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You are here: BAILII >> Databases >> European Court of Human Rights >> BELLET v. FRANCE - 23805/94 [1995] ECHR 53 (4 December 1995) URL: http://www.bailii.org/eu/cases/ECHR/1995/53.html Cite as: CE:ECHR:1995:1204JUD002380594, [1995] ECHR 53, ECLI:CE:ECHR:1995:1204JUD002380594 |
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In the case of Bellet v. France (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of Rules of Court A (2), as a Chamber composed of the
following judges:
Mr R. Bernhardt, President,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr C. Russo,
Mr J. De Meyer,
Mr R. Pekkanen,
Mr J. Makarczyk,
Mr D. Gotchev,
Mr P. Jambrek,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 4 September and
20 November 1995,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 21/1995/527/613. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) and thereafter only to cases
concerning States not bound by that Protocol (P9). They correspond to
the Rules that came into force on 1 January 1983, as amended several
times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission of
Human Rights ("the Commission") and by the French Government ("the
Government") on 1 March and 20 April 1995, within the three-month
period laid down by Article 32 para. 1 and Article 47 (art. 32-1,
art. 47) of the Convention. It originated in an application
(no. 23805/94) against the French Republic lodged with the Commission
under Article 25 (art. 25) by a French national, Mr Daniel Bellet, on
24 March 1994.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby France recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 6 para. 1 (art. 6-1) of the Convention.
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant stated that he wished
to take part in the proceedings and designated the lawyer who would
represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr L.-E. Pettiti, the elected judge of French nationality (Article 43
(art. 43) of the Convention), and Mr R. Bernhardt, the Vice-President
of the Court (Rule 21 para. 4 (b)). On 9 May 1995, in the presence of
the Registrar, Mr R. Ryssdal, the President of the Court, drew by lot
the names of the other seven members, namely Mr B. Walsh, Mr C. Russo,
Mr J. De Meyer, Mr R. Pekkanen, Mr J. Makarczyk, Mr D. Gotchev and
Mr P. Jambrek (Article 43 in fine of the Convention and Rule 21
para. 5) (art. 43).
4. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,
acting through the Registrar, consulted the Agent of the Government,
the applicant's lawyer and the Delegate of the Commission on the
organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant
to the order made in consequence, the Registrar received the
applicant's memorial on 4 July 1995 and the Government's memorial on
11 July. On 26 July the Secretary to the Commission informed the
Registrar that the Delegate would submit his observations at the
hearing.
5. In the meantime, on 11 July 1995, the Commission had produced the
file on the proceedings before it, as requested by the Registrar on the
President's instructions.
6. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
31 August 1995. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mrs M. Merlin-Desmartis, administrative court judge
on secondment to the Legal Affairs Department,
Ministry of Foreign Affairs, Agent,
Mrs C. Nicoletis, magistrat, on secondment to the
Civil Affairs Department, Ministry of Justice,
Mrs S. Ceccaldi, Head of the General Civil Law Office,
Civil Affairs Department, Ministry of Justice, Counsel;
(b) for the Commission
Mr J.-C. Geus, Delegate;
(c) for the applicant
Mrs S. Hubin-Paugam, avocate, Counsel.
The Court heard addresses by Mr Geus, Mrs Hubin-Paugam and
Mrs Merlin-Desmartis.
AS TO THE FACTS
I. Circumstances of the case
7. Mr Daniel Bellet, a French national born in 1944, is a local
government officer of the City of Paris and is on extended sick-leave.
As a sufferer from haemophilia A, the symptoms of which first appeared
in 1948, he has frequently had blood transfusions, and in 1983 and 1984
numerous blood products were administered to him. On 26 October 1983
he was diagnosed as having been infected with the human
immunodeficiency virus (HIV).
A. The applications for compensation
1. The application to the Administrative Court
8. On 19 May 1990 the applicant applied to the Paris Administrative
Court seeking damages from the State on account of his infection.
9. In a judgment of 8 April 1992 the court dismissed his action on
the ground that he had been shown to be HIV-positive outside the period
of the State's liability for negligent failure to act, which began on
12 March 1985, when the ministerial authorities were fully apprised
that the blood products prepared from groups of donors in Paris were
dangerous.
2. The application to the ordinary civil courts
10. Concurrently, in December 1991, Mr Bellet made an urgent
application to the President of the Paris tribunal de grand instance
for an interim order that the National Blood Transfusion Foundation
("the FNTS"), an organisation created by the merger of the National
Blood Transfusion Centre and the National Blood Transfusion Institute,
should pay him the sum of 3,000,000 French francs (FRF) in respect of
damage sustained.
On 13 January 1992 the judge ordered an expert opinion to be
prepared. In a report of 13 April the medical expert concluded that
the applicant's infection had very probably originated in the blood
products supplied by the FNTS.
11. On 19 May 1992 counsel for the applicant, without informing the
court of the claim lodged with the Compensation Fund (see paragraph 15
below), brought a second action against the FNTS for the sum of
FRF 3,000,000.
12. In a judgment of 14 September 1992 the court held: "The HIV virus
contracted by the plaintiff can only have been caused by the massive
administration of blood products supplied by the defendant." The FNTS
was consequently ordered to pay the applicant compensation in the
amount of FRF 1,500,000, and the court ruled that its decision should
be enforceable immediately.
On 16 October 1992 the FNTS, which had learnt of the compensation
paid by the Fund, successfully applied for a stay of execution.
13. On an appeal by the FNTS and a cross-appeal by the applicant, who
had joined the Fund to the proceedings by third-party notice, the Paris
Court of Appeal set aside the judgment of the court below and held that
Mr Bellet's application to have the sum increased to FRF 3,000,000 was
inadmissible. In its judgment of 12 March 1993 it gave the following
reasoning:
"... section 47(III) [of the Act of 31 December 1991 - see
paragraph 21 below] lays down that the Fund shall provide full
compensation for damage resulting from infection.
While the obligation on the Fund and the one that may arise from
the FNTS's liability have different legal foundations, they have
the same purpose, namely full compensation for damage sustained
by victims.
