CASE OF COUEZ v. FRANCE
Violation of Art. 6-1;Non-pecuniary damage - financial award
Feyyaz Gölcüklü;N. Valticos;R. Pekkanen
6. Mr Couez was born in 1941 and lives at Saint-Quentin (département of Aisne). On 20 January 1989 he had a heart attack during the annual cross-country race held by the company of CRS (Compagnies républicaines de sécurité – mobile security police units) to which he belonged. After being on sick-leave from 20 to 23 January 1989 and from 25 January to 11 April 1989, he returned to work. On 8 February 1991 he applied for extended sick-leave and asked that his heart attack and the subsequent periods of sick-leave should be recognised as work-related so that he would be covered by the rules applicable to police officers injured in the execution of their duty. 7. On 3 May 1991 the inter-département medical board recommended that the application for extended sick-leave should be refused. On 14 May 1991 Mr Couez was notified of his authorities’ refusal to grant him the leave. In a letter of 27 December 1991 the Prefect of the Nord-Pas-de-Calais region informed the applicant that the medical board had recommended that his sick-leave should not be regarded as having been work-related and that he should be declared permanently unfit for active police duties and be transferred to the administrative staff until his retirement at 60; he stated that if either Mr Couez or the Ministry of the Interior refused this transfer, the applicant would be retired on grounds of invalidity with immediate effect. 8. On 20 January 1992 the applicant brought proceedings in the Amiens Administrative Court to challenge the Prefect’s decision of 27 December 1991 to inform him that the medical board had refused to regard sick-leave on 8 April 1990 as having been due to a work-related accident. On 5 February 1992 he also applied for a stay of execution of that decision. In the meantime, on 25 January 1992, Mr Couez had refused transfer to the administrative staff and on 3 February 1992 the Ministry of the Interior had declared him unfit for active police duties and had placed him on the ordinary sick list with retrospective effect from 8 August 1990. 9. In a judgment of 2 July 1992 the Amiens Administrative Court refused the application for a stay of execution of the decision of 27 December 1991. On 10 July 1992 Mr Couez was sent on compulsory unpaid leave of absence (disponibilité) with effect from 8 August 1991, the date on which he had exhausted his entitlement to ordinary sick-leave. On 4 September 1992, in a fresh decision, he was maintained in the same position. 10. On 5 August 1992 the Prefect informed the applicant that a Dr B. had been designated to examine him with a view to his being retired on grounds of invalidity. 11. On 24 March 1993 Mr Couez applied to the Amiens Administrative Court for an interim ruling by its President in the proceedings he had brought on 20 January 1992 (see paragraph 8 above). In an order of 25 March 1993 the President of the Administrative Court refused the application. 12. On 24 January 1994 Mr Couez was retired on grounds of invalidity. 13. On 31 May 1995 the Administrative Court made an interlocutory order for a medical report on the applicant. On 28 June 1996 it quashed the decisions of 10 July and 4 September 1992 in so far as they kept Mr Couez on compulsory unpaid leave of absence from 15 January 1992; it also set aside the decision of 24 January 1994 whereby he had been retired on grounds of invalidity (see paragraph 12 above); the court held that the applicant should have been retired on 25 January 1992, when he had refused the transfer proposal that had been made to him (see paragraph 8 above). On 25 July 1995 Mr Couez had appealed against the interlocutory order of 31 May 1995, and that appeal was still pending in the Nancy Administrative Court of Appeal on the date of delivery of the present judgment. 14. According to the Government, the applicant submitted twenty-seven pleadings between 20 January 1992 (the date of the application to the Amiens Administrative Court) and 28 June 1996 (when that court gave judgment). 15. On 18 March 1992 Mr Couez had also brought proceedings in the Amiens Administrative Court to challenge the decision of 10 July 1992 whereby he had been sent on compulsory unpaid leave of absence (see paragraph 9 above). He subsequently withdrew these proceedings, and on 31 May 1995 the Administrative Court delivered a judgment formally taking notice of the withdrawal. On 31 July 1995 the applicant appealed against that judgment, and the appeal was still pending in the Nancy Administrative Court of Appeal on the date of delivery of the present judgment. 16. According to the Government, the applicant filed seven pleadings with the Amiens Administrative Court (between 18 March 1992 and 31 May 1995) and three in the Nancy Administrative Court of Appeal (between 31 July 1995 and 4 June 1996). 17. The relevant sections of Law no. 84-16 of 11 January 1984 making provisions governing the civil service provide: Section 34 “A civil servant in post shall be entitled to: … (2) sick-leave of up to one year in all during a period of twelve consecutive months in the event of duly certified illness making it impossible for the person concerned to carry out his duties. The civil servant shall then remain on full salary for a period of three months and shall be paid half his salary for the following nine months… However, if the illness arises from one of the exceptional causes referred to in Article L. 27 of the Civilian and Military Retirement Pensions Code or from an accident that occurred in the performance of his duties or when performing them, the civil servant shall be paid his full salary until he is able to resume his duties or is retired. He shall further be entitled to reimbursement of medical fees and expenses directly entailed by the illness or accident. (3) extended sick-leave of a maximum length of three years in cases in which it is established that the illness makes it impossible for the person concerned to carry out his duties, requires prolonged treatment and care, is disabling and has been confirmed as serious. The civil servant shall remain on full salary for one year and shall be paid half his salary for the following two years…” Section 51 “A civil servant is on leave of absence if he is no longer in his original department or service and ceases in that position to enjoy his promotion and pension rights. Leave of absence is either granted at the civil servant’s request or is compulsory at the end of the leave referred to in subsections (2), (3) and (4) of section 34 above. A civil servant on leave of absence who successively refuses three posts offered to him with a view to his reinstatement may be dismissed after consultation of the joint administrative committee.” Section 65 “A civil servant who has become disabled as a result of a work-related accident entailing permanent disablement of at least 10% or an occupational disease may claim a temporary disablement allowance payable in addition to his salary and the amount of which shall be set as a fraction of the minimum salary … corresponding to the percentage of disablement. The eligibility requirements and the arrangements for granting, assessing, paying and reviewing temporary disablement allowances shall be laid down in a decree issued after consultation of the Conseil d’Etat which shall also specify the occupational diseases.”