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Paris, Monday, April 29, 2019
CONTRIBUTION (17) TO THE NATIONAL
DEBATE WISHED BY THE PRESIDENT OF THE REPUBLIC IN 2019.
COMPENSATION (30) AND TRIAL PENAL,
MEDIATOR (Continuation of the reflection n ° 16 of 8 April 2019,
see: madic50)
1) - The facts
The case known as the Picks is amazing.
Its professional development shows that
times have changed but that the judicial logics have remained the
same.
They crack, malfunction, hinder, but do
not reform.
This judicial case contains all the
ingredients of a useful reform and yet the public authorities stop at
its threshold.
a- On the one hand, it implements all
the sequences of this reform,
b- On the other hand, it stages all the
elements that lead each of these sequences to failure.
As a lawyer says, it is the judicial
logic that is involved.
I will begin by explaining this logic
produced by the official authorities during the so-called "Médiator"
affair.
2) - Judicial logic
1- The trial
On September 23, 2019 will be held the
trial called the Picks.
The Servier laboratory, called
"Servier", is sent back to correctional services for
"deception on the risks of the product", "fraud"
and "homicide and unintentional injuries". The Agence du
médicament is also on the dock.
2- The compensation
However, even before the trial, Servier
decides to compensate the victims. In 2019, the company will have
paid 115 million euros of compensation to 3600 patients of the Picks.
3- The legal rule
This disjunction is framed by a legal
device.
On 11 May 2011, the Council of
Ministers approved the creation of a public fund to compensate
victims of the Mediator and its generics. This scheme was introduced
in the context of the draft amended Finance Law for 2011 and entered
into force no later than 1 September 2011.
4- The nodal point
This case therefore involves a right to
independent compensation for the criminal proceedings.
3) - The goodwill
This disjunction of the criminal and
the indemnity does not, however, result from the possible
independence of the second with regard to the first.
It comes in the circumstances of the
government's response to what the lawyer Charles Joseph-Oudin calls
"a fierce fight that was conducted to bring out the truth."
And that the authorities probably conceive as a political
mobilization disturbing the order public.
The compensation is then the fact of
the Prince. It is exorbitant of common law.
It can not argue any reason to justify
its presence and its right since the company was not sentenced. She
was not found guilty,
Its foundation is therefore charity.
Its implementation is apparent from the use of the discretionary
power of the state and the goodwill of the company concerned.
Its operation leaves the judicial area
to be entrusted to an independent body (the ONIAM) which negotiates
with the company alleged innocent compensation for a fault for which
it is may be paid.
The only legal actions are those
involving compensation by the State and those organizing a contract
between the company and the plaintiffs at the end of which the latter
withdraw their complaint by receiving money.
In this case, the compensation is the
payment of the withdrawal of the complaint and not the compensation
for fraud.
4) - The change
However, times have changed. France can
no longer live under the principle of the exceptional regime; the
fact of the Prince and the goodwill of the company.
What until now was a means of
delegating to independent administrations and targeted or even faulty
companies the mastery of judicial clashes, is a change of perception
on the part of the victims.
1- The "congruous portion".
Commenting on the announcement of the
compensation of 116 million, Georges-Alexandre Imbert, president of
the Association for Assistance to Victims of Drug Accidents said: "It
was time that those who have suffered in their flesh damage affect a
decent compensation! With us, it was until now the parcel.
2- The "fierce fight"
A lawyer for the plaintiffs says on
this subject:
a- "At first, they were reluctant
to pay compensation. "
b- "If things have improved, it is
only thanks to a fierce fight that was conducted to bring out the
truth. "
This "hard fight" is what is
commonly called a mass and durable political struggle.
From now on, the separation of the
criminal and the indemnity is no longer just a management convenience
for the benefit of the administration and the companies involved.
It became the program of victims who
politicized themselves in this way and in masses.
5) - The protective reference
1- Decency
The Mediator's affair is at the
crossroads of these different conflicts between this "congruous
portion" that appears as a past that is no longer accepted and
this "decent compensation" that presents itself as
modernity that validates judicial action.
We move from submission to "the
parcel" to the requirement of "decent compensation".
This "decency" is so new, so
improbable, that it consolidates the possibility by the absolute
reference of modernity that is still the United States.
