Interview | Me Virginie de Araujo-Recchia : lawyer at the Paris Bar

Interview with Virginie de Araujo-Recchia, attorney at the Paris Bar Association

After obtaining a master's degree in European and international law, then a post master’s degree in international commercial law at the University of Paris Descartes, she joined Clifford Chance an international law firm, then Ernst & Young and the Law Firm Pierre Boudriot, specializing in tax and intellectual property law.  In 2014, she founded her own practice.

Me Araujo-Recchia has set up a class action on behalf of citizens wishing to challenge the curfew and lockdown health measures.  The filing is based on the fact that many actions for summary proceedings before the Council of State (Supreme Court of Administrative Law) have come up against unsatisfactory decisions, as they are either rejected or are the subject of fragmented decisions that take advantage of the state of emergency legislation, and the positions of the French Scientific Council that avoid dealing with the merits of the subjects. This can be illustrated by the decisions on the usage of masks for children with an absence of ruling on the merits of the claim i.e., the mid-term consequences of wearing masks for a prolonged period, which are not properly assessed in terms of immediacy of the issue. The Council of State does study the scientific evidences submitted by the plaintiffs, taking far too often an ultra-conservative position that allows to justify the government's actions without looking at the real consequences for the plaintiffs.

The request is ready to be filed and she answers our questions in detail :

FranceSoir : How did you decide to set up this “collective action”?

VAR: I had been thinking for a while about an action that could put an end to the numerous liberticidal measures taken in France since March 2020.

Following the publication of my report entitled "Dictatorship 2020, State Terrorism, Attack on the Fundamental Interests of the Nation and Crime against Humanity", I joined a Collective of international lawyers and jurists to exchange and develop legal tools to fight against the liberticidal measures taken concomitantly in different countries of the world.

In December 2020, we decided with Jean-Luc DUHAMEL, international lawyer and member of the Collective, to join our skills in order to find a first way of law, that would allows us to act quickly and efficiently.

To this end, and since the summary proceedings filed during the crisis have never given rise to decisions in conformity with our fundamental rights, we have therefore gone back to the sources of our Law.

Here are excerpts from the subpoena that will help your readers better understand the legal basis of our approach:

"The preamble of the Declaration of the Rights of Man and of the Citizen of 1789 proclaims that the acts of the executive power can only be respected by the people if these acts themselves respect the natural, inalienable and sacred rights of Man: "The Representatives of the French People, constituted in the National Assembly, considering that ignorance, oblivion or contempt for human rights are the only causes of public misfortune and government corruption, have resolved to expose, in a solemn Declaration, the natural, inalienable and sacred rights of man, so that this Declaration, which is constantly presented to all members of society, will constantly remind them of their rights and duties; so that the acts of the legislative power, and those of the executive power, which can be compared at every moment with the purpose of any political institution, may be more respected; so that the claims of the citizens, based from now on simple and unquestionable principles, may always turn to the maintenance of the Constitution and the happiness of all. ».

On the obligation of wisdom, justice and reason of laws :

"Laws are not pure acts of power; they are acts of wisdom, justice and reason. The legislator exercises less authority than a priesthood.
He must not lose sight of the fact that laws are made for men, not men for laws.

(Excerpt from the preliminary speech on the draft Civil Code by Jean-Etienne-Marie PORTALIS, presented on 1st Pluviôse, Year IX).

Thus, the "law has the right to defend only actions harmful to society" (Article 5 of the Declaration of the Rights of Man and of the Citizen of 1789).

The same should apply to every act, every action originating from the administrative authorities. Unfortunately, this is not always the case and the consequences of some of these decisions can be dramatic and seriously detrimental to citizens.

On the obligation of an independent judiciary in order to achieve or maintain the status of "Rule of Law", a status so much promoted in France and abroad by our successive leaders:

"Any Society in which the guarantee of Rights is not assured, nor the separation of Powers determined, has no Constitution" (Article 16 of the Declaration of Human and Citizen Rights of 1789).

