CEDH · CASELAW;CLIN;ENG — 6 octobre 2005

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France [GC] - 11810/03 Judgment 6.10.2005 [GC] Article 1 of Protocol No. 1 Article 1 para. 1 of Protocol No. 1 Possessions Holding by the applicant, prior to the intervention of the law, of a compensation claim which he could legitimately expect to benefit from in application of established case-law: Article 1 of Protocol No.1 applicable   Deprivation of property Annulment by a law with retroactive effect of a substantial part of compensation claims which the applicants could legitimately have expected to benefit from: violation   Facts : The applicant, who had already given birth to a disabled child a few years before, had a second child who was subsequently found to be suffering from the same disability, whereas the prenatal diagnosis requested by the parents had shown the unborn child to be healthy. A report by the head of the laboratory revealed that the mistaken prenatal diagnosis was the result of transposing the results of the analyses relating to the applicants’ family and those of another family, caused by the switching of two bottles. Since, in view of the erroneous diagnosis, the couple had not been given the option of terminating the pregnancy following an in utero diagnosis of disability, the applicants submitted a claim seeking compensation for the pecuniary and non-pecuniary damage suffered as a result of the undetected disability. The court-appointed expert concluded that there had been negligence in the organisation and functioning of the laboratory. In an order of December 2001, the urgent-applications judge of the administrative court made them an interim award in respect of all the heads of claim submitted, as the liability was not seriously open to challenge. However, the appeal court reduced the interim award, basing it solely on the non-pecuniary damage and the disruption to the applicants’ lives. In its judgment of June 2002, it applied new legislation (Act of 4 March 2002) which was applicable to pending disputes, holding that compensation should be awarded solely in respect of the damage caused by the negligent switching of bottles and should not extend to the damage caused by the disability itself, since it was not a direct consequence of the negligent act. In February 2003 the Conseil d'Etat upheld that ruling and made the applicants an interim award simply in respect of the damage caused by the laboratory’s negligence. That decision was followed by the court below. The Administrative Court, in applying the new law, awarded compensation to the applicants solely in respect of the non-pecuniary damage and disruption to their lives (the error of diagnosis having deprived them of the option to terminate the pregnancy). The amounts claimed in respect of the special burdens that would be incurred on account of the child’s disability throughout its life (including the cost of house alterations and equipment purchases) could not be taken into account after the new law’s entry into force. Law : Article 1 of Protocol No. 1 – Applicability : Before the entry into force of the Act of 4 March 2002 the applicants had had a claim against the person responsible for the error of diagnosis that had caused them damage. They could legitimately have expected that claim to be realised, in accordance with established case-law. It was a “possession”. The claim covered the whole of the alleged damage (and thus also the special burdens that would be incurred on account of the child’s disability throughout its life). Observation : The Act of 4 March 2002, which entered into force on 7 March 2002, had deprived the applicants of the possibility of obtaining compensation for the “special burdens” arising from their child’s disability whereas, as early as 16 March 2001, they had brought proceedings in the Paris Administrative Court and, in an order of 19 December 2001, the urgent-applications judge of that court had granted them a substantial interim award, given that the liability towards them was not seriously open to challenge. The Act complained of had therefore entailed interference with the exercise of the rights to compensation which could have been asserted under the domestic law applicable until then. In so far as the new Act concerned proceedings brought before 7 March 2002, and which remained pending at that time, the interference amounted to a deprivation of property. The Act by which the French Parliament had sought to put an end to a line of case-law of which it disapproved and to change the legal rules governing medical liability, even rendering the new rules applicable to existing cases, was “in the public interest”. However, that Act had abolished, with retrospective effect, a substantial portion of the claim to recovery of damages which the applicants could legitimately have expected to be realised, and they had not received appropriate compensation since then. Conclusion : violation (unanimously). Regard being had to that finding, the Court held that it was not necessary to examine separately the complaints under Article 14 taken together with Article 1 of Protocol No. 1 and under Article 6 § 1. The Court held that there had not been a violation of Article 13, which did not go so far as to guarantee a remedy allowing a law to be challenged. Article 8 – The applicants complained of the legal rules introduced by the Act of 4   March 2002. In the Court’s view it could not reasonably be claimed that the French Parliament, by deciding through that Act to reorganise the system of compensation for disability in France, had overstepped the wide margin of appreciation left to it on the question or upset the fair balance that had to be maintained. Conclusion : no violation (unanimously). Article 41 – The Court awarded a sum in respect of costs and expenses. It reserved the question of the application of Article 41 in respect of pecuniary and non-pecuniary damage. [N.B. On the same day the Grand Chamber gave identical findings in the similar case of Draon v. France , no. 1513/03.]   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes