Often Cour de cassation varies.
Some of its reversals are historic and even foundational for the law.
They prove its flexibility of interpretation and to say the right.
As a commentary on its now famous Halimi judgment, the high court never ceases to invoke both the deficiency of the law, and the strict interpretation of criminal law which would prohibit it from inventing law where the legislator does not. did not.
Whether on purpose or by forgetting.
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In matters of criminal irresponsibility, the Court of Cassation has not always had this kind of modesty. Thus in a so-called “unpublished” judgment of February 13, 2018, the Supreme Judicial Court ruled much differently than in the Halimi case. The case is similar since it concerns a man who stabbed his partner under the effect of narcotics and who invokes his penal irresponsibility, namely article 122-1 of the Penal Code, affirming that in this capacity he should not have been referred to the Hauts-de-Seine Assize Court for premeditated murder. The case is all the more complex since, moreover, the individual is recognized as suffering from "a psychic fragility in the register of persecution".
However, the very brief judgment of the Criminal Chamber rejects his appeal, recalling in particular "that the judges evoke (...) the significant consumption of narcotics, which should not be analyzed as a cause of abolition of discernment but rather contrary as an aggravating circumstance ”.
An argument which already appears in the conclusions of the rapporteur of the case who affirms "
that the significant consumption of narcotics, underlined by all the experts, having caused his mental state on June 28, 2015 should not be analyzed as a cause of abolition of discernment but on the contrary as an aggravating circumstance, the consumption of cannabis by N .... C ... having been voluntary
”.
Read also: The Halimi case puts criminal irresponsibility back at the heart of the legislative debate
The right of the Court of Assizes is also recognized to “
assess the possible guilt, reclassify the facts and ask, if necessary, the special question of criminal irresponsibility, notwithstanding the qualifications retained in the judgment of reference, which is devoid the authority of res judicata, the investigating chamber confining itself to ordering a referral to the Assize Court
”
.
No general scope
However, during the examination, this judgment is swept aside with the back of the hand by Advocate General Sandrine Zientara who has spared no effort since her conclusions have 85 tight pages. All on the grounds that this judgment of February 13, 2018 would only be a specific judgment without general application: “
The debate relates to the state in which the person concerned was at the time of the action, which clearly constitutes a question of fact, left to the judgment of the trial judges and not on a question of principle relating to the effect of the previous fault on liability. Consequently, it cannot be avoided from this judgment, unpublished, that the chamber would have validated a principle of general application according to which a voluntary consumption of narcotic, even in the event of abolition of discernment,constitutes a cause of criminal irresponsibility
".
The Halimi judgment came close to being no more than a case in point.
If it is not this clarification at the end of the judgment, recalling that “
in fact, the provisions of article 122-1, paragraph 1, of the Penal Code, do not distinguish according to the origin of the mental disorder that led to the 'abolition of this discernment
'.
This shows on the one hand how fine the line is between the motivations of the Court of Cassation and above all on the other hand that the Supreme Court has much more latitude than it claims.
