JURISPRUDENCE 2005 to 2017
LexInter | November 23, 2017 | 0 Comments

JURISPRUDENCE 2005 to 2017

Court of Cassation 

Criminal Chamber 

Public hearing of July 7, 2005 Rejection

Appeal number: 05-81119

Published in the newsletter 

President: M. Cotte

Rapporteur: M. Blondet.

Advocate General: M. Finielz.

Lawyers: Me Foussard, SCP Boré and Salve de Bruneton, SCP Lyon-Caen, Fabiani and Thiriez, SCP Piwnica and Molinié, SCP Richard, SCP Waquet, Farge and Hazan, Me Brouchot, SCP Vier, Barthélemy and Matuchansky.

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE

IN THE NAME OF THE FRENCH PEOPLE

THE COURT OF CASSATION, CRIMINAL CHAMBER, in its public hearing held at the Palais de Justice in PARIS, delivered the following judgment:

Ruling on the appeals brought by:

– X … Jean-Claude,

– Y … Fernand,

– Z … Henri,

– To … Marc,

– B … Jacques,

– C … Francisco,

– D … Françoise, wife E …,

– F … Christian,

against the judgment of the investigating chamber of the PARIS court of appeal, 5th section, dated January 26, 2005, which, in the information followed against them in particular for homicides and unintentional injuries, deception, aggravated deception , and complicity in deception and aggravated deception, pronounced on the prescription of public action;

The COURT, ruling after debates in the public hearing of June 23, 2005 where were present: Mr. Cotte president, Mr. Blondet advisor rapporteur, MM. Joly, Pibouleau, Le Gall, Farge, Challe, Pelletier, Palisse, Mmes Koering-Joulin, Desgrange, MM. Pometan, Rognon, Chanut, Castagnède, Mme Guirimand, councilors of the chamber, Mmes Gailly, Guihal, M. Lemoine, Mme Ménotti, M. Chaumont, Mmes Degorce, Labrousse referendum advisers;

Advocate General: M. Finielz;

Clerk of the chamber: Mrs Lambert;

On the report of Councilor BLONDET, the observations of Me FOUSSARD, of professional civil society BORE and SALVE de BRUNETON, of professional civil society LYON-CAEN, FABIANI and THIRIEZ, of professional civil society PIWNICA and MOLINIE, of professional civil society RICHARD, professional civil society WAQUET, FARGE and HAZAN, Me BROUCHOT and professional civil society VIER, BARTHELEMY and MATUCHANSKY, lawyers at the Court, and the conclusions of Advocate General FINIELZ; the plaintiffs’ lawyers were invited to speak last;

Considering the order of the president of the criminal chamber, dated March 7, 2005, joining the appeals because of their connection and ordering their immediate examination;

I – On the appeal of Christian F …:

Whereas no means are produced;

II – On the appeals of Henri Z …, Jean-Claude X …, Marc A …, Fernand Y …, Jacques B …, Francisco C … and Françoise D … :

Considering the briefs produced in demand and in defense;

Whereas it results from the judgment under appeal and from the documents of the procedure that an information was opened on December 24, 1991 of the head of involuntary injuries, on the complaint with constitution of civil part of the parents of Llyassil G … which , after having undergone treatment with growth hormone extracted from human pituitaries, had contracted Creutzfeldt-Jakob disease; that following the death of the victim, the public prosecutor, on August 10, 1992, made supplementary requisitions on the count of manslaughter; that between September 10, 1993 and September 18, 1997, the examining magistrate was seized of the open proceedings of the counts of homicides, involuntary injuries and poisoning on the constitutions of civil party of the parents of twelve other victims of disease ; than,

Whereas it results from the investigations of the examining magistrate that the medical scientific community was progressively informed, from 1980 to 1985, of the risk then of the reality of a correlation between the treatment of dwarfism by the administration of hormone of extractive growth and development in some patients with Creutzfeldt-Jakob disease; whereas, during 1985, the health authorities of the United States, Great Britain and several other countries ceased distribution of this product while two of its most important foreign distributors ceased to sell it, one of them announcing the imminent marketing of a bio-synthetic hormone; that, however, the leaders of both the France-Hypophyse association, responsible for collecting the pituitary gland and distributing growth hormone, which the Institut Pasteur and its laboratory, the Analytical Radio-Immunology Unit (URIA), which produced the hormone, and the Pharmacy Central Paris Public Assistance Hospitals, which packaged and distributed it, would not have drawn the consequences of this information before 1988; that the association would have continued to have human pituitaries taken and collected from corpses from populations at risk, by unqualified agents and using techniques that do not offer the best guarantees of health security; as extraction, pooling, the packaging and distribution of growth hormone would not have responded to “good manufacturing practices” applied by industrial pharmaceutical laboratories; whereas certain batches which escaped the initial contamination test set up in 1985 or the most advanced purification processes, would have been mixed with other batches or disposed of without regard to the requirements of safety and traceability;

Whereas, on supplementary requisitions of April 27, 2004, the examining magistrate indicted Jean-Claude X …, president of France-Hypophyse, Fernand Y …, director of URIA, Henri Z .. ., director of the central hospital pharmacy, and his collaborator Marc A …, for deception and aggravated deception, and Jacques B …, director of pharmacy and medicine, Francisco C …, Françoise D .. . and Christian F …, doctors collectors of France-Hypophyse, for complicity in these crimes; that the first seven, have, on the basis of article 82-3 of the Code of criminal procedure, seized the examining magistrate of a request tending to the finding of the extinction of the public action by the prescription; that the examining magistrate rejected these requests;

In this state;

On the single means of cassation, proposed by Me Foussard for Jean-Claude X …, and taken from the violation of articles 203, 591 and 593 of the Code of Criminal Procedure, 2 of the law of August 1, 1905, L. 213 -1 and L. 213-2 of the Consumer Code, lack of reasons;

”In that the judgment appealed rejected the exception of limitation invoked by Jean-Claude X … concerning the facts of deception and aggravated deception;

