming pools, area of ​​the accident;

That the judges state again that no visit of the safety commission had taken place for 5 years on the date of the fire whereas such an annual visit was obligatory because of the importance of the frequentation of the renovated establishment and that it was incumbent on the mayor to provoke it in accordance with article R. 123-35 of the Construction and Housing Code; that the safety committee would have been able to observe the operation of installations that had not been the subject of a reception visit and the numerous breaches of safety regulations at the origin of the causes and consequences of the fire ;

Let the judges deduce that in view of his mission, his experience and the powers and means he had from the regulations, the mayor did not perform the normal diligence incumbent upon him and that his faulty abstention contributed to the death of the many victims;

Whereas in the state of these statements, the Court of Appeal, which did not disregard the rights of the defense, characterized the causal link between the defendant’s breaches and the incident and justified its decision, with regard to both article 121-3 of the penal code and article L. 2123-34 of the general code of local authorities;

From which it follows that the plea cannot be accepted;

And considering that the stop is regular in the form;

DISMISSES the appeals.

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