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You are here: BAILII >> Databases >> European Court of Human Rights >> H. v. FRANCE - 10073/82 [1989] ECHR 17 (24 October 1989) URL: http://www.bailii.org/eu/cases/ECHR/1989/17.html Cite as: [1989] ECHR 17, (1990) 12 EHRR 74 |
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In the case of H. v. France*,
_______________
* Note by the Registrar: The case is numbered 6/1988/150/204. 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.
_______________
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 Thór Vilhjálmsson,
Mr F. Gölcüklü,
Mr L.-E. Pettiti,
Mr R. Macdonald,
Mr J.A. Carrillo Salcedo,
Mr N. Valticos,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 22 April and 29 September 1989,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 11 May 1988, 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. 10073/82) against the French Republic lodged with the
Commission under Article 25 (art. 25) by Mr H., a French national,
on 21 June 1982.
The applicant asked the Court not to reveal his identity.
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 his lawyer. The
President of the Court gave him leave to present his own case,
provided that he was assisted during the proceedings and represented
at the hearing by a lawyer (Rule 30 para. 1, second sentence).
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 30 May 1988, in the presence of the
Registrar, the President drew by lot the names of the other five
members, namely Mr F. Gölcüklü, Mr R. Macdonald, Mr J. Gersing,
Mr J.A. Carrillo Salcedo and Mr N. Valticos (Article 43 in fine of the
Convention and Rule 21 para. 4) (art. 43). Subsequently, Mr Thór Vilhjálmsson,
substitute judge, replaced Mr Gersing, who had died (Rules 22 para. 1 and
24 para. 1).
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 on the need for a written procedure (Rule 37 para. 1).
In accordance with his orders and instructions, the registry received:
Mr H.'s and his lawyer's memorials, on 18 October 1988; the
Government's memorial, on 14 November; and a new version of the
applicant's memorial, on 23 February 1989.
In a letter of 14 December 1988 the Secretary to the Commission
indicated that the Delegate would submit his observations at the
hearing.
The applicant's claims for just satisfaction (under Article 50 of the
Convention) (art. 50) reached the registry on 30 March and
10 April 1989; the President had granted the applicant legal aid
(under Rule 4 of the Addendum to the Rules of Court) on
13 September 1988. The Government replied on 6 July, and the
Delegate of the Commission on 21 July.
The Government, the applicant and the applicant's lawyer also filed
various documents between 17 April and 13 September 1989.
5. Having consulted, through the Registrar, those who would be
appearing before the Court, the President directed on 2 February 1989
that the oral proceedings should open on 21 April 1989 (Rule 38).
6. The hearing took place in public in the Human Rights Building,
Strasbourg, on the appointed day. The Court had held a preparatory
meeting immediately beforehand.
There appeared before the Court:
(a) for the Government
Mr J.-P. Puissochet, Director of Legal Affairs,
Ministry of Foreign Affairs, Agent,
Mr P. Baudillon, Assistant Director,
Directorate of Legal Affairs,
Ministry of Foreign Affairs,
Mr J.-C. Darras, Assistant Director,
Litigation and Legal Affairs,
Ministry of the Interior, Counsel;
(b) for the Commission
Mr S. Trechsel, Delegate;
(c) the applicant and his counsel, Ms C. Waquet, avocat
at the Conseil d'Etat and the Court of Cassation.
The Court heard addresses by Mr Puissochet for the Government,
by Mr Trechsel for the Commission, and by Ms Waquet for Mr H.,
who also addressed the Court, as well as their replies to questions
put by the Court.
AS TO THE FACTS
7. Mr H., a French citizen born in 1937, lives at Vandoeuvre
(Meurthe-et-Moselle). In 1957 he entered the teaching profession as a
primary-school supply teacher and worked continuously until 1961.
I. BACKGROUND TO THE CASE
A. The visit to the hospital
8. In May 1961 Mr H. went to Strasbourg Hospital, taking with him
a letter of introduction from his general practitioner to
Professor Thiébaut, the head of the neurological clinic. As
Professor Thiébaut did not hold a surgery on the day in question,
Mr H. was examined in the neurological clinic by Dr Ebtinger, the
doctor in charge of "Department 58" of the psychiatric clinic.
Dr Ebtinger allegedly assured him that his problems were "not very
serious" but apparently advised him to enter hospital for "a fortnight
at most" in order for the doctor to get to know him better.
The general practitioner's letter and the report of this first
examination are said to have disappeared from Mr H.'s hospital file.
B. The stay in hospital
9. On 25 May 1961, on Dr Ebtinger's recommendation but without
having been ordered by him to stop work, Mr H., who was unaccompanied,
reported to the neurological clinic at Strasbourg Hospital for
observation, thinking that he would be in hospital for a fortnight and
of his own free will. He allegedly waited for a house physician for
two or three hours and was then placed in "Department 58". The
admission notes read as follows:
"Presented himself alone at 8 p.m.
Being treated by Dr Zarenski ofSarralbe and seen by Dr Ebtinger.
'I don't feel right, I don't know what's wrong with me. I'm depressed.'
has been for five years.
asthenia, difficulties with work.
no interest in anything.
(Limited answers, difficulties expressing himself.)
Has worked withouta break until today.
unmarried.
lives with his parents at Holving.
Referred to 58B."
The applicant claims that the comments on an interview of 27 May have
been antedated and that the pages of his file covering the period from
11 August to 15 September 1961 have vanished.
10. On 12 June 1961 Professor Kammerer, the head of the
psychiatric clinic, diagnosed the applicant as suffering from
schizophrenia with developing symptoms of catatonia (a state of motor
and mental inertia) and prescribed narcoanalysis, i.e. an
investigation of the subject's unconscious after he has been put into
a sleeplike state. This was allegedly the only occasion on which he
examined Mr H. - for ten minutes before a large group of students, at
a time when Mr H. was already being treated with neuroleptic drugs.
11. On 13 June 1961 a house physician, Dr Schneider, instead of
carrying out the narcoanalysis prescribed the previous day, gave Mr H.
an intravenous injection of an unspecified dose of "Maxiton"
dexamphetamine, which caused "amphetamine shock".
In so doing, he acted, so the applicant alleges, without either a
prior examination or Mr H.'s consent, on a purely experimental basis,
in public and without the knowledge even of the two persons primarily
responsible for "Department 58", Drs Kammerer and Ebtinger.
The injection allegedly brought about something akin to a myocardial
infarction together with violent muscular contractions and hysterical
fits, of which the applicant immediately complained, as appears from
the medical file.