”On the grounds, first of all, that, concerning the starting point of the prescription, it cannot be considered to apply two different prescription regimes to the offense of deception depending on the nature of the products in question; whereas the starting point of the prescription must therefore obey the same rules as deception relates to medicinal products or to other products; whereas deception is an instantaneous offense; that this does not prevent this offense, consisting in deceiving the contracting party, by any means or any process, as to the nature, species, origin, substantial qualities, composition or content of useful principles of all goods, or on the quantity of things delivered or on their identity by the delivery of goods other than the specific thing that was the subject of the contract, or on the suitability for use, the risks inherent in the use of the product, the checks carried out, the instructions for use or the precautions to be taken, constitutes a clandestine infringement by nature; that in fact, it is necessarily a question of keeping the contractor in ignorance of the reality of the characteristics of the goods; that clandestinity is inherent in the offense, failing which it could not be committed or attempted; that deception is necessarily concealed and carried out in an occult manner; that one can moreover read in the brief of certain appellants that “the notion of concealment is at the very heart of the offense of deception”; that the clandestine character of the infringement exists independently of a succession of deliveries or of realization of a damage; that the question of knowledge, by the presumed perpetrator, defects in the thing, does not concern the problem of prescription but rather that of culpable intent; that the legislator did not take sides, even implicitly, on the starting point of the prescription of the offense of deception; whereas this starting point cannot depend on whether, in a given case, the victims may or may not otherwise avail themselves of other non-prescribed offenses; that the offenses mentioned in this regard by the briefs have, moreover, constituent elements which do not merge with those of deception; that in any case, it cannot be taken for granted a priori that the prosecution of other offenses will be successful; considering that consequently, the prescription of the offense of deception, aggravated or not, must start from the day on which the infringement appeared or could be observed under conditions allowing the pursuit of public action; that the offense does not become for all that imprescriptible, since as soon as the above mentioned conditions are realized, the prescription begins to run; considering that with regard to the complaint on which the information was opened, the deception did not cease to be clandestine until the results of the brain biopsy, carried out on October 4, 1990 on Llyassil G, became known …; that it is to this day that the prescription could begin to run on the facts of deception; that the offenses of deception and aggravated deception are prescribed by three years, these were not prescribed when the complaint was filed, on December 2, 1991, with the constitution of civil party of the consorts G .. . ;

”And on the grounds, again, that, there is no doubt that the connection does not change the nature of the prescription attached to an offense and cannot call into question a prescription already acquired; that it has, on the other hand, the consequence that the effects of acts interruptives prescription accomplished in relation to an offense extend to related offenses; considering that, in the present case, the facts of homicide and unintentional injuries, on the one hand, and aggravated deception, on the other hand, undoubtedly present close relationships similar to those specially provided for by article 203 of the Code of penal procedure ; that in fact, they are all related to the distribution to patients of products infected with the agent of Creutzfeldt-Jakob disease, at the same time, and largely involve the same people; that these facts are therefore at least related; that the facts of deception and aggravated deception concerning the various victims are likewise related to each other, that indeed the same process employed in a generalized manner is involved, as thus the acts interrupting the limitation period which took place with the first complaint and at the the consequences thereof have effect in respect of offenses concerning other victims; whereas acts interruptives prescription were regularly accomplished, since the complaint of the family G … followed by the opening of the information, on the facts of involuntary injuries and manslaughter; that it is moreover by no means claimed that these offenses are in whole or in part prescribed; that from then on,

”Whereas, firstly, the crime of deception, instantaneous offense, does not imply, as to its constituent elements, any concealment, nor any clandestinity; that the starting point of the prescription must be fixed, in accordance with common law, on the date on which the material fact of deception was committed; that in deciding the contrary, the judges of the merits violated the aforementioned texts;

”Whereas, secondly, and in any case, no maneuver aiming to conceal the infringement, nor any artifice tending to conceal it has been noted, which could justify that the starting point of the limitation period was deferred in time; that in this regard, the judgment under appeal is at least tainted with insufficient grounds with regard to the aforementioned texts;

”Whereas, thirdly, whatever the method used, the connection presupposes a prior concert or a uniqueness of conception and purpose between the various offenses and that, failing to find that this was the case in the present case, the judges on the merits tainted their decision with insufficient grounds with regard to the aforementioned texts;

”Whereas, fourth, the identity of the author and the identity of the victim are not sufficient to characterize the connectedness; that in deciding the contrary, the judges of the merits violated the aforementioned texts;

”And while, fifthly, the judgment under appeal does not show that at the date of the first act interrupting prescription, with regard to homicides and unintentional injuries, the acts of deception did not fall within the scope of prescription ; that in this regard also, the judgment under appeal is tainted with insufficient grounds with regard to the aforementioned texts;

On the first ground of appeal, proposed by the professional civil society Piwnica and Molinié for Henri Z … and taken from the violation of articles 6-3 a of the European Convention on Human Rights, L. 213-1 and L. 213-2 of the Consumer Affairs Code, 7 and 8 of the Code of Criminal Procedure, lack and contradiction of reasons, lack of legal basis;

”In that the judgment under appeal declared non-prescribed the offenses of deception and aggravated deception for which Henri Z … was indicted on June 2, 2004;

”On the grounds that it cannot be envisaged to apply two different limitation regimes to the offense of deception depending on the nature of the products in question; whereas the starting point of the prescription must therefore obey the same rules as deception relates to medicinal products or to other products; that deception is an instantaneous offense; that this does not prevent this offense, consisting in deceiving the contracting party, by any means or any process, as to the nature, species, origin, substantial qualities, composition or content of useful principles of all goods, or on the quantity of goods delivered or on their identity by the delivery of goods other than the specific thing which was the subject of the contract, or on the fitness for use, the risks inherent in the product use, the checks carried out, the instructions for use or the precautions to be taken constitute a clandestine infringement by nature; that in fact, it is necessarily a question of keeping the contractor in ignorance of the reality of the characteristics of the goods; that clandestinity is inherent in the offense, failing which it could not be committed or attempted; that deception is necessarily concealed and carried out in an occult manner; that the clandestine character of the infringement exists independently of a succession of deliveries or of the realization of a damage; that the legislator did not take sides, even implicitly, on the starting point of the prescription of the offense of deception; that consequently, the prescription of the offense of deception aggravated or not,