Victims who have submitted a claim for compensation to the Fund
may also bring legal proceedings to obtain compensation for the
damage they have sustained, but once they have accepted the offer
made by the Fund, they cease to have an interest enabling them
to bring proceedings as they have been fully compensated.
The specific damage caused by infection and compensated for by
the Fund is in the nature of pain and suffering, aesthetic damage
and loss of amenity, not an economic loss. In the phase during
which the victim is HIV-positive it includes the distress caused
by reduced life expectancy, uncertainty as to the future,
suffering and the fear of suffering, disruption of family and
social life and damage relating to intimacy. In the phase after
AIDS has developed, it includes suffering, which is greater,
aesthetic damage and loss of amenity.
In the instant case Mr Bellet is suing the FNTS for compensation
for this exceptionally serious damage and as he has been fully
compensated by the Fund, he cannot claim additional
compensation."
14. On 26 January 1994 the Court of Cassation (Second Civil Division)
dismissed an appeal on points of law by Mr Bellet, who had argued that
he had no access to a court for the purposes of Article 6 para. 1
(art. 6-1) of the Convention. It gave the following reasons for its
judgment:
"The Court of Appeal, having found that the damage compensated
for by the Fund was the same as that for which compensation was
being sought from the FNTS and that the acceptance of the offer
of compensation for the specific damage resulting from infection
that had been made to him by the Fund fully compensated
Mr Bellet, rightly concluded - on that sole ground and without
infringing Article 6 para. 1 (art. 6-1) of the European
Convention on Human Rights as the victim had been able to apply
to a court to have compensation assessed for his damage - that
Mr Bellet's action was inadmissible as he lacked any interest
enabling him to bring proceedings."
B. The claim submitted to the Compensation Fund
15. On 9 April 1992, while his civil action was being prepared for
trial and without acting through his lawyer, the applicant had
submitted a claim to the Compensation Fund for Transfusion Patients and
Haemophiliacs that had been set up by the Act of 31 December 1991 (see
paragraph 21 below). He did not inform the Fund of the action he had
brought in the Paris tribunal de grande instance.
16. On 21 May the Fund offered him as "HIV-infection compensation"
the sum of FRF 993,750 payable in three instalments over a period of
two years, from which FRF 100,000 paid out by the private
haemophiliacs' solidarity fund in 1989 was to be deducted. In
addition, the applicant was to receive the sum of FRF 331,250 as soon
as he developed AIDS (acquired immunodeficiency syndrome). The
compensation offer contained the following information:
"At its sitting on 19 May 1992 the Compensation Board decided to
make you an offer of compensation corresponding to the whole of
your specific damage resulting from infection, that is to say the
current and future damage resulting from HIV infection, and
thereafter, if applicable, from the symptoms of AIDS.
On the basis of the average compensation awarded to date by the
ordinary courts and the administrative courts and of the age at
which you have shown that you were infected, the Board has
determined the manner of compensation it is offering you as
follows.
...
If you accept this offer, you should do so by registered letter
with recorded delivery ...
Naturally, the award of this compensation does not prevent you
from claiming other compensation in respect of pecuniary damage
you may sustain or already have sustained, provided, of course,
that you can furnish proof of it.
If this offer is not acceptable to you, you may bring legal
proceedings in the Paris Court of Appeal as provided in
section 47(VIII) of the Act of 31 December 1991 ..."
17. Following acceptance of the offer by the applicant on
7 July 1992, the Fund sent him an initial instalment of FRF 297,920 on
16 July.
II. The compensation scheme
A. Legislative history of the Act of 31 December 1991
1. National Assembly
18. In a report of 5 December 1991 that he laid before the National
Assembly on behalf of the Cultural, Family and Social Affairs
Committee, Mr Boulard, MP, indicated that a victim could seek better
compensation after accepting an offer from the Fund:
"That the compensation procedure is quite distinct is confirmed
by the fact that it is possible for victims or their heirs to
continue civil or criminal actions they may have brought in the
administrative courts or even to institute them where they did
not do so when submitting a claim to the Fund. Compensation by
the Fund is therefore not a `settlement' which precludes judicial
remedies, unlike the aid granted by the public and private funds
set up in 1989, but a compensation scheme based on the concept
of risk and independent of any attempt to determine fault.
A victim must, however, inform the Fund and the court of the
various actions brought. This provision is necessary because the
Fund is subrogated to the victim's rights against the person
liable for the damage or against those who are, for one reason
or another, under a duty to provide compensation."
19. Following the Court of Cassation's judgment of 26 January 1994
in the present case, Mr Mazeaud, MP, proposed an interpretative Act in
order to remove the drafting ambiguities which had given rise to that
judgment. He considered that the court had interpreted the Act of
31 December 1991 in a way that achieved a result opposite to the one
sought by the legislature. He consequently invited Parliament to amend
section 47 of the Act of 31 December 1991 and particularly to delete
in subsection (III) of that section the word "full" and insert at the
beginning of subsection (V) a paragraph worded as follows:
"Acceptance of the compensation offer shall not preclude any
concurrent or subsequent court proceedings in respect of the same
damage."
In a report of 2 July 1994 on Mr Mazeaud's bill on behalf of the
National Assembly's Cultural, Family and Social Affairs Committee,
Mr Leccia, MP, supported the bill in substance and proposed a new text,
adopted by the committee, which read as follows:
"Bill to amend the rules
on compensation for transfusion patients
and haemophiliacs infected with the AIDS virus
There shall be added after subsection (V) of section 47 of
Law no. 91-1406 of 31 December 1991 making miscellaneous
social-welfare provisions a new subsection (V bis) worded as
follows:
`Victims who have already been compensated by the date of
publication of Law no. ... of ... shall retain, notwithstanding
any court decision that has become final, the right to apply to
the Paris Court of Appeal for a fresh assessment of the damage
for which they have already been compensated.'
`In respect of victims who have not been compensated by the date
of publication of Law no. ... of ..., acceptance of the offer of
compensation shall entail abandonment of any concurrent or
subsequent court proceedings in respect of the same damage.
