In an attempt to deal with feelings of helplessness, grief and anger, many French citizens have felt a visibly pressing need to question the responsibility of their government and State in managing the crisis relating to the Covid-19 pandemic. In order to do so, two cumulative procedural avenues are available to them: they can file a criminal complaint against members of the government before the Court of Justice of the Republic or against other persons/entities before the criminal Courts, or they can take action against the State and its administrations by presenting a compensation claim before the administrative Courts. If the criminal route seems to be preferred at the moment, it appears that the administrative claims constitute a more effective, well-founded and timely choice.

Key words: France, Covid-19, criminal complaints, Court of justice of the Republic, administrative claims.

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Complaints against the French government and State in relation to COVID-19

In recent weeks, French citizens have felt a visibly pressing need to question the responsibility of their government and State in managing the crisis relating to the Covid-19 pandemic.

In question, the failure to anticipate the crisis, the delay in putting in place a compulsory confinement, the lack of masks and testing equipment, the shortage of hydroalcoholic gel and gloves, the insufficient hospital capacity, the maintaining of municipal elections, the contradictory instructions, etc.

Setting aside all political views, this legal article aims to answer the following questions: who can be held liable for a poorly managed health and sanitary crisis? Under what conditions? Under which offences? Finally, is the legalisation of this crisis effective, well-founded and timely?

French citizens have two cumulative procedural avenues available to them, in order to seek the liability of the State or the government in relation to their managing of the Covid-19 pandemic:

• They can file criminal complaints against members of the government before the Court of Justice of the Republic (Cour de justice de la République), or against other persons/entities before the criminal Courts (I.).
• They can take action against the State and its administrations by presenting a compensation claim before the administrative Courts to obtain compensation for their damage (disabling disease, loss of profits and/or income, etc.) (requête indemnitaire) (II.); 

The absence of criminal liability for the French President and State

The Head of the State, Emmanuel Macron, cannot be held criminally liable for acts carried out in the exercise of his functions (article 67 of the Constitution).

The same goes for the French State: being the only depositary of the right to punish, the State cannot inflict criminal sanctions upon itself (article 121-2 of the Criminal Code).

Legal actions therefore aim towards members of the government (the Prime minister and the ministers) and officials.

The possibility of holding members of the government criminally liable before the Court of Justice of the Republic

Members of the government are criminally responsible before the Court of Justice of the Republic for acts performed in the exercise of their functions and qualified as offences at the time they were committed (article 68-1 of the Constitution).

These "acts performed in the exercise of their functions" are considered in a restrictive manner: they must be understood as those acts which have a direct connection to the conduct of the affairs of the State within their mandate, excluding all behaviour relating to their private life or local elective mandates (Cass crim., 26 June 1995, Cass. crim., 6 Feb 1997).

The Court of Justice of the Republic is the only body empowered to judge acts committed by members of the government in their functions. There are two ways to bring a case before this Court (article 68-2 of the Constitution):

• A complaint by a person/entity claiming to have been injured by an offence committed by a member of the government in the exercise of his/her functions. The Requests Commission (Commission des requêtes) decides, for each complaint, whether an instruction must be opened or not. 
• Automatic referral to the Court of Justice of the Republic by the public prosecutor to the High Court (procureur général près la Cour de cassation), after having obtained the assent of the Requests Commission.

The Court of Justice of the Republic makes its decisions according the common law: there are no specific laws for the government.

However, in comparison to cases bought before ordinary Courts, a particularity is that it is difficult for the complainants to take an active part in the procedure, and no financial compensation can be obtained.

The possibility of holding officials and other natural or legal persons criminally liable before the criminal Courts

All people and entities other than the State, the President and the members of the government above-mentioned can be brought before the criminal Courts.

In the case of a health and sanitary crisis, this can include officials, but also health establishments’ directors, heads of departments and even doctors. Furthermore, a legal person can incur the same criminal responsibility as a natural person: territorial communities such as municipalities, departments and regions, independent administrative authorities such as the High Authority for Health (Haute Autorité de Santé), and all public establishments, which notably includes public health establishments.

A complaint against such person/entity can be filed before the public prosecutor (procureur de la République). 