”1 °) whereas, the offense of fraud, instantaneous offense, starts from the day of the delivery of the goods and not from the discovery of the deception; that by affirming that the deception is a clandestine offense whose prescription starts from the day on which it appeared or could be noted under conditions allowing the exercise of the public action, in this case on October 4, 1990, the Chamber of the instruction violated the aforementioned texts;

”2 °) whereas under article 6-3 a of the European Convention for the Protection of Human Rights and Fundamental Freedoms, any accused has the right to be informed as quickly as possible. the cause of the accusation brought against him and that the application by the judgment under appeal of the texts of domestic law implies a violation of these provisions;

On the single means, proposed by the professional civil society Waquet, Farge and Hazan for Fernand Y … and taken from the violation of articles L. 213-1 and L. 213-2 of the Consumer Code, 1, 7, 8 and 10 of the Code of Criminal Procedure, 203 and 593 of the same Code, lack of reasons, lack of legal basis;

”In that the judgment appealed rejected the request presented by Fernand Y … tending to the finding of the prescription of public action for the offense of deception continued, relating to facts committed until 1986;

”On the grounds that, deception is an instantaneous offense; that this does not prevent this offense, consisting in deceiving the contracting party, by any means or any process, as to the nature, species, origin, substantial qualities, composition or content of useful principles of all goods, or on a quantity of things delivered or on their identity by the delivery of a goods other than the specific thing which was the object of the contract, or on the fitness for use, the risks inherent in the use of the product, the checks carried out, the instructions for use or the precautions to be taken constitute a clandestine infringement by nature; that in fact, it is necessarily a question of keeping the contractor in ignorance of the reality of the characteristics of the goods; that clandestinity is inherent in the offense, failing which he could neither commit nor be tempted; that deception is necessarily concealed and carried out in an occult manner; that the clandestine character of the infringement exists independently of a succession of deliveries or of the realization of a damage; that the question of the knowledge, by the presumed author, of the defects of the thing, does not concern the problem of prescription, but rather that of the culpable intention; that the legislator did not take sides, even implicitly, on the starting point of the prescription of the offense of deception; that consequently the prescription of the offense of deception, aggravated or not, must from the day when the offense appeared or could be noted under conditions allowing the exercise of the public action; that as regards the complaint on which the information was opened, the deception did not cease to be clandestine until the results of the brain biopsy, carried out on October 4, 1990 on Llyassil G .. could be known. .; that it is to this day that the prescription could begin to run for the facts of deception; that, the offenses of deception and deception aggravated prescribing by three years, these were not thus acquired when was filed, December 2, 1991, the complaint with constitution of civil party of the consorts G …; that acts interruptives prescription were regularly accomplished, since the complaint of the family G … followed by the opening of the information, on the facts of involuntary injuries and manslaughter; that it is moreover by no means claimed that these offenses are in whole or in part prescribed; that consequently, the interruption of the prescription for these facts necessarily has the same effect for all the related facts of deception and aggravated deception; that in consequence of what precedes these last facts are not prescribed;

”Then, on the one hand, that, in matters of instantaneous infringements, the prescription runs from the day of the commission of the infringement; that the offense of deception being, as the judgment points out, an instantaneous offense, the prescription of this offense necessarily ran from the day of delivery of the “merchandise” or product purchased, and not from the day of the discovery of the deception, assuming that there has been fraud; that by deciding the contrary the chamber of instruction violated the aforementioned texts;

”Then, on the other hand, that the starting point of the prescription cannot be postponed by the judge, in the absence of a legal exception, only in the event that it can be objectively justified by the use of a process of willful concealment of the offense, or when the civil party was kept in ignorance of the fraudulent processes employed by the perpetrator himself, who sought to conceal the offense committed without the knowledge of the victim; that in the absence of any fraudulent act or maneuver of concealment on the part of the alleged perpetrator of the alleged facts, tending to conceal the offense pursued, the starting point of the prescription could not be postponed by the judge; in the present case nothing allows to say that Fernand Y …, who himself was unaware of the defect affecting the products delivered, has in any way sought to conceal the fraud; that in this state the chamber of instruction, which did not raise any maneuver of concealment of possible fraud, deprived its decision of any legal basis;

”Then, that in any case the question of the knowledge, by the presumed author, of the defects of the thing, evaded by the judgment under the pretext that it did not relate to the problem of prescription, arose, at the on the contrary, with acuteness, insofar as only the knowledge of the defect by the person charged with deception, a necessary condition for the will to concealment, could enable him to prevent the discovery of the offense and to confer on it deliberately underground; that, by refusing to rule on this question, the judgment under appeal could not therefore give a legal basis to its decision;

”Then, moreover, that the deception, which supposes only a lie or a reluctance relating to a substantial quality of the thing, object of a civil contract, cannot constitute an offense“ occult by nature ”, insofar as the Articles L. 213-1 and L. 213-2 of the Consumer Code do not make clandestinity an essential element of the offense of deception, the resulting fraud may moreover very well be quite obvious and turn out to be immediately to the abused person; that by not finding therefore, in the present case, that the alleged facts were concealed or carried out in an occult manner, the investigating chamber,

”Then, finally, that, insofar as the prescription of the facts qualified as deception which would have been committed during the period going from 1973 to 1986 was necessarily acquired at the time of the lodging of the complaint, on December 2, 1991, the alleged connection of these made with those of homicides and involuntary injuries and the acts interrupting the prescription which would have been carried out since then, were not susceptible to call into question the prescription already acquired; that by deciding the contrary the chamber of instruction violated the aforementioned texts;

