CASE OF X v. FRANCE
Questions of procedure rejected;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
Feyyaz Gölcüklü;N. Valticos
8. Mr X, a French national born in 1963, died on 2 February 1992 after several stays in hospital. He lived in Paris with his parents. He received a State allowance of 3,000 French francs per month as a disabled adult and did not pursue an occupation. 9. Mr X was a haemophiliac and had undergone several blood transfusions, in particular between September 1984 and January 1985 at the Saint-Antoine hospital in Paris. On 21 June 1985 it was discovered that he was HIV (Human Immunodeficiency Virus) positive. 10. As other haemophiliacs had been infected by HIV, the French Association of Haemophiliacs tried to obtain compensation from the State for the damage suffered by its members who had been so infected. Since it was unable to secure a settlement, the Association recommended to its members that they should institute proceedings before the four-year limitation period expired. 11. On 1 December 1989 the applicant addressed - as he was required to do under Article R.102 of the Administrative Courts’ Code (see paragraph 23 below) - a preliminary claim for compensation to the Minister for Solidarity, Health and Social Protection. He sought an amount of 2,500,000 francs; he had, he maintained, been infected by HIV as a result of the negligent delay of the Minister in implementing appropriate rules for the supply of blood products. Six hundred and forty-nine other such claims were sent to the Minister. 12. On 30 March 1990, the day before the expiry of the statutory limit of four months (see paragraph 23 below), the Director General for Health rejected Mr X’s claim. 13. Mr X applied for legal aid on 27 April 1990; he was granted it on 8 June. On 30 May he filed an application in the Paris Administrative Court for the annulment of the ministerial decision and for an order requiring the State to pay him compensation of 2,500,000 francs plus statutory interest. Some four hundred applications lodged by persons who were in the same situation were brought before the administrative courts. They were assigned to the Paris Administrative Court and raised questions some of which were common to all the cases (responsibility of the State in fixing the rules for blood transfusions) and some of which were peculiar to each individual case (date and conditions of infection). 14. On 11 July 1990 the applicant lodged a memorial, which the administrative court forwarded to the Minister on 22 August; he stressed in particular the consequences for him of the discovery that he was HIV positive and of "the idea that he was potentially afflicted with an incurable disease". In a supplementary memorial of 29 October 1990 he emphasised the urgency of his case: "... the applicant’s state of health has deteriorated since September 1990 as is attested by the medical certificate produced. It is for this reason that he asks the court to apply Article R.111 [(see paragraph 23 below)] of the Administrative Courts’ Code, i.e. to give formal notice to the defendant Minister to the effect that he must make his submissions. Such notice would make it possible to respect the applicant’s right to have his case heard within a reasonable time in accordance with Article 6 (art. 6) of the European Convention on Human Rights. This right must be respected taking into account his state of health and particularly because, as the Minister expressly rejected the preliminary application, the applicant’s file has necessarily already been examined; the authorities do not therefore require any special extension of time in order to prepare their defence such as would justify an infringement of the applicant’s right under the European Convention on Human Rights. FOR THESE REASONS The applicant requests the Paris Administrative Court to give to the Minister for Health, Solidarity and Social Protection formal notice that he is to produce his defence submissions speedily, and maintains his previous submissions." The medical certificate in question, which had been drawn up by Professor Frottier, stated: "I the undersigned, Senior Consultant, certify that Mr [X] ... has for a long time been a patient in the haemostasis and blood transfusion department of the Saint-Antoine establishment of the CNTS (Centre national de transfusion sanguine - National Blood Transfusion Centre). He was taken into hospital for the first time in the department of infectious diseases from 17 to 27 September 1990, then he was re-admitted to the Saint-Antoine hospital on 5 October 1990, first in the general medical ward, then in intensive care and then, from 11 October 1990, in the infectious diseases department, where he is at present. His condition warrants his being taken into care for an indefinite period by a department specialising in the treatment of infectious diseases. ... ." 15. The Minister for Social Affairs and Solidarity replied by a memorial dated 12 December 1990, lodged on 21 February 1991 and communicated to the applicant on 27 February. In it he called upon the court to "dismiss the applicant’s claim", but added: "However, in the event of the court’s finding itself able to accept the principle of negligence on the part of the State, I would ask you to appoint an expert with a view to establishing whether the damage for which the applicant seeks compensation is genuinely attributable to such negligence." 