by: Mr. Michael Meiers (represented by Mr. Roland Houver)
victim: The author
of communication: 11 February 1997 (initial submission)
Human Rights Committee, established under article 28 of the
International Covenant on Civil and Political Rights,
on 16 July 2001,
Decision on admissibility
author of the communication is Michael Meiers, a French citizen
residing in Belfort. He accuses the French authorities of a violation
of article 14, paragraph 1, of the International Covenant on Civil
and Political Rights.
author completed a probationary appointment in the French National
Police from November 1987 to 1 January 1990. He was not granted
a permanent appointment at the end of the probationary period
and was dismissed from employment by the Minister of the Interior
on 27 December 1989.
appealed the latter decision to the Administrative Tribunal of
Versailles, which, by a judgement of 17 December 1991, almost
two years later, quashed the decision not to grant him a permanent
appointment. Subsequently, because of the unwillingness of the
Administration to comply with the ruling, the author turned to
the claims section of the Council of State, asking to be reinstated.
This induced the Minister of the Interior to decide, on 17 April
1992, that the author should be reinstated as from 1 January 1990.
on 23 March 1992, the Minister of the Interior appealed the ruling
of the Administrative Tribunal of Versailles to the Council of
State. Owing to an error in the postal address, the author was
not notified by the Belfort Prefecture of the appeal or its underlying
arguments until 19 November 1992. The author then sought the services
of counsel, who filed observations in his defence with the Council
of State on 20 July 1993.
hearing nothing further about the matter, the author went on 3
July 1995 to the competent subsection of the Council of State
to make inquiries. In response to his questions, the Council of
State informed him by mail on 21 August 1995 that the preparation
of his file was complete and that the rapporteur had filed his
conclusions on the case but that it was nevertheless impossible
to specify the date of the hearing.
hearing "apparently" was held on 11 December 1996, but the author
was not told about it and therefore was not present. The
Council of State reversed the ruling of the Administrative
Versailles and sided with the Administration. Its judgement
was communicated to the parties on 14 January 1997.
author observes that the procedure in the original jurisdiction
took two years, which he maintains is an unreasonably long period
of time for a matter involving the reinstatement of a public servant.
Moreover, the procedure before the Council of State also was unduly
prolonged, taking four years and ten months from the filing of
the appeal to the notification of the judgement. In all, therefore,
the proceedings took almost seven years.
author considers that the time taken by the administrative authorities
to rule in his case was unreasonable, whether account is taken
of the entire proceedings or only the part of them before the
Council of State, and that there is therefore a flagrant violation
of article 14, paragraph 1, of the International Covenant on Civil
and Political Rights.
author submits that the time taken is all the more unreasonable
because the file presented no particular difficulty, he himself
did nothing to obstruct the smooth conduct of the procedure and
once his conclusions were filed with the Council of State in July
1993 the case was ready to proceed.
the author notes that the Administrative Tribunals Code sets a
time limit of 60 days for the filing of statements in reply by
the parties, a time limit which has hardly ever been respected
by the Administration. Because of this, the European Court of
Human Rights has ruled against the State party a number of times
(Vallée v. France, ECHR 26 April 1994; Karakaya v. France,
ECHR 8 February 1996).
to the consequences of the prolonged proceedings, the author maintains
that, as a result of the decision of the Council of State, he
again found himself in the situation of five years earlier. Accordingly,
even if he does not contest that the salary received by him during
those years should remain his under the completed-service rule,
he submits that the Administration will seek restitution of the
allowance paid by it for the duration of the procedure in the
original jurisdiction when he was not in post.
addition, following his reinstatement in post, the author continually
encountered problems with his supervisors, and those problems
finally led to his removal from post on 4 April 1996 owing to
his refusal to attend various psychiatric consultations which
he regarded as inopportune. In the meantime, the author set in
motion a considerable number of procedures (appeal against ultra
vires action, liability procedure, procedures before the Medical
Council, ...) which he would not have initiated if the Council
of State had ruled within a reasonable time period.
author evaluates the extent of the harm suffered on account of
the length of the procedure at 3 million French francs (+/-428,000
United States dollars).
to the admissibility of the communication, the author states
that he was unable to bring an action before the European
Human Rights because the Court considers that disputes
of established public servants in disciplinary matters
are not "civil ... obligations" within the meaning of article 6, paragraph 1, of the European
Convention for the Protection of Human Rights and Fundamental
the principle of admissibility before the Committee, on the other
hand, the author refers expressly to the decision of the Committee
in its Casanovas case (Casanovas v. France, 441/1990,
19 July 1994), in the course of which it was to consider that
a procedure for dismissal of an official did indeed challenge
his civil rights within the meaning of article 14, paragraph 1,
of the Covenant. The author seeks the application of this decision
in his case.
and observations of the State party regarding the admissibility
of the communication
State party considers that the communication is not admissible
because it does not fall within the scope of article 14, paragraph
1, of the Covenant.
