Health crisis: the Court of Cassation temporarily puts a stop to the hunt for the scapegoat

On January 20, the plenary assembly of the Court of Cassation – its highest formation – canceled the indictment pronounced against Agnès Buzyn by the investigating commission of the Court of Justice of the Republic (CJR), in the case of covid, on the count of endangering the lives of others. The plenary assembly of the Court of Cassation also canceled the hearings conducted in this case by one or two members of the investigating committee, when they should have been by its three members.

However, Agnès Buzyn and Edouard Philippe remain assisted witnesses for a second charge: voluntary abstention from fighting a claim. The CJR is therefore not divested, nor they out of the woods.

Moreover, if we can hope that the decision of January 20, 2023 will have an impact on the thousands of complaints that the pandemic has brought to the Paris judicial court, it is doubtful that it will be enough to thwart the very French tendency to penalize all our collective misfortunes.

For the most part, the appeals brought about Covid-19 aim to punish political, administrative and economic leaders for failing to anticipate and neutralize the scourge. For the rest, the appeals castigate the “liberticidal” impulse which would be that of a bad power, wishing to bring the population to heel, under the pretext of fighting against a virus. Laxity and health dictatorship are in turn denounced in the requests and sometimes by the same.

The remedies of the first type intend to bring justice to a new court of the Inquisition, called upon to punish these poisoners of modern times that would be the public authorities, employers and directors of nursing homes. The penal judge has thus been seized of innumerable appeals against public or private leaders who, through their culpable negligence, would have risked the lives of others. For its part, the CJR, which is responsible for judging members of the government for offenses committed in the exercise of their functions, has been seized, in the context of the health crisis, of complaints against ministers and former ministers.

In the spring of 2020, a group of several hundred doctors filed a complaint against Agnès Buzyn, Olivier Véran and Édouard Philippe, on the grounds that they ” were aware of the danger and had the means of action, which they however chose not to exercise “. An avalanche of other complaints follows. Among the approximately 200 referrals initially recorded, the CJR’s Requests Commission considers ten to be admissible. This decision is not without consequence since, on October 15, 2020, when the fight against the second wave of the pandemic requires, in the best interests of the Nation, the full availability of the Minister of Health, the instruction from the CJR sends a squad of investigators to search his home and his ministry.

On September 10, 2021, the CJR’s Investigation Commission indicted Agnès Buzyn on the count of “endangering the lives of others” (article 223-1 of the criminal code) and placed her under the status of assisted witness for “abstention from fighting a claim” (article 223-7 of the penal code). For the first offence, she faces one year in prison and a fine of 15,000 euros. For the second, two years in prison and a 30,000 euro fine.

It suffices to refer to the definition of these offenses in the penal code to be convinced that neither of the two applies to acts (or omissions to act) that can be directly attributed to Agnès Buzyn (or to Oliver Véran, or previous and current Prime Ministers) in the management of the crisis. The two articles are in fact aimed at intentional and individual behavior, characterized, for the endangerment of the life of others, by ” the manifestly deliberate breach of a particular duty of care or safety imposed by law or regulation » and, for the abstention from fighting a claim, by the voluntary refusal to take or to provoke measures commensurate with the danger incurred.

With regard to the “endangerment of the lives of others” the Court of Cassation deflated the balloon on January 20 by recalling that “the offense of endangering others can only be charged against a person if a law or regulation imposes a particular obligation of prudence or safety on him. This obligation must be objective, immediately perceptible and clearly applicable (…) However, none of the texts to which the investigating committee referred to indict the former Minister of Health provides for any particular obligation of prudence or security. »

In truth, the government’s management of the covid crisis is not a criminal matter either in terms of endangering the lives of others, or that of abstaining from fighting a disaster. The forecasting and management errors made before and during this crisis are diluted and unintentional. It is the organization and functioning of the state apparatus that are in question, not individual wills. The malfunctions are blameworthy, but they are the result of multiple, old, intertwined failures. They result from an interaction of causes of which no one has really had either control or even knowledge. These failings relate to other types of liability (administrative, political, civil) than criminal liability. They call for reforms, not trials.

By opening the floodgates on the admissibility of complaints, then by searching Olivier Véran’s home and ministry, then by indicting Agnès Buzyn, then by placing Edouard Philippe under the status of “assisted witness” (which is still the challenged), the competent bodies of the CJR (Commission of Requests and Commission of Inquiry) let the Court be exploited by the vindictiveness which seized part of the company.

The consequences of this complacency were threefold. In the immediate term, they have been quantitative: 15,000 complaints during the summer of 2021 target the Prime Minister in office and three other members of the government. In addition, society’s confidence in its state, already shaken, suffered a further deterioration. Finally, the fear of criminal sanctions risks skewing health policies in the future, whether by paralyzing public officials or pushing them to over-react.

All this is not new. In the case of contaminated blood (1999), three ministers are involved (Laurent Fabius, Georgina Dufoix and Edmond Hervé), the culpability of the latter being retained. On December 17, 2016, in the so-called “Tapie Credit Lyonnais arbitration” case, the CJR declared guilty of “negligence” a former Minister of the Economy (Christine Lagarde). On September 30, 2019, it pronounced a one-month suspended prison sentence and a fine of 5,000 euros against Jacques Urvoas, Minister of Justice, for violation of the secrecy of the investigation in an investigation targeting Thierry Solere. On March 4, 2021, a quarter of a century after the events, the CJR released Edouard Balladur, but sentenced François Léotard to two years in prison suspended and a fine of 100,000 euros in part of the Karachi case.

The severity of the Court (whose judgment formation includes a majority of parliamentarians) varies over time: in the tainted blood case, the culprit is exempted from punishment, which shocks and marks public opinion for the future. But the impact of the action of the CJR is not reduced to the final sentence: the acts of investigation and instruction, the holding of the hearing, by their moral and media repercussions, by their solemnity, by their intrusive, also by their duration, affect the life of institutions. Not to mention that of those concerned, who often come out broken from the ordeal.

The intervention of a criminal court, even a specialized one – a fortiori if it were an ordinary judge, as is thoughtlessly claimed – disregards the specific nature of the acts performed in the exercise of governmental functions, in particular those which are part of complex processes of choice of public policies likely to constitute involuntary infringements.

In these hypotheses, the criminal judge can only intervene by acting as a judge of public policies. However, it has neither the technical competence, nor the global vision, nor the democratic legitimacy. Even more: it is an obligation of result that the judge is, in these hypotheses, pushed to sanction by public opinion and pressure groups. The principle of separation of powers is thus mistreated at the expense of the higher interests of the Nation.

The force of attraction of criminal law in cases of dysfunction of the State apparatus is a French specificity. Elsewhere, the negligence of the public authorities, when they cause damage, gives rise to investigations carried out by independent (non-judicial) commissions and their work results, if dysfunctions are established, in the resignations of ministers and the payment allowances.

The phenomenon of penalization of public life, this “desire for the penal” already so strong in normal times, turns, in times of crisis, into the medieval hunt for the scapegoat. Is it the role of the judge to become the transmission belt of archaic passions?

We must welcome the decision of January 20, 2023 of the Court of Cassation, because it puts (in part at least) the kibosh on a skid in which the criminal judge allowed himself to be drawn. It will not prevent the “social demand” from continuing for a long time, in France, to demand from the judge the pillorying of leaders in the event of a disaster…