CASE OF KARAKAYA v. FRANCE
Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
7. Mr Mustafa Karakaya, a Turkish national born in 1956, has lived for many years in France, where he worked as a mechanic until 1990, when he was made redundant. 8. Since then he has been unemployed, and in December 1991 he was registered as 80% disabled owing to the effects of illness on his joints. Mr Karakaya is a haemophiliac and has had numerous blood transfusions. He was infected with the human immunodeficiency virus (HIV) between 16 August and 29 October 1984, the latter date having been determined only during proceedings in the Paris Administrative Court (see paragraph 17 below). In April 1992 he was classified as having reached stage III of infection - the last but one stage - on the scale of the Atlanta Center for Disease Control. 9. On 29 December 1989 the applicant submitted a preliminary claim for compensation to the Minister for Solidarity, Health and Social Protection, in accordance with Article R.102 of the Administrative Courts and Administrative Courts of Appeal Code (see paragraph 21 below). He sought 2,500,000 French francs (FRF), maintaining that he had been infected with HIV as a result of the Minister’s negligent delay in implementing appropriate rules for the supply of blood products. Six hundred and forty-nine similar claims were submitted to the Minister; at that time one thousand two hundred and fifty haemophiliacs had been infected. 10. On 30 March 1990, one month before the expiry of the statutory four-month time-limit (see paragraph 21 below), the Director-General for Health rejected the applicant’s claim. 11. On 23 May 1990 Mr Karakaya lodged an application with the Versailles Administrative Court, seeking to have the ministerial decision quashed and to be awarded compensation from the State in the amount of FRF 2,500,000 plus statutory interest. On 18 October he filed supplementary pleadings. The Minister filed his defence pleadings on 22 April 1991. In them he called on the court to dismiss the applicant’s claim but added: "However, in the event of the court’s accepting 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." 12. By an order of 1 July 1991 made under Article R.82 of the Administrative Courts and Administrative Courts of Appeal Code, the case was referred to the Conseil d’Etat, which assigned it to the Paris Administrative Court, the court designated to deal with all the applications lodged against the State by infected haemophiliacs. 13. The case was set down for hearing on 8 April 1992. On 22 April the court delivered an interlocutory judgment, worded as follows: "... the State is liable in respect of haemophiliacs who were infected with HIV in the course of transfusion of non-heat-treated blood products during the period of liability defined above, that is between 12 March and 1 October 1985." It also ordered the applicant to produce a statement of any indemnities he might have received in compensation for the damage set out in the application. The judgment was served on Mr Karakaya on 25 August 1992. On 27 August he sent the court a copy of the offers made by the Compensation Fund (see paragraph 18 below). 14. A hearing took place on 3 February 1993. On 14 April the court delivered a second interlocutory judgment, in which it appointed an expert to determine as far as possible, inter alia, whether the applicant had received any blood derivatives during the period of the State’s liability determined earlier and to give an opinion on the likelihood of there being a causal link between the administration of blood derivatives during that period and infection by HIV. The judgment was served on Mr Karakaya on 13 September 1993. 15. On 24 September 1993 Mr Karakaya appealed to the Paris Administrative Court of Appeal against the two interlocutory judgments of 22 April 1992 and 14 April 1993 in order to have them set aside and to have the case decided at once by the appellate court without any expert being appointed to give an opinion. 16. In a judgment of 31 March 1994 the Court of Appeal dismissed the appeal, holding that the submissions challenging the first judgment of the court below were inadmissible and that the expert opinion called for in the lower court’s second judgment was useful. 17. On 10 December 1993 the expert filed his report at the Paris Administrative Court. It included the following passage: "... I am convinced that in all probability Mr Karakaya was originally infected by HIV as a result of injections of antihaemophilic blood derivatives that were administered between 16 August 1984 and 29 October 1984." The case was set down for hearing on 16 February 1994. On 2 March the Administrative Court delivered the following judgment: "The expert’s report has shown that a causal link between the applicant’s infection with the human immunodeficiency virus and the administration of blood derivatives during the period of the State’s liability - as determined in a judgment of 22 April 1992 - between 12 March and 1 October 1985 cannot be regarded as having been established. The expert indicates that Mr Karakaya was shown to be HIV positive on a sample taken on 13 November 1984. It follows that Mr Karakaya’s application for an order that the State should compensate for the damage sustained as a result of this infection must be refused; ..." The judgment was served on Mr Karakaya on 5 April 1994; he did not appeal within the two-month period allowed. 18. On 17 April 1992 Mr Karakaya submitted a claim to the Compensation Fund set up by the Act of 31 December 1991 (see paragraph 19 below). On 13 May 1992 the Fund offered him as "HIV-infection compensation" a sum of FRF 1,234,500 payable in three instalments over a period of two years, from which FRF 100,000 paid out by the private haemophiliacs’ solidarity fund was to be deducted. In addition, the applicant was to receive a sum of FRF 411,500 as soon he developed AIDS (acquired immunodeficiency syndrome). Following acceptance of the offer by the applicant, the Fund sent him an initial instalment of FRF 378,170 on 1 June 1992. On 9 December 1992 the applicant requested the Fund to pay him the remainder of the HIV-infection compensation immediately; he referred it to the Paris Court of Appeal’s judgments of 27 November 1992, in which the court had held that such compensation could not be paid in instalments unless the persons receiving it agreed. On 18 February 1993 the Fund sent him the requested sum of FRF 756,330. 19. 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. ..." 20. 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. 21. 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. Under the authority of the president of the court or division to which he belongs, the rapporteur He may request the parties to supply any evidence or documents relevant to the resolution of the dispute, which shall be added to the file so as to be accessible to all the parties." "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." 22. 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 19 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 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 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. 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 ..."