When human rights are violated, only an independent justice system acts as a bulwark.

Since the entry into force on January 1, 2001 of the law of June 30, 2000, administrative justice has gradually assumed the power to judge all violations of fundamental rights. However, in the context of the Covid-19 crisis, does it really constitute an independent justice in the precise sense of the wording of article 16 of our Declaration of the Rights of Man and of the Citizen of 1789, written and proclaimed by our ancestors?

Our answer to this question will be the same as that formulated by Anselme BATBIE, who was a senator and auditor at the Conseil d'Etat in 1847:

"We do not consider as a vain guarantee the one resulting from the examination by the Council of State. But it is difficult to admit that in our country, after all that has been said to demand that no one be distracted from his natural judges, we have come to place the most essential rights under the protection of a semi-political body composed of members who can be dismissed, that after having heard so many times the demand that administrative litigation be restricted or even abolished, the essential rights of the human being living in society are placed under the protection of this justice, which has been so much attacked in the past. BATBIE, Traité théorique et pratique de droit public et administratif, 2nd ed, 1885-1886, vol. VII, pp. 409 et seq., cited by E. DESGRANGES, supra, p. 154).

History has shown the inseparable character of the rule of law and a balanced separation of powers, implying the recognition of the independence and authority of the judiciary. The separation of powers and the independence of the judiciary are the matrix of the guarantee of fundamental rights, without which there is no democracy.

Today in France, the independent judicial authority is the only Natural Guardian of our fundamental rights and freedoms.  Recent events require more than ever since 1789 the intervention of the independent Judicial Judge so that the violations of liberties and the contempt of Human Rights shown by the executive power cease immediately and be sanctioned.

It is high time to follow in the footsteps of our republican ancestors and illustrious jurists, so that our fundamental rights are no longer disregarded as they have been since the beginning of the Covid-19 crisis. »

As you may have understood, we have therefore decided to bring our class action before the judicial judge in order to request the cessation of the measures of house arrest that have been illegally imposed on French citizens since March 2020 and continuously since October 17, 2021, until further notice.

To date, house arrest measures cover a cumulative period of more than five months.

As the degradation of the social and economic fabric is becoming more and more dramatic day by day, the first step is to file an application for summary proceedings before a judicial judge, given the extreme urgency to put an end to the irreversible consequences of the house arrest measures.

We would therefore like to indicate now that the assignment file is complete and ready to be filed.

FS: What is the basis for your action?

VAR: Habeas corpus ad subjiciendum and recipiendum sets out the fundamental freedom that no one can be imprisoned without trial, the opposite of the arbitrary that allows anyone to be arrested without good reason. Under the principle, anyone who is arrested has the right to know why he or she is being arrested and what he or she is accused of.

The origins of the "Habeas Corpus" go back to ancient Rome with the provocatio, which is its precursor, and its modern principle was born in Middle ÂgeEngland.

The French-style habeas corpus in article 66 of the Constitution of October 4, 1958, provides that:

"No one may be arbitrarily detained.

The judicial authority, guardian of individual liberty, ensures that this principle is respected under the conditions provided by law. »

This text proclaims the intervention of the judiciary in matters of individual liberty and entrusts the judicial authority with the task of safeguarding it.

The Declaration of Human and Citizen Rights of 1789

We recall the articles of the Declaration of the Human and Citizen Rights of 1789:

Article 5 of the Declaration of the Human and Citizen Rights of 1789:

"The law only has the right to defend actions that are harmful to the Company".

- Article 7 of the Declaration of the Human and Citizen Rights of 1789, which contains the following formula:

"No man shall be charged, arrested or detained except in such cases and in such manner as the law may prescribe. Those who solicit, expedite, execute or cause to be executed arbitrary orders shall be punished.

- We also recall Article 9 of the Declaration of the Human and Citizen Rights of 1789:

"Any man being presumed innocent until proven guilty, if it is deemed necessary to arrest him, any rigor that is not necessary to ensure his person must be severely repressed by the law". 

