State liability, personal fault, administrative judge, judicial judge, Captain Thomas M, special operations command, gendarmerie, fault detachable from service
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Abstract
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Abstract
The state's liability for the personal fault of Captain Thomas M. is examined, with the family having the option to engage the state's liability before the administrative judge.
Extract
[...] For example, the Council of State retains by a judgment Raszewski (November 18, 1988), to confirm the commitment of the state's responsibility, that if the assassination was committed by the agent 'outside working hours and with his personal weapon', the personal fault is not thereby 'devoid of all link with the service' as long as the agent takes advantage of his membership in the gendarmerie to mislead the investigations. In this case, The captain Thomas M., while on leave, lets a defense journalist understand that France is about to intervene militarily in the Sahel and mentions that commandos are already deployed on the ground. This revelation to the press is constitutive of a fault. More precisely, the military man has violated the national defense secret. This fault committed with the means of the service is a personal fault detachable from the service by its inexcusable gravity. [...]
[...] is a personal fault not devoid of all link with the service. The cumulation of responsibilities In law, the jurisprudence Pelletier It is a logic of implacable legal reasoning but it can lead to unfair practical results. The victim of a personal fault may indeed never receive the compensation that the judicial judge has condemned the agent to pay to him because the latter does not have the financial means and is not, in the vast majority of cases, covered by his insurer for the damages he causes in the exercise of his professional activity. [...]
[...] However, a patch of irresponsibility remains and concerns military operations. The Council of State by its decision Société Touax, reminds that there is state irresponsibility due to military operations (CE July 2010). The victims thus have the right to compensation for the damages resulting from operations with this character only on the basis of express legislative provisions. The compensation must be comprehensive, that is to say covering the entire damage, but not going beyond the damage caused. A distinction can be made between property damage (damage to property) and personal damage, another between material damage and moral damage. [...]
[...] In this case, a personal fault of Captain Thomas M. not devoid of any link with the service being characterized, the family has the choice of engaging the state's liability before the administrative judge or engaging the officer's liability before the judicial judge. The family can also bring two parallel actions, but without interest in that the victim being compensated for the entire damage, she will not be doubly compensated. The administration may be reimbursed for the amounts it has paid to the family by the engagement of the action in rem against Captain Thomas M. [...]
[...] In law, the faults committed in the exercise of their functions by identified agents are service faults, the consequences of which the legal entity must repair. However, when the agent's fault is detached from the service, it is considered a personal fault for which they must personally answer to the victim: this is one of the oldest distinctions in administrative law July Pelletier). How to identify personal fault? Clearly, the fault of the agent, committed outside of his professional life and having no relation to the service, is personal March Pothier). [...]
