Will the man suspected of stabbing a Sentinelle force soldier on Monday, July 15 in Paris be declared criminally irresponsible? In 2018, in another case concerning him, the courts answered this question in the affirmative. After fatally stabbing a 22-year-old man at the Châtelet-Les Halles RER station in Paris, he was not tried. A decision taken on the basis of Article 122-1 of the Penal Code, which states that “a person who, at the time of the events, was suffering from a mental or neuropsychiatric disorder which had abolished his or her discernment or control over his or her actions is not criminally liable”.
“The principle is that we don’t judge the crazy”summarized in 2021 Didier Rebut, professor of law at the University of Paris 2 Panthéon-Assas and specialist in criminal law. This explains why a defendant whose discernment is abolished at the time of the facts cannot be convicted; if he is only “altered”a reduced sentence may be imposed. To decide, magistrates consult medical opinions, but they always have the last word. Franceinfo looks back at the steps that allow them to decide.
An initial medical examination is carried out during police custody.
During police custody, “We systematically offer the person a medical examination’assures Valérie Dervieux, magistrate of the Paris Court of Appeal and regional delegate of the Unité magistrates union. The purpose of this interview is to verify that the suspect’s state of health is compatible with police custody. If this is not the case, for physical or psychological reasons, hospitalization may be required, and police custody may be suspended or lifted. It was lifted on Tuesday in the case of the suspect at the Gare de l’Est, “for the purposes of care at the psychiatric infirmary of the police headquarters”according to the Paris prosecutor’s office.
The examination carried out during police custody is not intended to rule on potential criminal irresponsibility. “He only has to determine whether there is a need for care, it should not be a question of expertise in the end.”explains psychiatrist David Michel, former president of the French Federation of Psychiatry. He specifies that the interview, “rather short”can be achieved “by any psychiatrist on call at the hospital.”
Depending on the result, the public prosecutor may request a psychiatric examination which will provide initial information on criminal irresponsibility. Since this is one of the grounds for dismissal, he may choose not to prosecute at this stage of the procedure. He then transfers the information to the prefect, who can make decisions regarding the suspect’s psychiatric care. However, this only applies to misdemeanours: for felonies, an investigating judge is automatically notified.
An expert assessment is being conducted to assess the suspect’s state of discernment.
If an investigation is opened, the examination report carried out in police custody may prove valuable for the rest of the procedure. For example, in the case of the knife attack at Gare de l’Est, the suspect is being prosecuted for “attempted murder”. However, for crimes, the investigating judge systematically entrusts an expert assessment to a psychiatrist, who will determine whether the responsibility of the accused was reduced or abolished when the acts were committed. But “the delay between the act and that of our expertise poses a real technical difficulty”concedes David Michel.
This is where the custody medical examination comes into play. “As it was made just after the fact, it could prove very useful.”assures Joëlle Palma, psychiatric expert at the Nîmes (Gard) Court of Appeal. This is not, however, the only document on which she relies “to detect a potential pathology” : “If the person is hospitalized, we can also ask the magistrate to seize the medical file”she adds.
On the other hand, if the accused is placed in detention During the investigation, it was impossible to access information from the medical team looking after him in prison. “She is bound by medical confidentiality, which does not make our task any easier.”explains David Michel. In this case, the psychiatrist must rely on what the suspect says to establish his level of discernment at the time of the events. Psychiatric history, medical monitoring, taking medication, drugs… “We can’t always verify all this.”sighs Joëlle Palma.
“The expertise is more difficult when you don’t have access to the file: you have to rely solely on what people say.”
Joëlle Palma, psychiatrist expert with the justice systemto franceinfo
The investigating judge may also request the opinion of several psychiatrists, depending on the complexity of the case: “There may be an initial assessment, a counter-assessment, a supplement, a counter-counter-assessment…”explains magistrate Valérie Dervieux. During these interviews, which last “at least one hour” According to David Michel, the psychiatrist does not seek so much to diagnose a mental pathology as to determine whether the act corresponds to “a moment of decompensation, of acute crisis”The correlation between mental illness and the abolition of discernment is therefore not systematic. “A schizophrenic who is completely stable, who is taking his treatment well, and who commits a crime, is responsible for his actions”recalls Joëlle Palma.
The investigating judge decides whether to drop the charges or hold a trial
Once the expert appraisal has been carried out, the investigating judge has several options. If the charges are sufficient and he considers that the person is criminally responsible, he can refer him to the competent court depending on the offence: the assizes for felonies and the criminal court for misdemeanours.
On the other hand, if he considers, based on the expert reports, that discernment was abolished at the time of the act, he can issue an order of criminal irresponsibility on grounds of mental disorder, which specifies “that there are sufficient grounds to establish that the person concerned committed the acts with which he is charged”details the Code of Criminal Procedure. This is then an order of dismissal. The accused and any civil parties may appeal. Such an order is a “very rare case”underlines magistrate Valérie Dervieux, because the investigating magistrate often prefers to refer the matter directly to the investigating chamber.
This is the third scenario: the chamber must then decide “during a hearing whether the person is criminally responsible or not”explains Valérie Dervieux. In the case where she claims that discernment was abolished at the time of the act, the magistrates issue a decision declaring irresponsibility due to mental disorder. This declaration may be accompanied by security measures, but also by an order for compulsory hospitalization.
A fourth option has been opened to the investigating judge since a 2022 reform: that of the intermediate form. In the event of a contradiction between the expert reports, the investigating judge refers the case to the competent court (criminal court or assize court) which must rule solely on this point, in camera. If it considers that the person is criminally responsible, then the trial takes place, but the debate on the discernment of the accused is not closed: the magistrates must rule on this subject during the trial.
Counter-expertise may be requested, particularly at the assizes
Before the trial, the various parties may request additional expert reports, whether for misdemeanors (in correctional courts) or for crimes (before a criminal court). Nevertheless, “Counter-expertise is extremely rare in the case of crimes, except for highly publicized cases”underlines Benjamin Marty, magistrate at the judicial court of Chalon-sur-Saône (Saône-et-Loire), who deplores “the current shortage of available experts”.
It is therefore common today for magistrates in a criminal court to have a single expert report to make their decision. “In theory, we don’t have to go in his direction, but in reality, it almost never happens.”assures Benjamin Marty.
“If a psychiatrist considered that the defendant’s discernment was abolished, I will not contradict him, he is more competent than me on the matter.”
Benjamin Marty, magistratto franceinfo
On the other hand, in criminal matters, it is common for several expert reports to be ordered to assess the discernment of the accused. The debates can be more lively. “What is particularly problematic is when some people say ‘alteration’ and others ‘abolition'”explains psychiatrist David Michel. The stakes are high: if discernment is only “altered”the accused is found criminally responsible, which opens the way to a conviction, although reduced.
To decide, the jurors can count on the presence of expert psychiatrists, who speak during the trial. “We take our report, we try to explain it, we popularize the complicated medical terms”testifies Joëlle Palma. “The purpose of the expert’s appearance is also to be able to ask him questions to explore a point that may have been glossed over in the report.”specifies magistrate Benjamin Marty. At the end of the trial, the jury renders its verdict: if it sides with the abolition of discernment, the accused is declared criminally irresponsible and is not convicted. He may be subject to compulsory hospitalization measures.