CASE OF KRESS v. FRANCE
No violation of Art. 6-1 with regard to the fact that the Government Commissioner's submissions were not communicated;Violation of Art. 6-1 on account of the Government Commissioner's participation in the deliberations;Violation of Art. 6-1 on account of the length of proceedings;Non-pecuniary damage - finding of violation sufficient (fairness);Non-pecuniary damage - financial award (as regards length);Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses award - Convention proceedings
Luzius Wildhaber;Nicolas Bratza
11. On 8 April 1986 the applicant, who was then aged 44, underwent a gynaecological operation under general anaesthetic at Strasbourg Hospital. 12. On wakening, she suffered a neurological syndrome. In the days that followed she suffered a further vascular accident and her shoulder was scalded when a cup of tea was upset. Since then she has been 90% disabled; she is hemiplegic, has difficulty coordinating her upper limbs, can speak only with difficulty and suffers from double vision. 13. On 27 May 1986 the applicant made an urgent application to the President of the Strasbourg Administrative Court seeking the appointment of an expert. In an order of 28 May 1986 the President appointed an expert, who filed a report on 2 June 1986 in which he concluded that there had not been any medical error. 14. On 6 August 1987 (after a preliminary claim of 22 June 1987 had been refused) the applicant brought an action for damages against Strasbourg Hospital in the Strasbourg Administrative Court. 15. In submissions of 21 October 1987 the applicant criticised the findings set out in the report of 2 June 1986 and applied for a detailed, thorough expert opinion. 16. In letters of 10 November 1988 and 11 January 1989 the applicant’s lawyers sought to have the case set down for hearing. The clerk of the Administrative Court replied (in letters of 18 November 1988 and 13 January 1989) that on account of the backlog of work, it was not currently possible to foresee the date on which the case might be set down for hearing. 17. The hearing was eventually listed for 19 April 1990. 18. In a judgment delivered on 25 May 1990 the Strasbourg Administrative Court ordered further inquiries into the facts with a view to commissioning a report from a panel of two experts. 19. On 23 October 1990 the experts filed the following findings: “As regards the cerebral arterial thromboses that occurred on 8 April and 17 April 1986, nothing in Mrs Kress’s clinical condition or in the results of the tests made them foreseeable. The treatment of this complication was appropriate to the patient’s state of health and in accordance with the current state of scientific knowledge. As regards the scald on the left shoulder, the experts attribute it to a lack of assistance and organisation in the department.” 20. The applicant criticised that expert report and in reasoned submissions of 22 March 1991 quantified the damage she had sustained. 21. At the request of Strasbourg Hospital the hearing set down for 4 April 1991 was postponed to 13 June 1991. 22. In a judgment delivered on 5 September 1991 the Strasbourg Administrative Court assessed the amount of damage sustained by the applicant as a result of her scalded shoulder at 5,000 French francs and dismissed the rest of the claim for damages. 23. The applicant appealed against that judgment to the Nancy Administrative Court of Appeal. In a judgment of 8 April 1993 that court dismissed the appeal on the ground that whatever the seriousness of the consequences of the surgical operation, the circumstances of the hospitalisation had not disclosed any failure to provide information about the nature of the operation and its foreseeable consequences or any negligence or presumption of negligence in the organisation or running of the relevant department. 24. On 11 June 1993 the applicant, represented by a member of the Court of Cassation and Conseil d’Etat Bar, appealed on points of law against that judgment to the Conseil d’Etat and filed full pleadings on 11 October 1993. She referred to a judgment of the Judicial Assembly of the Conseil d’Etat of 9 April 1993 that had been delivered in the meantime (the Bianchi judgment of 9 April 1993, Revue française de droit administratif 1993, p. 574), in which no-fault liability in hospital cases had been extended to cover the risks of treatment, and in her sole ground of appeal relied on the fact that the hospital should in her case have been found liable without fault. She submitted that there had been a causal link between the operation and the damage, that the existence of the risk had been known, even if it was statistically only a very slight one, and that she had, within the meaning of the Bianchi judgment, sustained extremely serious special damage. 25. Strasbourg Hospital filed a defence on 12 September 1994 and the applicant replied on 16 January 1995. The hospital lodged a rejoinder on 10 March 1995. 26. The case was heard in public on 18 June 1997 by the 5th and 3rd sections sitting together and considered on the basis of a report by the 5th section. After hearing the observations of the reporting judge, those of the parties’ lawyers and, last, the Government Commissioner’s submissions, the Conseil d’Etat reserved judgment. Counsel for the applicant then produced a memorandum for the deliberations (note en délibéré) in which it was argued that the Government Commissioner had wrongly expressed doubts as to the extreme seriousness of the applicant’s afflictions since the operation of 8 April 1986. 