Where a victim applies to the Paris Court of Appeal to challenge
the amount of the offer made him by the Fund, he shall
immediately receive from the Fund an advance amounting to at
least four-fifths of the offer made.'"
This bill is still being considered by the National Assembly.
2. Senate
20. In the opinion of 12 December 1991 that was submitted to the
Senate on the bill then before it on behalf of the Committee on the
Constitution, Legislation, Universal Suffrage, Regulations and General
Administration, Senator Thyraud wrote, inter alia:
"The bill is a response to an exceptional situation. The
arrangements it proposes may be regarded as being likewise
exceptional. Independently of the current investigation into the
apportionment of liability, including criminal liability, the
community must afford the best redress it can for the
consequences of such a tragedy.
...
As indicated in the introduction to this commentary, the
intention of those who have framed the bill was to set up a fully
independent scheme that could not be interpreted as in any way
validating recent trends in the case-law on this matter.
Simultaneously, victims' possibility of resorting to the
procedures of ordinary law, whether in the civil or
administrative courts or in the criminal courts, has been
preserved.
However, the bill's wording is not fully explicit on this
subject, and the text before us is silent as to the possible
effects of earlier court decisions on the Compensation Board's
decisions, and also as to the effects of the Board's decisions
on subsequent judgments of other courts. The bill does not, for
example, make it possible to determine whether or not the Board's
decisions imply recognition of liability or a presumption of
guilt. Similarly, it does not state whether the Board is bound
by earlier decisions of the courts."
B. Legislation
21. Law no. 91-1406 of 31 December 1991 making miscellaneous
social-welfare provisions set up a special scheme for the compensation
of haemophiliacs and transfusion patients who had been infected
following injections of blood products. The distinctive feature of the
system, which is based on solidarity, is that it enables reparation to
be made for the consequences of HIV infection independently of the
investigation of liability. Section 47 provides:
"I. Victims of damage resulting from infection with the human
immunodeficiency virus caused by transfusion of blood products
or injection of blood derivatives carried out within the
territory of the French Republic shall be compensated in the
manner set out below.
II. No final settlement clause whereby a victim undertakes not
to pursue any proceedings or action against any third party in
respect of his infection shall be a bar to the procedure herein
provided for.
III. Full compensation for the damage defined in subsection (I)
shall be provided by a Compensation Fund, having legal
personality, presided over by a serving or retired divisional
president or judge of the Court of Cassation and administered by
a compensation board.
A council whose members shall include representatives of the
associations concerned shall be established to assist the
chairman of the Fund.
IV. In their claims for compensation, victims or their heirs
shall provide proof of their infection with the human
immunodeficiency virus and of the transfusion of blood products
or injections of blood derivatives.
...
Victims or their heirs shall communicate to the Fund all the
information in their possession.
Within three months of the receipt of a claim, a period which may
be extended at the request of the victim or his heirs, the Fund
shall consider whether the conditions for payment of compensation
have been fulfilled. It shall investigate the circumstances
under which the victim was infected and make any necessary
inquiries, which may not be resisted on grounds of professional
secrecy.
...
V. The Fund shall be required to make an offer of compensation
to any victim referred to in subsection (I) within a time-limit
laid down by decree, which may not exceed six months from the day
on which the Fund receives full proof of the damage ...
...
VI. The victim shall inform the Fund of any judicial proceedings
pending. If legal proceedings are brought, the victim shall
inform the court of his application to the Fund.
VII. ...
VIII. The victim shall not be entitled to take legal action
against the Compensation Fund unless his claim for compensation
has been dismissed, no offer has been made to him within the
time-limit referred to in the first paragraph of subsection (V),
or he has not accepted an offer made to him. Proceedings shall
be brought in the Paris Court of Appeal.
IX. The Fund shall be subrogated, for an amount no higher than
the sums paid out, to the victim's rights against the person
liable for the damage and against persons required, for whatever
reason, to make full or partial reparation for that damage,
within the limits of those persons' liabilities. However, the
Fund may institute proceedings on the basis of that subrogation
only where the damage is attributable to negligence.
The Fund may intervene in proceedings in the criminal courts,
even if it does not do so until the appeal stage, where the
victim or his heirs have claimed compensation as a civil party
in proceedings pending against the person or persons responsible
for the damage defined in subsection (I). In such cases it shall
be considered a full party to the proceedings and may have
recourse to all the remedies available in law.
If the acts which caused the damage have given rise to criminal
proceedings, the civil court shall not be required to defer its
decision until there has been a final decision by the criminal
court.
X. Unless otherwise provided, the provisions governing the
implementation of this section shall be laid down in a decree
issued after consultation of the Conseil d'Etat.
XI. ...
XII. The Compensation Fund's sources of revenue shall be
specified in a subsequent Act.
XIII. ...
XIV. ..."
C. The position of the Conseil d'Etat
1. The judgments of 9 April 1993
22. In three judgments of 9 April 1993 the Judicial Assembly of the
Conseil d'Etat ruled that "the State is wholly liable in respect of
persons infected with the human immunodeficiency virus following a
transfusion of non-heat-treated blood products between 22 November 1984
and 20 October 1985".
2. The opinion of 15 October 1993
23. At the request of the Paris Administrative Court in respect of
the Vallée case, on which the European Court had to rule (judgment of
26 April 1994, Series A no. 289-A), the Conseil d'Etat gave its view
on the consequences of bringing concurrent proceedings in the
administrative courts and before the Compensation Fund. Sitting in its
judicial capacity on 15 October 1993, it gave the following opinion:
"1. The decree of 12 July 1993 ..., which is applicable to
cases pending at the date of its publication, ... provides a
solution to the problem raised [by the Administrative Court].
2. ... An administrative court asked to make such an award
should raise of its own motion the fact that the damage
complained of has already been wholly or partly indemnified by
a third party, when the evidence shows this to be the case, even
if that party does not file submissions - on the basis of its
subrogation to the rights of the victim - seeking reimbursement
of the amounts it has paid as compensation for the damage
suffered by the latter.
