Report Of The Advocate General
LexInter | July 19, 2003 | 0 Comments

Report Of The Advocate General

Opinion of Mrs. Dominique COMMARET

General Counsel

I. FACTS, PROCEDURE AND MEANS

I.1. Brief reminder of the facts at the origin of the proceedings

At the beginning of the 1980s, a new pathological syndrome appeared in the United States and then in Europe, called AIDS in English and AIDS in French, which seemed to primarily affect certain human groups, in particular homosexuals, heroin addicts or Haitians.

Gradually, scientific and medical research made it possible to identify its causal agent – a retrovirus called LAV in February 1983 when it was discovered by Professor Montagnier’s team, HTLV III in April 1984 by Professor Gallo, and designated since May 1986 by the scientific community under the term HIV or HIV (human immunodeficiency virus) -, then its modes of contagion – blood and sexual contacts -, finally its forms of appearance in the body.

It was thus discovered that it manifested itself after a “window” of seroconversion of the order of two to three months, during which no clinical sign of contamination was detectable by the first generation screening tests, the subject, although contaminated and contaminating, reacting negatively to these tests. This first phase ends with the appearance of HIV antibodies in the body, antibodies which took several months to understand that, contrary to the medical knowledge acquired and validated in the Pasteurian tradition, they did not protect against the disease, which this being contagious upon contamination. With hindsight, we realized that this second phase, known as asymptomatic seropositivity,(1) , then serious disorders linked to the immune deficiency (2) , leading, in the vast majority of cases, to a fatal outcome.

But before all of these data had been fully mastered by virologists, epidemiologists, clinicians and other specialists, and then communicated to health professionals specializing in the treatment of hemophilia or transfusion, the disease contaminated groups strongly. consumers of blood and blood products – hemophiliacs, Willebrand patients and transfused patients -.

In the absence of a vaccine, we gradually favored, again not without much scientific and ethical hesitation, even strong reluctance expressed by the populations concerned, various defense techniques against the spread of the virus: selection of donors , reduction in the consumption of products produced by mixing thousands of donated blood and a return to products that are less dangerous but also less easy to use, development of tests to detect the virus in the blood, inactivation of the virus by heating stable products, destruction or recall of untested and unheated batches, search for recipients likely to have been contaminated by transfusion, information of seropositive and their entourage.

Believing that some of these disease prevention or control measures had not been implemented with the necessary speed, a certain number of victims of these contaminations, their beneficiaries or their associations lodged a complaint with the constitution of civil party against persons of public or private law who have participated in the decision-making chain – doctors prescribing blood products, specialists in hemophilia, natural persons or representatives of legal persons involved in the collection, processing, securing and administration of these products, administrative officials within the ministries concerned and ministers participating in public health policy choices -.

I.2. The proceedings already judged

Several final court decisions have already been rendered to date on these complaints.

Thus, the 13th chamber of the Paris Court of Appeal, by judgment of 3/05/1993, declared Michel RR …, doctor, director general of the National Blood Transfusion Center (CNTS) and Jean-Pierre ZZ …, hematologist, head of the “research and development” department of this establishment, guilty of deception on the goods , with the circumstance that the offense had the consequence of making the use of it dangerous for human health. She also entered the process of conviction against Jacques EEE …, director general of health at the Secretary of State for Health and Robert BBB …, director of the national health laboratory (LNS) , for voluntary abstention from preventing the commission of the aforementioned offenses of deception, against the integrity of persons.

By judgment of 22/06/94 (B n ° 248), the criminal chamber rejected the appeal of JP ZZ … against this decision. It has, moreover, declared inadmissible, in the absence of an appeal from the public prosecutor, the plea of ​​the civil parties accusing the judgment of not having subscribed to their conclusions of requalification of the facts in poisoning, administration of harmful substances, and incompetence. But, while ruling out a plea raised ex officio taken from the violation of articles 301 of the old Penal Code and 221-5 of the new Penal Code, the Chamber seemed to imply that the charges against Mr. RR … and d ‘others were liable to prosecution on the count of poisoning.

By judgment of 17/07/98 , the Investigation Commission of the Court of Justice of the Republic referred Laurent X …, Georgina Y … and Edmond Z … to the Court of Justice of the Republic, after having reclassified the alleged acts of complicity in the crime of poisoning and complicity in the administration of substances harmful to health into crimes of homicide and reckless injuries. By judgment of 9/03/99, this court declared unconstituted, at the expense of Laurent X … and Georgina Y …, the crimes of involuntary attacks on the life or the physical integrity of the people who were reproached to them. Not calling into question the principle of the tort qualification retained, but ruling out involuntary attacks on the life or physical integrity of CE. A … and Y. NNN … (also present or represented in the current proceedings) with regard to Edmond Z …, she declared him guilty of manslaughter on the person of Sarah IIII … and involuntary injuries on the person of Sylvie XXXX … (civil party in the current proceedings).
I.3. This procedure

This procedure was initiated from the filing, on 6/04/93, of a complaint with the constitution of civil party from Edmond-Luc X …, Jean-Louis UUU …, Roland YY .. ., Max BBBB …. and the French Association of Hemophiliacs (AFH) against the administrative officials present in the ministerial offices concerned, in 1985, the count of poisoning, then the junction of open information following complaints with the constitution of civil action filed by other victims of contamination by the AIDS virus following treatment against hemophilia or blood transfusions.

The following were indicted for poisoning, complicity, administration of harmful substances or failure to provide assistance:

– Louis FFF …, François SS …, Charles-Henri NN …, Patrick BB …, Claude LLL …, directors of cabinet or technical advisers in the office of the Prime Minister, the Minister of Social Affairs and solidarity, of the Secretary of State for Health, for the period concerned;

– Jacques EEE …, Marie-Thérèse ZZZ … wife AAA … widow TTT … and Jean-Baptiste FF …, respectively director general, deputy director and head of office at the general direction of the Health of the State Secretariat for Health (DGS), Robert BBB …, director general of the National Health Laboratory (LNS), Danièle II …, medical inspector of public health at the departmental directorate of health affairs and social (DDASS) of Haut-Rhin,

– Michel RR …, Jean-Pierre ZZ …, Gérard VV … and Bernard TT …, respectively director general and directors of the National Blood Transfusion Center (CNTS), as well as Jean JJ …, Mohamed KK …, Jacques AA …, Denis UU …, Claude CCCC …., Jean-Jacques OO …, directors of regional or departmental blood transfusion centers (CTS), and Jean KKK. .., Chairman and CEO of Diagnostics Pasteur,

– finally certain doctors, specialists in hemophilia, prescribers or anesthetists: Daniel HHH …, Françoise LL … wife MM …, Claire PP … wife QQ …, Marie-Françoise GGG … , Yvette GG … wife HH …, Marie-Josette DD … wife EE …, Yves WW …, Bernard CC …, Geneviève XXX … wife YYY …, Françoise CCC … wife DDD …, Angèle III … wife JJJ ….

At the end of the information, the Paris Public Prosecutor’s Office, rejecting the qualification of poisoning notified to the accused persons, concluded that they were referred to the criminal court. But the investigating judge considered, by order for the transmission of documents and partial dismissal(OTPPG) dated 05/20/99, that the facts constituted, from 05/29/85, the date on which Michel RR … decided to continue the distribution of the products supplied by the CNTS and obtained by “pooling “, knowing them to be infected, the crimes of poisoning (against him), of complicity in poisoning with regard to people considered to have knowingly participated in the disposal of contaminated stocks (G. VV …, B. TT …, MT. TTT …), of non-denunciation of crime (JB. FF … and C. LLL …). The qualifications of aggravated willful violence against doctors prescribing stable derivatives for hemophiliacs and patients of Willebrand were also retained (JP ZZ …, C. QQ …, F. DDD …, Y. WW …, D. HHH …, F. LL …- MM …, B. CC …, G. YYY …), (3) .

After annulment of this order by the investigating chamber, annulment censured by the criminal chamber on 05/29/01, the public prosecutor at the Paris court of appeal requested the referral of the indicted persons to the criminal court. counts of manslaughter, administration of substances harmful to health resulting in an illness lasting more than 20 days, complicity (with regard to M. RR …, B. TT …, G. VV … , MT. TTT …, C. QQ …, JP. ZZ …, F. DDD …, Y. WW …, D. HHH …, F. MM …, B. CC …, JB. FF …, C. LLL …), manslaughter (G. YYY …, J. AA …), complicity in the administration of substances harmful to health (J. KKK …, R. BBB …, J. EEE …, F. SS …).

By judgment of 4/07/02 , the fourth chamber of the investigation of the Paris Court of Appeal said there was no need to follow against anyone. This is the decision criticized.
I.4. Appeals and means

The criminal chamber is seized of the regular appeals of the general prosecutor near the court of appeal of Paris, of the spouses Z … (who deposited a personal memory), of the French Association of hemophiliacs, ELX …, the spouses J …, L …, O …, Q …, S … and I …, FM .., EN .., DR .., CU .. and DR .. (shown by SCP Baraduc-Duhamel), consorts F … (Me Blanc), Jonathan and Lionèle XX … (SCP Thouin-Palat and Ursin-Petit).

Their memories essentially pose problems of qualification and motivation that can be summarized through the following questions: are the elements constituting the crimes of poisoning and complicity in poisoning met against certain indicted? Failing this, are the faults alleged against the public and private decision-makers prosecuted likely to receive another qualification? Has Article 122-7 of the Penal Code been falsely applied? If not, can the state of necessity whose judgment grants the benefit to doctors of hemophiliacs constitute a ground for exemption applicable in matters of unintentional offenses and what is its impact on co-action? Did the investigating chamber fail to analyze the causal link between the faults liable to be blamed and certain damages? But before addressing these substantive pleas, it is appropriate to examine the admissibility of certain appeals or pleas and to analyze the formal pleas.

  1. ADMISSIBILITY OF APPEALS AND SUBMISSIONS AND ANALYSIS OF SUBMISSIONS

II.1. Admissibility of appeals and pleas

The judgment criticized did not contest the admissibility of associations constituted civil parties in the procedure – the French Association of hemophiliacs (AFH) whose president is Edmond-Luc X …, the association “Stéphane et Laurent” including the representative is Mr. Patrice V …, finally the Federal Union of Consumers “What to choose”. However, the question of the admissibility of the appeals lodged by the first two associations cited is posed before the criminal chamber.

II.1.1. The Stéphane and Laurent association

Stéphane and Laurent V … died of AIDS on 2/06/93 and 31/01/92, after having received, from 1983 and until 2 or 3 July 1985, unheated concentrated factors VIII delivered by the CRTS from Lyon and Lille. They were found to be seropositive on 5/02/85, for the first, and on 16/07/85, for the second (4) . An appeal has been made in the interest of their parents, husband and wife V …, and on behalf of the association “Stéphane et Laurent”.

Created after the facts denounced, this association may not invoke personal prejudice directly caused by the offenses prosecuted, any more than it may avail itself of the provisions provided for by articles 2 and following of the Code of Criminal Procedure. The criminal chamber may therefore either find that the appeal of the Stéphane et Laurent association is inadmissible, or that it is not supported.

II.1.2. The French association of hemophiliacs

The case-law assertion made since 1913 of the inadmissibility of the association action  (5) should in principle lead to the same solution as regards the French association of hemophiliacs (AFH). Unlike unions, associations do not have the right to become a civil party. Their moral prejudice is generally not distinct from the social prejudice, the defense of which is entrusted to the public prosecutor, or from the sum of the interests of each of their members, insofar as they do not suffer a priori any direct prejudice independent of that of the victims or their beneficiaries.

