Information Note on the Court’s case-law

October 2022

Thevenon v. France (dec.) - 46061/21

Decision 13.9.2022 [Section V]

Article 35

Article 35-1

Exhaustion of domestic remedies

Application to Court without exercise of effective remedy of judicial review against orders suspending a firefighter from duty for refusing COVID-19 vaccine: inadmissible

Facts – The applicant, a professional and volunteer firefighter, refused to get the COVID‑19 vaccine, which was made mandatory for healthcare and emergency services workers by Law no. 2021‑1040 of 5 August 2021. As a result he was suspended from duty, with full loss of his pay, by two orders of 15 September 2021.

The applicant did not bring proceedings in the administrative courts for a judgment on his grievances regarding the vaccination requirement and the consequences, for his work, of refusing the vaccine. He applied directly to the Court, relying on Article 8 of the Convention, read alone and in conjunction with Article 14, and Article 1 of Protocol No. 1.

Law –

Article 35 § 1: The applicant had not applied to the administrative courts for judicial review of the orders of 15 September 2021 suspending him from his post as a professional firefighter and from service as a volunteer firefighter. And yet he had had a time window of two months, as of that date, in which to do so.

In French law, an action for judicial review, or recours pour excès de pouvoir , was one of the domestic remedies that had to be exhausted. An effective domestic‑law remedy had therefore been available to the applicant in that he could have instituted challenges in the administrative courts not only to the decisions concerning him individually – the two suspension orders of 15 September 2021 – but also to the compatibility of Law no. 2021‑1040, and its implementing order, with the Articles of the Convention on which he was relying before the Court.

The applicant had also submitted that the 19 July 2021 advisory opinion of the standing committee of the Conseil d’État had been of such a character as to relieve him of the onus of raising a challenge to Law no. 2021-1040 in the course of proceedings concerning his individual situation. However, the mere fact that an institution had both advisory and adjudicatory functions was not sufficient to call into question its impartiality in discharging the latter. Accordingly, it could not be concluded from the opinion handed down by that advisory arm of the Conseil d’État that the content of the opinion and the conclusions reached therein had amounted to a prejudgment or would have been binding on members of the judicial division of the Conseil d’État if called upon to decide a challenge brought by the applicant.

Conclusion : inadmissible (failure to exhaust domestic remedies).

(See also Zambrano v. France (dec.) , 41994/21, 21 September 2021, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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