CASE OF LETERME v. FRANCE
Preliminary objection rejected (estoppel);Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
N. Valticos
9. Mr Pierre Leterme, a French national born in 1945, is a computer engineer. He is a haemophiliac and has received numerous blood transfusions. 10. A test carried out on 28 October 1985 showed that the applicant had been infected with the human immunodeficiency virus (HIV). He is classified as having reached stage II of the four stages of infection on the scale of the Atlanta Center for Disease Control. 11. On 12 December 1989 the applicant submitted a preliminary application for compensation to the Minister for Solidarity, Health and Social Protection. He sought compensation for the medical disorders of all kinds he had suffered on account of his infection. This application was rejected on 30 March 1990. 12. On 25 May 1990 the applicant lodged an appeal against the above decision with the Versailles Administrative Court, seeking compensation for the damage sustained as a result of the State’s failure to take appropriate measures to prevent his infection with HIV. On 16 October 1990 he produced a supplementary pleading. 13. The Minister of Health lodged his defence on 22 April 1991. This was communicated to the applicant on 12 June 1991. 14. On 11 July 1991 the applicant was served with an order referring the case to the Conseil d’Etat. The Paris Administrative Court was then designated as the competent court. The application was registered at the Paris Administrative Court on 14 August 1991. 15. On 25 March 1992 the Administrative Court gave an interlocutory judgment, holding that “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” and that “there are grounds for the Administrative Court to order the State to pay compensation for the whole of the damage suffered”. 16. The Administrative Court also ordered a medical report to determine when it had been discovered that Mr Leterme was HIV-positive and whether he had received blood derivatives during the period of the State’s liability. The expert filed his report on 16 July 1992. 17. By a judgment of 3 March 1993 the court dismissed the applicant’s claim, on the ground that no causal connection had been proved between his infection and the administration of non-heat-treated blood products during the period of the State’s liability, between 12 March and 1 October 1985. 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 2,000,000 French francs (FRF) (see paragraph 39 below). 19. On 1 June 1993 the applicant appealed against the judgment of 3 March 1993 to the Paris Administrative Court of Appeal, requesting application of this new case-law to his own case. 20. In a judgment of 1 March 1994 the Administrative Court of Appeal decided, in accordance with the above-mentioned case-law of the Conseil d’Etat, that the State was liable for the damage sustained by the applicant as a result of the transfusions. It awarded Mr Leterme FRF 2,000,000. However, since he had accepted an offer of FRF 1,293,000 made to him in respect of the same damage by the Compensation Fund for Transfusion Patients and Haemophiliacs, the Administrative Court of Appeal decided that the balance of the compensation owed was FRF 707,000. It calculated interest on the basis of that sum with effect from 12 December 1989 (see paragraphs 33–36 below). 21. On 2 May 1994 the applicant appealed on points of law to the Conseil d’Etat. He complained in particular of the way the Administrative Court of Appeal had calculated the interest. 22. On 27 January 1995 Mr Leterme lodged an application (no. 26387/95) with the European Commission of Human Rights, complaining of the length of the compensation proceedings and relying on Article 6 § 1 of the Convention. On 4 July 1995 the Commission adopted a report pursuant to Article 28 § 2 of the Convention noting that the parties had reached agreement on a friendly settlement of the case (see paragraph 43 below). 23. On 1 December 1995 the reporting judge at the Conseil d’Etat filed his report. On the same day the case was allocated to a government commissioner. 24. The case was listed for a hearing on 19 December 1995. 25. On 31 January 1996 the Conseil d’Etat gave a judgment quashing the Administrative Court of Appeal’s judgment of 1 March 1994 in so far as that court – notwithstanding the Conseil d’Etat’s case-law on the question (see paragraph 40 below) – had deducted from the sums the State was to pay Mr Leterme the amount of compensation to be paid by the Compensation Fund for Transfusion Patients and Haemophiliacs in the event of Aids being diagnosed. It remitted the case to the Paris Administrative Court of Appeal. 26. The file was received by the Paris Administrative Court of Appeal on 27 February 1996. 27. In a letter of 13 March 1996 the senior registrar at the court informed the applicant that the case had been remitted to that court by the Conseil d’Etat and asked him to submit his observations within one month. The applicant’s observations were filed at the court registry on 25 March 1996. 28. On 26 September 1996 the court decided to proceed without waiting for observations from the Minister of Health, the Yvelines Health Insurance Office and the Compensation Fund for Transfusion Patients and Haemophiliacs. 29. On 28 October 1996 Mr Leterme’s lawyer wrote to the President of the Paris Administrative Court of Appeal to draw his attention to the length and protractedness of the proceedings and the urgency of the case, given the applicant’s state of health. No reply was forthcoming. 30. On 10 February 1997 the case was allocated to a reporting judge. 31. On 21 May 1997 the applicant lodged a further application with the Commission (no. 36317/97), registered on 3 June 1997, complaining that the proceedings were still pending before the Administrative Court of Appeal. 32. In separate proceedings 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 38 below). 33. In a decision of 29 June 1992 the Fund awarded Mr Leterme compensation of FRF 1,293,000, of which FRF 969,750 were to be paid in three equal annual instalments and FRF 323,250 if and when Aids was diagnosed. From that sum FRF 100,000 already paid out by the haemophiliacs’ public and private solidarity funds was to be deducted. 34. On 6 October 1992 the applicant appealed to the Paris Court of Appeal. 35. On 26 February 1993 the Paris Court of Appeal gave a judgment in which it ruled that the Fund’s offer was satisfactory, formally noted that it undertook to pay the sum of FRF 969,750, subject to deduction of FRF 100,000, and specified that payment of the additional compensation would be conditional on the onset of Aids being diagnosed. 36. On 9 March 1993 the Compensation Fund paid the applicant FRF 874,706. 37. On 2 February 1994 the Court of Cassation dismissed an appeal on points of law lodged by the applicant against the Court of Appeal’s judgment of 26 February 1993. 38. 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. ...” 39. 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” (see paragraph 18 above). 40. In a series of landmark judgments of 24 March 1995 the Conseil d’Etat ruled that payment of the sum proposed 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”. 41. 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.” Article R.151 “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.” 42. 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 38 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...” 43. On 27 January 1995 Mr Leterme lodged an application with the Commission, registered on 2 February 1995 under file no. 26387/95, in which he complained of the length of the compensation proceedings and relied on Article 6 § 1 of the Convention. On 4 July 1995 the Commission adopted a report in which it noted, pursuant to Article 28 of the Convention: “… On 26 April 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 for non-pecuniary damage, to which were to be added 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, with interest in the event of delayed settlement. On 11 May 1995 he informed the Commission that the costs came to FRF 23,720. In a letter of 14 June 1995 the Agent of the Government informed the Commission that the Government were prepared to settle the case on the basis of a payment of FRF 223,720. On 4 July 1995 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. …” 44. The text of the applicant’s declaration that he accepted the friendly settlement, signed by him on 26 September 1995, 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.”