We must however observe the current decline of this Malthusian position and the proliferation of exceptions expressing, in the texts as in the judicial decisions rendered, an increased sensitivity to the concept of access to the judge and its democratization. In the 1990s, the legislator corrected the rigor of the jurisprudential principle laid down by promoting the intervention, under certain conditions of approval, of associations fighting against certain forms of delinquency or bringing together victims of collective accidents, provided, in the latter in particular case, whether public action was initiated by the prosecution or one of the victims. Case law shows itself to be more flexible in the face of socially useful association legal actions, no. more hesitant to welcome them when their objective is to safeguard health. This jurisprudential relaxation was particularly clear with regard to the civil action of consumer protection associations, which are now legally beneficiaries of the right to take legal action.(6) or the French National Committee against smoking   (7) .

In this case, to rule on the admissibility of the AFH appeal, the criminal chamber may take into consideration the following elements:

– AFH is an association, founded in 1955 and recognized as being of public utility by decree published in the Official Gazette of 05/22/68, which brings together hemophiliacs and their parents; its social purpose, set out in article 2 of its statutes, is to cooperate ” with the medical profession, scientific or medical research on hemophilia, to disseminate all useful information to its members, to help promote achievements medical professionals ensuring the treatment of the disease in the best conditions …, to act with the public authorities as a representative of hemophiliacs, to protect their interests … “

– neither the public prosecutor, nor the defense believed they had to challenge the admissibility of the AFH’s civil action in the present proceedings, since 1993, even though they could use the powers conferred on them by article 87 of the Code of Criminal Procedure;

– in 1993, the Paris Court of Appeal had received the action of the AFH on the grounds that it ” has the statutory purpose of” compensating, with regard to hemophiliacs, the inconveniences of the disease and to help them to lead a normal life “, concluding:” the supply to its members of contaminated anti-hemophilia products necessarily increased the inconveniences of their hemophilia and complicated their lives, so that this association must obviously have increased its action; it is therefore admissible to act, having suffered an injury of its own “.

– in its judgment of 22/06/94, the criminal chamber admittedly declared inadmissible the first plea proposed in particular for the AFH and based on the incompetence of the criminal court, but on the exclusive basis of ” the absence of appeal of the prosecution “. She therefore did not consider that she should first find that her appeal was inadmissible, under Article 2 of the Code of Criminal Procedure. On the contrary, it expressly noted, in the approval of the grounds of the Court of Appeal, the ” concealment ” of which the members of the AFH office had been directly victims on several occasions by the management team of the CNTS. (8) .

– an identical position is expressed by the judgment criticized, when it mentions ” the information … communicated partially by Michel RR … in the confidential circle of the CNTS and the DGS, which AFH seems to have itself was excluded “ (p. 30) .

– finally this assessment will have to take into account the state of progress of the file since, “for a constitution of civil party to be admissible before the investigating court, it is sufficient that the circumstances on which it is based allow the to admit as possible the existence of the alleged damage and its direct relationship with an infringement of criminal law ” (9) .

II.1.3. The admissibility of the Attorney General’s fourth plea

The 4th plea of the Attorney General criticizes the judgment for not having responded to the briefs filed in the interest of the civil parties, the Stéphane and Laurent association, the V spouses … and the Federal Consumers Union ” What to choose”.

By targeting the public prosecutor in particular among the persons who can lodge an appeal in cassation against the decisions rendered by the criminal courts, article 567 of the Code of Criminal Procedure confers on him a right of the widest scope: acting in the name of of society and in the interest of justice, it is up to him to ” pursue the annulment of all decisions which appear to him to be tainted with illegality” (10)and thus affect the general interest committed to its care. This social interest, widely understood, gives it for example the right, despite the terms of article 600 of the Code of Criminal Procedure, to correct all violations of the rules of public order committed by judges, that they benefit to the accused or that they harm him. It also authorizes him, without any restriction, to appeal in cassation against the judgments of the indictment chamber which constitute a dismissal decision to be followed under the terms of article 212 of the Code of Criminal Procedure. This is particularly the case when the second degree investigating court fails to respond to its requisitions and rules on contradictory grounds (11) .

However, the general interest does not include the private interests of the parties. The public prosecutor cannot act, for lack of interest, in their exclusive defense. He cannot appeal against decisions relating ” only to civil interests which the defendant and the civil party alone have to discuss” , nor can he present a plea relating to the sole defense of the private interests of the party. civil (12) . Such being the case in the present case, the 4th plea of ​​the Attorney General appears inadmissible.

II.2. Means of form

In their personal memory, the consorts Z … criticize the judgment to have been pronounced, at the hearing of 5/07/02, by the sole reading of its device. Having no motivation, it would not thus meet the essential conditions of its legal existence.

If the procedure complained of is particularly cavalier and regrettable when the delivery of a judgment occurs after a period of time devoted to deliberation and formatting the decision, the fact remains that article 217 of the Code of Criminal Procedure sets a time limit of three days so that the judgments delivered by the investigating chamber are brought to the attention of the parties, that this period is not enacted on pain of nullity, its non-compliance only having the consequence of postponing, until the effective notification of the complete judgment, the starting point of the period for appealing on points of law (13) . No infringement of the rights of the parties having been carried out and the judgment submitted for examination by the Court of Cassation being reasoned, the plea must be rejected.

The first plea of ​​the colleagues F … criticizes the judgment for having failed to rule on the request for disjunction presented by them. They had indeed requested, in their brief, the disjunction of the proceedings on their complaint for manslaughter against Doctor YYY … and Professor AA … in order to obtain within a reasonable time the conviction by a criminal court of those responsible. of the death of Goulven F …. The means are lacking in fact, the Court having said that there is no need to follow against anyone ” without granting additional information or partial disjunction of the proceedings requested either by the civil parties or the indicted “ (p. 32 last §).

The supplementary brief filed in the interest of Cyril and Jonathan XX … is also inadmissible for lack of quality, in that it is associated with this means as well as with the 4th means of the SCP Baraduc-Duhamel, which criticizes the judgment under appeal for having failed to rule on the causal link existing between the fault and the damage suffered by other civil parties. It is also inadmissible as regards Cyril XX …, who did not appeal.

III. CRITICISMS OF REJECTION OF QUALIFICATIONS OF POISONING, COMPLICITY AND Failing to Prevent Crime

The crimes of poisoning and complicity alleged against all of the indicted and then retained by the examining magistrate against Michel RR …, as the main author, Gérard VV …, Bahman TT … and Marie-Thérèse ZZZ … wife AAA …, widow TTT …, as accomplices, as well as the failure to prevent a crime alleged against Jean-Baptiste FF … and Claude LLL … would they be constituted against them in all their elements, material and intentional?

III.1. The grounds for the judgment under appeal

To exonerate the indicted from their criminal responsibilities for these counts, the judgment proceeds as follows: contrary to the analysis of the examining magistrate, it considers the prescribing doctors to be the only people who, having actually administered the products. contaminated, may be accused of the crime of poisoning as the main perpetrators.

Three categories of faults committed by public and private decision-makers are then presented as being ” likely to characterize, with regard to members of ministerial cabinets, the head of the LNS and members of the CNTS … complicity, by providing resources , the crime of poisoning, consumed by the use and administration of deadly substances by prescribing physicians or the failure to prevent a crime “. These are ” the collection of blood donations from populations at risk – detainees in particular – without respecting the rules for the selection of donors defined and recalled by the circulars of 01/23/83 … and 01/16/85, reproached to MM . OO … and KK …, thedelay brought to the implementation, to the generalization of the means of detection and inactivation of the virus and finally the disposal of the contaminating stocks “ (p. 27 § 9) .

But, it is added immediately, “the complicity is characterized only as far as the principal crime is punishable”. However “the proof is not reported that the prescribers of blood derivatives were aware of the necessarily fatal character of the batches of the CNTS”, because of the withholding of information practiced by the leaders of the CNTS and the DGS, of their ignorance the contamination of all CNTS batches, as well as the uncertainties reigning at the time in medical circles.

III.2. The grievances formulated

The first means proposed by the SCP Baraduc-Duhamel for the civil parties argues on the contrary that the person who uses a third party in good faith to administer the deadly substance must be considered as the principal perpetrator, when the person receiving the product has consumed it. Michel RR … having knowingly decided, as of 05/29/85, to continue the distribution of stocks of blood derived products that he knew to be infected through the intermediary of prescribing doctors, then passive instruments, it is criticized the investigating chamber for not having drawn, in its place, the consequences of its findings and assessments (1st branch).

The 2 ° branch maintains that, since the crime of poisoning is likely to be characterized in all its elements with regard to the director of the CNTS, Gérard VV … (senior executive of the CNTS), Bahman TT .. . (Deputy director of the CNTS, author of a report drawn up at the request of the CCTS with a view to submitting to the ministerial authorities the elements necessary for making urgent decisions regarding the security of blood-derived products, transmitted on 05/30 / 85 to Edmond Z … and to the DGS) and Marie-Thérèse TTT … (deputy director at the DGS) should have been dismissed as accomplices in this crime, the first for having knowingly applied the instructions from the accused, the second for having failed to ask the ministerial authorities the question of the withdrawal of contaminated products,the last for having deliberately masked the extent of the contamination of the products distributed by the CNTS, so as to promote the principle of double distribution of heated and unheated products implemented in early June 1985.

Finally, according to the 3rd branch, Jean-Baptiste FF … (responsible for communicable diseases at the DGS) and Claude LLL … (technical advisor at the Secretary of State for Health), should have been dismissed from the head of non-denunciation of a crime, since they were informed of the probable contamination of all the CNTS batches and did nothing to prevent their continued distribution to hemophiliacs.

III.3. The elements of the crime of poisoning

The criticism contained in the first branch of the plea is based essentially on the plasticity shown by case law to admit the realization of the material element of the crime of poisoning:

– the latter considers in fact that the use or administration of the deadly substance can be direct or indirect, the author of an attempted poisoning being able to act through the intermediary of a third party, held in the total ignorance of the toxic effects of the substance he is responsible for administering to the victim  (14) , or even using the victim’s credulity to induce him to voluntarily absorb a mixture of dangerous medicinal products, leaving him believe that he would provoke the appropriate assistance in good time (15) ;

– the methods of administration of the substance are also understood in an extensive manner, the mode of transmission is not important, whether it is the direct ingestion of a poison in the digestive tract, its mixture in any liquid , the inhalation of a poisonous gas, the inoculation of a virus by bite, ingestion, bite or even by sexual transmission, provided that the deadly substance has been introduced, by some vector, into the body ( 16) .

– as for murder, the crime of poisoning does not require, in order to be carried out, the prior choice of the person (s) for whom the lethal product is (are) intended: the victims can remain indeterminate, as is the case when the poison is spread in the water of a well supplying drinking water to a certain number of local residents (17) .

– finally, the result is indifferent: what is sanctioned is, for article 301 of the old Penal Code as for article 221-5 of the new Penal Code ” the act of attacking the life of others “, it does not matter whether the objective sought by the author has been achieved or not. Focused on the means used and carried out, whatever the consequences, at the very moment of absorption by the victim of the deadly substance, the attempt remaining only upstream, when the ingestion fails for reasons independent of at the will of the author  (18) , the crime of poisoning is undoubtedly part of the so-called formal offenses.

However, the complaint articulated in the first part and from which the other two arise, does not stand up to examination, for the following reasons, expressed more or less clearly by the judgment criticized.

