PARTLY DISSENTING OPINION OF JUDGES MACDONALD AND CARRILLO SALCEDO

(Translation)

We concur in the Court ’ s judgment in so far as it is held that there was a breach of Article 6 para. 1 (art. 6-1) of the Convention in respect of the length of the proceedings, but unlike the majority we consider that the applicant did not receive a fair trial within the meaning of that provision.

The Conseil d ’ État dismissed the applicant ’ s action against the hospital and his application for an expert to be appointed, holding that "it appear[ed] from the preliminary examination of the case and the evidence before [it] that there [was] no direct relation of cause and effect between the alleged deterioration in the appellant ’ s health and the treatment he underwent ...".

It appears that the Conseil d ’ État did not take any investigative steps and that the evidence was in the applicant ’ s favour. While it is true that in the Strasbourg Administrative Court the applicant had not adduced any prima facie evidence of a causal link between the injection complained of and the alleged damage, it is inaccurate to say that he did not do so in the Conseil d ’ État : Dr Rayel ’ s certificate of 7 November 1978 emphasised that an expert opinion was "essential" (see paragraph 35 of the judgment) and Dr Roujansky ’ s report refers to the injected drug as "highly dangerous" (see paragraph 36 of the judgment). Appended to that report, moreover, was an article by Dr Ebtinger highlighting the fact that amphetamine shock was absolutely contra-indicated in cases of the illness from which the applicant had been diagnosed as suffering (see paragraph 12 of the judgment).

As Mr Gözübüyük and Mr Martinez pointed out in their dissenting opinion appended to the Commission ’ s report, the very purpose of the expert opinion sought was to determine the causal link between the hospital ’ s negligence and the alleged disablement. It is undoubted that the causal link between disputed medical treatment and damage sustained cannot be established by a court unaided. The court must call upon a field of knowledge which is not its own, i.e. "medical science", which can only assist the court by means of an expert opinion, and if necessary a second opinion, the process being attended by safeguards provided for in the rules of procedure. It was unfair and even illogical to refuse the applicant an expert opinion, which was the only means of proving the relationship of cause and effect, and to reject his request on the precise ground that he had not established this causal link. It was the more important to appoint an expert as the treatment administered was not the one that had been prescribed and was carried out without the patient ’ s consent (see paragraph 11 of the judgment).

Admittedly, assessment of the evidence is a matter for the national courts alone and is accordingly not subject to review by the Court. However, having regard to the important part played in the Convention system by the right to a fair trial (see, among other authorities, the Barberà , Messegué and Jabardo judgment of 6 December 1988, Series A no. 146, p. 31, para. 68), it is not open to a national court not to order a measure without which the person seeking it would be put at a disadvantage vis-à-vis the opposing party, such that the balance which must prevail in the taking of evidence would be upset. In the instant case the applicant was contending alone against the administrative authorities, despite the requirements of the adversarial principle, so that the only way of restoring the balance was precisely to appoint an expert. Since such a balance was not ensured in the proceedings, there was a breach of the principle of a fair trial under Article 6 para. 1 (art. 6-1) of the Convention.

[*]  Note by the Registrar: The case is numbered 6/1988/150/204.  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.