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You are here: BAILII >> Databases >> European Court of Human Rights >> MANTOVANELLI v. FRANCE - 21497/93 [1997] ECHR 14 (18 March 1997) URL: http://www.bailii.org/eu/cases/ECHR/1997/14.html Cite as: 24 EHRR 370, (1997) 24 EHRR 370, [1997] 24 EHRR 370, [1997] ECHR 14 |
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In the case of Mantovanelli 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. Bernhardt, President,
Mr Thór Vilhjálmsson,
Mr L.-E. Pettiti,
Mr R. Macdonald,
Mrs E. Palm,
Mr M.A. Lopes Rocha,
Mr P. Jambrek,
Mr P. Kuris,
Mr E. Levits,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 28 October 1996 and
17 February 1997,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 8/1996/627/810. 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 22 January 1996, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in an application
(no. 21497/93) against the French Republic lodged with the Commission
under Article 25 (art. 25) by two French nationals,
Mr Mario Mantovanelli and his wife Andrée, on 26 February 1993.
The Commission's request referred to Article 48 (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 of the Convention (art. 6-1).
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicants stated that they wished
to take part in the proceedings and designated the lawyer who would
represent them (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. Bernhardt, the Vice-President
of the Court (Rule 21 para. 4 (b)). On 12 February 1996, in the
presence of the Registrar, the President of the Court, Mr R. Ryssdal,
drew by lot the names of the other seven members, namely
Mr Thór Vilhjálmsson, Mr R. Macdonald, Mrs E. Palm, Mr F. Bigi,
Mr M.A. Lopes Rocha, Mr P. Kuris and Mr E. Levits (Article 43 in fine
of the Convention and Rule 21 para. 5) (art. 43). Subsequently
Mr P. Jambrek, substitute judge, replaced Mr Bigi, who had died
(Rule 22 para. 1).
4. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,
acting through the Registrar, consulted the Agent of the
French Government ("the Government"), the applicants and the Delegate
of the Commission on the organisation of the proceedings (Rules 37
para. 1 and 38). Pursuant to the order made in consequence, the
Registrar received the applicants' memorial on 9 May 1996 and the
Government's memorial on 21 June 1996. On 9 July 1996 the Secretary
to the Commission indicated that the Delegate did not wish to reply in
writing.
5. On 10 July 1996 the Commission produced the file on the
proceedings before it, as requested by the Registrar on the President's
instructions.
6. In a letter received on 2 September 1996 an
American non-governmental organisation, Rights International, sought
leave to submit written comments under Rule 37 para. 2. The President
decided not to grant them leave.
7. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
22 October 1996. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr J. Lapouzade, administrative court judge on
secondment to the Legal Affairs Department,
Ministry of Foreign Affairs, Agent;
(b) for the Commission
Mr L. Loucaides, Delegate;
(c) for the applicants
Mr F. Humbert, of the Nancy Bar, Counsel.
The Court heard addresses by Mr Loucaides, Mr Humbert and
Mr Lapouzade.
AS TO THE FACTS
I. Circumstances of the case
A. Background
8. On 27 January 1981 the applicants' daughter,
Jocelyne Mantovanelli, who was then 20, was admitted to the
Nancy Orthopaedic and Accident and Emergency Clinic for an operation
on a whitlow on her left thumb.
On the same day, she was transferred to the surgical ward of
the Jeanne d'Arc Hospital (Nancy Regional Hospital Centre - "CHRN") at
Dommartin-lès-Toul, where she had a second operation the next day. For
a year she received periodical treatment there and underwent surgery
seven times in the form of repeat operations and skin grafts, and an
arterio-vascular examination.
Owing to an infection discovered in February 1982,
Miss Mantovanelli was operated on again and a week later the
second phalanx of her thumb was removed.
9. On 13 March 1982, having contracted jaundice, Miss Mantovanelli
was transferred to the gastroenterology department of Brabois Hospital
(CHRN) at Vand÷uvre-lès-Nancy. Her condition deteriorated and she fell
into a hepatic coma. On 27 March she was transferred to the department
for infectious diseases and neuro-respiratory intensive care, where she
died two days later.
10. The surgical operations referred to above and the
arterio-vascular examination Miss Mantovanelli underwent were carried
out under a general anaesthetic. On each occasion a varying
combination of seven different drugs was used which always included
halothane.
B. The proceedings in the administrative courts
11. Mr and Mrs Mantovanelli were convinced that their daughter's
death had been caused by excessive administration of halothane and
applied to the administrative courts for a ruling that the CHRN was
liable for her death.
