BLOOD TRANFUSION
LexInter | December 20, 2003 | 0 Comments

BLOOD TRANFUSION

Court of Justice of the Republic, March 9, 1999, n ° 99-001, Laurent Fabius, Georgina Dufoix and Edmond Hervé.

Edmond Hervé committed a fault of recklessness or negligence and a breach of an obligation of safety or prudence which was imposed on him by the code of public health; that this fault and this failure are in causal relationship, at least indirectly, only with the death of Sarah Malik, contaminated at the fetal stage in the absence of her mother’s recall, transfused on April 25, 1985, as well as with the total incapacity for work suffered by Sylvie Rouy, following her contamination, on August 2, 1985, by an untested blood donation, taken on July 13, 1985; that he must, consequently, be declared guilty for these facts of articles 319 and 320 old and 121-3, 221-6 and 222-19 of the penal code.

Court of Justice of the Republic, March 9, 1999, Laurent Fabius, Georgina Dufoix and Edmond Hervé.

Case No.99-001

At the public hearing on Tuesday March 9, 1999, the Court of Justice of the Republic issued the following judgment which was read by the President:

On the conclusions

1 ° – On the conclusions filed on February 23, 1999 by Maître Maisonneuve and Maître Welzer for Mr. Edmond Hervé and contesting the conditions in which extracts from the minutes of the hearing of Mr. Weisselberg were read together to the procedure:

Whereas the magistrate in charge of this reading confined himself to explaining, by a few sentences of connections, the conditions under which the reports had been drawn up, certain extracts of which seemed to him useful for the manifestation of the truth;

That during this reading, the floor having been given to the public prosecutor as well as to the defendants and their lawyers, and no substantive observations having been presented, no violation of the rights of the defense resulted nor Article 6 of the European Convention on Human Rights;

2 ° – On the submissions filed on February 25, 1999 by Maître Cahen for Mrs. Georgina Dufoix, in that they invoke the violation of Article 6, paragraphs 1 and 2, of the European Convention on Human Rights;

Whereas no procedural nullity can result, in domestic law, from the possible disregard of the reasonable period provided for by the said agreement and the alleged impartiality complaint could only have been raised by a request for disqualification, which has not been presented;

That moreover the Court responded, by judgment before saying right of February 9, 1999, to the reservations formulated on the conditions under which the persons summoned as witnesses were heard, both by the defense and by the public prosecutor, although being indicted, for related facts, in proceedings currently underway at the Paris tribunal de grande instance;

3 ° – On the conclusions filed on February 25, 1999 by Maître Maisonneuve and Maître Welzer for Mr. Edmond Hervé in that they invoke the violation of human rights, and in that they express reservations as to the impartiality of the debates or report an infringement of their duty of confidentiality by members of the Court;

Whereas these complaints, which in part could have come under the challenge procedure to which it was not resorted, only proceed from inaccurate or not established statements;

That it will, moreover, be answered, in the reasons for this judgment, to said conclusions in that they tend to the release of Edmond Hervé;

4 ° – That it will also be so with the other conclusions, tending to the same ends of acquittal, filed on February 26, for the same defendant, by the same lawyers, as well as by Master Darrois, Master Zaouii and Mr. the President of Bigault du Granrut for Laurent Fabius;

Basically

In accordance with the provisions of article 32 of the organic law of 23 November 1993, it was voted by secret ballot by absolute majority, and separately for each accused, on each head of prevention;

Concerning Laurent Fabius, Prime Minister at the material time, by a majority of at least eight votes, each of the five heads of prevention retained against him was answered in the negative;

Concerning Georgina Dufoix, Minister of Social Affairs and National Solidarity at the material time, by a majority of at least eight votes, each of the five heads of prevention retained against her was answered in the negative;

Concerning Edmond Hervé, Secretary of State for Health at the material time, by a majority of at least eight votes, the heads of prevention selected against him were answered negatively targeting Paul Pérard, Charles-Edouard Perrot-Cochin, Yves Aupic, Hanattah Malik and Pierre Roustan;

On the other hand, by a majority of at least eight votes, it was answered in the affirmative to the heads of prevention retained against him, targeting Sarah Malik as well as Sylvie Rouy, and it was voted without stopping, by an absolute majority of voters, on the application of the penalty with regard to Edmond Hervé;