Accordingly, an administrative court to which a claim for
compensation for damage suffered as a result of infection with
the human immunodeficiency virus has been submitted must, when
it has been informed by one of the parties that the victim or his
heirs have already received compensation for the damage
complained of, deduct of its own motion such compensation from
the amount payable in respect of the damage.
...
Where the sum offered by the Fund has been accepted by the
claimants, ... it should be held that all or part of the damage
complained of has been actually and finally compensated for by
the Fund. Consequently, it is incumbent on an administrative
court which has been informed that this is the case to deduct,
of its own motion, the amount thus owed by the Fund from the
compensation which it orders the public authority liable for the
damage to pay to the victim."
III. Relevant procedural law
24. Decree no. 93-906 of 12 July 1993 adds Articles 15-20 to
Decree no. 92-759 of 31 July 1992 on proceedings brought in the Paris
Court of Appeal under section 47 of Law no. 91-1406 of 31 December 1991
(see paragraph 21 above). It applies to all proceedings pending at the
date of its publication, 17 July 1993.
"Part II
Provisions relating to actions seeking to establish liability
brought against those responsible for the damage defined in
subsection (I) of section 47 of the aforementioned Act of
31 December 1991
Article 15
In order to bring the action by subrogation provided for in
subsection (IX) of section 47 of the aforementioned Act of
31 December 1991, the Fund may intervene in proceedings in any
of the administrative or ordinary courts, even if it does not do
so until the appeal stage. In such cases it shall be considered
a full party to the proceedings and may have recourse to all the
remedies available in law.
Article 16
The registries of the administrative and ordinary courts shall
send the Fund by registered post with recorded delivery a copy
of the procedural documents submitting to those courts any
initial or additional claim for compensation of the damage
defined in subsection (I) of section 47 of the aforementioned Act
of 31 December 1991.
Article 17
Within one month of receipt of the letter referred to in
Article 16, the Fund shall inform the president of the relevant
court by ordinary mail whether or not it has received a claim for
compensation with the same purpose and, if so, what stage the
procedure has reached. It shall also state whether or not it
intends to intervene in the proceedings.
Where the victim has accepted the offer made by the Fund, the
latter shall send the president of the court a copy of the
documents in which the offer was made and by which it was
accepted. The Fund shall, where relevant, indicate the stage
reached in proceedings instituted in the Paris Court of Appeal
under the provisions of Part I of this decree and forward any
judgment delivered by that court.
The registry shall notify the parties of the information
communicated by the Fund.
Article 18
The registry shall send the Fund copies of the decisions given
at first instance and, where relevant, on appeal in proceedings
in which the Fund has not intervened.
Article 19
...
Article 20
The provisions of Articles 15 to 19 shall be applicable to cases
pending on the date of entry into force of [this] decree ..."
PROCEEDINGS BEFORE THE COMMISSION
25. Mr Bellet applied to the Commission on 24 March 1994. He
complained that he had not had access to a court, for the purposes of
Article 6 para. 1 (art. 6-1) of the Convention, to assert his right to
compensation.
26. The Commission declared the application (no. 23805/94) admissible
on 20 October 1994. In its report of 19 January 1995 (Article 31)
(art. 31), it expressed the opinion by twenty-four votes to two that
there had been a violation of Article 6 para. 1 (art. 6-1). The full
text of the Commission's opinion and of the dissenting opinion
contained in the report is reproduced as an annex to this judgment (1).
_______________
1. Note by the Registrar: for practical reasons this annex will appear
not only with the printed version of the judgment (volume 333-B of
Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
27. In their memorial the Government asked the Court to "dismiss
Mr Bellet's application".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE
CONVENTION
28. Mr Bellet argued that the Paris Court of Appeal's judgment of
12 March 1993, in which the court ruled that his action was
inadmissible and which was upheld by the Court of Cassation on
26 January 1994, had deprived him of his right of access to a court,
as secured in Article 6 para. 1 (art. 6-1) of the Convention, which
provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing by [a] ... tribunal ..."
Although he had accepted the offer from the Fund as he was in
urgent need of money before his imminent death, which he knew to be
inevitable, the applicant said that he had thought he was entitled to
sue the party responsible for his infection. He had had no reason to
doubt the outcome of his court action, having regard in particular to
the very terms of section 47(IX) of the Act of 31 December 1991
providing for the subrogation of the Fund and to the legislative
history of the Act showing unanimous agreement that acceptance of an
offer from the Fund had no effect on the continuation of court actions.
Furthermore, the standard receipt form which the Fund asked each victim
to sign included the following words: "I have taken note of the
provisions of section 47(VI) of the Act of 31 December 1991, which
require me to inform the Fund of any pending or future court action."
Furthermore, it could not be claimed that the Court of Appeal had
ruled both on admissibility and on the merits, for if that had been the
case, it would have studied the expert report he had filed.
Lastly, acceptance of the offer did not amount to a settlement,
and if it did, it was a forced one, concluded under duress.
29. Before the Court, the Government advanced somewhat different
arguments from those put forward before the Commission, since they
acknowledged that acceptance of the offer did not amount to a
settlement. Mr Bellet, they said, had had free access to a court with
full jurisdiction.
Quite apart from criminal proceedings to which he could have been
a civil party, three types of action for damages had been available to
him. Firstly, an action in administrative law: in this instance, the
Administrative Court had considered the case and dismissed the claim
in a duly reasoned decision. Secondly, an ordinary civil-law action
for damages: on appeal, the applicant's case had been ruled
inadmissible for want of any interest enabling him to bring
proceedings, a decision affirmed by the Court of Cassation; such a
decision, taken, according to the Government, after the court had
considered the merits of the case both in fact and in law, had not
deprived the applicant of his right to an effective remedy. Lastly,
the special appeal to the Paris Court of Appeal, provided for in the
1991 Act: as it required neither of the usual two different legal
representatives, this procedure was quick and free.
In the instant case, unlike the one under consideration in the
de Geouffre de la Pradelle v. France judgment of 16 December 1992
(Series A no. 253-B), the inadmissibility was based on the very wording
of the Act, the expression "full compensation". That interpretation
accorded with the Court of Cassation's case-law. Admittedly, the
Conseil d'Etat in its opinion of 15 October 1993 had held otherwise.
