ER Editor: LREM referred to below is Macron’s party that was newly constructed for him, ‘La Republic En Marche’. Republic on the Move? It should be Republic in Collapse. ‘LR’ or ‘Les Republicans’ are the globalist centre-right party, formerly of Sarkozy, the party that is just as willing to have us locked down, made poor and injected as Macron’s party and the globalists on the Left are.
When we talk about French mayors, we have to realize that they are a huge political group within France by numbers alone. Around half of Europe’s municipalities (with mayors, evidently) are found in France, many of very small communities, as well as the big cities. This group is the backbone of French political life, and probably very costly for the taxpayer to boot.
If this may be summed up succinctly, the political class is in holy terror of being held criminally responsible for its policies around the Covid crisis. As it should. Many lawsuits were filed way back around a variety of issues, including treatment of the elderly in the care homes (EHPADs). More have been filed since. So the globalist centre-right party Les Republicains put forward a proposal to amend the law in order to exempt mayors from criminal responsibility. But that created a problem of being unequal before the law. So instead of rescinding that special status, the special status was EXTENDED to include all elected officials, civil servants, employers and Uncle Tom Cobbly. And a proposal to rescind THAT special status was recently VOTED AGAINST in the SENATE.
So the special status remains in place in principle, but it has to come back to the Parliament for a decisive vote (or Assembly, as it is called here).
So French readers are encouraged to call their Parliamentary representative to urge them not to allow this criminal exemption to remain, where it will the be enshrined in an unchangeable law.
SCANDAL: The Senate has just voted amnesty for elected officials, employers and civil servants!
A real scandal is unfolding before our eyes…
I. LREM is proposing an amnesty “for mayors”…
“We will propose an adaptation of the legislation to effectively protect the mayors criminally, but also all the persons with a mission of public service within the framework of the operations of containment.”
It must be said that the criminal complaints in the context of failures in the face of the epidemic frighten those in high places enormously…
The government is therefore seeking to modify the criminal offences.
II … although the mayors fear nothing
However, as Régis de Castelnau, a specialist in the subject, reminds us:
“In the 1990s, after the implementation of the decentralization laws, and because of massive challenges to mayors in the exercise of their duties, the legislator specified the contours of this responsibility, which are now defined in article 121-3 of the Penal Code […]
[In this text, which is the result of a particular elaboration in the 90’s in which the author of these lines participated […] here are the two new conditions required so that the indirect author of the damage can be condemned: firstly, not to have accomplished the normal diligences according to the means at one’s disposal, and secondly, to have committed a characterized fault exposing others to a serious risk that one could not ignore.
So, it is necessary to insist on this point, the mayors in charge of implementing the irresponsible decisions of the government with the crying lack of means that characterizes the Macronian management of the crisis will be protected from criminal charges by the notion of “normal diligence […] according to the power and means at their disposal” contained in the Penal Code.
State of health emergency or not, if the State sends mayors to the dogs without giving them the means to apply the policy it has decided, they cannot be prosecuted. They are already protected. And this is all the more true since the Council of State has just recalled in its order to annul the decision of the mayor of Sceaux imposing the compulsory wearing of masks on the territory of his municipality, that the powers of mayors in a state of health emergency were strictly limited, without any power of initiative, to the implementation of the State’s decisions.
So why are these parliamentarians proposing a useless amnesty for mayors?
You will see, it is incredible.
III. The Senate Law Committee
This amnesty was voted this May 4, in the Senate Law Commission, as part of the bill on the state of health emergency, of which Article 1-II is now written as follows (source pdf, file):
No one may be held criminally liable for having, during the duration of the state of health emergency declared in Article 4 of Law No. 2020-290 of March 23, 2020 on the emergency response to the covid-19 epidemic, either exposed others to a risk of contamination by the SARS-CoV-2 coronavirus, or caused or contributed to causing such contamination, unless the acts were committed:
2. By imprudence or negligence in the exercise of the administrative police powers provided for in Chapter I bis of Title III of Book I of the third part of the Public Health Code;
3. Or in manifestly deliberate violation of an administrative police measure taken in application of the same chapter or of a particular obligation of prudence or safety provided for by the law or the regulations.
IV. It is in fact a proposal of the LR Republicans
Amnesty was not included in the Government’s bill (source).
In reality, it is the LR Republicans who have done the dirty work through an amendment by Philippe Bas adopted in the Law Commission (source):
Note well that there was a problem following the Bergé proposal (a problem that Ms. Bergé obviously knows very well): there was a strong risk of unconstitutionality of this proposal aimed at mayors, for breach of equality before the criminal law: one cannot give amnesty only to mayors (nor only to hairdressers, nor only to blonds, nor only to Buddhists).
