DISS ENTING OPINION OF JUDGE PETTITI

(Translation)

I have not voted with the majority in favour of holding that there has been a breach of Article 6 (art. 6).  That decision may give satisfaction in humanitarian terms but, in my view, it does not do so in terms of the case-law on applying the European Convention.  I have nevertheless voted with the majority on the application of Article 50 (art. 50) of the Convention.

The main problem raised by Mr Bellet ’ s application was that of the availability of a court action to assert his objections and rights.

Were there procedures and remedies in France whereby infected haemophiliacs and AIDS sufferers could obtain compensation? On this point the judgment delivered by the Chamber is contrary to the European Court of Human Rights ’ case-law (the Golder , Deweer , Ashingdane , Airey , Powell and Rayner , Fayed and British-American Tobacco Company Ltd series of judgments).

The judgment even uses the wording of the Golder and Ashingdane judgments (see paragraph 36) in order to provide reasoning for the opposite result.  In Ashingdane it was held that there was no breach.

The Chamber argued mainly on the basis of the concept of no access to the courts, whereas the question to be determined is whether there may in this particular case have been either no actions and remedies or else ineffective remedies for the purposes of Article 6 (art. 6) of the Convention.

On the one hand, the judgment rejects the "surrealistic" reasoning of the Commission: "the applicant in fact had no choice ... assuming that there was a settlement, the applicant did not freely consent to it ... it was tainted with an insurmountable error in the applicant ’ s favour ... [the] consent was fundamentally vitiated". Hypothetical reasoning not in accordance with the facts, but the judgment nevertheless reaches the same conclusion.

On the other hand, the Court notes the Commission ’ s mistake in saying that there was no possible appeal after acceptance of the Compensation Fund ’ s offer but draws no practical inferences from this.

The Court mentions three possible procedures and actions in domestic law - administrative; civil, for damages; and a special appeal to the Paris Court of Appeal - but it considers only the Court of Cassation ’ s judgment upholding the Paris Court of Appeal ’ s judgment on the lack of standing to take proceedings.

AIDS sufferers and haemophiliacs could also take criminal proceedings against the management of the National Blood Transfusion Centre and the prescribing physicians; and even an action against ministers in the Court of Justice of the Republic.  Many associations of infected people and infected individuals have used the criminal remedy in the Criminal Court and have obtained convictions and substantial damages.

Of all the Council of Europe member States that have experienced the tragedy of infection, France is the only one to have provided for multiple rights of action: an action against the State for negligence and also against the National Blood Transfusion Centre; an application to the Administrative Court; a civil action against doctors and private transfusion centres; criminal proceedings against doctors and private transfusion centres; proceedings in the Court of Justice of the Republic against ministers and the Prime Minister (the only example in Europe in this field).

Furthermore, provision has been made for lump-sum compensation allowing victims to obtain compensation without having to prove liability and negligence on the part of the State or the National Blood Transfusion Centre, and a solidarity fund has been set up.

A special appeal lies to the Paris Court of Appeal if the offer is refused, and in several cases an appeal has been allowed even after the offer has been accepted and compensation paid.

In the instant case Mr Bellet considered that in the light of the legislative history and the judgment obtained in the tribunal de grande instance against which an appeal was lodged, he had been deprived of a legal action in that the Court of Appeal, upheld by the Court of Cassation, had ruled that the application was inadmissible "for want of any interest enabling proceedings to be brought".

The Court has accepted this argument on grounds different from those advanced by the Commission.  The Commission concluded as follows:

"56. ...

In view of the seriousness of the disease contracted by the applicant, on the one hand, and the uncertainty of living long enough to benefit from the compensation fixed by the civil courts, on the other hand, the Commission considers that the applicant in fact had no choice.  He cannot therefore be blamed, given the critical and precarious situation regarding his future, for accepting the offer made by the Fund or for failing to object to an arrangement which clearly needed to be concluded as a matter of extreme urgency.  The Commission therefore considers that even assuming that there was a settlement, the applicant did not freely consent to it.

57. Moreover, the Commission considers that the applicant could not have known either from the text of the Act or the preparatory documents, and still less from the interpretation given by the Conseil d ’ Etat , that his acceptance of the Fund ’ s offer would have the consequences drawn by the Court of Appeal and the Court of Cassation.

The Commission notes furthermore that the Fund ’ s offer included the condition that the applicant inform the Fund accordingly should he decide, having accepted the offer, to bring legal proceedings. In the circumstances, the Commission considers that, if indeed there was a settlement, it was tainted with an insurmountable error in the applicant ’ s favour, this error being caused by various institutions rendering the respondent State liable.

58. To conclude, the Commission is of the opinion that, assuming the applicant did waive his right to a fair trial with the guarantees set forth in Article 6 (art. 6) of the Convention, his consent was fundamentally vitiated."

The majority of the Chamber appear to have followed the argument put forward at the hearing by the Delegate of the Commission, who on the basis of the parliamentary proceedings conce rning the Act concluded that Mr Bellet was bound to believe that he had every chance of winning his case against the National Blood Transfusion Foundation in the tribunal de grande instance and in the Court of Appeal, notwithstanding that he had in principle accepted the lump-sum compensation which dispensed him from proving negligence.

The applicant considered that he did not have to bring such actions.  The Court has not taken into account the major impact of the solidarity machinery which made it unnecessary for the plaintiff to establish negligence.  The quid pro quo for this advantage was a lump-sum settlement which the victim could refuse or challenge.