2- America
American jurisprudence, or at least its
legend, becomes the horizon of public reflection:
a: "In the United States,
manufacturers were sentenced to pay hundreds of millions of euros to
people whose health had been degraded by drugs of the class of
statins, but in France the victims have nothing . Hope this case will
be a turning point. "
b- "In the United States,
manufacturers were sentenced to pay hundreds of millions of euros to
people whose health had been degraded by drugs of the class of
statins, but in France the victims have nothing . Hope this case will
be a turning point. "
c- Recall, however, that in the United
States a victim may receive only $ 200 for having his life ransacked
by a legal person or the state. Everything is in the tricks of his
legal situation.
6) - The blocked future
This reference to American
jurisprudence does not come by chance from a utopian claim.
It takes the usual codes of American
avant-gardism. What is American is constitutive of legality because
it is the inescapable future.
This identity reference signals a
future at the same time as it blocks a consideration in it by
enclosing it in an impossible replication.
7) - The two operations of the
imaginary
This imaginary responds to two separate
but related operations.
1- The victims want to return in their
expenses.
a- Until now, the French justice is
censitaire. For more than half of the population, filing a complaint
is beyond their financial means.
b- The first claim of the litigants who
consider themselves in their good right is the gratuity of their
step.
c. The detour by the partially real
imaginary of American society makes it possible to answer this
question without confrontations between the partisans of the
censitary justice and the partisans of the universal justice; like
Social Security.
Let us not forget that the real
evolution of justice goes in the direction of the censitaire since
lawyers have been able to say that the Taubira law of 2014 is a step
in the privatization of the justice and that this one is in
conformity with the European directives .
2- The place of money in the criminal
process is changing.
a- By its magnitude, the American
reference of the compensation makes of this one the equivalence of
the penal judgment proper.
What does it matter to the dying man
that his executioners do not go to prison since his children will be
millionaires?
b- The French nowadays think that it is
not unseemly that a person victim of a fraud has a capital and his
income by a court decision.
8) - The reform
1- The need
The reports of the criminal and the
indemnity are now not only public but political affairs.
Compensation can no longer continue to
be a pre-trial arrangement or a comet tail in a lawsuit.
Nor can it continue to be the shameful
part of the judicial process or its "parcel".
2- The method
The reform of the compensation must
answer the questions raised by the exercise of the current device.
It must be elaborated on the basis of
acquired knowledge, contradictions, constant back and forth,
jurisprudence.
It is then possible to determine some
principles that allow the compensation to be fully effective and to
stabilize its criminal relations.
9) - Some principles of compensation
Examining the so-called "Médiator"
case by the positive aspects of its conduct, we see that it installs
certain principles of a good use of compensation:
1- The distinction between the criminal
and the indemnity
The case of the Mediator shows that
when it comes to masses or important facts, compensation can no
longer be placed at the end of the trial. It becomes him prior.
Compensation becomes a separate
judicial practice from that of the criminal and begins as soon as the
facts are before the courts.
a- It is the logic that creates the
decision of the Council of Ministers of May 11, 2011. That of the
Public Fund intended to compensate the victims of the Mediator and
its generics.
b- The challenged company adheres to
the principle of this disjunction as of 2011.
Servier, 2019, "As of 2011, we
have made a commitment to compensate victims without waiting for the
outcome of legal proceedings. "
2- The right to "decency"
"Decent" compensation is now
considered a right by litigants.
This right to decency is recognized by
the company:
Their message boils down to this
sentence, "The Mediator has resulted in some patients serious
side effects for which compensation and compensation are needed. The
Servier group lives this drama with gravity, respect and compassion
for patients and their loved ones. "(SERVIER press release).
3- The principle of awarding
compensation
The official device states:
"A- that the compensation concerns
anyone who took the Picks and a pathology related to this drug (that
is to say only the heart valves and pulmonary arterial hypertension)
should be compensated
b- that the doubt should benefit the
victim. "
4- The new logic
The State defines there the crucial
principle of compensable fault and the compensating legal person.
a- Indiscriminately and whatever else
it is done; any person who has signs recognized as being related to a
source is compensable by that source.
b- It is sufficient to establish that
the source causes twists of such types so that all those who present
these types are compensated by the source.
