Extract
[...] In a judgment of the Criminal Chamber of the Court of Cassation of March No. 98-82.813, it recalls that "in application of the rule non bis in idem, a single material fact cannot give rise to distinct prosecutions" but that acts of needles planted in the sex and tearing out of teeth constitute acts of torture and barbarity aggravating the penalty for sequestration. This jurisprudential application makes it possible to qualify facts relating to a single action, in this case the act of detaining someone and inflicting degrading treatment on them, under the same criminal qualification while not obscuring the dehumanizing character of the facts. [...]
[...] 93-82.010, only refers to acts of barbarity. Indeed, according to constant jurisprudence, for example, see the judgment of the Accusation Chamber of the Lyon Court of Appeal of January acts of barbarity refer to inhuman and degrading treatment, leading to the negation of the victim's humanity. This dimension of treatment denying human dignity is completely obscured by the Court of Cassation's judgment, which only refers to acute suffering through Article 10 of the New York Convention of 1984. Even though certain facts of the case derive their particular gravity not from the physical violence they inspire, but from the fact that they deny all human dignity to the victim. [...]
[...] The judgment sanctions the passivity of those who knew, saw, but did not intervene to put an end to the victim's ordeal. The prevention of the offense and the penalty incurred by the person considered as co-author of the offense are therefore heavier than if they had simply been referred for non-denunciation of a crime or offense, an offense provided for and punished by Article 434-1 of the Penal Code. It is the particular gravity of the facts that motivates the Court of Cassation to retain this approach, it uses the word: 'horror' to describe the scene, and sanctions the alleged passivity of one of the co-authors who merely observed the sequestration and torture without taking part. [...]
[...] Therefore, the fact of retaining this aggravating circumstance will lead to unfortunate consequences for the person who, as in the case at hand, had knowledge and passively assisted in the sequestration. The fate of the passive sequestrant in the face of the aggravating circumstance The judgment of the Court of Cassation of June reaffirmed the legal principle that all authors of the main offense are concerned by the aggravating circumstance. In this case, certain authors of the offense participated in the offense without torturing the victim, the Court held that the circumstance that accompanied the sequestration is a purely material circumstance that is linked to the fact itself, therefore, once the aggravating circumstance is established, it applies to all co-authors of an offense, and those who have personally or not participated in the acts of torture and barbarity. [...]
[...] Torture is an accessory to seizure. This double prevention, which may seem strange at first glance, responds to the problem of Ne Bis Idem in law. Indeed, a single fact cannot be judged under two different criminal qualifications. The particularity of acts of torture and barbarity is that the facts incriminated under this name can most often be classified under another. It is the moral element of the offense, that is to say, the will to suppress the human dignity of the victim, which makes it possible to qualify facts as torture and acts of barbarity. [...]
