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You are here: BAILII >> Databases >> European Court of Human Rights >> DRAON v. FRANCE - 1513/03 [2006] ECHR 638 (21 June 2006) URL: http://www.bailii.org/eu/cases/ECHR/2006/638.html Cite as: [2006] ECHR 638 |
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GRAND CHAMBER
CASE OF DRAON
v. FRANCE
(Application no. 1513/03)
JUDGMENT
(Just satisfaction and striking out)
STRASBOURG
21 June 2006
This judgment is final but it may be subject to editorial revision.
In the case of Draon
v. France,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Mr L. WILDHABER, President,
Mr C.L. ROZAKIS,
Mr J.-P. COSTA,
Sir NICOLAS BRATZA,
Mr G. BONELLO,
Mr L. CAFLISCH,
Mr L. LOUCAIDES,
Mr C. BîRSAN,
Mr P. LORENZEN,
Mr K. JUNGWIERT,
Mr V. BUTKEVYCH,
Mr A.B. BAKA,
Mr M. UGREKHELIDZE,
Mr V. ZAGREBELSKY,
Mr K. HAJIYEV,
Mrs R. JAEGER,
Mrs D. JOčIENė, judges,
and Mr T.L. EARLY, Section Registrar,
Having deliberated in private on 7 June 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 1513/03) against the
French Republic lodged with the Court under Article
34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two French nationals,
Mr Lionel Draon
and Mrs Christine
Draon
(“the applicants”), on 2 January 2003.
2. The applicants were represented by Mr F. Nativi and Ms H. Rousseau-Nativi, lawyers practising in Paris. The French Government (“the Government”) were represented by their Agent, Mrs E. Belliard, Director of Legal Affairs at the Ministry of Foreign Affairs.
3. Following relinquishment of jurisdiction by the Chamber to
which the application had initially been assigned, the Court
(Grand Chamber)
gave judgment on 6 October 2005 (“the judgment on the merits”). In
that judgment it held that section
1 of Law no. 2002-303 of 4 March 2002 on
patients’ rights and the quality of the health service had infringed the
applicants’
right to peaceful enjoyment of their possessions. The Court
noted that, following the birth of a child with a disability not detected
during
pregnancy on account of negligence in carrying out a prenatal diagnosis, the
applicants had brought an action for compensation
in the French courts. Having
regard to the relevant domestic rules governing liability, and bearing in mind
in particular the established
case-law of the administrative courts, the
applicants could legitimately have expected to obtain compensation for the
damage they
had sustained, including the special burdens arising from their
child’s disability. But the above-mentioned Law of 4 March
2002, which was
applicable to pending proceedings, had had the effect in the case brought by the
applicants of excluding the “special
burdens” from the damage for
which compensation could be awarded. The Court considered that the impugned
legislation had deprived
the applicants, without sufficient compensation, of a
substantial portion of the damages they had claimed, thus making them bear
an
individual and excessive burden. Consequently, the applicants had been victims
of a violation of Article 1 of Protocol No. 1 to
the Convention (see Draon
v.
France [GC], no. 1513/03, §§ 78 to 86, 6 October
2005).
Regard being had to that finding of a violation, the Court did not consider it necessary to examine the applicants’ complaint under Article 14 of the Convention taken together with Article 1 of Protocol No. 1 to the Convention.
Furthermore, regard being had to the particular circumstances of the case and to the reasoning that had led it to find a violation of Article 1 of Protocol No. 1 to the Convention, the Court did not consider it necessary to examine separately the applicants’ complaint under Article 6 § 1 of the Convention.
The Court found no violation of Article 13 of the Convention or of Article 8, even supposing that Article 8 was applicable.
As regards the complaint relating to Article 14 of the Convention taken
together with Article 8, the Court noted that it fell outside
the scope of the
case as submitted to the Grand Chamber (see Draon
, cited above,
§§ 91, 95, 97 to 99 and 105 to 117).
Lastly, the Court awarded the applicants the sum of 15,244 euros (EUR) for the costs and expenses they had incurred up to that point in the proceedings before it.
4. Under Article 41 of the Convention, the applicants alleged that they had suffered pecuniary damage corresponding to the sums they would have received if the legal situation prior to the Law of 4 March 2002 had continued to obtain. Supplying the relevant vouchers, they claimed a total of EUR 5,615,069.63. In addition, they claimed EUR 12,000 as compensation for non-pecuniary damage resulting from the violations of the Convention they had complained of.