On the second ground of appeal, proposed by the professional civil society Piwnica and Molinié for Henri Z … and taken from the violation of articles 6 of the European Convention on Human Rights, L. 213-1, L. 213 -2 and L. 216-4 of the Consumer Code, 7, 8, 203, 591 and 593 of the Code of Criminal Procedure, lack of reasons, lack of legal basis;

”In that the judgment under appeal declared non-prescribed the offenses of deception and aggravated deception for which Henri Z … was indicted on June 2, 2004;

”On the grounds, that there is no doubt that the connection does not change the nature of the prescription attached to an offense and cannot call into question a prescription already acquired; that on the other hand it has the consequence that the effects of acts interruptive of prescription accomplished in relation to an offense extend to related offenses; that, in the present case, the facts of homicide and unintentional injuries, on the one hand, and of deception and aggravated deception, on the other hand, undoubtedly present close relationships similar to those specially provided for by article 203 of the Code criminal procedure; whereas, in fact, they are all related to the distribution to patients of products infected with the agent of Creutzfeldt-Jakob disease, at the same time, and to a large extent involve the same people; that these facts are therefore at least related; that the facts of deception or aggravated deception concerning the various victims are likewise interrelated; that indeed is in question the same process employed in a generalized way; that thus, the interruptive acts of prescription intervened with the first complaint and following this one have effect with regard to the infringements concerning other victims; that acts interruptives prescription were regularly accomplished, since the complaint of the family G … followed by the opening of the information, on the facts of involuntary injuries and manslaughter; that it is moreover by no means claimed that these offenses are in whole or in part prescribed; that from then on, the interruption of the prescription for these facts necessarily has the same effect for all the related facts of deception and aggravated deception; that as a result of the foregoing, the latter facts are not prescribed;

”1 °) whereas as the judgment under appeal first stated, if the effects of acts interrupting prescription in relation to an offense extend to related offenses, these acts are not susceptible to calling into question a limitation period. ores and already acquired; that it follows from the file of the procedure and the statements of the order of the investigating magistrate, confirmed by the investigating chamber, that the introductory indictment of December 29, 1991 aimed at the offense of involuntary injuries is the first interrupting act of the prescription and that, insofar as on that date the offense of deception aimed at the supply of medicinal products during the period from 1981 to 1986 was already prescribed, the possible connection of the offense in question was not such as to question a prescription already acquired;

”2 °) whereas in application of article L. 216-4 of the Consumer Code, a lawsuit in matters of deception must be continued and terminated by virtue of the same Code; that it follows that the investigating court has neither the power to reclassify facts initially retained under the qualification of injuries then manslaughter as deception, nor to cumulate prosecutions for an offense provided for by the Penal Code, with an offense of deception;

”3 °) whereas having regard to the autonomy of the prosecution of the count of deception, the possible interruption of prescription of the count of an offense provided for by the Penal Code has no effect on the limitation of the offense of deception;

On the single means of cassation, proposed by the professional civil society Richard for Marc A … and taken from the violation of articles L. 213-1 and L. 21 3-2 of the Consumer Code, 7, 8, 593 of the Code of Criminal Procedure, lack of reasons and lack of legal basis;

”In that the order attacked refused to note the prescription of public action concerning the offenses of deception and aggravated deception for which Marc A … was indicted;

”For the reasons that the Court, seized only of the appeal of orders refusing to note the prescription of the public action, as well as of requests tending to the observation of such a prescription, does not have to pronounce, even in the alternative, on the impossibility alleged by Marc A … to apply the criminalization of deception to the facts of the case, nor on the unenforceability advanced expertise prior, within the framework of this new prevention; that indeed, these questions are foreign with the only object of the calls of ordinance refusing to note the prescription; that the facts for which the applicants were indicted on counts of deception and aggravated deception or complicity, go until 1988 for Francisco C … as well as Françoise E … and until 1986 for the other five applicants; that it cannot be envisaged to apply two different regimes of prescription to the offense of deception according to the nature of the products in question; whereas the starting point of the prescription must therefore obey the same rules as deception relates to medicinal products or to other products; that deception is an instantaneous offense; that this does not prevent this offense, consisting in deceiving the co-contracting party, by any means or any process, on the nature, species, origin, substantial qualities, composition or content of useful principles of all goods, or on the quantity of things delivered or on their identity by the delivery of goods other than the specific thing which was the subject of the contract, or on the suitability for use or the precautions to be taken, constitutes a clandestine offense by nature; that in fact, it is necessarily a question of keeping the cocontrac both in ignorance of the reality of the characteristics of the goods; that the clandestinity is inherent in the crime, failing which, it could not be committed, nor be tempted; that deception is necessarily concealed and carried out in an occult manner; that one can moreover read in the brief of certain applicants that “the notion of concealment is at the very heart of the offense of deception”; that the clandestine character of the infringement exists independently of a succession of deliveries or of the realization of a damage; that the question of the knowledge, by the presumed author, of the defects of the thing does not concern the problem of prescription, but rather that of the culpable intention; that the legislator did not take sides, even implicitly, on the starting point of the prescription of the offense of deception; whereas this starting point cannot depend on whether, in a given case, the victims may or may not otherwise avail themselves of other non-prescribed offenses; that the offenses mentioned in this regard by the briefs have, moreover, constituent elements which do not merge with those of deception; that in any case, it cannot be taken for granted a priori that the prosecution of other offenses will be successful; that the offenses mentioned in this regard by the briefs have, moreover, constituent elements which do not merge with those of deception; that in any case, it cannot be taken for granted a priori that the prosecution of other offenses will be successful; that the offenses mentioned in this regard by the briefs have, moreover, constituent elements which do not merge with those of deception; that in any case, it cannot be taken for granted a priori that the prosecution of other offenses will be successful;

