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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> X v. FRANCE - 18020/91 [1992] ECHR 45 (31 March 1992) URL: http://www.bailii.org/eu/cases/ECHR/1992/45.html Cite as: (1992) 14 EHRR 483, [1992] ECHR 45, 14 EHRR 483

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In the case of X v. France*,

The European Court of Human Rights, sitting, in accordance

with Article 43 (art. 43) of the Convention for the Protection of

Human Rights and Fundamental Freedoms ("the Convention")** and the

relevant provisions of the Rules of Court, as a Chamber composed of

the following judges:

Mr R. Ryssdal, President,

Mr J. Cremona,

Mr F. Gölcüklü,

Mr L.-E. Pettiti,

Mr R. Macdonald,

Mr A. Spielmann,

Mr N. Valticos,

Mr J.M. Morenilla,

Mr A.B. Baka,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 25 January and 24 March

1992,

Delivers the following judgment which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 81/1991/333/406. 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.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came

into force on 1 January 1990.

_______________

PROCEDURE

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 18 October 1991,

within the three-month period laid down by Article 32 para. 1 and

Article 47 (art. 32-1, art. 47) of the Convention. It originated in

an application (no. 18020/91) against the French Republic lodged

with the Commission under Article 25 (art. 25) by a French national,

Mr X, on 19 February 1991. The applicant, who had requested the

Court not to disclose his identity, died on 2 February 1992; his

parents expressed the wish that the proceedings should be continued.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby France recognised

the compulsory jurisdiction of the Court (Article 46) (art. 46).

The object of the request was to obtain a decision as to whether the

facts of the case disclosed a breach by the respondent State of its

obligations under Article 6 para. 1 (art. 6-1).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that

he wished to take part in the proceedings and designated the lawyers

who would represent him (Rule 30).

3. The Chamber to be constituted included ex officio

Mr L.-E. Pettiti, the elected judge of French nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the

President of the Court (Rule 21 para. 3 (b)). On 25 October 1991,

in the presence of the Registrar, the President drew by lot the

names of the other seven members, namely Mr J. Cremona, Mr F.

Gölcüklü, Mr R. Macdonald, Mr A. Spielmann, Mr N. Valticos,

Mr J.M. Morenilla and Mr A.B. Baka (Article 43 in fine of the

Convention and Rule 21 para. 4) (art. 43).

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, through the Registrar, consulted the Agent of

the French Government ("the Government"), the Delegate of the

Commission and the applicant's lawyers on the organisation of the

procedure (Rules 37 para. 1 and 38). Pursuant to the order made in

consequence, the Registrar received the applicant's memorial on

12 December 1991, the Government's memorial on 23 December 1991 and

the written observations of the Delegate of the Commission on

13 January 1992.

5. On 28 November 1991 Mr Ryssdal gave leave to the French

Association of Haemophiliacs to submit, pursuant to Rule 37 para. 2,

written observations on the steps which it had taken in similar

cases to the applicant's. These observations reached the registry

on 19 December.

6. On 22 November 1991 the Commission produced the documents in

the proceedings conducted before it, as requested by the Registrar

on the President's instructions.

7. In accordance with the President's decision, the hearing

took place in public in the Human Rights Building, Strasbourg, on

21 January 1992. The Court had held a preparatory meeting

beforehand.

There appeared before the Court:

(a) for the Government

Mr J.-P. Puissochet, Director of Legal

Affairs, Ministry of Foreign Affairs, Agent,

Mr B. Gain, Assistant Director of Human Rights

at the Legal Affairs Department, Ministry of

Foreign Affairs,

Mrs H. Khodoss, Assistant Director for the

organisation of care and medical programmes

at the General Department of Health,

Ministry of Social Affairs and Integration,

Mr P. Chambu, Human Rights Section, Legal Affairs

Department, Ministry of Foreign Affairs,

Dr A. Laporte, AIDS Division, Section for the organisation

of care and medical programmes at the General

Department of Health, Ministry of Social

Affairs and Integration, Counsel;

(b) for the Commission

Mr J.-C. Geus, Delegate;

(c) for the applicant

Mrs E. Lassner, avocate,

Mr F. Thiriez, avocat at the Conseil

d'Etat and the Court of Cassation, Counsel.

The Court heard addresses by Mr Puissochet for the

Government, Mr Geus for the Commission and Mrs Lassner and

Mr Thiriez for the applicant, as well as their answers to its

questions.