12. Mr H. further claims that Dr Ebtinger, who was on leave at the
time, had promised him that no treatment would be given him without
his (Mr H.'s) consent; the doctor is said not to have learned what had
happened until he returned.
In an article entitled "Methods of inducing shock (other than ECT and
Sakel's method)", published in May 1965 in the Encyclopédie
médico-chirurgicale, Drs Ebtinger and Fétique wrote, under the heading
"Amphetamine shock":
"...
This treatment should not be given to patients with weak
cardiovascular systems or to those suffering from hypertension,
coronary disease or atheroma.
...
Catatonic symptoms are generally worsened in certain schizophrenics,
and may even make their first appearance after amphetamine shock.
...
There is lasting therapeutic benefit in comparatively few cases.
..."
C. Discharge from hospital
13. After spending more than three and a half months in
"Department 58", Mr H. left hospital on 15 September 1961. He claims
to have resumed work as a primary-school teacher the very next day
- although it was only with the greatest difficulty that he managed to
remain up - in order that the holidays should not be counted as sick
leave and for fear of being transferred to "another institution".
14. On 16 November 1961 he received a letter from a school doctor
requesting him to undergo a medical examination on the 23rd. The
doctor decided that Mr H.'s condition made it necessary for him to go
on sick leave, and this began the next day. On 28 January 1963 a
Ministry of Education medical board studied his file and took a
"decision to remove", which was upheld on appeal on 23 March 1963.
Mr H.'s name was subsequently taken off the list of supply teachers in
the département, with effect from 28 January 1963.
15. On 8 August 1964 the Regional Social Security Office of the
départements of Haut-Rhin, Bas-Rhin and Moselle informed the applicant
that he had been registered with effect from 25 May 1964 as a
Category 1 disabled person ("capable of performing paid work" -
66% disablement). After a further medical examination on
15 September 1965, he was registered as a Category 2 disabled person
("wholly unable to perform any work" - 100% disablement), and remained
in that category until 1969, his registration being renewed in 1967.
From 1 June 1969 until 1971 he did not receive his pension, as a
medical examination on 5 March 1969 had shown that the extent of his
disablement had dropped to below 50%. Since 1972 he has again been
receiving a Category 2 pension.
II. THE PROCEEDINGS
A. Proceedings in the Strasbourg Administrative Court
1. Preliminaries
16. Mr H. allegedly learned from a letter of 4 November 1970
written by Professor Kammerer that the drug injected by the house
physician in 1961 was not a "powerful tonic", as he had been told at
the time, but an amphetamine. He claims that in 1970 he asked
Strasbourg Hospital to disclose his medical file and that his request
was refused.
17. On 29 May 1973 he applied to the appropriate office of the
Strasbourg Administrative Court for legal aid. He was granted this on
16 October 1973, on the grounds that legal representation was
compulsory in the Administrative Court and that that court would
probably order investigative measures. The sum ordered to be paid out
of public funds for the expenses and fees of the lawyer appointed was
600 FF.
18. On 9 May 1974, at the request of his lawyer, Mr F., Mr H.
obtained a medical certificate from Dr Rayel, the general practitioner
who had been treating him since 1970. It read as follows:
"I, the undersigned, certify that Mr H..., aged 36, a graduate in
Natural Sciences (Radio Geology), has been treated by me for several
years for the following complaints: Extreme liability to physical and
mental fatigue with major dystonic consequences, feelings of loss of
concentration and of speech disturbances associated with feelings of
paralysis on the left side of the body.
These complaints are reflected objectively in electroencephalographic
disturbances, which were clearly shown up in 1971:
'Irregular electrical activity combining a moderate number of unstable
alpha waves with numerous irregular theta-delta potentials and with
anterior and posterior bilateral spikes, aspects increased by
hyperpn÷a with strong photic stimulation.' Dr Hay, Nancy.
At times, complete physical prostration with depressive ideas,
weariness of life, painful sensations of mental blankness with
pressing need to be alone and even to take to his bed.
These various complaints currently make any gainful activity
impossible.
Mr H...'s extreme tendency to physical and mental fatigue makes it
impossible for him to work to any regular pattern or to be at all
productive, he very quickly feels rejected by any working teams he
tries to be part of, and he feels such rejection very keenly.
The problems reportedly go back to about 1955, but Mr H... claims that
they grew markedly worse in 1961 while he was in Strasbourg University
psychiatric clinic and Mr H. attributes this worsening to the
pernicious effect of an intravenous amphetamine injection he received
during his stay in that clinic.
This certificate has been given to [Mr H.] in person and at his
request, for the appropriate legal purposes.
This certificate may not be used in court proceedings."
Although intended solely for the lawyer, this document was nonetheless
given by the latter to the Administrative Court.
2. Preparation of the case for trial
19. On 14 June 1974 Mr F. took out a writ against the hospital,
returnable at the Strasbourg Administrative Court, with a view to
having the hospital declared liable for the harmful consequences of
the intravenous amphetamine injection. He asked the court:
"Before giving judgment: [to] appoint a specialist doctor [as] an
expert with instructions to examine the plaintiff, obtain all
documents, interview all persons able to give information, give an
opinion on the physical damage sustained by the plaintiff and
generally carry out the instructions given him by the court."
On 19 June the court served the writ and statement of claim on the
hospital.
20. The hospital instructed a lawyer on 17 July and filed two
pages of defence pleadings on 8 August. It conceded that Mr H. had
indeed been given an amphetamine injection in 1961 but resisted the
claim on the ground that it was time-barred under the special
statutory limitation period of four years for actions against public
bodies and further argued that "the complaints regarding the treatment
received [were] quite absurd and manifestly due to an insufficiently
stable mental state".
The court served the pleadings on Mr F. on 9 August 1974.
21. After two reminders from the court - dated 29 January
and 14 March 1975 -, Mr F. produced his pleadings in reply on
8 April 1975. He sought a determination of "the hospital's
negligence", "the disablement suffered by the plaintiff" and "the
causal link between the hospital's negligence and this disablement",
and to that end he earnestly requested that the court should appoint
an expert.
22. Mr H. moved house in December 1974 and again in April 1975,
after obtaining a council flat. On each occasion he informed his
lawyer.
23. On 17 May 1975 the court asked Mr F. to advise it of Mr H.'s
social-security number and of the office with which he was registered.
Mr F. replied two months later, on 23 July, after a reminder dated
16 July. He had notified Mr H. of the request on 10 July and again on
the 17th, and Mr H. had given him the requisite information.
On 8 September 1976 the court asked Mr F. for this information again.
