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Case:
CE, Ass. Case Papon
Date:
12 April 2002
Translated by:
J.T. Brown
Copyright:
Professor B. S. Markesinis

In view of the order, filed on 3 October 2001 with the secretariat of the court of the Council of State, by which the President of the Administrative Court of Paris remitted to the Council of State, pursuant to Article R. 351-2 of the Code of Administrative Justice, the petition made to that court by M. Papon;

In view of the petition, filed on 25 September 1998 in the registry of the Administrative Court of Paris, presented on behalf of M. Maurice Papon, of (…) claiming that the State be ordered to be his surety and to relieve him of liability for the sum of F.4,720,000 (719,559 euros) for which he was made liable as civil monetary compensation ordered against him on 3 April 1998 by the Gironde Assize Court;

(…)

Given that (1) M. Papon, who, from June 1942 to August 1944, held the position of General Secretary of the Gironde Prefecture, was, on 2 April 1998, sentenced to ten years of solitary confinement by the Assize Court of that Département for complicity in crimes against humanity, combined with a prohibition in the exercise of his civic, civil and family rights; (2) this sentence arose because of the active assistance afforded by this person in the arrest and internment of several dozens of persons of Jewish origin, among whom were numerous children, who, more often than not after being grouped together in the camp at Mérignac, were transported during July, August and October 1942 and January 1944 in four convoys from Bordeaux to Drancy before being deported to the camp at Auschwitz where they died; (3) the Gironde Assize Court, giving its judgement on 3 April on civil questions, ordered M. Papon to pay to the civil third party interveners (“parties civiles”) firstly the damages claimed by them and secondly the costs incurred by them during the trial and not covered in the legal fees allowed; and (4) M. Papon, after the refusal of the Minister of the Interior to allow the request made to him, petitions that the State be ordered to become his surety and to relieve him of liability for the amount of F. 4,720,000 ( 719,559 euros) imposed upon him pursuant to these sentences;

Concerning the action brought:

Given that (1) pursuant to the provisions of the second paragraph of Article 11 of the Law of 13 July 1983 relating to the rights and obligations of civil servants: “When a civil servant is sued by a third party for fault in the course of service and conflict of jurisdiction has not been pleaded, the public organism must, to the extent that a personal fault which can be detached from his functions cannot be held against this civil servant, cover him against the civil penalties ordered against him”; (2) for the purposes of these provisions, whatever may be the grounds upon which is based the liability of the civil servant as against the victim of the harm, three cases must be distinguished; (3) in the first, where the harm for which the civil servant has been civilly liable arises exclusively from a fault by the Service, the Service is bound to cover the person entirely in respect of the civil liabilities imposed upon him; (4) in the second, where the harm arises exclusively from a personal fault which can be detached from the exercise of his functions, the civil servant who has caused it may not, on the contrary, whatever may be the link between the fault and his Service, be guaranteed by the Service; (5) in the third, where a personal fault has, in respect of the causing of the harm, combined its effects with those of a distinct fault by the Service, the Service is bound to cover the civil servant only for the part attributable to the fault of the Service; and (6) an administrative court which is seized of a dispute between the civil servant and his Service must fix the definitive contribution of the one and the other to the amount of indemnities in the light of the existence and the gravity of the respective faults;

Concerning the existence of personal fault:

Given that the assessment by the Gironde Assize Court, in a dispute between M. Papon and the civil third party interveners concerning a different issue, of the personal fault committed by M. Papon, does not bind the Administrative Court called upon to give a decision within the framework set out above of the relations between a civil servant and his Service;

Given that (1) it appears from the facts found by the criminal court, whose decision is on the contrary vested on this point with the authority of a thing on which judgement has been given (“autorité de la chose jugée”), that M. Papon, while he was General Secretary of the Gironde Prefecture between 1942 and 1944, gave active assistance to the arrest and internment of 76 persons of Jewish origin who were later deported to Auschwitz where they died; (2) although this person maintains that he obeyed orders received from his superiors in the hierarchy or acted under the coercion of the German forces of occupation, the investigation shows that (i) M. Papon accepted that the Service for Jewish Questions of the Gironde Prefecture be placed under his direct authority whereas this link had nothing to do with the nature of the functions carried out by the General Secretary; (ii) on his own initiative and going beyond the instructions from his superiors, he took care to carry out with the maximum efficiency and speed the operations necessary for the search for, and the arrest and the internment of, the persons in question; (iii) finally, he personally applied himself to making as large as possible the four convoys for which he was held responsible by the Gironde Assize Court out of the eleven which left that Département between July 1942 and June 1944, in particular by making sure that children placed with foster families after the deportation of their parents could not be excluded; (3) such behaviour, which cannot be explained only by the pressure brought upon him by the German occupiers, is inexcusable, given the exceptional gravity of the facts and their consequences, and for that very reason amounts to a personal fault which can be detached from the carrying out of his functions; and (4) the circumstance, referred to by M. Papon, that the facts with which he is charged were committed within the framework of the Service or are not without any link with the Service, has no influence on their nature of personal fault for the purposes of the said Article 11 of the Law of 13 July 1983;

Concerning the existence of a fault by the Service:

Given that (1) although the deportation between 1942 and 1944 of persons of Jewish origin arrested and then interned in the Gironde as set out above was organised on the orders and under the authority of the German occupying forces, the creation of the Mérignac internment camp and the power already given to the Prefect in October 1940 to intern foreign nationals “of Jewish race”, the very existence of a Service for Jewish Questions within the Prefecture, with the responsibility to set up and keep up to date a register listing persons “of Jewish race” or Jewish religion, the order given to the police forces to participate in the operations of arresting and interning of persons appearing in this register and that given to administrative officers to afford their assistance to the organisation of convoys towards Drancy – all acts or deeds of the French administration which did not result directly from coercion of the occupants – permitted and facilitated, independently of the action of M. Papon, the operations which were the prelude to deportation;

Given that (1) although Article 3 of the Ordinance of 9 August 1944 relating to Republican Legality on Continental Territory records expressly the nullity of all the acts of the de facto authority calling itself "Government of the French State" which "establish or apply any discrimination whatsoever based on the status of Jewishness”, these provisions cannot have as an effect the creation of a state of irresponsibility of the public authorities in relation to facts or deeds committed by the French administration in the application of such acts between 16 June 1940 and the restoration of republican legality on continental territory; and (2) on the contrary, the above-cited provisions of the Ordinance, by declaring null the obvious illegality of the acts establishing or applying this discrimination, necessarily admitted that the deeds to which such acts gave rise could be seen to faults;
Given that (1) it flows from everything set out above that the fault of the Service analysed above involves, contrary to what the Minister of the interior maintains, the liability of the State; and (2) it falls therefore on the latter to assume, pursuant to the second paragraph of Article 11 of the Law of 13 June 1963, part of the penalties laid down, to be fixed in accordance with the importance of such service fault in provoking the harm indemnified by the Gironde Assize Court;

Concerning the final division of the burden:

Given that, in the circumstances of this case, there will be a fair estimation of the respective shares which can be attributed to the faults analysed above if the State is ordered to assume one half of the total amounts of civil penalties imposed on the petitioner on 3 April 1998 by the Gironde Assize Court;

DECIDES :

Article 1: The State is ordered to assume one half of the total amount of civil penalties imposed upon M.Papon on 3 April 1998 by the Gironde Assize Court.

Article 2: Th remainder of the pleadings in the petition of M Papon is rejected.
(…)

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