27. In a judgment delivered on 30 July 1997 the Conseil d’Etat dismissed the applicant’s appeal on the following grounds: “It appears from the evidence submitted to the courts below that Mrs Kress underwent a hysterectomy on 8 April 1986 at the Strasbourg Regional Hospital Centre. Following that operation, which took place normally, post-operative complications, which supervened twice, caused serious, disabling after-effects and damage for which Mr and Mrs Kress sought compensation, relying in the courts below on mistakes that they alleged had been made by the hospital. Before this Court Mr and Mrs Kress have maintained for the first time that the hospital should have been held liable without fault. On the basis of the unappealable assessment it made of the facts, the Nancy Administrative Court of Appeal inevitably held that no-fault liability on the part of the Strasbourg Regional Hospital Centre for the damage relied on by Mrs Kress had not been made out. In so doing, that court did not make any error of law, seeing that it is apparent from the evidence submitted to the courts below that the circumstances in which such liability could be incurred did not obtain.” 28. The history of France’s administrative courts is essentially that of the Conseil d’Etat. In 1790 the Constituent Assembly implemented the theory of the separation of powers and organised matters so that the executive would not be subject to the judiciary. It preserved the ancien régime principle that administrative authorities should be tried by a special court, in accordance with the idea that judging the administrative authorities was “also an administrative act”. Such a special court was set up by the Consulate in 1799. This was the Conseil d’Etat, which was instituted by Article 52 of the Constitution of 22 Frimaire Year VIII (13 December 1799). It was given responsibilities in two areas: administrative (contributing to the drafting of major enactments) and judicial (settling disputes connected with the administrative authorities). 29. In 1849 an Act vested it with the administration of “delegated” justice (la justice déléguée), and thereafter it accordingly gave its rulings “in the name of the French people”. During the Third Republic the Conseil d’Etat acquired an organisational pattern that it still largely has today. Its function was laid down in the Act of 24 May 1872, which amended the 1849 Act and established delegated justice permanently. 30. The main feature of the post-war period was the organisation of the administrative jurisdiction. In 1953 the administrative courts (of first instance) succeeded the prefectural councils, which had existed since 1799. The 1958 Constitution, which contains only three Articles – 64, 65 and 66 – relating to the judiciary, in particular, to provide that judges (but not members of State Counsel’s offices) are irremovable, does not mention the Conseil d’Etat or the other administrative courts under this head. The Act of 31 December 1987, which came into force in 1989, added to the courts vested with administrative jurisdiction the administrative courts of appeal, to which the bulk of the appellate jurisdiction was transferred. From these new courts and various specialised courts, such as the Court of Audit, an appeal on points of law lies to the Conseil d’Etat as the supreme administrative court. 31. The judges of the administrative courts have a special status different from that of the judges of the ordinary courts and the members of State Counsel’s Office at those courts. They are governed by the general rules on the civil service; however, they are in practice both independent and irremovable (see paragraph 35 below). In 1980 a decision of the Constitutional Council (22 July 1980, Official Gazette of 24 July, p. 1868) established the existence and independence of the administrative jurisdiction as being among the fundamental principles recognised in the laws of the Republic having constitutional rank. 32. The Conseil d’Etat has about 300 members, two-thirds of whom work within the Conseil and one-third outside it. Its nominal President is the Prime Minister and in practice the Vice-President of the Conseil d’Etat presides. By Article 13, third paragraph, of the Constitution, concerning the powers of appointment of the President of the Republic, all the senior members of the Conseil d’Etat (conseillers d’Etat) are appointed by decree of the President of the Republic adopted in Cabinet, while the junior legal assistants (auditeurs) and the middle-ranking maîtres des requêtes are appointed by an ordinary presidential decree, under section 2 of the Ordinance of 28 November 1958 on civil and military appointments. 33. The members of the Conseil d’Etat are recruited in one of two ways: through competitive examination or directly from other parts of the civil service. Legal assistants, recruited through competitive examination, are promoted to the rank of maître des requêtes after about three years’ service and become conseillers d’Etat about twelve years later. External appointments are subject to approval by the Vice-President of the Conseil d’Etat. 34. The status of the members of the Conseil d’Etat is not so much laid down in writing as guaranteed in practice. As regards written rules, mention must be made of the decree of 30 July 1963 laying down the rights and duties of members of the Conseil d’Etat. These rights and duties are very similar to those applying to the civil service (and, in particular, no provision is made for irremovability), with a number of exceptions: no provision is made for assessment, no promotions table is drawn up and an advisory committee replaces both the Joint Administrative Committee and the Joint Technical Committee. 