According to the Government, this was a mistake on the part of the
registry, which had probably lost or misfiled the letter of
23 July 1975; moreover, when telephoned by the court, Mr F. had
allegedly said that he did not have the information in question and
was not able to provide it straightaway because his client was
refusing to give it to him. It is not clear from the evidence at what
juncture the court registry realised that it was pointless to persist
in asking for information it already had.
24. On 5 August 1975 the Nancy Health Insurance Office informed
the Administrative Court that it did not intend to intervene in the
case.
25. On 13 April 1978 the court summoned the parties to a hearing
on 25 April.
26. Five days before the hearing, on 20 April, the hospital
submitted their final pleadings. They were not served either on Mr F.
or on Mr H. As Mr F. considered that his presence was unnecessary
since the proceedings were in written form, he did not appear and was
therefore unable to reply to these pleadings, whereas Mr L. appeared
for the defendant.
27. On the actual day of the hearing, the Nancy Health Insurance
Office asked the court for Mr H.'s address, notwithstanding that
according to Mr H. - it had been paying him his disablement pension
since 1973 and that he had not changed address since 1975.
3. The judgment of 9 May 1978
28. The Administrative Court dismissed the action on 9 May 1978,
for the following reasons:
"Even supposing that a worsening of Mr H...'s condition was observed
in 1969, the evidence - and in particular the medical certificate
produced - does not establish that this was attributable to the
intravenous injection received in 1961; consequently, in the absence
of any causal link between the injection complained of and the alleged
damage, and seeing that such a link cannot in this instance be
presumed, Mr H... has no grounds for seeking to establish the
hospital's liability; ... it follows that his application for an
expert to be appointed to assess the extent of the damage suffered
must be dismissed."
4. Notification of the judgment
29. On 23 May 1978 the court served the judgment on the applicant
by registered letter with recorded delivery, but the Post Office
returned the letter marked "not known at this address".
On 31 May the court asked Mr F. to give it Mr H.'s new address. The
lawyer replied on 8 June that he did not know it. On 13 June, the
court attempted to serve the judgment on the applicant through a court
bailiff.
30. Concerned at the length of the proceedings, Mr H. telephoned
the Administrative Court registry on 18 August 1978. He learned that
the court had given judgment on 9 May and he immediately gave his
address; he received a copy of the judgment on 18 September 1978.
5. The complaint to the leader of the Strasbourg Bar
31. On 22 September 1978 Mr H. wrote to the leader of the
Strasbourg Bar, to complain of the shortcomings on the part of the
lawyer who had been assigned to him by the Legal Aid Office. In
particular, he blamed Mr F. for always losing his address, for not
having informed him of the date of the hearing and for not having
appeared in court on 25 April 1978.
After interviewing Mr F., the leader of the Bar disposed of the
complaint in a letter dated 9 October, in which he endorsed Mr F.'s
explanation, namely that he had seen no point in appearing at the
hearing because the proceedings were essentially in written form and
were designed, in the first instance, to secure the appointment of an
expert on the basis of "medical certificates which [had] been
submitted to the court".
B. The proceedings in the Conseil d'Etat
1. The application
32. Mr H. appealed to the Conseil d'Etat on 10 November 1978 by
lodging pleadings and a file. He asked whether he could argue his own
case and, if not, what he should do to secure the assistance of a
lawyer and the appointment of a medical expert, which he maintained
was essential.
33. On 20 November 1978 the Secretary of the Judicial Division of
the Conseil d'Etat acknowledged receipt of the appeal, which had been
registered in the registry on 10 November.
On 12 December he again wrote to Mr H., to tell him that an
application such as his was not exempt from the requirement that he
should be represented by a lawyer, and that he had a month in which to
apply for legal aid.
On 26 December Mr H. made an application for legal aid, requesting the
assignment of a lawyer who was genuinely willing to represent him;
this was so that he could be sure that his interests would be defended
conscientiously.
34. By a decision of 21 February 1979, notified on 13 March, the
Legal Aid Office at the Conseil d'Etat granted Mr H. legal aid,
setting the amount to be paid to the lawyer at 1,080 FF.
The lawyer, Mr G., was appointed by the leader of the Bar on
16 March and contacted Mr H. on the 20th.
2. Preparation of the case for trial
35. The applicant forwarded to the Conseil d'Etat a certificate
issued by Dr Rayel on 7 November 1978, which read as follows:
"I, the undersigned Dr Louis Rayel, hereby certify that I have been
treating Mr H... for many years and that on 9.5.74 I gave him a
medical certificate for his lawyer, purely for information purposes
and in confidence.
This certificate bore the words: 'THIS CERTIFICATE MAY NOT BE USED IN
COURT PROCEEDINGS', followed by my signature
Despite being formally so marked, the certificate was made use of by
the Strasbourg Administrative Court, and moreover as evidence against
Mr H...
The use made of the certificate is clearly indicated in the report of
the judgment, which states:
'The evidence - and in particular the medical certificate produced -
does not establish that this was attributable to the intravenous
injection received in 1961' ...
... 'it follows that his application for an expert to be appointed to
assess the extent of the damage suffered must be dismissed' ...
Accordingly, it seems to me that Mr H... is fully entitled to appeal
against a judgment based largely on a medical certificate which was
not officially admissible.
I, the undersigned, hereby certify that on 9.5.74, a medical opinion
was indeed essential, as it still is today, in order to study the
course of Mr H...'s illness before and after the treatment given him
by Strasbourg Hospital.
In support of my certificate, I would cite a letter sent to Mr H... on
4.XI.70 by Professor Kammerer, the doctor in charge of the department
in which Mr H... was treated.
In that letter Professor Kammerer wrote:
'The hospital's regulations do not allow me to send you your medical
file. But if a doctor or an expert wishes to inspect it, we will make
it available to him in its entirety.'
Mr H... has shown me this letter and is willing to make it available
to the Conseil d'Etat.
Lastly, I, the undersigned, hereby certify that the reason why in 1974
I did not give Mr H... a certificate which could be used in legal
proceedings was that I thought that under the legal-aid scheme and
without a judgment of the court it was possible for Mr H...'s lawyer
to request an expert medical opinion on his own initiative which would
be paid for direct by the legal-aid fund, in view of his client's
financial difficulties at the time.
It appears that this was not possible, but I, the undersigned, hereby
certify that I was not informed of this before the Strasbourg court's
judgment. Otherwise I would obviously have advised Mr H... to try to
finance for himself an authoritative expert medical opinion which he
could have submitted to the Strasbourg court with his file.