AS TO THE FACTS

I. The particular circumstances of the case

8. Mr X, a French national born in 1963, died on

2 February 1992 after several stays in hospital. He lived in Paris

with his parents. He received a State allowance of 3,000 French

francs per month as a disabled adult and did not pursue an

occupation.

9. Mr X was a haemophiliac and had undergone several blood

transfusions, in particular between September 1984 and January 1985

at the Saint-Antoine hospital in Paris. On 21 June 1985 it was

discovered that he was HIV (Human Immunodeficiency Virus) positive.

10. As other haemophiliacs had been infected by HIV, the French

Association of Haemophiliacs tried to obtain compensation from the

State for the damage suffered by its members who had been so

infected. Since it was unable to secure a settlement, the

Association recommended to its members that they should institute

proceedings before the four-year limitation period expired.

A. The preliminary application to the administrative

authority

11. On 1 December 1989 the applicant addressed - as he was

required to do under Article R.102 of the Administrative Courts'

Code (see paragraph 23 below) - a preliminary claim for compensation

to the Minister for Solidarity, Health and Social Protection. He

sought an amount of 2,500,000 francs; he had, he maintained, been

infected by HIV as a result of the negligent delay of the Minister

in implementing appropriate rules for the supply of blood products.

Six hundred and forty-nine other such claims were sent to

the Minister.

12. On 30 March 1990, the day before the expiry of the statutory

limit of four months (see paragraph 23 below), the Director General

for Health rejected Mr X's claim.

B. The application to the administrative courts

13. Mr X applied for legal aid on 27 April 1990; he was granted

it on 8 June. On 30 May he filed an application in the Paris

Administrative Court for the annulment of the ministerial decision

and for an order requiring the State to pay him compensation of

2,500,000 francs plus statutory interest.

Some four hundred applications lodged by persons who were in

the same situation were brought before the administrative courts.

They were assigned to the Paris Administrative Court and raised

questions some of which were common to all the cases (responsibility

of the State in fixing the rules for blood transfusions) and some of

which were peculiar to each individual case (date and conditions of

infection).

1. The filing of the first memorials

14. On 11 July 1990 the applicant lodged a memorial, which the

administrative court forwarded to the Minister on 22 August; he

stressed in particular the consequences for him of the discovery

that he was HIV positive and of "the idea that he was potentially

afflicted with an incurable disease". In a supplementary memorial

of 29 October 1990 he emphasised the urgency of his case:

"... the applicant's state of health has deteriorated since

September 1990 as is attested by the medical certificate

produced.

It is for this reason that he asks the court to apply

Article R.111 [(see paragraph 23 below)] of the

Administrative Courts' Code, i.e. to give formal notice to

the defendant Minister to the effect that he must make his

submissions.

Such notice would make it possible to respect the

applicant's right to have his case heard within a reasonable

time in accordance with Article 6 (art. 6) of the European

Convention on Human Rights.

This right must be respected taking into account his state

of health and particularly because, as the Minister

expressly rejected the preliminary application, the

applicant's file has necessarily already been examined; the

authorities do not therefore require any special extension

of time in order to prepare their defence such as would

justify an infringement of the applicant's right under the

European Convention on Human Rights.

FOR THESE REASONS

The applicant requests the Paris Administrative Court to

give to the Minister for Health, Solidarity and Social

Protection formal notice that he is to produce his defence

submissions speedily, and maintains his previous

submissions."

The medical certificate in question, which had been drawn up

by Professor Frottier, stated:

"I the undersigned, Senior Consultant, certify that Mr [X]

... has for a long time been a patient in the haemostasis

and blood transfusion department of the Saint-Antoine

establishment of the CNTS (Centre national de transfusion

sanguine - National Blood Transfusion Centre).

He was taken into hospital for the first time in the

department of infectious diseases from 17 to

27 September 1990, then he was re-admitted to the

Saint-Antoine hospital on 5 October 1990, first in the

general medical ward, then in intensive care and then, from

11 October 1990, in the infectious diseases department,

where he is at present.

His condition warrants his being taken into care for an

indefinite period by a department specialising in the

treatment of infectious diseases.

... ."

15. The Minister for Social Affairs and Solidarity replied by a

memorial dated 12 December 1990, lodged on 21 February 1991 and

communicated to the applicant on 27 February. In it he called upon

the court to "dismiss the applicant's claim", but added:

"However, in the event of the court's finding itself able

to accept the principle of negligence on the part of the

State, I would ask you to appoint an expert with a view to

establishing whether the damage for which the applicant

seeks compensation is genuinely attributable to such

negligence."

