CASE OF RICHARD v. FRANCE
Preliminary objection rejected;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
R. Pekkanen
6. Mr Michel Richard, a French national born in 1958, is a postmaster. He is a haemophiliac and has received numerous blood transfusions. 7. A test carried out in November 1985 showed that the applicant had been infected with the human immunodeficiency virus (HIV). Since 6 June 1991 he has been classified as having reached stage II of the four stages on the scale of the Atlanta Center for Disease Control. 8. On 27 December 1989 the applicant submitted a preliminary application for compensation to the Minister for Solidarity, Health and Social Protection. He sought 2,500,000 French francs (FRF) in compensation for the medical disorders of all kinds he had suffered on account of his infection with HIV. His application was rejected on 30 March 1990. 9. On 30 May 1990 Mr Richard filed an application in the Caen Administrative Court for FRF 2,500,000 in compensation for the damage sustained as a result of the State’s failure to take appropriate measures to prevent his becoming infected with HIV. 10. On 1 June 1990 the applicant made an urgent application to the President of the Caen Administrative Court for an expert report. This application was granted on 13 July 1990. The expert report was filed on 6 June 1991. 11. On 24 July 1991 the case was referred to the Conseil d’Etat, which then designated the Paris Administrative Court to deal with it. The application was registered with that court on 14 August 1991. 12. On 21 October 1991 the Minister of Health lodged his defence pleadings. 13. After holding a hearing on 7 February 1992, the Administrative Court ruled in a judgment of 21 February 1992 that the State was liable for the applicant’s infection and ordered it to pay him compensation of FRF 500,000. 14. On 21 April 1992 the Minister for Health and Humanitarian Action appealed against the above judgment to the Paris Administrative Court of Appeal. On 22 June 1992 he lodged supplementary pleadings. 15. On 11 August 1992 the applicant lodged pleadings in which he requested the court to dismiss the appeal and made a cross-appeal for the State to be ordered to pay him compensation of FRF 2,500,000. 16. On 29 October 1992 and 28 July 1993 pleadings were lodged by the Minister of Health and the applicant respectively. 17. On 22 February 1993 the Compensation Fund for Transfusion Patients and Haemophiliacs infected with HIV informed the Administrative Court of Appeal that Mr Richard had accepted the Fund’s offer of compensation (see paragraphs 30–33 below). 18. On 9 April 1993, the Judicial Assembly of the Conseil d’Etat gave three landmark judgments, fixing 22 November 1984 as the start of the period of the State’s liability and awarding the victims compensation at a flat rate of FRF 2,000,000 (see paragraph 35 below). 19. On 23 and 25 April 1992 and 17 February 1994 the Orne Health Insurance Office filed an application and two memorials seeking an order requiring the State to refund it all payments made or to be made to Mr Richard on account of his infection with HIV. It also claimed interest at the statutory rate. 20. After holding a hearing on 5 July 1994, the Administrative Court of Appeal ruled on 19 July 1994 that, in accordance with the above-mentioned case-law of the Conseil d’Etat (see paragraph 18 above), the State should be held liable for the applicant’s infection. It assessed the amount of compensation due to the applicant at FRF 2,000,000. It deducted the offer of FRF 1,743,000 made by the Compensation Fund for Transfusion Patients and Haemophiliacs (see paragraph 31 below), which included the FRF 500,000 awarded by the Administrative Court and FRF 100,000 allocated by the Haemophiliacs’ Solidarity Fund. It thus increased the compensation payable by the State from FRF 500,000 to FRF 757,000. The court calculated the interest on the outstanding balance, that is FRF 757,000, from 3 January 1990. 21. On 21 October 1994 Mr Richard appealed on points of law to the Conseil d’Etat, complaining about the method of calculation used by the Administrative Court of Appeal. 22. On 9 May 1995 Mr Richard lodged an application (no. 27316/95) with the European Commission of Human Rights. On 23 January 1996, having declared the application admissible, the Commission adopted a report pursuant to Article 28 § 2 of the Convention noting that the parties had reached agreement on a friendly settlement (see paragraph 39 below). 23. On 19 June 1995 the Admissibility Committee declared the applicant’s appeal admissible. He was then informed that his appeal had been referred to the President of the Judicial Division of the Conseil d’Etat who would examine it. 24. The Compensation Fund for Transfusion Patients and Haemophiliacs and the Minister of Health filed their observations on 17 October 1995 and 14 February 1996 respectively. 25. In the meantime, on 30 November 1995, Mr Richard had written to the President of the Fifth Section of the Judicial Division of the Conseil d’Etat, which was dealing with the case, drawing his attention to the length and protractedness of the proceedings and the urgency of the case given his state of health. He received no reply. 26. On 2 October 1996 the applicant lodged a further application (no. 33441/96) with the Commission, which was registered on 14 October 1996, complaining that the proceedings were still pending before the Conseil d’Etat. 27. On 21 February 1997 the Conseil d’Etat gave judgment quashing the Administrative Court of Appeal’s judgment of 19 July 1994 on the ground that, contrary to the Conseil d’Etat’s relevant case-law (see paragraph 36 below), it had deducted from the amounts the State was required to pay Mr Richard the offer of compensation in the event of Aids being diagnosed made by the Compensation Fund for Transfusion Patients and Haemophiliacs. The Conseil d’Etat remitted the case to the Paris Administrative Court of Appeal without applying section 11 of Law no. 87-1127 of 31 December 1987, which would have allowed it to determine the merits of the case without remitting it to the Administrative Court of Appeal. 28. The case was remitted on 13 March 1997. 