CEDH · PRESS;HEARINGS;ENG — 23 mars 2005

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s1EDF3BA6 { font-family:Arial; font-size:8pt; font-weight:bold; vertical-align:super; color:#0069d6 } .s69BE285C { margin-top:0pt; margin-left:85.05pt; margin-bottom:0pt; text-indent:-85.05pt } .s9A223E1B { width:11.03pt; text-indent:0pt; display:inline-block } .s595A57E4 { width:85.05pt; text-indent:0pt; display:inline-block } .sA8D48830 { width:21.28pt; text-indent:0pt; display:inline-block } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s67F06EFC { font-family:Arial; font-size:10pt; color:#000000 } .s4B8D41EE { font-family:Arial; font-size:10pt } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS   147 23.3.2005   Press release issued by the Registrar   GRAND CHAMBER HEARING DRAON v. FRANCE and MAURICE v. FRANCE   The European Court of Human Rights is holding a Grand Chamber hearing today Wednesday 23 March at 9.00 a.m., in the case of Draon v. France (application no. 1513/03) and Maurice v. France (no. 11810/03).   The applicants   The applicants are all French nationals: Christine and Lionel Draon, born in 1962 and 1961 and living in Rosny-sous-Bois (France) and, Sylvia and Didier Maurice and their minor daughter born in 1965, 1962 and 1997 and living at Bouligny (France).   Summary of the facts   Mr and Mrs Draon and Mr and Mrs Maurice are the parents of children with severe congenital disabilities which, due to medical errors, were not discovered during prenatal examinations. They brought proceedings against the hospital authorities concerned, but as a result of legislation known as the “Kouchner Law” [1] , which came into force while their actions were pending, they were awarded compensation only for non-pecuniary damage and not for the actual costs incurred as a result of their children’s disability.   Draon v. France When four months pregnant with their first child, Mrs Draon had an ultrasound scan which disclosed an anomaly in the development of the foetus. Amniocentesis was performed in August 1996 at the Saint-Antoine Hospital, for which the Paris Health Authority ( Assistance Publique-Hôpitaux de Paris – APHP ) is responsible. No foetal abnormality was detected. However, the child, who was born in December 1996, very soon presented serious cerebral malformation, a major disability and total, permanent invalidity requiring full-time specialist care. The APHP admitted that there had been an error of diagnosis and that the chromosomal abnormality could have been traced when the amniocentesis was carried out.   The applicants issued proceedings in the administrative courts against the APHP . They were awarded provisional damages by the urgent-applications judge of approximately 155,500   euros (EUR).   On 2 September 2003 the administrative court found that the APHP had been negligent and had deprived the applicants of the possibility of seeking a voluntary termination of pregnancy on therapeutic grounds. It ruled that the applicants were entitled to compensation under the Law of 4 March 2002. It dismissed part of the applicants’ claims, and awarded them compensation for non-pecuniary damage only in the sum of EUR 180,000, subject to deduction of the provisional damages that had been paid. An appeal by Mr and Mrs Draon against that judgment is currently pending in the Paris Administrative Court of Appeal.   Maurice v France In 1990 Mr and Mrs Maurice’s first child was born with infantile spinal amyotrophy, a genetic disease caused by muscular atrophy. Two years later, Mrs Maurice decided to terminate a second pregnancy on learning that there was a risk that the child she was carrying might be suffering from the same illness.   In 1997 Mrs Maurice became pregnant for a third time and sought a prenatal diagnosis which was performed by an APHP laboratory. The tests did not reveal any abnormalities. The child was born in September 1997 and it became apparent over the following months that she was suffering from the same genetic illness. A report by a medical expert found that there had been a diagnostic error, Mrs Maurice’s results having been mixed up with those of another woman.   The applicants issued proceedings in the administrative courts against the APHP . They were awarded provisional damages of EUR 152,499 by the urgent-applications judge, which amount was reduced on appeal to EUR 15,245, pursuant to the Law of 4 March 2002. In December 2002 the Conseil d’État assessed the provisional damages at EUR   50,000.   