5. As regards the sum to be awarded to the applicants for any
pecuniary or non-pecuniary damage resulting from the violation
found, the Court
held in the judgment on the merits that the question of the application of
Article 41 was not ready for decision,
and accordingly reserved it. It
invited the Government and the applicants to submit their written observations
on the matter within
six months and, in particular, to notify it of any
agreement that they might reach (see Draon
, cited above, §§ 119
to 122 and point 7 of the operative provisions).
6. In letters of 6 April 2006 the Government and the applicants informed the Court that the parties had reached agreement on the question of just satisfaction.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
7. The applicants were born in 1961 and 1962 respectively and live in Rosny-sous-Bois.
8. In the spring of 1996 Mrs Draon
began her first pregnancy. The
second ultrasound scan, carried out in the fifth month
of pregnancy, revealed an
anomaly in the development of the foetus.
9. On 20 August 1996 an amniocentesis was carried out at Saint-Antoine hospital, run by Assistance Publique – Hôpitaux de Paris (AP-HP). The amniotic fluid sample was sent for analysis to the establishment’s cytogenetics laboratory (headed by Professor T.) with a request for karyotype and digestive enzyme analysis. In September 1996 T. informed the applicants that the amniocentesis showed the foetus had “a male chromosomal pattern with no anomaly detected”.
10. R. was born on 10 December 1996. Very soon, multiple anomalies were observed, particularly defective psychomotor development. The examinations carried out led to the conclusion that there was a congenital cardiopathy due to a “chromosomal anomaly”.
11. When informed of this T. admitted that his service had made
the wrong diagnosis, the anomaly having already been entirely
detectable at the
time of the amniocentesis. He stated: “Concerning the child Draon
R., ...
we regret to have to say that there
was indeed an asymmetry between the
foetus’s two copies of chromosome 11; that anomaly or peculiarity escaped
our attention”.
12. According to the medical reports, R. presents cerebral malformations causing grave disorders, severe impairment and permanent total invalidity, together with arrested weight gain. This means that it is necessary to make material arrangements for his everyday care, supervision and education, including ongoing specialist and non-specialist treatment.
13. On 10 December 1998 the applicants sent a claim to AP-HP seeking compensation for the damage suffered as a result of R.’s disability.
14. In a letter dated 8 February 1999 AP-HP replied that it “[did] not intend to deny liability in this case” but invited the applicants to “submit an application to the Paris Administrative Court which, in its wisdom, will assess the damage for which compensation should be paid”.
15. On 29 March 1999 the applicants submitted to the Paris Administrative Court a statement of their claim against AP-HP, requesting an assessment of the damage suffered.
16. At the same time the applicants submitted to the urgent applications judge at the same court a request for the appointment of an expert and an interim award.
17. In a decision of 10 May 1999 the urgent applications judge of the Paris Administrative Court made a first interim award of FRF 250,000 (EUR 38,112.25) and appointed an expert. He made the following points, among other observations:
“[AP-HP] does not deny liability for the failure to diagnose the
chromosomal anomaly which the boy R. is suffering from; ...
having regard to the
non-pecuniary damage, the disruption in the conditions of their lives and the
special burdens arising for Mr
and Mrs Draon
from their child’s infirmity,
AP-HP’s liability towards them in the sum of 250,000 francs may be
considered,
at the current stage of the investigation, not seriously open to
challenge”.
18. The expert filed his report on 16 July 1999 and confirmed the seriousness of R.’s state of health.
19. On 14 December 1999, in a supplementary memorial on the merits, the applicants requested the Administrative Court to assess the amount of the compensation which AP-HP should be required to pay.
20. AP-HP’s memorial in reply was registered on 19 July 2000. The applicants then filed a rejoinder and further documents concerning the modifications to their home and the equipment rendered necessary by R.’s state of health.
21. In addition, the applicants again asked the urgent applications judge to make an interim award. In a decision of 11 August 2001 the urgent applications judge of the Paris Administrative Court made an additional interim award of FRF 750,000 (EUR 114,336.76) to the applicants “in view of the severity of the disorders from which the boy R. continues to suffer and the high costs of bringing him up and caring for him since 1996”.
22. After being prompted several times, verbally and in writing, by the applicants, the Paris Administrative Court informed them that the case had been set down for hearing on 19 March 2002.
23. On 5 March 2002 Law no. 2002-303 of 4 March 2002 was published in the Official Gazette of the French Republic. Section 1 of that Law, being applicable to pending proceedings, affected those brought by the applicants.
24. In a letter of 15 March 2002 the Paris Administrative Court informed the applicants that the hearing had been put back to a later date and that the case was likely to be decided on the basis of a rule over which the court did not have discretion, since it applied to their claim by virtue of section 1 of the Law of 4 March 2002.