Steps must therefore be taken to ensure that a similar situation does
not arise again and I have therefore advised Mr H. to ask the Conseil
d'Etat for the list of medical experts from which he could choose an
expert who might agree to draw up an opinion in defence of Mr H...'s
medical interests before the Conseil d'Etat, provided that the fees of
these experts remain within limits compatible with Mr H...'s current
resources if he is required to pay these fees himself.
I shall be able to give this expert all the medical information known
to me in connection with this case, medical information which it is
impossible for me to set out and discuss here, even in summary form,
as part of this certificate.
Lastly, I certify that Mr H...'s current position is much the same as
in 1974 as regards both his state of health and his financial
resources, and that consequently it will be only with the greatest
difficulty that he will be able to take the measures necessary for the
preparation of the file for his appeal to the Conseil d'Etat.
Nancy, 7.XI.78
This certificate has been given to [Mr H.] for the appropriate legal
purposes.
THIS CERTIFICATE MAY BE USED IN COURT PROCEEDINGS."
36. After unsuccessfully asking several doctors to go through his
medical file at Strasbourg Hospital, Mr H. approached Dr Roujansky, a
radiologist in Schiltigheim, who agreed and was appointed for the
purpose on 11 May 1979. Professor Kammerer consented to the
inspection, stating that the file would be made available
between 11 a.m. and noon and from 3 p.m. to 6 p.m.
The applicant claims that on 25 May 1979 Dr Roujansky was given access
only to a "falsified and truncated" file (see paragraphs 8 and 9 in
fine above) and was allowed to photocopy only 21 pages of it.
On 16 October 1979 Dr Roujansky drew up a ten-page report with several
appendices. In it he concluded inter alia:
"It can be stated that had Mr H... been treated less drastically,
without the use of this highly dangerous drug, which destroys the
physiology of the brain, he would have stood a good chance of leading
a normal life, of being able to work and to earn his living instead of
leading the life of an invalid.
Strasbourg Hospital should therefore be required to compensate him."
Mr H. produced this report to the Conseil d'Etat. He states that it
did not have the status of a medical opinion by a court expert as
Dr Roujansky had not personally examined him and had only been able to
study the file made available by the hospital.
37. On 26 July 1979 Mr G. filed supplementary pleadings seeking
the appointment of an expert who would assess the extent of the damage
suffered and, if necessary, would establish the causal link between
the injection complained of and the state of Mr H.'s health.
On 25 September 1979 the presiding judge of the Fifth Section of the
Judicial Division ordered that these pleadings should be served on the
hospital and the Strasbourg Regional Health Insurance Office.
On 4 April 1980 the hospital produced its defence pleadings, in which
it relied in particular on the special four-year limitation period for
actions against public bodies. The Directorate-General of
Administration of Staff and Budget of the Ministry of Health filed
pleadings on 5 September in which it expressed the following opinion:
"As is pointed out in Strasbourg Hospital's defence pleadings of
4 April 1980, the decisions on the presumption of imputability
associated with a presumption of negligence constitute an exception
and they all relate to cases in which the consequences of a given
treatment are so incommensurate with what would normally be
foreseeable that they suggest professional negligence.
This is not so in the instant case. The treatment given in 1961 was
carried out in accordance with proper practice and it is difficult to
suppose that an injection administered in 1961 could have had
consequences that did not become apparent until 1969, seeing that the
patient had had problems as far back as 1955, even though in 1963 he
did have to be struck off the list of supply teachers in the
département after an opinion had been given by a medical board. As
the Strasbourg Administrative Court rightly recognised, the causal
link between the injection and the damage relied on is wholly
unsubstantiated.
..."
Mr G. replied in writing on 5 December 1980, asking the Conseil d'Etat
to "order an expert to be appointed to assess the extent of the damage
suffered and possibly establish the causal link between the
intravenous injection administered in 1961 and the state of Mr H...'s
health".
38. The applicant asserts that in 1980 he again (see paragraph 16
above) asked the hospital for access to his medical file, and that
this was refused.
3. The Government Commissioner's submissions
39. At the Conseil d'Etat hearing on 2 November 1981,
Mr Dutheillet de Lamothe, a Government Commissioner (commissaire du
Gouvernement), made the following submissions:
"Mr H..., who was born in 1937 and at the material time was a
primary-school teacher, was admitted on 25 May 1961 to the psychiatric
clinic of Strasbourg Hospital suffering from depression. On
13 June 1961 'amphetamine shock' treatment was administered. This
consists in an injection of amphetamine - in this instance 'Maxiton'
[dexamphetamine] - designed to overcome the patient's emotional and
affective inhibitions, thereby facilitating analysis of his
psychological problems. In Mr H...'s case this procedure caused what
the doctors described as an 'aggressive and anxious' reaction, and
Mr H... complained of various problems. He left hospital on
13 September 1961, however, and apparently went back to work. He was
again placed on sick leave from the end of 1961 onwards and then
on 28 January 1963 his name was removed from the list of
primary-school teachers for the département.
In 1974 - 13 years after his stay in hospital - Mr H... asked
Strasbourg Hospital to compensate him for the harmful consequences of
the amphetamine injection he had been given in 1961, consequences
which he alleged had not become apparent until 1969. When the hospital
refused, [Mr H.] brought an action in the Strasbourg Administrative
Court to have the hospital declared liable and an expert appointed in
order to assess the extent of the damage caused. In a judgment of
[9] May 1978 the court dismissed the action, [pointing out] that there
was no causal link between the amphetamine injection complained of and
the alleged deterioration in Mr H...'s health in 1969. Mr H... is
appealing against that judgment.
1. I consider that the Administrative Court was right in finding
that a causal link had not been established. Admittedly, the very
scanty evidence on which its decision was based has been
supplemented, on appeal, by the medical file opened by the hospital
in 1961 and by a very well researched report. But it does not
enable a real causal link to be established. The evidence shows
that:
(a) the appellant's psychological problems date back to before his
admission to hospital in 1961;
(b) while he complained of real problems after the injection
administered on 13 June 1961, the hospital carried out the
necessary tests (electrocardiogram, biological tests);
(c) when he left hospital on 13 September 1961, his state of
health had improved, since he wished to return to work;
(d) his state of health seems to have worsened more particularly
in 1963, as he was removed from the list of primary-school teachers
and again admitted to hospital;
(e) in 1969, however, the Strasbourg Regional Health Insurance
Office found him less than 50% incapacitated for work and
discontinued payment of his disablement pension, which was restored
in 1972.
Dr Olievenstein, who was consulted by the applicant's medical
adviser, wrote: 'A single dose of amphetamine, however large, can
only decompensate but not cause psychological disturbance.
