JOINT PARTLY DISSENTING OPINION OF JUDGES ROZAKIS, Sir Nicolas BRATZA, BONELLO, LOUCAIDES AND JO Č IEN É

1. We are in agreement with the conclusion and reasoning of the majority on all aspects of the case, save as to their conclusion that it is unnecessary to examine separately the applicants ’ complaint under Article 6 § 1 of the Convention. In our view such an examination is called for in the present case, consistently with the approach of the Court in the cases of Stran Greek Refineries and Stratis Andreadis v. Greece (judgment of 9 December 1994, Series A no. 301-B) and National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom (judgment of 23 October 1997, Reports of Judgments and Decisions , 1997-VII, p. 2326). Article 6 of the Convention and Article 1 of Protocol No. 1 reflect two separate and distinct Convention values, both of fundamental importance – the rule of law and the fair administration of justice on the one hand and the peaceful enjoyment of possessions, on the other. While the facts at the basis of the complaints under the two articles are the same, the issues raised and the relevant governing principles are not and, unlike the majority, we do not consider that the Court ’ s conclusion that Article 1 has been violated is such as to relieve the Court of the duty of examining the applicants ’ complaint under Article 6.

2. T he Court has previously held that the legislature is not in principle precluded in civil matters from regulating rights arising from legislation in force through new retrospective provisions. However, the principle of the rule of law and the notion of fair trial enshrined in Article 6 preclude any interference by the legislature – other than on compelling grounds of the general interest – with the administration of justice designed to influence the judicial determination of a dispute (see Zielinski and Pradal & Gonzales and Others v. France [GC], nos. 24864/94 and 34165/96 to 34173/96, ECHR 1999-VII and, among other authorities, Anagnostopoulos and Others v. Greece , judgment of 7 November 2000, Reports of Judgments and Decisions 2000-XI, §§ 20 and 21).

3. In the present case, the Law of March 2002, which introduced a new system of compensation for the prejudice sustained by a person born with a disability, provided, in paragraph I in fine of section 1, that its provisions were to be applicable to pending proceedings, with the exception of those in which there had been an irrevocable decision on the principle of compensation. As a result of the application of that provision, the parents of children whose disability had not been detected before birth on account of negligence, like the applicants, were deprived of a considerable part of the compensation they could previously have claimed by virtue of the precedent set in the Quarez case. Thus the law complained of, being applicable to the judicial proceedings which the applicants had brought and which were still

in progress, had the effect of changing their outcome once and for all by retrospectively limiting the damages potentially recoverable in the proceedings to the applicants ’ disadvantage (see paragraph 78 above).

4. The Government submitted that the Law of 4 March 2002 was not directed specifically at the dispute which gave rise to the present case, or any particular dispute. While it is true that, unlike the situation in the Stran Greek case, the impugned legislation in the present case did not target particular litigation, this is not in our view decisive. Of greater significance is the fact that the contested provisions manifestly had the aim, and the effect, of radically altering the applicable compensation rules and were, by their express terms, designed to apply to all pending judicial proceedings, including those of the applicants, in which no irrevocable decision had been taken on the principle of compensation.

5. The Government further relied on the fact that, in further contrast to the Stran Greek case, the State was not itself directly party to the dispute which gave rise to the present case. This fact, again, is not in our view of central importance, the principle which precludes intervention by the legislature in pending legal proceedings being founded not only the requirement of equality of arms between the parties to the proceedings but also on more general requirements of Article 6 of the Convention relating to the rule of law and the separation of powers. In any event, while the State was not as such a party to the proceedings in question in the present case, we note that the participation of AP-HP, a public administrative establishment under the supervision of four Ministers, necessarily had major implications for the public finances and that the State was, accordingly, directly affected by the outcome of the proceedings to which the legislation expressly related.

6. While, as in the case of the complaint under Article 1 of the Protocol, we do not seek to question the validity of the general-interest considerations which motivated the introduction of the Law of 4 March 2002, the question remains whether those reasons were, individually or collectively, sufficiently cogent to justify the legislature in extending the measures to legal proceedings which were already in progress. In our view, neither the parliamentary proceedings which preceded the enactment of the provisions in question - in which the main concern raised was the need to end the effects of the Perruche judgment - nor the considerations set out by the Conseil d ’ Etat in its opinion of 6 December 2002 and relied on by the Government (see paragraphs 51 and 62 above), can be regarded as affording sufficiently compelling grounds of the general interest to justify making the provisions of the first paragraph of section 1 applicable to pending proceedings.