that consequently, the prescription of the offense of deception, aggravated or not, must from the day when the offense appeared or could be noted under conditions allowing the exercise of the public action; that the offense does not become for all that imprescriptible, since, as soon as the above mentioned conditions are realized, the prescription begins to run; that as regards the complaint on which the information was opened, the deception did not cease to be clandestine until the results of the brain biopsy, carried out on October 4, 1990 on Llassyl G. ..; that it is to this day that the prescription could begin to run for the facts of deception; that the offenses of deception and aggravated deception were prescribed by three years, they were therefore not prescribed when it was filed, on December 2, 1991, the complaint with constitution of civil part of the consorts G …; that there is no doubt that the connexité does not change nature the prescription attached to an offense and can not call into question a prescription already acquired; that it has, on the other hand, for consequence, that the effects of acts interruptives prescription accomplished in relation to an offense extend to related offenses; that, in the present case, the facts of homicide and unintentional injuries, on the one hand, and of deception and aggravated deception, on the other hand, undoubtedly present close relationships similar to those specially provided for by article 203 of the Code criminal procedure; that indeed, they are all related to the distribution to patients of products infected with the agent of Creuzfeldt-Jakob disease, at the same time, and to a large extent involve the same people; that these facts are therefore at least related; that the facts of deception or aggravated deception concerning the various victims are likewise interrelated; that indeed is in question the same process employed in a generalized way; that thus acts interruptives prescription were regularly accomplished, since the complaint of the family G …, followed by the opening of information on the facts of involuntary injuries and manslaughter; that it is moreover by no means claimed that these offenses are in whole or in part prescribed; that, therefore, the interruption of the prescription for these facts necessarily has the same effect for all the related facts of deception and aggravated deception; that as a result of the foregoing, the latter facts are not prescribed;

”1 °) whereas, the offense of deception, aggravated or not, is an instantaneous offense consummated by the delivery of the thing or by the provision of service; that it follows that the starting point of the limitation period of this offense begins to run on the day of delivery of the product; that in deciding, however, that the statute of limitations for the offense of deception, whether aggravated or not, had to start from the day when the offense appeared or could have been observed under conditions allowing the exercise of public action, the chamber of the instruction violated the texts referred to by means;

”2 °) whereas, if the effects of acts interrupting prescription concerning an offense extend to related offenses, the relatedness cannot call into question a prescription already acquired; that by affirming nevertheless, in order to decide that the offenses of deception and aggravated deception were not prescribed, that the effects of acts interrupting the limitation period concerning an offense extend to related offenses, the investigating chamber decided determined by ineffective reasons, since in December 1991, the date of the opening of the information on the counts of injury and manslaughter, the statute of limitations was already acquired for the offenses of deception and aggravated deception based on events between 1978 and 1986;

On the single means of cassation, proposed by the professional civil society Lyon-Caen, Fabiani and Thiriez for Jacques B …, and taken from the violation of articles 6 of the European Convention on Human Rights, 7 and 8, 203 of the Code of Criminal Procedure, L. 213-1 of the Consumer Code, 591 and 593 of the Code of Criminal Procedure, lack of reasons and lack of legal basis;

”In that the judgment under appeal said that public action concerning the facts qualified as deception and aggravated deception were not prescribed;

”On the grounds that it cannot be envisaged to apply two different limitation regimes to the offense of deception depending on the nature of the products in question; whereas the starting point of the prescription must therefore obey the same rules as deception relates to medicinal products or other products; that deception is an instantaneous offense; that this does not prevent this offense, consisting in deceiving the contracting party, by any means or any process, as to the nature, species, origin, substantial qualities, composition or content of useful principles of all goods, or on the quantity of things delivered or on their identity by the delivery of goods other than the specific thing which was the subject of the contract, or on the fitness for use, the risks inherent in the product use, the checks carried out, the instructions for use or the precautions to be taken constitute a clandestine infringement by nature; that in fact, it is necessarily a question of keeping the contractor in ignorance of the reality of the characteristics of the goods; that clandestinity is inherent in the offense, failing which it could not be committed or attempted; that deception is necessarily concealed and carried out in an occult manner; that one can moreover read in the brief of certain applicants that the notion of concealment is at the very heart of the offense of deception; that the clandestine character of the infringement exists independently of a succession of deliveries or of the realization of a damage; that the question of knowledge, by the alleged perpetrator, defects in the matter does not come under the problem of the prescription of the offense of deception; whereas this starting point cannot depend on whether, in a given case, the victims may or may not otherwise avail themselves of other non-prescribed offenses; that the offenses mentioned in this regard by the briefs have, moreover, constituent elements which do not merge with those of deception; that in any case, it cannot be taken for granted a priori that the prosecution of other offenses will be successful; that consequently, the prescription of the offense of deception, aggravated or not, must from the day when the offense appeared or could be noted under conditions allowing the exercise of the public action; that the offense does not become for all that imprescriptible since as soon as the above mentioned conditions are realized, the prescription begins to run; that with regard to the complaint on which the information was opened, the deception did not cease to be clandestine until the results of the brain biopsy carried out on October 4, 1990 on Llyassil G .. could be known. .; that it is to this day that the prescription could begin to run for the facts of deception; that the offenses of deception and deception aggravated prescribing by three years, these were therefore not prescribed when was filed December 2, 1991, the complaint with constitution of civil party of consorts G …; the deception only ceased to be clandestine when the results of the brain biopsy carried out on October 4, 1990 on Llyassil G … could be known; that it is to this day that the prescription could begin to run for the facts of deception; that the offenses of deception and deception aggravated prescribing by three years, these were therefore not prescribed when was filed December 2, 1991, the complaint with constitution of civil party of consorts G …; the deception only ceased to be clandestine when the results of the brain biopsy carried out on October 4, 1990 on Llyassil G … could be known; that it is to this day that the prescription could begin to run for the facts of deception; that the offenses of deception and deception aggravated prescribing by three years, these were therefore not prescribed when was filed December 2, 1991, the complaint with constitution of civil party consorts G …;