Motivation

I – Reminder of the facts

Whereas the AIDS syndrome appeared in the United States in 1981, particularly among homosexuals and drug addicts; that in January 1982, the Federal Epidemiological Agency of the United States reported the first case of infection in a hemophiliac;

That in December 1982, the possibility of contamination through the blood was raised and that in February 1983, Professor Montagnier discovered the LAV virus, the causative agent of AIDS, followed, in May 1983, by Professor Gallo who identified the HTLV III retrovirus as the germ of the disease; that it was at this time that researchers brought to light the biological reality of AIDS;

That, on June 9, 1983, a study carried out by Doctors Habibi, Allain and Courroucé, from the National Blood Transfusion Center (CNTS), noted “the extremely serious nature of this syndrome and the absence of an appropriate detection test”, specifies that no treatment is then available, that the mortality of the disease greatly exceeds 70% and recommends, in particular, the search for “at-risk donors” and the careful use of coagulating fractions;

That, on June 20, 1983, a ministerial circular drawn up by Doctor Brunet, epidemiologist at the Directorate-General for Health, and signed by Professor Jacques Roux, Director-General, recommends the elimination of at-risk donors during blood drives; that it is followed by a recommendation adopted on 6 June 1983 by the Council of Ministers of the Council of Europe, having the same purpose and the text of which was prepared by a working group in which French experts participated, including two medical inspectors general of health;

That, on November 22, 1984, Doctor Brunet, to the consultative commission on blood transfusion, a report on the prevention of the risks of transmission of AIDS by blood transfusion; whereas there are reports of studies having been able to prove inactivation of the virus after heating of blood derivatives;

That, January 16, 1985, a circular letter from the Director General of Health, addressed to blood transfusion establishments, noting that the circular of June 20, 1983 would have been little applied, prescribed to strictly respect the instructions;

That, on March 12, 1985, Doctor Brunet draws the attention of Professor Roux to the disturbing results of the investigation carried out at the Cochin hospital, which shows that 6 blood donors out of 1000 are seropositive;

That, on April 21, 1985, Professor Montagnier, returning from the Atlanta Congress on AIDS which was held on April 15, underlines, during a television newscast, the seriousness of the AIDS epidemic which could become a major problem by the year 2000 and specifies that, in order to avoid its transmission, it is necessary to systematically test all donated blood;

That, on May 30, 1985, a report drawn up by Doctor Habibi, on behalf of the “AIDS and blood transfusion” group, was sent to Edmond Hervé; whereas this report recommends that systematic screening for AIDS be applied as quickly as possible to each donation of blood;

Whereas, on June 19, 1985, Laurent Fabius, in response to an oral question from a parliamentarian, announced to the National Assembly his decision to make the AIDS screening test compulsory for all blood donors;

Whereas, on July 23, 1985, two decrees, signed by the directors of the cabinet of the Minister of Social Affairs and the Secretary of State in charge of Health, prescribe, one the screening of the AIDS virus in blood donations to from August 1, 1985, the other for non-reimbursement of unheated products from October 1, 1985; that, by a circular signed by Professor Roux, dated October 2, 1985, distributed on the 15th to the directors of blood transfusion establishments and which will be published in the official bulletin of the Secretary of State on October 20, it is requested that contaminated blood products are returned to the blood transfusion center that issued them;

Whereas article 47 of the law of 31 December 1991 set up a compensation fund for victims of damage resulting from contamination by HIV and caused by a transfusion of blood products;

That, by judgments of April 9, 1993, the Council of State found the responsibility of the State for blood contaminations by transfusions of blood products carried out between November 22, 1984 and October 20, 1985;

Whereas as of January 20, 1994, complaints were lodged with the commission of requests near the Court of Justice of the Republic against Laurent Fabius, Georgina Dufoix and Edmond Hervé, respectively, at the material time, Prime Minister , Minister of Social Affairs and National Solidarity, and Secretary of State for Health, and that the investigating committee of this Court was seized by an introductory indictment from the Attorney General of July 18, 1994, followed by several requisitions auxiliary;

