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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> X v. FRANCE - 18020/91 [1992] ECHR 45 (31 March 1992)
URL: http://www.bailii.org/eu/cases/ECHR/1992/45.html
Cite as: 14 EHRR 483, [1992] ECHR 45, (1992) 14 EHRR 483
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In the case of X v. France*,
The European Court of Human Rights, sitting, in accordance
with Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention")** and the
relevant provisions of the Rules of Court, as a Chamber composed of
the following judges:
Mr R. Ryssdal, President,
Mr J. Cremona,
Mr F. Gölcüklü,
Mr L.-E. Pettiti,
Mr R. Macdonald,
Mr A. Spielmann,
Mr N. Valticos,
Mr J.M. Morenilla,
Mr A.B. Baka,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 25 January and 24 March
1992,
Delivers the following judgment which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 81/1991/333/406. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 18 October 1991,
within the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated in
an application (no. 18020/91) against the French Republic lodged
with the Commission under Article 25 (art. 25) by a French national,
Mr X, on 19 February 1991. The applicant, who had requested the
Court not to disclose his identity, died on 2 February 1992; his
parents expressed the wish that the proceedings should be continued.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby France recognised
the compulsory jurisdiction of the Court (Article 46) (art. 46).
The object of the request was to obtain a decision as to whether the
facts of the case disclosed a breach by the respondent State of its
obligations under Article 6 para. 1 (art. 6-1).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that
he wished to take part in the proceedings and designated the lawyers
who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr L.-E. Pettiti, the elected judge of French nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 25 October 1991,
in the presence of the Registrar, the President drew by lot the
names of the other seven members, namely Mr J. Cremona, Mr F.
Gölcüklü, Mr R. Macdonald, Mr A. Spielmann, Mr N. Valticos,
Mr J.M. Morenilla and Mr A.B. Baka (Article 43 in fine of the
Convention and Rule 21 para. 4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent of
the French Government ("the Government"), the Delegate of the
Commission and the applicant's lawyers on the organisation of the
procedure (Rules 37 para. 1 and 38). Pursuant to the order made in
consequence, the Registrar received the applicant's memorial on
12 December 1991, the Government's memorial on 23 December 1991 and
the written observations of the Delegate of the Commission on
13 January 1992.
5. On 28 November 1991 Mr Ryssdal gave leave to the French
Association of Haemophiliacs to submit, pursuant to Rule 37 para. 2,
written observations on the steps which it had taken in similar
cases to the applicant's. These observations reached the registry
on 19 December.
6. On 22 November 1991 the Commission produced the documents in
the proceedings conducted before it, as requested by the Registrar
on the President's instructions.
7. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg, on
21 January 1992. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr J.-P. Puissochet, Director of Legal
Affairs, Ministry of Foreign Affairs, Agent,
Mr B. Gain, Assistant Director of Human Rights
at the Legal Affairs Department, Ministry of
Foreign Affairs,
Mrs H. Khodoss, Assistant Director for the
organisation of care and medical programmes
at the General Department of Health,
Ministry of Social Affairs and Integration,
Mr P. Chambu, Human Rights Section, Legal Affairs
Department, Ministry of Foreign Affairs,
Dr A. Laporte, AIDS Division, Section for the organisation
of care and medical programmes at the General
Department of Health, Ministry of Social
Affairs and Integration, Counsel;
(b) for the Commission
Mr J.-C. Geus, Delegate;
(c) for the applicant
Mrs E. Lassner, avocate,
Mr F. Thiriez, avocat at the Conseil
d'Etat and the Court of Cassation, Counsel.
The Court heard addresses by Mr Puissochet for the
Government, Mr Geus for the Commission and Mrs Lassner and
Mr Thiriez for the applicant, as well as their answers to its
questions.
AS TO THE FACTS
I. The particular circumstances of the case
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.
A. The preliminary application to the administrative
authority
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.
B. The application to the administrative courts
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).
1. The filing of the first memorials
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."
2. The additional investigative measures and the
end of the written proceedings
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.
3. The trial
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).
4. Before the Paris Administrative Court of Appeal
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.
II. The existing compensation machinery
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).
III. The relevant procedural law
23. At the material time the Administrative Courts' Code
contained, inter alia, the following provisions:
Article R.102
"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.
... "
Article R.111
"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."
Article R.129
"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."
Article R.142
"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
circumstances of the case, fix the time-limit to be given,
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."
Article R.182
"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."
PROCEEDINGS BEFORE THE COMMISSION
24. Mr X lodged his application with the Commission on
19 February 1991 alleging that his case had not been heard within a
reasonable time as required under Article 6 para. 1 (art. 6-1) of
the Convention.
