“Mendangers the lives of others”; “voluntary abstention from taking appropriate measures to combat a disaster”: these two criminal qualifications weigh like a sword of Damocles above the head of Édouard Philippe. The former Prime Minister, in post at Matignon during the outbreak of the first wave of the Covid-19 pandemic, at the beginning of 2020, was heard on Tuesday October 18 by the judges, almost a week ahead of the initial convening date, Monday, October 24. Targeted since July 7, 2020 by a judicial investigation into his management of the health crisis, the former head of government, whose home had been searched three months later, appeared on Tuesday rue de Constantine, at the Paris headquarters of the Court of Justice of the Republic (CJR).
The three judges of the Court of Cassation who make up the investigating committee of this exceptional jurisdiction – the only one authorized to investigate and judge the acts committed by ministers in office in the exercise of their functions (the President of the Republic is protected by his immunity) – were to hear him at length on the facts and the shortcomings mentioned in the complaints addressed to the court by many citizens and caregivers, sometimes gathered in associations. This interrogation will condition the judicial, but also political future of the mayor of Le Havre (Seine-Maritime).
The judges placed the former Prime Minister in the meantime under the status of “assisted witness”. Édouard Philippe therefore escapes the indictment. This intermediate status indicates that the judges consider it “likely” that Mr. Philippe could have “participated” in the “commission” of the two offenses covered by the information. A fate less infamous than an indictment which, if it in no way prejudges a future conviction, can however hinder the ambitions of the president of Horizons, the movement he created to put him in presidential orbit.
Insufficient protective measures implemented for medical personnel and first and second line workers against a highly contagious and pathogenic disease; non-renewal – but also destruction – of stocks of protective masks (surgical and FFP2); late implementation of the first emergency measures (closing of classes, confinement, etc.) and delay in starting up the activation of the interministerial unit provided for in the event of a “major crisis”; decision to maintain “at all costs” the first round of municipal elections (March 15, 2020): the investigating magistrates of the CJR had many questions to ask the former Prime Minister.
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According to information from Worldthe judges had indicated, in the summons addressed to Édouard Philippe, that they “consider[ai]nt” his indictment. Like many other “witnesses”, Gérard Davet and Fabrice Lhomme, the two journalists following the case for the evening daily, were heard by the CJR’s investigating committee, after the publication of their investigation, very charge, on the “cataclysmic” management of mask stocks.
Parliamentarians at the CJR
The judicial investigation opened more than two years ago by François Molins, public prosecutor at the Court of Cassation, does not only target the former Prime Minister. Agnès Buzyn, who was his Minister of Health, was indicted for “endangering the lives of others” – and placed under the status of assisted witness for the offense of “voluntary abstention from fighting a disaster” –, following his hearing by the investigating committee, on September 10, 2021. Olivier Véran, who succeeded him on February 16, 2020, is still awaiting his summons.
The statements of Mrs. Buzyn, who swears to have “alert” Matignon and the Elysée from January 2020 on the “dangers” of Covid-19, and who had described as a “masquerade” the holding of the municipal elections – in which she herself took part in Paris – weigh heavily in the case against the former Prime Minister. The judges also bear in mind the conclusions of the Senate inquiry committee on the management of the pandemic, in particular with regard to the late activation (March 17, 2020) of the interministerial crisis unit, under the head of government.
It is only at the end of their investigation that the three magistrates could decide on his dismissal (like that of Ms. Buzyn and Mr. Véran) before the Court – composed of three professional magistrates and twelve parliamentarians (six deputies and as many senators) whose votes are equal – to be judged there. Renewed last July, the CJR, in its judgment formation, welcomes for the first time a deputy from the National Rally (Bruno Bilde) and an elected representative from La France insoumise (Danièle Obono) – the former magistrates Laurence Vichnievsky (Democratic Movement) and Didier Paris (LREM) also sits there, as does the vice-president (LR) of the law commission in the Assembly, Philippe Gosselin. The two offenses referred to are punishable by two years’ imprisonment and a fine of 30,000 euros – the penalties are not cumulative. In an interview at Parisian of October 9, Édouard Philippe “vigorously contested the incriminations which [lui] are charged”.
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Paradox: this file, if it were to lead to a trial, could well constitute the swan song of the Court of Justice of the Republic. Created in 1993 in a deleterious context, against a backdrop of health scandals (contaminated blood) and political and financial scandals (the Carrefour du développement affair), the CJR has never really managed to dissipate the scent of the suspicion of partiality which floats on her, some also accusing her of using criminal law to judge responsibilities that are actually political. The general public criticizes it for its slowness and the leniency of its decisions (“politicians judge each other”); the politicians denounce the attack it brings to the principle of the separation of powers; jurists are surprised by the procedural anomalies of this hybrid jurisdiction.
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Called to elect one of their own to sit there as a substitute, around thirty senators voted blank on October 11, thus expressing their disapproval after the announcement of the convocation of Édouard Philippe. Quoted by our colleagues from Opinion, Senator Claude Malhuret, close to the former Prime Minister, sees in this jurisdiction “instrumentalised by the magistrates” a “perversion of the institutions”. In more subdued terms, the Committee of the Estates General of Justice, in its report submitted last July to the Head of State, pointed to a “strong and continuous development of the judicialization of public life for thirty years”, in risk of “inhibiting the action of public officials for fear of criminal prosecution”. The committee also notes that “France is the only country in which the criminal liability of members of the government and administrative officials [a été] sought in the management of the health crisis” – investigations have been launched in Italy and are envisaged in the United Kingdom. Its final report recommends its disappearance, in favor of the courts of common law. A suppression that François Hollande like Emmanuel Macron intended to carry out without having succeeded – this would require a constitutional reform, and therefore a solid majority.
sharp criticism
The Court of Justice of the Republic is also criticized by jurists, who see a certain number of “oddities” in its operation. For many of them, the CJR may be impartial but does not “appear” to be so. The victims do not have the possibility of becoming a civil party before it and the Court of Cassation is omnipresent there at all stages of the procedure (commission of requests, commission of instruction, formation of judgment, etc.). In a certain number of cases, the magistrates of the commission of instruction themselves examine the appeals lodged against… their own decisions. Finally, his judgments of conviction are not subject to appeal – only an appeal in cassation is possible.
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In addition to the procedure on the health crisis directed against Édouard Philippe, Agnès Buzyn and Olivier Véran, the CJR has been talking a lot about it lately. The former Minister Delegate for Veterans under François Hollande, Kader Arif, appeared there this week for “illegal taking of interests” and “embezzlement of public funds” (a contract of media training spent for 60,000 euros with a communication company, of which his brother was the de facto manager). Two years of suspended imprisonment and a fine of 15,000 euros have been requested against him and the judgment will be handed down on October 26.
Accused of having used his functions as Keeper of the Seals to settle accounts with several magistrates, Éric Dupond-Moretti was sent back to the same court on October 3 to be tried for “illegal taking of interests” – he immediately lodged an appeal in cassation.