The first is that in the present case, prescribing physicians cannot be considered as simple passive instruments, within the meaning of the judgment of the criminal chamber cited in 1886:

– they were not totally unaware of the existence of ” risks ” that the administration of blood products posed to their patients, even if ” uncertainties still reigned in medical circles”  ;

– their deontology forbids them to ” alienate their professional independence in any form whatsoever” (19) and, even if they were not entirely free to choose the products supplied to them by the CNTS, this organization having in particular a monopoly on the imports of heated blood products, refusing to provide heated stable derivatives to patients who are already seropositive or who do not part of a study protocol and having reduced the production of frozen or desiccated cryoprecipitates less contaminating but also less in demand because less easy to use (judgment p. 28 § 3), their autonomy of therapeutic choice excluded, by the assessment even the advisability and nature of the care to be provided, taking into account the intervention of a third party;

– moreover, Michel RR … did not have the power to order medical doctors to administer such or such a blood derivative to hemophiliacs or to transfused patients and cannot be considered as the intellectual author of the offense. He provided them with these products, certainly without ignoring their contamination and without letting them know about it – and it is very exactly this extremely serious fault in terms of health imperatives which has already been, and rightly, sanctioned -, but this supply was not accompanied by delivery, use or administration instructions. Had it been that these instructions must necessarily yield to the therapeutic independence of the doctor.

The second reason is that the notion of mortal substance, which makes it possible to characterize both the material element and the intentional element of the crime of poisoning (20) , supposes, in order to be characterized, a conscious positive act of administration to others of a substance known to give ” death more or less promptly” (21). If the Court of Cassation accepts the diversity of the procedures used, only the material element of the crime of poisoning can characterize the deadly substances, which should be clearly distinguished from those of which, at a given time, the users suspect the risks of poisoning. employment without fully measuring all the effects. The very notion of “risks” excludes the degree of awareness required as to the lethal nature of the product.

And it is exactly this ignorance of the inevitably lethal nature that the judgment criticized expresses when it considers, within the framework of its sovereign assessment, on the one hand that ” proof has not been provided that prescribers of blood products have had knowledge of the necessarily fatal nature of the batches of the CNTS, the information having been communicated in a partial way by Michel RR … in the confidential circle of the CNTS and the DGS … “, on the other hand that the defendants s’ were found ” in ignorance of the contamination of all the CNTS batches”.

Finally , like all crimes, poisoning is an intentional offense. The administration of the deadly substance must be not only conscious but also voluntary. To the general fraud, we must also add, as in the case of murder, a special fraud, the animus necandi, in other words the will to kill another person. The criminal responsibility of the author of a faulty distribution, but not accompanied by a homicidal will, cannot be sought in the context of criminal attacks on life or physical integrity.

Classical doctrine admitted it without the slightest question (22) . Then, this interpretation was called into question, during the comments which accompanied the judgment of the Paris Criminal Court of 23/08/92 and the confirmatory judgment of 13/08/93 (23) , due to the maintenance, after discussion of the qualification of imprisonment in the new Penal Code and the formal nature of the offense. But the question is now clearly decided by the criminal chamber, of which, moreover, previous judgments already revealed the need for special fraud (24) . The cassation judgment of 2/07/98 (B 211), presented in the Court ‘s annual report as a leading judgment, states that “the mere knowledge of the lethal power of the administered substance is not sufficient to characterize homicidal intent “ .

This case law deserves to be approved and maintained. Of course, just like the offense of endangerment, poisoning is a formal offense, for which the result is legally irrelevant. But unlike the aforementioned offense, the crime of poisoning arises, in terms of intention, from a logic of death and not from a logic of risks. The presence, today, in the Penal Code of two clearly distinct offenses – that of poisoning and that of administration of a harmful substance having caused death without the intention of giving it (articles 222-15 and 222-7 of the Criminal Code) – illustrates the fact that homicidal intent is taken into account in the most severely punished crime. VS’

Because it characterizes the highest expression of social disapproval, poisoning exclusively qualifies the not only conscious but also desired attack on life. Nothing like that in this file. The qualification of poisoning must therefore be clearly ruled out, which naturally leads to the disappearance of its satellites, complicity or non-denunciation of a crime.

  1. GRIEVANCES RELATING TO THE STATE OF NECESSITY

The judgment submitted to the control of the criminal chamber closes its reasoning on poisoning by evoking the state of necessity in which the doctors found themselves, “required to decide between the immediate imperative to protect the lives of hemophiliacs … or the more distant risk of seeing them develop a fatal disease “. This situation ” exempts doctors prescribing factors VIII and IX to hemophiliacs as civil parties from any criminal liability, by application of article 122-7 of the new Penal Code, whatever the qualification, in particular that of poisoning”.

IV.1. Criticisms issued

The Attorney General to the Paris Court of Appeal, in his first plea and the SCP Baraduc-Duhamel, on behalf of several civil parties, in the 1st branch of his second plea , maintain that the investigating chamber would have been contradicted by justifying the dismissal pronounced in favor of prescribing doctors, by the successive double assertion of their ignorance of the necessarily fatal nature of the CNTS batches then of the existence of a state of necessity, whereas this justifying fact implies that the The offense charged is constituted in all its elements.

The same civil parties add, in the 2 ° and 3 ° branches of their plea , that a false application of article 122-7 of the Penal Code has been made, which supposes, on the one hand, a current danger or imminent, certain and characterized, whereas hemophiliacs are only subjected to such a danger in the event of cerebral or visceral hemorrhage and must, on the other hand, be discarded when the interest safeguarded is of the same nature as the interest sacrificed. This is also the subject of the 3 ° branch of the second means proposed by Me Blanc for the colleagues F ….

Lastly, SCP Baraduc-Duhamel maintains, in a third plea , that the state of necessity cannot apply to unintentional infringements.

IV.2. A contradiction of motives?

The first of the complaints set out does not appear to be well founded, the reason based on the state of necessity supplementing here, without contradicting it, the initial observation of the ignorance, by the prescribing doctors, of ” the contamination of all the batches. of the CNTS “(p. 28 § 4), in other words the extent of the risks presented by blood derivatives obtained by “pooling”. It is because the second-degree investigating court notes that their knowledge of the risks was limited but to varying degrees, fragmented without however confining to ignorance and evolving over time, that it examines whether there are any causes of irresponsibility, within the meaning of articles 122-1 et seq. of the Penal Code. The subsidiary character of this incise, compared to the analysis of the presence of the elements constituting the crime of poisoning, is very clearly specified by the mention of an examination carried out ” in any case” (p. 28 § 3 ) .

The examination of the supporting fact makes it possible, as necessary, to rule on the case of prescribing doctors who have been able, either because they belonged to the narrow circle of the CNTS or to the organizations informed and consulted, or because they had participated to specific study protocols on the situation of donors or recipients of blood products, to know the extent of the contamination and the exact risks of administration of the coagulating factors delivered by this organism. It is to keep the law in their regard, that the court evokes the dilemma posed to these practitioners, forced to ” decide between the immediate imperative to protect the lives of hemophiliacs … or the more distant risk of seeing them develop a fatal disease “.

Useless for most of the doctors indicted, the evocation of the state of necessity is not only essential for some of them, with regard to the criminal indictment of which all are the subject, but it is also fundamental with regard to all, for the future analysis of the substitute qualifications for this crime. The investigating chamber is not unaware of this, which will ultimately conclude that article 122-7 has been applied, ” whatever the qualification …” (p. 28 § 4).

  1. 3. A false application of article 122-7?

Defined by the lower courts as ” the situation in which a person finds himself who, in order to safeguard a higher interest, has no other resource than to perform an act prohibited by criminal law” , then sanctioned by the Court of cassation (25) , the concept of state of necessity has been included in the category of supporting facts by means of article 122-7 of the Penal Code. It supposes the meeting of precise conditions, as for the encountered danger and as for the opposite safeguard reaction: the danger must be real, ” current or imminent”. The reaction must be both necessary and proportionate, the interest preserved being greater than the interest sacrificed.

The civil parties consider that neither the topicality or the imminence of the danger, nor the condition of proportionality are met in this case.

IV.3.1. The topicality of the danger and the correctness of the reaction

The investigating chamber ruled in these terms (p. 28 § 3): ” in any event, prescribing doctors, doctors QQ …, GGG …, ZZ …, DDD … and HH …, specialists in hemophilia, on the one hand, doctors WW …, HHH …, LL … MM …, YYY …, AA …, director of CTS, who were not in control … of the choice of their products, supplied by the intermediary of CTS, by the CNTS, in a situation of monopoly of importation of foreign products, confronted with the systematic refusal of Jean-Pierre ZZ …, acting on orders of Michel RR …, to supply in heated stable derivatives any patient, identified seropositive or not forming part of a study protocol, often unable to substitute for factors VIII and IX frozen or dried cryoprecipitates, less contaminating, but whose production had been reduced withappearance of coagulant factors and therefore required to decide between the immediate imperative to protect the lives of hemophiliacs, dependent on prophylactic products, or the more distant risk of seeing them develop a fatal disease “(sic) .

The conclusion is as follows: ” the use of the said products in these circumstances, as reported by the interested parties, and in the ignorance of the contamination of all the batches of the CNTS, exonerates the doctors prescribing factors VIII and IX to the hemophiliacs civil parties of any criminal responsibility, by application of article 122-7 of the new Penal Code, whatever the qualification “.

For the SCP Baraduc-Duhamel, the topicality or the imminence of the peril is not characterized by the stop insofar as, unlike transfused persons, hemophiliacs are only subjected to a situation of peril when ‘they present with localized hemorrhage in the central nervous system or in the viscera.

Admittedly, one cannot deny the contrast existing between the general assertion of the decision criticized and the more nuanced motivation of the judgment of 05/30/93 (26) or of the OTPPG. However, as it is drafted, the means, purely factual, cannot succeed, the Chamber of the instruction having a sovereign appreciation, from the point of view of the facts, all the elements constituting the infringements and the Court of Cassation not having to ‘other power than to check the relevance of the qualification retained or the dismissal pronounced on the basis of these findings.

It would have been better inspired to note the aporia of the terms of the judgment juxtaposing, in the same stroke of the pen, the notion of absolute urgency – ” the immediate imperative to protect the lives of hemophiliacs – and that of prophylaxis – ” dependent on prophylactic products ” – since this qualifier refers to the “part of therapy which aims to prevent the development of diseases” (27) and therefore contradicts the urgency and the imminent peril previously stated.

Insofar as this contradiction of reasons is not specifically noted in the grounds raised, it will be for the Criminal Chamber to assess whether it is such as to prevent it from exercising its control, within the meaning of Article 593 of the Code of Criminal Procedure.

Two legal arguments could, in the opposite direction, guide its choice:

– the first is that the Court of Cassation regularly overturns, with the visa of the aforementioned text, the decisions which do not allow it to exercise its control of the qualification of the observed facts, including with regard to the legal notions of excuse (28) ;

– the second is that if, in its leading judgment of 25/06/58 already cited, the Criminal Chamber required proof that ” the offense carried out by the accused could alone make it possible to avoid the event that he feared, to the exclusion of any other less perilous means for third parties “, the legislator today seems much less demanding since, except in the case of manifest disproportion, article 122-7 of the Penal Code provides that the reaction must be simply ” necessary for the protection of the person or the good” (29) . The latter condition is evidently fulfilled in this case with regard to each of the hemophiliacs, Willebrand patients and transfused.