That the qualification of the facts denounced, such as the withholding by the commission of requests and the general prosecutor’s office, was that of complicity in the crime of administration of substances harmful to health;

That at the end of the information, the investigating committee, after reclassification of the facts prosecuted as crimes of homicide and reckless injury, states that it could not, “without exceeding its referral, inform on facts of contamination committed to the prejudice of unidentified members ”of the Association française des hemophiles; that its judgment specifies, moreover, “that cannot be retained in the prevention the contaminations occurring on a date which could not be determined, those which occurred outside the period during which faults were raised with the load put in examinations, as well as those for which there does not exist a certain link of causality between the faults and the damage ”;

That consequently, after dismissal to follow concerning seventeen victims having been the subject of individualized complaints, the Court of Justice of the Republic is seized, with regard to the three defendants, of the case of seven victims;

II – Complaints alleged by the investigating committee

Whereas the judgment for referral accuses Edmond Hervé of not having supervised the effective application of the prescriptions of the circular of 20 June 1983 aiming to exclude from blood collections persons presenting a viral risk; that he is, in particular, criticized for having tolerated the continuation of blood samples in penitentiary establishments;

Whereas it is, moreover, criticized against the interested party as well as Laurent Fabius and Georgina Dufoix, on the one hand, with the aim of promoting the establishment on the market of the reagent developed by the company Diagnostics Pasteur to the detriment of foreign firms, for having delayed the generalization of screening tests and their inclusion in the nomenclature of medical biology acts and, on the other hand, for not having recalled people likely to have been contaminated , before August 1, 1985, by blood transfusion;

That it is finally held against Edmond Hervé and Georgina Dufoix for not having enacted specific regulations intended to preserve, in all circumstances, the quality of human blood, its plasma and their derivatives used for therapeutic purposes, by tolerating, in particular, the delivery of non-inactivated blood products and by not ordering the immediate destruction of stocks presenting a risk of transmission of the virus;

That the investigating committee retain the existence of a causal link between these faults and the death or incapacity of seven of the victims concerned by the complaints;

III – On the requisitions of the public prosecutor

Whereas, in his oral submissions, the public prosecutor reiterates the distinction, discussed on several occasions during the debates, between the concepts of political responsibility and criminal responsibility;

That after having considered that, “taken as a whole the health policy of the government of France from April to September 1985 was catastrophic as regards the fight against the spread of AIDS”, he concludes, with regard to the ministers, that the inadequacy of their interventions, as well as an absence of involvement that the investigation and the debates would have brought to light, cannot however be considered as criminally wrongful; that they do not constitute a criminal offense capable of justifying a conviction and that the correct application of the law imposes, consequently, the acquittal;

That the general prosecutor then invite the Court to have a “civic role” by awarding the defendants a form of “public blame”; that political responsibility would have to be recreated in France and that the decision of the Court could contribute to it, because of the “strong messages that this trial gives to the rulers of our country”;

That after having underlined, in its written requisitions for the purposes of dismissal, that the criminal law, no longer seeking only to achieve intentional faults but also everyday behavior in the most elementary activities, became one of the means of democracy, the public prosecutor’s office evokes the risk that ministers, in the future, will be led to explain their political choices to the Court of Justice of the Republic; that such a perspective would result in substituting judicial control for what comes under democratic control and creating a “regrettable confusion of powers” ​​by submitting the actions of the executive power to the judgment of the judges;

But given that political responsibility – assuming the concept, criteria and implementation precisely defined, which is not the jurisdiction of the Court – is not exclusive nor the civil and administrative responsibility of the State, nor criminal responsibility;

That indeed, the provisions of article 68-1 of the Constitution, applicable in the present case, expressly establish the autonomy of the criminal responsibility of the members of the government in the event of crimes or misdemeanors committed in the exercise of their functions, without distinguishing between intentional and unintentional offenses;

That it is also not for the Court, whose role is to apply positive law and not to assess its advisability, to rule on the observations of the Attorney General, however relevant, relating to the risks that he mentions as well as to the phenomenon of penal inflation.