This inconsistency was explained by the fact that the Act was silent
as to whether a victim, once he had accepted the Fund's offer, could
sue in the courts for additional compensation in respect of the same
damage. As the Act was silent, resort had to be had to further
interpretation or to the legislative history. Both supreme courts had
construed the Act in the light of their settled case-law and their own
techniques of interpretation. And the parliamentary proceedings were
not so clear.
However that might be, it was not for the Court of Human Rights
to rule on the construction of French law, or else it would be setting
itself up as a court of last instance. At all events, the applicant
could not have been misled as to the consequences of his acceptance on
7 July 1992 of the Fund's offer by events after that date, such as the
aforementioned opinion of the Conseil d'Etat.
30. In its report the Commission expressed the opinion that there had
been a breach of Article 6 para. 1 (art. 6-1) of the Convention on the
ground that if there had been a settlement, it had been vitiated by an
inevitable mistake as to the consequences of accepting the Fund's offer
and the applicant's consent had not been freely given.
The Delegate of the Commission submitted that it followed from
section 47(VIII) of the Act of 31 December 1991 that the special appeal
to the Paris Court of Appeal was not available to anyone who had
accepted the Compensation Fund's offer; in a case like Mr Bellet's such
an action would be manifestly inadmissible. On the other hand, it was
clear from the legislative history and the provisions proposed
following the Court of Cassation's judgment in the present case (see
paragraph 19 above) that the legislature had wanted victims to retain
the possibility of resorting to the procedures of ordinary law after
acceptance of an offer from the Fund; its unvarying position showed
that if AIDS-infected haemophiliacs and transfusion patients were to
have been prevented from having access to the courts, an express
legislative provision would have been necessary. That was why the
National Assembly's Cultural, Family and Social Affairs Committee had
considered it essential to add to the 1991 Act a provision of that
kind. Moreover, the last sentence of Article 4 of the statutes of the
Compensation Fund clearly meant that acceptance of the Fund's offer did
not prevent a compensated victim from bringing court actions, whether
civil or criminal.
31. Since establishing the principle of the right of access to a
court in its judgment of 21 February 1975 in the case of Golder v. the
United Kingdom (Series A no. 18, p. 18, para. 36) the Court has
clarified its scope in the following terms:
"(a) The right of access to the courts secured by Article 6
para. 1 (art. 6-1) is not absolute but may be subject to
limitations; these are permitted by implication since the right
of access 'by its very nature calls for regulation by the State,
regulation which may vary in time and in place according to the
needs and resources of the community and of individuals'.
(b) In laying down such regulation, the Contracting States
enjoy a certain margin of appreciation, but the final decision
as to observance of the Convention's requirements rests with the
Court. It must be satisfied that the limitations applied do not
restrict or reduce the access left to the individual in such a
way or to such an extent that the very essence of the right is
impaired.
(c) Furthermore, a limitation will not be compatible with
Article 6 para. 1 (art. 6-1) if it does not pursue a legitimate
aim and if there is not a reasonable relationship of
proportionality between the means employed and the aim sought to
be achieved."
(Fayed v. the United Kingdom judgment of 21 September 1994,
Series A no. 294-B, pp. 49-50, para. 65, citing the Lithgow and
Others v. the United Kingdom judgment of 8 July 1986, Series A
no. 102, p. 71, para. 194, and the Ashingdane v. the United
Kingdom judgment of 28 May 1985, Series A no. 93, pp. 24-25,
para. 57)
32. Without a doubt, French law afforded the applicant a possibility
of bringing legal proceedings; he availed himself of it by suing the
National Blood Transfusion Foundation ("the FNTS") in the Paris
tribunal de grande instance for damages in respect of his infection
with HIV. Having subsequently submitted a compensation claim to the
Fund, he accepted the Fund's offers in respect of his specific damage
resulting from infection and pursued his legal action against the FNTS
by a cross-appeal, joining the Compensation Fund to the proceedings by
third-party notice (see paragraph 13 above). The Court of Appeal held
the action to be inadmissible.
It is true that, as the Government pointed out, the applicant did
not make use of the special appeal to the Paris Court of Appeal
provided for in section 47 (VIII) of the Act of 31 December 1991 (see
paragraph 21 above). However, even though, after acceptance of an
offer from the Compensation Fund, the Court of Appeal has allowed
several appeals of this kind confined to certain heads of damage, those
cases cannot be taken into account seeing that they are both very
recent and controversial.
33. The Court points out that the French State's establishment of a
special scheme for the compensation of haemophiliacs and transfusion
patients infected with AIDS displays a remarkable spirit of solidarity
(see paragraphs 18-21 above).
34. In the instant case, however, it is not for the Court to assess
France's compensation system as such. It will therefore confine itself
as far as possible to examining the specific issues before it (see,
among many other authorities, the Philis v. Greece judgment of
27 August 1991, Series A no. 209, p. 21, para. 61). While it is not
empowered to substitute its own assessment for that of the national
authorities as regards the application of domestic law, it is its duty
to rule at last instance on compliance with the requirements of the
Convention. To this end, it must nevertheless consider the provisions
of the Act of 31 December 1991 in so far as the restrictions on the
right of access stem from the procedures for making use of the remedies
open to Mr Bellet.
35. The Court does not have to examine whether the applicant's
acceptance of the Compensation Fund's offer amounted to a settlement
or not, seeing that the Government no longer relied on that argument.
It remains to be determined whether in ruling that the applicant's
action was inadmissible, the Court of Appeal infringed his right of
access to a court.
36. The fact of having access to domestic remedies, only to be told
that one's actions are barred by operation of law does not always
satisfy the requirements of Article 6 para. 1 (art. 6-1). The degree
of access afforded by the national legislation must also be sufficient
to secure the individual's "right to a court", having regard to the
principle of the rule of law in a democratic society. For the right
of access to be effective, an individual must have a clear, practical
opportunity to challenge an act that is an interference with his rights
(see the de Geouffre de la Pradelle judgment previously cited, p. 43,
para. 34).
