CASE OF F.E. v. FRANCE
Violation of Art. 6-1 (access to court);Violation of Art. 6-1 (length of proceedings);Non-pecuniary damage - financial award;Pecuniary damage - financial award
C. Russo;R. Pekkanen
7. The applicant was born in 1971. On 27 October 1985, when he was 14, he was admitted to a clinic for a tonsillectomy. During the operation, on 29 October 1985, the surgeon, with the anaesthetist’s agreement, gave him a transfusion of three packs of fresh plasma and one ampoule of PPSB (a blood product containing coagulation factors) supplied by the blood transfusion centre of Colmar Hospital (département of Haut-Rhin). 8. Blood tests carried out on 26 November 1985 revealed anomalies in the composition of the applicant’s blood. 9. In 1987 infectious mononucleosis was diagnosed. 10. On 7 December 1988 and 27 January 1989 serological tests for the human immunodeficiency virus (HIV) gave positive results. 11. By a decision of 4 October 1991 the President of the Colmar tribunal de grande instance ordered an expert opinion. In a report of 28 February 1992 the medical expert concluded that there was a strong probability of a causal connection between the administration of the ampoule of PPSB to Mr F.E. and his infection with HIV. 12. Relying on this report, the applicant applied to the Colmar tribunal de grande instance and, by a decision of 25 May 1992, was given leave to institute civil proceedings in that court against the Fondation Saint-Marc, owners of the clinic, the Strasbourg Primary Health Insurance Office and the mutual insurance scheme of the national education service. He asked the court to rule that the Fondation Saint-Marc bore sole liability for his infection and order it to pay him full compensation for the consequences. 13. By a judgment of 26 August 1992, following a hearing on 23 June 1992, the court held that proof of a causal connection had not been established as there was still serious doubt as to the cause of the infection. It accordingly dismissed the applicant’s claim as ill-founded. 14. On 14 September 1992 the applicant appealed. In his statement of the grounds of appeal, of 28 December 1992, he assessed the damage he had sustained at 2,500,000 French francs (FRF) and asked the Colmar Court of Appeal to take note of the fact that he had applied to the Compensation Fund for Transfusion Patients and Haemophiliacs (“the Fund” – see paragraph 23 below). He pointed out that the Fund had not yet taken a decision but that the sums of compensation it had proposed were lower than those awarded by the courts. The Fund joined the proceedings on its own initiative on 10 June 1993 in order to preserve its right by subrogation to pursue a claim in the event of the Fondation Saint-Marc being declared negligent. 15. On 6 December 1994 the Colmar Court of Appeal set aside the impugned judgment. On the merits of the case, the Court of Appeal found the Fondation Saint-Marc liable in respect of the applicant’s infection and awarded him compensation in the sum of FRF 2,500,000, with the Fund being subrogated to his right to the first FRF 1,500,000 of compensation (see paragraph 24 below). It therefore ordered the clinic to pay Mr F.E. FRF 1,000,000, corresponding to that portion of the damage for which no compensation had been paid by the Fund. In response to the Fondation Saint-Marc’s argument that section 47 of the Act of 31 December 1991 (see paragraph 31 below) excluded any possibility of compensation other than that provided by the Fund, since the latter paid full compensation, the Court of Appeal ruled as follows: “Before any other analysis, reference should be made to section 47 of the Act …, subsection (III) of which provides for ‘full’ compensation to be paid by the Fund set up for that purpose in respect of damage sustained by the victims of infection by the human immunodeficiency virus (HIV) during transfusion of blood products where such transfusion has been carried out within the territory of the French Republic. However, section 47(VI) requires the victim to ‘inform the Fund of any judicial proceedings pending’ and ‘if any legal proceedings are brought’. Section 47(IX) provides: ‘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 victim’s obligation to inform the Fund of judicial proceedings pending or if legal proceedings are brought, like subrogation of the Fund ‘for an amount no higher than the sum paid out’ to the victim, show that in providing victims with an expedited compensation procedure Parliament did not intend to do away with the possibility of direct applications by the victims against any persons they considered responsible. The Act did not exclude the possibility of damage being assessed by the courts applied to at a higher figure than the sum awarded by the Fund, but was intended to prevent compensation being paid twice over (both through the obligation to provide information about