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What is the relationship between disciplinary and criminal proceedings for a civil servant?

Verified 22 octobre 2019 - Directorate for Legal and Administrative Information (Prime Minister)

Misconduct in the performance of duties may justify disciplinary proceedings by the administration and criminal prosecution. Indeed, the same acts may constitute both professional misconduct and a criminal offense.

In addition, where an officer is criminally prosecuted for acts unrelated to the service, the administration may also decide to initiate disciplinary proceedings against him if those acts:

  • are incompatible with the performance of a public service,
  • damage the reputation of the administration,
  • represent a serious breach of probity, which could alter confidence in public action, etc.

However, disciplinary and criminal proceedings are independent. In other words, the outcome of criminal proceedings is not binding on the administrative authority which may decide whether or not to initiate disciplinary proceedings against the staff member. This applies regardless of the decision of the criminal court: conviction, dismissal, release, acquittal, dismissal.

Conversely, the decision of the administration whether or not to punish an agent does not automatically imply that he will be sentenced or dismissed by the criminal judge.

However, the disciplinary procedure and the public action interact in their course.

Indeed, when the administration has knowledge of facts liable to punishment, it must initiate disciplinary proceedings within 3 years of the day on which it became aware of them. After this period, the facts in question are prescribed. They can no longer be subject to disciplinary proceedings. However, where the staff member is the subject of criminal proceedings, the 3-year period shall be interrupted until the final decision has been taken to dismiss, dismiss, acquit, release or sentence.

Depending on the seriousness and circumstances of the offense, the administration may decide to suspend the officer from his duties.. This measure is limited to 4 months. The agent's situation must be finally settled at the end of the 4 months. That is, the administration must have referred the matter to the disciplinary council and decided on a penalty. Otherwise, the staff member must be reinstated (regardless of the seriousness of the facts and even if the disciplinary proceedings are still ongoing).

But here, too, when the officer is subject to criminal prosecution, the situation differs. If the measures decided by the judicial authority and the interest of the service do not prevent this, the staff member may be reinstated or, on reasoned decision by the administrative authority:

  • temporarily employed in a job compatible with the obligations of judicial supervision to which he may be subject,
  • or on temporary assignment to another employment unit or framework for employment compatible with the obligations of judicial review.

The temporary posting or secondment ends:

  • where the staff member's situation is finally settled by the administration (i.e. whether or not it has taken the decision to sanction him),
  • or where the development of criminal proceedings makes it impossible to extend his detention (including pre-trial detention).

The judge who ordered the judicial review, the public prosecutor and the CAP or PPC to which the staff member is responsible shall be informed of the measures taken in respect of him.

Where the staff member cannot, or cannot, be reinstated or retained in his or her duties, temporarily assigned or seconded to another position, the administration may reduce his or her remuneration. This withholding of remuneration may not exceed 50%.. However, the Family Treatment Supplement (FTS) continues to be paid in full.

In the event of dismissal, release, acquittal or dismissal, the staff member shall be reinstated. The administration shall draw up a report indicating the date of reinstatement. If the staff member so wishes, the administration shall, within one month of drawing up the report, bring it to the attention of the public:

  • other staff,
  • and users, where the official concerned is employed in contact with the public.

The staff member shall be removed from office without the disciplinary procedure being required, where he is the subject of a conviction resulting in:

  • disenfranchisement
  • or prohibition of public employment,
  • or the loss of French nationality.

However, he may request his reinstatement from the administrative authority:

  • at the end of the period of deprivation of civil rights,
  • or at the end of the period of prohibition from public employment,
  • or in the event of reinstatement in French nationality.

The application for reinstatement shall be submitted to the CAP.. The administration is not required to respond favorably.