Célia Izoard, “The health pass is an extrajudicial way to socially deactivate people,” Reporterre, September 25, 2021

TRANSLATED by Dennis Riches

ORIGINAL: Célia Izoard, « Le passe sanitaire est un moyen extrajudiciaire de désactiver socialement les gens », Reporterre, September 25, 2021/09/25

According to law professor Guillaume Zambrano, the health pass is an infringement of fundamental rights as well as an extrajudicial sanction. He is a lecturer in private law at the University of Nîmes. Faced with the law imposing the health pass, he has launched a collective application to the European Court of Human Rights.

In what way does the health pass infringe fundamental rights?

Being excluded from public transport, hospitals, cafés, restaurants, libraries, sports and cultural associations and other places of assembly is an extremely heavy deprivation of freedom: it is a deprivation of the right of assembly, of the freedom to come and go, a real exclusion from social life. The most serious thing is that it is an extrajudicial sanction. Since the XVIIᵉ century and the English Bill of Rights intended to limit the arbitrariness of sovereigns, our legal tradition has been based on the principle of habeas corpus: anyone deprived of liberty has the right to go before a judge. In fact, when a person is placed under house arrest or sentenced to wear an electronic bracelet, the measure must be approved by a judge (juge des libertés et de la détention). When people are convicted of crimes such as theft, tax fraud, assault and battery, they have had the right to a trial. And generally, the goal is social reintegration: even for serious offenses, there are a suspended sentences and shortened sentences. But with the health pass, a whole category of people receive a maximum penal sanction without having been judged, without even having been able to defend themselves.

What justifies this sanction? Not being able (or not wanting) to present a QR code at the entrance to public places, not being vaccinated or tested. What people are accused of is being potentially contagious. This is all the more serious because it is very rare in law to be convicted for an offence of omission. The rule is to be convicted for doing something, not for not doing something. There is the offence of non-assistance to a person in danger (article 223-6 of the Penal Code), but its conditions are very restrictive and convictions are rare. There is also case law for people who knowingly infected other people with AIDS, but judges have retained the intentional aspect: not only did they know they were ill and did not take precautions, but they declared that they wanted to infect other people, which is what motivated the conviction [1].

Does the health pass—an extrajudicial sanction in your opinion—represent a shift?

The “passe sanitaire” is not part of the ordinary framework of criminal law. It gives rise to unprecedented social sanctions that are a mixture of deprivation of liberty, stigmatization and incitement to public humiliation. It is an extrajudicial way of socially deactivating people, of pulling the plug, as it were. And it is no longer the judges, but the people themselves—the cafe owners, the librarians, the museum guards or the hospital employees—who apply the punishment. This indicates that the government has moved to a logic of massive repression: since it cannot put a judge behind every citizen, it relies on the population and on automated means to do so. This is an anti-liberal revolution. The only possible comparison is that of social credit in China, a form of re-education with carrots and sticks: one is forbidden to take the train, to access such and such a job, to go to the cinema…

Doesn’t the Covid-19 pandemic justify exceptional exceptions to the law?

For two centuries, France has established freedom as a fundamental, natural, inalienable principle: restrictions are exceptions that must be strictly justified and proportional. In the context of proportionality reasoning, measures that infringe on fundamental freedoms must meet three conditions. First, the “fitness” test: is the measure fit to achieve the stated objective? Can the health pass and the vaccination obligation effectively fight the epidemic? This is debatable, since vaccines do not necessarily prevent contagion. Then, the “necessity” test: will there be a very large number of deaths if the government does not implement this measure? Probably not, this is not the case in countries that do not use the health pass like Sweden or the United Kingdom. Finally, the “substitution” test: are there alternative and less restrictive measures that would help fight the effects of the epidemic? Yes: the government could open resuscitation beds, create field hospitals, vaccinate the most at-risk people and volunteers, and frequently test caregivers, which would be more effective in this case than mandatory vaccination. The health pass and the vaccination obligation are therefore disproportionate and excessive measures in relation to the nature of the danger and their capacity to respond to it.

Is the vaccination obligation of health care providers, or the quasi-obligation of vaccination imposed by the health pass, contrary to the law?

