1 It is a cliché to suggest that the rights of foreigners are both a magnifying mirror of any security policy and the testing ground for policies of constraint that will later be applied to the entire population. The recent history of the interconnection between health policy and the policy on expulsion of foreigners is no exception. It also provides a basis for reflection on the gradual retreat of the principle of bodily integrity in the French legal system.
Test or Prison: the Cruel Choice between Bodily Integrity and Detention
2 It all began in the aftermath of the first lockdown, in the first half of 2020. Having been prevented for several months by the closure of borders, expulsions from France of foreigners in an irregular situation gradually resumed. However, the states of destination required returnees to show a negative COVID-19 test result to have access to their territory. For both PCR and antigenic tests, in the vast majority of cases a nasopharyngeal swab is required. For various reasons, [1] some people refused to take the test and the question then arose as to whether the offence of evading a removal order could be applied.
3 Established in substance in 2005, but amended several times over the years, [2] this offence carries a penalty of three years’ imprisonment for “any foreigner who evades or attempts to evade the implementation of a measure refusing entry into France, an administrative ban on entry, a deportation order, an order for escort to the border or an obligation to leave French territory”. [3] A simple question arises: can the refusal to undergo a screening test be considered conduct that constitutes evasion of a removal order? The difficulty here is twofold: not only had this situation not been explicitly foreseen by the legislator, but the law prohibits the performance of any invasive act on a person’s body without their consent. [4] When the act is also of a medical nature, the right to refuse is explicitly laid down in the French Public Health Code. [5] Thus, regardless of how an intrusive act on the body is characterised — as medical or otherwise [6] — the informed consent of the person is always required, except in situations of therapeutic necessity in which the person is not in a position to consent.
4 These two arguments were raised before the French Court of Cassation by an applicant who had been sentenced to two months’ imprisonment for refusing to undergo a test in the context of a removal order. In a judgment of 10 November 2021, the Court quashed the conviction. While skirting around the issue of the interplay between migration law and health law, the Court implicitly adhered to the principle of strict interpretation of criminal law, simply stating that “the legislator [had] intended to punish only the evasion of the implementation of the measure and not the refusal to consent to acts preparatory to the measure, except in the case of specifically enumerated exceptions, which did not include refusal to undergo a screening test”. This position was reiterated, on the basis of this former state of the law, in a recent decision of 21 April 2022. [7] The Court of Cassation thus cautiously echoed the positions taken by several lower courts which had already refused to prosecute or convict individuals on similar facts, sometimes stating more forcefully that the refusal to undergo a PCR test “does not constitute a mere condition of transport, but is part of the exercise of the fundamental right to respect for one’s bodily integrity, so that a refusal cannot be assimilated to an act of voluntary obstruction”. [8]
5 Sensing the wind of opposition from the courts, and despite strong activist mobilisation on this issue, [9] the legislator intervened, in one of the many texts on the state of health emergency, to amend the terms of the law. Thus, the law of 5 August 2021 specifies, [10] under Article L. 824-9 of the CESEDA, that evasion of a removal order will henceforth be established by a “foreigner’s refusal to comply with the health requirements necessary for the ex officio implementation of the measure imposed on him or her”. This provision was inserted into the law by means of a government amendment and gave rise to hardly any debate in the chambers. Only Senator Jean-Yves Leconte emphasised the incongruity in health terms of detaining a person who refuses to undergo health screening and pointed out that the measure came at a time when the lengthy closure of prefectural services in 2020 had led to many foreigners finding themselves in an irregular situation against their will, as they had not been able to apply for a residence permit. [11]
A Weak Control of Constitutionality
6 This new provision was referred to the French Constitutional Council, [12] which upheld its constitutionality on the basis of questionable reasoning. Ruling on the claim that the penalties were disproportionate, it applied a dual restriction: firstly, it stated that the “health requirements” referred to in the law could only be understood, according to parliamentary debates, in the sense of COVID-19 screening tests. This is a welcome clarification in that the text, which is intended to remain in force for the foreseeable future, could be understood to cover other types of screening, including more invasive ones, or even vaccination requirements, given the vague reference to “health requirements”. The Council also underlined that the assessment of opposition to screening must be made on a case-by-case basis in order to properly characterise the individual’s intention to avoid removal. This reminder may seem superfluous, since it ultimately means that a conviction can only be imposed if the offence has been established. However, the decision implicitly suggests that there could be legitimate reasons for refusing to be tested: medical reasons or perhaps even ideological or religious reasons? Secondly, the Council considered the provision in the light of the constitutional principle of protecting human dignity against all forms of enslavement and degradation. This principle, invoked in earlier reviews of provisions relating to the body, [13] is one of the foundations of the principle of consent to medical treatment. But, in this case, the Council’s application of it was questionable, since it affirmed that “the obligation to undergo a COVID-19 screening test under the contested provisions does not involve any procedure that interferes with the physical integrity and dignity of persons”. This statement, which led to the validation of the text, tacitly underlines the imprecision of the notion of the integrity of the human body.
