In the case of Fouquet v. France (1),
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 (2),
as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr C. Russo,
Mr S.K. Martens,
Mr A.N. Loizou,
Mr F. Bigi,
Mr J. Makarczyk,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 25 January 1996,
Delivers the following judgment, which was adopted on
that date:
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Notes by the Registrar
1. The case is numbered 53/1994/500/582. 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.
2. Rules A apply to all cases referred to the Court before the
entry into force of Protocol No. 9 (P9) (1 October 1994) and
thereafter only to cases concerning States not bound by that
Protocol (P9). They correspond to the Rules that came into force
on 1 January 1983, as amended several times subsequently.
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PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 8 December 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. 20398/92) against the French Republic
lodged with the Commission under Article 25 (art. 25) by a French
national, Mr Marc Fouquet, on 15 April 1992.
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) of the Convention.
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
27 January 1995, in the presence of the Registrar, the President
drew by lot the names of the other seven members, namely
Mr R. Bernhardt, Mr F. Matscher, Mr B. Walsh, Mr C. Russo,
Mr S.K. Martens, Mr A.N. Loizou and Mr J. Makarczyk (Article 43
in fine of the Convention and Rule 21 para. 4) (art. 43).
Subsequently Mr F. Bigi, substitute judge, replaced Mr Matscher,
who was unable to take part in the further consideration of the
case (Rules 22 para. 1 and 24 para. 1).
4. As President of the Chamber (Rule 21 para. 5),
Mr Ryssdal, acting through the Registrar, consulted the Agent of
the French Government ("the Government"), the applicant's lawyer
and the Delegate of the Commission on the organisation of the
proceedings (Rules 37 para. 1 and 38). Pursuant to the orders
made in consequence, the Registrar received the Government's
memorial on 30 June 1995; on 6 July 1995 the applicant's
representative indicated that he intended to make before the
Court the submissions he had already filed with the Commission.
In a letter of 17 July 1995 the Secretary to the Commission
informed the Registrar that the Delegate would submit his
observations at the hearing.
On 24 March 1995 the Secretary to the Commission had
supplied the Registrar with various documents that he had
requested on the President's instructions.
5. On 12 September 1995 the Agent of the Government sent
the Registrar a copy of a letter that had been written to the
applicant with a view to reaching a friendly settlement. On
15 September the Agent confirmed that such a settlement was very
likely. In response to a request from the Agent, and after
consulting - through the Registrar - the applicant's lawyer and
the Delegate of the Commission, the President decided on
19 September 1995 to adjourn the oral proceedings sine die.
On 22 November 1995 the applicant's lawyer communicated
to the Registrar the terms of the agreement concluded between his
client and the Government. On the following day the Registrar
forwarded a copy to the Government.
In a letter of 11 December 1995 the Secretary to the
Commission informed the Registrar that the Delegate, who had been
duly consulted (Rule 49 para. 2), had no observations to make.
6. On 25 January 1996 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
7. On 26 March 1985, while he was travelling on a moped,
Mr Marc Fouquet, aged 14, was knocked over by a car driven by
Mr D. and seriously injured.
A. The proceedings in the Saintes tribunal de grande
instance
8. The applicant's father, acting on his son's behalf and
in his interests, brought an action for damages against Mr D. and
his insurer.
9. In its judgment of 26 May 1988 the court held that
Mr Marc Fouquet had himself been negligent at the time of the
accident in swerving onto the verge of the road in an attempt to
avoid a collision and it consequently reduced the award of
damages by fifty per cent.
B. The proceedings in the Poitiers Court of Appeal
10. The applicant and his father appealed against that
judgment to the Poitiers Court of Appeal.
In his submissions of 3 February 1989 Mr Marc Fouquet
pleaded that he had not been negligent. In particular, he argued
as follows:
"Marc Fouquet's man÷uvre was perfectly justified in the
circumstances.
...
Consequently, the Court will find that Marc Fouquet's
man÷uvre did not amount to negligence but was a natural
reaction in the given situation and will hold Mr D.
wholly liable.
In the unlikely event of the Court's holding that the
man÷uvre was negligent, it would be bound to acknowledge
that Marc Fouquet's negligence was slight in comparison
with Mr D.'s and consequently reapportion liability.
..."
In his supplementary submissions of 20 April 1989 the
applicant alleged, inter alia:
"...
... it was clearly Mr D.'s conduct which caused the
accident with Marc Fouquet.
...
... The Court will find that the accident was caused
solely by the negligent conduct of Mr D., who will have
to compensate Marc Fouquet for all the damage sustained.
..."
11. In a judgment of 13 September 1989 the Poitiers Court of
Appeal upheld the judgment of the court below.
C. The proceedings in the Court of Cassation
12. The applicant and his father appealed on points of law.
In their first ground of appeal they maintained that the Court
of Appeal had been wrong to hold that Mr Marc Fouquet had been
guilty of negligence warranting a reduction of his damages.
13. On 4 March 1992 the Court of Cassation (Second Civil
Division) dismissed the appeal on the following ground:
"It appears from the documents produced in evidence that
in [their] submissions to the Court of Appeal the
Fouquets recognised that the victim had been negligent.
The ground, which contradicts the arguments maintained
in the courts below, is inadmissible."
PROCEEDINGS BEFORE THE COMMISSION
14. Mr Fouquet applied to the Commission on 15 April 1992.
He maintained that the Court of Cassation had made a mistake of
fact when considering the first ground of appeal submitted to it
and that this had given rise to a breach of his right to a fair
hearing as secured in Article 6 para. 1 (art. 6-1) of the
Convention.
15. The Commission (Second Chamber) declared the application
(no. 20398/92) admissible on 2 March 1994. In its report of
12 October 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 (1).
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Note by the Registrar
1. For practical reasons this annex will appear only with the
printed version of the judgment (in Reports of Judgments and
Decisions - 1996), but a copy of the Commission's report is
obtainable from the registry.
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AS TO THE LAW
16. On 22 November 1995 the Court received from the
applicant's lawyer a document signed by Mr Fouquet on
15 November 1995, which read as follows:
"I, the undersigned Mr Marc Fouquet, ... hereby declare
that I accept the compensation of FRF 150,000 offered to
me by the French Government in the case pending before
the European Court of Human Rights between me and that
Government (my application, no. 53/1994/500/582).
I acknowledge that the payment of this sum will
constitute full and final reparation for all the
pecuniary and non-pecuniary damage alleged by me in my
application and will also cover in their entirety the
lawyers' fees and other costs incurred by me in this
case.
I therefore agree, in consideration of the payment of
this sum, 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 pay me this
compensation as soon as the Court has decided to strike
the case out of its list.
Done at Epargnes on 15 November 1995
[applicant's manuscript addition:] Approved for
settlement in the amount of one hundred and fifty
thousand francs (FRF 150,000)."
The Delegate of the Commission was consulted and raised
no objection.
17. The Court takes formal note of the friendly settlement
reached by the Government and Mr Fouquet. 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).
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 31 January 1996.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
Full & Egal Universal Law Academy