16. On 3 April 1991 the applicant submitted his reply, in which

he asked that the application for an expert opinion be rejected. He

stated:

"The applicant claims primarily that the application for an

expert opinion should be dismissed, as such an opinion was

requested by the defendant Minister only to establish

whether the damage sustained by the applicant was indeed

attributable to his negligence.

As the causal connection has been clearly established by

the evidence in the applicant's file, the only question to

be ruled on by the court is whether the Minister was

negligent.

This assessment of whether the delay in taking the measures

for protection of public health which he was under a duty to

take was negligent may be made in the light of the evidence

before the court, which can in addition request the

communication of the expert opinion of Professor Jacquillat

before the tribunal de grande instance.

In the further alternative, should the court call for a new

expert (Professor Jacquillat unfortunately having died), the

expert appointed should be able to have access to his

predecessor's work."

2. The additional investigative measures and the

end of the written proceedings

17. On 5 April, 27 May and 28 June 1991, the President of the

relevant section of the Paris Administrative Court asked the

Minister or the Director of the National Blood Transfusion

Foundation, as the case may be, for certain information and

documents; they replied to these requests on 25 April, 6 June,

26 July and 30 October 1991. These various investigative measures

concerned all the litigation involving infected haemophiliacs

pending before the Paris Administrative Court.

One of the documents which was added to the file as a result

was a report entitled "Blood Transfusion and AIDS in 1985.

Chronology of the facts and decisions with regard to haemophiliacs";

the General Inspectorate of Social Affairs (I.G.A.S.) had drawn up

this report on 10 September 1991, at the request of the Minister for

Social Affairs and Integration and the Deputy Minister for Health on

the previous 10 June. It set out the facts and analysed the

decisions taken, essentially between 1983 and 1985, with a view to

ensuring "safe transfusions" over the first years of the development

of AIDS.

Mr X was informed of these various investigative measures on

6 September 1991. The documents produced both by the authorities

and the National Blood Transfusion Foundation were communicated to

him.

18. On 10 and 17 September 1991 he submitted two supplementary

memorials in which he stated that he had now "developed full AIDS"

(acquired immune deficiency syndrome). The second memorial

contained an application for interim relief in the form of an

advance (see paragraph 23 below).

The Ministry of Social Affairs and Solidarity lodged a

further defence memorial on 30 October and on 7 November the court

asked the applicant to produce various medical documents.

3. The trial

19. The hearing in the Paris Administrative Court was held on

18 December 1991. Two days later the court dismissed Mr X's claims

on the following grounds:

"...

Mr [X] claims that the State is liable on account of

alleged negligence on the part of the Minister responsible

for Health in exercising the powers of health policy vested

in him pursuant to the combined provisions of Articles L.

668 and L. 669 of the Public Health Code; in support of his

submissions the applicant argues that the Minister delayed

prohibiting the distribution to haemophiliacs of blood

products contaminated with the human immunodeficiency virus

(HIV) although, as early as 1983, the process of heat-

treating blood made it possible to inactivate the virus; he

further complains that the relevant ministry did not inform

the haemophiliac community of the serious risks incurred

through the use of such products; the ministerial authority

is also criticised for having, in the exercise of its powers

of health policy, on 23 July 1985, postponed until

1 October 1985 the ending of reimbursement by health

insurance funds of the blood products used by the

haemophiliacs, a measure which it is agreed amounted in fact

to a prohibition owing to the high cost of the products

known as `factors VIII and IX';

In a new pleading filed on 11 July 1990, Mr [X] argues in

the alternative that the State is also liable on the ground

of liability for presumed negligence in the organisation and

functioning of the public service of blood transfusion; he

further alleges that the State is liable on the basis of the

risk arising from the reckless activity of the public blood

transfusion service ;

The liability of the State

The public blood transfusion service in France is run by

private associations, having none of the prerogatives of a

public authority, which are moreover exclusively exercised

by the State as holder of the specific powers of health

policy (as indicated above); the State is, however, neither

prescriber, nor manufacturer, nor supplier of the offending

blood products[;] accordingly its liability may be incurred

only on account of negligent acts committed in the exercise

of its regulatory powers and it is for the applicant to

prove that such negligence occurred;

