Evolution of Administrative Liability: Decline of Gross Fault in Favor of Simple Fault in Police Activities
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Administrative liability, gross fault, simple fault, police activities, State Council, liability for fault, liability without fault, administrative police, Internal Security Code, responsibility of the State, fault of a third party, proportionality control, Blanco ruling, Lecomte judgment, Amoudruz judgment, Clef judgment, administrative judge, legislative evolution, public services, rupture of equality, citizens before public charges, service fault, judicial police, administrative liability systems, factual responsibility, powers conferred, purposes of powers, fundamental right, individual freedoms, collective freedoms, State responsibility, exoneration from liability, damage attributable to fault, prejudice resulting from fault, direct and certain prejudice, qualified fault, extent of powers
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Abstract
Unlock the nuances of administrative liability in police activities and discover how the State Council's evolving jurisprudence is shaping the concept of fault. Explore the shift from gross fault to simple fault and understand the implications for victims and the administration. Learn how the maintenance of serious fault serves as a safety net for the administration while favoring victims' rights. Dive into the analysis of key judgments, including the Amoudruz and Lecomte cases, and uncover the complexities of administrative liability due to police activities. Understand how the diversification of stakes has led to the evolution of the notion of fault, and how the administration's liability can be engaged or exonerated based on fault or lack thereof.
Extract
[...] In this work, only extra-contractual liability will be mentioned, contractual liability being to be studied in a question of regimes of administrative contracts. Furthermore, our approach must be limited to the police's liability, distinguishing by the same token the personal liability of the guilty agent decided by the "Pelletier" ruling of the Conflict Tribunal of July which distinguishes between damaging facts, those that can be appreciated outside the behavior of the administration constituting personal faults, and non-detachable damaging facts constituting then service faults. [...]
[...] What is the place of fault in the matter of administrative responsibility for police activities? Our society rejects fatalism. It is characterized by a growing demand for security. This demand gives rise to the conviction that every risk must be covered, that the repair of any damage must be rapid and complete, and that society must, to this end, be able not only to compensate for the damage it has itself caused, but also for that which it has not been able to prevent, or whose occurrence it has not known how to foresee" ("« Responsibility and Socialization of Risk », ECDE 2005, n°56, p. [...]
[...] Jurisprudence has repeatedly recalled this principle, notably in the Merah case, where the family of a victim sought to hold the State responsible for the failure of its intelligence services, which could have prevented the attacks. The Administrative Tribunal had supported this position in the first instance. However, after conducting an in-depth analysis of the facts and information available to the State to assess the individual's dangerousness, the judge concluded that the intelligence services had taken all possible measures at the time and did not have additional information to anticipate the individual's actions. Thus, the Marseille Administrative Court of Appeal on April recalled the maintenance of serious fault in its decision. [...]
[...] Thus, administrative liability can be engaged due to its police activities due to an action or inaction of the latter, police activities find their foundation in Article L. 111-1 of the Internal Security Code, which states that security is a fundamental right and one of the conditions for the exercise of individual and collective freedoms. The State has the duty to ensure security by ensuring, throughout the territory of the Republic, the defense of institutions and national interests, respect for the law, maintenance of public peace and order, and protection of persons and property », it is thus a prerogative of the administration This notion of police activities knows different types of disturbances. [...]
[...] In addition, the State Council has recently confirmed the abandonment of gross fault in cases of failure to issue an appropriate regulation, as evidenced by the judgment of the State Council of 9 November 2018 which only requires that users can benefit from a reasonable level of safety. The difficulties of the administrative police activity do not exempt the competent services from their obligation to take appropriate measures, the police authorities are thus not held to a result obligation in this field. [...]