It does not matter
a- the legal relationship of this
person to this source. It can be legally wrong and be compensable.
b- the eventual acquittal of this
source at the trial. The trial can acquit the mis en cause, it
remains nonetheless that the fraud and its link to the source could
be found and duly compensated.
5- The State and its administrations
This is not obvious. Indeed, this
device runs up against the current practice linking the compensation
to the demonstration of a fault.
Currently, compensation is conceived as
the result of the trial and not its accompaniment.
This divergence in judicial logic will
cause clashes in the operation of the legal device:
Contrary to the principle enacted by
the State, the victim is summoned to justify the origin of the signs
identical to those of the source which it presents. They might not
come from it.
a- "It is certain that for reasons
that should be highlighted and determined, the panel of experts does
not respect the rules set during the development of the Compensation
Fund for which associations, as the AVIM had agreed. "
b- For Dr DM COURTOIS "the rules
of the game are changed during the game" that is to say that the
criteria for awarding compensation, defined during meetings of the
Monitoring Committee of Victims of the Mediator , at the Ministry of
Health and in the presence of the Minister of the time, Mr. Xavier
BERTRAND, are totally questioned.
c- Now the experts of this college ask,
for example, to prove that:
you have not had severe angina during
childhood
you have not taken medication to treat
migraine
you had no valvular involvement at the
time of the first prescription of Picks.
that your valvular pathology leads to a
functional deficit
Experts are also advancing the age test
to eliminate cases of victims over 65 years old ... "
6- State and companies
For the same reason of confusion of
fault and compensation, the State subordinate compensation to the
goodwill of the company involved.
The company first tried "the
parcel". It does not consider that it should compensate at a
high rate. She gives in to the "fierce fight" of the
victims. In the circumstances, she feels she has to make a
spectacular gesture.
a- The civil parties do not return that
they do not take them for crooks and that one compensates them
"decently".
b- Next time, for another company, it
will be different.
7- The decision-making body of
compensation associated with the penal can only be justice.
a- The mis en cause and the independent
administrative bodies, can not replace it.
b- Compensation can not be done by the
Prince or the goodwill of companies and other civil actors.
c. Placing justice in a position of
recourse to civil and administrative decisions creates discrimination
between the civil parties according to their social qualities.
It is justice that must determine who
is compensable and who must bring the parties to define the terms.
8- The decision of indemnification goes
out of any relation with the facts retained for the penal. It is
established only in the definition of fraud and its technical origin.
This is the definition adopted by the
Compensation Fund set up by the Ministry of Health with the
collaboration of the Associations:
"A- Anyone who has taken the Picks
and has a pathology related to this medicine (ie only heart valves
and pulmonary arterial hypertension) should be able to be compensated
"B- Doubt must benefit the victim.
"
All persons who have consumed the Picks
and who have the corresponding symptoms are compensable.
The plurality of possibilities of
infection are erased in favor of the rule.
9- The compensation can not be
predatory frank of the Public Treasury or spolisher net of the
finances of the company.
Compensation is usually conceived of as
theft of the offending company or the Treasury.
It may seem good justice that the fault
ruins the enterprise.
a- In practice this leads to endless
procedures as well as the inequality of victims in the face of
compensation and the courts.
It is absurd to confuse the tribunals
with the divine justice of the last judgment; since in the end it is
that which is sought.
c- Moreover, the crimes of a company do
not justify their disappearance alone. Otherwise, it would make some
of the most important and competent ones.
d- The Tribunal may find her incapable
of continuing to practice in such field, for example by withdrawing
her license. This is another thing.
The spoliation of the State is
obviously a brake on "decency" and the number of
Compensation
.
The refusal of confrontation and the
practice of collaboration allow compensation to be "decent"
without necessarily a "hard fight".
It also allows the State to use
compensation to repair a disturbance to public order caused by
itself, for example in the excessive consequence of legal action; cf.
Theo Lusaka case). This without the officials necessarily being
implicated or that the victims have to justify their actions.
10) - Conclusion
Such a reform of compensation would
enable it to become a full legal instrument in criminal cases.
Compensation can also be emancipated
from the criminal law and be a means of managing the senior civil
servants by the State and the European Commission.
Marc SALOMONE
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