In any case, when the author of the alleged offence in unknown, complaints can be filed against X (plainte contre X).

The offences for which the liability of the government and other entities can be sought during a health and sanitary crisis

In a time of health and sanitary crisis, complaints against the government, officials and any other natural or legal person can be based on offences such as:

• Voluntarily abstaining from taking measures to fight a disaster, provided for in article 223-7 of the Criminal Code and punishable by two years' imprisonment and a €30,000 fine;
• Deliberately endangering the life of another, provided for in article 223-1 of the Criminal Code and punishable by one year of imprisonment and a €15,000 fine;
• Non-assistance to a person in danger, provided for in article 223-6 al. 2 of the Criminal Code and punishable by five years' imprisonment and a €75,000 fine;
• Manslaughter, provided for in article 221-6 of the Criminal Code and punishable by three years' imprisonment and a fine of € 45,000.

However, the legal classification chosen by the complainants does not bind the Requests Commission of the Court of Justice of the Republic nor the public prosecutor, who can give to the facts the classification they think the most appropriate.

The criminal complaints filed in relation to the Covid-19 crisis

Complaints against the government for their management of the Covid-19 pandemic filed before the Court of Justice of the Republic are already numerous. 

The first criminal complaint filed against the Prime Minister Edouard Philippe and former Minister of Health Agnès Buzyn, was reportedly sent to the Requests Commission of the Court of Justice of the Republic on March 19, 2020, by three doctors. This complaint is based on the offence of voluntarily abstaining from taking measures to fight a disaster.

Following this first complaint, several others have been filed, mainly against the government, but also against X. For example:

• On March 23, 2020, students from Science Po as well as several political candidates and activists filed complaints against the Prime Minister Edouard Philippe, the Minister of the Interior Christophe Castaner and Minister of Health Olivier Véran for having maintained the first round of municipal elections, two days before the confinement due to the Covid-19 crisis;
• On March 25, 2020, a patient diagnosed with Covid-19 lodged a complaint against X before the Court of Justice of the Republic for obstructing assistance measures. The complainant was turned away from a hospital due to a lack of available beds;
• On March 25, 2020, a medical collective filed a complaint against X with the public prosecutor of Paris for manslaughter, voluntarily abstaining from taking measures to fight a disaster, deliberate endangerment of the lives of others and unintentional violence;
• On March 31, 2020, a labour federation lodged a complaint against the Minister of Labor Muriel Pénicaud before the Court of Justice of the Republic, and against the hypermarket Carrefour before the ordinary Courts, citing the lack of protection for distribution workers against the coronavirus;
• On April 1, 2020, thirty-one detainees filed a complaint against the Prime Minister Édouard Philippe and the Minister of Justice Nicole Belloubet for non-assistance to persons in danger.

Other complaints have been filed against territorial communities for involuntary offences against the life and physical integrity of people, and against public retirement homes for deliberate violation of a regulatory obligation of safety or vigilance. However, no complaints have yet been filed against hospitals, directors of health establishments, heads of departments or doctors.

Are these criminal complaints effective, well-founded and timely?

Even by setting aside the procedural aspects of the complaints (some complaints filed before the Court of Justice of the Republic have flaws rendering them inadmissible, such as the absence of the complainant’s signature), the chances of success of such complaints seem fairly limited.

The criminal liability of members of the government was sought for the first time in the context of a medical crisis during the "contaminated blood" case, in which many hospital patients were infected with HIV or hepatitis C as a result of blood transfusions. A complaint was filed before the Court of Justice of the Republic against the Prime Minister and the Secretary of State for Health, for involuntary homicides and involuntary attacks on the physical integrity of the people. The Court of Justice of the Republic acquitted the Prime Minister, but found the Secretary of State for Health guilty while dispensing him from any sentence (C. just. Republ., March 9, 1999).

Based on this case law, it will have to be determined whether the government had a personal knowledge that should have allowed it to act in a more appropriate manner in the face of the Covid-19 pandemic. However, the chronology of events demonstrates that it has opted for an evolving policy, taking decisions in parallel with announcements and recommendations from both the World Health Organisation and the Covid-19 Scientific Council, instituted in March to advise the government. It also has to be noted that Covid-19 has spread very quickly around the world, with the consequence that the time of anticipation and preparation available to political leaders was minimal compared to the one which they had to deal with the "contaminated blood”.

