Covid-19: The threat of a trial recedes for Édouard Philippe, Agnès Buzyn, and Olivier Véran

With the dismissal orders issued on Tuesday, the threat of a trial has virtually evaporated for former Prime Minister Édouard Philippe , former Health Minister Agnès Buzyn , and her successor Olivier Véran , who were the subject of a judicial investigation for endangering the lives of others and willfully failing to combat a disaster. These orders were predictable: at the close of the investigation conducted at the Court of Justice of the Republic (CJR), none had been charged. All benefit from the more favorable status of assisted witness.

Four years of investigations have established that "numerous initiatives" were taken to try to stem the epidemic, which caused 168,000 deaths in France between 2020 and September 2023, analyzed the Attorney General's Office at the Court of Cassation, which acts as the public prosecutor's office at the CJR. Numerous complaints have targeted ministers regarding this pandemic. Several have been upheld, including those of three doctors.

"We didn't want a procedure to establish guilt, but rather the truth," responded their lawyer, Fabrice Di Vizio. If the investigating committee follows the advice of the public prosecutor, "it's good news, which will mean that there was no fault leading to deaths." However, "we must be careful not to create a precedent with this case," warned the lawyer, also a leading figure in the opposition to the health pass. With his indictment, "the public prosecutor is creating a new kind of immunity: 'political choice,'" he quipped.

"There is a perception that political choices are not the concern of judges," contributing to a "vertical and protective view of power," a judicial source said. The CJR, the only court empowered to prosecute and try members of the government for offenses committed in the exercise of their duties, "is necessarily interested in the policy implemented" to "determine whether acts or omissions can be criminalized," the source continued.

According to the prosecution's submissions, the penal code "does not aim to punish a public policy that has not fully achieved its objective," "but rather individuals who have deliberately refused to take any measures to combat a disaster."

Taking up the accusations of the plaintiffs (doctors, patients, unions, etc.), who denounced poor anticipation by the government or late measures, the public prosecutor concluded that these delays resulted from "a political arbitration between several objectives," the "relevance" of which it did not have to judge. If masks were particularly lacking among healthcare workers in the private sector in March 2020, this resulted from a government "choice" to "prioritize hospital services" and not a "failure to act."

"The investigations conducted confirmed the existence of orders" and this "even before the epidemic spread in France," according to the public prosecutor's office. The lockdown, deemed too late by complainants, is also a "political choice" to "arbitrate between different objectives": "public health, freedom of movement, freedom of work"... For the public prosecutor's office, the role of criminal justice is not "to learn lessons" from the epidemic to enable "better preparation in the event of a new health crisis," "unlike a parliamentary commission of inquiry," for example.

This analysis appears to diverge from the work carried out by the investigating commission, which drew up a broad inventory of the situation: since July 2020, the magistrates have also looked into "excessive centralization", "the excessive complexity of administrative systems" and "the insufficient size of Public Health France", notes the public prosecutor's office.

The ministers' lawyers, Eric Dezeuze, Georges Holleaux, and Emmanuel Marsigny, declined to comment. Whatever the final decision, this file of tens of thousands of pages will feed into another judicial investigation: the one being conducted in parallel, against unknown persons, at the Public Health Unit of the Paris Judicial Court, for endangering the lives of others, manslaughter, and involuntary injury.