Can a witness be heard by the disciplinary council in the absence of the accused agent? Yes but conditionally, replied the administrative court of Nancy in a judgment M. A… c/ Lorraine Higher School of Art dated November 21, 2024 (req. no. 21NC02420).
The latter in fact considered that in the absence of the accused official or his representative, the disciplinary council can only hear a witness if the agent has been previously informed of this hearing and has voluntarily waived attendance at the hearing. meeting of the disciplinary council or has not justified any legitimate reason requiring its postponement.
In this case, Mr. A…, territorial artistic teaching assistant at the École supérieure d'art de Lorraine (ESAL) for a teaching load of 20 hours per week, was recruited by contract in 1992 and tenured on December 1, 1998. Following the initiation of disciplinary proceedings against him, the disciplinary council, on March 9, 2020, issued an opinion unfavorable to any sanction. However, the president of ESAL, by an order of April 20, 2020, excluded Mr. A… for a period of fifteen days.
The latter challenged this decision before the Strasbourg administrative court, which dismissed it. He then appealed.
Before the administrative court of appeal, Mr. A… argued in particular that the disciplinary council had heard a witness called by the ESAL in his absence.
The court dismissed on argument. He in fact considered that “ neither articles 6, 7 and 8 of the decree of September 18, 1989, nor any other provision or principle require the administration to inform the accused official, prior to the meeting of the disciplinary council, of his intention to have a hearing witnesses or their identity. It is up to the disciplinary council to decide whether it is necessary to hear witnesses. »
However, she added, the disciplinary council cannot, “ without disregarding the rights of the defense and the adversarial nature of the procedure, hear the witnesses on the same day of the session without having given the accused official the opportunity to attend their hearing. In the absence of the official or his representative, the disciplinary council may only hear a witness if the agent has been previously informed of this hearing and has voluntarily waived the right to attend the meeting of the disciplinary council or has demonstrated no legitimate reason requiring its postponement. »
However, continued the court, “ if the ESAL did not inform Mr. A…, prior to the meeting of the disciplinary council of March 9, 2020, of its intention to call a witness and that the agent being prosecuted was not personally present at the disciplinary council, he was however represented by two people of his choice who were thus able to read the testimony and make any useful observations. Consequently, the argument based on the irregularity of the summons of the witness must be rejected. »
This judgment can be consulted from the following link:
https://www.legifrance.gouv.fr/ceta/id/CETATEXT000050655152?init=true&page=1&query=21NC02420&searchField=ALL&tab_selection=all
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