Tribune. Like the emigrants of the Ancien Régime, the magistrates of the Court of Justice of the Republic (CJR) did not “Learned nothing and they forgot everything”. More than twenty years after the contaminated blood affair, they have just indicted Agnès Buzyn, Minister of Health from May 2017 to February 2020, for “Endangering the life of others” because of the role it played in managing the Covid-19 epidemic. They therefore consider that his alleged failure to anticipate or his possible incompetence fall under criminal liability.
Here we find the explosive cocktail of the tragedy of contaminated blood: a major health problem and bereaved families who, encouraged by their lawyers, seek to impute, through criminal proceedings, the responsibility for their suffering to governments and public decision-makers. In one case as in the other, the magistrates of the investigating committee of the CJR followed suit, by counting on the questionable elasticity of the criminal law and on the possibility which is offered to them to reclassify the facts penally.
By adopting here an incrimination defined in a way as vague as “endangering the life of others”, the magistrates fall into a retroactive reading of the facts, quick to condemn ministerial decisions yet taken in a period of maximum scientific uncertainty. as to the extent and the dangerousness of Covid-19.
The minister’s freedom of action, constrained by the shortage of masks, and the political context, marked by the desire of the vast majority of political leaders to maintain the municipal elections of March 2020, will probably be underestimated. The investigation, eminently complex in such a case, will be further slowed down by the existence of parallel procedures arising from complaints relating to the same facts but filed before the ordinary courts, because they target public decision-makers who are not “Members of the government”, for which only the CJR is competent (article 68-1 of the Constitution).
The rest of the story is, however, written. Unable to resist the pressure of public opinion which demands that it be held accountable, the investigating committee will seize the trial court. It will then be up to three magistrates from the Court of Cassation and twelve parliamentarians to try to determine whether there has indeed been, on the part of the minister, a deliberate violation of a rule of prudence or safety.
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