1. In the Nancy Administrative Court
12. On 29 November 1982 the applicants were granted legal aid and
on 11 January 1983 their lawyer was appointed. On 26 April 1983 they
applied to the Nancy Administrative Court for an interim order for the
appointment of an expert and instituted proceedings to obtain a
declaration that the CHRN was liable.
(a) The application for an interim order for the
appointment of an expert
13. In their application Mr and Mrs Mantovanelli asked for the
expert to be given the following tasks:
"1. Seek all the information on the circumstances in which
Miss Jocelyne Mantovanelli was admitted to hospital, received
treatment and underwent operations in different departments of
the CHRN between February 1981 and the date of her death;
Read any document and interview any expert witness to that end;
2. Establish the circumstances surrounding her death and its
causes;
Provide this Administrative Court with ethical and other data
such as to enable it to determine any liability incurred by
identifying any failures to comply with accepted
medical practice or any shortcomings in the functioning of the
service;
3. Draw up a report on the foregoing and file it at the
registry of this Court within the time to be allotted."
14. In an order of 28 April 1983 the president of the
administrative court refused the application on the ground that
allowing it would prejudice the trial of the merits and that the
requisite urgency for ordering interim measures was lacking, seeing
that the application for them had not been lodged until 26 April 1983
although the applicants' lawyer had been appointed on 11 January 1983.
(b) The action for damages against the CHRN
15. In their statement of claim Mr and Mrs Mantovanelli submitted:
"...
It is clear both from the report of Professor Dureux [head of
the intensive care unit at the CHRN] and from the autopsy
report that [Miss Mantovanelli's death] ... was the result of
hepatitis caused by halothane.
Halothane is an anaesthetic that was used for the
surgical operations. Repeat use of halothane for anaesthetic
after only a short interval is known to be very dangerous as
there is a serious risk of causing serious or even occasionally
fatal injury to the liver. Miss Mantovanelli was given
halothane as an anaesthetic on several occasions, the last two
being within a short interval of each other, and the
hepatotoxicity followed which was to prove fatal.
The unit therefore displayed gross negligence in its complete
disregard of the basic rules for administering halothane,
making the CHRN liable to the applicants for the loss suffered
as a result of their daughter's death.
The plaintiffs therefore ask the Court to find the CHRN liable
and to order that public body to pay each of them FRF 50,000
in compensation for the various losses suffered by them.
..."
16. On 21 September 1983 the CHRN filed their defence. The
applicants replied on 11 October 1983 and renewed their application for
an expert report.
17. On 28 March 1985 the administrative court delivered the
following interlocutory judgment:
"...
As the parties disagree as to the facts and the Court has not
found evidence in the case file to enable it to rule on the
merits, it is necessary to order that an expert report which
complies with the adversarial principle be carried out by an
expert whose instructions are ... [to]:
...
(a) inspect Miss Jocelyne Mantovanelli's full medical file,
in particular the autopsy report and Professor Dureux's report;
(b) describe the treatment the patient received, making it
clear whether the complaint from which she was suffering was
a common one or a rare one and how complex the operations were;
(c) indicate, if possible, the patient's chances of recovery,
having regard to her general condition and to the
characteristics of her complaint;
(d) state whether halothane was used and in what
circumstances; whether any such use was in accordance with
accepted practice and whether the subsequent complications were
linked to this use; and if so, whether such complications are
common and, if possible, how common they are in statistical
terms;
(e) make all the necessary findings and interview all the
relevant witnesses and generally provide all the information
needed to enable the Court to decide on the merits.
..."
18. On 4 April 1985 the expert appointed by the court,
Professor Guilmet, took the oath.
He examined various medical files and interviewed five members
of the medical staff at the CHRN, including the surgeon who had
performed the last operation on Miss Mantovanelli and the anaesthetist.
His report, which was lodged with the court on 8 July 1985 and
communicated to the parties on 19 July, contained the following
findings:
"Although in most cases a whitlow is a minor ailment,
Miss Mantovanelli presented with a whitlow that was unusually
serious owing mainly to the delay in seeking effective
medical treatment and, in particular, surgery.
I have discovered no concurrent deterioration in her general
state of health or any progressive disease in her past history,
or any special feature of the local germ in question that could
have affected the intensity of the presenting picture.
From 27 January 1981 Miss Mantovanelli was cared for diligently
in accordance with current scientific knowledge.
The unusual complexity and length of the treatment were related
to the extent of the lesions and of damage to the tissue, which
delayed the healing process, repair of the loss of matter and
the remedying of the sequelae. A new infection finally led to
complete failure.