The Court will also be able to take into account more factual observations: thus the careful comparison of the decision criticized and the OTPPG shows that, in the list of names of the doctors concerned by this analysis of the justifying fact that the judgment delivers, are not appointed two prescribers, Professor Bernard CC …, author of the treatments administered in emergency to certain hemophiliacs, but also of prophylactic treatments prescribed to others (30), and doctor JJJ …, anesthetist at a clinic in Colmar, who administered urgently to Frédéric M …, on 10/29/85, unheated PPSB, manufactured on 06/27/84 by the Strasbourg CRTS and kept in stock in the establishment, the DGS circular ordering the return or destruction of these lots, dated 2/10/85, not having been sent to the clinic by the DASS du Haut -Rhin until after 11/22/85 (31) . However, this double omission can be remedied by other paragraphs of the decision, Professor CC … undoubtedly falling into the category of ” doctors prescribing factors VIII and IX to hemophiliacs as civil parties”to which the justification applies without the slightest exception according to the judgment. As for the case of Frédéric M …, it is discussed at length later (p. 31).

In addition, the judgment examines this cause of irresponsibility only with regard to prescribers of factors VIII and IX for hemophiliacs and ignores the context in which the doctors responsible for surgical transfusions acted. It is true that, since the latter were not indicted, such an analysis could at first sight seem unnecessary. However, the assessment of the existence of a justification for these transfusions was legally necessary since it was likely to prohibit, if necessary, any prosecution for aiding and abetting by supply of means, regardless of the intentional offense. main envisaged, with regard to the managers of the CNTS or the CTS. However the(32) ;

Finally, the list of doctors cited exceeds that of doctors who appear, in the OTPPG (33) , as the direct authors of the disputed prescriptions or transfusions indicted, i.e. exclusively doctors QQ … and GGG … (hospital Necker), HHH …, LL … MM … and ZZ … (St Antoine), DDD … (Air and Sun Center) WW … (Kremlin-Bicêtre hospital), CC. .. (Purpan hospital in Toulouse), YYY … (Avicenne hospital in Bobigny), JJJ … (Clinique Ste Thérèse in Colmar). It includes, for no apparent reason if we refer to the detailed presentation of the OTPPG, a doctor specializing in hemophilia who simply advised the doctors treating Jean-Marie DDDD … on the treatments to be implemented (Doctor HH … (34)), as well as the director of CTS, who is accused of not having repatriated the blood products delivered to Doctor JJJ … (AA …). Uncertainty therefore hangs over the exact scope attributed by the judgment to the supporting fact, especially since the criminal liability of some of these doctors can be sought for two reasons, both for having administered products whose risks of employment were known to them and for having insufficiently alerted the public authorities to the danger run by people with hemophilia, a disease of which they were specialists at the national level.

IV.3.2. Is proportionality respected?

The state of necessity can only remove the criminal character of the alleged offenses if the property sacrificed is of a lower value than that of the property or the interest safeguarded. This condition, explicitly set from the leading judgment of the Criminal Chamber of 25/06/58 and included in article 122-7 of the Penal Code, is it fulfilled here?

If there are many hypotheses where its application does not give rise to any hesitation, in particular whenever the preservation of the person takes precedence over the safeguard of a material good, certain situations are undoubtedly more delicate and the doctrine is divided, when the balance is equal. between interests of identical value (35) .

Case law is against the admission, in such circumstances, of the cause of impunity, contrary to the principles of equal rights and equal dignity of all human beings:

in the judgment X … (D 1958, 693), already quoted, whereas identical risks were in conflict on the passengers of two crossing cars, the criminal chamber reproached the judges of appeal for not having demonstrated ” that the hypothetical risk of injury to which (the) wife (of the accused) and her child were exposed in the absence of this maneuver was likely to lead to more formidable consequences than the certain and very serious danger to which by this maneuver, he exposed spouses Y … as well as his own passenger “. Similarly, it approved the indictment chamber of the Versailles court of appeal to have rejected the argument relating to the state of necessity opposed by PX .. (appeal n ° 93-83.325 on the grounds that , “when it comes to the sacrifice of human life, it is not possible to decide whether the saved lives were of best interest ” (36) .

However, the question does not seem to arise exactly in these terms, in the present case. What was at stake at the material time was not different human lives compared to each other, but the same human life examined in a different time frame. It was the real danger of death to which each of the hemophiliacs victims of bleeding or each of the persons undergoing surgery requiring an emergency transfusion were exposed, immediately or at short notice, as opposed to the ” more distant risk of seeing them develop a fatal illness“, a risk which it should be emphasized that it was not only remote, but also completely underestimated at that time, partly because of the ignorance maintained among prescribing doctors, of the contamination of all products. produced by the CNTS or the CTS, but also, on the other hand, the total ignorance, by the whole of the scientific and medical community, of the real meaning of seropositivity, which was still taken for an immune defense body (37) .

The state of necessity identified by the judgment here joins the permission of the law of article 122-4, paragraph 1 ° of the Penal Code (38) , which authorizes doctors to deliberately attack the bodily integrity of patients while by avoiding criminal prosecution, provided that they act for therapeutic purposes, in accordance with the rules of their art and in accordance with the practices established by the medical community at the time of the facts. This was undoubtedly the case in 1985, as the contested decision emphasizes.

IV.4. The scope of the supporting fact

IV.4.1. State of necessity and unintentional offenses

The third plea articulated by the civil parties is based on the case law on self-defense, to assert that the state of necessity cannot benefit persons liable to be prosecuted for unintentional offenses, such as homicide and unintentional injuries.

It must be set aside, the criminal chamber having never considered that the state of necessity was irreconcilable with the involuntary nature of the offense prosecuted. In appropriate hypotheses, it refrained from making any reference to it. This is the case in the X … judgment (D 1958, 693) as in several subsequent decisions  (39) . The state of necessity is an objective situation whose justifying value is independent of the psychology of the offender and, consequently, of the intentional nature or not of the offense. The second degree investigating court was right to affirm the application of article 122-7 of the Penal Code ” whatever the qualification”.

IV.4.2. State of necessity and co-action

Before examining the substitute qualifications for poisoning that may be retained, it should be asked whether the admission of a state of necessity in favor of prescribing physicians is likely to completely eliminate the offenses which could cause them. be reproached or must be confined, in its effects, to the penal irresponsibility of the only treating physicians and, in application of the theory of the borrowing of criminality, of their possible accomplices.

The new penal code does not specifically answer this question. It deals, in the same chapter II, entitled “of the causes of irresponsibility or of attenuation of the responsibility”, of title II (“Of the penal responsibility”), the subjective and objective causes of impunity which formerly distinguished a number of ‘academics teaching that the former, linked to the abolition of discernment, operate exclusively “in personam” and exempt from repression only those who meet the legal conditions, while the second – order of the law, command of the legitimate authority, self-defense, state of necessity – operate “in rem” and remove from the act performed the criminal character that it could a priori present.traditional causes of irresponsibility “, completely ignoring the aforementioned doctrine (40) .

The answer actually depends on the basis that one attributes to the supporting fact:

– if it is objective, in other words if the basis of the justification is found in the notion of social utility, it is attached to the legal element that it neutralizes: the justifying fact annihilates, by the conflict of laws that it generates, the legal element. It operates in rem and benefits or is denied to all participants in the offense. Are pronounced in this direction in particular MM. Danti-Juan and Decocq for whom ” the impunity enjoyed by the author of a necessary crime also benefits his possible co-perpetrators and accomplices. The exemption from criminal liability thus extends to all the protagonists of the offense ” (41) .

 if the basis is on the contrary subjective, if the justification is backed up by the moral element of the offense which it eliminates, it is then the person more than his act which is justified, so that the justification operates in personam, for the exclusive benefit of the person (or those) who benefit (s) from the cause of irresponsibility. Thus, taking the example of shoplifting committed by two people, only one of whom acts out of necessity, F. Desportes and F. Le Gunehec consider that, ” although the state of necessity depends on objective circumstances, those – these may not be the same for all the people involved in the commission of the same offense.  .

Case law does not seem to have taken a real position on this point. The judgment of 17/02/81 (B n ° 63) cited by the defense (43) does not resolve the issue of joint action since by rejecting the appeal brought by a civil party complaining of the inclusion in the Official Journal of a defamatory declaration of association, the criminal chamber limited itself to applying to the facts of complicity the doctrine of the borrowing of criminality released by the judgment X … of 25/10/62. It can be noted however that the justifying fact is strictly framed: according to the judgment X … (D 1958, 693), the person who invokes the state of necessity cannot see his action justified if he himself has created by her own fault the peril she then faces.

The rapprochement effected by the new Penal Code was already in the making among the drafters of the preliminary draft Penal Code of 1978. They considered the doctrinal distinction to be obsolete ” since the repression was focused on the person of the offender and that it was necessary … to examine his personal position with regard to the causes of irresponsibility ” (44) . The present procedure demonstrates the merits of this analysis: in matters of homicide or unintentional injuries in fact, the damage may be the ultimate result of multiple faults of recklessness or negligence, staggered over time, committed by people. placed in very different professional and personal situations. It would be absurd to allow the entire chain of interveners to benefit from a situation of danger, emergency or therapeutic necessity which is only realized with regard to the direct perpetrator of the unintentional offense.

The cause of irresponsibility from which (or could benefit) the doctors treating hemophiliacs indicted in this procedure (as well as the transfusion doctors) cannot benefit those for whom it is or would be established that they were only concerned. by the sale of their stocks or by the desire to promote French industry, when they had “other solutions than the commission of an offense … to alleviate simple commercial difficulties” (45) .

  1. SUBSTITUTION QUALIFICATIONS

Failing to constitute the crimes of poisoning and aiding and abetting, can the charges of the indicted persons characterize another offense? This is the question posed by the second plea of ​​the Attorney General as by Me Blanc for the colleagues F …, in the 1 °, 2 ° and 4 ° branches of their second plea . This is an essential question, since it reflects the lacunae in special criminal law.

The criminal procedure does not have, in fact, to systematically double the civil action itself, the bringing into play of the responsibility of the public authority, or the operation of the compensation funds, which occupy the respective fields of the compensation for the damage caused, the recognition of a faulty functioning of the public service or solidarity. On these grounds, each of the victims present or represented in the proceedings has been compensated, even if this compensation may seem derisory to compensate for the loss of a loved one or the illness. In its submission to the law, criminal justice only punishes faults committed in certain circumstances, very clearly defined by the legislator. In its referral limited to the facts denounced and to them alone,

In addition, the choice of criminal qualifications does not accommodate simple assumptions. It is not about the possible, the probable, the feeling or the resentment, it is exclusively a matter of legal certainty. It is a choice based exclusively on the seriousness of the faulty behavior, as defined by the legislator, and not on the seriousness of its consequences, however immense and immensely painful. Only the acceptance of the strict definition of each envisaged offense ensures the equality of each one before the law and the justice, only the absolute respect of the principle of strict interpretation of the criminal law avoids any pollution of the law by the personal sensitivity of each one. and makes it possible to evacuate the risk of arbitrariness. What’

Insofar as the examining magistrate and the public prosecutor’s office had proposed the qualifications of administration of harmful substances or of complicity in willful violence, it is first necessary to examine the possible adequacy of the facts of each of these offenses, even if no means evoke them anymore today.

V.1. Intentional attacks on bodily integrity

V.1.1. Administration of harmful substances

Formerly provided for and repressed by article 318 and today by articles 222-7 to 222-15, the offense of administering harmful substances has changed profoundly, in its definition as in its repression, with the new Penal Code. .

