Pelletier Stop
LexInter | October 13, 2007 | 0 Comments

Pelletier Stop

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE

Considering the decree, dated May 16, 1873, by which the prefect of the department of Oise raised the conflict of attributions in a pending proceeding before the court of Senlis, between the sieur Pelletier and the general de Ladmirault , commander of the first military division, Mr. Choppin, prefect of Oise, and Mr. Leudot, special commissioner of police in Creil; Considering the law of 16-24 August 1790, title 2, article 13, and that of 16 Fructidor year 3; Considering article 75 of the Constitution of year 8; the decree issued by the Government of National Defense on September 19, 1870; the law of August 9, 1849 on the state of siege;
Considering, with regard to the interpretation given by the court of Senlis to the decree of September 19, 1870, That the law of August 16-24, 1790, title 2, article 13, provides: “The judicial functions are distinct and will always remain separate administrative functions. Judges may not, on pain of forfeiture, disturb, in any way whatsoever, the operations of administrative bodies, nor summon the administrators before them for the reason of their functions; “
That the decree of 16 Fructidor year 3, add: “Iterative defenses are made to the courts to hear administrative acts of any kind whatsoever;”
That article 75 of the Constitution of the year 8, without ruling on the prohibition made to the civil courts to hear administrative acts, and referring exclusively to the prohibition to summon administrators before the civil courts for the reason of their functions , had stated: “Government agents, other than ministers, cannot be prosecuted for acts relating to their functions except by virtue of a decision of the Council of State; in this case, the prosecution takes place before the ordinary courts; “
Considering that all of these texts established two distinct prohibitions which, although both deriving from the principle of the separation of powers of which they were intended to ensure the correct application, nevertheless referred to objects various and did not produce the same consequences from the point of view of jurisdiction;
That the prohibition made to the judicial courts to hear acts of administration of any kind whatsoever constituted a rule of absolute jurisdiction and public order, intended to protect the administrative act, and which found its sanction in the law conferred on the administrative authority to propose the declinatory and to raise the attribution conflict, when, contrary to this prohibition, the judicial courts were seized of the knowledge of an administrative act;
That the prohibition to prosecute Government officials without prior authorization, intended above all to protect public officials against reckless prosecution, did not constitute a rule of jurisdiction, but created an end of inadmissibility forming an obstacle to all prosecutions directed against these officials for facts relating to their functions, even though these facts were not of an administrative nature and constituted crimes or misdemeanors within the jurisdiction of the courts;
That this end of inadmissibility was only the responsibility of the judicial courts and could never give rise, on the part of the administrative authority to a conflict of attribution;
Considering that the decree issued by the Government of National Defense, which repeals article 75 of the Constitution of year 8, as well as all the other provisions of general and special laws intended to hinder the prosecution of the public officials of all kinds, had no other effect than to remove the end of inadmissibility resulting from the lack of authorization with all its legal consequences and thus to restore to the courts all their freedom of action within the limits of their competence; but that it could not also have the consequence of
That such an interpretation would be irreconcilable with the law of May 24, 1872 which, by establishing the Conflict Tribunal, once again enshrines the principle of the separation of powers and the rules of jurisdiction which result from it;
Considering, on the other hand, that it is necessary, in this case, to apply the special legislation on the state of siege;
Considering, in fact, that the action brought by Sieur Pelletier before the court of Senlis, against General de Ladmirault, commanding the state of siege in the department of Oise, Mr. Choppin, prefect of this department , and M. Leudot, police commissioner of Creil, aims to have the seizure of the newspaper that Pelletier intended to publish, made on January 18, 1873, under the law on the state of siege; consequently, to order the return of the unduly seized copies and to condemn the defendants, jointly and severally, in 2.
Considering that the prohibition and seizure of this newspaper, ordered by General de Ladmirault, in his capacity as commander of the state of siege in the department of Oise, constitute a preventive measure of high administrative police taken by the general de Ladmirault, acting as representative of the public power, in the exercise and the limit of the exceptional powers conferred on him by article 9, n ° 4, of the law of August 9, 1849 on the state of siege, and of which the responsibility rests with the Government which has delegated these powers to it;
Considering that Pelletier’s request is based exclusively on this act of high administrative police; that apart from this act he does not impute to the defendants any personal fact likely to engage their particular responsibility, and that in reality the prosecution is directed against this act itself, in the person of the officials who ordered it or who have cooperated in it;
Considering that from all these points of view the court of Senlis was incompetent to hear the request of Mr. Pelletier;

DECIDES:

DECIDES: Article 1: The conflict decree dated May 16, 1873 is confirmed. Article 2: The judgment of the court of Senlis of May 7, 1873 and the exploit initiating proceedings of March 17, 1873 are annulled. Article 3: Transmission of the decision to the Minister of Justice for execution.

