TRIBUNE – The lawyer and consultant Eric Gardner de Béville, member of the Cercle Montesquieu, wonders about the legal consequences of refusing to wear a mask.
While small groups every day more virulent in Germany, United States, United Kingdom, Spain and other countries are launching a campaign against the wearing of masks in the name of their right to liberty, the pandemic of Covid-19 continues its progression, slow but certain, crescendo and murderous.
We are not yet at the stage of the great Black Death of the years 1347-1352, nor of the influenza pandemic of 1917-1920. The first claimed, according to the most widespread theory, about 25 million victims, or 30 to 50% of the “European” population of the time; the second decimated between 20 and 50 million people in India, China, Europe and the United States. Among the reasons for such a high mortality, there is very likely the total absence, at the time, of health measures and barrier gestures comparable to those we have known since March 2020.
Wearing the mask is not so much a personal health measure, that is to say to protect oneself, as a civic act intended protect others against the risk of contamination. Indeed, wearing a mask is supposed to prevent the spread of postilions carrying the coronavirus. It is the contaminated postilions that infect humans mainly through the mouth, but also through the nose and eyes.
The freedom of some ends where the freedom of others begins
This maxim has an uncertain origin. It appears in a slightly different form in the Declaration of the Rights of Man and of the Citizen of 1789, in article 4: “Freedom consists in being able to do anything that does not harm others: thus, the exercise of the natural rights of each man have no limits except those which assure to the other Members of the Society the enjoyment of these same rights “.
The maxim assumes that there is a separation between personal freedom and that of others. However, very happy the one who can specify where the limit is between the two. Yet this is what it is about wearing a mask to delimit the border between the protection of the common good, that is to say the health of all, and the attack on the individual freedom of each. French.
The pandemic risk exists today, as it existed yesterday and as it will exist tomorrow. This is what explains why governments around the world –with a few rare exceptions– confined their populations between February and June 2020, for the sake of preserving the human species. The results are convincing: the confinement, and its restriction of contact between people, has reduced the spread of Covid-19 dramatically; conversely, the deconfinement since May 11 in France – and in other countries – has seen a strong and constant increase in infected people.
Individual and group freedoms have been, and still are today, seriously restricted for the common good. The world is at war, at the global level, without however being in a bellicose conflict. The enemy is outside but also inside, because everyone can be contaminated by the others and also infect others. It is in such a situation that the precept and proverb “the freedom of some stops where that of others begins” finds all its strength and raison d’être.
The NAPED Law is morally broad but legally limited
The concept of sanction for non-assistance to a person in danger (NAPED) is not recent. It appeared 2,000 years ago in the teachings of Jesus Christ and the parable of the good samaritan. It is taken up in the very French maxim “Qui can et n’empêh, peche”.
More recently, in France, in 1901, the affair of “the sequestrated of Poitiers”, a high-profile news item, upset public opinion about a 54-year-old woman who had been hidden by her family for a quarter. century. Accused and prosecuted for “complicity in willful violence”, the kidnapped woman’s brother was acquitted on appeal because there was no proven act of violence as required by law, only a deprivation of care and assistance , not reprehensible … This case has put the finger on the gaps of the law and the sanctions in the matter.
The reform of the penal code of 1934 provided for an offense of omission; the project did not see the light of day. In 1941, a law of the Vichy government aiming above all at “anti-Fatherland” denouncement established the offense of NAPED as well as that of non-denunciation of crimes and misdemeanors. Repealed at the Liberation, the law was replaced by an ordinance of June 25, 1945, then the new penal code of 1994, and article 223-6. Finally, the penal text was amended in 2000 and again in 2018 to emphasize the non-assistance to minors in danger.
The text is however limited in its scope because it demands “a real, imminent and constant danger”; it is also necessary that the rescuer “knows the risk” and that his intervention is “without risk for the responder and for third parties”. In other words and according to the Criminal Court of Mont-de-Marsan, January 21, 1959, “altruism is compulsory, not heroism”.
Can NAPED apply to Covid-19?
Beyond the increasingly widespread obligation in France and in many countries on the compulsory wearing of the mask, and given the growth of protest movements against the wearing of the mask, the moral and legal question arises as to whether the refusal to wear the mask constitutes a NAPED offense.
Insofar as the wearing of the mask aims to protect others more than oneself, it seems obvious that not wearing the mask creates a risk of contamination and danger to the health of others. Conversely, the protection of fundamental individual freedoms, of which we can consider that the choice to wear a mask is part, militates in favor of the absence of sanctions for NAPED.
So on the moral level everyone is free to decide whether or not to be a “good Samaritan”, with a subjective appreciation of the circumstances, on the legal level the objective analysis is required with regard to the existing legal texts. Statistics from all countries show that the elderly are the most vulnerable to the coronavirus. If the last modifications of the NAPED were aimed at protecting minors, perhaps it is necessary to consider modifying the texts again to better protect “seniors”?
By Eric Gardner de Béville, lawyer, recruiter and consultant in Operational Legal Affairs, member of the Cercle Montesquieu