Information Note on the Court’s case-law 15

February 2000

Kress v. France (dec.) - 39594/98

Decision 29.2.2000 [Section III]

Article 6

Civil proceedings

Article 6-1

Fair hearing

Equality of arms

Non-notification of submissions of the commissaire du Gouvernement : admissible

While in hospital in Strasbourg, after undergoing an operation under a general anaesthetic, the applicant suffered vascular complications resu lting in ninety per cent disability and a shoulder burn. On an application for the appointment of an expert; the President of the Strasbourg Administrative Court appointed a doctor who found no medical malpractice. In 1987 the applicant lodged an appeal wi th the Administrative Court for compensation for damage caused by the hospital. In May 1990 the Administrative Court ordered a new expert opinion and in September 1991 the Court delivered its opinion in which it ordered compensation only for the damage res ulting from the shoulder burn. In April 1993 the Nancy Administrative Court of Appeal dismissed the applicant’s appeal. She lodged an appeal on points of law with the Conseil d’Etat . She had no knowledge of the submissions of the commissaire du Gouvernemen t before he delivered them at the hearing, at a time when the applicant no longer had the right to address the court. She nevertheless made a final point in a note sent to the court while it was deliberating and before it reached a decision. The Conseil d’ Etat rejected the appeal in its decision of 30 July 1997.

Admissible under Article 6 § 1 (fair hearing and within a reasonable time) and relinquishment of jurisdiction in the case in favour of the Grand Chamber subject to the parties’ agreement. (Relinquis hment of jurisdiction in favour of the Grand Chamber is recommended not only because of the importance of the decision for France but also because of the particular interest of the complaint in terms of European law. Since the post of Advocate-General of t he European Court of Justice is an office which has been greatly inspired by the French commissaire du Gouvernement system, it would also be exposed to the same criticism. However the ECJ, in a decision of 4 February 2000 dismissed a complaint similar to t he one in this case relating to the role of its Advocate-General.).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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