The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights:

We will quote an extract from the Universal Declaration of Human Rights of December 10, 1948, whose preamble contains, in particular, the following recitals:

"Considering that recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.

Considering that ignorance of and contempt for human rights have led to barbaric acts which revolt the conscience of mankind and that the advent of a world in which human beings will be free to speak and believe, free from terror and misery, has been proclaimed as man's highest aspiration. »

Article 3 of the Universal Declaration of Human Rights of December 10, 1948 establishes the principle that:

 "Everyone has the right to life, liberty and security of person. »

Article 5 of the Universal Declaration of Human Rights of December 10, 1948 sets forth the following principles:

"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty except in the following cases and through lawful channels:

(a) if he is lawfully detained after conviction by a competent court;

(b) has been lawfully arrested or detained for non-compliance with an order of a court made in accordance with law or to secure the fulfillment of any obligation prescribed by law;

(c) if he has been arrested and detained for the purpose of being brought before the competent judicial authority, where there are reasonable grounds for suspecting that he has committed an offence or where there are reasonable grounds for believing that it is necessary to prevent him from committing an offence or fleeing after the commission of an offence;

(…)

2. Any person arrested shall be informed, as soon as possible and in a language he understands, of the reasons for his arrest and of any charges against him.

3. 3. Any person arrested or detained as provided in paragraph 1.c of this Article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Such release may be subject to a guarantee that the person concerned will appear at the hearing.

4. Anyone deprived of his liberty by arrest or detention shall have the right to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Any person who is the victim of arrest or detention in conditions contrary to the provisions of this article shall have the right to compensation. »

Similarly, Article 9 of the Universal Declaration of Human Rights of December 10, 1948 contains the following principle:

 "No one may be arbitrarily arrested, detained or exiled. »

We will also cite Article 9 of the International Covenant on Civil and Political Rights (UN, 16 December 1966):

"(1) Everyone has the right to liberty and security of the person. No one shall be subject to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
(2) Any person arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly notified of any charges against him.

(3) Any person arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power, and shall be tried within a reasonable time or released. Detention of persons awaiting trial shall not be the rule, but release may be subject to guarantees ensuring their appearance at the hearing, at all other stages of the proceedings and, where appropriate, for the execution of the judgment.

(4) Anyone who is deprived of his liberty by arrest or detention shall have the right to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is unlawful.

(5) Anyone who is a victim of unlawful arrest or detention shall have the right to compensation. »

By a decision dated January 12, 1977 n°76-75 DC [1], the Constitutional Council enshrined individual liberty as a fundamental principle recognized by the laws of the Republic (constitutional bloc, supreme norm):

"Considering that individual liberty is one of the fundamental principles guaranteed by the laws of the Republic and proclaimed by the Preamble of the Constitution of 1946, confirmed by the Preamble of the Constitution of 1958;

2. Considering that Article 66 of the Constitution, in reaffirming this principle, entrusts custody of it to the judicial authority; ".

By decision No. 2015-527 QPC of December 22, 2015 [2], the Constitutional Council, seized by the Council of State, recalled:

"« 5. Considering, first, that the impugned provisions allow the Minister of the Interior, when the state of emergency has been declared, to "pronounce the house arrest, in the place that he determines, of any person residing in the area fixed" by the decree declaring the state of emergency ; that this house arrest, which can only be pronounced against a person for whom "there are serious reasons to believe that his behavior constitutes a threat to public security and order", is a measure that is the sole responsibility of the administrative police and therefore can have no other purpose than to preserve public order and prevent offences ; that this house arrest "must allow those who are subject to it to reside in a town or in the immediate vicinity of a town"; that it may in no case "have the effect of creating camps where persons under house arrest would be detained; that, both by their object and their scope, these provisions do not entail a deprivation of individual liberty within the meaning of article 66 of the Constitution;

6. Considering, secondly, that, in the context of a house arrest pronounced by the Minister of the Interior, the person "may also be required to remain in the place of residence determined by the Minister of the Interior, during the period of time that he determines, within the limit of twelve hours per twenty-four hours"; that the maximum time limit for house arrest under house arrest, set at twelve hours a day, cannot be extended without the house arrest being considered a measure of deprivation of liberty, subject to the requirements of article 66 of the Constitution;".

