APPLICATION/REQUÊTE N ' 12545/86 Jack BOITTELOUP v/FRANCE Jack BOITTELOUP c/FRANC E DECISION of 12 December 1988 on the admissibility of the application DÉCISION du 12 décembre 1988 sur la recevabilité de la requêt e Article 8, paragraph 1 of the Convention The diseiplinap' .sanction o/disniis.sal f a police O, ieer su .specied of living off immoral eaniin ,gs ,?in' coiastinne ait inter- Jerenre ivitlt the ererrise o] the right toi respect for privais tifs . Article 8 , paragraph 2 of the Convention Police ofcer, sospeeied oJ living te immoral earnings, disrnissed without loss of pension rights hp the disciplinarv hody Jiu condor r umrurthv of a police officer. Measure in w't ordant e with the law and iii this crue careridrred necessany in a deinoeratie societ}' for the preveruiott of di Stiraler' . Article 8, paragraphe 1, de la Convention La .sanction disciplinaire de révocation d'un policier soupçonné (le proxénétisme peut constituer une ingerenre dans l'exercice du droit au respect de Ici tic privée . Article 8, paragraphe 2, de la Convention Policier, soupçonné de proxénétisme, révoqué pur l'autorité disciplinaire .sans suspension des droits à pension, pour comportement indigne . Mesure prévue par la loi et considérée en l'espèce cnntnte nécessaire dans uni' société rlémocratigne à la défense de l'ordre . (TRANSLATION) THE FACTS The applicant, a French national, is resident in Sainte-Geneviève-des-Bois . He holds the rank ofjunior police sergeant ("sous-brigadier") in the suite security police unit, Compagnie Républicaine de Sécurité No . 5. In the proceedings before the Commission the applicant is represented by Ms. Sylvie Deniniolle, a lawyer practising in Paris. The facts of the case as submitted by the applicant may be summarised as follows . In June 1982 the commanding officer of the Compagnie Républicaine de Sécurité received a letter from a transvestite who identified himself as "Sabrina" and accused the applicant of living off immoral earnings. After being informed of this correspondence, the applicant made a written report to his superior stating the following facts . "Sabrina" was in tact a certain R .S .C., a known transvestite and police informer wholly dépendent on earnings which he derived from prostitution. This person's activities were known tu the applicant, who had intermittently lived with him between October 1981 and October 1982 . Alter an administrative enquiry had been conducted by the general inspectorate of the national police, the applicant appeared before the disciplinary board dealing with the lower ranks of the Compagnies Républicaines de Sécurité . The board recommended the applicant's dismissal without loss of pension rights for "conduet unworthy of a police officer" . In a décision dated 12 January 1983, the Minister of State, the Minister for the Interior and Décentralisation, upheld the recommendations of the disciplinary board . On 16 Match 1983 the applicant applied tu the Versailles Administrative Court to have the administrative décision against him annulled . 131 In the course of the proceedings pending before the Administrative Court, two criminal judgntents in favour of the applicant were given et the criminal level . He had been commilted for trial before the criminal court in June 1983 by the investigatingjudge to whom the case was referred after the opening of a public prosecution on the following charges : " that he had in Paris from October 1981 to January 1982 or ai al] events over a period which was no( time-barred : i . taken sonie share in the proceeds of another's prostitution and received payments from a person habitually engaged in prostitution ; ii. knowingly lived with a person habitually engaged in prostitution" . an offence provided for by Articles 334 2' and 3', 335-1 quater and 335-3 of the Criminal Code. The First Criminal Chamber of the Paris Regional Court, in a judgment dated 13 December 1983, acquitted the applicant, finding in pa rticular that neither the payment of money nor a minimum degree of permanence in cohabitation had been proved. In a decision of 30 Match 1984, the Paris Court of Appeal upheld the judgment . Having regard to the aforementioned court devisions, the Versailles Administrative Court annulled the dismissal order in a decision of 7 June 1985 on the ground that the ministerial decision was founded on an erroneous tact (namely, actual cohabitation of Sabrina and the applicant during the finie of their relationship) . The Conseil d'Etat, on an appeal by the Minister fur the Interior and Decentralisation, in ajudgment of 14 May 1986 qua .sbed the decision of 7 June 1985 whereby the Versailles Administrative Court had annulled the ministerial decision of 12 January 1983 ordering the applicant's dismissal . In its judgment, the Conseil d'Etat made these findings : .'whereas even though the decisions by the criminal court to acquit found that the cohabitation in question did not have the features required Io constitute the offence of living off immoral earnings, they do not refute the faets accepted by the disciplinary authority ; whereas in these cireumslances the court, in establishing whelher administrative authority was exceeded . must decide on such evidence as is adduced. which may differ from the evidence heard by the criminal court, as to the substantive truth of those facts ; whereas it dues not appear from the file that the ministerial decision of 12 January 1983 accepied tacts which were substantively incorrect in finding that in the hast quarter of 1981 B . had cohabited with a person whose habitua] recourse tu prostitution was not unknown to him ; whereas, therefore, the Administrative Court's decision to annul the aforesaid decision was mistakenl y 132 grounded on the