”And on the grounds, with regard to the connection, that there is no doubt that the connection does not change the nature of the prescription attached to an offense, and cannot call into question a prescription already acquired; that on the other hand it has the consequence that the effects of acts interruptive of prescription accomplished in relation to an offense extend to related offenses; that in the present case, the facts of homicide and unintentional injuries, on the one hand, and aggravated deception, on the other hand, undoubtedly present close relations similar to those specially provided for by article 203 of the Code of Criminal Procedure ; that in fact, they are all related to the distribution to patients of products infected with the agent of Creutzfeld-Jacob disease, at the same time, and largely involve the same people; that these facts are therefore at least related; that the facts of deception or aggravated deception concerning the various victims are likewise interrelated; that indeed is in question the same process employed in a generalized way; that thus the acts interrupting prescription intervened with the first complaint and following this one have effect with regard to the infringements concerning other victims; that acts interruptives prescription were regularly accomplished, since the complaint of the family G … followed by the opening of the information, on the facts of involuntary injuries and manslaughter; that it is moreover by no means claimed that these offenses are in whole or in part prescribed; that, therefore,

”Then, on the one hand, that by virtue of articles 7 and 8 of the Code of Criminal Procedure, public action is prescribed by three full years from the day on which the offense was committed; that the deception, instantaneous offense, carried out without consideration of its effects, is committed on the date of the delivery of the thing or the provision of service which was the occasion; in the present case, the deception could not be considered committed until the date on which the growth hormones were issued; that thus, by making the limitation period start from the day of the discovery of the deception by the victims, the Court of Appeal violated the aforementioned articles and the principle of legal certainty as enshrined in particular by Article 6 of the European Convention human rights ;

”Then, on the other hand, what are clandestine offenses by nature, offenses of which the lack of consent of the victim or the concealment of the acts of the perpetrator are a constitutive element; that, therefore, deception which does not include as a constituent element of the offense a lack of consent of the victim and whose material element, namely the contractual transaction on the occasion of which the deception is committed, no ” is never concealed, can not be considered as an occult offense by nature whose prescription would run from the knowledge by the victim of the deception, instantaneous offense for which public action is prescribed from the lie or constitutive concealment of deception;

”Then, thirdly, that by admitting that the offenses of which the concealment is not a constituent element, but is carried out with a view to preventing any knowledge of their existence, see the limitation period run from the date on which the offense could be discovered, the court of appeal which did not explain how the deception had been covered up by the person under investigation, deprived its decision of legal basis;

”Then, on the fourth part, that if the limitation period only runs from the day when the offense could be discovered under conditions allowing the exercise of public action, when the author has attempted to conceal it the existence, it is up to the trial judges to find the existence of such concealment, necessarily intentional act, to delay the starting point of the prescription; in the present case, since the desire for concealment was closely linked to the finding of knowledge of the lethal nature of growth hormone on the day it had been prescribed, the court of appeal could only note that the issue of limitation could only be resolved after it was found that the Charged Person knew, on the day when the product in question had been prescribed to patients, that it was fatal; that thus, by considering that “the question of the knowledge, by the presumed author, of the defects of the thing does not concern the problem of the prescription of the offense of deception”, whereas such knowledge was a necessary preliminary to any finding of concealment of the offense by the person under investigation, the investigating chamber once again deprived its decision of any legal basis;

”Then, finally, that in any event, the crime of deception which is committed by the determination of the will and the crime of recklessness which excludes it are two distinct offenses; that it follows that the acts of information accomplished the count of injury or homicide by imprudence can not interrupt the prescription of the public action for the facts of deception committed towards the same person or a fortiori towards another person; that, consequently, considering that the complaint of December 2, 1991 for reckless injury had interrupted the prescription for acts of deception which were not the subject of a first complaint until May 4, 2000, the court of appeal violated articles 7, 8 and 203 of the Code of Criminal Procedure;

On the single means of cassation, proposed by the professional civil society Richard for Francesco C …, and taken from the violation of articles L. 213-1 and L. 213-2 of the Consumer Code, 7, 8, 593 of the Code of Criminal Procedure, lack of reasons and lack of legal basis;

”In that the contested ordinance refused to note the prescription of public action concerning the offenses of deception and complicity in aggravated deception for which Francisco C … was indicted;

”For the reasons that the Court, seized only of the appeal of orders refusing to note the prescription of the public action, as well as of requests tending to the observation of such a prescription, does not have to pronounce, even in the alternative, on the impossibility alleged by Francisco C … to apply the incrimination of deception to the facts of the case, nor on the unenforceability advanced expertise prior, within the framework of this new prevention; that indeed, these questions are foreign with the only object of the calls of ordinance refusing to note the prescription; that the facts for which the appellants were indicted on counts of deception and aggravated deception or complicity, go until 1988 for Francisco C … as well as Françoise E … and until 1986 for the other five callers; that it cannot be envisaged to apply two different regimes of prescription to the offense of deception according to the nature of the products in question; whereas the starting point of the prescription must therefore obey the same rules as deception relates to medicinal products or to other products; that deception is an instantaneous offense; that this does not prevent this offense, consisting in deceiving the co-contracting party, by any means or any process, on the nature, species, origin, substantial qualities, composition or content of useful principles of all goods, or on the quantity of things delivered or on their identity by the delivery of goods other than the specific thing which was the subject of the contract, or on the suitability for use or the precautions to be taken, constitutes a clandestine offense by nature; that indeed, it is necessarily to keep the co-contractor in ignorance of the reality of the characteristics of the goods; that the clandestinity is inherent in the crime, failing which, it could not be committed, nor be tempted; that deception is necessarily concealed and carried out in an occult manner; that one can moreover read in the brief of certain appellants that “the notion of concealment is at the very heart of the offense of deception”; that the clandestine character of the infringement exists independently of a succession of deliveries or of the realization of a damage; that the question of the knowledge, by the presumed author, of the defects of the thing does not concern the problem of prescription, but rather that of the culpable intention; that the legislator did not take sides, even implicitly, on the starting point of the prescription of the offense of deception; whereas this starting point cannot depend on whether, in a given case, the victims may or may not otherwise avail themselves of other non-prescribed offenses; that the offenses mentioned in this regard by the briefs have, moreover, constituent elements which do not merge with those of deception; that in any case, it cannot be taken for granted a priori that the prosecution of other offenses will be successful; that the offenses mentioned in this regard by the briefs have, moreover, constituent elements which do not merge with those of deception; that in any case, it cannot be taken for granted a priori that the prosecution of other offenses will be successful; that the offenses mentioned in this regard by the briefs have, moreover, constituent elements which do not merge with those of deception; that in any case, it cannot be taken for granted a priori that the prosecution of other offenses will be successful;

