Information Note on the Court’s case-law No. 141
May 2011
Legrand v. France - 23228/08
Judgment 26.5.2011 [Section V]
Article 6
Civil proceedings
Article 6-1
Access to court
Retrospective application of a change in the case-law to proceedings already under way: no violation
Facts – Two sets of legal proceedings in succession were brought against a doctor who had performed plastic surgery on the first applicant following which she picked up a severe nosocomial infection. She brought criminal proceedings, but in a judgment of December 2000 the Criminal Court acquitted the doctor of unintentionally causing injury. The first applicant appealed but subsequently withdrew her appeal, whereupon the judgment became final. In June 2002 she and her husband (the second applicant) brought a civil action for damages against the doctor in the tribunal de grande instance. Their claim was dismissed in a judgment of November 2003. In June 2006, however, the court of appeal ordered the doctor to pay the applicants compensation. The doctor appealed on points of law, relying on a judgment delivered by the Court of Cassation in another case in July 2006. In a judgment of October 2007 the Court of Cassation quashed the judgment of the court of appeal on the basis of the departure from precedent, thus definitively depriving the applicants of any compensation.
Law – Article 6 § 1: The applicants could not rely on a right definitively acquired in their favour because the judgment of the court of appeal awarding them compensation was in any event subject to appeal in accordance with the statutory procedures and time-limits. Indeed, the doctor had appealed following a departure from precedent favourable to him by the Court of Cassation in another case. The new legal requirements applicable since that departure from precedent, which had been decided in plenary (the most authoritative bench of the Court of Cassation), following conflicting decisions that had been delivered by various divisions of that court since 2004, had been well known to all the parties when the doctor had lodged his appeal on points of law. There had therefore been no uncertainty regarding the legal position when the Court of Cassation had given its ruling. Regarding the impact of the Court of Cassation’s decision, this had been a matter of application of the domestic law. In any event, the judgment of the Court of Cassation had not had the effect of depriving the applicants – even retrospectively – of their right of access to a court. It had not called into question the initial complaint lodged with the criminal court, but merely observed that they should have submitted to that court all the grounds capable of justifying their request for compensation for their loss. From that point of view, their decision to withdraw the appeal in the criminal proceedings and to sue the doctor in civil proceedings had been a personal procedural choice, and it had been primarily for the domestic courts to judge the consequences of that in the light of the aforementioned requirements. Accordingly, there had been no infringement of the applicants’ right to a fair hearing, in particular their right of access to a court.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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