25. In a judgment of 3 September 2002 the Paris Administrative Court, acting on a proposal made by the Government Commissioner, deferred its decision and submitted to the Conseil d’Etat a request for an opinion on interpretation of the provisions of the Law of 4 March 2002 and their compatibility with international conventions.
26. On 6 December 2002 the Conseil d’Etat gave an opinion in the context of the litigation in progress (avis contentieux) which is reproduced in the judgment on the merits (see paragraph 51).
27. On the basis of that opinion, the Paris Administrative Court ruled on the merits of the case on 2 September 2003. It began with the following observations:
“Liability
The provisions of section 1 of the Law of 4 March 2002, in the absence of provisions therein deferring their entry into force, are applicable under the conditions of ordinary law following publication of that Law in the Official Gazette of the French Republic. Since the rules the Law lays down were framed by Parliament on general-interest grounds relating to ethical considerations, the proper organisation of the health service and the equitable treatment of all disabled persons, they are not incompatible with the requirements of Article 6 of [the Convention], with those of Articles 5, 8, 13 and 14 of [the Convention] or with those of Article 1 of Protocol No. 1 [to the Convention]. The general-interest grounds which Parliament took into consideration when framing the rules set out in the first three paragraphs of section 1 justify their application to situations which arose prior to the commencement of pending proceedings. It follows that those provisions are applicable to the present action, brought on 29 March 1999;
The administrative courts do not have jurisdiction to rule on the constitutionality of legislation; [the applicants’] request that this court review the constitutionality of the Law of 4 March 2002 must therefore be refused;
It appears from the investigation that in the fifth month of Mrs
Draon
’s pregnancy, after an ultrasound scan had shown a manifest
problem
affecting the growth of the foetus, she and Mr
Draon
were advised to consider
the option of an abortion if karyotype analysis
after an amniocentesis revealed
a chromosomal abnormality. Mr and Mrs
Draon
then decided to have that test
performed at Saint-Antoine
Hospital. They were informed by the hospital on 13
September 1996 that no anomaly of the foetus’s male chromosomal pattern
had been detected. However, very soon after the baby’s birth on 10
December 1996 magnetic resonance imaging revealed a serious
malformation of the
brain due to a karyotypic anomaly;
The report of the expert appointed by the court states that this anomaly was
entirely detectable; failure to detect it therefore constituted
gross negligence
on AP-HP’s part which deprived Mr and Mrs Draon
of the possibility of
seeking an abortion on therapeutic grounds
and entitles them to compensation
under section 1 of the Law of 4 March 2002”.
28. The court then assessed the damage sustained by the applicants as follows:
“... firstly, ... the amounts requested in respect of non-specialist care, the specific costs not borne by social security, the costs of building a house suited to the child’s needs with a number of modifications to the home and the purchase of a specially adapted vehicle relate to special burdens arising throughout the life of the child from his disability and cannot therefore be sums for which [AP-HP] is liable;
... secondly, ... Mr and Mrs Draon
are suffering non-pecuniary damage and
major disruption in their lives, particularly their work,
regard being had to
the profound and lasting change to their lives brought about by the birth of a
seriously disabled child; ...
these two heads of damage must be assessed, in the
circumstances of the case, at 180,000 euros;
... lastly ..., although Mr and Mrs Draon
submitted that they could no longer
holiday in a property they had purchased in Spain, they
are not deprived of the
right to use that property; consequently their claim for compensation for loss
of enjoyment of real property
must be rejected;...”
29. The court concluded by ordering AP-HP to pay the applicants the sum of EUR 180,000, less the amount of the interim awards, interest being payable on the resulting sum at the statutory rate from the date of receipt of the claim on 14 December 1998, the interest due being capitalised on 14 December 1999 and subsequently on each anniversary from that date onwards. AP-HP was also ordered to pay the applicants the sum of EUR 3,000 in respect of costs not included in the expenses and to bear the cost of the expert opinion ordered by the president of the court.
30. On 3 September 2003 the applicants appealed against the judgment. Their appeal is currently pending before the Paris Administrative Court of Appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
31. Here the Court refers to the judgment on the merits (§§ 36 to 58).
THE LAW
32. On 10 May 2006 the applicants sent the registry the text of an agreement, signed by the parties’ representatives, which reads as follows:
“AGREEMENT
Between, on the one hand,
The State, represented by Mr Xavier BERTRAND, Minister for Health and Solidarity, ...;
Assistance Publique – Hôpitaux de Paris, a public health establishment ...
