Touvier Case

Date27 novembre 1992
CourtCourt of Cassation (France)
France, Court of Appeal of Paris (First Chamber of Accusation).
Court of Cassation (Criminal Chamber).

(Henne, President; Chagny and Dupertuys, Judges; Chambeyron, Advocate General)

(Le Gunehec, President; Zambeaux Rapporteur; Robert, Advocate General)


Relationship of international law and municipal law Crimes against international law Punishment of crimes against humanity by municipal courts Principle of non-applicability of statutory limitation of prosecution Principle of ne his in idem Scope of principle Previous conviction for maintaining contacts with the enemy Whether preventing subsequent prosecution for crimes against humanity arising from the same facts

War and armed conflict Crimes against humanity Definition London Charter of International Military Tribunal, 1945, Article 6(c) Relationship with Article 6, final paragraph, of Charter Participation in common plan of extermination or persecution Whether constituting essential condition for commission of crime against humanity Whether any requirement that plan must be executed by State systematically practising a policy of ideological supremacy Whether wartime collaboration of Vichy French State with Nazi Germany involving adoption and practice of such policy Requirement that crimes must have been committed in the interests of one of the European Axis countries Crime perpetrated by officer in French Militia in Vichy France at instigation of officer in Gestapo Whether constituting crime against humanity

War and armed conflict Non-hostile relations between belligerents Armistice French Vichy State Nature of collaboration with Nazi Germany Whether involving adoption of systematic policy of ideological supremacy pursued by Nazis Whether agents of Vichy State punishable for commission of crimes against humanity The law of France

Summary: The facts:1Paul Touvier was a high-ranking officer in the Militia (Milice) of Lyons, which operated in Vichy France during the wartime German occupation. At the end of the war he disappeared and a warrant was issued for his arrest. He was tried in absentia for maintaining contact with an enemy power and sentenced to death by two judgments of the French courts of 10 September 1946 and 5 March 1947. He was arrested in Paris in July 1947 but escaped a few days later in mysterious circumstances. Although his precise whereabouts were unknown he sought, through intermediaries, to obtain an amnesty and in 1971 was granted a pardon by the French President.

Subsequently however, in 1973 and 1974, new proceedings were instituted against Touvier on the basis of the French Law of 26 December 1964 which

declared that crimes against humanity were not subject to statutory limitation of prosecution. Warrants were issued for Touvier's arrest and he was eventually discovered in May 1989 in a Catholic Priory in Nice. Proceedings were brought against him on eleven charges of crimes against humanity, relating to the murder, detention, torture and deportation of various persons in the Lyons region during 1943 and 1944. On six of the charges the Examining Magistrate ruled that there was no case to answer because the evidence was insufficient to provide a basis for prosecution. On appeal to the Court of Appeal of Paris, this finding of the Examining Magistrate was confirmed. On four further charges the Examining Magistrate ruled that there was a case to answer but his decision was quashed on the ground that the evidence was inadequate

There was one remaining charge, that Touvier gave instructions for, and thereby became an accomplice in, the shooting of seven Jews at Rillieux on 29 June 1944 as a reprisal for the assassination by members of the Resistance, on the previous day, of the Minister for Propaganda of the Vichy Government. Touvier argued that this charge should also be dismissed on the grounds that:

(1) While he did not deny having participated in the affair, his role had been very limited and he had merely ceded to the inevitable. He maintained that the German authorities had actually sought a much larger number of executions but, by his personal intervention, he had secured a reduction to seven and had then given the orders for that number to be selected, without participating in that selection or the shootings;

(2) His renewed prosecution was prohibited because the present charges were necessarily included in the previous proceedings which had resulted in his conviction, by reason of the generality of the earlier charges and the penalty imposed;

(3) He had not acted in execution of a decision taken by the German authorities, but at his own initiative. Accordingly, he could not be regarded as having acted as an agent of the German State or of one of its criminal organizations and could not therefore be convicted of crimes against humanity.