The most fundamental of fundamental rights is the respect for human dignity, of which free and informed consent to medical acts is a manifestation. In principle, infringements of the integrity of the human body are never permitted, except in special circumstances and if and only if they are justified by a medical interest for the individual [2]. Last April, the European judges issued a ruling justifying the mandatory vaccination of children against tetanus (Vavřička ruling, 21/04/08): it is noted that, on the one hand, the benefit/risk balance is positive for children, because tetanus is dangerous for them, and on the other hand, the history of this vaccine allows us to know its effectiveness and the nature of the long-term risks. In the case of Sars-Cov2 vaccines, it is different: not only is their medical benefit for children and adolescents debated [3], but the fact that they are based on a new technology does not reasonably allow us to know their long-term risks.

Is there not a risk that these exceptional measures will become normalized?

The risk is all the greater because the epidemic threat is not of a temporary nature. We will have to live with this virus, or with other viruses. If we are faced with a permanent risk, then permanent measures must be put in place, and these must of course be compatible with freedoms. We can see that temporary anti-terrorist measures have been abused to become permanently installed in our law. With Operation Sentinel, the use of the army to exercise police powers over the people has become normalized. The surveillance of the population has also become normalized: in the 1980s, the eavesdropping of the Élysée Palace caused a scandal; in 2020, the State can listen to anyone. Anti-terrorism measures have thus gradually removed the protection of privacy from the law. If we transpose this situation to the exceptional health measures, the consequences are dizzying: what risks becoming normalized is no longer just the invasion of privacy, but the invasion of the physical integrity of individuals, the deprivation movement and the freedom to leave one’s home.

What hopes do you have for the application you are making to the European Court of Human Rights?

It is necessary to remember something elementary: human rights are above the law. This is the reason for the existence of these texts. If fundamental rights have been enshrined in international jurisdictions and constitutions, it is precisely to prevent governments from adopting laws contrary to freedoms and from tipping a country into dictatorship. It is therefore necessary (though not necessarily sufficient) to appeal to the European Court of Human Rights in the current situation. In practice, the aim is to prevent the obligation of the health pass from being extended beyond November 15, 2021 by the adoption of a new law. The Court is legally obliged to deal with all applications, but its resources are limited. If it is pressured by tens of thousands of people, it will be forced to listen to our arguments, to avoid being completely paralyzed administratively. In 2020, the ECHR received a total of 40,000 applications of all kinds. It is this figure that we must exceed. We are already at more than 20,000. Anyone over the age of 12 can challenge the health pass law free of charge and without risk.

Notes

[1] First conviction for voluntary contamination by the AIDS virus by decision of the Criminal Court of Mulhouse, February 6, 1992: The defendant who bit a law enforcement officer with the intention of contaminating him with the AIDS virus, of which he knew he was a carrier, was guilty of voluntary violence or assault. On July 27, 1989, an HIV-positive drug addict, drunk, quarreling in a bar, violently bit the blood of the policeman who came to arrest him, shouting: “I have AIDS, you will die too!” (Le Monde, 30 July 1989; La Voix du Nord, February 7, 1992; Le Monde, 9 February 1992). In another case, in a judgment of 2 July 1998, the Court of Cassation invalidated the decision that had referred to an Assize Court on the charge of poisoning, a man who, knowing that he was HIV-positive, had had unprotected sexual intercourse with his partner whom he knew to be HIV-negative and whose blood test had revealed that she had been contaminated by him. The Court noted that “mere knowledge of the lethal power of the substance administered is not sufficient to characterize murderous intent.” (Crim. 2 July 1998, No. 98-80.529, Bull. crim. no. 211; JCP 1998. II. 10132, note M.-L. Rassat; D. 1998. 457, note J. Pradel).

[2] See Articles 16 and 16-3 of the Civil Code, Constitutional Council Decision No. 94-343/344 DC of 27 July 1994, Articles 2 and 36 of the Code of Medical Ethics, Article 5 of the 1997 Oviedo Convention on Biomedicine, or Article 3 of the Charter of Fundamental Rights of the European Union.

[3] The British Joint Committee on Vaccination and Immunisation (JCVI) does not recommend universal vaccination for 12-15 year olds, but only for those with underlying health conditions that particularly expose them to the virus.