6.  The applicant was born in 1958 and lives in Louvencourt.
7.  He was hired in 1976 by the French national railway company (Société nationale des chemins de fer – “the SNCF”), where he last worked as Deputy Head of the Amiens Regional Surveillance Unit. He stated that in 2007 he had complained to senior management about the conduct of one of his subordinates, who, he alleged, had used extreme language when addressing a colleague. The employee in question had then filed a complaint against him, following which the applicant had been charged with making false accusations. The applicant had subsequently been suspended from duty by the SNCF on grounds of that charge.
8.  The proceedings were discontinued a few months later, whereupon the applicant notified his employers of his wish to be reinstated in his former post. He received a reply inviting him to consider appointment to another post, but maintained his original request.
9.  On the day of his reinstatement, on 17 March 2008, the applicant found that his work computer had been seized. After being summoned by his superiors, he was informed on 5 April 2008 that the hard disk on the computer had been analysed and that “address change certificates drawn up for third persons and bearing the Lille General Security Service logo” had been found, as well as a large number of files containing pornographic images and films. It can be seen from the judgment of the Amiens Court of Appeal of 15 December 2010 (see paragraphs 14-15 below) that the person who had replaced the applicant during his suspension from post had found “documents which had caught his attention” on the computer, and that he had alerted his superiors in March 2007 and January 2008.
10.  A request for a written explanation was sent to the applicant on 7 May 2008. He replied that in 2006, following problems with his personal computer, he had transferred the contents of one of his USB keys to his work computer. He added that the files containing pornographic material had been sent to him by people he did not know, via the SNCF’s Intranet.
11.  The applicant was summoned to a disciplinary hearing, which took place on 21 May 2008. On 9 June 2008 he was informed by the “resources management director” of Amiens head office that a proposal had been made to dismiss him from the service and that he would be summoned to appear before the disciplinary board. The board convened on 15 July 2008.
12.  On 17 July 2008 the SNCF regional director decided to dismiss the applicant from the service. His decision was worded as follows:
“ ... the analysis of the files stored on the hard disk of [the applicant’s] work computer, used for his professional duties, contained the following:
i) change of address certificate, signed in his name, certifying the transfer on 01/11/2003 of Ms Catherine [T.] to the Lille General Security Service; the original certificate, sent to ICF North-East enabled the notice period for vacating her flat to be shortened;
ii) change of address certificate, bearing the Ministry of Justice logo, in the name of M. [S.-J.], governor of Fresnes Prison, certifying the transfer of M. [P.] Frédéric to Strasbourg Prison, from 1 November 2006;
iii) draft documents drawn up in the name of Michel [V.], director of the SOCRIF, certifying his financial situation with regard to that company;
iv) a very large number of files containing pornographic images and films (zoophilia and scatophilia).
These facts are in breach of the special obligation of exemplary conduct inherent in the duties formerly performed by him within the General Security Service, and of the following provisions:
i) Article 5.2 of the RH 0006 on the principles governing the conduct of SNCF officials;
ii) the general security database RG 0029 (information systems security policy – user’s charter);
iii) the RA 0024 “code of professional conduct” - conduct to be observed with regard to the company’s information system;
iv) Article 441-1 of the Criminal Code.”
13.  On 28 October 2008 the applicant brought proceedings before the Amiens Industrial Tribunal (conseil des prud’hommes) seeking a ruling that he had been dismissed without genuine or serious cause. On 10 May 2010 the Industrial Tribunal held that the decision dismissing the applicant from the service had been justified and, accordingly, rejected his claims.
14. On 15 December 2010 the Amiens Court of Appeal upheld the substance of that judgment. It held, in particular, as follows:
“ ... [The applicant] submitted that the SNCF had infringed his private life by opening, in his absence, files identified as personal in his computer.
As a matter of policy, documents kept by employees in the company’s office, save those identified by them as personal, are presumed to be for professional use, meaning that the employer can have access to them in the employee’s absence.
It can be seen from the report drawn up by the SEF that the pornographic photos and videos were found in a file called “fun” stored on a hard disk labelled “D:/personal data”.
The SNCF explained, without being challenged, that the “D” drive was called “D:/data” by default and was traditionally used by staff to store their work documents.
An employee cannot use an entire hard disk, which is supposed to record professional data, for his or her private use. The SNCF were therefore entitled to consider that the description “personal data” appearing on the hard disk could not validly prohibit their access to it. In any event, the generic term “personal data” could have referred to work files being personally processed by the employee and did not therefore explicitly designate elements relating to his private life. That had been the case here, moreover, since the analysis of the hard disk yielded numerous work documents (“LGV photos” file, “warehouse photos” ... .
The term “fun”, moreover, does not clearly convey that the file in question is necessarily private. The term can denote exchanges between colleagues at work or work documents kept as “bloopers” by the employee. The employer also rightly pointed out that the user’s charter provided that “private information [had to] be clearly identified as such (“private” option in the Outlook criteria)” and that the same was true of the media receiving that information (“private” folder). The lower court was therefore correct in considering that the file had not been identified as personal.
The same applies to the files containing the impugned certificates registered under the names “Fred [P.]”, “SOCRIF” and “Catherine”.”
15.  The Court of Appeal also held that the applicant’s dismissal from the service had not been disproportionate. It observed that both the SNCF’s Code of Professional Conduct and the internal rules provided that staff were required to use the computers provided to them for exclusively professional ends, with the occasional private use being merely tolerated. It found that the applicant had committed a “massive breach of those rules, going as far as using his work tools to produce a forged document”. In the court’s view, those acts had been particularly serious because, as an official responsible for general surveillance, he would have been expected to be of exemplary conduct.
16.  The applicant appealed on points of law. He submitted, in particular, that there had been a violation of Article 8 of the Convention. The Social Division of the Court of Cassation dismissed the appeal in a judgment of 4 July 2012. It held as follows:
“ ... whilst files created by an employee with the assistance of the computer facilities supplied to him by his employer for work purposes are presumed to be professional in nature, meaning that the employer is entitled to open them in the employee’s absence, unless they are identified as personal, the description given to the hard disk itself cannot confer privacy on all the data contained in it. The Court of Appeal, which found that labelling the hard disk in the employee’s computer “D:/ personal data” could not enable him to use it for purely private purposes and prohibit access by the employer, drew the legitimate conclusion that the files in question, which had not been identified as “private” according to the recommendations of the IT charter, could be lawfully opened by the employer.
The Court of Appeal, which found that the employee had stored 1,562 pornographic files representing a volume of 787 megabytes over a period of four years, and that he had also used his work computer to produce forged certificates, rightly held that such misuse of his office equipment in breach of the rules in force at the SNCF amounted to a breach of his contractual obligations. ...”.
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