37. In the instant case the Court notes that the applicant could
reasonably believe that he was entitled to begin or continue actions
in parallel with his application to the Compensation Fund, even after
accepting the Fund's offer.
Having regard to the wording of section 47(VIII) of the Act,
Mr Bellet cannot be blamed for having referred to the legislature's
intention as disclosed by the parliamentary proceedings. These show
that the legislature did indeed want victims, even if they had already
been compensated, to retain their standing to take proceedings. In the
light of the Act and of the legislative history, Mr Bellet, who had
accepted the compensation in good faith, could not expect that the
Court of Appeal would declare his action inadmissible.
All in all, the system was not sufficiently clear or sufficiently
attended by safeguards to prevent a misunderstanding as to the
procedures for making use of the available remedies and the
restrictions stemming from the simultaneous use of them.
38. Having regard to all the circumstances of the case, the Court
finds that the applicant did not have a practical, effective right of
access to the courts in the proceedings before the Paris Court of
Appeal. There has accordingly been a breach of Article 6 para. 1
(art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
39. Under Article 50 (art. 50) of the Convention,
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the ... Convention, and if the internal law of the said
Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the
Court shall, if necessary, afford just satisfaction to the
injured party."
A. Damage
40. Under the head of pecuniary damage, the applicant sought
FRF 1,129,550 in all. One million francs corresponded to the
difference between the sum actually received from the Fund and the two
million he would have been able to receive from the Court of Appeal if
it had addressed the merits of the issue. The remainder (FRF 129,550)
represented interest at the statutory rate on the additional sum of
FRF 500,000 that the Paris tribunal de grande instance had awarded him
(see paragraph 12 above), interest from which Mr Bellet could have
benefited if the Court of Appeal had complied with Article 6 para. 1
(art. 6-1) of the Convention.
In respect of non-pecuniary damage, the applicant sought
FRF 200,000.
41. The Delegate of the Commission considered that inasmuch as the
Paris Court of Appeal had set aside the aforementioned judgment in
which the applicant was awarded FRF 1,500,000, he should be allowed,
in respect of pecuniary damage, the difference between that sum and the
one granted by the Compensation Fund, plus interest. He was also in
favour of awarding compensation in respect of the alleged non-pecuniary
damage.
42. The Government did not oppose the latter claim but said that the
compensation due to Mr Bellet on account of the loss of opportunities
he had allegedly suffered could not exceed FRF 100,000.
43. The Court considers that on account of the breach found in this
judgment, Mr Bellet sustained a loss of opportunities and undeniable
non-pecuniary damage. Taking into account the various factors and
making its assessment on an equitable basis as required by Article 50
(art. 50), it awards him FRF 1,000,000.
B. Costs and expenses
44. The applicant also sought FRF 136,390 in respect of costs and
expenses incurred in the national courts and before the Convention
institutions, that is to say FRF 94,880 for the national proceedings,
including FRF 11,860 for his appeal on points of law, and FRF 41,510
for the European proceedings.
45. The Government left the matter to the Court's discretion and the
Delegate of the Commission favoured reimbursement of the costs incurred
before the Convention institutions.
46. Making its assessment on an equitable basis, the Court awards a
total sum of FRF 50,000.
FOR THESE REASONS, THE COURT
1. Holds by eight votes to one that there has been a breach of
Article 6 para. 1 (art. 6-1) of the Convention;
2. Holds unanimously that the respondent State is to pay the
applicant, within three months, 1,000,000 (one million) French
francs for damage and 50,000 (fifty thousand) French francs in
respect of costs and expenses;
3. Dismisses unanimously the remainder of the applicant's claims.
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 4 December 1995.
Signed: Rudolf BERNHARDT
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of Rules of Court A, the following
separate opinions are annexed to this judgment:
(a) dissenting opinion of Mr Pettiti;
(b) concurring opinion of Mr Walsh;
(c) concurring opinion of Mr Pekkanen and Mr Jambrek.
Initialled: R. B.
Initialled: H. P.
DISSENTING OPINION OF JUDGE PETTITI
(Translation)
I have not voted with the majority in favour of holding that
there has been a breach of Article 6 (art. 6). That decision may give
satisfaction in humanitarian terms but, in my view, it does not do so
in terms of the case-law on applying the European Convention. I have
nevertheless voted with the majority on the application of Article 50
(art. 50) of the Convention.
The main problem raised by Mr Bellet's application was that of
the availability of a court action to assert his objections and rights.
Were there procedures and remedies in France whereby infected
haemophiliacs and AIDS sufferers could obtain compensation?
On this point the judgment delivered by the Chamber is contrary
to the European Court of Human Rights' case-law (the Golder, Deweer,
Ashingdane, Airey, Powell and Rayner, Fayed and British-American
Tobacco Company Ltd series of judgments).
The judgment even uses the wording of the Golder and Ashingdane
judgments (see paragraph 36) in order to provide reasoning for the
opposite result. In Ashingdane it was held that there was no breach.
The Chamber argued mainly on the basis of the concept of no
access to the courts, whereas the question to be determined is whether
there may in this particular case have been either no actions and
remedies or else ineffective remedies for the purposes of Article 6
(art. 6) of the Convention.
On the one hand, the judgment rejects the "surrealistic"
reasoning of the Commission: "the applicant in fact had no choice ...
assuming that there was a settlement, the applicant did not freely
consent to it ... it was tainted with an insurmountable error in the
applicant's favour ... [the] consent was fundamentally vitiated".
Hypothetical reasoning not in accordance with the facts, but the
judgment nevertheless reaches the same conclusion.
On the other hand, the Court notes the Commission's mistake in
saying that there was no possible appeal after acceptance of the
Compensation Fund's offer but draws no practical inferences from this.
The Court mentions three possible procedures and actions in
domestic law - administrative; civil, for damages; and a special appeal
to the Paris Court of Appeal - but it considers only the Court of
Cassation's judgment upholding the Paris Court of Appeal's judgment on
the lack of standing to take proceedings.
