Professor David Smadja is professor of hematology at the University of Paris, member of the hematology department of the European Georges-Pompidou 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 which it is now able to face 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 state of the current 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 it compulsory for young children to go from 3 to 11 compulsory vaccines. This decree, which had been co-signed by the former Minister of Health Agnès Buzyn, was not canceled by the Council of State. Indeed, the Council of State, the highest administrative jurisdiction, considered that compulsory vaccination constitutes an interference with physical integrity and private life which: “may be accepted if it is justified by health considerations public and proportionate to the objective pursued. There must thus exist a sufficiently favorable relationship between, on the one hand, the constraint and the risk presented by vaccination for each vaccinated person and, on the other hand, the benefit which is expected both for this individual and for the community in its entirety, including those of its members who cannot be vaccinated due to a medical contraindication, taking into account the seriousness of the disease, its more or less contagious nature, the effectiveness of the vaccine and the risks or adverse effects it may present (…). The legislative provisions criticized have placed a restriction on the right to respect for private life justified by the pursued objective of improving vaccination coverage in order, in particular, to reach the threshold necessary for herd immunity for the benefit of the whole of population, and proportionate to that purpose. »
This clear judgment of the Council of State should open a peaceful and measured way 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 terms of the massive reduction in the risk of transmission from a vaccinated subject to another individual and with regard to the drastic reduction in the serious forms of Covid- 19. The figures are implacable: more than 80% of patients in intensive care are not vaccinated. In addition, the rare undesirable side effects are largely exceeded by the beneficial and positive effects of vaccines, which reduce transmission, severity, intensive care visits and mortality.
In any event, there should be a latent criminal risk to be imposed on a person who knowingly refuses to be vaccinated and who transmits the Covid-19 virus. If the penal 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 avoid it through vaccination.
If a minister is a citizen like any other, a citizen should not be treated differently from a minister. Why, for example, not consider that the offense of administering a harmful substance would not be constituted against a non-vaccinated person, aware of the seriousness of the virus and able to be vaccinated, who would then contaminate a person who would contract Covid-19 through their 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 carrier individuals who in full awareness have had unprotected sexual intercourse and having contaminated their partner.
While it would indeed be easy to consider Covid-19 to be a harmful substance, it seems obvious that a debate would crystallize around the voluntary administration of the SARS-CoV2 virus from one individual to another. In this respect, the two conceivable paths would pass either through an interpretation by the judges in favor of broadening the scope of the offense and the intentional element, or through a possible amendment of the criminal law. In any case, intentional non-vaccination could be put into equation 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 setting up a vaccine barrier, like a condom which would be put on but which would break during sexual intercourse and would lead to the transmission of the HIV virus. In this case, the offense would not have to be constituted, since everything will have been done to avoid contamination.
In any case, 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 so-called offense of endangerment or even manslaughter against a non-vaccinated person who would transmit the virus?
What is certain is that the penal arsenal, well managed, 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 make it possible to consider the offense of endangering the life of others because there is currently no particular obligation to be vaccinated. In addition, as it stands, it is difficult to impose a criminal risk on disinformators and other manufacturers of fake news of all kinds about Covid-19 who have an active role in the chain of causalities leading to non-vaccination. and potentially death. In addition, a weighted and measured implementation of the criminal law would make it possible to intelligently seek the responsibility of the distributors of the powder of perlimpinpin or fake vaccination pass then accomplice, for example, of a possible endangerment of the life of others .
Reading these lines, some will cry out for repression, for a health coup. However, the same people do not think either of all these deprogrammings of care in the hospital because of non-vaccinated 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 non-vaccinated people in intensive care in recent months.
Admittedly, the vaccination pass reinforces the sanitary cordon but one can wonder about its binding force, that is to say binding on the diehards who call for some to create a parallel society of unvaccinated.
We simply have to say that in this “sanitary war” described by our President, the obligation to vaccinate and the criminal weapon would make it possible to pose a criminal risk to the person who transmits death even more than to “annoy him” in the process. preventing you from going to the cinema or to a restaurant. »