pending proceedings and through subrogation of the Fund). This is all the more incontestable since, the Fund not being a ‘court’, its decisions are not binding. The documents that it requires the patients who accept its proposals to sign refer to section 47(VI) and the obligation to ‘inform it of any pending or future judicial proceedings’. In the present case, moreover, E. and co-plaintiffs all declared, in the letter they sent on 21 April 1993 to the Compensation Fund for Transfusion Patients and Haemophiliacs, that they accepted ‘for the present’ the sums proposed but made it clear that they considered them ‘insufficient’ and F.E., who formally accepted the proposal, went on to say: ‘I retain the right to bring proceedings against any liable third party, it being my responsibility in that case to inform the Fund, which shall be subrogated for an amount no higher than the sums paid out, as provided in section 47 of the Act of 31 December 1991’, which shows that he always considered that full compensation had not been paid for the damage he sustained and that he therefore still had an interest giving him standing to bring proceedings. In any case, the agreement reached could not be classed as a settlement within the meaning of Article 2052 of the Civil Code. Consequently, [F.E.]’s action is admissible and his acceptance of the compensation offered by the Fund does not deprive him of standing.” 16. On 1 March 1995 the Fondation Saint-Marc gave notice of intention to appeal on points of law. It filed its statement of the grounds of appeal on 1 August. The applicant replied on 19 August 1995. By a pleading of 26 October 1995 the Strasbourg Primary Health Insurance Office lodged a third-party cross-appeal against the same judgment. The blood transfusion centre filed submissions on 2 November 1995. Mr F.E. filed additional observations on 10 January 1996 and his reply to the third-party cross-appeal on 13 February 1996. The case was allocated to the Second Civil Division of the Court of Cassation on 21 February 1996. After the reporting judge had made his report and this had been transmitted to the Advocate–General, the Division considered the case on 29 January 1997 and decided that it should be referred to the plenary court, regard being had to the Bellet judgment delivered by the European Court of Human Rights (4 December 1995, Series A no. 333-B). 17. On 6 June 1997 the Court of Cassation, sitting in plenary, quashed and annulled the judgment of 6 December 1994 without remitting the case for reconsideration. It gave the following reasons: “Having regard to section 47 of the Act of 31 December 1991 and Article 1382 of the Civil Code; Whereas these texts require the Compensation Fund for Transfusion Patients and Haemophiliacs infected with the human immunodeficiency virus (‘the Fund’) to pay victims full compensation for the damage they have sustained; whereas victims who do not accept the Fund’s proposals may bring proceedings in the Paris Court of Appeal; whereas they may obtain compensation from the ordinary courts only in respect of heads of damage for which they have not already been compensated by the Fund; Whereas, according to the impugned judgment, [F.E.] was infected with the human immunodeficiency virus when a blood product was administered to him during an operation carried out at the Fondation Saint-Marc; whereas he instituted proceedings against the Fondation Saint-Marc for compensation in respect of the specific damage caused by his infection; whereas he subsequently accepted the compensation offered by the Fund on that account; Whereas, in upholding [F.E.]’s action against the clinic, the judgment stated that the Act did not exclude the possibility of damage being assessed by the courts applied to at a higher figure than the sum awarded by the Fund and that [F.E.]’s acceptance of the compensation offered by the Fund did not deprive him of an interest giving him standing to bring proceedings; Whereas in so doing the Court of Appeal misapplied the provisions cited above; And having regard to Article 627 § 1 of the New Code of Civil Procedure; Whereas the quashing of a judgment does not imply that the case should be remitted for reconsideration; For these reasons and without finding it necessary to rule on the second ground of appeal, [The Court] quashes and declares null and void in all its provisions the judgment delivered on 6 December 1994 between the parties by the Colmar Court of Appeal; Holds that the case shall not be remitted for reconsideration.” 18. The applicant was obliged to pay back the sum of FRF 1,000,000, which had been paid to him in execution of the Colmar Court of Appeal’s judgment. 