When the patient was found to have jaundice fourteen months
after the whitlow in question appeared, she was transferred to
two specialist departments. The appropriate treatment she
received there failed to halt a rapid worsening of her
condition.
Before this unexpected complication, which proved fatal,
Miss Mantovanelli had a foreseeable chance of recovering from
her local lesion, albeit only in the long term. It does not
appear that her general condition at the time put the prognosis
for survival in doubt, despite the characteristics of her
original complaint.
Halothane was used each time the patient was anaesthetised, as
an adjunct to a number of other anaesthetics administered, in
a way that was wholly appropriate and in accordance with
accepted practice, without provoking any abnormal reaction.
There is no absolute certainty that the onset of hepatitis and
the patient's death are directly linked to the use of halothane
alone.
However, there must have been an atopic susceptibility (that
is to say a predisposition to sensitisation through medication
without any revealing signs) triggered first by the Epontol,
use of which was later discarded, and then by the halothane,
and exacerbated in terms of enzymatic action by a
third substance, Nesdonal.
This is a plausible diagnostic hypothesis, constructed after
the event and which, given that there were no warning signs of
intolerance, obviously cannot call in question the choice or
rejection of one anaesthetic rather than another.
An idiosyncrasy, in other words a reaction peculiar to her as
an individual, must therefore have been responsible for
Miss Mantovanelli's death, brought about by a particularly
strong autoimmune process ... There are no frequency figures
for such exceptional cases.
(Halothane's toxicity does not appear to be implicated and is
in any case still widely disputed today. However, in so far
as halothane is still suspected of causing necrosis of the
liver, statistics show that this phenomenon does not occur in
more than 1 in 10,000 cases.)"
19. In a pleading registered on 30 July 1985 the applicants alleged
that neither they nor their lawyer had been informed of the dates of
the steps taken by the expert and that his report referred to documents
which they had not been able to inspect. In their submission, there
had thus been a breach of the principle of adversarial proceedings and
this justified setting the expert report aside and ordering a new one.
On 3 October 1985 the CHRN filed a pleading in reply.
20. The administrative court held a hearing on 8 November 1988, and
on 29 November 1988 it delivered the following judgment:
"...
While Mr and Mrs Mantovanelli are justified in submitting that
there were irregularities in the production of the expert
report on the medical file of their daughter who died in the
[CHRN], seeing that they were not informed of the dates of the
steps taken by the expert as required by Article R. 123 of the
Administrative Courts and Administrative Courts of Appeal Code,
they have not disputed the facts that appear from both their
own evidence and the expert report. It must thus be taken as
established that the hepatitis Miss Mantovanelli died from
cannot definitely be attributed to the administration of
halothane on the eleven occasions when she was given an
anaesthetic and that, in any event, she presented no clinical
signs of a contraindication against the use of that substance,
which had been used in accordance with accepted practice and
which only very rarely causes liver damage. No gross
medical negligence can therefore be imputed to the [CHRN]. The
action must therefore be dismissed.
..."
2. In the Nancy Administrative Court of Appeal
21. On 4 January 1989 Mr and Mrs Mantovanelli appealed to the
Nancy Administrative Court of Appeal. They pointed out that the facts
of the case were not disputed and that the purpose of the proceedings
was to determine, after adversarial examination of all the evidence,
the cause of the hepatitis from which their daughter had died in order
to establish if the public hospital service was guilty of gross
negligence. They maintained that they had been unlawfully deprived of
the opportunity to make their own submissions on that point to the
expert, submitted that the administrative court's judgment and
Professor Guilmet's report should be set aside and asked the
Court of Appeal to order that the report be removed from the case file
and that a fresh one be produced.
On 17 May 1990 the CHRN produced a pleading in reply, to which
the applicants replied on 12 December 1991.
22. The Nancy Administrative Court of Appeal held a hearing on
13 February 1992, and on 5 March 1992 it gave the following judgment:
"...
Where a court finds that an expert report has been produced in
an irregular manner, it is not bound by any legal provision or
general principle of law to order its removal from the
case file and direct that a new report be drawn up. The fact
that the expert report ordered did not comply with the
adversarial principle as regards a party to the proceedings
could not therefore prevent the judges at first instance from
relying, in order to rule on the merits, on the facts in the
report which they considered were not disputed by the
applicants or were not seriously challengeable.
