No trial for the Halimi affair: "We are in the process of judicial creation", considers Alain Bauer

On Europe 1, the professor of criminology Alain Bauer returned to the decision of the Court of Cassation, which found the criminal irresponsibility of Kobili Traoré, the murderer of Sarah Halimi.

“Until now, drug abuse has been an aggravating circumstance, and it has become a mitigating circumstance,” he notes.

ANALYSIS

Ten days after the decision, the latter continues to divide.

By confirming the impossibility of bringing the murderer of Sarah Halimi to justice, given the abolition of her discernment at the time of the facts, the Court of Cassation drew strong criticism, in the Jewish community and beyond, and provoked important debates on the links between psychiatric disorders on the background of drug use and criminal responsibility.

Invited on Saturday from Europe 1, criminologist Alain Bauer deciphers the scope of such a decision under French law.

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ANALYSIS -

 Criminal liability: what the law provides

For Alain Bauer, there were two important debates leading up to the Court's decision. The first, on the abolition of discernment. "Historically, article 122-1 of the Penal Code provides that when you are mad, you are not responsible for what you do. But we have made a distinction between pure abolition and alteration of discernment, by saying that 'alteration is in between and that we can still be responsible, "he recalls. In the case of Kobili Traoré, who had killed the Jewish sexagenarian in 2017 in Paris, six experts during the investigation had concluded that discernment was abolished, when the seventh suggested that he retain the alteration of this discernment. Ultimately, "the trial courts considered that there was abolition", still recalls Alain Bauer.

"We are in judicial activism" 

But for the criminologist, the court's decision stands out from similar decisions taken in the past.

"What is interesting is that the reasons for the alteration or abolition are the abuse of narcotics which, until now, was an aggravating circumstance, and which has become a mitigating circumstance", analyzes- he does.

The whole, continues Alain Bauer, "with an extremely new and somewhat curious legal construction, on the theme: 'Of course, he used a lot of narcotics, but he could not have known that it would have an effect which would lead to a delusional impulse' . " 

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"There, I think we are in what is called judicial creation, judicial activism," concludes Alain Bauer. "And that perhaps the Court of Cassation allowed itself to go very far in its argument, which could have been limited to maintaining the abolition."