When the State is accountable for its actions : Specific litigation before the Judicial Agent

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In the shadows of the courts, cases are being played out in which the State is called to account for its actions. These special types of litigation, in which the public authorities are held to account for their regalian activities, form the outlines of a law of exception. Here is a breakdown of the main cases handled by the Agent judiciaire de l'État (AJE).

Assault: when the administration crosses the line

The theory of de facto abuse, which originated in the 19th century, refers to situations where the administration commits an irregularity so serious that it falls outside the scope of administrative law and falls within the jurisdiction of the courts.

This theory underwent a major turning point with the "Bergoend v ERDF" ruling by the Tribunal des conflits on 17 June 2013, which tightened its definition. Henceforth, there are only two cases in which there is an unlawful act:

"Forced execution, under irregular conditions, of a decision infringing individual freedom or the right of ownership" or a "decision that is manifestly not traceable to a power of the administration" with the same effects.

The Court of Cassation strictly applies this new definition. It has done so in several recent cases:

• A ruling of 13 May 2014 concerning property rights
• A ruling on 15 October 2014 clarifying the application to property right infringements
• A judgment of 18 January 2018 on the extinction of a property right

Case law requires both conditions to be met: a gross irregularity AND an infringement of personal freedom or property rights.

The malfunctioning of the public justice service

The abandonment of the principle of the State's non-accountability for judicial proceedings was enshrined in the Act of 5 July 1972, codified in article L. 141-1 of the Code of Judicial Organisation.

This text stipulates that " the State is liable for damages caused by the defective operation of the justice system. This liability is only incurred by a gross misconduct or denial of justice" .

Who can bring an action? Initially, only actual users of the public justice service could bring an action. Case law has gradually broadened this concept:

1. Firstly, to those directly affected by the proceedings, even if they are not parties to the case.
2. Then to the user's beneficiaries, notably in two rulings of 16 April 2008
3. And lastly, in certain circumstances, to victims by ricochet.

Gross negligence has undergone a major change in case law. Since a judgment of the plenary assembly of 23 February 2001, the subjective definition (" such a gross error that a magistrate normally mindful of his duties would not have been drawn into it") has been abandoned in favour of an objective definition: " any deficiency characterised by an event or series of events that indicate the inability of the public justice service to fulfil its mission" .

The denial of justice includes, in particular unreasonable delay in ruling on a litigant's claimsunder Article 6 of the European Convention on Human Rights.

Incidents during police operations

According to the GIRY ruling of the French Supreme Court (Cour de Cassation) of 23 November 1956, the courts have jurisdiction to deal with cases of judicial police operations falling within the scope of the provisions of the Code of Criminal Procedure.

The distinction between administrative police and judicial police is crucial:

• The purpose of administrative policing is preventive (maintaining law and order)
• The judicial police have a repressive aim (investigation of offences)

The additional criterion established by the Tribunal des conflits is that of the "determining cause of the loss" (Société Le Profil judgment of 12 June 1978).

Even in matters of judicial policing, the State is only liable for gross negligence.

In the event of personal misconduct on the part of the employee that is detachable from his or her duties, the State is not liable. The Court of Cassation has ruled that "behaviour that constitutes personal misconduct detachable from one's duties" is illustrated by "unnecessary acts of brutality and violence" and not by "the use of force inherent in the exercise of police duties" (ruling of 10 February 2009).

Compensation for unjustified pre-trial detention

Article 149 of the Code of Criminal Procedure provides for full compensation for the damage suffered as a result of detention. in proceedings resulting in dismissal, acquittal or discharge.

The application must be filed within six months of the final decision. This time limit cannot be adjusted (Commission nationale de réparation des détentions, 12 October 2000).

Compensation is not payable in situations where:

• The decision is based solely on a finding of lack of criminal responsibility
• The decision is the result of an amnesty granted after the detainee was taken into custody
• The statute of limitations has expired after the release of the defendant.
• The person was detained for another reason
• The person freely accused him/herself in order to get the perpetrator off the hook

The claimant's fault may limit compensation. The Commission nationale de réparation des détentions has established that "contradictory and misleading statements" may be considered to have contributed to the damage (decision of 6 July 2000).

Only the material and non-material losses directly linked to the deprivation of liberty are eligible for compensation. Damages suffered by relatives (indirect victims) are not taken into account.

For assert your rights in these complex disputesIn such cases, an in-depth legal analysis is essential. The firm is at your disposal to assess your situation and determine the most appropriate strategy.

Sources

• Act no. 72-626 of 5 July 1972 instituting an enforcement judge and reforming civil procedure
• Article L. 141-1 of the Code of Judicial Organisation
• Judgment of the Tribunal des conflits, 17 June 2013, "Bergoend v ERDF", no. C3911
• Court of Cassation, plenary session, 23 February 2001, no. 99-16.165
• Court of Cassation, 2nd Civil Division, 23 November 1956, "GIRY", No. 56-11.871
• Article 149 et seq. of the Code of Criminal Procedure
• Commission nationale de réparation des détentions, decisions of 12 October 2000 (00 IDP 27) and 6 July 2000 (99 IDP 076)
• Tribunal des conflits, 12 June 1978, "Société Le Profil", Lebon 649
• Court of Cassation, Criminal Division, 10 February 2009, No. 08-84.339

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