29. In a letter of 20 March 1997 the senior registrar at the Paris Administrative Court of Appeal informed the applicant that his case had been remitted to that court by the Conseil d’Etat and invited him to submit his observations. The applicant’s observations were registered at the court registry on 28 March 1997. 30. In separate proceedings the applicant had submitted a claim to the Compensation Fund for Transfusion Patients and Haemophiliacs, set up by the Act of 31 December 1991 (see paragraph 34 below). 31. In a decision of 24 July 1992 the Fund awarded him compensation of FRF 1,743,000, of which FRF 1,307,250 was payable in three equal annual instalments and FRF 435,750 if and when Aids was diagnosed. The Fund deducted from this offer the FRF 100,000 paid out by the Haemophiliacs’ Solidarity Fund and the FRF 500,000 awarded by the Paris Administrative Court. 32. On 7 August 1992 the Compensation Fund paid Mr Richard FRF 235,750, which was the first annual instalment. 33. After several judgments of 27 November 1992 in which the Paris Court of Appeal had ruled that compensation payments should not be made in instalments, the applicant received, on 11 February 1993, the balance of the first part of the compensation, that is FRF 471,500. 34. The Act of 31 December 1991 making miscellaneous social-welfare provisions set up special machinery for the compensation of haemophiliacs and transfusion patients who had been infected following injections of blood products. 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. ... 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. ... 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. ...” 35. In three judgments of 9 April 1993 the Judicial Assembly of the Conseil d’Etat decided that “the State was wholly liable in respect of persons who were infected with the human immunodeficiency virus following transfusion of non-heat-treated blood products between 22 November 1984 and 20 October 1985”. 36. In a series of landmark judgments of 24 March 1995 the Conseil d’Etat ruled that payment of the sum offered by the Compensation Fund for Transfusion Patients and Haemophiliacs in the event of Aids being diagnosed was “a latent possibility subject to the onset of the disease” and that accordingly the Paris Administrative Court of Appeal had “made an error of law in deducting it from the sums it ordered the State to pay in compensation for the same damage” (see paragraph 18 above). 37. At the material time the Administrative Courts and Administrative Courts of Appeal 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 or of the Administrative Court of Appeal, or a judge delegated by one of them, may, where the existence of an obligation cannot seriously be contested, award an advance to a creditor who has filed an application on the merits in the court in question. 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 by the registry, the president of the court or, in Paris, the president of the division to which the application has been transmitted, shall appoint a rapporteur. “Where one of the parties or the administrative department has been asked to submit observations and has not complied with the time-limit laid down pursuant to Articles R.142 and R.147 of this Code, the president of the court or division shall issue a formal notice to comply. In the event of force majeure, a final extension of time may be granted. If the formal notice to comply has no effect or if the final time-limit given is not complied with, the court shall give judgment.” “Where a final notice to comply relates to an administrative department of the State, it shall be sent to the authority with competence to represent the State; in other cases it shall be sent to the party or his representative if he has appointed one.” “A member of the Administrative Court or 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.” 38. Decree no. 93-906 of 12 July 1993 applies to all proceedings pending at the date of its publication. It lays down provisions for the implementation of section 47 of the Act of 31 December 1991 (see paragraph 34 above): “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 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. 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. 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 an 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. 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. ... The provisions of Articles 15 to 19 shall be applicable to cases pending on the date of entry into force of [this] decree...” 39. On 9 May 1995 Mr Richard lodged an application with the Commission, registered on 15 May 1995 under file no. 27316/95, in which he complained of the length of the compensation proceedings and relied on Article 6 § 1 of the Convention. On 23 January 1996 the Commission adopted a report in which it noted, pursuant to Article 28 of the Convention: “… On 19 July 1995 the applicant’s representative informed the Commission that the applicant was prepared to accept the sum of 200,000 (two hundred thousand) French francs (FRF) for non-pecuniary damage, to which were to be added FRF 23,720 for the costs and expenses he had incurred before the Commission, the whole to be paid within one month of the adoption of the Commission’s report. He also requested the payment of interest in the event of delayed settlement. He repeated these proposals in a letter of 20 September 1995. In a letter of 27 December 1995, received on 15 January 1996, the Agent of the Government informed the Commission that the Government were prepared to agree to a settlement based on these proposals. On 23 January 1996 the Commission noted that the parties had reached agreement on the terms of a settlement. It also stated the opinion, having regard to Article 28 § 1 (b) of the Convention, that the parties had reached a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention. …” The text of the applicant’s declaration that he accepted the friendly settlement, which bears his signature, reads as follows: “I acknowledge that the payment of these sums will constitute full and final compensation in respect of all the damage alleged in my application and will likewise cover all the lawyers’ fees and other costs I have incurred in this case. I therefore agree to withdraw from these proceedings and to waive the right to bring any further proceedings on this account against the French State in the French and international courts.”