Contenu du sommaire : Juger les fous ?

While potentially unclear to persons non-specialized in mental pathology, the forensic reasoning of a psychiatric expert witness should be consistently rooted in elements allowing an assessment of the specific nature of the interaction between the possible degree of mental illness of a perpetrator and the role that the observed pathology may have played in the commission of this offense. It is the analysis of this specific interaction that makes it possible to determine whether there is an absence or a deterioration of discernment. The question of the criminal liability of perpetrators using psychoactive substances has become increasingly pressing in expert debates. This question can be divided into four distinct issues, three of which are medical, and one of which involves legal and societal debates, which fall outside the purview of the psychiatric expert witness. The addition of a question posed to the psychiatric expert witness, directly inquiring into the author's role in the emergence of the psychiatric symptoms causing the alteration of discernment and leading to the events, could make it possible to make progress toward determining an appropriate adjustment of the penal response to these subjects.

On April 14, 2021, in its ruling in the Halimi case, the Criminal Chamber of the Court of Cassation declared that a drug addict driven by anti-Semitic prejudices who threw his victim out of a window in a bouffée délirante (transient psychotic state) was not responsible for his actions. The judgment settled a long-standing debate, treating the agent's antecedent default with indifference in light of the abolition of discernment. The reasoning that led to this controversial decision is to be found not so much in the ruling itself, but in the abundance of literature that accompanied it.

It would seem that there could be n° greater incomprehension than when public opinion demands that psychiatry bend to its moral imperatives. Certainly, we do not hold the mentally ill criminally responsible for their actions, but who is it that really decides? The Sarah Halimi case puts its finger on a little-discussed question: the role and function of judges. While the experience of the Assize Court only confirms the growing power of security-focused demands, it seems obvious that the determination of responsibility cannot be reduced to an exclusively medical approach. The law determines the general contours in such cases, but it is ultimately part of the role and responsibility of judges.

The debates around the Kobili Traoré case testify to a tendency to evaluate people with psychiatric disorders responsible by the law, over more than half a century. We will describe this trend from expert psychiatrists. We will show that their treatment of the use drugs in acute psychiatric desorders follows the same course. In the past, the evaluation of the psychiatric state during the crime was more important, and drug use was often considered part of the pathological process. Nowadays, experts separate the use of the pathology, to support the responsibility of the accused despite his mental disorders.

Should article 122-1 of the French penal code be amended to enact penal irresponsibility for mentally ill criminals? The working group created by the Ministry of Justice replied negatively to this question, fearing an excessive penalization of "criminal insanity". On the other hand, it did recommend certain procedural improvements, such as bringing expert assessments up to date during hearings called to rule on criminal irresponsibility. It also advocated for the strengthening of security measures upon discharge from any compulsory hospitalization that may be ordered by the court. Lastly, it called for a deep reform of the psychiatric expert assessment process.

The expression "juger les fous" (to judge the insane) though dramatic, is nevertheless somewhat unclear. It certainly has the immense merit of reminding us of some of the foundational principles of modern law and bringing us face to face with them. There can be n° law without "responsibility," or at least accountability. The law attends to its respondent. But while free will may be subject to measure, it can hardly account for freedom in a given situation, or for the use of freedom not only in a given situation but through the situation, which gives it body, text, context, and puts it in a frame of reference. Far from being the same as free will, this is a personified freedom, with all the ambiguities and ambivalence this personified aspect implies. Is it not in that very sense that the expression "to judge the insane" sheds n° light on the vague, difficult areas where a human freedom struggles within the contexts and determinations - even the determinisms - that make up its story, at the risk of determining it out of existence? Should we not oppose to this the act of judgment as a task of elucidation, instructed by the explanatory sciences, which each time reenacts the comprehension of a responsibility or irresponsibility?

The Special Criminal Court was established as part of a policy intended to fight economic crime in general, and specifically to fight the misappropriation of public assets. With this in mind, the Cameroonian legislator sought to ensure that cases brought before the Criminal Court would be judged within a maximum of six (6) months. But the legislator's ambition nevertheless came up against the requirements of the inter partes model of justice adopted in Cameroonian criminal proceedings, the principles of which inevitably lead to judicial delays. Beyond this difficulty, it is also necessary to take into account the maneuvers of the parties, who themselves may intend to impede the trial. Finally, only rarely are the judgments of the Special Criminal Court rendered within the prescribed time limit.

Although prevalent in the United States for several decades, and to a lesser extent in Europe, the study of judicial behavior through the prism of cognitive biases remains almost non-existent in France. However, such an approach has made it possible to observe the systematic occurrence of irrationalities in judicial decision making while at the same time providing avenues for dealing with them. Consequently, the purpose of this work is to provide an overview of the cognitive biases influence on the decision-making process of judges through studies of international literature.

Despite ambitions expressed for three decades, even today the makeup of the teams accompanying judges and prosecutors remains confused and uncertain. At a time when the hiring of hundreds of contract workers intended to support judges, prosecutors, and clerks in the courts has been announced, an in-depth reflection on the duties and expectations for each of these workers is necessary so as to provide a lasting response to the human and budgetary challenges the judiciary now faces.

A questionnaire survey of judges in charge of family cases, supported by an interview survey of judges, provides an opportunity to find out what judges think about child support guidelines. Although the use of the guidelines is frequent, judges remain critical, opposing its usefulness to the preservation of their discretion. Their criticisms and suggestions for improvement testify to their lack of knowledge of the explanatory document initially associated with the guidelines, which was distributed independently of the guidelines. The use of guidelines does not seem to be related to the existence of claims of an unusual amount or to on the principle under which the parties delimit the scope of the case : few judges set child support outside the range of supply and demand, even when these amounts are below the amount recommended by the guidelines.