That these are political choices which are the sole responsibility of the legislator; that the Court, exercising a judicial and non-civic function, cannot, by awarding today a reprimand or tomorrow a satisfaction, arrogate to itself the role of arbiter of French political life without compromising the normal functioning of the institutions of the Republic ;

That, moreover, it was not claimed in this case, by the defendants, that the behavior with which they are accused in the conduct of health policy, at the time covered by the claim, was the result of a choice deliberate, clearly announced policy;

IV – The means of defense

Whereas Edmond Hervé’s lawyers request his release; that master Maisonneuve maintains that the commission of instruction refused to accomplish the acts and to order the expertises which he had requested; that according to him, Edmond Hervé, although mayor of a big city, devoted himself assiduously to his ministerial work; that finally, although in contact with a medical world which would have underestimated the risks of AIDS, he had nevertheless been one of the initiators of the circulars on the selection of donors and of the decrees relating to the screening of the HIV virus ;

That Maître Welzer, after having enumerated what he considers to be the “errors” of the remand judgment, endeavors to maintain that there is no causal link between the faults attributed to the secretary of State and damage suffered by each of the victims;

Whereas Maitre Cahen, lawyer of Georgina Dufoix, in support of his request for release, underlines that the motivation of the judgment of dismissal, according to which the minister “could not not know”, is not admissible in our right; that he maintains that there was a broad consensus, including on the part of the president of the French Association of hemophiliacs, on the coexistence, during a transitional period, of heated and unheated blood products;

Whereas, in favor of Laurent Fabius, Master Darrois pleads that the Prime Minister, in spite of a divided medicine and stammering science, took a quick and clear decision in order to make compulsory the screening of donated blood;

That Master Zaoui endeavors to call into question what he calls the thesis of the “Pasteurian conspiracy” advanced by the judgment of dismissal; that he maintains that the tests of the company Diagnostics Pasteur were operational from March 1985 and that the registration formality was not necessary for competing companies to be able to supply their products to blood transfusion centers, this that they have, moreover, done;

That the Bâtonnier de Bigault du Granrut, after presenting the personality and the career of Laurent Fabius, insists on the need to place the facts in the context of the time and to distinguish the responsibility of the State from that of the ministers; that, according to him, Laurent Fabius applied “the principle of precautions” even before its introduction into our positive law;

V – On the charges against Laurent Fabius

Whereas the complaints invoked by the judgment of dismissal against Laurent Fabius relate only to his behavior as Prime Minister concerning the generalization of the AIDS screening tests among blood donors and the accompanying measures;

Whereas, according to article 21 of the Constitution, it is up to the Prime Minister who directs the action of the government, to define the main political orientations, by giving the necessary impulses, if necessary, and to arbitrate the differences which could arise between his ministers; that he has, to exercise his function, the assistance of his Cabinet and the General Secretariat of the Government;

That each member of the government, who benefits from a delegation of powers from the Prime Minister, has his own competence, defined by the decree fixing the attributions of the ministerial department for which he is responsible;

Whereas it results from the information that Laurent Fabius was seized of the problem of compulsory screening of blood donations by a note from his industrial advisor, dated April 29, 1985; that it emerges from the annotations made on this document that the Prime Minister immediately expressed a position favorable to the principle of the compulsory screening measure and requested that the decision to be taken be prepared, without however relinquishing the Minister and the Secretary States concerned; that following this request, an interministerial meeting was held in Matignon on May 9, 1985 under the chairmanship of François Gros, advisor to the Prime Minister in charge of research;

That, by a note of May 13, 1985, the latter informed the director of cabinet of the results of the meeting, indicating the main positions present and indicating that the investigation of the file was continuing with a view to generalization of the test; that this note was brought to the attention of Laurent Fabius, who did not add any particular observation;

That the official report of the May 9 meeting, or “blue”, was drawn up on May 17 and distributed by the General Secretariat of the Government on May 22; that, as is customary, this document mentions in fine the guidelines adopted at the end of the meeting, in particular that “the Abbott registration file is still retained for some time at the National Health Laboratory”; that, however, this question was not raised in the note of May 13, 1985 given to the Prime Minister and it is established that this one was never personally seized of it; that the assertion of the judgment of the reference, according to which the expressed intention to postpone the registration of the test in question, competing with the Pasteur Diagnostics test, “can only be the translation of