Furthermore, contrarily to the “contaminated blood”, which originated from a positive medical procedure (blood transfusions), the ways in which the coronavirus is spreading are still somewhat unknown but essentially seem to be the result of human contact. For this reason, the causal link between government actions or inactions and the deaths will be difficult to demonstrate.

The surge of criminal complaints against the government and other officials and entities also generates several questions: is the criminalisation of political responsibility, or the ousting of it in favour of criminal responsibility, desirable? Doesn’t it contradict the rule of law and the separation of powers? Is the time right to be searching for someone to blame for the delays, shortages and various insufficiencies? Shouldn’t the focus be on combatting Covid-19 and supporting those trying to do so?

A more effective, well-founded and timely course of action could be to bring a claim before the administrative Courts.

Holding the State and its administrations liable before the administrative Courts

All decisions taken by public authorities can be challenged before the administrative Courts, independently of the author (State, department, municipality, hospital, etc.), the form of the decision (decree, simple letter, etc.) or the content.

In matters relating to health and sanitary policies, public authorities are expected to comply with a high level of vigilance imposed by the administrative Courts to protect the population. The State and its administrations can therefore be held liable if they are found to have committed a fault, which is the case when the judges find that:

• The risk was known and serious;
• There was a way to minimise the risk;
• The State has failed to adopt preventive measures.

The current absence of compensation claims before the administrative Courts in relation to the Covid-19 crisis

Several requests have been issued for the administrative Courts to pronounce injunctions to the government to contribute to the manufacturing of tests or masks. All of these requests have been denied, mainly because the judges considered that it was useless to order measures which seemed already taken and in the course of execution (for example, CE 28 March 2020, SMAER). 

These cases will however not prevent future cases from questioning the responsibility of the State in relation to its management of the Covid-19 crisis. For the time being, as most procedures before the administrative Courts have been put on hold due to the confinement, it appears that no compensation claims have yet been filed.

The higher chances of success of claims brought before the administrative Courts

The administrative Courts’ case law relating to health and sanitary crisis is more developed than that of the Court of Justice of the Republic: most notably, besides the cases relating to the “contaminated blood”, several cases relate to the risk of cancer by exposure to asbestos.

According to this case law, the administrative Courts research with the greatest attention the date from which a risk of health and sanitary crisis could no longer be ignored by the State. They then determine whether the preventive measures were effective in eliminating or reducing the risk. The administrative High Court (Conseil d’Etat) has set strict requirements for the prevention of risks, without any consideration of financial costs, especially from the moment it is discovered that the risk is related to fatal or even disabling pathologies.

It therefore seems possible that, in relation to the Covid-19 crisis, the administrative Courts will be more readily prepared to consider that the State and its administrations have committing a fault in their managing of the crisis. It could be held that the probability of a pandemic was not unknown in recent years due to, for example, the H1N1 episode; that the seriousness and imminence of the Covid-19 crisis was known since January 2020; that the risk could have been minimised by adequate preventive measures, such as ordering larger amounts of masks, gloves and hydroalcoholic gel or imposing an earlier confinement.

Furthermore, this course of action could take place after the crisis, which would be a more adequate timing.

[This article was written on 1st May 2020].

Conclusion

In an attempt to deal with feelings of helplessness, grief and anger, many French citizens are searching for someone to hold accountable for the country’s failure in managing the Covid-19 crisis.

The recent weeks have witnessed a surge of criminal complaints. This willingness to punish decision-makers personally may have negative political consequences, the government being increasingly reluctant to make any decision without the maximum safeguards in place (advise from committees, guidance from international organisations, etc.). On the contrary, taking action against the State and its administrations by presenting a claim before the administrative Courts appears to be a more suitable choice and has a higher chance of success.

It is therefore our opinion that the criminalisation of political responsibility must be abandoned: liability for administrative or political decisions should be searched before the administrative Courts, or before the Parliament. In this regard, the Parliamentary opposition has announced that once the crisis has passed, Inquiry Commissions (commissions d’enquêtes) will be created to look into the government’s shortcoming in its management of the situation.