7 Although the principle of inviolability is a central element of the mechanism for protecting the human body set out in the French Civil Code, there is no definition of this principle. Certain acts seem to be obviously covered by the notion — all those that result in penetrating the epidermal barrier, for example — but there are many situations that are bound to raise questions: taking buccal samples of saliva or epithelial cells, hair sampling, the obligation to “blow” into a breath test or, as in this case, introducing a nasal swab for a viral test, are all examples of “borderline” cases. By classifying nasopharyngeal swabs in the category of acts that “do not involve any procedure that interferes with human integrity” — and not, as it could have held as a form of proportionality control — a restricted interference with such integrity, the Constitutional Council took a very narrow view of the concept of bodily integrity. This is a form of resignation that contrasts with the importance of the issue, particularly given the recent increase in the number of mechanisms of legal constraint on the body.
An Increasingly Lax Legal Landscape Regarding Interference with the Principle of Bodily Integrity
Few Actions Imposed
8 There are very few situations in French law of forced bodily interference in the sense that such interference is physically imposed on individuals. [14] Not surprisingly, the bodies which are subject to the least protection are those of people who are already marginalised: sick people and offenders.
9 The most numerous cases of constraints imposed on the body relate to forced psychiatric care which — even though it is not expressly stated in the text — in practice cover the non-consensual administration of medication. [15] Apart from these cases, there are only two provisions which, in our view, permit the physical imposition of a breach of the boundary of the body. The first is Article 706-56 of the French Criminal Procedure Code in its post-2004 version. This provision allows for a DNA sample to be forcibly taken for the purpose of registration in the national automated DNA database on the written requisition of the public prosecutor and in relation to persons convicted of “an offence punishable by ten years’ imprisonment”. This provision was validated by the Constitutional Council on the grounds that the taking of DNA samples “does not require any internal physical intervention [and] does not involve any painful or intrusive procedure or one that interferes with human dignity”. It is clear that this position would have been more difficult to maintain in the case of a nasopharyngeal swab, which perhaps explains the “relaxation” of the Council’s control. The second provision is more problematic because it involves a greater degree of bodily intrusion. Article 121 of the French Law on Internal Security 2011 [16] states that “the judicial police officer with territorial jurisdiction may require any person who has committed against a person holding public authority or entrusted with a public service mission, in the exercise of his or her duties, acts likely to result in his or her being contaminated by a serious viral disease, to undergo a medical examination and a blood test in order to determine whether that person is infected with such a disease”. It specifies, in the third paragraph, that “at the request of the victim or when justified by his or her interests, this operation may be carried out without the consent of the person concerned on the basis of written instructions from the public prosecutor or the examining magistrate, which shall be placed in the file of the proceedings”. This provision, which to our knowledge has not been the subject of any litigation, or perhaps any application, thus remains an extremely rare exception within the French legal system.
10 This is fortunate given that the European Court of Human Rights (ECtHR), while not denying as a matter of principle that a physical interference with the body can be imposed on a person, including for non-health-related reasons, nevertheless requires strict control of the proportionality of the measure. Where it is not justified by sufficient interests, the measure may constitute a violation not of Article 8 (private and family life) but of Article 3 of the European Convention on Human Rights (ECHR) (prohibition of torture and inhuman or degrading treatment or punishment). [17] Indeed, it is probably because the conditions imposed by the ECtHR were far from fulfilled that France recently settled in a case on a highly unfortunate decision by the French Court of Cassation. The facts concerned a flagrante delicto investigation (enquête de flagrance) in which one of the protagonists was suspected of having committed violence under the influence of drugs. The Court of Cassation, in a decision of 31 March 2020 (the timing contributed to the decision going unnoticed), confirmed the admissibility of the results of blood samples taken without the person’s consent. Noting the combination of flagrante delicto, the existence of a written requisition from the prosecutor, the evidence of the suspect’s lucidity being impaired and the need for the sample to be taken in order to establish the offence, “in all these circumstances”, the Court of Cassation dismissed the arguments based in particular on the protection of bodily integrity. [18] France made an admission prior to the start of proceedings that this decision had infringed the respondent’s right to privacy — implicitly his right to bodily integrity — and put an end to the case by granting the respondent just satisfaction, thereby avoiding any risk of the ECtHR finding a violation of Article 3 of the ECHR.