AIDS sufferers and haemophiliacs could also take criminal
proceedings against the management of the National Blood Transfusion
Centre and the prescribing physicians; and even an action against
ministers in the Court of Justice of the Republic. Many associations
of infected people and infected individuals have used the criminal
remedy in the Criminal Court and have obtained convictions and
substantial damages.
Of all the Council of Europe member States that have experienced
the tragedy of infection, France is the only one to have provided for
multiple rights of action: an action against the State for negligence
and also against the National Blood Transfusion Centre; an application
to the Administrative Court; a civil action against doctors and private
transfusion centres; criminal proceedings against doctors and private
transfusion centres; proceedings in the Court of Justice of the
Republic against ministers and the Prime Minister (the only example in
Europe in this field).
Furthermore, provision has been made for lump-sum compensation
allowing victims to obtain compensation without having to prove
liability and negligence on the part of the State or the National Blood
Transfusion Centre, and a solidarity fund has been set up.
A special appeal lies to the Paris Court of Appeal if the offer
is refused, and in several cases an appeal has been allowed even after
the offer has been accepted and compensation paid.
In the instant case Mr Bellet considered that in the light of the
legislative history and the judgment obtained in the tribunal de grande
instance against which an appeal was lodged, he had been deprived of
a legal action in that the Court of Appeal, upheld by the Court of
Cassation, had ruled that the application was inadmissible "for want
of any interest enabling proceedings to be brought".
The Court has accepted this argument on grounds different from
those advanced by the Commission. The Commission concluded as follows:
"56. ...
In view of the seriousness of the disease contracted by the
applicant, on the one hand, and the uncertainty of living long
enough to benefit from the compensation fixed by the civil
courts, on the other hand, the Commission considers that the
applicant in fact had no choice. He cannot therefore be blamed,
given the critical and precarious situation regarding his future,
for accepting the offer made by the Fund or for failing to object
to an arrangement which clearly needed to be concluded as a
matter of extreme urgency. The Commission therefore considers
that even assuming that there was a settlement, the applicant did
not freely consent to it.
57. Moreover, the Commission considers that the applicant could
not have known either from the text of the Act or the preparatory
documents, and still less from the interpretation given by the
Conseil d'Etat, that his acceptance of the Fund's offer would
have the consequences drawn by the Court of Appeal and the Court
of Cassation.
The Commission notes furthermore that the Fund's offer included
the condition that the applicant inform the Fund accordingly
should he decide, having accepted the offer, to bring legal
proceedings.
In the circumstances, the Commission considers that, if indeed
there was a settlement, it was tainted with an insurmountable
error in the applicant's favour, this error being caused by
various institutions rendering the respondent State liable.
58. To conclude, the Commission is of the opinion that,
assuming the applicant did waive his right to a fair trial with
the guarantees set forth in Article 6 (art. 6) of the Convention,
his consent was fundamentally vitiated."
The majority of the Chamber appear to have followed the argument
put forward at the hearing by the Delegate of the Commission, who on
the basis of the parliamentary proceedings concerning the Act concluded
that Mr Bellet was bound to believe that he had every chance of winning
his case against the National Blood Transfusion Foundation in the
tribunal de grande instance and in the Court of Appeal, notwithstanding
that he had in principle accepted the lump-sum compensation which
dispensed him from proving negligence.
The applicant considered that he did not have to bring such
actions. The Court has not taken into account the major impact of the
solidarity machinery which made it unnecessary for the plaintiff to
establish negligence. The quid pro quo for this advantage was a
lump-sum settlement which the victim could refuse or challenge.
There was therefore a choice: either act on the basis of
liability for negligence or seek lump-sum compensation (State's
liability without fault).
Because of his condition the applicant chose to proceed against
the National Blood Transfusion Foundation in the civil tribunal de
grande instance, in the first place by means of an urgent application
for an interim order, without precise grounds but referring to
negligence in the application for an advance, and then, in the main
proceedings, on 19 May 1992, this time relying on negligent breach of
contract, that is to say a different ground. In its judgment of
14 September 1992 the court found in his favour. On an appeal by the
National Blood Transfusion Foundation, the case went to the Court of
Appeal. The applicant cross-appealed. The Compensation Fund was
joined to the proceedings by third-party notice. The parties pleaded
on the merits, a fact not referred to in the Court of Appeal's
judgment.
Did the law leave open all parallel actions? It seems not, from
reading all the legislative provisions.
At the stage of the appeal against the judgment of the tribunal
de grande instance, the Paris Court of Appeal learned that the
applicant had accepted the offer and received advances from the
Compensation Fund.
In the operative provisions of its judgment the Court of Appeal,
after holding that it followed from Mr Bellet's acceptance of the offer
that he no longer had any interest enabling him to bring proceedings,
set aside the judgment of the court below and found against the
applicant. The Court of Cassation dismissed an appeal on points of law
on 26 January 1994, "the ground of appeal being unfounded".
The Commission and the Court note this dismissal of the case "for
want of any interest enabling proceedings to be brought" and infer from
it that the applicant was prevented from bringing his action and
therefore from having access to a court.
But access to a court means, according to earlier decisions of
the European Court, that judicial remedies must be available, and does
not mean that if a plaintiff has chosen the wrong action where several
remedies are open to him it follows that he has not had access to a
court.
The applicant, who had accepted the Fund's offer by 18 July 1992
at the latest, had available to him the special appeal to the Paris
Court of Appeal.
No argument can be based on the date of the judgments given in
this connection in favour of other infected individuals. Under the
Convention, what matters is whether statutory provision is made for a
remedy and not the dates of the earliest decisions applying the
provision (see paragraph 32 of the judgment). The uncertainty
pinpointed in the de Geouffre de la Pradelle case related to the
juncture at which the time allowed for appealing began to run and not
to the choice of procedure.
It would seem that the Court has taken the view that the
applicant could in all good faith believe that in the light of the
parliamentary debates, the legislature wanted victims to retain their
standing to take proceedings (see paragraph 37 of the judgment). But
in domestic law a misreading of a statutory provision does not confer
a fresh right of action.