And on the other hand
Mr and Mrs DRAON
...
The signatories of the present agreement being referred to hereafter as “the parties”,
THE TERMS OF AGREEMENT ARE PRECEDED BY THE FOLLOWING STATEMENT OF THE FACTS OF THE CASE:
Mrs DRAON
became pregnant in 1996.
The first ultrasound scan was normal but the second, at five months, revealed
that the foetus was not developing properly. It was
then suggested to Mr and Mrs
DRAON
that a sample of amniotic fluid should be taken for karyotype
analysis.
The karyotype analysis was carried out at the Saint-Antoine Hospital, an establishment run by Assistance Publique – Hôpitaux de Paris.
The karyotype was declared normal, the pregnancy went its course and the child was born on 10 December 1996.
Anomalies quickly became apparent. Magnetic resonance imaging and karyotype analysis were carried out. The MRI scan revealed a serious malformation of the brain and the karyotype analysis showed an anomaly taking the form of a centromeric duplication of chromosome 11.
Mr and Mrs DRAON
then submitted a claim to AP-HP on 10 December 1998 seeking
compensation in full for the damage they had sustained
on account of the
erroneous karyotype analysis carried out at the Pathological and Cytogenetic
Embryology Laboratory of the Saint-Antoine
Hospital.
By a decision of 8 February 1999 AP-HP admitted liability and suggested that
Mr and Mrs DRAON
should apply to the Paris Administrative
Court under the urgent
procedure for an assessment of the damage for which compensation could be paid.
They did so on 29 March 1999.
Concurrently, Mr and Mrs DRAON
instituted proceedings on the merits of their
claim in the Paris Administrative Court.
In a judgment of 2 September 2003 the Paris Administrative Court pointed to the terms of section 1 of the Law of 4 March 2002 on patients’ rights and the quality of the health system, which provides: “No-one may claim to have suffered damage by the mere fact of his or her birth ...Where the liability of a health-care professional or establishment is established vis-à-vis the parents of a child born with a disability not detected during the pregnancy by reason of gross negligence, the parents may claim compensation in respect of their damage only. That damage cannot include the special burdens arising from the disability throughout the life of the child. Compensation for the latter is a matter for national solidarity. The provisions of the present sub-section I shall be applicable to proceedings in progress, except for those in which an irrevocable decision has been taken on the principle of compensation”.
The court held that the karyotypic anomaly had been entirely detectable and that failure to detect it constituted gross negligence conferring entitlement to compensation under the conditions laid down in section 1 of the Law of 4 March 2002.
It ordered AP-HP to compensate Mr and Mrs DRAON
for non-pecuniary damage and
the disruption to their lives, particularly their working
lives, but ruled out
the compensation claims they had submitted in respect of the special burdens
arising from their child’s
disability.
In execution of that judgment, AP-HP paid Mr and Mrs DRAON
the sum of
196,793.75 euros (180,000 plus 16,793.75 interest).
On 23 October 2003 Mr and Mrs DRAON
appealed against the judgment of the
Paris Administrative Court to the Paris Administrative Court
of Appeal.
They argued that the provisions of the Law of 4 March 2002 were not applicable to their case and requested compensation for all the damage they had sustained on account of the incorrect karyotype analysis.
On 10 January 2003 Mr and Mrs DRAON
lodged an application with the European
Court of Human Rights.
That application directly contested the compatibility with the Convention of section 1 of Law no. 2002-303 of 4 March 2002, concerning medical liability for the birth of a disabled child.
On 6 October 2005 the European Court of Human Rights gave judgment against France in so far as the retrospective effect of the Law of 4 March 2002 had deprived the applicants, without reasonably proportionate compensation, of a substantial portion of the damages they had claimed.
In its judgment the Grand Chamber of the Court observed: “The grounds relating to ethical considerations, equitable treatment and the proper organisation of the health service mentioned by the Conseil d’Etat in its opinion of 6 December 2002 and relied on by the Government could not, in the instant case, legitimise retrospective action whose result was to deprive the applicants, without sufficient compensation, of a substantial portion of the damages they had claimed, thus making them bear an individual and excessive burden” (p. 25).
In its judgment of 6 October 2005 the European Court of Human Rights invited the parties to reach a negotiated settlement.
The proper course of action is accordingly to make good the damage sustained
by Mr and Mrs DRAON
on account of negligence on the part
of AP-HP and the
retrospective nature of the impugned legislation.
The parties have come together and decided to end the dispute between them.
