Individual Application

The Facts

The applicant successfully passed the gendarmerie specialist sergeant recruitment examination and commenced service as a specialist sergeant trainee. Nevertheless, the applicant’s contract was terminated following the findings of the security clearance investigation to his detriment. The applicant lodged an administrative appeal seeking the annulment of the act of termination. The trial court ordered the annulment of the impugned act. The decision stated that in the actions brought against the applicant for the offences of threat and intentional injury, a decision on the suspension of the pronouncement of the judgment (HAGB) had been rendered and that a penalty had been imposed for the offence of property damage. In the decision, it was further observed that the applicant’s file contained a negative note indicating he had been tried for the impugned offences and convicted as a result of the acts being established, and that a decision had been rendered on the suspension of the pronouncement of the judgment (HAGB). Consequently, the security clearance investigation had been concluded negatively. The trial court established that the impugned offences were not among the catalogue offences listed in Article 6 of the Regulation on Specialised Sergeants in force at the time of the incidents. Having regard to the occurrence and nature of the disputed acts, the trial court asserted that the applicant could not be characterized as having a criminal personality or to be a repeating offender. The trial court concluded that the acts complained of were not unlawful, since the applicant, who had not received any negative feedback during the recruitment procedure and who had successfully completed his training, had a legitimate expectation to continue in his post. Following an appeal by the Gendarmerie General Command, the Regional Administrative Court upheld the appeal and held that the judgment be quashed and the action be dismissed. The applicant’s appellate request was dismissed with final effect.

The Applicants’ Allegations

The applicant maintained that his presumption of innocence had been violated in the action for annulment of the administrative act brought by the applicant on the grounds that the administrative court’s reasoned decision contained statements insinuating his culpability by referring to criminal proceedings that had not resulted in a final conviction.

The Court’s Assessment

In the present case, in the proceedings against the applicant for the offences of threat and intentional injury, it was determined that Article 231 of the Code of Criminal Procedure No. 5271 was applicable to the imputed offences, and a decision on the suspension of the pronouncement of the judgment (HAGB) was rendered. Therefore, if the period of judicial supervision expires without any further offence being committed, the criminal action against the applicant may be discontinued. Undoubtedly, the applicant’s culpability was not established and his innocence was maintained throughout the period of supervision.

In the reasoning of the decision of the regional administrative court, it was stated that ‘...the decision on the suspension of the pronouncement of the judgment was rendered and pursuant to the relevant article, if the pronouncement of the judgment shall entail no legal consequences for the applicant, in other words, no conviction decision shall be issued against the applicant...’.  Notwithstanding this clause, the subsequent part of the reasoning indicated “...the nature, gravity and multiplicity of the offences committed by the applicant, which led to his conviction, as well as the importance of the public duty at stake and the qualifications associated therewith...” Accordingly, the administrative court considered that the applicant committed the impugned offences and was convicted despite the issuance of the HAGB decision, basing its assessment on the nature and gravity of the criminal offences. In doing so, the applicant was deemed guilty even though the criminal proceedings against him had not resulted in a final conviction and the grounds for terminating the applicant’s contract were not substantiated facts and circumstances in line with the law.

In its reasoning, the regional administrative court relied, on the one hand, on decisions in criminal proceedings that had not resulted in a final conviction and, on the other hand, used statements insinuating that the applicant had committed the imputed offences. It has been observed that the facts and circumstances subject to criminal proceedings were not examined in the reasoning part of the administrative court’s decision. It has therefore been considered that the language employed in the reasoning, including statements attributing criminal liability on the applicant without a final conviction, undermined the applicant’s innocence. This rendered the HAGB decisions devoid of meaning and cast doubts as to the applicant’s innocence.

In conclusion, given the articulated statements and the direct references to the judgments of the criminal court, which resulted within the HAGB, in the reasoning of the regional administrative court’s decision, it has been established that the administrative court’s decision conveyed the belief that the applicant had committed the acts subject to the criminal proceedings and was guilty.

Consequently, the Court has found a violation of the presumption of innocence.