Whereas, likewise, there is no factual evidence to confirm the allegation of the remand judgment according to which the Prime Minister personally prevented the Secretary of State for Health from announcing on 22 May 1985, during the a conference held in Bordeaux, the government’s resolution to generalize the screening of donated blood;

Whereas Laurent Fabius was again seized of the question of screening by a note from François Gros dated June 14; whereas the Prime Minister immediately requested, as a matter of urgency, additional information which was provided to him by a new memorandum of 18 June;

That it was at the end of this first part of the interministerial process that the Prime Minister announced to the National Assembly, on June 19, 1985, the decision taken by the government to make screening compulsory quickly;

That, during the period that followed, the Prime Minister’s attention was drawn by letters of June 28 and 29, 1985, received on July 1, indicating the need to take immediate action to implement the decision announced; that he transmitted these letters to his cabinet, stressing in turn the urgency of the implementation of these measures;

That, under the chairmanship of a member of the Prime Minister’s cabinet, three interministerial meetings were then organized with the aim of defining the procedures for executing the decision on screening; that during these meetings, which were held on 12, 17 and 22 July 1985 and in which the representatives of the six ministries concerned participated, questions relating to the generalization of the test, the protection of national production and the financing of the measure were mentioned; that the ministerial decrees making screening compulsory and increasing the price of blood products so as to include the cost of the new test were taken on 23 July 1985 and published in the Official Journal the following day; that the date retained by these decrees for the

Whereas, moreover, it does not result from the file, nor from the debates, that the question of recalling transfused patients was expressly submitted to the Prime Minister; that the insufficiency, on this point, of the prescriptions of the circular of the director general of the Health of October 2, 1985, can not consequently be held against him;

Whereas ultimately the screening of donated blood, implemented in July 1985 in most transfusion centers, was imposed and generalized in France without delay, by comparison with the schedule observed in most other countries in the world (third in Europe, fifth globally);

That it appears under these conditions, taking into account the knowledge of the time, that the action of Laurent Fabius contributed to accelerate the decision-making processes and that, consequently, do not constitute, against him, the offenses envisaged by articles 221-6 and 222-19 of the penal code;

VI – On the charges against Georgina Dufoix

Whereas Georgina Dufoix, Minister of Social Affairs and National Solidarity, although having a general delegation of powers under article 21 of the Constitution for all the problems falling under her ministry, is submitted to the Secretary of State for Health, placed under his authority, for matters falling within the competence of the latter, since they had no financial implications;

That it does not appear that the intervention of the Minister was necessary before the decision of the Prime Minister, of June 19, 1985, on the compulsory screening of all blood samples;

That as of this date, no delay was brought in the establishment of this measure by the decrees of July 23, 1985, in particular in its support by Social Security, directly attached to Georgina Dufoix;

That in this regard, it results from the debates that the latter refused to give its agreement to the draft decrees, established on July 12, 1985 under the double stamp of the Directorate General of Health and the Directorate of Social Security , which provided for a system of agreement favoring Diagnostics Pasteur and envisaged fixing, not on August 1, 1985 but on October 1 only, the entry into force of compulsory screening;

That with regard to the accompanying measures for this screening, it has not been established that the accused’s attention was drawn to the need to introduce such measures, the initiative of which fell to the Secretary of State. and its services;

Whereas subsequently, when the question of the inclusion of tests used in medical analysis laboratories in the Social Security nomenclature arose, it is not disputed that the differentiation, which may have occurred between various tests, had no consequences for public health, since the test listed in the nomenclature was reliable and available in sufficient quantity;

That consequently, there is no reason to retain Georgina Dufoix in the links of prevention;

VII – On the charges against Edmond Hervé

Whereas, by circular of June 20, 1983, signed by Professor Roux, Director General of Health, the Secretary of State for Health ordered people at risk to be removed from blood donations, by means of an interrogation; that this circular was little or not applied by the transfusers;

That the responsibility for such a situation lies essentially with the organization of the blood transfusion at the material time, as well as “cultural” considerations which prevailed over the imperatives of public health; whereas this is particularly true with regard to blood collection in prisons;