35. It is thus, rather, practice which provides the guarantees enjoyed by the members of the Conseil d’Etat. Three traditional practices are both very long-standing and decisive: firstly, the Conseil d’Etat and its members are managed internally by the Executive Committee (bureau) of the Conseil d’Etat, consisting of the Vice-President, the six division presidents and the Secretary-General of the Conseil d’Etat, without any outside interference. In particular, there is no distinction in the Conseil d’Etat between judges and members of State Counsel’s Office as there is in the ordinary courts, where the members of State Counsel’s Office are subordinated to the Minister of Justice. Secondly, even though there is no written provision guaranteeing the irremovability of members of the Conseil, that guarantee exists in practice. Lastly, while promotion is theoretically by selection, it is in practice – by a custom which goes back to the middle of the nineteenth century – strictly by seniority, and this guarantees the members of the Conseil d’Etat great independence, vis-à-vis both the political authorities and the authorities of the Conseil d’Etat themselves. 36. Most duties within the Conseil d’Etat can be performed by members of any grade. Thus the duties of Government Commissioner, although generally given to maîtres des requêtes, can also be carried out by auditeurs or conseillers d’Etat. 37. The Act of 31 December 1987 instituted a National Council of Administrative Courts and Administrative Courts of Appeal, whose membership ensures that it is independent and representative. The Council has a general advisory role in relation to matters concerning the staff of all the administrative courts (individual measures affecting judges’ careers, promotion and discipline). 38. Procedure in the administrative courts has developed essentially under the influence of the courts themselves. It attempts to achieve a compromise between the public interest – represented in the proceedings by the administrative authorities – and the interests of individuals, who must be effectively protected from misuse of public authority. The procedure is inquisitorial, written and inexpensive, and its distinctive feature is that one of the parties is a public body. 39. The Conseil d’Etat consists of five administrative divisions (Interior, Finance, Public Works, Social, and Report and Research) and a Judicial Division, itself subdivided into ten sections (sous-sections). 40. Where a case has been assigned to a section, the president of the section appoints one of its members as reporting judge to examine the case. After careful study of the file the reporting judge draws up a draft decision. The draft is accompanied by a memorandum whose purpose is to set out the reasoning leading from the application to the draft. The memorandum includes a consideration of admissibility issues (including jurisdiction and verification that there is no defect rendering the application inadmissible as a matter of public policy) and must answer each ground raised in the application, with reference either to the evidence or to legal provisions or to case-law. The reporting judge appends to the memorandum a copy of the provisions and case-law relied on in the draft decision. The file subsequently goes to the reviser, an office assumed in each section by the president or one of the other two assesseurs constituting the bench. The reviser re-examines the evidence and forms a view as to how the case should be decided. He may himself prepare another draft decision in the event of disagreement with the reporting judge. Once the draft decision has been revised, the case is listed for consideration at a preparatory sitting of the section, at which it will be discussed in the presence of the Government Commissioner, who does not, however, take part in the vote on the draft. Only when the draft decision has been adopted by the section will the file be forwarded to the Government Commissioner to enable him either to prepare his submissions or to ask for a fresh preparatory sitting to be convened or for the case to be transferred to a differently constituted court. 41. The institution of Government Commissioner dates from an ordinance of 12 March 1831. Originally, as its name indicates, it was designed to represent the government’s point of view, but that function very rapidly disappeared (at the latest in 1852). The title has remained but is now a misnomer. Since then the institution has become, to the outside observer, one of the most distinctive features of French administrative justice, in particular because Government Commissioners rapidly established themselves as judicial officers totally independent of the parties. The Government Commissioner plays a traditionally very important role in the creation of administrative case-law and most of the major judicial innovations have come about as a result of celebrated submissions by the Government Commissioner. Furthermore, given that the judgments of the Conseil d’Etat are always drafted very elliptically, it is often only by reading the submissions of the Government Commissioner, where published, that one can discern the ratio decidendi of the judgments. 42. By the terms of Decree no. 63-766 of 30 July 1963 on the organisation and functioning of the Conseil d’Etat, Government Commissioners are taken from among the maîtres des requêtes and auditeurs at the Conseil d’Etat or, exceptionally, from among the conseillers. By Article R 122-5 of the Administrative Courts Code, they are appointed by a decree of the Prime Minister, adopted on a proposal by the Minister of Justice, after being put forward by the Vice-President of the Conseil d’Etat in consultation with the division presidents. In practice, the Conseil d’Etat’s proposals are always endorsed. Appointment as Government Commissioner – which is not a rank – is for an unlimited duration but a Government Commissioner cannot remain in post for more than ten years and in practice does not generally do so for more than two or three years. There are two Government Commissioners for each of the ten sections that make up the Judicial Division but there is no hierarchy of Government Commissioners, who do not constitute a separate “corps”. 