In the definition of its material element, the qualification originally aimed exclusively at the administration of substances ” which, without being of such a nature as to cause death, are harmful to health”, as opposed to poisoning. which supposes the use of a deadly substance. Today, the text is broader than the previous one, since it relates to ” the administration of harmful substances having damaged the integrity ” of others. If this is the case with valium, introduced into bottles of mineral water made available to an opposing football team (46) , the human immunodeficiency virus is inherently fatal. Taken literally,

Is its intentional element the will to cause bodily harm or the conscience to administer a product whose toxicity is perceived? The second hypothesis appears to be the most suitable for repression of the offense disconnected from the result, but it assumes full awareness of the toxicity of each product administered, which, according to the judgment, was not the case for the whole. of the indicted, the information relating to the contamination of all the batches of the CNTS ” having been communicated in a partial way by Mr. RR … in the confidential circle of the CNTS and the DGS” (p. 28).

In addition, the old article 318 provided for only two degrees of repression, the first, of a tort nature, applicable when the ITT had lasted less than 20 days, while beyond that, a criminal sentence of 10 years imprisonment was incurred. Today, article 222-15 refers to the full range of penalties incurred for simple or aggravated willful violence. In other words, neither the circumstance of permanent infirmity, which could apply to lifelong HIV contamination, nor that linked to death without intention to give it, were originally foreseen, which prohibits their employment or, at the very least, poses formidable questions, unresolved by the jurisprudence to date, of the application of these two successive versions in time.

Finally, the state of necessity, explicitly admitted by the investigating chamber for the benefit of hemophiliac physicians and implicit, with regard to health professionals acting in an emergency operating context, is a cause of irresponsibility which s ‘applies not only to them, but also to all those who, by providing means, could be accused of acts of complicity. The aforementioned qualification also supposes that a certain causal link be established between the administration of the toxic product and the damage to health (47) , which is not the case, according to the judgment, for a certain number of cases. victims or in the event of over-contamination  (48) .

V.1.2. The qualification of voluntary violence, simple or aggravated

The examining magistrate had retained facts of aggravated willful violence against Jean-Pierre ZZ …, Claire QQ …, Françoise DDD …, Yves WW …, Daniel HHH …, Françoise LL … MM …, Bernard CC …, Geneviève YYY … and of complicity with regard to Jacques AA …, for the administration of untested and unheated blood products to hemophiliacs. All these nursing doctors having benefited, according to the judgment, from the supporting fact, these qualifications are no longer applicable to them. The responsibility of public and private decision-makers who have had no contact or direct relationship with the victims during the alleged acts cannot be sought within the framework of a co-action. Only the complicity of violence by supply of means could be reproached to them.

The qualifications of a deliberate attack on the integrity of the person are therefore not adapted to the facts denounced.

V.2. The qualifications of homicide and unintentional injury

The offenses of homicide and unintentional injury are widely mentioned in the grounds raised: the second plea of ​​the Attorney General criticizes the inadequacy of the reasons for the judgment, in that it qualifies the delay in taking certain measures of prevention – the selection of donors, screening, heating of stable products, return or destruction of batches that are known to be contaminated – of seriously at fault, before ruling out criminal liability for those under investigation because of the uncertainties weighing on the causal link between the acts complained of and the damage , without examining whether these faults do not characterize another violation of criminal law.

The question of the causal link also underlies the third plea of ​​the Attorney General  and the fifth part of the second plea of ​​the colleagues F … : by limiting itself to reporting the current scientific data, without referring to the expertises ordered in the In this case, the investigating chamber would not have sufficiently explained the reasons for which it considers that the over-contamination of hemophiliacs who are already seropositive could not have an impact on the course of the disease. More generally, the second plea of ​​the aforementioned civil parties maintains that ” manslaughter presupposes a simple recklessness at the origin of the death of another”,that on the other hand it does not require the demonstration of ” the conscience by the defendant of the harmful consequences of his act” . He also notes that a causal link between the fault and the damage cannot be disputed when a hemophiliac has received transfusions of unheated blood products and that no other explanation is offered to explain his seropositivity.

Finally, omissions to rule are reported: in its second plea , the public prosecutor observes that the court failed to rule on the cases of Stéphane and Laurent V …. A similar criticism is formulated by the fourth plea of ​​the SCP Baraduc -Duhamel , according to which a general dismissal would have been pronounced without the chamber examining the faults in relation to the damages alleged by the civil parties J …, O …, Q …, S .. . and R ….

Before addressing these complaints, it is important to remember that the offenses provided for and punished by articles 221-6, 222-19 and 222-20 of the Penal Code, presuppose the occurrence of a fault likely to engage the responsibility of a person, of bodily injury established by examining the situation of each victim, and finally of a causal link between the fault and the damage. The law of 07/10/00 has profoundly modified the content of the criminal fault of recklessness or negligence liable to be reproached to natural persons. It requires, in the event of indirect causation, no longer a simple fault, but either a deliberate violation of a particular precautionary or safety provision imposed by the law or the regulation, or a serious fault exposing others to a risk of an accident. particular gravity that the person pursued could not ignore. The direct faults likely to have been committed by the doctors treating hemophiliacs having been neutralized by the justifying fact and no fault being reproached to the transfusion doctors, only really remained in debate, in the judgment, the actions or omissions of those which, not having directly caused the damage, ” created or contributed to the creation of the situation which allowed the damage to occur or … did not … The existence of a certain causal link and of qualified faults therefore had to be demonstrated.

V.2.1. The absence of a definite causal link between the faults likely to be attributed to the indicted persons and the involuntary attacks on the physical integrity of the persons included in the referral to the judges

When it approaches the examination of the causal link, the judgment proceeds by successive findings and deductions. Initially, the outline and the accountability of faults are outlined in broad lines: ” by knowingly differing preventive measures against the AIDS pandemic, political and administrative officials, managers of public bodies – CNTS – LNS or private – Sté Diagnostics pasteur – indicted in this procedure, privileged national or private interests to the detriment of public health imperatives, accepting the risk of sacrificing the fate and life of hemophiliacs and transfused patients “ (p. 27 § 5) Then are particularly stigmatized three types of behavior likely tomembers of ministerial cabinets, the head of the LNS and members of the CNTS “, behaviors considered sufficiently serious to characterize, if applicable, the complicity of the crime of poisoning : these are the blood collections among populations at risk, the delay brought the implementation and generalization of either screening means or means of inactivating the virus, and finally the disposal of contaminating stocks (p. 27 § 8).

But only the question of the delaying action of the recording of the Abott test is examined, to see that it did not prevent ” the use from February 1985 of the test by certain CTS”, then to enumerate the reasons for doubting ” Abott’s industrial capacity to supply, at the time concerned, the French market, which the production of Diagnostics Pasteur could not then satisfy, and the reliability of its reagent” (p. 28 § 6 and 7). From these factual findings falling under the sovereign appreciation of the judges of fact, the deduction is drawn that ” neither the harmful consequences of the action of the delaying decision-makers (sic)of the recording of the tests, nor the fault of the CTS blood collectors having therefore not been demonstrated (sic) , no charge can be raised against the political and administrative decision-makers or those responsible for the said CTS on this account “ (p. 29) § 1) .

The judgment then focuses exclusively on determining the existence of the causal link because – he affirms – ” the criminal liability of the indicted cannot be engaged, under any qualification whatsoever, unless established a causal link between the acts complained of and the damage “ (p. 29 § 2) He considers it uncertain about the over-contamination of the patients already infected, its ” aggravating nature …, supposed in the time of the investigation and retained by the investigating magistrate, not being established” (p 29 § 3) He then ruled out its existence, for hemophiliacs, Willebrand patients and transfused “for registration of the Abott test and the CNTS decision of 05/29/85 to continue marketing infected batches “, patients of which he gives a summary list (p 30 § 1). Finally he reviews the uncertainties relating to the traceability of the batches administered to Jean-François EEEE …. and Yvette FFFF …., or even to the date or mode of contamination of Goulven F …, Jean-Luc GGGG …., Roland YY. .., Stéphane VVV …, Jean-Louis UUU …, Yves Y …, Christiane WWW …, Sylvie XXXX …, Claude L …, Frédéric M … and Yves NNN. .. (p. 30 to 31).

As the Attorney General’s second plea rightly points out , the assertion of the need to establish a causal link between the acts complained of and the damage, whatever the qualification adopted, is erroneous in law since the offense of refusal assistance, also referred to in the OTPPG, does not require the demonstration of a causal link between the fault and the damage. This grievance will be examined in detail in the paragraph devoted to this offense.

Other criticisms could have been formulated:

– the first relates to the fragmentary nature of the analysis of the faults retained, since only the reasons are expressed for which the judges consider not established the existence of a causal link between the damage noted and the actions tending to slow down the placing on the American test market, attributed to political and administrative decision-makers, to the directors of the CNTS, the LNS and the company Diagnostics Pasteur; failure to examine the possible damaging consequences of other breaches attributed to misconduct – continuation of risky collections, delays in the implementation of heating of stable products administered to hemophiliacs, continued distribution of products not tested and not inactivated afterwards on 05/29/85, absence of instructions for recall or destruction of these lots before the circular of 2/10/85 – is not noted by any of the means proposed; however, this omission has no real impact on the meaning of the decision, the certainty of the causal link having been rejected on other grounds;

– the second concerns what could appear as a new contradiction of reasons: the judgment affirms in fact that proof is not reported of the link between the damage observed and the action delaying the recording of the tests. Then he chooses two dates as the starting points for faulty administrative behavior, that of the filing for registration at the LNS of the Abott test, 02/08/85, and that of 05/29/85, the date on which Michel RR … decides the continued distribution of batches manufactured by the CNTS that it knows to be infected (p. 30, first §). This choice, already imprecise due to the co-existence of two different dates, distant in time from each other, also lacks logic, since

Here again, it will be for the criminal chamber to assess whether this lack of clarity of the reasons is likely to hamper its review of legality, it being observed that the motivation is a principle of public order, the defect of which can be pointed out. office.

On the other hand, the complaint based on the insufficient reasoning for the rejection of the aggravating nature of the overcontamination, developed by the 3rd plea of ​​the Attorney General and the 5th branch of the second plea of ​​Me Blanc only tends to call into question the character sovereign of the assessment made by the investigating chamber on the factual elements and the evidence contradictorily debated before it (49) .

Likewise, the criticism relating to the failure to rule on the case of Stéphane S … contained in the 4th plea of ​​the SCP Baraduc-Duhamel is in fact lacking, the conditions of its contamination ” before January 1984″ being examined – in spite of an erroneous spelling of his name – by a reminder of the anteriority of this one compared to the two dates retained as marking the starting point of the suspect period (p. 30 § 1).

