Prof. David Smadja is professor of hematology at the University of Paris, member of the hematology service at the Georges-Pompidou European Hospital, in Paris, responsible for the “Sarcodo” study on Covid-19.
Me Benjamin Fellous is a lawyer at the Paris bar.
“France is going through an unprecedented health crisis that it is now able to cope with thanks to the vaccines against Covid-19 available, free and accessible to the entire population. From the health pass to the debate on the vaccine pass, the legislator is agitated while the current state of law would surely make it possible to better protect, to better convince and even more to make the fellow citizen who refuses the vaccine realize the risk incurred.
As of May 6, 2019, the Council of State validated the decree aimed at making compulsory for young children the passage from 3 to 11 compulsory vaccines. This decree, which was co-signed by the former Minister of Health Agnès Buzyn, was not annulled by the Council of State. Indeed, the Council of State, highest administrative jurisdiction, considered that a compulsory vaccination constitutes an interference with the physical integrity and the private life which: "can be admitted if it is justified by considerations of health public and proportionate to the objective pursued. There must therefore be a sufficiently favorable relationship between, on the one hand, the constraint and the risk presented by the vaccination for each person vaccinated and, on the other hand, the benefit which is expected from it both for this individual and for the community in its whole,including those of its members who cannot be vaccinated due to a medical contraindication, taking into account both the seriousness of the disease, its more or less contagious nature, the effectiveness of the vaccine and the risks or side effects it may have
(…).
The legislative provisions criticized have placed a restriction on the right to respect for private life justified by the objective pursued by improving vaccination coverage in order, in particular, to reach the threshold necessary for group immunity for the benefit of all patients. population, and proportionate to that purpose. "
This clear judgment of the Council of State should open a peaceful and measured path towards compulsory vaccination against Covid-19. Indeed, it is undeniable that we are facing a major public health issue whose center of gravity is a virus with significant contagiousness and a seriousness that can lead to death. In addition, the scientific evidence and recommendations on the efficacy of the vaccine, both in the massive reduction in the risk of transmission from a vaccinated subject to another individual and in the drastic reduction of serious forms of Covid- 19. The figures are relentless: more than 80% of patients in intensive care are not vaccinated. In addition, the extremely rare undesirable side effects are far outweighed by the beneficial and positive effects of vaccines which reduce transmission,severity, resuscitation and mortality.
In any case, there should be a latent criminal risk to be placed on a person who knowingly refuses to be vaccinated and who transmits the Covid-19 virus. If the criminal machine was set in motion against Agnès Buzyn around, in particular, what constituted a barrier to the virus, namely the masks, from now on the criminal law must and should apply against those who would transmit the virus even though they could prevent it through vaccination.
If a minister is a citizen like any other, a citizen should not be treated any differently from a minister. Why, for example, not consider that the offense of administering a harmful substance would not be made against an unvaccinated, aware of the seriousness of the virus and capable of being vaccinated, who would then contaminate a person who would contract Covid-19 through his fault and who would die or have a long Covid? The criminal courts have also extended the constitution of the said offense to the HIV virus for carriers who in full consciousness have had unprotected sex and having infected their partner.
While it would indeed be easy to consider Covid-19 as a harmful substance, it seems obvious that a debate would crystallize around the administration of the SARS-CoV2 virus from one individual to another on a voluntary basis. In this regard, the two possible avenues would pass either through an interpretation by the judges in favor of broadening the scope of the offense and of the intentional element, or through a possible amendment of the criminal law. In any case, intentional non-vaccination could be equated with an active awareness of increasing the risks of transmission from the unvaccinated individual to a third individual.
To those who would argue that a vaccinated person can nevertheless transmit the virus, which is true even if the probabilities are much lower, the active vaccination approach is that of the establishment of a vaccine barrier, like a condom that would be put on but would crack during intercourse and lead to the transmission of the HIV virus. In this case, the infringement would not have to be established, since everything will have been done to avoid contamination.
In any event, if the Court of Justice of the Republic considered the indictment of Ms Buzyn on the basis of endangering the lives of others by a harsh and strict interpretation of the rule of law, why not not also consider the constitution of the said offense of endangerment or manslaughter against an unvaccinated person who transmits the virus?
What is certain is that the penal arsenal, well brought up, could certainly have a more persuasive weight against those resistant to vaccination.
Moreover, these criminal offenses could be the counterpart of a vaccination obligation which, if not respected, could see a criminal translation in the event of contamination of a third party via the characterization of a criminal offense.
Once again, the non-existence of the vaccination obligation does not allow the offense of endangering the life of others to be considered because there is currently no particular obligation to be vaccinated. In addition, as it stands, it is difficult to pose a criminal risk to disinformers and other makers of fake news of all kinds of Covid-19 who have an active role in the chain of causalities leading to non-vaccination. and potentially death. In addition, a balanced and measured implementation of the criminal law would make it possible to intelligently seek the responsibility of distributors of perlimpinpin powder or false vaccination pass then complicit, for example, in a possible endangering of the life of others. .
By reading these lines some will cry out for all repression, for a sanitary coup d'état.
However, the same do not think about all of these deprogramming of hospital care due to unvaccinated people who, in particular, occupy beds and mobilize hospital staff!
The hospital has a duty to care for everyone and this principle, beyond being normal, is the pride of our French healthcare system.
It must persist even if it is endangered by the influx of unvaccinated in intensive care in recent months.
Admittedly, the vaccine pass strengthens the cordon sanitaire but one can wonder about its binding force, that is to say binding on the die-hards who call for some to create a parallel society of unvaccinated people.
We must simply say that in this "health war" described by our President, the vaccination obligation and the penal weapon would make it possible to pose a criminal risk on the one who transmits the death even more than to "piss him off" in it. 'preventing going to the cinema or to a restaurant.
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