It is therefore very interesting to read the purpose of the Bas amendment (where the author specifies why he proposes it):
“The extension of the state of emergency regime, even though the Government has announced the end of the confinement, requires the determination of the criminal liability regime of all those, employers, local elected officials, civil servants, who will be required to take measures to allow a return to economic and social life.
The text proposed by this amendment provides a balanced solution which takes into account the exceptional constraints in which they find themselves. It is formulated in a general manner so as not to create a breach of equality before the criminal law.’
Yes: to avoid unconstitutionality, this amnesty is not only aimed at mayors; it has been extended not only to all elected officials, but also to civil servants, employers, and everyone else!
So they took advantage of this vote to invent an amnesty for employers and civil servants, in addition to those for ministers and elected officials…
However, it is only partial: they can be prosecuted in case of acts committed, 1/ Intentionally 2/ or “by imprudence or negligence in the exercise of administrative police powers” provided for in the state of health emergency 3/ or “in manifestly deliberate violation of an administrative police measure taken in application of the same chapter or of a particular obligation of prudence or safety provided for by the law or the regulations”.
Another important point. Under the constitutional (source) and legislative (source) principle of retroactivity of milder criminal laws (source), these measures apply not only for the future, but also for all decisions made since March 24, 2020.
And under the constitutional (source, art 8) principle of non-retroactivity of harsher criminal laws, it will be impossible to overturn this amnesty in the future once it is passed…
V. The Government backs down…
VI. … but the Government is on its own in the Senate
This is why the government did not include an amnesty in its bill.
But LR (ER: Les Republicains) nevertheless added it in the Law Commission, as we have seen.
And then something incredible happened.
As expected, the government then, out of consistency, proposed last night a brief amendment to delete the LR amendment – that is, the government proposed deleting the amnesty – by the amendment n°194 (source).
The argument developed in the subject line is very interesting to fully understand the problem:
“The purpose of this [government] amendment is to delete the provisions introduced in the [Senate Law] Committee [by LR] on the criminal liability of natural persons for acts committed during the state of health emergency.
The Government is obviously sensitive to the concerns expressed about the risk of excessive penalization of public and private actors in the context of the necessary resumption of activity at the end of the lockdown.
Criminal law already provides for rules to limit the criminal liability of public and private actors in case of unintentional offences. Since the law of July 10, 2000 (known as the “Fauchon law”), paragraph 4 of article 121-3 of the Criminal Code requires a greater degree of fault when the causal link with the damage is indirect. Criminal liability can only be incurred if the public decision-maker has deliberately violated an obligation provided for by law or regulation, or committed a characterized fault, i.e. a gross fault. […]
The modification of the general regime of criminal liability of natural persons confronted with crisis management presents two pitfalls.
First, it has the effect of eliminating the characterized fault that allows criminal liability to be incurred. It seems difficult to measure the consequences of such a restriction of criminal liability in the short term. Our fellow citizens obviously want public or private actors to be able to act without blocking in this particular period, but they do not want public decision-makers to give the impression that they are protecting themselves.
Secondly, such a modification of the system of criminal liability for acts committed in connection with the state of health emergency appears risky from a constitutional point of view, particularly with regard to the principle of equality before the criminal law.
It is not certain that the particular situation in which the persons confronted with the management of the consequences of the covid-19 crisis find themselves is sufficient to justify the infringement of equality before the criminal law with regard to the offences they may have committed.
This difference in treatment would concern the public decision-makers themselves, depending on whether or not the acts they committed were related to the health crisis. A public actor who commits a serious offence in the management of a health crisis, such as a hospital director or an EHPAD director (ER: the notorious care homes where many elderly people died under strange and arguably negligent circumstances), would not be held liable, whereas another public actor could be convicted for a serious offence committed in the same context of a crisis, but before the state of health emergency was declared.
Even if the Government proposes the deletion of the amendment made by the Committee, it is of course ready to consider the possibility of clarifying the law by recalling the jurisprudence which obliges the judge to take into account the means available and the state of knowledge at the time of the action.
Then came the moment to vote on this governmental amendment:
and the result is clear – I’ve never seen that before. Of the 348 senators, 340 took part in the vote. 13 LREM abstained and:
327 voting senators out of 327 voted AGAINST the government’s amendment, so FOR AMNESTY
0 senators voted against the amnesty.
The Senate therefore confirmed the amnesty.
And here are the details by political groups:
There was therefore a true National Union for Amnesty!
In conclusion, here is the position of the Minister defending her amendment (source):
“Ms. Nicole Belloubet, Keeper of the Seals. – This amendment deletes the provisions introduced in committee on the criminal responsibility of individuals for acts committed during the state of health emergency.
I told you earlier how sensitive the Government is to the concerns of public and private actors about the criminal risk linked to the resumption of activity.