43. The Government Commissioner is a member of the Conseil d’Etat who is attached to the section from which the bench designated to hear a case is constituted and he attends – without voting and generally without speaking – the sitting at which the cases are prepared for trial, when the cases are presented by the reporting judges, and he receives a copy of the draft judgment adopted by the section and revised by the reviser. When his view of a case differs from that of the section, he can come and discuss it with the section at another preparatory sitting. If the disagreement remains and he considers that the case is of sufficient importance, he has the right (rarely exercised in practice) to request that the case should be referred to the Judicial Division or to the Judicial Assembly (Article 39 of the decree of 30 July 1963 on the organisation and functioning of the Conseil d’Etat). Only after that will he prepare his submissions for the actual trial, which is open to the public. These submissions, which are generally exclusively oral ones, are not communicated either to the parties or to the reporting judge or to the members of the trial bench. 44. It has become an established practice to communicate to lawyers who so request, before the hearing, the general tenor of the submissions which the Government Commissioner will make at the hearing. In view of the number of cases to be tried (about 500 a year for each Government Commissioner), the Government Commissioner’s submissions, which remain his exclusive property, are often solely oral. He has complete freedom as to whether or not to place those he has decided to put in writing in the Conseil d’Etat’s archives or to publish them in important cases as an annex to Conseil d’Etat judgments reported in the official reports or in legal periodicals. 45. At the hearing the Government Commissioner is under an obligation to make his submissions, which must be reasoned, since he is not allowed to say that he wishes to leave matters to the court’s discretion. 46. The Government Commissioner’s role at the hearing was described as follows by a former member of the Conseil d’Etat, T. Sauvel, in 1949: “Once the case has reached the public hearing, and the reporting judge has read his report, which is merely a summary of the evidence and makes no mention of the section’s opinion, and the lawyers have made oral submissions if they considered it appropriate, the Commissioner stands up and is the one who speaks last, even after counsel for the defence. He sets out the whole case, making a critical analysis of all the grounds and of all the case-law that could be relied on; often he will indicate how the case-law has developed, highlighting the stages it has already gone through and hinting at possible future developments. Lastly, he will submit that the application should be dismissed or allowed. He does so in his own name, without any obligation to share the section’s opinion or to take instructions either from Principal State Counsel (for there is none) or from any superior, presiding judge or minister. He is answerable only to his own conscience. He is a vital cog in the machinery of administrative procedure, which perhaps owes its real distinctiveness to him. The submissions in many cases go far beyond the bounds of the individual case and amount to legal treatises, to which litigants and commentators will long refer.” 47. In the terms used by the Conseil d’Etat itself (10 July 1957, Gervaise, Recueil Lebon, p. 466, reiterated on 29 July 1998 in Esclatine) the Government Commissioner’s function is “to set out for the Conseil the issues which each application raises for decision and to make known, by making his submissions completely independently, his own assessment, which must be impartial, of the facts of the case and the applicable rules of law, together with his opinion as to whether the manner in which, according to his conscience, the case submitted to the Court to which he belongs should be disposed of.” 48. At the hearing, therefore, the parties to the case cannot speak after the Government Commissioner, since he speaks after counsel for the opposing parties have addressed the court. Even if they are not represented by a lawyer, they do, however, have the possibility, hallowed by usage, of sending the trial bench a “memorandum for the deliberations” to supplement the observations they have made orally or to reply to the Government Commissioner’s submissions. This memorandum for the deliberations is read out by the reporting judge before he reads out the draft judgment and before the discussion begins. 49. Furthermore, it is settled case-law of the Conseil d’Etat that if the Government Commissioner were to raise a ground – even one involving an issue of public policy – that had not been relied on by the parties during the proceedings, the presiding judge would stay the proceedings, communicate the ground to the parties so that they could present argument on it, and relist the case for a fresh hearing some weeks later, since grounds raised of the court’s own motion have to be notified to the parties. 