Ever More Actions Subject to Constraint
11 The rarity of situations of “forced” intervention on the body contrasts with the multiplication in recent years of cases of “constraints” on consent, which can be manifested in various ways. First, there may be a simple risk of losing one’s claim, particularly in civil proceedings. This is the case in particular in matters of parentage litigation, where DNA sampling cannot be imposed, but where the judge traditionally draws from a refusal “all the conclusions he or she deems necessary”. Another example is the refusal to undergo X-rays for so-called “age determination”, which can lead to young unaccompanied foreigners being refused care by the child welfare service. [19] Consent may also be constrained by the restrictions on individual freedoms that a refusal could entail: professional vaccination requirements; compulsory vaccinations for access to collective childcare or to certain territories; [20] and, lastly, the most recent measure, the “vaccine passport” [21] for access to certain places and services. These are all examples where it can be considered that the consent given to the interference with the body is not genuinely free. Finally, the notion of constraint can be understood in a much more literal sense of penal constraint on consent. This is the case in relation to a refusal to have blood or DNA samples taken for investigative purposes, to detect drug use or to be placed on file. The viral testing system that is the subject of this study falls into this latter category.
12 It is clear that what these situations have in common is that, while the consequences of refusing bodily interference may be very significant for the person concerned, such interference can never be imposed on him or her in the strict sense. In such cases, the ECtHR obviously exercises less strict control than when the person is subjected to physical constraint. Nevertheless, the Court has imposed some requirements. For example, it has already ruled that samples taken under the constraint of fear of criminal consequences could be admissible, despite the protection afforded by Article 8 of the ECHR, provided that they were prescribed by law and necessary, in particular, for the protection of others. This is considered to be the case, for example, of blood samples taken in the context of alcohol testing for drivers and of compulsory vaccination subject to a fine.
Conclusion
13 In a legal landscape in which respect for the principle of the bodily integrity seems to be increasingly undermined, it remains to be seen whether de facto constraining a migrant in an irregular situation to undergo a PCR test in order to carry out their deportation could be considered to be a provision sufficiently linked to the protection of a collective interest to pass the scrutiny of the ECtHR. We would hope this would not be the case and would argue, if necessary, that migrants in an irregular situation have generally not committed any breach of public order such as to jeopardise the safety of third parties. However, this would be to fail to consider the relatively generous approach of the Court in recent years in its review of the migration policies of States parties, including when they have a strong impact on the health of individuals (Klausser, 2016).
14 Anticipating the possible position of the ECtHR, some French national courts have already made use of the conventionality review to avoid handing down a conviction for a refusal to undergo a PCR test, despite the new legal provisions. Thus, in a very detailed decision of 16 February 2022, the Boulogne Criminal Court [22] considered that “by criminalising the refusal to undergo a COVID-19 screening test, which is a fundamental right” and by imposing a three-year prison sentence on the defendant, Article L. 824-9 CESEDA “was disproportionate to the aim pursued, given that the person concerned was already subject to a sentence involving deprivation of liberty due to his admission to the administrative detention centre”. This is a courageous position on the part of the lower courts, which it is to be hoped will be followed by others. [23] However, it is probable that the public prosecutor’s office will not give the trial judges the opportunity to do so: alternatives to prosecution will likely be used to circumvent this, a well-known practice of the public prosecutor’s office to sanction people by restricting their will and opportunity to present their arguments on the merits.
15 Once again, the migration law is among the legal frameworks that derogate from the major principles that are supposed to govern the French legal system. This is cause for concern, as the situation in relation to the protection of the bodies of marginalised individuals (the poor, women, the sick, the elderly and other prisoners) may presage future control mechanisms over the bodies of all of us.
Notes
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[1]
For an account of several cases, see Laigle (2021).
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[2]
See former Article L. 624-1-1 of the French Code on the Entry and Residence of Foreign Nationals and the Right to Asylum (Code de l’entrée et du séjour des étrangers et du droit d’asile – CESEDA).
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[3]
Art. L. 624-1 CESEDA.
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[4]
Combination of Article 16-1 (“Everyone has the right to respect for his or her body/The human body is inviolable”) and Article 16-3 of the French Civil Code (“The integrity of the human body may only be subjected to interference where it is medically necessary for the person or exceptionally in the therapeutic interest of others. Prior consent of the person concerned must be obtained, except in cases where his or her condition necessitates a therapeutic intervention to which he or she is not in a position to consent”).
