DECRYPTION
Can the French all leave their homes after May 11? The question arises after a controversial exit Wednesday from the President of the Scientific Council, Jean-François Delfraissy. During a hearing in the Senate on Wednesday, the latter indeed estimated that "18 million people", those most at risk of developing a serious form of Covid-19, should remain confined after this date. A possibility that made Axel Kahn, geneticist and president of the League against cancer leap from his chair, this afternoon on the air in Europe 1 where he considered that isolating the most fragile was an "unconstitutional" measure and discriminatory. But what exactly does the law say?
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A possible measure with the state of health emergency
In normal times, that is to say when conventional constitutional law applies, this measure appears effectively impossible since it constitutes a serious infringement of the fundamental freedom to come and go and discrimination. But with the vote of the state of health emergency on March 22 at the National Assembly we entered under a particular legal regime. Since this vote, the president and the government can enact exceptional measures.
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Two necessary conditions
However, whatever happens, there are two conditions for limiting a fundamental freedom: that the attacks are necessary, but also proportionate to the objective pursued. Two parameters arbitrated by an administrative judge. To challenge such a decision, it will therefore be necessary, for example, to prove that this extended confinement for the elderly is not necessary to preserve their health. A possibility that associations are already studying via an appeal, according to information from Europe 1.
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An appeal would be unlikely to succeed
But jurists are rather reserved on the chances that such a measure will succeed, since it would amount to the administrative judge to go against the government, whose decision is supposed to be informed by many experts. So far, this has not been observed on the part of the Council of State, the supreme administrative judge.
For now, this prolonged confinement for people at risk is a simple recommendation from Jean-François Delfraissy. We will have to wait two weeks, when the government will present its deconfinement plan, to find out what Emmanuel Macron and Édouard Philippe have decided.