No one can say whether in any case your patient's psychosis [would]
not [have] been decompensated at a later date.'
In these circumstances, I do not consider that a causal link has
been established or that the presumptions relied on are sufficient
to justify ordering the expert opinion applied for.
2. Contrary to the appellant's submission, a causal link cannot be
presumed. Admittedly, in our case-law negligence in the
organisation or functioning of a hospital is presumed where a
common, mild form of treatment - in particular an injection - has
caused particularly serious health problems (23 February 1962,
Maïer, page 122, and a great many decisions: 19 March 1969,
Assistance Publique de Paris v. Bey, page 165; 19 May 1976,
CHR de Poitiers, page 266; 22 December 1976, Assistance
Publique de Paris v. Dame Derridj, page 576; 13 May 1977,
Rémy-Waris, T., page 961; 9 January 1980, Mortins, page 4).
But in all these decisions it was noted at the outset that there
was a direct relation of cause and effect between the treatment
complained of and the damage relied on: it is the negligence which
is presumed and not the imputability of the damage.
3. I believe that accordingly you cannot but dismiss Mr H...'s
appeal and affirm the Administrative Court's judgment, without
needing, it seems to me, to express a view either on the negligence
alleged against the hospital or on the four-year limitation period
on which the hospital relies.
(1) As regards the first of those points, I do not think it possible
to say that the use of the 'amphetamine shock' technique amounted, in
1961, to gross negligence, even though that technique has apparently
now been superseded. Nor would it seem that special tests should have
been carried out before it was used. On the other hand, I think that
such a technique could not be used, even in the case of psychiatric
treatment, without the patient's consent (J., 7 February 1979,
M. Barek, page 87; 9 January 1970, Carteron, page 17). The appellant,
however, states - and it was not denied - that he was not told about
the treatment.
(2) As to the four-year limitation period, the hospital could in any
event only rely on it in respect of part of Mr H...'s claim, since the
alleged damage is continuing damage and the date on which it
stabilised has not been determined (J., 10 November 1967, Auguste,
page 422).
For these reasons I submit that Mr H...'s appeal must be
dismissed."
4. The judgment of 18 November 1981
40. On 18 November 1981 the Conseil d'Etat gave the following
judgment:
"The Conseil d'Etat, sitting in its judicial capacity, (Judicial
Division, 3rd and 5th sections combined),
...
It is unnecessary to express a view on the hospital's objection that
the action is time-barred under the four-year limitation period.
Mr H... was admitted to the psychiatric clinic of Strasbourg Hospital
in 1961; he claims that treatment received on that occasion - and, in
particular, an intravenous amphetamine injection administered on
13 June 1961 - caused a deterioration in the state of his health and
led to a permanent disruption of his life.
It appears from the preliminary examination of the case and the
evidence before us that there is no direct relation of cause and
effect between the alleged deterioration in the appellant's health and
the treatment he underwent at Strasbourg Hospital in 1961.
The court below was accordingly right in dismissing the appellant's
action against the hospital and his application for an expert to be
appointed both to establish the links between the treatment and the
alleged damage and to assess the latter's extent.
DECIDES AS FOLLOWS:
1. Mr H...'s appeal is dismissed.
2. This decision shall be served on Mr H..., Strasbourg Hospital and
the Ministry of Health."
The judgment was served on 19 January 1982.
5. The correspondence between the applicant and the leader of the
Ordre des avocats aux Conseils
41. On 29 November 1981 Mr H. wrote to the leader of the Bar of
avocats practising at the Conseil d'Etat and the Court of Cassation to
complain that he had been badly represented. In particular, he
criticised Mr G. for having never allowed him to speak to him directly
before the hearing, for having avoided any dialogue "because he [was]
legally aided and it would be detrimental to [his] case", and for
having refused to tell him of the date of the hearing and to send him
the file, thereby preventing him from adding to it.
In a letter of 2 December the leader of the Bar replied that he did
not intend taking up each of his complaints, as they mostly showed his
"ignorance of administrative procedure and its characteristic
features".
PROCEEDINGS BEFORE THE COMMISSION
42. In his application of 21 June 1982 to the Commission
(no. 10073/82), Mr H. alleged that there had been two violations of
Article 6 para. 1 (art. 6-1) of the Convention: the administrative courts
had not heard his case within a reasonable time and, by failing to
order an expert opinion and a proper investigation, had not given him
a fair trial.
43. The Commission declared the application admissible on
12 March 1986. In its report of 4 March 1988 (made under Article 31)
(art. 31), the Commission expressed the opinion that there had been a
violation of Article 6 para. 1 (art. 6-1) in respect of the first point
(unanimously) but not in respect of the second (by nine votes to two).
The full text of the Commission's opinion and of the separate opinion
contained in the report is reproduced as an annex to this judgment.
FINAL SUBMISSIONS TO THE COURT
44. In their memorial the Government "ask the Court to dismiss
Mr H...'s application".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
45. In the applicant's submission, the French administrative
courts had not heard his case in accordance with Article 6 para. 1
(art. 6-1) of the Convention, whereby:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair ... hearing within a reasonable time by
[a] ... tribunal ..."
A. The applicability of Article 6 para. 1 (art. 6-1)
46. Before the Commission the Government did not argue that the
impugned proceedings did not involve "the determination of ... civil
rights and obligations" within the meaning of Article 6 para. 1 (art. 6-1).
Before the Court, however, the Government submitted that the
applicability of Article 6 (art. 6) was a preliminary question which
the Court had to consider if necessary of its own motion. They
pointed out that while Mr H.'s action for damages had a pecuniary
purpose, it was directed against a public body, Strasbourg Hospital,
and was subject to the rules on the liability of such bodies in French
law. For the rest, the Government left to the Court's discretion the
question whether the dispute related to "civil rights and
obligations".
47. The Court recognises that this is an issue going to the
merits, which must be determined without regard to the previous
attitude of the respondent State (see, mutatis mutandis, the Barthold
judgment of 25 March 1985, Series A no. 90, p. 20, para. 41).
It is clear from the Court's established case-law that the concept of
"civil rights and obligations" is not to be interpreted solely by
reference to the respondent State's domestic law and that
Article 6 para. 1 (art. 6-1) applies irrespective of the parties' status,
be it public or private, 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" (see, as the most recent authority,
the Tre Traktörer Aktiebolag judgment of 7 July 1989, Series A
no. 159, p. 13, para. 41).
This is so in the instant case, so that Article 6 para. 1 (art. 6-1) applies.
