DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON, JOINED BY JUDGES PALM AND LEVITS

Article 6 para . 1 of the Convention (art. 6-1) provides that everyone is entitled to a fair hearing by a tribunal. One of the elements of a fair hearing is the right to adversarial proceedings. Each party must have a realistic possibility of commenting on all material filed with the court before the final decision is taken. The expert appointed by the administrative court did not constitute a tribunal, and the French courts held that his report was admissible even though it had not been produced in accordance with French law. It was for them to rule on the evidence in the case; the role of the European Court , as set out in Article 34 of the judgment, is to assess the fairness of the proceedings as a whole.

The report was communicated to the applicants on 19 July 1985 and the administrative court held a hearing on 8 November 1988 and gave judgment on 29 November 1988. Thus the applicants had more than three years in which to comment on the report and to challenge the findings in it, for instance with the help of a medical expert of their own. Moreover, if they had any requests or complaints to make concerning the expert ’ s investigation, they could have made them just as effectively to the administrative court. However they did not do so. Under these circumstances the failure to give them an opportunity to participate in the expert ’ s investigations cannot constitute a breach of the principle of equality of arms as guaranteed by the Convention. There was in our view no violation of Article 6 para . 1 (art. 6-1).

DISSENTING OPINION OF JUDGE PETTITI

(Translation)

I voted with the minority in favour of the view that there had not been a violation of Article 6 of the Convention (art. 6).

The majority considered, wrongly in my view, that all the requirements of the adversarial principle entailed by Article 6 (art. 6) must also be satisfied during the stage when a technical expert report is prepared.

Under Article 6 (art. 6), however, the rules on adversarial proceedings must be distinguished from those on evidence.

In the instant case the proceedings before the national courts were essentially concerned with assessing the facts and the evidence.

The court could in theory have determined the merits on the basis of the post-mortem report.

According to the adage, the judge is the expert among experts. He is continually called upon to rule on technical expert reports, even though he is not a specialist.

In the instant case, in its legitimate concern to ascertain the truth and in order to have at its disposal all authoritative opinions, the administrative court ordered a technical expert report on 28 March 1975 before giving judgment; that expert report consisted of laboratory analyses.

It is of course to be regretted that the expert report did not comply with the adversarial principle and especially that the members of the CHRN interviewed by the expert were not brought face to face with the applicants. A reading of the expert report shows how technical the issue was, the determination of which did not apparently depend on witness evidence:

"However, there must have been an atopic susceptibility (that is to say a predisposition to sensitisation through medication without any revealing signs) triggered first by the Epontol , use of which was later discarded, and then by the halothane, and exacerbated in terms of enzymatic action by a third substance, Nesdonal .

There is a plausible diagnostic hypothesis, constructed after the event and which, given that there were no warning signs of intolerance, obviously cannot call into question the choice or rejection of one anaesthetic rather than another.

An idiosyncrasy, in other words a reaction peculiar to her as an individual, must therefore have been responsible for Miss Mantovanelli ’ s death, brought about by a particularly strong autoimmune process ... There are no frequency figures for such exceptional cases.

(Halothane ’ s toxicity does not appear to be implicated and is in any case still widely disputed today. However, in so far as halothane is still suspected of causing necrosis of the liver, statistics show that this phenomenon does not occur in more than 1 in 10,000 cases.)"

Admittedly, the expert report was irregular, but that did not vitiate the entire proceedings. The court could have ordered a second expert report if scientific arguments contrary to those in the report had been submitted to it. The applicants merely asked for the expert report to be set aside and for a fresh expert report to be produced, and did not give grounds for their request.

When ruling as it did, the court took the unchallenged expert report into account as a piece of evidence. It was not bound by that report. It was (contrary to what is said in paragraph 36 of the judgment) itself in a position to assess its validity, especially as the expert report did not contradict the post-mortem report. If the court had had before it a scientific report filed by the applicants that seriously called in question the expert report, it would almost certainly have ordered a second expert report. It was not required to do so of its own motion.

That is a matter for the national courts to assess. The Convention does not lay down rules on evidence as such or on the admissibility of evidence or the manner in which evidence is obtained under the national code of procedure (see the Schenk v. Switzerland j udgment of 12 July 1988, Series A no. 140).

The requirements of the adversarial principle and of a fair trial do not apply just to the stage when the technical expert report is prepared, considered in isolation (and different methods are moreover required for a technical laboratory report from those needed for a report relating, for instance, to a road accident), where the courts of first instance and of appeal can both ensure that there is adversarial argument before them that enables the parties to challenge the evidence and the expert report (contrast paragraph 36 of the judgment).

Whatever the tragic aspects of the case and its effects on the family, in assessing the compatibility of the domestic decision with the requirements of Article 6 of the Convention (art. 6), the Chamber should have analysed the case in this manner in order to be consistent with the Court ’ s previous case-law and to ensure conformity to it in the future.

The Court should, in my opinion, have held that there had been no violation of Article 6 (art. 6) in order to avoid confusing the rules on trial and adversarial proceedings with those governing evidence and its assessment by the national court. Finding that an expert report does not comply with formal legal requirements does not prevent a court from drawing conclusions from the facts that have been submitted to it. That was so in the present case.

[1] The case is numbered 8/1996/627/810. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997-II), but a copy of the Commission's report is obtainable from the registry.