25. The Commission declared the application (no. 18020/91)
admissible on 12 July 1991.
In its report of 17 October 1991 (Article 31) (art. 31), it
expressed the opinion, by thirteen votes to two, that there had been
a violation of Article 6 para. 1 (art. 6-1). The full text of its
opinion and the dissenting opinion contained in the report is
reproduced as an annex to this judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment (volume 234-C
of Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
AS TO THE LAW
I. PRELIMINARY OBSERVATION
26. The applicant died on 2 February 1992. In a letter of
6 February his parents expressed their wish to continue the
proceedings.
In such circumstances the Commission has sometimes struck
out of its list cases concerning compliance with the reasonable time
requirement laid down in Article 6 para. 1 (art. 6-1) of the
Convention. It has taken the view that the complaint was so closely
linked to the person of the deceased that the heirs could not claim
to have a sufficient interest to justify the continuation of the
examination of the application (reports of 9 October 1982 on
application no. 8261/78, Kofler v. Italy, Decisions and Reports
no. 30, p. 9, paras. 16-17, and of 13 January 1992 on application
no. 12973/87, Mathes v. Austria, paras. 18-20).
The Court, however, in accordance with its own case-law,
accepts in the present case that Mr X's father and mother are now
entitled to take his place (see, inter alia, the Vocaturo v. Italy
judgment of 24 May 1991, Series A no. 206-C, p. 29, para. 2, the
G. v. Italy judgment of 27 February 1992, Series A no. 228-F, p.65,
para. 2, and the Pandolfelli and Palumbo v. Italy judgment of
27 February 1992, Series A no. 231-B, p.16, para. 2).
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
27. The applicant complained of the time taken to examine the
action which he had brought against the State in the administrative
courts. He alleged a violation of Article 6 para. 1 (art. 6-1) of
the Convention, according to which:
"In the determination of his civil rights and obligations
..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ... ."
A. Applicability of Article 6 para. 1 (art. 6-1)
28. The applicant and the Commission both considered that this
provision was applicable in the present case.
29. The Government took the opposite view. In instituting
proceedings in the administrative courts, Mr X had challenged the
Minister's delay in using the powers relating to health policy which
Articles L. 668 and L. 669, taken together, of the Public Health
Code conferred on him. His action had been founded exclusively on
the State's liability for alleged negligence in the exercise of its
regulatory authority, which in France fell outside the scope of the
principles of the civil law and could not be classified as "civil".
In addition, the legal problems raised by Mr X's application
differed considerably from those in issue in the H. v. France case
(judgment of 24 October 1989, Series A no. 162); the general
negligence deriving from the rules concerning the supply of blood
products could not be regarded as equivalent to the individual
negligence of a doctor who had prescribed inappropriate treatment.
30. As the Court has consistently held, the notion of "civil
rights and obligations" is not to be interpreted solely by reference
to the respondent State's domestic law and Article 6 para. 1
(art. 6-1) applies irrespective of the parties' status, be it
private or public, and of the nature of the legislation which
governs the manner in which the dispute is to be determined; it is
sufficient that the outcome of the proceedings should be decisive
for private rights and obligations.
That is indeed the case in this instance, in view of the
purpose of the action, so that Article 6 para. 1 (art. 6-1) is
applicable.
B. Compliance with Article 6 para. 1 (art. 6-1)
1. Period to be taken into consideration
31. The period to be taken into consideration began on
1 December 1989 when the applicant filed his preliminary claim with
the Minister for Solidarity, Health and Social Protection (see
paragraph 11 above). It has not yet ended, as Mr X appealed to the
Paris Administrative Court of Appeal on 20 January 1992 (see
paragraph 21 above). It has therefore already lasted more than two
years.
2. Reasonableness of the length of the proceedings
32. The reasonableness of the length of proceedings is to be
assessed in the light of the circumstances of the case and having
regard to the criteria laid down in the Court's case-law, in
particular the complexity of the case, the behaviour of the
applicant and the conduct of the relevant authorities. On the
latter point, what is at stake for the applicant in the litigation
has to be taken into account in certain cases (see, mutatis
mutandis, the H. v. the United Kingdom judgment of 8 July 1987,
Series A no. 120-B, pp. 59 and 62-63, paras. 71 and 85, and the Bock
v. Germany judgment of 29 March 1989, Series A no. 150, pp. 18 and
23, paras. 38 and 48-49).
(a) Complexity of the case
33. According to Mr X, the proceedings did not give rise to any
particular difficulty because they concerned typical questions of
liability: namely whether there had been negligence, whether there
had been any damage and whether there was a causal connection
between the two. Furthermore, the administrative court could have
given judgment without the report drawn up by the I.G.A.S. (see
paragraph 17 above).