However, the so-called "lockdowns" and "curfew" measures can legally be qualified as measures of house arrest, which violate individual liberty:

- the so-called "lockdown" measure is a measure of house arrest for more than 12 hours.

- the so-called "curfew" measure is a measure of house arrest from 12:00 noon (at the most).

On the basis of article 6 of the law n° 55-385 of April 3, 1955 relating to the state of emergency regime:

- these measures can only be taken by the administrative police if there are serious reasons to believe that the behavior of ANY individual constitutes a THREAT to public safety and order,

these measures MAY HAVE NO OTHER PURPOSE than to preserve public order and PREVENT INFRINGEMENTS.

- these measures may not exceed 12:00 a.m. by midnight and this time slot may not be extended without house arrest being considered as a measure involving deprivation of liberty.

It follows that:

- Measures of house arrest of more than 12:00 noon by 24:00 hours are in principle the responsibility of the judicial judge in accordance with Article 66 of the Constitution.

- Measures of house arrest of 12:00 (at the most) are also the responsibility of the judicial judge if it is not demonstrated by the administrative authority that all citizens taken individually represent by their behavior a threat to public order and security and are likely to commit an offence under the Penal Code.

Consequently, the Prime Minister and the Minister of Health may not take by decree measures of house arrest against the entire population outside the above-mentioned conditions, whether it be measures of house arrest of a time slot of more or less 12:00 hours by 24:00 hours knowing that the threat of an offence under the Penal Code is not demonstrated or justified.

The main condition for the existence of a serious reason to believe that the behaviour of all citizens is a threat to public order and security is therefore not met.

These measures of house arrest (without any serious reason to believe that all citizens behave in a way that threatens public security and order) infringe on the individual freedom of each citizen and are therefore clearly not subject to any power belonging to the administrative authority.

In addition, more than twenty-five studies cited in the context of the subpoena demonstrate the harmfulness of the house arrest measures taken during the crisis. Among these twenty-five studies, four were "peer-reviewed", including one conducted by French researchers (I add this to cut short the eternal discussions, knowing that the subpoena is above all a legal demonstration).

Moreover, we denounce the use of the number of "positive" RT-PCR test results (and not of patients) to justify all the liberticidal measures taken during the crisis.

Indeed, it is now widely demonstrated by numerous studies also cited in the assignment, that RT-PCR tests were not designed to diagnose CoV2-SARS. Legal action on this subject is being taken throughout the world and is the subject of an annex to the summons.

We will cite a study of September 27, 2020 (updated November 27, 2020), twenty-two scientists (Pieter Borger (Germany), Bobby Rajesh Malhotra (Austria), Michael Yeadon (United Kingdom), Clare Craig (United Kingdom), Kevin McKernan (United States), Klaus Steger (Germany), Paul McSheehy (Germany), Lidiya Angelova (United States), Fabio Franchi (Italy), Thomas Binder (Switzerland), Henrik Ullrich (Germany), Makoto Ohashi (Japan), Stefano Scoglio (Italy), Marjolein Doesburg-van Kleffens (Netherlands), Dorothea Gilbert (Norway), Rainer Klement (Germany), Ruth Schruefer (Germany), Berber W. Pieksma (Netherlands), Jan Bonte (Netherlands), Bruno H. Dalle Carbonare (Switzerland), Kevin P. Corbett (United Kingdom), Ulrike Kämmerer (Germany)) make an independent "peer review" analysis of the original paper by Drosten and Corman and demonstrate that this work has ten major errors that invalidate tests for the diagnosis of Sars CoV-2 infection[3] :

1.  »There is no specific reason to use these extremely high concentrations of primers in this protocol. The concentrations described result in increased non-specific binding and amplification of PCR products, making the test unsuitable as a specific diagnostic tool for the identification of SARS-CoV-2 virus.