of all, not granting a permanent appointment after a probationary
period is not a disciplinary procedure and therefore by no means
constitutes a criminal charge. In this regard, the State party
makes a distinction between a disciplinary procedure occurring
during or at the end of a probationary period and a decision marking
the end of the probationary period in which a permanent appointment
is not granted for reasons relating to the candidate's professional
aptitude, as happened in the case of the author. While the law
attaches important consequences to the disciplinary procedure
as the grounds for decisions and the communication of the case,
the same is not true of a decision not to grant a permanent appointment,
which confirms the non-disciplinary nature of the latter.
while the State party is aware of the Committee's decision in
the Casanovas case, cited earlier, it nevertheless considers
that the decision is not relevant in the present case, since the
dispute, even if it involves a pecuniary interest for the author,
relates to a moment in a public servant's career when the discretionary
powers of the Administration are most marked and when the control
of the judge is limited to finding a manifest error of evaluation.
this respect, the State party recalls the decision of the European
Court of Human Rights that disputes relating to the recruitment,
career and cessation of functions of an official do not fall within
the scope of article 6, paragraph 1, of the European Convention
on Human Rights except insofar as they are of an asset-related
nature, the latter term being interpreted in a very restrictive
should be noted that article 14, paragraph 1, of the Covenant
is drafted in very similar terms to those of the aforementioned
article 6. Accordingly, to the extent that the present dispute
does indeed appear to relate to the author's failure to secure
a permanent appointment and in order to maintain consistency in
the interpretation of international instruments, the State party
deems that it would be desirable for the Committee to declare
the communication inadmissible on the ground that it does not
fall within the scope of article 14, paragraph 1, of the Covenant.
a subsidiary point concerning the merits of the communication,
the State party maintains that the author cannot claim to be a
victim of a violation of the Covenant because the length of the
proceedings before the Council of State did not prejudice his
rights, the initial decision of the Administrative Tribunal of
Versailles having already quashed the decision not to grant him
a permanent contract, which meant that the author continued to
work and to receive a salary in the normal way for completed service.
reply to the State party's observations
author recalls that in the Casanovas case the Committee
was indeed of the opinion that a procedure to dismiss an official
from employment was a challenge to civil rights within the meaning
of article 14 of the Covenant.
author considers that the same legal reasoning should apply in
the present case. The procedure to dismiss in the Casanovas
case resulted in the loss of employment with accompanying pecuniary
consequences. Likewise, the decision not to grant permanent status
following a probationary period constitutes, in the case of the
author, a refusal to provide definitive employment, with identical
pecuniary consequences. It is therefore a clear-cut case of challenge
to a civil right, whose principal feature is its asset-related
any event, the author points out that what is at issue here is
to challenge, not the decision on the permanent appointment, but
the length of the procedure, a question which is undoubtedly covered
by the terms of article 14 of the Covenant.
relation to the merits of the communication, the author considers
that the material and moral prejudice deriving from the unreasonable
time of the procedure is manifest. The procedures initiated by
the author after the initial decision of the Administrative Tribunal
were dismissed following the judgement of the Council of State.
But if the author had been informed promptly of the appeal lodged
by the Administration and if the Council of State had reached
its decision within a reasonable time, the cost of the subsequent
procedures could have been avoided.
decision on admissibility
considering a complaint submitted in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules
of procedure, determine whether the communication is admissible
under the Optional Protocol to the Covenant.
Committee notes the State party's observations on the admissibility
ratione materiae of the communication and the State party's
and the author's argument that the ratio decidendi of the
Casanovas case applies in the present case.
Committee is of the opinion, however, that whereas there is no
need to consider the scope of article 14, paragraph 1, of the
Covenant, and while it expresses some concern at the length of
the procedure, the author has not sufficiently established in
the present case that the length of the procedure before the French
administrative authorities concerning the decision of 23 December
1989 not to grant him a permanent appointment caused him genuine
prejudice, firstly because he received compensation for the period
prior to his reinstatement in 1992 and secondly because he continued
to work and to receive a salary until his dismissal in 1996.
Human Rights Committee therefore decides:
- that the communication is inadmissible in accordance with
article 2 of the Optional Protocol;
this decision shall be communicated to the State party and to
the representative of the author of the communication.
* The following members of the Committee participated in the examination
of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke
Ando, Mr. Prafullachandra Natwarlal Bhagwati, Mr. Louis Henkin,
Mr. Eckart Klein, Mr. David Kretzmer, Mr. Rajsoomer Lallah, Mrs.
Cecilia Medina Quiroga, Mr. Rafael Rivas Posada, Sir Nigel Rodley,
Mr. Martin Scheinin, Mr. Ivan Shearer, Mr. Hipólito Solari Yrigoyen,
Mr. Ahmed Tawfik Khalil, Mr. Patrick Vella and Mr. Maxwell Yalden.
in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and
Russian as part of the Committee's annual report to the General