On 21 September 2001, the explosion at the AZF factory in Toulouse – owned by Grande Paroisse, a recently established subsidiary of the Total group – which left 31 people dead and more than 2,500 injured, was the worst industrial accident since the war. Given the scale of the issues to be resolved – in civil matters relating to compensation for victims, in administrative matters, and in criminal proceedings – three law firms were involved, bringing together the expertise of their 10 partners or associates (DSL, lead counsel for the defence, was joined by its team, the Monferran firm in Toulouse, with Jacques Monferran and his team, and the Boivin firm, with Jean-Pierre Boivin and his team).
The handling of compensation claims
Prior to any criminal proceedings, the most urgent matter in this case was the compensation of the victims, for which it was unthinkable to seek a judicial ruling through summary proceedings. On the joint initiative of the defence and the President of the Court, an alternative dispute resolution mechanism was established almost immediately, and a monitoring committee was set up very quickly, chaired by a judge – the future Director of Civil Affairs – and comprising the Public Prosecutor and lawyers representing victims’ associations. This was the first time such a mechanism had been put in place in France.
A consensus emerged very quickly regarding the compensation process. The aim for the company was to pay out as quickly and as effectively as possible. This resulted in a fund of approximately 2.5 billion euros, which was paid out initially during the very first few months and subsequently as claims were received. Total had delegated one of its directors to resolve on the spot any issues that arose. The Monferran law firm in Toulouse played a major role in the success of this compensation process.
On this occasion, a new category of loss was recognised in the classification system: ‘specific loss’, arising from the combination of several types of damage which, taken together, constitute a distinct and new loss.
The criminal proceedings in the case
The criminal proceedings were marred by several harmful developments.
Firstly, three days after the incident, the Public Prosecutor stated that there was a 90 or 99 per cent likelihood that it was an accident, a claim for which he had no basis. Admittedly, this incident occurred ten days after 11 September and the attacks in New York, and legitimate public order considerations prompted the government to avoid any witch-hunt that might have provoked violent reactions in certain neighbourhoods. However, these statements by the Public Prosecutor demoralised the police, preventing them from immediately taking the necessary steps to rule out, if possible, the possibility of a terrorist attack:
- Failure to carry out searches within the usual timeframe, delays in questioning certain individuals, mass questioning of workers, and heavy-handed treatment of all staff;
- 13 people were placed under formal investigation in June (one of whom had been with the company for less than three weeks), and this was accompanied by humiliating judicial supervision, to compensate for the weakness of the evidence. Twelve of them had the case against them dismissed very quickly thanks to a new investigating judge taking charge of the case.
- Decision to entrust the investigation to the Toulouse SRPJ rather than to the gendarmerie and its specialised technical services.
- The influence of the Public Prosecutor’s statements on the forensic experts. Their initial hypothesis—that the products had been confused due to a 500 kg stockpile of DCCNa (chlorine) being stored amongst tonnes of nitrate—was completely refuted during the reconstruction organised by the investigating judge in October.
- Presentation by the experts of the cause of the accident to the civil parties gathered in a vast courtroom at the Toulouse courthouse, using the explosion of a glass tube supposedly containing DCCNa and nitrate. After a year and a half, when the defence demonstrated that there was neither DCCNa nor nitrate in the infamous tube, the expert offered the excuse that an experiment had to be carried out using substances that explode rapidly so as not to bore the audience.
This case raises numerous legal and technical issues, as well as questions of common sense. The prosecution’s case is based exclusively on the experts’ twenty-fourth experiment, the previous ones having all failed. Without this ‘experiment 24’, no conviction would have been possible. In the absence of this ‘experiment 24’, the Toulouse Investigating Court had, on 1 December 2005, issued a decision to dismiss the case in its entirety
According to this new hypothesis, two days before the disaster, a worker sweeping the floor of the so-called ‘335’ storage hangar is said to have unwittingly collected 1.5 kilograms of DCCNa. He is said to have thrown the dust into a skip containing hundreds of kilograms of nitrate that had spilled out of a torn bag. Forty-eight hours later, he emptied the skip into the bay of warehouse 335 onto a floor wet with nitrate. In doing so, the DCCNa on top of the skip is said to have slid down first, spreading out and reacting on contact with the wet nitrate. Fourteen seconds later, the dry nitrate contained in the skip is said to have settled on top, forming a sort of sandwich: wet nitrate, DCCNa, dry nitrate, and eventually exploding.
However, no trace of chlorine was found during investigations on the hangar floor where it was supposed to have been swept up. No chlorine, neither upstream nor downstream.
Decision of the Toulouse Criminal Court
This lack of evidence led the Court to acquit the parish and its director of all charges. On 19 November 2009, the Court summarised the principles in its judgement: ‘Criminal law is a branch of law that is applied strictly, and this is one of the pillars of our democratic society’.
Among the innovations in the defence’s strategy, it is worth noting the weight given by the courts to the technical expertise of the defendants who, in accordance with the case law of the European Court of Human Rights, were granted certain rights comparable to those of court-appointed experts, namely the right to remain in the courtroom to hear the evidence and to discuss their oral arguments.
The defence never sought to support one theory or another, particularly that of a terrorist attack, given the absence of evidence, even though this absence was caused by the thoroughly flawed nature of the preliminary investigation. Nor did the defence put forward any other hypotheses, considering that none of the arguments it sought to make, relying on scientific evidence, constituted proof in the legal sense of the term.
The ruling of the Toulouse Court of Appeal
The Toulouse Court of Appeal, in a highly biased ruling, instead sentenced the company Grande Paroisse to a criminal fine and the factory manager to a custodial sentence. However, after the defence discovered that one of the lay judges was vice-president of a victims’ association, which was itself linked to the civil parties, it lodged a complaint with the High Council of the Judiciary against this lack of objective impartiality on the part of the Toulouse Court of Appeal. After the case was referred to it by the law firm, the CSM found, following an investigation, that the judge in question had asked the First President of the Court to be replaced, given this conflict of interest. The presiding judge of the Court’s panel also asked the First President to replace this lay judge. This request was refused.
The judgment of the Court of Cassation
In its judgment of 13 January 2015, the Court of Cassation quashed the judgment of the Toulouse Court of Appeal of 24 September 2012 on the grounds of a breach of the principle of objective impartiality and set aside its provisions in their entirety. It referred the case back to the Paris Court of Appeal.
The judgment of the Paris Court of Appeal
On 31 October 2017, the Paris Court of Appeal imposed a fine on Grande Paroisse and a light, suspended sentence on its director. The Court of Appeal held that the experts’ scenario (“Experiment 24”) may not have reflected reality but was an example of what might have occurred.
The second judgment of the Court of Cassation
On 17 December 2019, the Court of Cassation dismissed the appeal against the judgment of the Paris Court of Appeal.
The European Court of Human Rights
The defence lodged an application with the ECHR against the decision handed down by the Paris Court of Appeal following the dismissal of the appeal. This appeal concerns the failure to recognise the principle of certainty of the case required by case law and strictly applied by the court in its acquittal judgement. The ECHR, to which this case has been referred, may bring the matter to a close or reopen the case at national level in order to review the conviction.
The crux of the matter, as the court reaffirmed in its judgement, is that criminal law is to be applied strictly and ‘this is one of the pillars of our democratic society’. Despite the disregard for this principle by the Courts of Appeal of Toulouse and Paris, this landmark ruling will stand.