French law – Who is a ‘victim’?

Series of French Court of cassation’s judgments in 2022 on the status of ‘victim’

In the general acceptation, a “victim” means a person entitled to compensation for personal injury suffered as a result of a harmful event for which a third party is liable. However, whether or not a person has the status and the rights of a victim sometimes gives rise to legal debate. 2022 brought us a number of decisions by the French Court of Cassation on the determination and definition of the quality of ‘victims’, going in the direction of a broadening of this notion.

First, three judgments of the Criminal Chamber of the Court of Cassation of 15 February 2022[1] clarified the status of victim who can bring a civil claim for damages within criminal proceedings. In all three cases, the persons claiming victim status were persons involved, temporally, in terrorist attacks, but who had not, according to the Court of Appeal, been directly exposed to the risk of death or injury caused by the harmful event (the terrorist act), the said Court considering them as ‘witnesses’ of the attacks, not as victims:

• A man who chased the truck that burst onto the Promenade des Anglais in Nice in July 2016 to try to neutralise the driver, and subsequently developed severe psychological trauma.
• A woman who had heard gunshots and screams (during the same attack) and, believing she was a target, had jumped onto the beach, injuring her head.
• A woman who intervened during the fatal terrorist attack on two people in Marseille in 2017, trying to stop the offender, and who suffered from psychological trauma.

The Court of Cassation quashed the three decisions of the Court of Appeal, in its three above-mentioned judgments, on the basis of Articles 2, 3 and 87 of the Code of Criminal Procedure, from which it implied, in a recital of principle included in the three judgments, that “for a civil action to be admissible before the criminal court, “it is sufficient that the circumstances on which it is based enable the investigating judge to accept as possible the existence of the alleged damage and its direct relationship with an offence under criminal law“.

The Court then considered that, in each of those cases, the action that the person had taken to interrupt the commission of the offence or to prevent the recurrence of serious intentional harm to persons, to which he had exposed himself, was inseparable from those offences, so that the damage which may result for this action may be directly related to the offenses.

The second set of decisions comes from the Second Civil Chamber of the Court of Cassation, on 27 October 2022. These cases concerned claims for compensation submitted to the Guarantee Fund for Victims of Acts of Terrorism and Other Offences (FGTI) by persons whom the Fund had refused to recognise as ‘victims’, and therefore as persons entitled to compensation.

Three decisions[2] on that date recognise the right to compensation of victims by ricochet, relatives of direct victims of the terrorist attack in Vincennes in January 2015 who had survived. The Fund had argued that the only persons entitled to compensation were family members of deceased direct victims. The Court of Cassation rejects this position on the grounds that “compensation for the personal loss of the victim’s relatives in accordance with the rules of common law is not excluded when the direct victim of an act of terrorism has survived”.

Interestingly, within these judgments, the Court refers to its Mixed Chamber’s judgment of 25 March 2022, which we had commented on here, relating to the recognition of the autonomous nature of the ‘waiting and worrying’ head of loss for the relatives of the direct victim of a terrorist act, including in the event of his/her survival.

Note, by contrast, the fourth judgment of 27 October 2022[3], which rejects the claim for compensation made by persons considered this time as ‘witnesses‘ of an act of terrorism and not as  ‘victims’, on the grounds  that “the fact that a person was in the vicinity of the scene of an attack and witnessed it is not enough, in itself, to confer on him the status of victim‘, considering that, in the facts of the present case, the persons in question had at no time been directly exposed to a danger of death or bodily harm, not having been in the path of the terrorist’s vehicle, which had ended its course more than 400 metres away from them.

If the principle is understandable and obviously acceptable, it is less clear where the border is, in terms of proximity to the event, which would make it possible to say with certainty who is a victim and who is ‘only’ a witness, because in this case the Claimants did suffer bodily injury (of a psychological nature).

These clarifications of the concept of ‘victim’ are welcome and are generally in favour of victims, but it also appears that the appreciation of the status of ‘witness’ or ‘victim’ is eminently a question of fact, and that the distinction between the two remains, at least in some cases, blurred, as seen in the last judgment.

[1] Court of Cassation, Criminal Chamber, 15 February 2022, 21-80.264

Court of Cassation, Criminal Chamber, 15 February 2022, 21-80.265

Court of Cassation, Criminal Chamber, 15 February 2022, 21-80.670

[2] Court of Cassation, Civil Chamber 2, 27 October 2022, 21-24.424

Court of Cassation, Civil Chamber 2, 27 October 2022, 21-24.425

Court of Cassation, Civil Chamber 2, 27 October 2022, 21-24.426

[3] Court of Cassation, Civil Chamber 2, 27 October 2022, 21-13.134