resolution DH (99) 349
CONCERNING THE JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS OF 30 OCTOBER 1998
IN THE CASE OF F.E. AGAINST FRANCE
(Adopted by the Committee of Ministers on 9 June 1999
at the 672nd meeting of the Ministers’ Deputies)
The Committee of Ministers, under the terms of Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),
Having regard to the judgment of the European Court of Human Rights in the F.E. case delivered on 30 October 1998 and transmitted the same day to the Committee of Ministers;
Recalling that the case originated in an application (No. 38212/97) against France, lodged with the European Commission of Human Rights on 26 September 1997 under Article 25 of the Convention by Mr F.E., a French national infected with the human immunodeficiency virus (HIV), and that the Commission declared admissible the complaints that that he did not had access to a court within the meaning of Article 6, paragraph 1, of the Convention, the Court of Appeal of Paris and the Cour de cassation having declared his request for compensation inadmissible, and that he had not been heard within a reasonable time;
Recalling that the case was brought before the Court by the Commission on 27 May 1998;
Whereas in its judgment of 30 October 1998 the Court:
- held, by seven votes to two, that there had been a violation of Article 6, paragraph 1, of the Convention as regards the right of access to a court;
- held, by eight votes to one, that there had been a violation of Article 6, paragraph 1, of the Convention as regards the length of the proceedings;
- held, unanimously, that the Government of the respondent State was to pay the applicant, within three months, 1 000 000 French francs for damage and that simple interest at an annual rate of 3.36% would be payable on this sum from the expiry of the above-mentioned three months until settlement;
- dismissed, unanimously, the remainder of the claim for just satisfaction;
Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 54 of the Convention;
Having invited the Government of the respondent State to inform it of the measures which had been taken in consequence of the judgment of 30 October 1998, having regard to France’s obligation under Article 53 of the Convention to abide by it;
Whereas during the examination of the case by the Committee of Ministers, the Government of the respondent State gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;
Having satisfied itself that, within the time-limit set, the Government of the respondent State paid the applicant the sum provided for in the judgment of 30 October 1998,
Declares, after having taken note of the information supplied by the Government of France, that it has exercised its functions under Article 54 of the Convention in this case.
Appendix to Resolution DH (99) 349
Information provided by the Government of France
during the examination of the F.E. case
by the Committee of Ministers
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 Cour de 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.”
The wording of this law could be interpreted as meaning that a person who had accepted an offer from the Fund could still sue the persons liable for the damage done to them.
However, this point was clarified by the Cour de cassation in the Bellet judgment of 26 January 1994, which the Court held that the Paris Court of Appeal had been correct in finding that, whilst victims who had submitted a claim to the Fund were entitled to take proceedings for compensation, they could no longer do so once they had accepted the Fund’s offer, since such acceptance implied that they had been compensated in full.
This decision has since been confirmed by a judgment of 9 July 1996 of the First Civil Division of the Cour de cassation and a further judgment of the plenary Cour de cassation of 6 June 1997.
Case-law therefore confirms that, by accepting an offer from the Fund, a victim waives the right to lodge further legal proceedings.
The Government of France is of the opinion that the problem of access to a court raised by this case is therefore settled and that, accordingly, it has fulfilled its obligation under Article 54 of the Convention.
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