Analysis by the Council of State

The Pelletier judgment is at the origin of the distinction between personal fault and fault of service and thus founds the division of responsibility between the administration and its agents, in the event of fault causing damage to thirds.

Article 75 of the Constitution of year VIII, by virtue of which an individual could not sue an official for an act relating to his functions without the authorization of the Council of State, moreover granted very exceptionally, was remained in force with force of law until its repeal by the legislative decree of September 19, 1870. This decree, taken by the government of National Defense, thus put an end to the “guarantee of the civil servants”. Public officials were now subject to ordinary law and any proceedings against them tried by the courts without specific procedure.

The Pelletier affair, however, gave the Court of Conflicts the opportunity to interpret this text, ruling that it should be combined with the law of August 16 and 24, 1790, by virtue of which: “The judicial functions are distinct and will remain always separate from administrative functions. Judges will not be able, under pain of forfeiture, to disturb, in any way whatsoever, the operations of administrative bodies, nor to call before them the administrators for the reason of their functions “. He considered that there resulted from the law of 1790 and the Constitution of the year VIII two distinct prohibitions, the first constituting a rule of competence intended to protect the administrative act, and the second constituting a procedural rule intended to protect civil servants against “reckless prosecution”, even if the acts for which they were prosecuted were not of an administrative character but constituted crimes or misdemeanors within the jurisdiction of the courts of law. The decree of 1870 had the effect of removing the obligation of prior authorization but not of extending the jurisdiction of the courts and allowing them to hear administrative acts. even if the acts for which they were prosecuted were not of an administrative nature but constituted crimes or misdemeanors within the jurisdiction of the courts. The decree of 1870 had the effect of removing the obligation of prior authorization but not of extending the jurisdiction of the courts and allowing them to hear administrative acts. even if the acts for which they were prosecuted were not of an administrative nature but constituted crimes or misdemeanors within the jurisdiction of the courts. The decree of 1870 had the effect of eliminating the obligation of prior authorization but not of extending the jurisdiction of the courts and allowing them to hear administrative acts.

In the present case, Mr. Pelletier had asked a judicial tribunal to declare illegal the seizure of the newspaper he proposed to publish, carried out under the law on the state of siege, to order the return of the seized copies. and to condemn the commander of the state of siege, the prefect of the department and the competent police commissioner to the payment of damages. The Conflict Tribunal ruled that the applicant’s request was based exclusively on the act of high administrative police, consisting in the prohibition and seizure of the newspaper, taken by the commander of the state of siege, acting as representative of the power. public, in the exercise of the exceptional powers conferred on him by the law of 9 August 1849 on the state of siege. Apart from this act, no personal fact of a nature to engage their particular responsibility was imputed to the defendants, and in reality, the prosecution was “directed against this act itself, in the person of the officials who ordered it or who cooperated in it “. The result was that the judicial judge had no jurisdiction to hear it.

It is from this judgment that the distinction between personal fault – the Conflict Tribunal uses the expression “personal fact” – and fault of service. The personal fault is that which is detached enough completely from the service for the judicial judge to be able to make the observation without making an assessment on the very course of the administration. The fault of service, on the other hand, is the act of the agent who is so linked to the service that his assessment necessarily implies a judgment on the functioning of the administration. According to Laferrière’s formulas, there is a fault of service “if the damaging act is impersonal, if it reveals a director more or less subject to error”;Laumonnier-Carriol, Rec. p. 437). The financial liability of the agent can only be brought into play in the event of personal fault, and it is then before the judicial judge. However, case law has evolved in a more protective direction of victims, confronted with the insolvency of public officials, and of these agents themselves, who may be the object of abusive prosecutions: even in cases of personal fault, except From any link with the service, the victim can also, as in the event of a service fault, sue the administration before the administrative judge (see July 26, 1918, Epoux Lemonnier, p. 761). The administration may, however, in such a case, take recourse action against the responsible agent (see Ass. July 28, 1951, Laruelle , Delville , p. 464).

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