On the other hand, the complaints developed in the second plea of ​​the Attorney General and in the fourth plea of ​​the SCP Baraduc-Duhamel are well founded.The judgment unquestionably failed to rule on the specific situation, with regard to the causal link, of a certain number of victims who were made civil parties by themselves or by their beneficiaries. This omission concerns nine adults and two children who died of AIDS, as well as four non-deceased transfused persons, including one child. It cannot be considered a minor. Humanly in fact, it constitutes a denial of the victims of the greatest health catastrophe of the past century, and gives the detestable impression of an unbearable judicial lightness. Because this procedure is only the juxtaposition of 52 destroyed lives, all different by the circumstances and by the consequences of the contamination of the men, women and children it concerns,

Legally, this omission is also unacceptable:

– until the publication of the law of 15/06/00, in criminal proceedings, the second degree investigating court was vested with the right to modify and complete the qualifications given, without stopping at those chosen by the complaint, the indictment or the examining magistrate. It had to assess for itself, under the supervision of the Court of Cassation, whether or not the facts denounced constitute an offense. It derived from article 202 of the Code of Criminal Procedure, the power to rule on all counts of offenses resulting from the case, including those for which the examining magistrate concluded that the proceedings were dismissed (50) . Seizure in this context, the investigating chamber

– moreover, in prosecutions for homicide and unintentional injuries, the judge must necessarily verify the existence of a causal link between the fault and the damage, a link the certain nature of which must be demonstrated to justify prosecution (51) . The Court of Cassation exercises its control over the existence of this causal link by referring to the facts sovereignly noted by the trial judges. It usually censures sentencing decisions whose findings do not allow this existence to be noted, as well as discharge or dismissal decisions which find certain faults and do not sufficiently explain their lack of connection with the death or wounds (52). Here again, the investigating chamber not having fulfilled its obligations, the Court of Cassation cannot exercise its qualification control by referring only to the factual findings of the contested judgment;

– finally, should the judicial institution not ensure “the information and the guarantee of the victims during all criminal proceedings” according to the formula of the preliminary article of the Code of criminal procedure?

Motivation is at the same time the duty, the profession, the intellectual rigor, even the courage of the judge in the face of a public opinion always ready to doubt its impartiality. It is the extension of the adversarial debate, it is the trace of listening and the influence of the arguments exchanged, whether they are accepted or rejected. Only a reasoned decision allows the understanding, and sometimes even the acceptance of the judgment by its recipients. The motivation is the rule of law which governs the criminal procedure as well as the civil procedure, since its first formulation by article 7 of the law of judicial organization of 04/20/1810 and until its resumption. current by article 593 of the Code of Criminal Procedure,

This is why the deficiencies noted seem to me to justify the cassation.
However, if, going beyond the simple finding of failure to rule, the Criminal Chamber analyzes the facts reported above in view of the procedural documents – and it does so regularly, at the preparatory investigation stage – it will note that among the victims not cited by the judgment, eleven of them were indisputably contaminated, before 8/02/85.

By then excluding the case of Mrs. HHHH …, in view of the ordered expertises which certify the quality of the transfused blood, the conditions of contamination by the AIDS virus of Laurent V …, Louis-Marie SSS remain in suspense. .., Jean-Pierre RRR …. The administration of untested blood products continued for all three within the suspect period, with distribution until 3/07/85 for the first, until 07/17/85, for the second, the last having received, on 06/19/85, labile products from a street collection carried out in the 9th arrondissement on 06/14. But the sentence mentioned on page 30 – “the date of contamination remains … unknown in the“(p. 30 last §) – allows to include, even if they are not expressly named, Louis-Marie SSS … and Jean-Pierre RRR …, since the circumstances of the discovery of their seropositivity lend themselves to such a deduction.We would then remain the case of Laurent V …, who, because he was tested seronegative in February 1985, does not come within the framework thus defined and remains untreated.

The court will observe however that two tests were undergone by Laurent V …, the 5/02/85 and 16/07/85, the first negative and the second positive. Taking into account the window of seroconversion (53) , the contamination of the child dates back to a period between 5/12/84 and 16/05/85, a period at least partially located upstream of the period considered to be suspect. by the judgment submitted to the control of the court. It should logically conclude that the certainty of the causal link between a behavior likely to be considered as wrongful and the death of the child is not established with all the precision required in criminal matters (54) .

So that at the end of this method of selection by successive eliminations of uncertain situations, a painful method, I agree, for the victims and their relatives, but an ineluctable method with regard to the principle of the presumption of innocence which governs the matter. criminal, it will be clear that none of the complaints contained in the present procedure fulfills the prerequisite of the causal link, including those concerning the civil parties that the judgment failed to name but whose the criminal chamber can analyze the situation from of the detailed account given by the examining magistrate in his order for the transmission of documents.

V.2.2. A reversal of the burden of proof?

In their second plea, the colleagues F … reproach in particular the judgment of having said the offense of manslaughter on the person of Goulven F … not established with regard to anyone, in the absence of certain demonstration of the origin of its contamination, while,

” When a person with hemophilia has received transfusions of unheated blood products, in the absence of evidence of other causes of contamination, the causal link between the transfusion and contamination with the AIDS virus cannot be disputed.”

The means developed are based on judgments delivered by the 2nd civil chamber of the court of cassation (55) , presented as establishing a ” presumption of contamination by blood transfusion” which can ” be contradicted only by specific elements, which ‘it is up to the judge to characterize “.

Such a criticism cannot be accepted: not only must the remarks be particularly nuanced, in civil matters, with regard to the case-law elements cited in the report of Mr. Dean Roman, but also, it is in principle, in criminal matters, that the proof of the existence of a certain causal link is provided by the prosecuting party, failing which the doubt benefits the accused (56) .

V.2.3. Characteristic faults ?

Contrary to what the colleagues F … also maintain in their second plea , assuming the existence of a certain causal link between the faults attributed to the administrative officials and technical advisers of the ministries concerned and such or such death or contamination , it would still be necessary to establish the existence of a serious fault, within the meaning of paragraph 4 of article 121-3. No manifestly deliberate violation of a particular obligation of prudence or safety, of a legislative or regulatory nature, can in fact be blamed on the accused whose actions or omissions belong to the register of indirect causation.

As defined by the aforementioned provisions, serious misconduct presupposes the meeting of three conditions: a certain degree of seriousness, the exposure of others to a fatal or disabling risk, and finally the foreseeability of this risk by the perpetrator. of fault and damage.

The existence of a fatal or disabling risk is obvious since this risk has unfortunately become a reality.

Regarding the nature of the fault, it is important to underline the filiation of the characterized fault with the gross fault of administrative law and with the inexcusable fault of social legislation  (57). The faulty behavior of public decision-makers whose judgment specified that they were sufficiently serious to possibly characterize acts of complicity in crime would only meet this definition. Indeed the criminal chamber implicitly approved a strict assessment of the “serious fault”, in a judgment of 9/04/02 (on appeal 01-85.669), by rejecting the appeal against a decision confirming dismissal pronounced to the continuation of the complaint with the constitution of civil party of the beneficiaries of a transfused victim, dismissal based on the reason that the failure to recall the transfused until 1993 does not come ” obviously within the framework of criminal misconduct as newly defined by the law of 10/07/00 “.

But in addition, for the latter to be declared criminally responsible for unintentional homicides or injuries, proof would have to be provided that they had “been able to ignore” the risks to which third parties were exposed, a formulation which calls for a concrete assessment. the foreseeability of the risk taking into account the 3 ° paragraph of article 121-3 of the Penal Code, ie the failure to perform ” normal diligence, taking into account … the nature of its missions or its functions, its skills, as well as the power and means at its disposal “.This condition is strictly understood by the criminal chamber which requires, in particular with regard to public decision-makers, that they have been specifically and personally alerted to the existence of a risk that is both serious and current (58) .

However, as we will see by analyzing the degree of awareness of the risk of imminent gravity required to characterize the refusal of assistance, this concrete knowledge of the extent and imminence of the risk to which hemophiliacs and transfused patients were exposed. ‘was not uniform among all the indicted, during 1985, but moreover it was still very fragmented, including for people belonging to the narrow circle of the CNTS and the DGS, who were the best informed and whose main officials have already been sentenced.

V.3. Non-assistance to a person in danger

In support of his appeal, the Attorney General criticizes the court, in his second plea , for not having investigated whether the faults that it identified but which could not be retained within the legal framework of complicity in poisoning , failing to meet the constituent elements of the offense for the principal perpetrators, were not of a nature to characterize in themselves and on an autonomous basis another offense against criminal law and in particular the offense of non-assistance to a person in peril, formal offense consummated as soon as the author of the abstention manifests his will not to intervene immediately to provide assistance to a person exposed to a serious danger.

In the present proceedings, the order for the transmission of documents, as well as the requisitions of the public prosecutor’s office (59) had retained the failure to provide assistance to the charge of two categories of people, on the one hand the doctors ZZ .. ., QQ …, DDD …, EE … and HH …, specialists in hemophilia who were accused of not having alerted the competent decision-making authorities of the urgency to be put in place protection measures for recipients of blood products and their spouses, on the other hand, MM. KK …, OO …, CCCC …. and UU …, CDTS managers, who neglected to call back the transfused patients who benefited from untested (and possibly unheated) blood products delivered by their centers,

The investigating chamber therefore had to examine this qualification with regard to the aforementioned persons as well as those for whom the criminal qualifications or those of non-denunciation of a crime were excluded. It simply stated that ” the offense of non-assistance to a person in danger can only be retained for the sexual contamination of relatives of an infected person, to the extent that they have become civil parties” (p. 31, before -latest §). Then, in view of the factual circumstances surrounding the information communicated to the YYYY spouses … by Doctor ZZ … and of ” the uncertainty on the date and the circumstances of the contamination”of Mrs. ZZZZ …., reproached to M. KK … (p. 32 § 4), she said the uncharacterized offense against them.

Even if the jurisdiction of the investigating court was limited to only infected persons who have brought civil proceedings by themselves or by their beneficiaries, the delimitation of the scope of the refusal of assistance to a person at risk remains. , thus confined, is too reductive: upstream of the possible contamination of their entourage, hemophiliacs or people hospitalized for a surgical intervention requiring a transfusion at the time of the facts, included in the procedure, were themselves in a situation of danger of contamination by a deadly virus, a danger which unfortunately materialized for each of them. It was necessary to verify, more broadly than the judgment criticized did, the

However, before overturning the decision on this point and to avoid any unnecessary referral, the criminal chamber may verify whether the elements constituting the offense appear a priori to be able to be met in the present case, taking into account the uncensored indications of the stop.

Like article 63, paragraph 2, of the former Penal Code, paragraph 2 of article 223-6 punishes anyone who voluntarily refrains from providing assistance to a person in danger that, without risk to him or her or for others, he can lend him, either by his personal action or by provoking help.

The danger and the assistance required can characterize the material element of the offense only if they present a certain number of specific features:

– the danger must be imminent and require immediate intervention; the fact that a person who is still alive is fatally injured does not dispense with intervention, but the danger must always be present and not exceeded (60) ;

– assistance is required of those who have the power to act immediately, whether on site or remotely; it is due by the witness as well as by the author of an offense of unintentional injury or manslaughter, or even by the author of willful violence, so that the offense can be prosecuted concurrently with the offense generating the danger ; it can take the form of personal action or recourse to a third party, provided that the reaction is the most appropriate (61) , the responsibility of all those who are recipients of information relating to the danger and endorse, by their own attitude, the inertia of the one who could act, being able to be engaged (62) .

However, failure to assist a person at risk is an intentional offense. It is the willful refusal to provide assistance and not a simple negligence or an error of assessment, which is punished (63) . Knowledge of the seriousness of the risk is assessed objectively, in particular in view of the duties of the accused person and the information which he had or should have had at the time of the alleged omission, the accusation having to establish that he was unable to misunderstand the imminent gravity of the danger, the necessity, the topicality, the urgency of the assistance to be brought or the alert to be given.

Was this awareness of the imminent seriousness of the danger realized in this case in the person of those who could effectively act, either directly or by calling the attention of the administrative decision-making authority to the urgency of the measures to be taken to stop contamination? In other words, had the health emergency been denounced with sufficient precision to hemophilia physicians or administrative and political officials in the government chain and, if so, were either of them? remained inactive to the point of characterizing wrongful abstention?

The importance of the answer given to this final questioning is essential, because it is this which will ultimately condition the nature and form of the decision of the criminal chamber.