2. Six unspecified oscillation positions will introduce enormous variability in the implementation of this test in the laboratory in the real world; the confusing non-specific description in the Corman-Drosten paper [4] is not suitable as a standard operating protocol, making the test inappropriate as a specific diagnostic tool for identifying the SARS-CoV-2 virus.

3. The test cannot distinguish between the whole virus and viral fragments. Therefore, the test cannot be used to diagnose intact (infectious) viruses, making it unsuitable as a specific diagnostic tool to identify the SARS CoV-2 virus and make inferences about the presence of infection.

4. A difference of 10°C from the annealing temperature Tm for primer pair1 (RoDRp_SARSr_F and RoDRp_SARSr_R) also makes the test unsuitable for use as a specific diagnostic tool to identify the CoV-2 SARS virus.

5. A serious error is the omission of a Ct value at which a sample is considered positive and negative. This Ct value is also not present in follow-up submissions, making the test unsuitable for use as a specific diagnostic tool to identify the CoV-2 SARS virus.

6. PCR products have not been validated at the molecular level. This fact renders the protocol useless as a specific diagnostic tool to identify the SARS-CoV-2 virus.

7. The PCR assay contains neither a single positive control to assess its specificity for CoV-2-SARS nor a negative control to exclude the presence of other coronaviruses, making it unusable as a specific diagnostic tool to identify CoV-2-SARS.

8. The design of the test in Corman-Drosten's document is so vague and imperfect that one can go in dozens of different directions; nothing is standardized and there is no standard operating procedure. This strongly questions the scientific validity of the test and makes it unsuitable as a specific diagnostic tool to identify the SARS-CoV-2 virus.

9. It is highly likely that Corman-Drosten's paper was not peer reviewed, making the test inappropriate as a specific diagnostic tool for identifying the SARS-CoV-2 virus.

10. We note serious conflicts of interest for at least four authors, in addition to the fact that two of the authors of Corman-Drosten's article (Christian Drosten and Chantal Reusken) are members of the editorial board of Eurosurveillance. A conflict of interest was added on July 29, 2020 (Olfert Landt is CEO of TIB-Molbiol; Marco Kaiser is senior researcher at GenExpress and is scientific advisor to TIB-Molbiol), which had not been declared in the original version (and is still missing in the PubMed version); TIB-Molbiol is the company that has been "...".first" to produce PCR (Light Mix) kits based on the protocol published in Corman-Drosten's manuscript, and in their own words, they distributed these PCR test kits even before the publication was submitted [20]; furthermore, Victor Corman & Christian Drosten failed to mention their second affiliation: the commercial testing laboratory "Labor Berlin". Both are responsible for virus diagnostics in this laboratory [21] and the company operates in the field of real-time PCR testing.

In light of our review of the testing protocol to identify SARS-CoV-2 described in the Corman-Drosten paper, we have identified inherent errors and flaws that make PCR testing of SARS-CoV-2 unnecessary. "» (…)

The use of PCR assays as a method of measuring infections is not only scientific nonsense, but has apparently been deliberately designed to create as many false positives as possible (and thus panic the world). »

We would also like to remind you that only physicians are authorized to diagnose patients according to the clinical picture and to propose care and isolation measures if necessary, because an RT-PCR test will never replace a physician's diagnosis.

The creator of the PCR test, Dr. Kary Mullis, winner of the Nobel Prize in Chemistry, said in an interview:

"A positive PCR test cannot tell you that you are sick, because with this test you can find almost anything in anyone. Furthermore, diagnosis in medicine is classically the consequence of a logic-rational exercise between clinical signs and symptoms and laboratory tests that help guide the diagnosis. The presence of clinical symptoms has always been necessary to establish a diagnosis; an analytical test is not enough. »

Finally, a Chinese study published on November 20, 2020, made in Wuhan on the basis of 10 million people (representing 94.1% of the population of Wuhan, it is a meta-analysis), has shown that asymptomatic people are not contaminating: the generalized practice of PCR tests within a population is therefore completely useless. [5]

This study leads to the conclusion that the measures of house arrest of the entire population and the mass use of RT-PCR tests on asymptomatic individuals are clearly unjustified.