16. On 3 April 1991 the applicant submitted his reply, in which he asked that the application for an expert opinion be rejected. He stated: "The applicant claims primarily that the application for an expert opinion should be dismissed, as such an opinion was requested by the defendant Minister only to establish whether the damage sustained by the applicant was indeed attributable to his negligence. As the causal connection has been clearly established by the evidence in the applicant’s file, the only question to be ruled on by the court is whether the Minister was negligent. This assessment of whether the delay in taking the measures for protection of public health which he was under a duty to take was negligent may be made in the light of the evidence before the court, which can in addition request the communication of the expert opinion of Professor Jacquillat before the tribunal de grande instance. In the further alternative, should the court call for a new expert (Professor Jacquillat unfortunately having died), the expert appointed should be able to have access to his predecessor’s work." 17. On 5 April, 27 May and 28 June 1991, the President of the relevant section of the Paris Administrative Court asked the Minister or the Director of the National Blood Transfusion Foundation, as the case may be, for certain information and documents; they replied to these requests on 25 April, 6 June, 26 July and 30 October 1991. These various investigative measures concerned all the litigation involving infected haemophiliacs pending before the Paris Administrative Court. One of the documents which was added to the file as a result was a report entitled "Blood Transfusion and AIDS in 1985. Chronology of the facts and decisions with regard to haemophiliacs"; the General Inspectorate of Social Affairs (I.G.A.S.) had drawn up this report on 10 September 1991, at the request of the Minister for Social Affairs and Integration and the Deputy Minister for Health on the previous 10 June. It set out the facts and analysed the decisions taken, essentially between 1983 and 1985, with a view to ensuring "safe transfusions" over the first years of the development of AIDS. Mr X was informed of these various investigative measures on 6 September 1991. The documents produced both by the authorities and the National Blood Transfusion Foundation were communicated to him. 18. On 10 and 17 September 1991 he submitted two supplementary memorials in which he stated that he had now "developed full AIDS" (acquired immune deficiency syndrome). The second memorial contained an application for interim relief in the form of an advance (see paragraph 23 below). The Ministry of Social Affairs and Solidarity lodged a further defence memorial on 30 October and on 7 November the court asked the applicant to produce various medical documents. 19. The hearing in the Paris Administrative Court was held on 18 December 1991. Two days later the court dismissed Mr X’s claims on the following grounds: "... Mr [X] claims that the State is liable on account of alleged negligence on the part of the Minister responsible for Health in exercising the powers of health policy vested in him pursuant to the combined provisions of Articles L. 668 and L. 669 of the Public Health Code; in support of his submissions the applicant argues that the Minister delayed prohibiting the distribution to haemophiliacs of blood products contaminated with the human immunodeficiency virus (HIV) although, as early as 1983, the process of heat- treating blood made it possible to inactivate the virus; he further complains that the relevant ministry did not inform the haemophiliac community of the serious risks incurred through the use of such products; the ministerial authority is also criticised for having, in the exercise of its powers of health policy, on 23 July 1985, postponed until 1 October 1985 the ending of reimbursement by health insurance funds of the blood products used by the haemophiliacs, a measure which it is agreed amounted in fact to a prohibition owing to the high cost of the products known as `factors VIII and IX’; In a new pleading filed on 11 July 1990, Mr [X] argues in the alternative that the State is also liable on the ground of liability for presumed negligence in the organisation and functioning of the public service of blood transfusion; he further alleges that the State is liable on the basis of the risk arising from the reckless activity of the public blood transfusion service ; The liability of the State The public blood transfusion service in France is run by private associations, having none of the prerogatives of a public authority, which are moreover exclusively exercised by the State as holder of the specific powers of health policy (as indicated above); the State is, however, neither prescriber, nor manufacturer, nor supplier of the offending blood products[;] accordingly its liability may be incurred only on account of negligent acts committed in the exercise of its regulatory powers and it is for the applicant to prove that such negligence occurred; The investigation shows that progress in scientific knowledge concerning HIV, whose first pathological manifestations appeared as early as 1980, from the point of view both of its transmission and of the techniques for its inactivation, was very slow and was the subject of controversy within the scientific community itself; in particular, although the process of heat-treating blood was approved by the American health authorities as early as the beginning of 1983, this technique was developed to combat the hepatitis virus; its effectiveness against HIV remained purely hypothetical for several months; moreover, some researchers feared that the use of this technique would be likely to have an adverse effect on the products’ clotting and auto-immunising property; although such fears proved unfounded, an assessment of the liability incurred must necessarily be made on the basis of the scientific knowledge available at the time; in confining itself to issuing, by way of a circular on 20 June 1983, a recommendation concerning the selection of blood donors, for the information of donors and doctors at transfusion centres about the potential risks of infection, the administrative authority did not therefore commit a negligent act such as to render it liable; the same applies, for identical reasons, to the lack of information furnished to the haemophiliac community concerning the risks to which they were exposed; However, after this date scientific knowledge constantly progressed; the State, which was moreover an ex officio member of the National Blood Transfusion Foundation, could not fail to have been aware both of such progress and of the spread of the epidemic, and it could not plead the lack of availability of reliable HIV screening tests in order to justify its "wait-and-see" policy once cases of AIDS in the haemophiliac community had revealed the existence of a statistically significant causal relationship between the administration of blood product derivatives and HIV infection; even granted that there