If it was affirmative in the judgment of the Paris Court of Appeal of 13/07/93, against Jacques EEE … and Robert BBB …, it was on another basis, that of their culpable inaction in the face of the continued distribution of products of which they were no longer unaware of the toxicity and danger to humans (64) .

The judgment criticized provides him with differentiated answers, more or less elaborated according to the professions and functions of the accused. With regard to prescribing doctors – but the reason also obviously applies to doctors specializing in hemophilia against whom the referral of the head of non-assistance to a person in danger was required -, the chamber of the instruction sovereignly notes that ” proof is not reported that they were aware of the necessarily fatal nature of the batches of the CNTS, the information having been partially communicated by Doctor RR … in the confidential circle of the CNTS and the DGS, from which the AFH itself seems to have been excluded ” (p. 27,. It also evokes their false perception of a peril, then considered remote and out of proportion with the immediate danger to which hemophiliacs and transfused patients would have been subjected, if they had been left without the contribution of coagulating factors or without the supply of blood;

With regard to the doctors who collect blood, the decision taken also seems to rule out, in a general way, their criminal liability by the incise contained in § 2 of page 29, according to which ” the fault of the CTS collectors of blood does not not being demonstrated, no charge can be raised against … the persons in charge of the said CTS on this count “ . It also deals specifically with the reasons for which no fault is found with regard to doctors UU … and KK … (p. 31 and 32).

There remain the technical advisers and heads of central administration, with, in the front line, those of the Secretary of State for Health: the criticized decision treats them overall with severity, reproaching them for having accepted ” the risk of sacrificing the future. and the lives of hemophiliacs and transfused patients “(p. 27 § 5) while” the health and ministerial authorities could not ignore the fatal consequences of AIDS “.And it is true that what is essentially shocking in the preliminary management of the pandemic is the technocratic vision to the point of caricature, exclusively budgetary, economic, industrial, which is reflected in the exchanges between central administrations and which is completely lost sight of. the very purpose of any policy – the preservation of the general interest of which the human being is the epicenter -. But we touch here the fields of professional deontology, of ethics and of political responsibility, of conscience, finally, infinitely wider than the penal field. On this point, moreover, the contested judgment is again missing. precision. It does not detail either according to the three or four categories of inactions or delays denounced by the civil parties or according to the indicted persons. The aforementioned sentences are too general to be useful, since vicarious liability, collective liability does not exist in criminal matters. Everyone is only responsible for their own fault.

He notes, however, at the same time and in a totally opposite way, that transfusion contamination then appeared to the scientific and medical community – to which many of these administrators or advisers belonged – as a ” remote risk of … disease. deadly “on which many uncertainties still remained. The investigating chamber thus clearly recognizes that neither health professionals, nor a fortiori administrative officials and political advisers who did not have extensive medical training, had yet been fully aware of current events and the seriousness of the danger to which patients whose state of health required blood supplies were exposed, as well as the real significance of the seropositivity observed in hemophiliacs subject to study protocols.

In order to avoid any anachronism, it is necessary to recall the atmosphere of doubt, hesitation, even reluctance which then prevailed in the most authorized circles, whether on the selection of donors, on the waiver suggested by some to the additional comfort that the use of factors VIII and IX brought to hemophiliacs at the time, on the still uncertain reliability of screening tests, on the merits of the techniques of inactivation of the virus by heating, which were feared then that they do not affect the coagulation faculties. The judgment criticized refers to all this under the generic term of uncertainties.

And this is exactly what the Criminal Court admitted, in a judgment of 4/11/99 (B n ° 248), by unreservedly approving the reasons by which the Court of Appeal, seized of a complaint with constitution of civil party for the count of non-assistance to a multiple-transfused victim before the date of 7/07/85 and who had not been recalled to be subjected to a screening, had confirmed the order of dismissal intervened in highlighting the ” underestimation of risk by the entire medical profession ” at that time.

We cannot forget that this is also the meaning of the public testimony of Professor Montagnier, whose role was decisive in the aetiology of the disease and who cannot be suspected of complacency towards anyone, before the Parliamentary Commission of Inquiry meeting on this question on 2/12/92: ” our scientific and medical community has been at the forefront of AIDS research; it has nonetheless underestimated the situation of health emergency that AIDS was creating … “ he said. Then, invited more precisely to answer the question “was there, in your opinion, a political scandal in the attitude of the public authorities in 1985? “, He indicated:“this is a question that I ask myself very often … It is easy to attack, with the eyes of 1992 … In 1985, there was not the same vision; although some of between us had it, they did not pass the message ”  (66) .

To these hesitations, must be added the tragic mistake which characterized the state of scientific and medical knowledge of 1985. At the time, in the purest Pasteurian tradition, all health professionals were convinced that the presence of antibodies in a patient signed the victorious fight of the organism against contamination. In their report submitted to the Secretary of State for Health on 07/22/85, the most knowledgeable experts in this area – notably Drs Glukman, Michaud, Montagnier, Penneau and Rozembaum – did not write, without the slightest hesitation: “The widespread confusion between AIDS and infection with the LAV virus needs to be cleared up. The doctor should explain that the presence of antibodies against this virus indicates that the subject has been infected with this virus, but that the probability of developing AIDS is low, current studies indicating that the vast majority of HIV-positive people remain well ” .

The particularly long latency period which separates the period of asymptomatic seropositivity from the appearance of immune deficiency disorders then reassured a medical profession whose traditional vigilance was at fault by figures that were still not very alarming in themselves: in 1985, two died. times more tuberculosis and 200 times more cancer than one died of AIDS.

If, in view of these reminders, the reasons for the judgment appear sufficient, the criminal chamber may therefore rule out the reproach contained in the second plea of ​​the public prosecutor , recalling that, according to its leading judgment of 26/03/97 , already quoted, ” the provisions of article 223-6, paragraph 2 of the Penal Code require, in order to be applicable, that the accused be personally aware of the imminent nature of the peril to which the person was exposed. state required help and that he could not doubt the need to intervene immediately to ward off this danger “.

CONCLUSION

From a legal point of view, I believe that the failings in the reasons for the judgment submitted to the control of the criminal chamber, which cannot appear to support a judgment of this invoice, must be censored.

But then, a choice is offered to it, which will depend on the very extent of the cassation pronounced. Of two things, one in fact:

– or else it considers that the insufficiencies and the contradictions of the motivation are too important to give your interpretation of the rule of law, a sufficiently solid factual basis. In this case, it will refer to a third chamber of the investigation the task of better combining the fact and the law, in accordance with article L 131-4 of the Code of judicial organization;

– or else it will consider that it can ” put an end to the dispute”, based on the factual findings of the judicial decisions taken in this procedure, then by applying “the appropriate rule of law” . Article L 131-5 of the Code of judicial organization gives him this option. It should not be neglected, at a time when Article 6 of the European Convention on Human Rights proclaims the right to be tried within a reasonable time, and when modern justice is more and more difficult to adapt to interminable shuttles between the lower courts and the Court of Cassation, when they appear to be of no use and contrary to the good administration of justice.

Personally convinced that, for the most part, those who should have been penalized have been penalized and that after this long period of judicial maturation, what remains to be judged within the strict framework of this referral does not come under a qualification criminal law, for the legal reasons explained, I am not opposed to this alternative.

I therefore incline, to summarize myself, to the CASSATION of the contested judgment, cassation which will be pronounced, WITH OR WITHOUT REFERENCE.

1.Appearance of large and persistent lymph nodes with, if necessary, fever, weight loss, dermatological manifestations …