IN CONSEQUENCE, THEY HAVE REACHED THE FOLLOWING AGREEMENT:
Article 1:
As requested by the Court, the purpose of the present agreement is to afford
just satisfaction to Mr and Mrs DRAON
and to put an end
to the disputes between
them and the State and AP-HP relating to the damage they sustained on account of
negligence by AP-HP and
the retrospective scope of section 1 of the Law of 4
March 2002.
Article 2: Compensation
The compensation proposed to Mr and Mrs DRAON
to make good the damage they
have sustained amounts to EUR 2,131,018 (two million one
hundred and thirty-one
thousand and eighteen euros), made up as follows:
- EUR 1,428,540, as a capital sum for provision of the child’s needs, by his parents, throughout his life;
- EUR 702,478 for all other heads of damage taken together.
Interest is payable on the sum of EUR 2,131,018 from 14 December 1998. The accrued interest on 14 December 1999 and on that date in each succeeding year will be capitalised and will itself earn interest, the total compound interest to be calculated as on 31 March 2006.
The default interest and capitalised interest accrued by 31 March 2006 amount to the sum of EUR 541,768.02 (five hundred and forty-one thousand seven hundred and sixty-eight euros and two cents).
The total compensation payable, including interest, therefore amounts to EUR 2,672,786.02 (two million six hundred and seventy-two thousand seven hundred and eighty-six euros and two cents).
The money paid to Mr and Mrs DRAON
following the Paris Administrative
Court’s judgment of 2 September 2003, EUR 196,793,75 (one
hundred and
ninety-six thousand seven hundred and ninety-three euros and seventy-five
cents), is to be deducted from that sum.
Consequently, after addition of the sum of EUR 12,121 (twelve thousand one
hundred and twenty-one euros) requested from the European
Court of Human Rights
by Mr and Mrs DRAON
as compensation for the non-pecuniary damage they sustained
on account of the Law of 4
March 2002 (EUR 12,000 plus EUR 121 in interest
payable from 6 October 2005, the date of the judgment of the European Court
of
Human Rights, to 31 March 2006), the final total of the compensation to be paid
to Mr and Mrs
DRAON
comes to EUR 2,488,113.27
(two million four hundred and
eighty-eight thousand one hundred and thirteen euros and twenty-seven
cents).
That payment excludes any other form of reparation to Mr and Mrs DRAON
in
respect of the same prejudice.
Article 3: Waivers
In consideration of payment of the sum intended as final settlement mentioned
in Article 2, Mr and Mrs DRAON
undertake to withdraw
their claim against AP-HP
(application no. 03PA04057) before the Paris Administrative Court of Appeal. In
addition, they will inform
the ECHR that they have obtained just satisfaction
and that they wish to withdraw all further compensation claims against the
French
State before that Court.
Article 4: Settlement effect
The present agreement is governed by French law and constitutes settlement for the purposes of Articles 2044 et seq. of the Civil Code.
The present agreement has the binding effect of a final judgment by virtue of Article 2052 of the Civil Code.
Article 5: Payment
Payment of the sum due under the terms of the present settlement shall be
effected by bank or postal account transfer from Assistance
Publique –
Hôpitaux de Paris to Mr and Mrs DRAON
within 45 days from the date of
receipt of the present agreement, duly
signed by the parties, by AP-HP. For that
purpose, Mr and Mrs
DRAON will send their bank or postal account details to
Assistance
Publique – Hôpitaux de Paris.
The official empowered to authorise the payment shall be the treasurer of Assistance Publique – Hôpitaux de Paris...”
33. The Court takes formal note of the above agreement. It observes that its purpose is to put an end to the dispute. It further observes that under the terms of the settlement thus reached the applicants will be paid compensation for the pecuniary and non-pecuniary damage they have suffered and that in consideration they will withdraw all other compensation claims against the French State before the Court and their action against AP-HP in the Paris Administrative Court of Appeal.
34. Having examined the terms of the agreement reached, the Court considers that it is equitable within the meaning of Rule 75 § 4 of the Rules of Court and that it is based on respect for human rights as defined in the Convention and its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court).
35. Accordingly, the remainder of the case should be struck out of the Court’s list (Article 37 § 1 (b) of the Convention and Rule 43 § 3).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Takes formal note of the agreement between the parties and the arrangements made to ensure compliance with the undertakings given therein (Rule 43 § 3 of the Rules of Court);
2. Decides to strike the remainder of the case out of its list.
Done in English and in French, and notified in writing on 21 June 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Luzius WILDHABER
President
T.L. EARLY
Section Registrar