B. Compliance with Article 6 para. 1 (art. 6-1)
1. Length of the proceedings
(a) Period to be taken into consideration
48. The Commission and the Government submitted that the
proceedings in the administrative courts began on 14 June 1974, when
the applicant started his action in the Strasbourg Administrative
Court, and ended on 19 January 1982, when he was notified of the
judgment given by the Conseil d'Etat on 18 November 1981.
Before the Court Mr H. maintained that the relevant period had
actually begun as early as 29 May 1973, the date of his application to
the Legal Aid Office at the Strasbourg Administrative Court.
49. Given the total length of the proceedings on the merits, the
Court does not consider it necessary to ascertain whether the
preliminary legal-aid procedure also came within the scope of
Article 6 para. 1 (art. 6-1). It will accordingly confine its review to
the period from 14 June 1974 to 19 January 1982, that is to say a
period of just over seven years and seven months.
(b) Reasonableness of the length of the proceedings
50. The reasonableness of the length of proceedings must be
assessed in the light of the particular 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 (see, inter alia, the
Unión Alimentaria Sanders SA judgment of 7 July 1989, Series A
no. 157, p. 13, para. 31).
i. Complexity of the case
51. According to the Government, although a question of liability
on the part of a hospital was involved, there was nothing in the
evidence submitted to the Administrative Court which established a
causal link between the treatment impugned by the applicant and the
damage complained of. As to the evidence submitted to the Conseil
d'Etat, the Government claimed that it did not disclose even a minimum
of presumptions supporting the applicant's allegations.
The applicant maintained the contrary on both points.
The Government did, however, acknowledge that the case was not a
complex one.
52. Like the Commission, the Court shares that opinion. It notes
that the administrative courts did not order any inquiries into the
facts and that the legal issues raised did not present any special
difficulties.
ii. Behaviour of the applicant and his lawyer
53. Two periods during the proceedings in the Strasbourg
Administrative Court may seem abnormally long. The Government said
that they were attributable to the behaviour of the applicant or of
his lawyer. The lawyer, they claimed, had not replied until
8 April 1975 to defence pleadings filed by Strasbourg Hospital on
8 August 1974 (see paragraphs 20-21 above); and the time which elapsed
between the request for information on 8 September 1976 and the
summoning to the hearing of 25 April 1978 (see paragraphs 23
and 25 above) had likewise been caused by his inaction.
54. The applicant argued that he could not be held responsible for
the temporary inactivity of his lawyer. Once the Legal Aid Office had
assigned Mr F. to assist him in the Administrative Court proceedings,
it was counsel who had been in charge of the conduct of the
proceedings, and the applicant had had no means of expediting them or
changing his lawyer.
55. The Court points out that in civil proceedings the parties too
must show "due diligence" (see the Pretto and Others judgment
of 8 December 1983, Series A no. 71, pp. 14-15, para. 33) and that only
delays attributable to the State may justify a finding of a failure to
comply with the "reasonable time" requirement (see, among other
authorities, the H v. the United Kingdom judgment of 8 July 1987,
Series A no. 120-B, p. 59, para. 71).
By taking eight months to reply to defence pleadings filed by
Strasbourg Hospital, the applicant's lawyer may, albeit to a limited
extent, have contributed to delaying the proceedings before the
Strasbourg Administrative Court.
iii. Conduct of the judicial bodies
56. The proceedings in that court were commenced on 14 June 1974;
judgment was delivered on 9 May 1978 and served on the applicant
on 18 September 1978 (see paragraphs 19, 28 and 30 above). These
proceedings therefore lasted about four years.
During this period the court sought certain information from the
applicant's counsel but did not take any investigative measures. It
also prolonged the proceedings by asking the lawyer on
8 September 1976 for information already given it on 23 July 1975.
Above all, the hearing did not take place until two years and nine
months after that information was received (see paragraph 25 above).
The Government pointed out that there was a backlog of cases waiting
to be heard in the Strasbourg Administrative Court at the time, but
provided no evidence that the situation was a temporary one (see,
inter alia, the Guincho judgment of 10 July 1984, Series A no. 81,
p. 17, para. 40, and the Unión Alimentaria Sanders SA judgment previously
cited, Series A no. 157, p. 15, para. 40) and that remedial action had
been taken.
The Court concludes that the length of the disputed proceedings was
excessive.
57. The Conseil d'Etat, which had been seised of the case
on 10 November 1978, gave judgment on 18 November 1981, after a little
over three years (see paragraphs 32 and 40 above). That is
undoubtedly a long time. But it cannot be overlooked that when
Mr H.'s appeal was registered, he did not have the assistance of a
lawyer; he did not request this until 26 December 1978 and was granted
it on 21 February 1979 (see paragraphs 33-34 above). Once Mr G. had
been appointed on 16 March, pleadings were exchanged from 26 July 1979
to 5 December 1980 and a hearing took place on 2 November 1981 during
which the Government Commissioner made his submissions
(see paragraphs 34, 37 and 39 above).
In the circumstances of the case the length of the proceedings in the
Conseil d'Etat, the supreme administrative court, does not appear
excessive, despite certain delays.
58. The Court is not unaware of the difficulties which sometimes
delay the hearing of cases by national courts and which are due to a
variety of factors. Nevertheless Article 6 para. 1 (art. 6-1) requires
that cases be heard "within a reasonable time"; in so providing, the
Convention underlines the importance of rendering justice without
delays which might jeopardise its effectiveness and credibility.
59. Assessing the circumstances of the case as a whole, the Court
concludes that "a reasonable time" was exceeded by the Strasbourg
Administrative Court, and that there was therefore a breach of
Article 6 para. 1 (art. 6-1).
2. Fairness of the proceedings
60. In Mr H.'s submission, the failure to appoint an expert
despite his express requests and in proceedings for which he was
receiving legal aid contravened Article 6 para. 1 (art. 6-1).
The Government contended that the requirements of a "fair trial" could
not include an obligation on the court trying the case to order an
expert opinion to be given or any other investigative measure to be
taken solely because a party had sought it; it was for the court to
judge whether the requested measure would serve any useful purpose.
61. The Court agrees with the Government. It must, however,
ascertain whether the proceedings as a whole were fair as required by
Article 6 para. 1 (art. 6-1) (see, among other authorities, the Barberà,
Messegué and Jabardo judgment of 6 December 1988, Series A no. 146,
p. 31, para. 68).
(a) The Administrative Court
62. The Strasbourg Administrative Court rejected the application
for an expert opinion on the ground that as no causal link had been
established between the intravenous injection given to Mr H. and the
alleged damage, his action could not succeed (see paragraph 28 above).