Held (by the Court of Appeal of Paris):There was sufficient evidence to bring proceedings against Touvier for having participated, as an accomplice, in the murders at Rillieux in June 1944. But that crime could not be categorized as a crime against humanity within the meaning of Article 6, paragraph (c) and final paragraph, of the Charter of the Nuremberg International Tribunal. Consequently, the ordinary rules of statutory limitation of prosecution applied and further proceedings in respect of the acts charged were now time-barred.

(1) It was not the testimony collected against Touvier but his own statements which provided a basis for the charges against him. It was credible that he had played a limited role in the affair but the instructions which he had given were sufficient to establish his complicity in murder (pp. 3467).

(2) If the allegations relating to the Rillieux massacre could be considered as crimes against humanity, new prosecutions would be possible, even if the facts charged had already been the subject of an earlier criminal conviction for maintaining contact with the enemy. Renewed prosecution was permissible where, as here, the requisite elements of the two crimes were not the same (as the Court of Cassation had already established in a judgment of 6 February 1975) and the new categorization of the same facts protected different general or individual interests (p. 348).

(3) The definition of crimes against humanity had been elaborated by the Court of Cassation in a series of judgments rendered between 1975 and 1988,2 on the basis of the definition contained in Article 6 of the Charter of the Nuremberg International Military Tribunal, which had been incorporated into French law by the Law of 28 December 1964. There were two aspects to crimes against humanitythe substantive element and the element of specific intention. With regard to the substantive element, crimes against humanity were basically those crimes under the ordinary law which were listed in Article 6 of the Charter. It was clear that complicity in murder was covered by Article 6. In the present case the substantive element was unquestionably established. However, when it came to the element of intention, simple criminal intent or general illegality were insufficient (pp. 3502).

(4) The specific intent necessary to establish a crime against humanity was the intention to take part in the execution of a common plan by committing, in a systematic manner, inhuman acts or persecutions in the name of a State practising a policy of ideological supremacy. It was therefore necessary to decide whether or not the Vichy State, which Touvier claimed to have served, was a State practising such a policy. That was not the case. The Vichy policy of collaboration with Nazi Germany was essentially pragmatic. Despite adopting anti-Semitic measures, the regime never proclaimed that the Jew was the enemy of the State. The Militia evidently had Nazi sympathies and its leaders sought to seize control of the Vichy State but they did not succeed in their aim of transforming it from an authoritarian into a totalitarian State. Consequently, to the extent that Touvier's actions were linked to his role within the Militia, a crime against humanity could not be established since that body was merely one of the component forces within the Vichy State which could not, without a falsification of history, be described as having practised a policy of ideological supremacy (pp. 3525).

(5) There was no evidence to contradict Touvier's claim that he had acted independently. It could not be accepted that he had acted in execution of a decision taken by the German authorities, even if the intentions with which he credited the Germans played a role in his behaviour and in the decisions which he admitted having taken. Everything suggested that the massacre had been an improvised criminal reaction, rather than part of a coldly executed systematic plan of extermination (pp. 3556).

The decision of the Court of Appeal led to a controversywhich prompted leading members of the judiciary to appeal for calm,3 The Procureur GnralENR

and the numerous civil parties to the proceedings appealed in cassation against the judgment

Held (by the Court of Cassation):The appeal was allowed. The judgment of the Court of Appeal of Paris regarding the Rillieux massacre was quashed and the case remitted to the Court of Appeal of Versailles for re-examination.

The judgment of the Court of Appeal contained the statements of Touvier who, without denying his participation in the decision to execute the hostages, had consistently stated that the decision in question had been taken in concert with the Regional Head of the Militia in Lyons, following a meeting with the Head of the local Gestapo, whose intention had been to carry out massive reprisals against the Jewish population. According to Article 6 of the Charter of the Nuremberg International Tribunal, the perpetrators of, or accomplices in, crimes against humanity were punishable if they had acted in the interests of one of the European Axis countries. It was impossible to conclude that the murders had not constituted crimes...

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