On 25 November 2003 the Paris Administrative Court ordered the APHP to pay Mr and Mrs   Maurice EUR 224,500 to cover non-pecuniary damage only, in view of the provisions of the Law of 4 March 2002. The applicants’ appeal is currently pending in the Paris Administrative Court of Appeal. The applicants also brought an action against the State arguing that it had engaged its responsibility by passing the Law of 4 March 2002. The action was dismissed at first instance and an appeal is currently pending in the Paris Administrative Court of Appeal.   Complaints   In both cases the applicants allege that the fact that the Law of 4 March 2002 (the Law) was made applicable with immediate effect to proceedings that were already under way was inconsistent with the principle of equality of arms and denied them an effective remedy.   They also complain that the Law created unjustified inequality of treatment between the parents of children whose disability was caused by a medical error or the direct act or omission of a third party, and the parents of disabled children who were prevented by negligence from discovering the disability prior to the birth.   Lastly, they maintain that, by depriving them of part of the compensation to which they would have been entitled before the Law entered into force, the rules established by the Law prevented them from providing for the needs of their children.   They rely on Article 6 § 1 (right to a fair hearing), Article 13 (right to an effective remedy), Article 1 of Protocol No. 1 (protection of property), Article 14 (prohibition of discrimination) and Article 8 (right to respect for private and family life) of the Convention.   Procedure   The cases were lodged the European Court of Human Rights on 2 January 2003 and 28 February 200 respectively and declared admissible on 6 July 2004.   On 19 October 2004 the Chamber to which the cases had been allocated relinquished jurisdiction in favour of the Grand Chamber, under Article 30 [2] of the Convention.   Composition of the Court   The case will be heard by the Grand Chamber composed as follows:   Luzius Wildhaber (Swiss), President , Christos Rozakis (Greek), Jean-Paul Costa (French), Nicolas Bratza (British), Boštjan M. Zupančič (Slovenian), Giovanni Bonello (Maltese), Loukis Loucaides (Cypriot) Corneliu Bîrsan (Romanian), Peer Lorenzen (Danish), Karel Jungwiert (Czech), Volodymyr Butkevych (Ukrainian), András Baka (Hungarian), Mindia Ugrekhelidze (Georgian), Vladimiro Zagrebelsky (Italian), Elisabeth Steiner (Austrian), Khanlar Hajiyev (Azerbaijani), Renate Jaeger (German), judges , Danute Jočienė (Lithuanian), Lucius Caflisch (Swiss), [3] Riza Türmen (Turkish), substitute judges , and also Paul Mahoney, Registrar .             Representatives of the parties   Government :   Jean-Luc Florent , Agent ,   Laurence Notarianni , Philippe Didier-Courbin , Régis Bac , Julie Villiger ,    Serge Picard , Claude Simon et Frédéric Amegadjie , Counsel ;   Applicants:           in the case Draon :   Hélène Rousseau-Nativi , Counsel ,   in the case Maurice : Arnaud Lyon-Caen, Counsel .   Lionel Draon will also attend the hearing.   ***   After the hearing the Court will begin its deliberations, which are held in private. Judgment will be delivered at a later date.   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. More detailed information about the Court and its activities can be found on its Internet site. [1] .     The Law of 4 March 2002, known as the “Kouchner Law” or “anti-Perruche Law”, on patients’ rights and the quality of the health service, establishes new rules for compensation for losses sustained by the parents of children born with a disability which, due to an error, was not discovered during pregnancy. The rules preclude, among other things, claims against the doctor or hospital concerned for the payment of special costs arising throughout the child’s life as a result of its disability, whereas such claims could be made under the previous rules. [2] Where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court, the Chamber may, at any time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber, unless one of the parties to the case objects. [3] Judge elected in respect of Liechtenstein.