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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> FOUQUET v. FRANCE - 20398/92 [1996] ECHR 1 (31 January 1996) URL: http://www.bailii.org/eu/cases/ECHR/1996/1.html Cite as: (1996) 22 EHRR 279, 22 EHRR 279, [1996] ECHR 1

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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:

_______________

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.

_______________

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).

_______________

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.

_______________

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