50. After the public hearing it is customary for the Government Commissioner to attend the deliberations but he has no vote. As a general rule, he intervenes orally only to answer any specific questions that are put to him. He is, after all, the member of the Court who has seen the case file most recently and is therefore supposed to have the most detailed knowledge of it. 51. Cases in the Conseil d’Etat may be tried either by a single section (and in that event all the members of the trial bench already know the case) or by combined sections (in that event, four members, representing the section which prepared the case for trial, out of the nine judges who have to deliberate on it know the case) or by the Judicial Division or the Judicial Assembly (so-called solemn constitutions of the court for hearing the most important cases), in which only the President and the reporting judge, out of the seventeen or twelve judges who will have to deliberate on it, know the case. 52. Lastly, it should be pointed out that there are Government Commissioners not only at the Conseil d’Etat but also at the other administrative courts (of first instance and appeal) and at the Jurisdiction Disputes Court. Furthermore, the function of Advocate General at the Court of Justice of the European Communities was closely modelled on the institution of Government Commissioner, with the difference that under Article 27 § 2 of the Rules of Procedure of the Court of Justice, only the judges who sat at the hearing may take part in the deliberations – to the exclusion, therefore, of the Advocate General. 53. In connection with the hearing of a reference for a preliminary ruling made to the Court of Justice at the European Communities by a Dutch court (the Arrondissementsrechtbank te ‘s-Gravenhage), Emesa Sugar (Free Zone) N.V. (a company), relying on Article 6 § 1 of the Convention, applied on 11 June 1999 to submit written observations after the Advocate General had delivered his opinion at the hearing on 1 June. 54. In an order of 4 February 2000 the Court of Justice refused that application on the following grounds: “... 11. In accordance with Articles 221 and 222 of the EC Treaty, the Court of Justice consists of Judges and is assisted by Advocates General. Article 223 lays down identical conditions and the same procedure for appointing both Judges and Advocates General. In addition, it is clear from Title I of the EC Statute of the Court of Justice, which, in law, is equal in rank to the Treaty itself, that the Advocates General have the same status as the Judges, particularly so far as concerns immunity and the grounds on which they may be deprived of their office, which guarantees their full impartiality and total independence. 12. Moreover, the Advocates General, none of whom is subordinate to any other, are not public prosecutors nor are they subject to any authority, in contrast to the manner in which the administration of justice is organised in certain Member States. They are not entrusted with the defence of any particular interest in the exercise of their duties. 13. The role of the Advocate General must be viewed in that context. In accordance with Article 222 of the EC Treaty, his duty is to make, in open court, acting with complete impartiality and independence, reasoned submissions on cases brought before the Court of Justice, in order to assist the Court in the performance of the task assigned to it, which is to ensure that in the interpretation and application of the Treaty, the law is observed. 14. Under Article 18 of the EC Statute of the Court of Justice and Article 59 of the Rules of Procedure of the Court, the Opinion of the Advocate General brings the oral procedure to an end. It does not form part of the proceedings between the parties, but rather opens the stage of deliberation by the Court. It is not therefore an opinion addressed to the judges or to the parties which stems from an authority outside the Court or which ‘derives its authority from that of the procureur général’s department ...’ (judgment in Vermeulen v. Belgium, cited above, paragraph 31). Rather, it constitutes the individual reasoned opinion, expressed in open court, of a Member of the Court of Justice itself. 15. The Advocate General thus takes part, publicly and individually, in the process by which the Court reaches its judgment, and therefore in carrying out the judicial function entrusted to it. Furthermore, the Opinion is published together with the Court’s judgment. 16. Having regard to both the organic and the functional link between the Advocate General and the Court ..., the aforesaid case-law of the European Court of Human Rights does not appear to be transposable to the Opinion of the Court’s Advocates General. 17. Moreover, given the special constraints inherent in Community judicial procedure, connected in particular with its language regime, to confer on the parties the right to submit observations in response to the Opinion of the Advocate General, with a corresponding right for the other parties (and, in preliminary ruling proceedings, which constitute the majority of cases brought before the Court, all the Member States, the Commission and the other institutions concerned) to reply to those observations, would cause serious difficulties and considerably extend the length of the procedure. 18. Admittedly, constraints inherent in the manner in which the administration of justice is organised within the Community cannot justify infringing a fundamental right to adversarial procedure. However, no such situation arises in that, with a view to the very purpose of adversarial procedure, which is to prevent the Court from being influenced by arguments which the parties have been unable to discuss, the Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, reopen the oral procedure, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties ... 19. In the instant case, however, Emesa’s application does not relate to the reopening of the oral procedure, nor does it rely on any specific factor indicating that it would be either useful or necessary to do so.”