There was therefore a choice: either act on the basis of liability for negligence or seek lump-sum compensation (State ’ s liability without fault).

Because of his condition the applicant chose to proceed against the National Blood Transfusion Foundation in the civil tribunal de grande instance, in the first place by means of an urgent application for an interim order, without precise grounds but referring to negligence in the application for an advance, and then, in the main proceedings, on 19 May 1992, this time relying on negligent breach of contract, that is to say a different ground.  In its judgment of 14 September 1992 the court found in his favour.  On an appeal by the National Blood Transfusion Foundation, the case went to the Court of Appeal.  The applicant cross-appealed.  The Compensation Fund was joined to the proceedings by third-party notice.  The parties pleaded on the merits, a fact not referred to in the Court of Appeal ’ s judgment.

Did the law leave open all parallel actions?  It seems not, from reading all the legislative provisions.

At the stage of the appeal against the judgment of the tribunal de grande instance, the Paris Court of Appeal learned that the applicant had accepted the offer and received advances from the Compensation Fund.

In the operative provisions of its judgment the Court of Appeal, after holding that it followed from Mr Bellet ’ s acceptance of the offer that he no longer had any interest enabling him to bring proceedings, set aside the judgment of the court below and found against the applicant.  The Court of Cassation dismissed an appeal on points of law on 26 January 1994, "the ground of appeal being unfounded".

The Commission and the Court note this dismissal of the case "for want of any interest enabling proceedings to be brought" and infer from it that the applicant was prevented from bringing his action and therefore from having access to a court.

But access to a court means, according to earlier decisions of the European Court, that judicial remedies must be available, and does not mean that if a plaintiff has chosen the wrong action where several remedies are open to him it follows that he has not had access to a court.

The applicant, who had accepted the Fund ’ s offer by 18 July 1992 at the latest, had available to him the special appeal to the Paris Court of Appeal.

No argument can be based on the date of the judgments given in this connection in favour of other infected individuals.  Under the Convention, what matters is whether statutory provision is made for a remedy and not the dates of the earliest decisions applying the provision (see paragraph 32 of the judgment).  The uncertainty pinpointed in the de Geouffre de la Pradelle case related to the juncture at which the time allowed for appealing began to run and not to the choice of procedure.

It would seem that the Court has taken the view that the applicant could in all good faith believe that in the light of the parliamentary debates, the legislature wanted victims to retain their standing to take proceedings (see paragraph 37 of the judgment).  But in domestic law a misreading of a statutory provision does not confer a fresh right of action.

The fact that there is more than one remedy may mislead a plaintiff as to the choice to be made, without there however being any lack of access to the courts.  The opinion of the Cultural Affairs Committee of the National Assembly (see paragraphs 19 and 30 of the judgment) was not adopted by the legislature.  Later private members ’ bills have no bearing.

In the first place, what is the weight of the parliamentary debates in the face of the Act and the European Convention on Human Rights?  The quotations from ministers ’ and MPs ’ speeches are not decisive.  What matters is the vote on the amendments.  An d the ones referred to by Mr Bellet were rejected by the Assembly.  No proceedings were brought to challenge the constitutionality of the Act.  It is for the national courts to resort to parliamentary proceedings in order to interpret an Act if the Act itself is not "clear".  This does not, to my mind, come within the scope of the European Court ’ s powers of interpretation.

Even if one were to give consideration to the parliamentary statement on "the other parallel remedies available", these could refer to civil actions against doctors and private centres and criminal proceedings, and not necessarily to taking proceedings in the tribunal de grande instance when lump-sum compensation had been accepted in which the quid pro quo to the victim ’ s advantage was the exemption from having to prove negligence.  At all events, appeal against the offer was possible.

Admittedly, the scope of the Chamber ’ s judgment is limited as the Chamber decided the case on its particular facts and in the light of the special circumstances, namely, according to its interpretation, the fact that the applicant had won his case in the tribunal de grande instance and could not expect that his action would be dismissed on the ground that he lacked an interest enabling him to bring proceedings, when submissions on the merits had been made to the Court of Appeal, in particular by the intervening third party.

Furthermore, the Paris Court of Appeal ’ s case-law on the special appeal had not been consolidated by then.

But the reasoning adopted appears to me to be inadequate and not in accordance with the European Court ’ s case-law in giving so much importance to the litigant ’ s subjective impressions of the law.  A litigant ’ s mistake made in "good faith" does not necessarily warrant a finding that there has been a breach of Article 6 (art. 6) of the Convention on account of a "lack of access to the courts".  In the instant case the law was clear once the amendments had been rejected, even if the parliamentary proceedings disclosed conflicting interpretations of it.  But national parliamentary proceedings remain subject to interpretation by the national courts, not by the European Court .  The Court has noted the exemplary solidarity underlying the compensation scheme, the only one of its kind within the member States of the Council of Europe.

The Court ’ s final reason (see paragraph 37 of the judgment) - "All in all, the system was not sufficiently clear or sufficiently attended by safeguards to prevent a misunderstanding ..." - does not, to my mind, reflect any applicable principle of domestic law and does not appear to come within the ambit of Article 6 (art. 6) of the Convention.

The law was clear and foreseeable, and its effects were proportionate.  It displayed a solidarity unknown in other States.

Certainly, any compensation scheme can be given a humanitarian reading, but the Convention does not yet make it possible to rule solely on the basis of an applicant ’ s subjective impressions, notwithstanding the victim ’ s tragic circumstances.