We do not want to reduce the responsibility of public decision-makers, but to take into account the specificity of the context. Criminal law limits the liability of public and private actors in the case of unintentional offences. This is the Fauchon law: when the causal link with the damage is indirect, criminal liability can only be incurred if the public decision-maker has deliberately violated an obligation provided for by the law or regulation, or committed a serious fault.
This system, which was adopted 20 years ago, works well and is protective. I understand the Commission’s desire to clarify the legal framework, but the wording is problematic. First of all, it removes the requirement of characterized fault to trigger criminal liability. In addition, it modifies the system of criminal liability only for acts committed in connection with the state of health emergency. This is a constitutional risk with regard to the principle of equality before the criminal law. Depending on whether the acts were committed before or after the state of health emergency, the treatment will be different.
Thirdly, why distinguish between the regime applicable to the person responsible for the administrative police – mainly the prefect – and that applicable to other public actors? The Prime Minister has just shown the importance of the couple constituted by the mayor and the prefect in the decontamination. However, the text of the commission seems to engage the general responsibility of the former even in case of negligence, while that of the latter is only in case of deliberate violation. The Government is willing to clarify the law, but the answer deserves to be worked out during the shuttle.”
and that of Philippe Bas:
“Mr. Philippe Bas, rapporteur. – The simple, but not easy, rule of lockdown will be followed by a multitude of organizational decisions in schools, businesses and administrations. In these exceptional circumstances, those who will make decisions must be protected. Certainly, those who will voluntarily cause contamination must be punished, as must those who would deliberately violate a particular obligation of prudence provided for by the laws and regulations. There is no total exoneration, it is simply a question of avoiding that the judge attracts the penal responsibility, under the Fauchon law, on a mayor who will have applied the policy of the Government. […]
I discovered the Government’s amendment n°194 rectified; Madam Minister of Justice, without any irony, it pained me. We have been working for several weeks on this issue. We cannot reverse the lockdown without protecting the exercise of the responsibilities of those who will be in charge. You say you have not had time to examine such restrictions of responsibility? On Saturday afternoon, we discovered a bill that challenges medical confidentiality and privacy. Don’t disqualify our work because you haven’t had time to think!
Are you worried, Madam Minister? So am I! (Smiles) The provisions only apply for the duration of the state of health emergency: that is their purpose! If the state of health emergency justifies a different law, we are not undermining the principle of equality before the law. Thus pained, Madam Minister of Justice, I ask you to withdraw your amendment and let us continue our reflection. ”
At the request of the Les Républicains group, Amendment No. 194 was put to a vote by public ballot.
The Senate did not adopt it.
(Applause on the right)
And so the government amendment was rejected…
We can see that, once again, Senator Bas:
- only talks about mayors, whereas his amendment exempts all employers and civil servants;
- only talks about the decontamination, while he makes his irresponsibility start on March 24 and not on May 11; he says nothing about its retroactivity.
Why is this?
VII. What happens next
So will there be a Judgment of Solomon – and others?
At this point, we are only at the beginning of the legislative process.
We will first have to see whether or not the bill will be voted on by the Senate. But if it refuses to vote today, LR will probably bring back its amendment in the Assembly.
In any case, everything will be decided, as always in the Assembly.
Will any member vote against the amnesty?
More seriously, how many members of the LREM group will defect and support the LR amnesty?
To help our parliamentarians make the right choice, don’t hesitate to contact your MNA today. You can find his or her file here by commune (“Search for an MP“) or by name.
You can write, but the most efficient way is to phone (democracy is as simple as a phone call), politely, to the assembly (01 40 63 60 00) or to his office (the coordinates are generally indicated on the website of the assembly, or on the personal website)
If the amnesty is voted, the Constitutional Council will remain, as several means can be presented. Like the legislative rider, because this measure has nothing to do with a health bill.
But I hope that a more twisted but deeper argument can be brought to the Council (if there is still an opposition to the amnesty in the Parliament); this measure is heavily derogatory to the Common Law, and once voted, it is not possible to go back. It will therefore shock a large part of the citizens. But if, in general, they have abdicated, and delegated almost all their power to their representatives, they usually have a very small string of recall: the power to demonstrate and to go to their deputy during the elaboration of the law. This is not possible during the lockdown, and then again as long as the health emergency lasts. Consequently, one could argue that article 6. of the Declaration of 1789 “The Law is the expression of the general will. All the Citizens have the right to contribute personally, or by their Representatives, to its formation” does not allow during the state of Health Emergency to take measures other than of current management or direct management of the health crisis. It is not the moment, for example, to vote a reform of the pensions, a suppression of social rights or… an amnesty.
Of course, all this demonstrates, once again, the imperative need for a Citizens’ Initiative Referendum – to, in this case, cancel this law.
We will talk about it again.
P.S. Don’t forget to file a complaint on Plaintecovid.fr (already 170,000 complainants) – they don’t like it at all in the government.
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