19. In the meantime, by an application of 30 December 1992, the applicant, his parents, his two sisters and his partner, who became his wife in July 1993, had asked the Strasbourg Administrative Court to order Colmar Hospital – which ran the blood transfusion centre (see paragraph 7 above) – to pay them compensation totalling FRF 4,000,000 in respect of the damage they had sustained on account of the applicant’s HIV infection. 20. By a judgment of 10 February 1994 the Administrative Court ruled that the hospital was liable in respect of the applicant’s HIV infection and deferred its decision on damages in order to give the Fund (see paragraphs 23 and 31 below) time to produce observations on the compensation claims. 21. By a judgment of 23 March 1995 the same court ordered Colmar Hospital to pay the Fund the compensation it had awarded to the applicant, his parents and his two sisters and to pay the applicant’s wife, to whom the Fund had made no award, the sum of FRF 40,000. 22. On appeal by Colmar Hospital against both judgments and by the applicant and his family against the last-mentioned judgment, the Nancy Administrative Court of Appeal, in a judgment of 27 June 1996, set aside both judgments and dismissed the claims of the applicant and his family on the ground that Colmar Hospital could not be held liable for the damage resulting from the infection. 23. On 24 November 1992, in proceedings brought concurrently with his civil and administrative actions, the applicant applied to the Compensation Fund for Transfusion Patients and Haemophiliacs, set up by the Act of 31 December 1991 (see paragraph 31 below). 24. On 19 March 1993 the Fund offered him compensation in the sum of FRF 2,000,000, of which FRF 1,500,000 were to be payable on acceptance of the proposal and FRF 500,000 if and when the onset of Aids was diagnosed. The Fund also offered compensation of FRF 150,000 for each of his parents and FRF 20,000 for each of his sisters. The compensation proposal sent to the applicant contained the following information: “At its sitting on 25 February 1993 the Compensation Board decided to make you an offer of compensation corresponding to the whole of your specific damage resulting from infection, that is to say the current and future damage resulting from HIV infection, and thereafter, if applicable, from the onset of Aids. On the basis of your actual, personal and individual situation and with reference to the compensation awarded to date in similar cases, the Board has decided to offer you compensation amounting in total to FRF 2,000,000. ... If you accept this offer, you should do so by registered letter with recorded delivery... Naturally, the award of this compensation does not prevent you from claiming other compensation in respect of pecuniary damage you may sustain or already have sustained, provided, of course, that you can furnish proof of it. If this proposal is not acceptable to you, you may bring legal proceedings in the Paris Court of Appeal and have two months from notification of the present proposal in which to do so... I would draw your attention to the provisions of section 47(VI) of Law no. 91-1406 of 31 December 1991, which require you to inform the Fund of any judicial proceedings brought on account of your infection, whether pending or still to come.” 25. In a letter of 21 April 1993 the applicant and his family declared that they accepted the various sums offered, but added the following proviso: “… I consider that these sums are insufficient. I must accept them for the present in view of the financial situation in which my family and I find ourselves. Consequently, I formally accept your proposal but retain the right to bring proceedings against any liable third party, it being my responsibility in that case to inform the Fund, which shall be subrogated for an amount no higher than the sums actually paid out, as provided in section 47 of the Act of 31 December 1991. …” 26. After receiving this acceptance, the Fund paid FRF 1,500,000 to the applicant, who acknowledged receipt on 11 May 1993. 27. In a report of 5 December 1991 that he laid before the National Assembly on behalf of the Cultural, Family and Social Affairs Committee, Mr Boulard, MP, indicated that a victim could seek better compensation after accepting an offer from the Fund: “That the compensation procedure is quite distinct is confirmed by the fact that it is possible for victims or their heirs to continue civil or criminal actions they may have brought in the administrative courts or even to institute them where they did not do so when submitting a claim to the Fund. Compensation by the Fund is therefore not a ‘settlement’ which precludes judicial remedies, unlike the aid granted by the public and private funds set up in 1989, but a compensation scheme based on the concept of risk and independent of any attempt to determine fault. A victim must, however, inform the Fund and the court of the various actions brought. This provision is necessary because the Fund is subrogated to the victim's rights against the person liable for the damage or against those who are, for one reason or another, under a duty to provide compensation.” 