CONCURRING OPINION OF JUDGE WALSH

I agree with the decision of the Court in all respects.  I am of the opinion that in all the circumstances of the case the applicant had, objectively speaking, a reasonable expectation that his court proceedings would be admissible and that his claim would not be challenged on the ground that in accepting the initial compensation he had thereby elected not to seek compensation in a negligence action.   

CONCURRING OPINION OF JUDGES PEKKANEN AND JAMBREK

We are in agreement with the majority ’ s finding that the applicant did not have a practical, effective right of access to the courts, and that there has accordingly been a breach of Article 6 para . 1 (art. 6-1) of the Convention.  We reached this conclusion, however, by somewhat different reasoning from that of the majority.

France ’ s system of provision for court actions seems to us insufficiently clear to prevent a misunderstanding on the part of applicants as to the procedures for making use of the remedies available to them for obtaining additional compensation for the specific damage sustained.  We arrived at this conclusion, however, mainly because of the differing opinions of the French supreme courts, rather than because of the legislature ’ s intentions as disclosed by the parliamentary proceedings.  We refer here to the Court of Cassation ’ s judgment of 26 January 1994 and to the Conseil d ’ Etat ’ s position in respect of the interpretation of the law in question (section 47(VIII) of the Act of 31 December 1991).

Mr Bellet made efforts to avail himself of different judicial remedies.  He applied to the Paris Administrative Court , made an urgent application to the President of the Paris tribunal de grande instance, cross-appealed to the Paris Court of Appeal and appealed to the Court of Cassation, and he had also submitted a claim to the Compensation Fund.  He clearly tried to gain access to various French courts in order to obtain additional compensation for the damage sustained and did so for an extended period of time, from May 1990 onwards.

The French State established special arrangements and legal procedures for the compensation of haemophiliacs and transfusion patients infected with AIDS.  We note that they were created to provide a legal and judicial response to an urgent, specific public-health and social issue.  In view of the seriousness of the disease contracted and the uncertainty about living long enough to benefit from the compensation fixed by various courts, a legal procedure was provided that was appropriate for cases where compensation had to be afforded as a matter of extreme urgency.

Mr Bellet ’ s illness progressed to the present stage of his living behind closed doors while he unsuccessfully pursued various court actions to gain additional compensation.  It is, in our view, understandable that he should not be able to find his way through the complexity of the provisions and procedures in domestic law with the exactness and thoroughness of a plaintiff in an ordinary situation.

Neither could he at the outset clearly assess the legal consequences of choosing to accept the lump-sum compensation instead of suing on the basis of liability and negligence.  The practical choice Mr Bellet was confronted with was rather between awaiting the outcome of judicial proceedings of uncertain duration and accepting immediate payment of the sum offered by the Fund.

Taking into account the difference of opinion between the French supreme courts and the existence of the special procedure for dealing with the misfortune of which Mr Bellet was a victim, we came to the conclusion that Mr Bellet had adequate reasons for assuming that he should use the procedure specially created to meet his situation.

We wish to stress that the finding of a breach must be interpreted strictly in the light of the special circumstances of the case, which consequently has only a limited value as a precedent.

[1] The case is numbered 21/1995/527/613.  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) 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] Note by the Registrar: for practical reasons this annex will appear not only with the printed version of the judgment (volume 333-B of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.