63. The Government submitted that the cogency of that argument was
unquestionable: "An expert opinion designed to assess damage obviously
serves no useful purpose if the damage ... does not give rise to any
compensation", for example because there is no evidence that it is
attributable to the defendant. And they argued that the only medical
document produced to the Administrative Court - Dr Rayel's certificate
of 9 May 1974 (see paragraph 18 above) - did not support the
applicant's allegations but merely reproduced them.
64. The applicant said that the purpose of the expert opinion he
had requested in June 1974 and April 1975 was precisely to determine
the causal link between the hospital's negligence and the disablement
he had suffered. He considered that the Administrative Court should
at least have allowed him the opportunity to avail himself at his own
expense of the services of a private expert and at all events have
based its decision on an expert medical opinion. The certificate
of 9 May 1974, however, was not an official expert opinion by a
medical specialist; it had been given to his lawyer as a confidential
guide by Dr Rayel and moreover was not contrary to the applicant's
interests.
Furthermore, the applicant continued, the hospital had always refused
to give him his complete file. He had also had to wait until 1970 in
order to be able to show that the injection given him had been
amphetamine and not a "powerful tonic", as he had been assured at the
time (see paragraph 16 above).
65. The Administrative Court held that no causal link had been
established between the injection complained of and the alleged
damage; it took the documentary evidence into account, in particular
the medical certificate of 9 May 1974. The Court notes that this
certificate was drawn up thirteen years after the event and nearly
four years after the nature of the injection had been disclosed to the
applicant. As Mr H. had not made out any prima facie case to the
contrary, the Administrative Court could reasonably hold that it was
not necessary to test the accuracy of its conclusion by means of an
expert medical opinion.
(b) The Conseil d'Etat
66. Before the Conseil d'Etat Mr H. specified the purpose of the
requested expert opinion by explicitly asking the appellate court to
instruct an expert to give an opinion on, among other things, the very
existence of a causal link. The Conseil d'Etat dismissed his appeal.
It held that it was apparent "from the preliminary examination of the
case and the evidence before [it] that there [was] no direct relation
of cause and effect between the alleged deterioration in the
appellant's health and the treatment he underwent ... in 1961";
accordingly, the Administrative Court was "right in dismissing the
appellant's ... application for an expert to be appointed both to
establish the links between the treatment and the alleged damage and
to assess the latter's extent" (see paragraph 40 above).
67. The applicant contended that the Conseil d'Etat had not given
reasons for its decision and had not had available to it any evidence
which would have enabled it to give judgment without an expert
opinion. In particular, it did not have the complete medical file
that the hospital had opened in 1961, including the letter of
introduction to the hospital, the first interview with Dr Ebtinger and
all the observations made between 11 August and 15 September 1961; the
ones relating to the interview of 27 May 1961 had, moreover, been
antedated (see paragraphs 8-9 above).
The applicant also mentioned that the medical certificate and report
he had produced to the Conseil d'Etat assisted him (see
paragraphs 35-36 above).
He added that his counsel before the Conseil d'Etat had submitted that
the doctor was guilty of gross negligence because the "amphetamine
shock" had been administered in disregard of the treatment prescribed
(narcoanalysis), without his consent and without any preliminary
examination of his cardiovascular system, and it was a dangerous
treatment that had been discarded by the medical profession on account
of the serious physical and psychological risks attaching to it.
At all events, having regard to its own case-law, the Conseil d'Etat
should, the applicant maintained, have verified whether there had
actually been the alleged negligence highlighted in Dr Roujansky's
report, because in the event of gross negligence a causal link would
be presumed.
Lastly, Mr H. disputed a number of assertions in the submissions made
by the Government Commissioner, in particular that his health had
worsened in 1969. After leaving hospital on 15 September 1961 he had
been forced to stop work on 24 November 1961; his name had been taken
off the list of supply teachers on 28 January 1963; and he had been
registered as a Category 1 disabled person (66% disablement) from
25 May 1964 to 15 September 1965 and as a Category 2 disabled person
(100% disablement) from 1965 to 1969 and from 1972 to the present day
(see paragraphs 14-15 above). The applicant claimed that before his
admission to hospital he had worked continuously.
68. In the Government's submission, the Conseil d'Etat was only
bound to order an expert opinion if there was sufficiently strong
circumstantial evidence of the likelihood of a causal link. This had
not been the case, since the evidence did not disclose a minimum of
presumptions to support the applicant's allegations. Under national
case-law, there could only be a "presumption that the hospital
administration was liable and actually responsible" if "the treatment
undergone [was] an extremely mild form of treatment, if the ailment
for which [the patient] ha[d] sought treatment [was] an extremely
minor one and if ... he emerge[d] from his visit to hospital with an
... exceptionally serious illness".
69. According to the Commission, the refusal to appoint an expert
had been preceded by a fairly detailed examination of the question
whether or not there was a presumption of a causal link, as appeared
from the submissions of the Government Commissioner on which the
Conseil d'Etat relied, and the Conseil d'Etat could not be blamed for
not having ordered such an investigative measure or given any reasons
for refusing the applicant's request.
70. The Conseil d'Etat's decision not to order an expert opinion
might at first sight seem open to criticism in a case concerning
medical treatment with a controversial drug. The Court notes,
however, that the Conseil d'Etat had available to it the parties'
pleadings and the documents that the parties had supplied relating,
inter alia, to the applicant's stay in Strasbourg Hospital and the
effects of the injection he had been given.
When the application was made to the Strasbourg Administrative Court,
thirteen years had elapsed since the applicant's stay in hospital, and
Mr H. did not produce any valid explanation during the proceedings of
why, when he had been informed by Professor Kammerer on 4 November
1970 that amphetamine had been used to treat him, he did not apply for
legal aid until 29 May 1973.
Having regard to all these circumstances, the Conseil d'Etat was
entitled to take the view that it had sufficient information for it to
be able to give judgment on the basis of its preliminary examination
of the case and the evidence before it. Accordingly, the fact that it
did not order an expert opinion did not infringe the applicant's right
to a fair trial.
II. APPLICATION OF ARTICLE 50 (art. 50)
71. By 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."
The applicant is claiming compensation for damage and reimbursement of
costs and expenses.
A. Damage
72. The applicant claimed to have suffered both pecuniary and
non-pecuniary damage on account of the length and unfairness of the
proceedings.
He assessed pecuniary damage at 200,000 French francs (FF). The
length of the proceedings had, he claimed, diminished his chances of
establishing a causal link between his health problems and the
injection complained of; furthermore, the failure to appoint an expert
had deprived him of any opportunity of obtaining compensation.