Mr and Mrs Mantovanelli had been given the expert report, which
mentions all the evidence it is based on, and could therefore
have challenged it but they have raised no valid objections to
the findings or assessments in it. If they thought it
inadequate, it was their responsibility to specify the points
on which they considered further inquiries into the facts to
be necessary. As they did not raise such an objection, the
administrative court quite rightly held that, in view of the
uncontradicted statements in the report, no gross negligence
could be imputed to the hospital centre.
It is clear from the foregoing that Mr and Mrs Mantovanelli are
not justified in maintaining that the
Nancy Administrative Court was wrong to dismiss their action
in the impugned judgment.
..."
3. In the Conseil d'Etat
23. On 14 April 1992 the applicants lodged an application for
legal aid with the Legal Aid Office of the Conseil d'Etat, which
refused the application on 16 December 1992 on the basis that the
grounds for an appeal on points of law were not sufficiently strong.
This decision was notified to the applicants on 20 January 1993. They
did not bring an appeal on points of law.
II. Relevant domestic legislation and case-law
24. The former Article R. 123 (now Article R. 164) of the
Administrative Courts and Administrative Courts of Appeal Code
provides:
"The parties must be given notice by the expert or experts of
the dates and times of the steps taken to produce their
reports. This notice must be given at least four days
beforehand by registered letter.
...
The parties' submissions during the preparation of the expert
report must be recorded in the report."
25. In the Autunes v. Commune de Decazeville judgment of
1 July 1991 (Gazette du Palais, 8-9 April 1992, p. 41) the
Conseil d'Etat stated:
"The expert appointed ... to examine Mrs Autunes carried out
the medical examination without informing
Decazeville Town Council of this beforehand and thus deprived
it of the right to make submissions during the preparation of
the expert report. That being so, the report was prepared in
an irregular manner. That irregularity does not, however,
prevent it from being adopted for information or preclude
ruling on the merits without having to order a fresh
expert report as the town council requested, since the latter
was able to submit its observations during the written
proceedings that followed the lodging of the report and the
Conseil d'Etat now has the necessary information to decide the
case.
..."
An irregularity in the preparation of an expert report is,
however, a ground for setting aside a judgment where the latter was
based on the report (Conseil d'Etat, 28 November 1988,
Bruno Pierre Guy, Recueil Dalloz Sirey 1989, no. 129).
PROCEEDINGS BEFORE THE COMMISSION
26. Mr and Mrs Mantovanelli applied to the Commission on
26 February 1993. They complained that they had not had a fair hearing
within the meaning of Article 6 para. 1 of the Convention (art. 6-1)
since the expert report was not prepared in accordance with the
adversarial principle.
27. On 17 May 1995 the Commission (Second Chamber) declared the
application (no. 21497/93) admissible. In its report of
29 November 1995 (Article 31) (art. 31), it expressed the opinion by
ten votes to three that there had been a violation of Article 6 para. 1
(art. 6-1). The full text of the Commission's opinion and of the
dissenting opinion contained in the report 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 1997-II), but a copy of the Commission's report is obtainable
from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
28. In their memorial the applicants requested the Court to "hold
that [their] application is well-founded ...".
29. The Government asked the Court to "dismiss
Mr and Mrs Mantovanelli's application as ill-founded".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE CONVENTION
(art. 6-1)
30. Mr and Mrs Mantovanelli maintained that the procedure followed
in preparing the expert medical opinion ordered by the
Nancy Administrative Court had not been in conformity with the
adversarial principle and had given rise to a violation of their right
to a fair hearing as secured by Article 6 para. 1 of the Convention
(art. 6-1), which provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair ... hearing ... by [a] ...
tribunal ..."
Contrary to the former Article R. 123 of the
Administrative Courts and Administrative Courts of Appeal Code, neither
they nor their counsel had been informed of the dates of the interviews
conducted by the expert. The expert had also referred in his report
to documents which they had not seen and which it had been pointless
to ask the hospital management to produce.
They had thus been deprived of the opportunity to examine the
persons who gave evidence to the expert, to submit comments to him on
the documents examined and on the witness evidence taken and to ask him
to carry out additional investigations.
Admittedly, the expert report had later been communicated to
the applicants, who could thus have challenged it in the
administrative court. They had nevertheless been prevented from
participating on an equal footing in the production of the report.
31. The Commission submitted that compliance with the principle of
adversarial procedure meant that where a court ordered the production
of an expert report, the parties should be able to challenge before the
expert the evidence he had taken into account in carrying out his
instructions. There were three reasons for this: an expert report of
this kind, produced under a court's authority for its own
enlightenment, was an integral part of the proceedings; as the court
was unable to assess for itself all the technical issues considered,
the expert's investigation tended to replace the taking of evidence by
the court itself; and merely being able to challenge the expert report
in court did not permit an effective application of the adversarial
principle as the report had become final by then.