that consequently, the prescription of the offense of deception, aggravated or not, must from the day when the offense appeared or could be noted under conditions allowing the exercise of the public action; that the offense does not become for all that imprescriptible, since, as soon as the above mentioned conditions are realized, the prescription begins to run; that as regards the complaint on which the information was opened, the deception did not cease to be clandestine until the results of the brain biopsy, carried out on October 4, 1990 on Llassyl G. ..; that it is to this day that the prescription could begin to run for the facts of deception; that the offenses of deception and aggravated deception were prescribed by three years, they were therefore not prescribed when it was filed, on December 2, 1991, the complaint with constitution of civil part of the consorts G …; that there is no doubt that the connexité does not change nature the prescription attached to an offense and can not call into question a prescription already acquired; that it has, on the other hand, for consequence, that the effects of acts interruptives prescription accomplished in relation to an offense extend to related offenses; that, in the present case, the facts of homicide and unintentional injuries, on the one hand, and of deception and aggravated deception, on the other hand, undoubtedly present close relationships similar to those specially provided for by article 203 of the Code criminal procedure; that indeed, they are all related to the distribution to patients of products infected with the agent of Creuzfeldt-Jakob disease, at the same time, and to a large extent involve the same people; that these facts are therefore at least related; that the facts of deception or aggravated deception concerning the various victims are likewise interrelated; that indeed is in question the same process employed in a generalized way; that thus acts interruptives prescription were regularly accomplished, since the complaint of the family G …, followed by the opening of information on the facts of involuntary injuries and manslaughter; that it is moreover by no means claimed that these offenses are in whole or in part prescribed; that, therefore, the interruption of the prescription for these facts necessarily has the same effect for all the related facts of deception and aggravated deception; that as a result of the foregoing, the latter facts are not prescribed;

”1 °) whereas, the offense of deception, aggravated or not, is an instantaneous offense consummated by the delivery of the thing or by the provision of service; that it follows that the starting point of the limitation period of this offense begins to run on the day of delivery of the product; that in deciding, however, that the statute of limitations for the offense of deception, whether aggravated or not, had to start from the day when the offense appeared or could have been observed under conditions allowing the exercise of public action, the chamber of the instruction violated the texts referred to by means;

”2 °) whereas, if the effects of acts interrupting prescription concerning an offense extend to related offenses, the relatedness cannot call into question a prescription already acquired; that by affirming nevertheless, in order to decide that the offenses of deception and aggravated deception were not prescribed, that the effects of the acts interrupting the limitation period concerning an offense extend to related offenses, without investigating whether, in December 1991 , date of the opening of the information on the counts of injuries and manslaughter, the statute of limitations was already acquired for the offenses of deception and aggravated deception, the investigating chamber did not legally justify its decision;

On the single means, proposed by the professional civil society Boré and Salve de Bruneton for Françoise D …, and taken from the violation of articles 319 old, 121-3, 121-7 and 221-6 of the Penal Code, 1 and 2 of the law of August 1, 1905, now L. 213-1 and L. 213-2, 1 °, of the Consumer Code, 7, 8, 82-3, 591 and 5 93 of the Code of Criminal Procedure;

”In that the judgment confirmed the ordinance refusing to find the prescription of public action concerning the offenses of deception and aggravated deception for which Françoise D … was indicted;

”On the grounds that, the Court, seized only of the appeal of orders refusing to note the prescription of the public action, as well as of requests tending to the establishment of such prescription, does not have to pronounce, even to subsidiary title, on the impossibility alleged by Marc A … to apply the criminalization of deception to the facts of the case nor on the unenforceability advanced expertise prior, within the framework of this new prevention; that indeed, these questions are foreign with the only object of the calls of ordinances refusing to note the prescription; that the facts for which the applicants were indicted on the counts of deception and aggravated deception or complicity go until 1988 for Francisco C … as well as Françoise D …, wife E …, and until 1986 for the other five applicants; that it cannot be envisaged to apply two different regimes of prescription to the offense of deception according to the nature of the products in question; whereas the starting point of the prescription must therefore obey the same rules as deception relates to medicinal products or to other products; that deception is an instantaneous offense; that this does not prevent this offense, consisting in deceiving the contracting party, by any means or any process, as to the nature, species, origin, substantial qualities, composition or content of useful principles of all the goods, or on the quantity of things delivered or on their identity by the delivery of goods other than the specific thing which was the subject of the contract, or on the fitness for use, the risks inherent in the use of the product, the checks carried out, the instructions for use or the precautions to be taken constitute a clandestine infringement by nature; that in fact, it is necessarily a question of keeping the contractor in ignorance of the reality of the characteristics of the goods; that the clandestinity is inherent in the crime, failing which, it could not be committed, nor be tempted; that deception is necessarily concealed and carried out in an occult manner; that one can moreover read in the brief of certain appellants that the notion of concealment is at the very heart of the offense of deception; that the clandestine character of the infringement exists independently of a succession of deliveries or of the realization of a damage; that the question of the knowledge, by the presumed author, of the defects of the thing, does not come under the problem of prescription but rather that of culpable intent; that the legislator did not take sides, even implicitly, on the starting point of the prescription of the offense of deception; whereas this starting point cannot depend on whether, in a given case, the victims may or may not otherwise avail themselves of other non-prescribed offenses; that the offenses mentioned in this regard by the briefs have, moreover, constituent elements which do not merge with those of deception; victims may or may not otherwise avail themselves of other non-prescribed offenses; that the offenses mentioned in this regard by the briefs have, moreover, constituent elements which do not merge with those of deception; victims may or may not otherwise avail themselves of other non-prescribed offenses; that the offenses mentioned in this regard by the briefs have, moreover, constituent elements which do not merge with those of deception;