substantive incorrectness of the facts which were held against B. ; whereas the Conseil d'Etat, having before it the entire proceedings by the cumulative effect of the appeal procedure , needs to consider the outrer arguments raised by B . belote the Administrative Court ; whereas the facts charged , which as stated above must be deemed substantively correct, and which were ]table to bring discredit upon the service to which he belongs, could legally warrant a disciplinary sanction ; whereas in relying, on those facts in imposing the sanction of dismissal without loss of pension rights, the Minister made an assessment which is not manifestly erroneous ; . . . COMPLAINTS (Extract) The applicant firstly alleges a violation of Article 8 of the Convention . The relations which he maintained with a homosexual did not constitute a criminal offence. Nonetheless , he was in tact pena]ised for homosexuality, and dais discloses interference by a public authority in his private life . THE LAW (Extract) 2. The applicant has Ifurtheri claimed thai the disciplinary sanction imposed on him violated his right to respect for his private life secured by Article 8 of the Convention . The Commission will consider the question whether the measure complained of by the applicant constitutes an interference with the rights secured to him by Article 8 of the Convention and, if se, whether such interference is justi fiable having regard to paragraph 2 of the saure provision. Article 8 is worded as follows "I . Everyone bas the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordante with the law and is necessary in a democratic Society in the interests of national security , public safety or the economic well -being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others ." 133 Referring to the case-law of the Convention organs (in particular, Eur . Court D.H ., Dudgeon judgment of 22 October 1981, Séries A no . 45, pp. -18 ff., paras . 40 ff.). the Commission finds that such a measure may constitute interference with the exercise of the rights secured by the first paragraph of Article 8, in particular the right of the person concerned to respect for bis private lite . Paragraph 2 of Article 8 nevertheless permits certain restrictions on the exercise of the rights referred to in the first paragraph, and the question must be raised whether the interférence provided for by French législation nieets the requirements of Chat paragraph . If il is not Io infringe Article 8 of the Convention, the interference must firstly have been "in accordante with the law" . This requirement is met in the present case, in that the sanction was prescribed by the Order of 4 February 1959 on the general status of civil servants ("ordonnance relative au Statut Général des fonctionnaires") and more specifically by the Decree of 24 January 1968 laying down the common provisions applicable to officers in the active service of the national police, as amended by the Decree of 8 February 1973 . Invoking these provisions, the Minister observed in bis dismissal order that "over the last quarter of 1981 the applicant cohabited with a transvestite habitually engaged in prosti tution ; it bas been ascertained that the officer was fully aware of the activities carried on by the person whose bedroom he shared ; lastly, he no longer displays the moral qualities required of a police officer", and accordingly imposed on the applicant the disciplinary sanction of dismissal without lors of pension rights . In addition , the interférence must serve one of the aims set forth in paragraph 2 of Article 8 . Assuming that the measure taken in respect of the applicant constitutes an interference with the exercise of the rights secured by Article 8, the Commission observes that the interférence occurred under the procédure prescribed by the abovementioned provisions . Its aims were legitimate and were intended to "prevent disorder" Io the estent that an officer in the active service of the national police assists in the maintenance of law and order . Lastly, the Commission must consider whether the measure constituting interference was "necessary" in a democratic society and thus proportionate to the legitimate aims pursued by the législation . The Commission notes that in the criminal court devisions tu acquit the applicant . while the cohabitation was not found to have been of such a nature as to constitute the offence of living off immoral earnings, neither were the tacts accepted by the disciplinary authority refuted . These facts, as pointed out by the highest administrative court, "were fiable to bring discrédit upon the service to winch (the applicani) belongs (and) could legally warrant a disciplinary sanction : . . . in relying o n 134 those facts in imposing the sanction of dismissal without loss of pension rights, the Minister made an assessment which is not manifestly erroneous ; . . . .. . The Commission notes in particular that the measure of dismissal did not entait loss of pension rights . It further stresses that the assessment made by the national authorities as to the potential repercussions of the applicant 's conduct on the good reputation which a police force must have was neither arbitrary nor unreasonable, taking into account the margin of appreciation allowed to the State authorities . In the light of ail the foregoing facts, the Commission concludes that the interference complained of does net exceed what is necessary for the prevention of disorder in a democratic society . The measure constituting interference was therefore proportionate to the amis pursued . It follows that on this point the application is manifestly ill-founded and must be rejected in accordance with Article 27 para. 2 of the Convention . 135