In the present case Mr and Mrs Mantovanelli had been unable to
attend the expert's interviews with the witnesses (all members of the
CHRN's medical staff) and the report referred to documents which they
had not seen. The Nancy Administrative Court had refused their
application for a second expert report and had reproduced the findings
of the report in order to dismiss their claims. There had therefore
been a breach of Article 6 para. 1 (art. 6-1).
32. The Government maintained that in French law it was for the
administrative courts to assess the outcome of investigative measures
they ordered. They had discretion to take into account an
expert report produced in breach of the provisions of the
former Article R. 123 of the Administrative Courts and
Administrative Courts of Appeal Code.
In this case the expert report, despite its irregularity, had
fulfilled its purpose of enlightening the court. The issue actually
being raised by the applicants was the court's assessment of the
evidence, which was not subject to review by the
Convention institutions.
Furthermore, as to observance of the adversarial principle,
only the proceedings in court were of importance. The expert report
had been communicated to the applicants on 19 July 1985 and could
therefore have been the subject of adversarial argument in the
administrative court. In any event, some of the documents examined by
the expert had been filed by the applicants themselves; as to the other
documents, parties were allowed, under case-law, to request access to
a medical file through the intermediary of a doctor designated by them
for that purpose (Conseil d'Etat, Judicial Assembly, 22 January 1982,
Administration générale de l'assistance publique à Paris,
Actualité juridique, Droit administratif, June 1982, p. 395).
33. The Court notes that one of the elements of a fair hearing
within the meaning of Article 6 para. 1 (art. 6-1) is the right to
adversarial proceedings; each party must in principle have the
opportunity not only to make known any evidence needed for his claims
to succeed, but also to have knowledge of and comment on all evidence
adduced or observations filed with a view to influencing the court's
decision (see, mutatis mutandis, the Lobo Machado v. Portugal and
Vermeulen v. Belgium judgments of 20 February 1996, Reports of
Judgments and Decisions 1996-I pp. 206-07, para. 31, and p. 234,
para. 33, respectively, and the Nideröst-Huber v. Switzerland judgment
of 18 February 1997, Reports 1997-I, p. 108, para. 24).
In this connection, the Court makes it clear at the outset
that, just like observance of the other procedural safeguards enshrined
in Article 6 para. 1 (art. 6-1), compliance with the adversarial
principle relates to proceedings in a "tribunal"; no general, abstract
principle may therefore be inferred from this provision (art. 6-1)
that, where an expert has been appointed by a court, the parties must
in all instances be able to attend the interviews held by him or to be
shown the documents he has taken into account. What is essential is
that the parties should be able to participate properly in the
proceedings before the "tribunal" (see, mutatis mutandis, the Kerojärvi
v. Finland judgment of 19 July 1995, Series A no. 322, p. 16, para. 42
in fine).
34. Moreover, the Convention does not lay down rules on evidence
as such. The Court therefore cannot exclude as a matter of principle
and in the abstract that evidence obtained in breach of provisions of
domestic law may be admitted. It is for the national courts to assess
the evidence they have obtained and the relevance of any evidence that
a party wishes to have produced. The Court has nevertheless to
ascertain whether the proceedings considered as a whole, including the
way in which the evidence was taken, were fair as required by Article 6
para. 1 (art. 6-1) (see, mutatis mutandis, the Schenk v. Switzerland
judgment of 12 July 1988, Series A no. 140, p. 29, para. 46).
35. In the present case it was not disputed that the "purely
judicial" proceedings had complied with the adversarial principle.
The former Article R. 123 (now Article R. 164) of the
Administrative Courts and Administrative Courts of Appeal Code
(see paragraph 24 above) provides that the parties must be informed of
the dates of the steps taken by the expert. The failure to comply with
that provision cannot on its own put the fairness of the proceedings
in issue seriously in doubt (see paragraph 34 above).
36. However, while Mr and Mrs Mantovanelli could have made
submissions to the administrative court on the content and findings of
the report after receiving it, the Court is not convinced that this
afforded them a real opportunity to comment effectively on it. The
question the expert was instructed to answer was identical with the one
that the court had to determine, namely whether the circumstances in
which halothane had been administered to the applicants' daughter
disclosed negligence on the part of the CHRN. It pertained to a
technical field that was not within the judges' knowledge. Thus
although the administrative court was not in law bound by the expert's
findings, his report was likely to have a preponderant influence on the
assessment of the facts by that court.