He also claimed 200,000 FF in respect of non-pecuniary damage. For
more than seven years he had experienced anxiety and uncertainty that
had been all the greater as it was his mental health which was
affected. The unfairness of the proceedings had, moreover, caused him
feelings of frustration and helplessness that had been all the more
acute as his human dignity was at stake and the opposing side's
arguments amounted to a vicious circle.
73. In the Government's submission, if the Court held that the
case had not been tried within a "reasonable time", its judgment would
itself provide sufficient just satisfaction. The applicant's claims
bore no proportion to the delays complained of, to which Mr H. and his
lawyers had contributed by their conduct.
In respect of the second complaint likewise, the Government maintained
that a finding of a breach would afford adequate redress.
74. The Delegate of the Commission was in favour of awarding
compensation for pecuniary and non-pecuniary damage, in an amount to
be determined at the Court's discretion.
75. The Court notes firstly that the sole basis on which the
applicant can be granted just satisfaction is the Administrative
Court's failure to try the case within the "reasonable time" required
by Article 6 para. 1 (art. 6-1) (see paragraphs 59 and 70 above).
As regards pecuniary damage, the evidence does not establish that the
length of the proceedings diminished the applicant's chances of
establishing a causal link.
On the other hand, Mr H. has undeniably suffered non-pecuniary damage.
He has lived in prolonged, distressing uncertainty and anxiety. Taking
its decision on an equitable basis, as required by Article 50
(art. 50), the Court awards him compensation in the amount of
50,000 FF.
B. Costs and expenses
76. The applicant claimed reimbursement of the costs he had
incurred in the proceedings in the French courts and before the
Convention institutions. He included lawyers' fees and personal
expenses entailed mainly by drafting pleadings, and deducted the sums
already paid in legal aid. He thus arrived at a figure of 150,000 FF,
of which 40,500 FF were accounted for in detail.
The Government expressed no view on the matter. The Delegate of the
Commission considered that the applicant should provide details
justifying the former figure and found the latter figure reasonable.
77. The Court has consistently held that reimbursement may be
ordered in respect of costs and expenses that (a) were actually and
necessarily incurred by the injured party in order to seek, through
the domestic legal system, prevention or rectification of a violation,
to have the same established by the Court and to obtain redress
therefor; and (b) are reasonable as to quantum.
It notes that most of the applicant's costs in the French courts were
incurred in connection with the merits of the case and not with the
issue of the length of the proceedings. Taking its decision on an
equitable basis, the Court considers that legal costs and travel and
subsistence expenses to be repaid to the applicant may be assessed
at 40,000 FF.
FOR THESE REASONS, THE COURT
1. Holds unanimously that Article 6 para. 1 (art. 6-1) has been
violated, in that the Strasbourg Administrative Court did not hear the
applicant's case within a "reasonable time";
2. Holds by five votes to two that there has been no other
violation of this Article (art. 6-1), notably as regards the
fairness of the proceedings;
3. Holds unanimously that France is to pay the applicant
50,000 (fifty thousand) FF in respect of damage and 40,000
(forty thousand) FF in respect of costs and expenses;
4. Dismisses unanimously the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 24 October 1989.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the Convention
and Rule 52 para. 2 of the Rules of Court, the partly dissenting opinion
of Mr Macdonald and Mr Carrillo Salcedo is annexed to this judgment.
Initialled: R.R.
Initialled: M.-A.E.
PARTLY DISSENTING OPINION OF JUDGES MACDONALD
AND CARRILLO SALCEDO
(Translation)
We concur in the Court's judgment in so far as it is held that there
was a breach of Article 6 para. 1 (art. 6-1) of the Convention in respect
of the length of the proceedings, but unlike the majority we consider
that the applicant did not receive a fair trial within the meaning of
that provision.
The Conseil d'Etat dismissed the applicant's action against the
hospital and his application for an expert to be appointed, holding
that "it appear[ed] from the preliminary examination of the case and
the evidence before [it] that there [was] no direct relation of cause
and effect between the alleged deterioration in the appellant's health
and the treatment he underwent ...".
It appears that the Conseil d'Etat did not take any investigative
steps and that the evidence was in the applicant's favour. While it
is true that in the Strasbourg Administrative Court the applicant had
not adduced any prima facie evidence of a causal link between the
injection complained of and the alleged damage, it is inaccurate to
say that he did not do so in the Conseil d'Etat: Dr Rayel's
certificate of 7 November 1978 emphasised that an expert opinion was
"essential" (see paragraph 35 of the judgment) and Dr Roujansky's
report refers to the injected drug as "highly dangerous" (see
paragraph 36 of the judgment). Appended to that report, moreover, was
an article by Dr Ebtinger highlighting the fact that amphetamine shock
was absolutely contra-indicated in cases of the illness from which the
applicant had been diagnosed as suffering (see paragraph 12 of the
judgment).
As Mr Gözübüyük and Mr Martinez pointed out in their dissenting
opinion appended to the Commission's report, the very purpose of the
expert opinion sought was to determine the causal link between the
hospital's negligence and the alleged disablement. It is undoubted
that the causal link between disputed medical treatment and damage
sustained cannot be established by a court unaided. The court must
call upon a field of knowledge which is not its own, i.e. "medical
science", which can only assist the court by means of an expert
opinion, and if necessary a second opinion, the process being attended
by safeguards provided for in the rules of procedure. It was unfair
and even illogical to refuse the applicant an expert opinion, which
was the only means of proving the relationship of cause and effect,
and to reject his request on the precise ground that he had not
established this causal link. It was the more important to appoint an
expert as the treatment administered was not the one that had been
prescribed and was carried out without the patient's consent (see
paragraph 11 of the judgment).
Admittedly, assessment of the evidence is a matter for the national
courts alone and is accordingly not subject to review by the Court.
However, having regard to the important part played in the Convention
system by the right to a fair trial (see, among other authorities, the
Barberà, Messegué and Jabardo judgment of 6 December 1988, Series A
no. 146, p. 31, para. 68), it is not open to a national court not to order
a measure without which the person seeking it would be put at a
disadvantage vis-à-vis the opposing party, such that the balance which
must prevail in the taking of evidence would be upset. In the instant
case the applicant was contending alone against the administrative
authorities, despite the requirements of the adversarial principle, so
that the only way of restoring the balance was precisely to appoint an
expert. Since such a balance was not ensured in the proceedings,
there was a breach of the principle of a fair trial under
Article 6 para. 1 (art. 6-1) of the Convention.