34. That is also in substance the Commission's opinion. In 1989
the relevant authorities had already had available to them for
several years all the information which they needed to decide the
case without delay.
35. The Government invoked the very exceptional nature of the
dispute, which raised not merely the question of the liability of a
medical establishment for prescribing treatment, but also the more
complex and general problem of the liability of the State for
negligence in the exercise of its power to regulate blood products
and derivatives. They cited in support of this view the report of
the I.G.A.S. That document showed that at the time when Mr X's
application was introduced, and until the completion of the report,
the relevant authorities had lacked the information necessary to
determine whether, if at all, the State authorities were liable. It
demonstrated, by drawing attention to the nature and the number of
the problems involved, the complexity of the case. The report
pointed out that for a long time and for various reasons the
scientific community had been divided on the matter.
36. In the Court's opinion the case was one of some complexity
and investigations could have been necessary to determine the
State's liability and its extent. However, the Government had
probably been aware for a long time that proceedings were imminent.
It would have been possible for them to obtain much of the relevant
information and they ought to have commissioned an objective report
on the question of liability immediately after the commencement of
the cases against them.
(b). The applicant's behaviour
37. The Government criticised the applicant for not having
produced until 11 July 1990 medical information on his personal
condition and for having, prior to that, expressed himself in very
general terms, which failed to make clear that he had developed full
AIDS. Urgency in this kind of case could not be assessed in the
abstract.
Mr X had also made the mistake of opting for a means of
redress which necessitated a wide-scale investigation and which went
beyond the confines of an action for damages, whereas he could have
brought other proceedings, for instance against the suppliers of the
contaminated plasma or the establishments where the transfusions had
been carried out.
38. The applicant stated in reply that the communication on
11 July 1990 of Professor Frottier's medical certificate had been
intended to confirm an established and undisputed question of fact,
namely that he was HIV positive. As soon as he had developed full
AIDS in the second half of 1990, he had informed the court and
requested it to speed up the examination of his case.
It was true that he could have decided to sue the blood
transfusion centres in the ordinary courts, but he stressed that his
action, like those of the other infected haemophiliacs (see
paragraph 13 above), was intended to challenge the State, on which
it was considered that responsibility really fell.
39. According to the Commission, Mr X displayed normal diligence
and used all the possibilities available to him to galvanise the
investigation.
40. The Court notes that already in his memorial of 11 July 1990
the applicant had emphasised 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 his
supplementary memorial of 29 October 1990 he had stated that his
condition had deteriorated (see paragraph 14 above). Even before
the disclosure on 10 September 1991 that he had developed full AIDS
(see paragraph 18 above), he had therefore drawn the administrative
court's attention to the worsening of his condition and the
immediacy of the grave risks with which he was confronted.
The Court adds that the choice of the means of redress for
obtaining compensation fell to the applicant alone.
(c) Conduct of the national authorities
i. The administrative authorities
41. The applicant complained that the relevant Minister had
waited until the last day of the four-month prescribed period
before rejecting the preliminary application and until
21 February 1991 before filing his memorial in the administrative
court.
42. In the Commission's view it is incumbent on the
administrative authorities, when they are the defendants in court
proceedings, to take every necessary measure not only to comply with
the time-limits laid down, but also to ensure that the dispute is
speedily concluded. That had not been the case in this instance.
Moreover, the Government's delay in making public all the details
concerning the infection of numerous haemophiliacs in 1984 and 1985
had contributed to prolonging the proceedings.
43. The Government maintained that a party could not be
criticised for using the entire period prescribed by statute for
replying and that the filing of the ministerial defence memorial had
not been indispensable for the continuation of the proceedings.
44. The Court can accept this argument only in so far as the
nature and the importance of what is at stake for the applicant
permit (see paragraph 47 below).
ii. The judicial authorities
45. The applicant acknowledged that the French administrative
courts took on average two years to give judgment and that the
examination of his case had not suffered any really abnormal delay.
He argued nevertheless that his case - like those of the other
infected haemophiliacs - ought to have been dealt with as a matter
of urgency because the life expectancy of the persons concerned was
of from 16.7 to 28.5 months.
Yet the court had not communicated the memorial of
11 July 1990 to the ministry until 22 August, over a month later.
The President-judge-rapporteur accorded the defendant the usual
three months to reply thereto, whereas, in view of the nature of the
case, he could have reduced this period; he ought to have directed
the Minister to submit his memorial once the time-limit had expired,
especially as the applicant had requested him to do so in his
memorial of 29 October 1990. The court had not ordered additional
investigative measures until 5 April 1991, one month and ten days
after receiving the Minister's memorial. Finally, if it considered
that it did not have available to it important information the court
should have had recourse to the powers of inquiry conferred on it by
Articles R. 158 to R.185 of the Administrative Courts' Code, without
its being necessary to wait for the report of the I.G.A.S.