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[5]
Art. L. 1110-5-1 of the French Public Health Code (Code de santé publique – CSP).
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[6]
According to the strict terms of Article 16-3 of the French Civil Code, there can be no interference with the body other than in the therapeutic interest of that person or others. The reality is quite different, since our law includes many situations where interference with the body is not only tolerated but also regulated outside of these situations (DNA sampling in the judicial context, tattooing, etc.).
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[7]
Court of Cassation, Criminal Division, No. 00516.
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[8]
Colmar Court of Appeal, 26 February 2021, No. 21/00880. For a more detailed analysis of the positions taken by the lower courts, see Fischmeister (2021).
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[9]
Op-ed by a Collective of doctors and academics (2021) L’alerte de médecins et d’universitaires : “Les tests Covid ne sont pas des outils de police administrative” (Doctors and academics warn: “Covid tests are not administrative policing tools”), Le Journal du Dimanche, 1 May, [online]. URL: https://www.lejdd.fr/Societe/lalerte-de-medecins-et-duniversitaires-les-tests-covid-ne-sont-pas-des-outils-de-police-administrative-4042159; and press release by the Observatoire de l’enfermement des étrangers (OEE) and the Observatoire international des prisons — section française (OIP-SF) (2021) Incarcération d’étrangers refusant de se soumettre à un test PCR : un scandale juridique et politique (Incarceration of foreigners refusing to undergo PCR tests: a legal and political scandal), Gisti, 24 November, [online]. URL: http://www.gisti.org/spip.php?article6700
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[10]
French Law No. 2021-1040 of 5 August 2021 on management of the health crisis.
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[11]
Discussion on Amendment No. 252, French Senate, session of 24 July 2021.
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[12]
Constitutional Council 5 August 2021, No. 2021-824 DC, Law on management of the health crisis.
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[13]
Drawn from the first sentence of the Preamble to the French Constitution of 1946, this principle, which was established by the Council in its decision on the first bioethics law (Decision No. 94-343/344 DC of 27 July 1994), has been used in particular in the review of provisions relating to abortion, end of life and psychiatric hospitalisation without consent.
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[14]
It is important to recognise that imprisonment, immobilisation or physical restraint in the context of law enforcement operations obviously involve very strong constraints on the body, which may be legal. However, these are borderline cases insofar as, in the vast majority of cases (except in situations where the law authorises the use of armour-piercing weapons such as firearms or tasers), the boundary of the body is not breached by force.
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[15]
The very specific and rare case of contraceptive sterilisation imposed on persons placed under personal protection could also be mentioned here. However, in addition to the fact that, in theory, the consent of such persons is in fact delegated to third parties, it should be noted that, unlike in relation to other types of medical intervention, the French Public Health Code explicitly states that a person’s refusal cannot be overridden, regardless of how it is expressed.
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[16]
Law No. 2011-267 of 14 March 2011 on orientation and programming for internal security performance.
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[17]
See for example ECtHR, 11 July 2006, Jalloh v. Germany, No. 54810/00.
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[18]
Court of Cassation, Criminal Division, 31 March 2020, F-P+B+I, No. 19-85.756.
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[19]
On the scientifically questionable nature of these tests, see Chariot (2010). It is also worth noting the paradoxical nature of these tests in relation to the principles of health law since, as they are supposed to be carried out on a minor, they should logically be approved, if not by the holders of parental authority, then by a legal guardian, which in practice is never the case.
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[20]
For example, mandatory yellow fever vaccination for access to Guyana.
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[21]
For a discussion of the relationship between vaccine pass and consent, see Bandelier et al. (2022).
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[22]
The author would like to thank Vincent Souty, lawyer, for sharing this decision.
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[23]
Other positions taken by the courts have regulated forcible expulsions, including in cases of refusal to undergo a PCR test: in June 2021, the Court of Cassation reaffirmed that no criminal conviction for opposing expulsion could be handed down before the expiry of the maximum period of detention (i.e., ninety days): Court of Cassation, Criminal Division, 9 June 2021, No. 20-80.533. The French Council of State accepted that the refusal to undergo a PCR test could constitute “absconding” in the sense of evading the “Dublin” mechanism for the reallocation of asylum seekers in Europe (Council of State, 10 April 2021, Decision No. 450928), but required proof that the person had been informed in a language he or she understood of the significance of his or her decision (Council of State, 10 April 2021, Decision No. 450931).
