CEDH · PRESS;FORTHCOMINGJUDGMENTS;ENG — 16 juin 2006

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POLAND DRAON v. FRANCE MAURICE v. FRANCE   The European Court of Human Rights will be holding a public hearing in the Human Rights Building, Strasbourg, on Monday 19 June 2006 at 11 a.m. (local time) to deliver its Grand Chamber judgment in the case of Hutten-Czapska v. Poland (application no. 35014/97).   The press release and the text of the judgment will be available after the hearing on the Court’s Internet site ( http://www.echr.coe.int ).     The Court will also be notifying in writing two Grand Chamber judgments on Wednesday 21 June 2006 at 11 a.m. (local time) in the cases of Draon v. France (no. 1513/03) and Maurice v. France (no. 11810/03).   Press releases and texts of the judgments will be available at 11 a.m. (local time) on the Court’s Internet site ( http://www.echr.coe.int ).     Monday 19 June 2006   Hutten-Czapska v. Poland   Maria Hutten-Czapska is a French national of Polish origin, born in 1931 and living in Andresy (France). She owns a house and a plot of land in Gdynia, Poland.   She is one of around 100,000 landlords in Poland affected by a restrictive system of rent control [1] (from which some 600,000 to 900,000 tenants benefit), which originated in laws adopted under the former communist regime. The system imposes a number of restrictions on landlords’ rights, in particular, setting a ceiling on rent levels which is so low that landlords cannot even recoup their maintenance costs, let alone make a profit.   During the Second World War the applicant’s property was used by the German Army and then, in May 1945, by the Red Army. On 19 May 1945 part of the house was assigned to A.Z. In June 1945 Gdynia Town Court ( Sąd Grodzki ) ordered that the house be returned to the applicant’s parents. They started renovating the house but, shortly afterwards, were ordered to leave. In October   1945 A.Z. moved into the house. The house was taken under state management after the entering into force, on 13 February 1946, of a decree giving the Polish authorities power to assign flats in privately-owned buildings to particular tenants. The applicant’s parents tried unsuccessfully to regain possession of their property.   On 1 August 1974 a new regime on the state management of housing entered into force, the so-called “special lease scheme” ( szczególny tryb najmu ). On 8 July 1975 a decision was issued allowing W.P. to exchange the flat he leased under the scheme for the ground-floor flat in the applicant’s house. The decision was signed by a civil servant who was subordinate to W.P.   In the 1990s the applicant tried to have that decision declared null and void but only succeeded in obtaining a decision declaring that it had been issued contrary to the law.   On 18 September 1990 the applicant inherited her parents’ property and, in July 1991, she took over the management of the house. She subsequently brought several unsuccessful sets of proceedings to regain possession of her property and to relocate the tenants.   In 1994 a rent control scheme was applied to private property in Poland, under which landlords were both obliged to carry out costly maintenance work and prevented from charging rents which covered those costs. According to one calculation [2] , rents covered only about 60% of the maintenance costs. Severe restrictions on the termination of leases were also in place.   The 1994 Act was replaced by a new act in 2001, designed to improve the situation, which maintained all restrictions on the termination of leases and obligations in respect of maintenance of property and also introduced a new procedure for controlling rent increases. For instance, it was not possible to charge rent at a level exceeding 3% of the reconstruction value of the property in question. In the applicant’s case that amounted to 1,285 Polish zlotys (PLN) in 2004 (equivalent to 316 euros).   The Polish Constitutional Court found that the rent-control scheme under both the   1994   Act and the 2001 Act was unconstitutional and that it had placed a disproportionate and excessive burden on landlords. The provisions in question were repealed.   From 10 October 2000 until 31 December 2004 the applicant was able to increase the rent she charged by about 10% to PLN 5.15 a square metre (approximately 1.27 euros).   On 1 January 2005, new provisions entered into force which allowed, for the first time, rents exceeding 3% of the reconstruction value of the property being rented to increase by not more than 10% a year.   The applicant complains that she has neither been able to regain possession of or use her property or charge adequate rent for its lease. She relies on Article 1 of Protocol No. 1 (protection of property) to the Convention.   On 22 February 2005 a Chamber of the Court held that there had been a violation of Article 1 of Protocol No. 1 and considered that the violation originated in a systemic problem linked to the malfunctioning of Polish legislation (see press release no. 81 from 2005).         