46. In the Government's contention, it is impossible to
establish a rigid link between the length of proceedings and the
individual circumstances of a party to them, because that would
disrupt the functioning of the national courts. Evidently the
courts should proceed more quickly where health and life were at
risk, but they could not determine the length of proceedings on the
basis of the seriousness of an illness.
Far from disregarding the evolution of Mr X's condition, the
proceedings respected the degree of urgency of the case and did not
disclose any failure on the part of the relevant court in this
regard. The interval between the filing of the applicant's initial
memorial and its communication to the Minister was explained by the
processing of mail, which was slightly less rapid in July and
August. The administrative court could not be criticised for
failing to shorten the time-limit for replying accorded to the State
authorities and for not giving them formal notice that they should
produce their statement of defence once that time-limit had expired;
on 5 April 1991 it had called for the communication of additional
documents as a result of the applicant's memorial in reply of
3 April 1991. It had waited for the report of the I.G.A.S. to
appear in order to draw certain conclusions concerning the case.
Moreover, the court had ordered, on 27 May 1991, the second
additional investigative measure through administrative channels
with a view to speeding up the proceedings and had adopted two
further measures on 28 June and 7 November 1991. Finally, it had to
deal with a considerable amount of litigation since some four
hundred cases had been allocated to it (see paragraph 13 above).
47. Like the Commission, the Court takes the view that what was
at stake in the contested proceedings was of crucial importance for
the applicant, having regard to the incurable disease from which he
was suffering and his reduced life expectancy. He was HIV positive
when he lodged his preliminary application with the Minister and
instituted proceedings in the administrative court and he had
subsequently developed full AIDS (see paragraphs 11 and 18 above).
There was a risk that any delay might render the question to be
resolved by the court devoid of purpose. In short, exceptional
diligence was called for in this instance, notwithstanding the
number of cases which were pending, in particular as it was a
controversy the facts of which the Government had been familiar with
for some months and the seriousness of which must have been obvious
to them.
48. Yet the administrative court did not use its powers to make
orders for the speeding up of the progress of the proceedings,
although from 29 October 1990 it was aware of the deterioration in
Mr X's health (see paragraph 40 above). In particular, it was under
a duty, as soon as the case was referred to it, to conduct inquiries
into the liability of the State and to enjoin forcefully the
Minister to produce his defence memorial or to give judgment without
it.
49. Making an overall assessment of the circumstances of the
case, the Court finds that a reasonable time had already been
exceeded when the judgment was delivered on 18 December 1991; the
subsequent proceedings in the Paris Administrative Court of Appeal
cannot redress this failure, whatever the outcome as to the merits.
There has therefore been a violation of Article 6 para. 1
(art. 6-1).
III. APPLICATION OF ARTICLE 50 (art. 50)
50. According to Article 50 (art. 50) of the Convention:
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial
reparation to be made for the consequences of this decision
or measure, the decision of the Court shall, if necessary,
afford just satisfaction to the injured party."
A. Damage
51. The applicant claimed in the first place 150,000 francs for
non-pecuniary damage. The length of the proceedings had prevented
him from obtaining the compensation which he had hoped for, and thus
from being able to live independently and in better psychological
conditions for the remaining period of his life; he had received
only an allowance of 3,000 francs a month as a disabled adult.
52. The Government considered the sum claimed excessive.
Despite the offers made before the Commission, the repeated and
growing demands of Mr X had made it impossible to reach a friendly
settlement.
53. The Delegate of the Commission recommended the payment of
compensation, but left it to the Court to assess the amount.
54. The Court finds that the applicant undeniably sustained non-
pecuniary damage. Taking into account the various relevant factors
and making an assessment on an equitable basis in accordance with
Article 50 (art. 50), it awards to his parents the entire
150,000 francs sought.
B. Costs and expenses
55. Mr X also claimed 30,000 francs for costs and expenses
incurred before the Commission and the Court.
56. The Delegate of the Commission considered these claims
justified. The Government did not put forward any objection to
them.
57. The Court allows these claims in their entirety, having
regard to the evidence at its disposal and to its case-law in this
field.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 6 para. 1
(art. 6-1);
2. Holds that the respondent State is to pay to the applicant's
parents, within three months, 150,000 (one hundred and fifty
thousand) French francs for damage and 30,000 (thirty
thousand) francs for costs and expenses.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 31 March 1992.
Signed: For the President
Feyyaz GÖLCÜKLÜ
Judge
Signed: Marc-André EISSEN
Registrar