dissenting OPINION of JUdGE PETTITI joined by JUDGE GÖLcÜKLÜ

(Translation)

I voted against the finding of a violation of Article 6. I took the view that the European Court could not find fault with French law for refusing the principle of two-fold compensation, that is compensation accepted voluntarily from the Fund and paid on a lump-sum basis, in addition to any compensation that might be awarded by a civil court.

This national system is explained and justified by the difference in nature between the two types of compensation. One, in the form of a lump sum, is paid speedily without any obligation to prove negligence or liability; the other requires proof in a criminal or civil court and entails the uncertainty of protracted proceedings.

Few countries have passed legislation on the distressing question of contaminated blood which is so generous and so imbued with the spirit of national solidarity as French legislation.

Moreover, the F.E. case was different from the Bellet case in a number of significant respects, such as the different dates of commencement of the legal proceedings and of submission of the claim to the Fund in relation to the Court of Cassation’s decision interpreting the scope of the law, whose drafting history and passage through Parliament left room at the outset for controversy.

Mr Bellet had pursued his civil action. In response to his appeal on points of law, the Second Civil Division of the Court of Cassation gave a ruling for the first time, on 26 January 1994, on the question whether a person who had accepted a proposal of compensation from the Fund still had standing to bring judicial proceedings. It answered that question in the negative as regards the specific damage resulting from infection. In the present case, by a judgment of 6 June 1997, the plenary Court of Cassation followed the same line, thus giving a definitive interpretation of the law which is binding on the European Court of Human Rights.

While the majority could take the view in the Bellet case that there had been a loss of opportunities, that does not apply in the F.E. case.

F.E. could not have been unaware that an appeal lay to the Paris Court of Appeal, under certain conditions, against a decision by the Fund, because he accepted the compensation without prejudice to his right to exercise the remedies open to him. (Was this an acceptance which deprived him of the right to appeal for the purposes of the law concerned?)

The reasoning of the judgment oscillates between the arguments concerning loss of opportunities and refusal of compensation (two-fold or additional).

On the first point, any loss of opportunities should also be examined in connection with the length of the proceedings pending in the Colmar Court of Appeal and the plenary Court of Cassation. F.E., to begin with, asserted that the Fondation Saint-Marc bore sole liability. After 26 January 1994, he could have contended that he had accepted the compensation without prejudice to his right to exercise the remedies open to him, and that there had therefore not been full acceptance in the legal sense of that term, which would perhaps have given him the right to avail himself of the special appeal to the Paris Court of Appeal. He could also have reserved his right to apply for leave to appeal out of time. In any case, unlike Mr Bellet, he was not unaware of the risk of an unfavourable interpretation of the law’s scope by the Court of Cassation, even though the decision of 26 January 1994 had been delivered by a Division of the Court of Cassation rather than by the plenary court.

The European Court considered that the Bellet and F.E. cases were almost identical.

But the files show that there were numerous differences concerning both factual and legal questions, since the loss of opportunities depended on the timing of the compensation and the chronology of the procedural steps in relation to interpretation of the law. To reason, as the Court has done, on the basis of misunderstandings or lack of clarity, is, it seems to me, insufficient. Loss of a lawsuit through a mistake on a point of law or procedure does not constitute denial of access to a court; that goes well beyond the requirements of Article 6 and reduces procedural law to a matter of litigants’ subjective understanding of the law and procedure.

A litigant’s misunderstanding of legislation and its drafting history (see paragraph 47 of the judgment) does not in my opinion constitute a restriction, for the purposes of the Convention, of access to justice. Although Mr Bellet accepted the compensation in the belief that this acceptance would not deprive him of his right to claim additional compensation, F.E., after the Court of Cassation’s judgment of 26 January 1994, knowing the risk he ran, could have argued in the Colmar Court of Appeal, and later before the Court of Cassation, that he had accepted the compensation without prejudice to his right to bring judicial proceedings, not once and for all. He had not appealed against the Fund’s decision. He could perhaps have tried an application for leave to appeal out of time in respect of the special appeal which lay to the Paris Court of Appeal. He preferred to bring concurrent proceedings in the Colmar Court of Appeal. In such cases victims retain the right to bring proceedings in respect of heads of damage different from those for which the Fund has awarded compensation and on separate grounds, whether civil, criminal or administrative. What the Court of Cassation decided on 6 June 1997, confirming the judgment of 26 January 1994, was that victims could not claim compensation twice over for the same damage (see also Court of Cassation, First Civil Division, 28 April 1998). It therefore excluded the different interpretation of the law based on its drafting history that it had been possible to hold immediately after its enactment. Admittedly, from the humanitarian point of view, one can only regret such a situation and hope that the member States of the Council of Europe will set up procedures and machinery for double or additional compensation, but this remains within the competence of the States or a special European compensation fund. In the absence of such initiatives and possibilities, the European Convention can only offer the Article 6 approach. But can that approach, in the F.E. case, include, as grounds for finding a violation and as a criterion, “a clear, practical opportunity of challenging the amount of compensation in a court” (see paragraph 48 of the judgment)? Is there not a risk that this recent tendency of some of the Court’s judgments will leave too important a place to the subjectivity of litigants to the detriment of procedural principles which are the guarantors of rights?

[1] Notes by the Registrar

. The case is numbered 60 / 1998 / 963 / 1178 . 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 of Court A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] . Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1998), but a copy of the Commission’s report is obtainable from the registry.