Alain Alçufrom is vice-president of the judicial tribunal of Paris.
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While the Senate has adopted a bill to reform penal irresponsibility, it seems useful with hindsight and on an individual basis to come back to the “Halimi judgment” of April 14, 2021 (1).
In short, the Court considers that criminal irresponsibility cannot be ruled out on account of a previous fault due to the taking of toxic substances.
Dura Lex
?
She explains in fact that the judge cannot make a distinction as to the cause of the disorder, because the law does not do so.
It is based on two guiding principles of criminal law: intentionality (no one can be held responsible for a crime without the intention to commit it) and the strict interpretation of criminal law.
The requisitions of the Advocate General, followed by the Court, consider that there could be no other decision.
However, this analysis would undoubtedly have been different if the perpetrator had used cannabis with the intention of giving himself courage to commit an offense or to escape his responsibility. In this case, in fact, the perpetrator's criminal intention would have preceded his taking of toxic substances.
The present judgment mentions that according to the investigating chamber, "
no element of the information file indicates that the consumption of cannabis by the person concerned was carried out with the awareness that this use of narcotics could lead to such an event"
(psychic disorders). He therefore suggests that if the individual had simply consumed cannabis knowing that it could result in a delusional puff, not necessarily the commission of an offense, his judgment might not have been considered abolished.
Relying on the case law of the judgment of April 14, 2021, the perpetrator of a rape could invoke with expertise in support the impairment of his discernment resulting from his state of intoxication, and claim a lesser penalty. .
Alain Alçufrom
In addition, the Criminal Chamber, on February 12, 2002 (2) considered that the state of drunkenness was not a cause of exemption from liability, dismissing an appeal which criticized the Court of Appeal for not having drawn the charges. consequences of the abolition of the discernment of the author of the acts of rebellion committed in a state of drunkenness, when the rebellion requires a deliberate intention. The Court concluded in the same direction in a judgment of September 2, 2014 (3) concerning acts of violence committed in a state of intoxication. The Court of Appeal noted that "
manifest drunkenness does not constitute a cause of penal irresponsibility or reduction of penal responsibility but on the contrary an aggravating circumstance".
In a judgment of February 13, 2018 (4), the criminal chamber of the Court of Cassation, to reject the appeal lodged by the defendant referred to the Assize Court for attempted murder on his partner, used the wording of the investigating chamber: "
the judges evoke (...) the significant consumption of narcotics, which should not be analyzed as a cause of abolition of discernment but on the contrary as an aggravating circumstance
".
These judgments therefore seem to consider that the judge can validly restrict the scope of the law, whereas the law does not. This was not the meaning of the decision adopted in the present judgment. Nor that at a minimum, while certainly pushing back the walls of classic case law, to consider the reclassification of these facts of crime in fact of manslaughter on the basis of a “
praeter -intentional” offense,
that is, an offense where the result exceeds the desired goal. In this regard, the Court, in a judgment dated 22 June 2016 (5), validated the decision of the Montpellier Court of Appeal, saying that there was no need to requalify the facts of manslaughter aggravated by the drunkenness, violence leading to death without intention of giving it, while the author was in a state of "
comatose unconsciousness"
because of his blood alcohol level.
Finally, relying on the case law of the judgment of April 14, 2021, the perpetrator of a rape could invoke with expertise in support the impairment of his discernment resulting from his state of intoxication, and claim a hardly less.
However, the state of intoxication is precisely an aggravating circumstance in the event of rape, which justifies a more severe penalty.
Isn't that contradictory?
An elephant in the courtroom
This comment, coming from a magistrate of first instance, is not intended to shed more light on legal technique than that retained by the Court. The adequacy between criminal responsibility and the principle of intentionality is delicate and the present judgment applies the law perfectly. The monthly letter of the Criminal Chamber of the Court of Cassation invites its readers with reinforcement of pedagogy to subscribe in the direction of the decision of April 14, presented as unavoidable. However in conscience, I cannot subscribe to it because the aforementioned elements suggest that another decision was possible.
This judgment favors an interpretation of the law to the detriment of its potentially heavy impact on victims.
However, the virtue of a good decision is to be understood by people of good faith.
Alain Alçufrom
There is in English an expression "
An elephant in the room
" which designates an important and obvious subject.
It is usually associated with a delicate problem or risk, which anyone can see exists, but which no one mentions.
VS
nobody knows in fact that the state of intoxication or the consumption of narcotic products are likely to modify the behavior. It is even generally for this that they are consumed. Their voluntary taking, therefore except in the case where the discretion of the interested party has been previously abolished, includes the risk of committing an offense in a modified state of consciousness and characterizes a deliberate action. It is therefore difficult to accept that these toxins generate a total penal de-accountability when they lead to the abolition of discernment. In fact, it is paradoxical in the event of willful intoxication to retain criminal responsibility for acts of driving while intoxicated or under the influence of narcotics and drugs.dismiss for the most serious acts such as murder or assassination.
The Advocate General has de facto dismissed any responsibility of the Court as to the human consequences of the decision for the family of the victim, considering that
"it is only for the legislator to lay down a principle of systematic exclusion
of the victim
. penal irresponsibility when the abolition of discernment is caused by the voluntary consumption of toxic substances. "
This judgment has given rise to a number of emotional reactions because it certainly raises the question of criminal irresponsibility in the event of the consumption of toxic substances, but also and perhaps above all because it favors an interpretation of the law to the detriment of its potentially heavy impact. on the victims.
However, the virtue of a good decision is to be understood by people of good faith.
That is why, out of respect for opposing opinions and for the values of the judicial institution, I wanted to make this other voice heard.
1 (No. 20-80.135);
2 (No. 01-84,046);
3 (No. 3-84,787);
4 (No. 17-86,952);
5 (N ° 15-81.725)