28. During the debate in the National Assembly on 9 December 1991 several speakers advocated making it possible to bring proceedings in the ordinary courts after acceptance of a compensation proposal. The official summary report of proceedings contains the following contributions: “Mr Chamard: ‘… it must remain possible to take legal proceedings.’ Mr Préel: ‘In any case, infected persons must be able to continue the proceedings they have brought against the transfusion centres. And what will happen if the sum they are awarded by the court is higher than the sum they have been paid in compensation?’ Mr Bianco, Minister of Social Affairs and Integration: ‘It is clear that the compensation proposal does not deprive victims of the right to bring proceedings, particularly for the purpose of determining liability… It would be inconceivable for acceptance of compensation offered by the Fund to bar a victim’s entitlement to a larger sum awarded by a court. Its decisions are therefore not binding and there is accordingly nothing to prevent a court from awarding additional compensation, it being understood that the Fund will be subrogated to the victim’s rights vis-à-vis the causer of the damage.’” 29. On 28 April 1994, following the Court of Cassation's judgment of 26 January 1994 in the Bellet case (see paragraph 34 below), Mr Mazeaud, MP, proposed an interpretative Act in order to remove the drafting ambiguities which had given rise to that judgment. He considered that it had interpreted the Act of 31 December 1991 in a way that achieved a result opposite to the one sought by the legislature. The bill was not passed. 30. In the opinion of 12 December 1991 that was submitted to the Senate on the bill then before it on behalf of the Committee on the Constitution, Legislation, Universal Suffrage, Regulations and General Administration, Senator Thyraud wrote, inter alia: “The bill is a response to an exceptional situation. The arrangements it proposes may be regarded as being likewise exceptional. Independently of the current investigation into the apportionment of liability, including criminal liability, the community must afford the best redress it can for the consequences of such a tragedy. ... As indicated in the introduction to this commentary, the intention of those who have framed the bill was to set up a fully independent scheme that could not be interpreted as in any way validating recent trends in the case-law on this matter. Simultaneously, victims’ possibility of resorting to the procedures of ordinary law, whether in the civil or administrative courts or in the criminal courts, has been preserved. However, the bill’s wording is not fully explicit on this subject, and the text before us is silent as to the possible effects of earlier court decisions on the Compensation Board's decisions, and also as to the effects of the Board's decisions on subsequent judgments of other courts. The bill does not, for example, make it possible to determine whether or not the Board’s decisions imply recognition of liability or a presumption of guilt. Similarly, it does not state whether the Board is bound by earlier decisions of the courts.” 31. Law no. 91-1406 of 31 December 1991 “making miscellaneous social-welfare provisions” set up a special scheme for the compensation of haemophiliacs and transfusion patients who had been infected following injections of blood products. The distinctive feature of the system, which is based on solidarity, is that it enables reparation to be made for the consequences of HIV infection independently of the investigation of liability. 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. No final settlement clause whereby a victim undertakes not to pursue any proceedings or action against any third party in respect of his infection shall be a bar to the procedure herein provided for. 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. A council whose members shall include representatives of the associations concerned shall be established to assist the chairman of the Fund. 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. ...” 32. In three judgments of 9 April 1993 the Judicial Assembly of the Conseil d’Etat ruled that “the State is wholly liable in respect of persons infected with the human immunodeficiency virus following a transfusion of non-heat-treated blood products between 22 November 1984 and 20 October 1985”. 33. At the request of the Paris Administrative Court in respect of the Vallée case, on which the European Court has had to rule (Vallée v. France judgment of 26 April 1994, Series A no. 289-A), the Conseil d’Etat gave its view on the consequences of bringing concurrent proceedings in the administrative courts and before the Compensation Fund. Sitting in its judicial capacity on 15 October 1993, it gave the following opinion: “1. The decree of 12 July 1993 ..., which is applicable to cases pending at the date of its publication, ... provides a solution to the problem raised by the Administrative Court. 