  1. opportunistic infections, Kaposi’s sarcoma, neuropsychiatric disorders …
  2. OTPPG p.423; stop p. 25
  3. OTPPG p.64.
  4. Crim.10/18/13 S 1920. 321, note Huguenay; J. Pradel and A. Varinard, The major decisions of criminal law, 2nd edition, p. 97; cf. also Crim. 02/20/37, B no 34; 06/23/86, B # 218, 04/12/88, B # 146, 02/12/97; B no.57.
  5. article L 421-1 of the Consumer Code.
  6. Crim.20/11/80 B no 309; 06/24/97, B no 251; Crim. 06/23/83, B no.196; Crim. 04/29/86 B n ° 146.
  7. The Court of Cassation states:“Whereas … the judges add that Doctor ZZ … refrained from informing the members of the board of the Association française des hemophiles (AFH) on May 10, 1985, during a meeting at which he represented the CNTS; that, likewise, on June 19, 1985, at the meeting of the National Hemophilia Committee at which it was decided that, during an intermediate period of a few weeks, unheated products would coexist with heated products, he gave no indication of the extent of the contamination of the batches, thus confirming the concealment of which the members of the AFH office were victims; … that thus “he accredited” to the hemophiliacs “the own silences, concealments and reluctance of doctor RR …” …
  8. Crim.04/2/03, on appeal 02-82.674
  9. O. Bouillane de Lacoste, Jurisclasseur criminal procedure, articles 567 to 575, fasc.20; J. Boré, Cassation in criminal matters, p. 74 and s. ; cf. also Crim. 10/30 and 11/15/73, B nos. 391 and 420; 01/29/75, B no 33; 01/23/85, B no 35; 03/18/91, B n ° 131
  10. Crim.01/22/48, B no 18; 03/18/91, B no 131; 07/12/72, B no 240; 10/18/77, B no 305; 07/11/95, B n ° 254
  11. Crim.06/20/46, B no 144; 11/24/53, B no 303; 10/16/57, B no 637; 3/05/94, B n ° 161
  12. Crim.3/10/73, B no 343; 07/20/65, B n ° 179
  13. Crim.07/2/1886, B n ° 238
  14. Crim.6/8/93, B no 203; Gaz Pal 1993, 2, p 456, Doucet note; Dr criminal 1993, comm 211
  15. Crim.5/02/58, B no 126; 07/18/52, D. 1952, case law p. 667; 2/07/98, B n ° 211
  16. Crim.5/02/58, cited above
  17. Crim.07/2/1886, cited above
  18. Article 10 of the decree of 06/28/79 and article 5 of the current Code of medical ethics
  19. H. Angevin, Criminal Jurisclasseur, Willful attacks on life, articles 221-1 to 221-5, n ° 71 et seq.D Mayer, The notion of lethal substance in poisoning, D 1994 chron p. 325
  20. Former article 301 of the Criminal Code
  21. In the annotated Penal Code (article 301, p. 717), E. Boy distinguishes poisoning, which implies “the intention to kill the victim ” from reckless homicide and the administration of harmful substance, the second qualification assuming ignorance of its lethal nature and the third inducing an intermediate desire to “cause disorders in the organism”. ” These two offenses – he adds, speaking of poisoning and the administration of harmful substances –are distinguished even more by the intention than by the nature of the substance used … The crimes and misdemeanors of article 317 are to poisoning what willful assault and battery are to murder: the same act, one stroke knife, for example, will be one or the other depending on whether or not the agent wanted to kill the victim “.
  22. D. 1993, jurisp.p. 22, note A Prothais; Gaz Pal 1993 1 p. 118 Doucet note; JP Delmas Saint-Hilaire, Death, the great absence of the decision rendered in the case of contaminated blood by the Paris Criminal Court, Gaz Pal 1993 1 doctr p. 257. D 1994, jurisp. p. 118, note Prothais; D 1995 summ p. 141 obs Pradel; JP Delmas Saint Hilaire, The murdered homicide, Gaz Pal 1994 1 doctr p. 173. J Pradel and M Danti-Juan, Special criminal law, 2nd edition, p. 43. To compare with M Danti-Juan, Contaminated blood, deception and poisoning, too much and too little is not a measure … in Works of the Institute of Criminal Sciences of Poitiers, vol XIV; M Veron, Dr Pénal 1996, chron n ° 34; Y Mayaud, Poisoning, a logic of death, RSC 1995, p. 348; G Mathieu, AIDS and criminal law, RSC 1996, p. 81
  23. The judgment of 07/18/52, cited above, underlines the existence of “homicidal intent … the experimenter having accepted and expected the fatal outcome”. In the judgment of 8/06/93, the chamber approves the criminal qualification only after having verified the intention through the comments made by the author of the delivery of the toxic product to the victim, before and after this surrender, which clearly characterized homicidal intent. A judgment of 16/06/93 (on appeal 93-80.092) states that ” the crime of poisoning is carried out by the intentional administration to a third party, whatever the consequences, of a substance likely to give the death”
  24. CA Colmar, Régina, 6/12/57 (D 1959. 357, note Bouzat): Crim.06/28/58, X … (D 1958, 693, note MR MP, JCP 1959 II 10941, note Larguier, RSC 1959, 111, obs. Legal; J. Pradel and A. Varinard, Les grands decisions du droit General Criminal Code No. 24 p. 286).
  25. The use of contaminated coagulant fractions could, exceptionally, be justified by the state of necessity in the absence of any other solution, in the event of serious and imminent danger endangering the life of a hemophiliac”
  26. Garnier-Delamare, Dictionary of technical medical terms
  27. While it is for the courts to assess the circumstances which may strip the facts of their criminal character, their assessments in this regard are only sovereign insofar as they are not in contradiction with the established facts and with the legal character which belongs to these facts “ (Crim. 25/07/60, B n ° 392; 4/05/62, B ​​n ° 180; 20/11/63, B n ° 325)
  28. On the contrary, Article 122-5 requires that the act of defense be “strictly necessary for the aim pursued”
  29. OTPPG p.56 and s.
  30. OTPPG p.62.
  31. p 68 et seq.
  32. OTPPG p.35 and s.
  33. OTPPG p.363
  34. Appear in favor of the application of the state of necessity: Donnedieu de Vabre (Elementary Treaty of Criminal Law and Comparative Criminal Legislation – 1930, nos. 375 and 382), Legal (RSC – 1959 – p. 113) , Merle et Vitu (Treaty of criminal law – General penal law – 1997 – n ° 470), Pradel (General penal law – 2002/2003 – n ° 350), Danti-Juan (Encyclopédie Dalloz – State of necessity – 1997 – n ° 48), Desportes and Le Gunehec (General criminal law – 2001 – n ° 734).
    Ruling in the opposite direction: Bouzat and Pinatel (Treaty of penal law and criminology – 1970 – n ° 299), ML.Rassat (General Criminal Law – 1999 – n ° 293), Jeandidier (General Criminal Law – 1991 – n ° 272) and Delmas Saint-Hilaire (Juris-classeur penal – State of necessity – article 122-7 – 1996 – n ° 49 ).
  35. Crim.10/21/93. B n ° 307
  36. Cf. supra I.1.
  37. This legal authorization has become legal authorization since the law of 07/30/94, adding article 16-3 to the Civil Code: “the integrity of the human body can only be violated in the event of of therapeutic need for the person “
  38. Crim.11/29/72, B no 370; 07/16/86, D 1988.390, 2 ° species, Dekeuwer note, and more recently 11/28/98 on appeal 97-81.251
  39. E. Lepointe, Justified, therefore irresponsible.Contribution to the Darwinian theory of species variation, D 1996, chron p. 247; C. Mascala, Criminal Jurisclasseur article 122-4 § 4; Ph. Conte and P. Maistre du Chambon, General Criminal Law, 6th edition, p. 150 and s.
  40. Rep.criminal Dalloz, State of necessity, n ° 52 and 53; cf. also JP. Delmas Saint Hilaire, Penal Jurisclasseur, article 122-7 § 58; A. Decocq, General Criminal Law, 1971, p. 326 and s.); J. Pradel, Manual of General Criminal Law p. 286; C. Mascala, Criminal Jurisclasseur, article 122-4, n ° 4
  41. The new criminal law, p.602
  42. Brief of the SCP Lyon-Caen, Fabiani and Thiriez p.11
  43. Final preliminary draft of the penal code, Doc.fr., 1978, Comm.p. 45
  44. Crim.02/11/86, B n ° 54, ruling out the state of necessity concerning a shortage of stocks
  45. Crim.06/14/95, B n ° 218
  46. Crim.05/10/72, D. 1972, jur. p. 733
  47. See infra V.2.2
  48. Certainly, in 1985, no one knowing the answer to this totally new question, it would have been prudent and wise not to continue the administration, to seropositive hemophiliacs, of untested and unheated products.Mr. RR …, JP ZZ … were penalized for this. J. EEE … and R. BBB … were also used for knowingly letting them do it. But the problem is not the same, on the ground of manslaughter and intentional injuries, which requires to note that none of the scientific expertises ordered by the examining magistrate came to certify the existence of such an impact in relation to the continued administration of unheated products to patients already seropositive. Moreover, the Commission of
  49. Crim.03/10/93, B n ° 107
  50. Crim.03/9/94, B 85; 10/18/95, B 314; 24/10/00, B n ° 308
  51. Crim.04/24/75, Gaz Pal 1975,2, p. 537; 1/7/80, B no 10; Crim. 11/20/73, B no 425; 03/27/74, B no 134; 02/21/84, RSC 1975, p. 78, obs. Levasseur.
  52. Cf. supra I.1.
  53. This is the approach adopted by the Paris Court of Appeal, when it released Michel RR … on the count of manslaughter on the person of Olivier X … (Paris Court of Appeal 13th  room, 3 May 1993), a young hemophiliac who died on 02/02/92, after dismissing successively the two series of infusions received by the victim during the period between the conclusion of his seronegativity of 26/09/84 and the of his seropositivity, on 03/16/85, to the double visa of the state of necessity and the absence of a certain causal link .
    This is also the approach adopted by the Investigation Commission of the Court of Justice of the Republic, which considered as not established or prescribed the contaminations which did not lead to ITT.“contaminations occurring on a date that could not be determined, those occurring outside the period during which faults were identified at the charge of the indicted, as well as those for which there is no link certain causality between the faults identified and the damage “ . And it is on these grounds that it notably excluded, from the scope of the possible criminal liability of the members of the Government under investigation, the contamination of Laurent Gaudin (judgment of dismissal and partial dismissal of 07/17/98 , p. 220 . 55. Civ 29/12/92, B n ° 306; 01/14/98, B n ° 17.

  54. Crim.10/24/73, B no 378; 6/10/77, B n ° 295, RSC 1978, p. 631 obs. Levasseur; 20/11/96, B n ° 417
  55. In his report to the National Assembly and after noting that a number of industrial accidents caused by serious misconduct would escape criminal prosecution on the sole basis of the “manifestly deliberate” fault , the deputy René Dosière suggested, in the extension of the recommendations of the Massot Commission, to maintain in the penal field inexcusable fault, that is to say the ” fault of exceptional gravity, deriving from an act or a voluntary abstention, of the conscience of the danger that its author must have had, of the absence of any justifying cause differing, by the lack of an intentional element, from intentional fault “,according to the case law of the social chamber .His proposal to include, alongside willful misconduct, ” exceptionally serious misconduct exposing others to danger that its perpetrator could not ignore” was then modified, by government amendment. Its field was widened, by the use of a weaker qualifier, but it was also clarified, by the expression of the necessary accumulation of two conditions – a serious fault “and” the exposure of others to a risk of a particular gravity that its author could not ignore.
    As for the concept of gross negligence, it was at the origin of the emergence of the concept of serious fault (CE 10/02/05, Tomaso Greco, concl. Romieu, D 1906, 3, 81); the Court of Cassation defines it, in the field of the faulty functioning of the service of justice, as ” any deficiency characterized by a fact or a series of facts translating the inability of the public service of justice to fulfill the mission with which it is invested “ (Cass. Ass. Plén. 23/02/01, B 5)
    It is symptomatic, in this regard, that the Lyon court of appeal, in its judgment of 28/06/01, released the director of school and teacher prosecuted after the Drac accident, on the grounds of the absence of ” serious misconduct within the meaning of the law of 07/10/00, being analyzed as a breach characterized by essential professional obligations or as the accumulation of recklessness or successive negligence testifying to a prolonged lack of care “ .
  56. Crim.6/4/02, B 127; 06/18/02, B 138; 12/10/02, B 196; 03/18/03, on appeal 02-83.523.
  57. OTPPG p.341 et seq., P. 413 and s. ; Requisitions of 02/9/00, p. 79 et seq., P. 104 and s.
  58. Crim.03/26/97 B No. 123; 03/23/53 B n ° 104; with regard to a director of CTS being accused of not recalling and not destroying unheated products delivered, until March 1985, to a hemophiliac whose seropositivity was not diagnosed until 1986, the criminal chamber said that ” the offense having ceased to be committed in 1986, at the moment when the seropositivity of the victim was revealed “, the dismissal of this count was not open to criticism (Crim. 6/05 / 97, on appeal 96-8.551). The same reasoning could therefore be held with regard to persons already contaminated before the suspect period and who were awarded, during this period, products that were not tested and not inactivated.
  59. Crim.01/21/54, JCP 1954 II 8050, Pageaud note; 06/24/80 B n ° 202, RSC 1981 p. 618, obs Levasseur; 04/22/86, B no 136; 03/4/98, Dr. penal, special issue Dec 1999, the Penal Code of the year 2000 in 200 decisions, n ° 89; 03/07/91 on appeal 90-83.607;
  60. Crim.02/17/72, JCP 1973 II 17474
  61. Crim.03/26/97, Penal Dr., special issue Dec 1999, the Penal Code of the year 2000 in 200 decisions, n ° 91; see also Crim. 01/21/54, JCP 1954 II 8050, Pageaud note; 06/25/64 D 1964 jurisp. p. 594; Gaz Pal 1964 2 p. 385; 11/26/69, B no 753; 03/16/72, B no 109; 04/26/88, B no 178; 2/3/93, B no 58; 03/26/97, B no 123; 8/10/97, B n ° 329
  62. Professor EEE … and Doctor BBB … were criminally sanctioned, the first for having, as director general of health, “voluntarily refraining from taking actions within his purview while the texts in force allowed him to act “ to stop the distribution of the contaminated batches produced by the CNTS, the second for having voluntarily abstained” from any personal intervention at the meetings of the National Council of hemophilia on 06/19/85 and the Advisory Board on Blood Transfusion on 06/20/85, when he had a duty to act “to prevent the commission of crimes against the bodily integrity of people and that he had been personally informed, on 3/06/85, by Michel RR … of the contamination of all products manufactured by the CNTS (p. 101 and s.)
  63. The only reservation that can be expressed concerns Doctor ZZ …, perfectly aware of the results of all epidemiological studies and of the contamination of the CNTS batches.But can we blame him for not having personally kept the DGS informed while his hierarchical superior within the CNTS – Doctor RR … – was doing so directly, as results from the judgment?
    As for Doctor Habbibi, his report, filed on 05/29/85, seems to be the triggering factor for the decision taken by the Prime Minister to make the screening of donated blood compulsory on June 19.
  64. Report of the Commission of Inquiry into the State of Scientific Knowledge and Actions Taken with regard to the Transmission of AIDS, Editions 10/18, p.139 and 351

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