Under such circumstances, and in the light also of the
administrative courts' refusal of their application for a fresh expert
report at first instance and on appeal (see paragraphs 19-22 above),
Mr and Mrs Mantovanelli could only have expressed their views
effectively before the expert report was lodged. No practical
difficulty stood in the way of their being associated in the process
of producing the report, as it consisted in interviewing witnesses and
examining documents. Yet they were prevented from participating in the
interviews, although the five people interviewed by the expert were
employed by the CHRN and included the surgeon who had performed the
last operation on Miss Mantovanelli, and the anaesthetist. The
applicants were therefore not able to cross-examine these five people
who could reasonably have been expected to give evidence along the same
lines as the CHRN, the opposing side in the proceedings. As to the
documents taken into consideration by the expert, the applicants only
became aware of them once the report had been completed and
transmitted.
Mr and Mrs Mantovanelli were thus not able to comment
effectively on the main piece of evidence. The proceedings were
therefore not fair as required by Article 6 para. 1 of the Convention
(art. 6-1). There has accordingly been a breach of that provision
(art. 6-1).
II. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
37. Article 50 of the Convention (art. 50) provides:
"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."
A. Damage
38. Mr and Mrs Mantovanelli claimed 100,000 French francs (FRF)
each in compensation for essentially non-pecuniary damage that they had
sustained on account of the infringement of their right to a
fair hearing.
39. The Government asked the Court to dismiss the claim. The
Delegate of the Commission made no submissions.
40. The Court considers that the present judgment constitutes in
itself sufficient just satisfaction for the applicants' non-pecuniary
damage.
As to pecuniary damage, it cannot speculate as to the outcome
of the proceedings had there not been a breach of the Convention.
B. Costs and expenses
41. Mr and Mrs Mantovanelli sought FRF 25,000 in respect of costs
and expenses incurred before the Strasbourg institutions.
42. Having regard to the fact that no objection was raised by
either the Government or the Delegate of the Commission and making its
assessment on an equitable basis, the Court allows the applicants'
claim.
C. Default interest
43. According to the information available to the Court, the
statutory rate of interest applicable in France at the date of adoption
of the present judgment is 3.87% per annum.
FOR THESE REASONS, THE COURT
1. Holds by five votes to four that there has been a breach of
Article 6 para. 1 of the Convention (art. 6-1);
2. Holds unanimously that the present judgment in itself
constitutes sufficient just satisfaction as regards the alleged
non-pecuniary damage;
3. Holds unanimously that the respondent State is to pay the
applicants, within three months,
25,000 (twenty-five thousand) French francs in respect of costs
and expenses, on which sum simple interest at an annual rate
of 3.87% shall be payable from the expiry of the
above-mentioned three months until settlement;
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 18 March 1997.
Signed: Rudolf BERNHARDT
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 53 para. 2 of Rules of Court A, the following
separate opinions are annexed to this judgment:
(a) concurring opinion of Mr Jambrek;
(b) dissenting opinion of Mr Thór Vilhjálmsson, joined by
Mrs Palm and Mr Levits;
(c) dissenting opinion of Mr Pettiti.
Initialled: R. B.
Initialled: H. P.
CONCURRING OPINION OF JUDGE JAMBREK
The finding of a breach of Article 6 para. 1 of the Convention
(art. 6-1) is in my view well reasoned. In this opinion I only wish to
be more explicit on the criteria derived from the Court's case-law
which I have applied to the specific circumstances of the
Mantovanelli case.
Criteria
The reasoning of the majority position, as I understand it,
includes the following:
(a) the principle of equality of arms (within the wider concept of a
fair trial, including the adversarial character of the proceedings, and
an opportunity to contest the evidence of the other side) must also
apply in the case of a report on technical matters;
(b) the present case should be considered by the Court with due regard
to its specific legal and factual circumstances.
In this regard the following questions seem relevant to me:
(a) whether the answer by the expert to the medical question in issue
was decisive for the outcome of the dispute;
(b) whether the manner of preparing the report, and the character of
the report itself, allowed or even required the application of the
adversarial principle prior to the presentation of the report to and
before the court;
(c) whether the applicants in this case were given a genuine
opportunity to comment on observations of the other parties (see the
Ruiz-Mateos v. Spain judgment of 23 June 1993, Series A no. 262, p. 25,
para. 63 in fine); and
(d) whether the applicants in this case were placed at a substantial
disadvantage, given that they were unable to influence the preparation
of the report, and thereby to influence the collection of evidence and
its assessment.