7. Consequently, we consider that the application of section 1 of the Law of 4 March 2002 to the proceedings brought by the applicants, and pending at the time the Law entered into force, violated the applicants ’ rights under Article 6 § 1 of the Convention

SEPARATE OPINION OF JUDGE BONELLO

1. I voted for the minority ’ s finding that in the present case there has been a violation of both Article 6 § 1 and of Article 1 of Protocol No. 1, for the reasons set out in the joint dissenting opinion which I fully endorse.

2. While agreeing with the reasons of the Court for finding a violation of Article 1 of Protocol No. 1, and with the minority in finding a violation of Article 6 § 1, I would add another set of considerations which influenced my resolution to vote for a double breach.

3. Law no. 303 of 4 March 2002 (hereinafter “the 2002 Law”) bred two consequences which, in my view, were both equally unacceptable. Firstly, it interfered in a manipulative manner with the outcome of an already pending court case, with highly adverse results for the applicants ’ Convention rights. Secondly, it did this by spawning a new, privileged, immune class of culpable doctors.

4. The 2002 Law peremptorily introduced the novelty of exempting some health professionals or establishments retroactively from the consequences of proved medical error. All other medical practitioners and establishments were previously answerable, and still are fully answerable, for the moral and material damage arising from their deficiencies. Professionals and establishments which fail in their function to detect disabilities in the foetus before birth have now been rewarded with a blanket exemption from liability for any material damage arising from their negligence.

5. Before 2002 all doctors in France were equal before the law. Like all other professionals (lawyers, architects etc.) they were fully liable in negligence. By virtue of the 2002 Law, those who practice pre-natal detection are now less equal than others. Their negligence carries a considerably lighter price tag than that of all other professionals. In my book, unequal disposal of equal guilt is no less pernicious than equal disposal of unequal guilt.

6. The internationally accepted norm remains the principle of liability. Every person who has, through malice or negligence, caused harm to others is bound to make good all damage occasioned. The 2002 Law has derogated from this principle. All medical practitioners remain subject to the principle and consequences of liability, except those working in one particular branch of medicine. The latter the 2002 Law has protected in an eminently privileged fortress, totally immune from suits in material damages. I see this discriminatory immunity not so much in the light of Article 14, but rather as another element to factor in when assessing the proportionality of the interference.

7. The 2002 Law not only improperly thwarted the applicants ’ Convention rights, but did this through the medium of an improper agency: the creation of a total immunity from the risk of material damages. Immunity, detestable by nature, appears doubly so when wielded to maim fundamental rights.

8. Some immunities, like diplomatic immunity, judicial immunity and partial parliamentary immunity, are the result of historical imperatives and functional necessities. They enjoy the legitimation of long-standing acceptance and tradition, and a proven advantageousness that somehow neutralises the odium of a protection that is unequal between the immune and the non-immune.

9. But to ring in, pace the 21 st century, a new immunity tailored to the comfort of one handpicked class of one handpicked profession was, to my way of thinking, the most efficient way of achieving a disagreeable disturbance of Convention rights.

10. The creation of brand-new immunities from suit, as in the present case, automatically brings into play a new suspect classification, which should have had the double effect of shifting the onus of justification onto the Government and of burdening the Court with a duty of more stringent scrutiny.

11. The impunity engineered by the 2002 Law was intended to salvage some medical practitioners from the consequences of their own deficit of diligence, while abandoning all others to full responsibility in negligence and tort. This has nothing to do with other so-called acceptable “immunities”, like the capping of the liability of air carriers. That limitation comes into being by prior international agreement and is contractually accepted beforehand by the eventual victim of damage through the mere purchase of an air ticket publicising that limitation.

12. The Government, which lost no opportunity of re-crafting the law to their own financial advantage, have lost the opportunity of justifying, by compelling reasons, the creation of a suspect unequal protection; and the Court has not scrutinized all the more stringently the emergence of this “parvenu” immunity.

[1] . That is, in accordance with Article 2 of the Decree of 5 November 1870 on the promulgation of laws and decrees, then in force: “in Paris, one clear day after promulgation; everywhere else, within the territory of each administrative district ( arrondissement ), one clear day after the copy of the Official Gazette containing them reaches the chief-town of the district”.