That being said, I think it is useful to bring this scientific data to the attention of the judicial judge, so that he or she can understand the ins and outs of our collective and citizen action, although, once again, my demonstration essentially uses our legal arsenal.

In this respect, it is important to recall the decision of the Third Criminal Section of the Lisbon Court of Appeal, dated November 11, 2020 [6] (1783/20.7T8PDL.L1-3, Margarida Ramos de Almeida - Testes RT-PCR Privação da liberdade - Detenção ilegal - IRL), which confirms that the eventual reliability of the PCR tests performed depends, from the outset, on the threshold of amplification cycles they contain:

up to 25 cycles, the reliability of the test is about 70%;

up to 30 cycles, the degree of reliability is 20%;

when 35 cycles are reached, the degree of reliability is 3%.

We will let the reader calculate the degree of reliability of the results of the PCR tests used in France with a minimum amplification of 35 or even 40 cycles.

As such, we question the legality of requiring negative PCR test results to be admitted and treated in hospitals and clinics.

FS: What do you want to achieve through this action?

VAR: The so-called "curfew" and "lockdown" measures seriously infringe upon the individual freedom of citizens, human dignity and more generally the fundamental interests of the Nation.

Citizens are therefore legitimate to request termination of these measures of deprivation of liberty, the cessation of the use of unreliable tests to justify all liberticidal measures and to claim compensation from the State for their moral prejudice.

We therefore invite citizens who would like to join this collective action to send an email to the following address by February 21, 2021:

Stop_mesures_liberticides@protonmail.com

1] https://www.conseil-constitutionnel.fr/decision/1977/7675DC.htm

2] https://www.conseil-constitutionnel.fr/decision/2015/2015527QPC.htm

[3] Review Report by an International Consortium of Scientists in Life Sciences (ICSLS) - Corman-Drosten et al., Eurosurveillance 2020:

https://cormandrostenreview.com/report/

[4] Corman Victor M, Landt Olfert, Kaiser Marco, Molenkamp Richard, Meijer Adam, Chu Daniel KW, Bleicker Tobias, Brünink Sebastian, Schneider Julia, Schmidt Marie Luisa, Mulders Daphne GJC, Haagmans Bart L, van der Veer Bas, van den Brink Sharon, Wijsman Lisa, Goderski Gabriel, Romette Jean-Louis, Ellis Joanna, Zambon Maria, Peiris Malik, Goossens Herman, Reusken Chantal, Koopmans Marion PG, Drosten Christian. Detection of 2019 novel coronavirus (2019-nCoV) by real-time RT-PCR. Euro Surveill. 2020;25(3):pii=2000045. https://doi.org/10.2807/1560-7917.ES.2020.25.3.2000045 

https://www.eurosurveillance.org/docserver/fulltext/eurosurveillance/25/3/eurosurv-25-3-5.pdf?expires=1612279441&id=id&accname=guest&checksum=F7899B657F250B726AA85B5D85728CF6

[5] Shiyi Cao, Yong Gan, Chao Wang, Max Bachmann, Shanbo Wei, Jie Gong, Yuchai Huang, Tiantian Wang, Liqing Li, Kai Lu, Heng Jiang, Yanhong Gong, Hongbin Xu, Xin Shen, Qingfeng Tian, Chuanzhu Lv, Chanson de Fujian, Xiaoxv Yin & Zuxun Lu Post-lockdown SARS-CoV-2 nucleic acid screening in nearly ten million residents of Wuhan, China Nature Communications volume 11, Article number: 5917 (2020): https://www.nature.com/articles/s41467-020-19802-w

[6] http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/79d6ba338dcbe5e28025861f003e7b30?OpenDocument