European Court of Human Rights

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You are here: BAILII >> Databases >> European Court of Human Rights >> DEMAI v. FRANCE - 22904/93 [1994] ECHR 37 (28 October 1994)
URL: http://www.bailii.org/eu/cases/ECHR/1994/37.html
Cite as: [1994] ECHR 37, 20 EHRR 89, (1995) 20 EHRR 89

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In the case of Demai 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 Rules of Court A**, as a Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr L.-E. Pettiti,

Mr B. Walsh,

Mr R. Macdonald,

Mr R. Pekkanen,

Mr A.N. Loizou,

Sir John Freeland,

Mr G. Mifsud Bonnici,

Mr U. L hmus,

and also of Mr H. Petzold, Acting Registrar,

Having deliberated in private on 27 October 1994,

Delivers the following judgment, which was adopted on that

date:

_______________

Notes by the Registrar

* The case is numbered 22/1994/469/550. 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.

** Rules A apply to all cases referred to the Court before the entry

into force of Protocol No. 9 (P9) and thereafter only to cases

concerning States not bound by that Protocol. They correspond to the

Rules that came into force on 1 January 1983, as amended several times

subsequently.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 7 July 1994, 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. 22904/93) against the French Republic lodged with

the Commission under Article 25 (art. 25) by a French national,

Mr Christian Demai, on 15 October 1993.

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 Rules of Court A, the applicant stated that he

wished to take part in the proceedings and designated the lawyer 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 18 July 1994, in the presence of the

Acting Registrar, the President drew by lot the names of the other

seven members, namely Mr B. Walsh, Mr R. Macdonald, Mr N. Valticos,

Mr R. Pekkanen, Mr A.N. Loizou, Sir John Freeland and

Mr G. Mifsud Bonnici (Article 43 in fine of the Convention and

Rule 21 para. 4) (art. 43). Subsequently, Mr U. L hmus, substitute

judge, replaced Mr Valticos, who was unable to take part in the further

consideration of the case (Rules 22 paras. 1 and 2 and 24 para. 1).

4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal

consulted - through the Acting Registrar - the Agent of the French

Government ("the Government"), the applicant's lawyer and the Delegate

of the Commission on the organisation of the proceedings

(Rule 37 para. 1).

5. Between 5 September and 5 October 1994 the Government, the

applicant's lawyer and the Acting Registrar communicated with each

other in writing or by telephone on a number of occasions in pursuit

of a friendly settlement.

6. On 5 October 1994 the Government informed the Acting Registrar

of the terms of an agreement concluded with the applicant, whose lawyer

confirmed acceptance of it on the same day.

The Delegate of the Commission was consulted and raised no

objection.

7. On 27 October 1994 the Court decided to dispense with a hearing

in the case, having satisfied itself that the conditions for this

derogation from its usual procedure had been met (Rules 26 and 38).

AS TO THE FACTS

8. Mr Christian Demai, a French national born in 1962, is a

haemophiliac and has had frequent blood transfusions. A blood test on

22 July 1985 showed that he had been infected with the human

immunodeficiency virus (HIV). He is currently classified as having

reached stage II of infection on the scale of the Atlanta Center for

Disease Control.

9. On 8 December 1989 the applicant submitted a preliminary claim

for compensation to the Minister for Solidarity, Health and Social

Protection, who refused it on 30 March 1990.

10. On 25 May 1990 Mr Demai lodged an application with the

Versailles Administrative Court, seeking to have the ministerial

decision quashed and to be awarded compensation by the State in the

amount of 2,500,000 French francs (FRF) plus statutory interest. The

Minister filed his defence on 22 April 1991.

11. On 24 July 1991 the Conseil d'Etat assigned the case to the

Paris Administrative Court, the court designated to deal with all the

applications lodged by infected haemophiliacs.

12. After a hearing on 8 April 1992 the court ruled on 22 April

that the State was liable in respect of haemophiliacs who had been

infected with HIV in the course of transfusion of non-heat-treated

blood products between 12 March and 1 October 1985. It also ordered,

in an interlocutory decision, that an expert should be appointed to

determine, inter alia, whether the applicant had been infected during

that period.

13. On 18 January and 8 March 1993 counsel for the applicant

expressed concern to the Administrative Court that his client had still

not been called by the expert. The expert examined Mr Demai on

8 April 1993 and filed his report on 30 July.

14. On 26 August 1993 the applicant filed his pleadings in the

light of the expert's opinion.

15. Concurrently, on 8 October 1992, the Compensation Fund for

Haemophiliacs and Transfusion Patients offered Mr Demai FRF 1,280,000,

payable in three instalments over two years as "HIV-infection

compensation", and FRF 460,000 as soon as he developed AIDS (acquired

immunodeficiency syndrome).

The applicant accepted this offer and received FRF 426,667 in

November 1992 and FRF 853,334 in January 1993.

On 19 November 1993 the Compensation Fund informed the

Administrative Court of this and indicated that it did not intend to

take part in the proceedings.

16. After a hearing on 16 February 1994 the Paris Administrative

Court on 2 March 1994 awarded Mr Demai, inter alia, a sum of

FRF 620,000 plus statutory interest. The judgment was served on the

applicant on 18 April 1994 and no appeal was lodged against it.

PROCEEDINGS BEFORE THE COMMISSION

17. Mr Demai applied to the Commission on 15 October 1993. He

alleged that his case had not been heard within a reasonable time as

required by Article 6 para. 1 (art. 6-1) of the Convention.

18. The Commission declared the application (no. 22904/93)

admissible on 9 March 1994. In its report of 18 May 1994 (Article 31)

(art. 31), it expressed the unanimous opinion that there had been a

violation of Article 6 para. 1 (art. 6-1). The full text of the

Commission's opinion 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 289-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

19. On 5 October 1994 the Court received from the French Ministry

of Foreign Affairs a copy of a document signed by Mr Demai on

30 September 1994, which read as follows:

"I ... hereby declare that I accept the friendly settlement

proposed to me by the French Government in the case pending in

the European Court of Human Rights between me and that

Government, subject to the following conditions:

payment of compensation of FRF 200,000;

payment of the costs and expenses incurred in the

proceedings before the European Commission and Court

of Human Rights, on production of the relevant

vouchers, that is to say 23,720 francs inclusive of

all taxes;

the whole to be paid within one month from the

delivery of the Court's judgment.

I acknowledge that the payment of these sums will constitute

full and final reparation for all the damage alleged in my

application and will also cover in their entirety the lawyer's

fees and other costs incurred by me in this case.

I therefore agree to withdraw from these proceedings and not

to institute any further proceedings in this matter against

the French State in the national or international courts.

I note that the French Government will take the necessary

steps to implement the terms of the friendly settlement as

soon as the Court has decided to strike the case out of its

list.

..."

In a letter of 5 October 1994 to the Acting Registrar the

applicant's lawyer confirmed that his client and the Government had

agreed a settlement.

The Delegate of the Commission was consulted and raised no

objection.

20. The Court takes formal note of the friendly settlement reached

by the Government and Mr Demai. It discerns no reason of public policy

why the case should not be struck out of the list (Rule 49 paras. 2

and 4 of Rules of Court A), especially as in the X v. France, Vallée

v. France and Karakaya v. France judgments (31 March 1992,

26 April 1994 and 26 August 1994, Series A nos. 234-C, 289-A and 289-B)

it has already established case-law in the matter.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Decides to strike the case out of the list.

Done in English and in French, and notified in writing under

Rule 55 para. 2, second sub-paragraph, of Rules of Court A on

28 October 1994.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Acting Registrar

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