2. ... An administrative court asked to make such an award should raise of its own motion the fact that the damage complained of has already been wholly or partly indemnified by a third party, when the evidence shows this to be the case, even if that party does not file submissions – on the basis of its subrogation to the rights of the victim – seeking reimbursement of the amounts it has paid as compensation for the damage suffered by the latter. Accordingly, an administrative court to which a claim for compensation for damage suffered as a result of infection with the human immunodeficiency virus has been submitted must, when it has been informed by one of the parties that the victim or his heirs have already received compensation for the damage complained of, deduct of its own motion such compensation from the amount payable in respect of the damage. ... Where the sum offered by the Fund has been accepted by the claimants, ... it should be held that all or part of the damage complained of has been actually and finally compensated for by the Fund. Consequently, it is incumbent on an administrative court which has been informed that this is the case to deduct, of its own motion, the amount thus owed by the Fund from the compensation which it orders the public authority liable for the damage to pay to the victim.” 34. By a judgment delivered on 26 January 1994 in the Bellet case, the Court of Cassation (Second Civil Division) gave a ruling for the first time on the question whether a person who had accepted a proposal of compensation from the Fund still had standing to bring judicial proceedings, holding as follows: “The Court of Appeal, having found that the damage compensated by the Fund was the same as that for which compensation was being sought from the [National Blood Transfusion Foundation] and that acceptance of the offer of compensation for the specific damage resulting from infection that had been made to him by the Fund fully compensated Mr Bellet, rightly concluded – on that sole ground and without infringing Article 6 § 1 of the European Convention on Human Rights, as it had been open to the victim to apply to a court to have compensation assessed for his damage – that Mr Bellet’s action was inadmissible as he lacked any interest enabling him to bring proceedings.” The Social Division of the Court of Cassation, in a judgment of 26 January 1995 (Bull. 1995, no. 42, p. 30), adopted the same reasoning. It held that acceptance of an offer from the Fund barred any subsequent appeal against a judgment refusing the victim compensation in respect of the specific damage caused by his infection. The First Civil Division followed the same line on 9 July 1996 (D-1996, 20). Criticising a judgment of the Rouen Court of Appeal, it ruled as follows: “The victim’s acceptance of a compensation proposal – which, according to the provisions of section 47(III) of the Act of 31 December 1991, constitutes full compensation for the specific damage caused by his infection – deprives him of standing to claim further compensation under the same head of damage; it follows that the Court of Appeal, which found that the non-pecuniary damage it held to have been established corresponded to the specific damage resulting from infection, did not draw the correct legal conclusions from its own findings.” After the plenary court’s judgment of 6 June 1997 in the present case, the Second Civil Division of the Court of Cassation, in a judgment of 14 January 1998 (Bull. 1998, no. 16, p. 11), followed the same line, pointing out that if a victim claimed compensation in an ordinary court under heads of damage different from those for which the Fund had paid compensation, the court concerned could not declare the action inadmissible but was obliged to rule on its merits. It ruled as follows: “Section 47 of the Act of 31 December 1991 states that the Fund provides full compensation to victims in respect of the specific damage they have sustained. Victims who do not accept the Fund’s proposals may bring proceedings in the Paris Court of Appeal. They may not obtain compensation in the ordinary courts except in respect of heads of damage for which they have not already received compensation from the Fund.” 35. Decree no. 93-906 of 12 July 1993 adds Articles 15–20 to Decree no. 92-759 of 31 July 1992 on proceedings brought in the Paris Court of Appeal under section 47 of Law no. 91-1406 of 31 December 1991 (see paragraph 31 above). It applies to all proceedings pending at the date of its publication, 17 July 1993. 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 the 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...”