Application
The two Conseil d'Etat judgments cited at paragraph 25 of the
Court's judgment seem to affirm two different principles in dealing
with an irregularity in the preparation of an expert report.
In its 1988 judgment the Conseil d'Etat accepted that
non-compliance with Article R. 164 in the preparation of an
expert report is a ground for setting aside a judgment based on the
report. In its more recent judgment of 1991, however, the
Conseil d'Etat states that such an irregularity does not prevent such
a report from being accepted by a court for its information.
The Nancy Administrative Court of Appeal in its judgment of
5 March 1992 dismissed Mr and Mrs Mantovanelli's appeal on the grounds
that it was their responsibility, after they had been given the expert
report, to specify the points on which they considered further
enquiries into the facts to be necessary. In this respect the
Court of Appeal confirmed the reasoning of the previous judgment of
29 November 1988 of the administrative court, according to which the
Mantovanellis should themselves have disputed the facts which appear
from their own evidence and the expert report.
In my view, the Mantovanellis were right to assume that their
Article R. 164 right confirmed by the Bruno Pierre Guy judgment of the
Conseil d'Etat (28 November 1988) should be respected at its face
value. They rightly considered that they should have had the
opportunity either to inspect the preparation of the report from its
initial stage on or at least to request that it be set aside by the
court because of its procedural irregularity and that the court order
the preparation of a new report.
The Court has already stated in the form of general principles
that "law" should be understood as comprising written as well as
unwritten law and implying qualitative requirements, notably those of
accessibility and foreseeability (for a recent authority, see the
C.R. v. the United Kingdom judgment of 22 November 1995, Series A
no. 335-C, pp. 68-69, paras. 32-34, passim). The confidence in law
requirement is thus also contained in the wider rule of law principle.
In this respect it should be considered that the applicants
could hardly have relied upon the second of the relevant Conseil d'Etat
judgments, namely that of 1 July 1991, published in the
Gazette du Palais only on 8-9 April 1992. They could have relied,
however, upon the first of the two judgments (Bruno Pierre Guy of
28 November 1988), the reasoning of which was consistent with their
appeal of 4 January 1989.
At the hearing the Agent of the Government referred to the
Schenk v. Switzerland judgment of 12 July 1988 (Series A no. 140),
pleading that there the Court "clearly stated that it does not have
jurisdiction to decide whether the national courts have properly
assessed evidence brought before them". The relevant passage from the
judgment, however, reads as follows: "In particular, it is not its
function to deal with errors of fact or of law allegedly committed by
a national court unless and in so far as they may have infringed rights
and freedoms protected by the Convention. While Article 6 of the
Convention (art. 6) guarantees the right to a fair trial, it does not
lay down any rules on the admissibility of evidence as such, which is
therefore primarily a matter for regulation under national law"
(see p. 29, paras. 45-46).
The Schenk judgment therefore, in my view, rather supports the
applicants' case: it stresses the supervisory role of the Court, and
implies the element of foreseeability of the national law.
Conclusion
I wish to suggest that regulation under French law be
considered as one of the specific circumstances of this case,
distinguishing it in principle, inter alia, from other similar cases
of judicial treatment of expert reports, which are regulated in
different ways by other national legal systems. Given the relevant
French legal provisions and the Conseil d'Etat's case-law on those
provisions, the Mantovanellis could have reasonably foreseen that it
was their right to obtain the setting aside of an irregular expert
report, and it was not their responsibility to contest the report after
it had been completed and sent to the court.
DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON,
JOINED BY JUDGES PALM AND LEVITS
Article 6 para. 1 of the Convention (art. 6-1) provides that
everyone is entitled to a fair hearing by a tribunal. One of the
elements of a fair hearing is the right to adversarial proceedings.
Each party must have a realistic possibility of commenting on all
material filed with the court before the final decision is taken. The
expert appointed by the administrative court did not constitute a
tribunal, and the French courts held that his report was admissible
even though it had not been produced in accordance with French law.
It was for them to rule on the evidence in the case; the role of the
European Court, as set out in Article 34 of the judgment, is to assess
the fairness of the proceedings as a whole.
