Resolution CM/ ResDH (2010) 147 [1]

Execution of the judgment of the European Court of Human Rights

Draon and Maurice against France

2 cases concerning a breach of the applicants ’ right to the peaceful enjoyment of their possession

(Applications No. 11810/03 and No. 1513/03, judgments of 21 June 2006, friendly settlement)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they have become final;

Recalling that the applicants ’ complaints declared admissible in these cases concerned a breach of the applicants ’ right to the peaceful enjoyment of their possessions caused by a legislative intervention with unlawfully retroactive effect, in pending judicial proceedings (violation of Article 1 of Protocol No. 1) (see details in Appendix);

Whereas in these cases the Court, having taken formal note of friendly settlement reached by the government of the respondent state and the applicants, and having been satisfied that the settlements were based on respect for human rights as defined in the Convention or its Protocols decided, unanimously, to strike these cases out of its list and took note of the parties ’ undertaking not to request a re-hearing of the cases before the Grand Chamber;

Whereas under these friendly settlements it was agreed that the government of the respondent state would pay the applicants certain sums (see details in Appendix), within three months as from the notification of the judgments;

Recalling that the striking-out of a case which has been declared admissible is effected by means of a judgment which the Court forwards to the Committee of Ministers once it has become final in order to allow it to supervise, in accordance with Article 46, paragraph 2, of the Convention, the execution of any undertakings which may have been attached to the discontinuance, friendly settlement or solution of the matter;

Having invited the government of the respondent state to inform the Committee of the mea s ures taken in order to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention (see details in Appendix);

Having satisfied itself that on 30/06/2006, within the time-limit agreed to under the terms of the friendly settlements, the government of the respondent state paid the applicants the sums provided for in the friendly settlements;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES that it has exe r cised its functions under Article 46, paragraph 2, of the Convention with respect to the commitments subscribed to in these cases and DECIDES to close their examination.

Appendix to Resolution CM/ ResDH (2010)147

Information on the measures taken to comply with the judgments in the cases of

Draon and Maurice against France

Introductory case summary

These cases concern a breach of the applicants ’ right to the peaceful enjoyment of their possessions (violations of Article 1 of Protocol No. 1). The applicants are the parents of children suffering from severe congenital disabilities which were not discovered during a prenatal examination due to a medical error.

In 1998 and 2000, they brought proceedings against the hospital authorities concerned. However, the immediate applicability of the Law of 4/03/2002, which came into force while their actions were still pending, meant that they only obtained judgment against the hospital authorities in respect of the non-pecuniary damage and disruption to their living conditions, and not for the special burdens arising from their children ’ s disability, as they could legitimately have expected in view of the court practice obtaining before the entry into force of the law.

The European Court held, in particular, that although the law was “in the public interest”, it had purely and simply abolished, with retroactive effect, one of the essential heads of damage, which involved very large sums of money and thus constituted an existing “asset” which the applicants had previously "possessed". Furthermore, the Court held that the amount of compensation payable to the applicants under the legislative provisions in force when it delivered its judgments (legislation on national solidarity towards disabled persons, supplemented by a law of 11/02/2005, the effects of which still remained uncertain) was considerably less than, and clearly inadequate compared to, the sum payable under the previous liability rules. The European Court concluded that such a radical interference with the applicants ’ rights had upset the fair balance to be maintained between the demands of the general interest on one hand and the protection of the applicants ’ right to peaceful enjoyment of their possessions on the other.

Holding that the question of the application of Article 41 of the Convention was not ready for decision, the Court invited the parties to conclude a friendly settlement in the matter. At a subsequent stage, the Court took formal note of the two friendly settlements concluded, and struck the case out of the list.

I. Payments of just satisfaction

Details of just satisfaction

Name and application number

Pecuniary and non-pecuniary damage

Costs and expenses

Total

Draon – No 11513/03

2 488 113 EUR

15 244 EUR

2 503 357 EUR

Paid on 30/06/2006

Maurice – No 11810/03

2 440 279 EUR

21 400 EUR

2 461 679 EUR

Paid on 30/06/2006

II. General measures

A legislative amendment does not seem to be necessary in this instance according to the French authorities. The only question raised here deals with the interpretation of the application of the law through time. However, the supreme courts immediately complied with the interpretation provided by the European Court . The Cour de cassation rendered a judgment in a similar case as early as 24/01/2006, ruling that the retroactive application of the law dated 04/03/2002 was incompatible with the Convention. The Conseil d ’ Etat rendered a judgment with the same meaning on 24/02/2006 (CE 24/02/2006 M. et Mme Levenez ).

First of all, this matter only concerned a restricted number of people and has a limited time-span (proceedings pending as at 04/03/2002). Besides, in the light of the new domestic case-law, the application of the impugned legislative text, at issue without amendment, would be rejected by the courts.

More generally, the question of the retroactive application of new legislation during pending judicial proceedings (“ lois de validation législative ”) is being examined in the framework of the group Cabourdin (60796/00).

III. Conclusions of the respondent state

The government considers that measures adopted will prevent similar violations and that France has thus complied with its obligations under Article 46, paragraph 1 of the Convention.

[1] Adopted by the Committee of Ministers on 15 September 2010 at the 1092nd meeting of the Ministers’ Deputies