The fact that there is more than one remedy may mislead a
plaintiff as to the choice to be made, without there however being any
lack of access to the courts. The opinion of the Cultural Affairs
Committee of the National Assembly (see paragraphs 19 and 30 of the
judgment) was not adopted by the legislature. Later private members'
bills have no bearing.
In the first place, what is the weight of the parliamentary
debates in the face of the Act and the European Convention on Human
Rights? The quotations from ministers' and MPs' speeches are not
decisive. What matters is the vote on the amendments. And the ones
referred to by Mr Bellet were rejected by the Assembly. No proceedings
were brought to challenge the constitutionality of the Act. It is for
the national courts to resort to parliamentary proceedings in order to
interpret an Act if the Act itself is not "clear". This does not, to
my mind, come within the scope of the European Court's powers of
interpretation.
Even if one were to give consideration to the parliamentary
statement on "the other parallel remedies available", these could refer
to civil actions against doctors and private centres and criminal
proceedings, and not necessarily to taking proceedings in the tribunal
de grande instance when lump-sum compensation had been accepted in
which the quid pro quo to the victim's advantage was the exemption from
having to prove negligence. At all events, appeal against the offer
was possible.
Admittedly, the scope of the Chamber's judgment is limited as the
Chamber decided the case on its particular facts and in the light of
the special circumstances, namely, according to its interpretation, the
fact that the applicant had won his case in the tribunal de grande
instance and could not expect that his action would be dismissed on the
ground that he lacked an interest enabling him to bring proceedings,
when submissions on the merits had been made to the Court of Appeal,
in particular by the intervening third party.
Furthermore, the Paris Court of Appeal's case-law on the special
appeal had not been consolidated by then.
But the reasoning adopted appears to me to be inadequate and not
in accordance with the European Court's case-law in giving so much
importance to the litigant's subjective impressions of the law. A
litigant's mistake made in "good faith" does not necessarily warrant
a finding that there has been a breach of Article 6 (art. 6) of the
Convention on account of a "lack of access to the courts". In the
instant case the law was clear once the amendments had been rejected,
even if the parliamentary proceedings disclosed conflicting
interpretations of it. But national parliamentary proceedings remain
subject to interpretation by the national courts, not by the European
Court. The Court has noted the exemplary solidarity underlying the
compensation scheme, the only one of its kind within the member States
of the Council of Europe.
The Court's final reason (see paragraph 37 of the judgment) -
"All in all, the system was not sufficiently clear or sufficiently
attended by safeguards to prevent a misunderstanding ..." - does not,
to my mind, reflect any applicable principle of domestic law and does
not appear to come within the ambit of Article 6 (art. 6) of the
Convention.
The law was clear and foreseeable, and its effects were
proportionate. It displayed a solidarity unknown in other States.
Certainly, any compensation scheme can be given a humanitarian
reading, but the Convention does not yet make it possible to rule
solely on the basis of an applicant's subjective impressions,
notwithstanding the victim's tragic circumstances.
CONCURRING OPINION OF JUDGE WALSH
I agree with the decision of the Court in all respects. I am of
the opinion that in all the circumstances of the case the applicant
had, objectively speaking, a reasonable expectation that his court
proceedings would be admissible and that his claim would not be
challenged on the ground that in accepting the initial compensation he
had thereby elected not to seek compensation in a negligence action.
CONCURRING OPINION OF JUDGES PEKKANEN AND JAMBREK
We are in agreement with the majority's finding that the
applicant did not have a practical, effective right of access to the
courts, and that there has accordingly been a breach of Article 6
para. 1 (art. 6-1) of the Convention. We reached this conclusion,
however, by somewhat different reasoning from that of the majority.
France's system of provision for court actions seems to us
insufficiently clear to prevent a misunderstanding on the part of
applicants as to the procedures for making use of the remedies
available to them for obtaining additional compensation for the
specific damage sustained. We arrived at this conclusion, however,
mainly because of the differing opinions of the French supreme courts,
rather than because of the legislature's intentions as disclosed by the
parliamentary proceedings. We refer here to the Court of Cassation's
judgment of 26 January 1994 and to the Conseil d'Etat's position in
respect of the interpretation of the law in question (section 47(VIII)
of the Act of 31 December 1991).
Mr Bellet made efforts to avail himself of different judicial
remedies. He applied to the Paris Administrative Court, made an urgent
application to the President of the Paris tribunal de grande instance,
cross-appealed to the Paris Court of Appeal and appealed to the Court
of Cassation, and he had also submitted a claim to the Compensation
Fund. He clearly tried to gain access to various French courts in
order to obtain additional compensation for the damage sustained and
did so for an extended period of time, from May 1990 onwards.
The French State established special arrangements and legal
procedures for the compensation of haemophiliacs and transfusion
patients infected with AIDS. We note that they were created to provide
a legal and judicial response to an urgent, specific public-health and
social issue. In view of the seriousness of the disease contracted and
the uncertainty about living long enough to benefit from the
compensation fixed by various courts, a legal procedure was provided
that was appropriate for cases where compensation had to be afforded
as a matter of extreme urgency.
Mr Bellet's illness progressed to the present stage of his living
behind closed doors while he unsuccessfully pursued various court
actions to gain additional compensation. It is, in our view,
understandable that he should not be able to find his way through the
complexity of the provisions and procedures in domestic law with the
exactness and thoroughness of a plaintiff in an ordinary situation.
Neither could he at the outset clearly assess the legal
consequences of choosing to accept the lump-sum compensation instead
of suing on the basis of liability and negligence. The practical
choice Mr Bellet was confronted with was rather between awaiting the
outcome of judicial proceedings of uncertain duration and accepting
immediate payment of the sum offered by the Fund.
Taking into account the difference of opinion between the French
supreme courts and the existence of the special procedure for dealing
with the misfortune of which Mr Bellet was a victim, we came to the
conclusion that Mr Bellet had adequate reasons for assuming that he
should use the procedure specially created to meet his situation.
We wish to stress that the finding of a breach must be
interpreted strictly in the light of the special circumstances of the
case, which consequently has only a limited value as a precedent.