The report was communicated to the applicants on 19 July 1985
and the administrative court held a hearing on 8 November 1988 and gave
judgment on 29 November 1988. Thus the applicants had more than
three years in which to comment on the report and to challenge the
findings in it, for instance with the help of a medical expert of their
own. Moreover, if they had any requests or complaints to make
concerning the expert's investigation, they could have made them just
as effectively to the administrative court. However they did not do
so. Under these circumstances the failure to give them an opportunity
to participate in the expert's investigations cannot constitute a
breach of the principle of equality of arms as guaranteed by the
Convention. There was in our view no violation of Article 6 para. 1
(art. 6-1).
DISSENTING OPINION OF JUDGE PETTITI
(Translation)
I voted with the minority in favour of the view that there had
not been a violation of Article 6 of the Convention (art. 6).
The majority considered, wrongly in my view, that all the
requirements of the adversarial principle entailed by Article 6
(art. 6) must also be satisfied during the stage when a technical
expert report is prepared.
Under Article 6 (art. 6), however, the rules on adversarial
proceedings must be distinguished from those on evidence.
In the instant case the proceedings before the national courts
were essentially concerned with assessing the facts and the evidence.
The court could in theory have determined the merits on the
basis of the post-mortem report.
According to the adage, the judge is the expert among experts.
He is continually called upon to rule on technical expert reports, even
though he is not a specialist.
In the instant case, in its legitimate concern to ascertain the
truth and in order to have at its disposal all authoritative opinions,
the administrative court ordered a technical expert report on
28 March 1975 before giving judgment; that expert report consisted of
laboratory analyses.
It is of course to be regretted that the expert report did not
comply with the adversarial principle and especially that the members
of the CHRN interviewed by the expert were not brought face to face
with the applicants. A reading of the expert report shows how
technical the issue was, the determination of which did not apparently
depend on witness evidence:
"However, there must have been an atopic susceptibility (that
is to say a predisposition to sensitisation through medication
without any revealing signs) triggered first by the Epontol,
use of which was later discarded, and then by the halothane,
and exacerbated in terms of enzymatic action by a
third substance, Nesdonal.
There is a plausible diagnostic hypothesis, constructed after
the event and which, given that there were no warning signs of
intolerance, obviously cannot call into question the choice or
rejection of one anaesthetic rather than another.
An idiosyncrasy, in other words a reaction peculiar to her as
an individual, must therefore have been responsible for
Miss Mantovanelli's death, brought about by a particularly
strong autoimmune process ... There are no frequency figures
for such exceptional cases.
(Halothane's toxicity does not appear to be implicated and is
in any case still widely disputed today. However, in so far
as halothane is still suspected of causing necrosis of the
liver, statistics show that this phenomenon does not occur in
more than 1 in 10,000 cases.)"
Admittedly, the expert report was irregular, but that did not
vitiate the entire proceedings. The court could have ordered a
second expert report if scientific arguments contrary to those in the
report had been submitted to it. The applicants merely asked for the
expert report to be set aside and for a fresh expert report to be
produced, and did not give grounds for their request.
When ruling as it did, the court took the unchallenged
expert report into account as a piece of evidence. It was not bound
by that report. It was (contrary to what is said in paragraph 36 of
the judgment) itself in a position to assess its validity, especially
as the expert report did not contradict the post-mortem report. If the
court had had before it a scientific report filed by the applicants
that seriously called in question the expert report, it would almost
certainly have ordered a second expert report. It was not required to
do so of its own motion.
That is a matter for the national courts to assess. The
Convention does not lay down rules on evidence as such or on the
admissibility of evidence or the manner in which evidence is obtained
under the national code of procedure (see the Schenk v. Switzerland
judgment of 12 July 1988, Series A no. 140).
The requirements of the adversarial principle and of a
fair trial do not apply just to the stage when the technical
expert report is prepared, considered in isolation (and different
methods are moreover required for a technical laboratory report from
those needed for a report relating, for instance, to a road accident),
where the courts of first instance and of appeal can both ensure that
there is adversarial argument before them that enables the parties to
challenge the evidence and the expert report (contrast paragraph 36 of
the judgment).
Whatever the tragic aspects of the case and its effects on the
family, in assessing the compatibility of the domestic decision with
the requirements of Article 6 of the Convention (art. 6), the Chamber
should have analysed the case in this manner in order to be consistent
with the Court's previous case-law and to ensure conformity to it in
the future.
The Court should, in my opinion, have held that there had been
no violation of Article 6 (art. 6) in order to avoid confusing the
rules on trial and adversarial proceedings with those governing
evidence and its assessment by the national court. Finding that an
expert report does not comply with formal legal requirements does not
prevent a court from drawing conclusions from the facts that have been
submitted to it. That was so in the present case.