French doctors face second trial

Jean-Pierre Allain, who was jailed in France for authorising the distribution of blood products contaminated by HIV, was released from prison this week after serving half of his two year sentence. He will, however, not be able to return to his post as professor of transfusion medicine at Cambridge University because he is not allowed to leave France. Along with Dr Michel Garetta, former director of the National Blood Transfusion Centre, he was charged last week with poisoning. The possibility of a second trial for the same act has unleashed a controversy that may involve other former health officials and politicians and reach the European Court of Human Rights.

Last year Dr Garetta and his assistant, Dr Allain, were found guilty of “deception over the quality of a product” for having allowed the distribution of blood and blood products contaminated by HIV. They had been tried by a tribunal which usually handles minor offences, and Dr Garetta was sentenced to four years’ imprisonment while Dr Allain was given a two year suspended sentence. The Paris Court of Appeals, in upholding the sentence, ruled that it would be possible to prosecute both men on more serious charges of poisoning.

Such prosecution is now under way following complaints lodged by the French haemophilic patients’ association and individual patients who developed HIV infection after being given contaminated blood. Prosecutors charge both men with being aware that the distribution of contaminated blood and blood products would lead to the death of a number of patients and thus having deliberately caused death.

Odile Bartella-Geffroy, a Parisian judge, accused Dr Garetta and Dr Allain of poisoning at the time that both men asked for a remission of their sentences - as any person serving less than five years’ imprisonment is entitled to do.

Dr Garetta's and Dr Allain's lawyers have protested that a second trial for an act for which a person has already been tried and condemned is illegal and said that they would fight the decision in the European Court of Human Rights.

French law allows a second trial because deceit and poisoning are not the same acts in legal terms. Andre Decocq, professor of law at the University of Paris, points out that while it is true that a person cannot be judged twice for the “same act,” the sameness of the act is not automatically determined. “Dr Garetta was first prosecuted for authorising the distribution of contaminated blood products,” he said. “He is now accused of poisoning because he is charged, in addition, with having been conscious that these products could cause the death of a certain number of individuals.”

If the trial takes place it will be before the assize court, a criminal court that can hand out more severe sentences than a tribunal. It may involve other doctors and government officials. Francois Morette, one of Dr Garetta's lawyers, said that since the case has been reopened he intends to bring charges against over 100 people who allegedly share the responsibility for the contamination.

In addition charges will be heard before the high court of justice against three people who were ministers in the mid-1980s, when the contamination took place: Laurent Fabius, then prime minister and now a leader of the Socialist party and a potential candidate in next year's presidential elections; Georgina Dufoix, then minister of social affairs; and Edmond Herve, then deputy health minister. New reforms allow private citizens, and not only parliament, to bring charges against ministers.

The European court states that a person cannot be tried twice for the same act. But the European court can intervene only after the trial and appeal that exhaust a person's possibilities for recourse in his or her own country.