remained some uncertainties concerning hypothetical side effects of the heat-treatment technique at the beginning of 1985, the revelation of the scale of the predicted health catastrophe demanded that the distribution of contaminated blood products be halted rigorously and without delay; The investigation, and in particular the report of the General Inspectorate for Social Affairs, shows that the ministerial authority was informed at the latest and in unequivocal terms on 12 March 1985 of the very strong probability that in the Paris region "all blood products prepared from pools of Parisian donors [were] currently contaminated"; the author of the report appositely noted that the importance of this message did not seem to have been perceived; in failing to adopt immediately a measure prohibiting the distribution of such products, either by legislation or taking appropriate practical measures, the authority responsible for health policy thus committed a negligent act such as to render the State liable; Moreover, when on 23 July 1985 the authority correctly assessed the danger to health in deciding that non-heat- treated blood products should no longer be reimbursed, it saw fit to postpone the date on which its decision was to take effect until 1 October 1985; given the certainty established at that time that all blood products were contaminated, it cannot, in order to justify opting for a transitional period, plead either the consent of the haemophiliac community, which had in any case not been accurately informed of the scale of the catastrophe, or an alleged need to maintain haemophiliacs’ self-sufficiency, while decontaminated products were available on the international market; On the other hand, the physiological consequences of re- infection of those who were already HIV positive on 12 March 1985, made possible through the shortcomings of the State referred to above, are entirely hypothetical in the present state of scientific knowledge; consequently, the alleged damage from re-infection is purely contingent and cannot give rise to a right to compensation; It follows from all the foregoing that the State is liable in respect of haemophiliacs who were infected by HIV in the course of transfusion of non-heat-treated blood products, during the period of liability defined above, between 12 March and 1 October 1985; Although the State, as indicated above, is neither the prescriber, nor the manufacturer, nor the supplier of the offending blood products, and although it is for the courts alone to assess whether the blood transfusion centres have incurred liability, nonetheless the task of such centres is to provide a public service, and accordingly there are grounds for the administrative court to order the State to pay compensation for the whole of the damage suffered; The causal relationship between the damage suffered by Mr [X] and the liability of the State Even if Mr [X], who received for the treatment of his haemophilia not clotting factors VIII or IX, which it has been established above were negligently distributed, but A cryoprecipitates, may validly claim that the State is liable, the case-file shows that he was found to be HIV positive on 20 March 1985, a condition, which, taking into account an irreducible period of seroconversion, must be regarded as having actually arisen prior to the beginning of the period of the State’s liability defined above, and consequently the submissions of his application must be dismissed;" 20. As the trial court had given its decision, the application for an advance was rejected by an order of 15 January 1992 (see paragraph 18 above). 21. On 20 January 1992 Mr X appealed to the Paris Administrative Court of Appeal; the proceedings in that court, which have been continued by his parents, are still pending. 22. The participants in the Strasbourg proceedings provided the Court with information concerning the various schemes for compensating AIDS victims introduced since 10 July 1989, in particular by Law no. 91-1406 of 31 December 1991 "on various social welfare provisions" (Journal officiel de la République française of 4 January 1992). 23. At the material time the Administrative Courts’ Code contained, inter alia, the following provisions: "Except in cases concerning public works, proceedings may not be instituted in the Administrative Court otherwise than in the form of an appeal against a decision; such an appeal shall be lodged within two months of the notification or the publication of the contested decision. Where no reply is forthcoming from the relevant authority for more than four months, that silence is to be construed as a decision rejecting the complaint. ... " "The President of the Administrative Court shall give a formal warning (mise en demeure) to the relevant authority or to a party who has failed to comply with the time-limit laid down pursuant to Articles R.105 and R.110; in a case of force majeure, a new and final time-limit may be accorded." "The President of the Administrative Court or of the Administrative Court of Appeal, or the judge delegated by one of the latter, may award an advance to a creditor whose application on the merits is pending before the court in question, where the existence of an obligation cannot seriously be contested. He may, even of his own motion, make the payment of the advance subject to the lodging of a security." "Immediately after the application instituting the proceedings has been registered with the registry, the President of the court or, in Paris, the President of the section to which the application has been transmitted, shall appoint a rapporteur. Under the authority of the President of the competent court, the rapporteur shall, having regard to the if necessary, to the parties for the production of supplementary memorials, observations, statements of defence or replies. He may request the parties to supply any evidence or documents relevant to the solution of the dispute, to be added to the file so as to be accessible to all parties." "A member of the Administrative Court or of the Administrative Court of Appeal may be assigned by the competent court or by the latter’s President to carry out any investigative measures other than those provided for in sections 1 to 4 of this chapter."