that in any case, it cannot be taken for granted a priori that the prosecution of other offenses will be successful; that consequently, the prescription of the offense of deception, aggravated or not, must from the day when the offense appeared or could be noted under conditions allowing the exercise of the public action; that the offense does not become for all that imprescriptible, since as soon as the above mentioned conditions are realized, the prescription begins to run; that as regards the complaint for which the information was opened, the deception did not cease to be clandestine until the results of the brain biopsy, carried out on October 4, 1999 on Llyassil G. ..; that it is to this day that the prescription could begin to run for the facts of deception; that the offenses of deception and deception aggravated prescribing by three years, these were therefore not prescribed when was filed, December 2, 1991, the complaint with constitution of civil party of consorts G …; that there is no doubt that the connexité does not change nature the prescription attached to an offense and can not call into question a prescription already acquired; that it has, on the other hand, the consequence that the effects of acts interruptives prescription accomplished in relation to an offense extend to related offenses; that in the present case, the facts of homicide and involuntary injuries on the one hand and aggravated deception on the other hand, undoubtedly present close relationships similar to those specially provided for by article 203 of the Code of Criminal Procedure; that indeed, they are all related to the distribution to patients of products infected with the agent of Creutzfeld-Jakob disease, at the same time, and to a large extent involve the same people; that these facts are therefore at least related; that the facts of deception or aggravated deception concerning the various victims are likewise interrelated; that indeed is in question the same process employed in a generalized way; that thus the acts interrupting prescription intervened with the first complaint and following this one have effect with regard to the infringements concerning other victims; that the acts interruptives prescription were regularly accomplished, since the complaint of the family G … followed by the opening of the information, on the facts of involuntary injuries and manslaughter; that it is moreover by no means claimed that these offenses are in whole or in part prescribed; that consequently, the interruption of the prescription for these facts necessarily has the same effect for all the related facts of deception and aggravated deception; that as a result of the foregoing, the latter facts are not prescribed; whereas the orders referred should therefore be confirmed;

”1 °) whereas, the prescription of the offense of deception runs from the day of delivery of the goods; that by affirming that the prescription of the offense of deception, whether aggravated or not, must start from the day on which the offense appeared or could be observed under conditions allowing the exercise of public action and that, therefore, the statute of limitations was not acquired, at the time of the lodging of the complaint with constitution of civil part, on December 2, 1991, for the acts of deception committed from 1984 to 1988, the chamber of the instruction violated the aforementioned texts;

”2 °) whereas, the absence of revelation to the co-contracting party of the defects affecting the delivered thing could not confer on the crime of deception an occult character justifying the postponement of the starting point of the limitation period; that by affirming that clandestinity is inherent in the crime of deception since it is a question of keeping the contractor in the ignorance of the characteristics of the goods although the non-disclosure of the criminal facts by its author is specific to all the infringements and that the starting point of the limitation period cannot be subordinated to the active repentance of the latter, the investigating chamber has again violated the aforementioned texts;

”3 °) whereas, the limitation period runs from the day of the disclosure of the criminal facts if the circumstances of the commission of the offense reveal the existence of a concealment under conditions such as to postpone the starting point of the said period. ; that by affirming that the deception is necessarily concealed and carried out in an occult manner and that the question of the knowledge, by the presumed author, of the defects of the thing, does not concern the problem of the prescription but rather that of the guilty intention, while if the defects of the matter were ignored by the indictment, the circumstances of the commission of the offense could not characterize a concealment of such a nature as to justify the postponement of the starting point of the limitation period until the disclosure of the facts,

The means being united;

Whereas, to confirm the orders of the examining magistrate, the judgment retains, for the reasons given in the means, that if the deception is an instantaneous offense, it nonetheless constitutes a clandestine offense by nature, in that ” its purpose is to leave the contracting party in the dark about the real characteristics of a product and that, therefore, the limitation period begins to run from the day on which the offense appears and can be observed under conditions allowing the exercise public action; that the judges fix, in this case, the starting point of the prescription to October 4, 1990, date on which the result of medical investigations concerning Llyassil G … was communicated to his parents; whereas, noting that the three-year period was interrupted on 2 December 1991,

Whereas in the state of these reasons alone, the investigating chamber justified its decision, with regard to the legal and contractual provisions invoked;

And considering that the stop is regular in the form;

DISMISSES the appeals;

DIT there to be no need to apply, for the benefit of the association of victims of growth hormone, article 618-1 of the Code of Criminal Procedure;

Thus done and judged by the Court of Cassation, criminal chamber, and pronounced by the president on July 7th, two thousand and five;

In witness whereof, this judgment has been signed by the president, the rapporteur and the clerk of the chamber;

Publication: Criminal Bulletin 2005 N ° 206 p. 716

Contested decision: Paris Court of Appeal (investigating chamber), 2005-01-26

Case law precedents: On n ° 1: Evolution compared to: Criminal chamber, 1991-06-17, Criminal Bulletin 1991, n ° 259, p. 672 (dismissal), and the judgment cited. To be compared: Criminal Chamber, 2004-06-23, Criminal Bulletin 2004, n ° 173 (1), p. 630 (dismissal), and the cases cited. On n ° 2: In the same sense as: Criminal Chamber, 2003-05-28, Criminal Bulletin 2003, n ° 108 (1), p. 419 (dismissal), and the cases cited.

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