Wednesday 21 June 2006   Draon v. France and Maurice v. France   The applicants are French nationals: Christine and Lionel Draon, born in 1962 and 1961 respectively and living in Rosny-sous-bois (France), and Sylvia and Didier Maurice, born in 1965 and 1962 respectively and living in Bouligny (France). Mr and Mrs Maurice also acted on behalf of their two daughters, aged 15 and eight.   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. However, the Law of 4 March 2002, better known as the “Kouchner Law” or “anti-Perruche Law” [3] – which applied to pending proceedings – came into force while their actions were pending. They were therefore awarded compensation only for non-pecuniary damage and disruption to their lives, and not for the special burdens arising from their child’s disability.   New provisions have since been introduced, by the Law of 11 February 2005, to reform the system for compensating disability in France.   Draon v. France When five months pregnant with their first child, Mrs Draon had an ultrasound scan which disclosed an anomaly in the development of the foetus. An amniocentesis was performed in August 1996 at the Saint-Antoine Hospital, for which the Paris Health Authority ( Assistance Publique-Hôpitaux de Paris – AP-HP ) is responsible. No foetal abnormality was detected. However, Mr and Mrs Draon’s child, who was born in December 1996, very soon presented serious cerebral malformations, a major disability and total, permanent invalidity requiring full-time specialist care. AP-HP 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 AP-HP. The urgent-applications judge made them an interim award of approximately EUR   155,500 in total. While their case was being examined on the merits, the Law 4 March 2002, which had recently come into force, was applied to their case.   Relying on that Law and on an opinion given by the Conseil d’Etat on 6 December 2002, the Paris Administrative Court ruled on 2   September 2003 that AP-HP had been grossly negligent and had deprived the applicants of the possibility of seeking a voluntary termination of pregnancy on therapeutic grounds. It ruled that they were therefore entitled to compensation. It dismissed the part of the applicants’ claims relating to the special burdens arising from the child’s disability throughout his life, and awarded them EUR 180,000 for non-pecuniary damage and disruption to their lives. An appeal by Mr and Mrs Draon against that judgment is currently pending before 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 AP-HP 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, Mr and Mrs Maurice’s results having been mixed up with those of another family.   The applicants issued proceedings in the administrative courts against AP-HP. The urgent-applications judge made them an interim award of EUR 152,499, which was reduced on appeal to EUR 15,245 under the Law of 4 March 2002, that had come into force in the meantime. In December 2002 the Conseil d’Etat set the interim award at EUR   50,000.   On 25 November 2003 Paris Administrative Court ordered AP-HP to pay Mr and Mrs   Maurice EUR 224,500 to cover non-pecuniary damage and the disruption to their lives, under the Law of 4 March 2002. It dismissed the applicants’ claims relating to the special burdens arising from the child’s disability throughout her life. An appeal by the applicants is currently pending before 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 before Paris Administrative Court of Appeal.   The applicants alleged that the Law of 4 March 2002 had infringed their right to the peaceful enjoyment of their possessions and amounted to a breach of Article 1 of Protocol No. 1. Relying on Article 13 (right to an effective remedy), they also complained that the immediate applicability of that Law to pending proceedings meant that they could no longer obtain compensation, from the person responsible, for the special burdens arising from their child’s disability.   Lastly, the applicants maintained that the legal rules introduced by the Law of 4   March 2002 constituted, among other things, arbitrary interference by the State in their private and family life, as guaranteed by Article 8 (right to respect for private and family life) in that, by depriving them of part of the compensation to which they would have been entitled before the Law entered into force, it prevented them from providing for their children’s needs.   On 6 October 2005 (see press release no. 513 from 2005) the Grand Chamber of the Court held unanimously that there had been a violation of Article   1 of Protocol No.   1, no violation of Article 13 and no violation of Article 8. The Court also considered that the question of Article 41 (just satisfaction) was not ready for decision in respect of pecuniary and non-pecuniary damage.   ***       Press Contacts   Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15) Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54) Beverley Jacobs (telephone: 00 33 (0)3 90 21 54 21)   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. [1] According to information supplied by the Polish Government. [2] Prepared by the Office for Housing and Town Development. [3] .     The Law of 4 March 2002 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 compensation for special burdens arising throughout the child’s life as a result of its disability, whereas such claims could be made under the previous rules.