In view of deconfinement, should the legal protection of mayors or entrepreneurs be strengthened? For several days now, this question has sparked a lively debate among parliamentarians, in the Senate and in the National Assembly.
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In the evening of Thursday, May 7, the deputies removed a provision voted three days earlier by the senators, aiming to better protect the public and private decision-makers who, from May 11, will have to take measures of deconfinement in the schools or businesses. “ Be careful not to establish criminal irresponsibility for these decision-makers “Replied the majority in the House, saying, like the government, that the current rules of law, in particular stemming from the Fauchon law of 2000, remain sufficiently protective.
Maintain the current “balance” of the law on the responsibility of mayors
Act 1 of the debate was played out last weekend. In the Sunday newspaper, 138 deputies and 19 senators from La République en Marche (LREM) announce that they will propose a better ” juridic protection “ mayors, concerned by the reopening of schools from May 11. The aim is to vote for new provisions in the text aimed at prolonging the state of health emergency.
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But as of Monday, it’s the cold shower for the majority parliamentarians. Prime Minister deems it necessary to keep ” the balance “ current law on the responsibility of mayors. ” VShis question deserves to be treated with caution, because our fellow citizens want mayors to act without blocking, but neither do they want decision-makers, public or private, to be relieved of their responsibilities “, says Édouard Philippe.
Invoking the concerns of local elected officials, the senators still voted a device aimed at adjusting the regime of responsibility of decision-makers. The text specifies that “No one can have criminal responsibility engaged” for contaminations by the coronavirus during the state of health emergency, except in case of deliberate intention, recklessness or negligence. An amendment finally deleted, Thursday, May 7 in the evening by the deputies, who simply clarified the need for the judge to take into account “In the event of a health disaster, the state of scientific knowledge at the time”.
According to the Keeper of the Seals, Nicole Belloubet, and the deputies of the majority, this is only a detail corresponding to current jurisprudence, since the judge “Always assess the situation in concreto, on a case by case basis”.
What Fauchon law says
This debate brought to light the provisions of the law of July 10, 2000, passed on the initiative of Senator Pierre Fauchon. A text which aimed to better protect mayors faced with an increase in legal proceedings of all kinds.
This Fauchon law provides that individuals are criminally responsible if it is established that they have ” manifestly willful breach of a particular duty of care or safety provided for by law or regulation ” They may also be held criminally liable if these persons have “ committed gross misconduct which exposed others to a risk of particular gravity which they could not ignore “
According to Me Bernard Fau, lawyer specializing in public health affairs, this law is, in fact, very protective for elected officials. ” To succeed in criminally challenging a mayor, it must be shown that he has willfully breached his obligation to protect his citizens. Or that an Ehpad manager, for example, knowingly acted to expose residents of his facility to contamination “
Deconfinement, a special situation
According to him, it is this same Fauchon law that has enabled a number of political or health decision-makers to avoid being criminally implicated in several major public health scandals in recent years. ” Because these decision-makers, even if they could have been negligent or failed, did not deliberately wish for the health damage that ultimately affected the victims Said the lawyer.
While therefore deeming the current law very protective, Me Fau notes, however, that the current situation is special. ” The state imposes deconfinement protocols with multiple rules and extremely precise. And that will perhaps open the way to legal remedies aimed at showing that such a decision maker did not respect a certain provision appearing for example on page 17 or 34 of the deconfinement protocol that he must respect. This increases the possibilities of appeal. But to convict a decision-maker, it will always have to be established that he deliberately refrained from respecting this or that rule. “