But given that it has not been demonstrated that the Secretary of State was fully informed, by his advisers and his services, of the non-application of the circular of 20 June 1983 and of the risks inherent in the absence of systematic selection of donors;

Moreover, no causal link, even indirect, can be noted between this lack of selection and the death or incapacity of those of the victims retained by the order for referral;

Whereas Edmond Hervé is also accused of not having become aware of the extent of blood contamination by the HIV virus nor of the need to resort to general screening of donated blood, on the grounds that, during the meeting of May 9, 1985, its representative considered that such screening was not justified in terms of public health;

That, however, it is established that the Secretary of State had not been informed of the matters which were to be discussed during this meeting and that, moreover, he intended to announce on 22 May 1985, at the Bordeaux hematology congress, the decision to generalize screening;

That, if this announcement was postponed until June 19, 1985, it does not result from the investigation or from the debates, that this is attributable to him and that, after this date, he may be accused of any fault of negligence within the deadline for drawing up the decrees of the following 23 July or in the mandatory setting up of screening for donated blood;

Whereas, on the other hand, as the judgment of the investigating committee notes, Edmond Hervé had to ensure, by reason of his own responsibilities, to enact the necessary regulations so that the quality of human blood is preserved in all circumstances. , its plasma and their derivatives used for therapeutic purposes;

That it should, in particular, have taken the accompanying measures for the decrees of July 23, 1985, in order to impose compulsory screening or the destruction of blood products taken before August 1, 1985 and which had not been tested or inactivated; that it was up to him, moreover, to give the necessary instructions for the search and recall of persons likely to have been previously contaminated by blood transfusion;

Whereas, in this regard, Edmond Hervé committed a fault of imprudence or negligence and a breach of an obligation of safety or prudence which was imposed on him by the code of public health; that this fault and this failure are in causal relationship, at least indirectly, only with the death of Sarah Malik, contaminated at the fetal stage in the absence of her mother’s recall, transfused on April 25, 1985, as well as with the total incapacity for work suffered by Sylvie Rouy, following her contamination, on August 2, 1985, by an untested blood donation, taken on July 13, 1985; that it must, consequently, be declared guilty for these facts of the articles 319 and 320 old and 121-3, 221-6 and 222-19 of the penal code;

On the application of the penalty

Whereas fifteen years have elapsed since the facts and five years between the initiation of public action by the petitions commission at the Court of Justice of the Republic and the judgment of the three former members of the government; that during these years many theses were opposed on the subject of the contaminated blood affair, laying charges on the action and the responsibility of the ministers without them having been able to defend themselves;

That, in such a context, Edmond Hervé could not benefit completely from the presumption of innocence, being subjected, before judgment, to often excessive assessments, as is too frequently the case for other litigants;

That consequently, taking into account the circumstances, it is necessary to exempt him from punishment, by application of article 469-1 of the code of penal procedure;

For these reasons,

Ruling publicly, contradictorily, with regard to the three defendants,

The courtyard,

Rejects the conclusions filed on February 23, 1999 by Maître Maisonneuve and Maître Welzer for Edmond Hervé, the conclusions filed on February 25 by Maître Cahen for Georgina Dufoix, as well as the conclusions filed the same day by Maître Maisonneuve and Maître Welzer for Edmond Hervé;

Declare not constituted, at the expense of Laurent Fabius and Georgina Dufoix, the offenses with which they are accused, of involuntary attacks on the life or physical integrity of persons;

Returns them for the purposes of prosecution;

Declares unincorporated, at the charge of Edmond Hervé, the offenses of involuntary attacks on the life of Paul Pérard, Charles-Edouard Pernot-Cochin, Hanattah Malik and Pierre Roustan and of involuntary harm to the physical integrity of Yves Aupic;

The dismissal, of these heads, of the ends of the pursuit;

Declares Edmond Hervé guilty of the offenses of involuntary harm to the life of Sarah Malik and of involuntary harm to the physical integrity of Sylvie Rouy provided for and repressed by articles 319 and 320 old and 121-3, 221-6 and 222- 19 of the penal code;

The exemption from punishment.

Leave a Comment

Your email address will not be published.


CAPTCHA Image
Reload Image