The investigation shows that progress in scientific

knowledge concerning HIV, whose first pathological

manifestations appeared as early as 1980, from the point of

view both of its transmission and of the techniques for its

inactivation, was very slow and was the subject of

controversy within the scientific community itself; in

particular, although the process of heat-treating blood was

approved by the American health authorities as early as the

beginning of 1983, this technique was developed to combat

the hepatitis virus; its effectiveness against HIV remained

purely hypothetical for several months; moreover, some

researchers feared that the use of this technique would be

likely to have an adverse effect on the products' clotting

and auto-immunising property; although such fears proved

unfounded, an assessment of the liability incurred must

necessarily be made on the basis of the scientific knowledge

available at the time; in confining itself to issuing, by

way of a circular on 20 June 1983, a recommendation

concerning the selection of blood donors, for the

information of donors and doctors at transfusion centres

about the potential risks of infection, the administrative

authority did not therefore commit a negligent act such as

to render it liable; the same applies, for identical

reasons, to the lack of information furnished to the

haemophiliac community concerning the risks to which they

were exposed;

However, after this date scientific knowledge constantly

progressed; the State, which was moreover an ex officio

member of the National Blood Transfusion Foundation, could

not fail to have been aware both of such progress and of the

spread of the epidemic, and it could not plead the lack of

availability of reliable HIV screening tests in order to

justify its "wait-and-see" policy once cases of AIDS in the

haemophiliac community had revealed the existence of a

statistically significant causal relationship between the

administration of blood product derivatives and HIV

infection; even granted that there remained some

uncertainties concerning hypothetical side effects of the

heat-treatment technique at the beginning of 1985, the

revelation of the scale of the predicted health catastrophe

demanded that the distribution of contaminated blood

products be halted rigorously and without delay;

The investigation, and in particular the report of the

General Inspectorate for Social Affairs, shows that the

ministerial authority was informed at the latest and in

unequivocal terms on 12 March 1985 of the very strong

probability that in the Paris region "all blood products

prepared from pools of Parisian donors [were] currently

contaminated"; the author of the report appositely noted

that the importance of this message did not seem to have

been perceived; in failing to adopt immediately a measure

prohibiting the distribution of such products, either by

legislation or taking appropriate practical measures, the

authority responsible for health policy thus committed a

negligent act such as to render the State liable;

Moreover, when on 23 July 1985 the authority correctly

assessed the danger to health in deciding that non-heat-

treated blood products should no longer be reimbursed, it

saw fit to postpone the date on which its decision was to

take effect until 1 October 1985; given the certainty

established at that time that all blood products were

contaminated, it cannot, in order to justify opting for a

transitional period, plead either the consent of the

haemophiliac community, which had in any case not been

accurately informed of the scale of the catastrophe, or an

alleged need to maintain haemophiliacs' self-sufficiency,

while decontaminated products were available on the

international market;

On the other hand, the physiological consequences of re-

infection of those who were already HIV positive on

12 March 1985, made possible through the shortcomings of the

State referred to above, are entirely hypothetical in the

present state of scientific knowledge; consequently, the

alleged damage from re-infection is purely contingent and

cannot give rise to a right to compensation;

It follows from all the foregoing that the State is liable

in respect of haemophiliacs who were infected by HIV in the

course of transfusion of non-heat-treated blood products,

during the period of liability defined above, between

12 March and 1 October 1985;

Although the State, as indicated above, is neither the

prescriber, nor the manufacturer, nor the supplier of the

offending blood products, and although it is for the courts

alone to assess whether the blood transfusion centres have

incurred liability, nonetheless the task of such centres is

to provide a public service, and accordingly there are

grounds for the administrative court to order the State to

pay compensation for the whole of the damage suffered;

The causal relationship between the damage suffered

by Mr [X] and the liability of the State

Even if Mr [X], who received for the treatment of his

haemophilia not clotting factors VIII or IX, which it has

been established above were negligently distributed, but A

cryoprecipitates, may validly claim that the State is

liable, the case-file shows that he was found to be HIV

positive on 20 March 1985, a condition, which, taking into

account an irreducible period of seroconversion, must be

regarded as having actually arisen prior to the beginning of

the period of the State's liability defined above, and

consequently the submissions of his application must be

dismissed;"

20. As the trial court had given its decision, the application

for an advance was rejected by an order of 15 January 1992 (see

paragraph 18 above).

4. Before the Paris Administrative Court of Appeal

21. On 20 January 1992 Mr X appealed to the Paris Administrative

Court of Appeal; the proceedings in that court, which have been

continued by his parents, are still pending.

II. The existing compensation machinery

22. The participants in the Strasbourg proceedings provided the

Court with information concerning the various schemes for

compensating AIDS victims introduced since 10 July 1989, in

particular by Law no. 91-1406 of 31 December 1991 "on various social

welfare provisions" (Journal officiel de la République française of

4 January 1992).

III. The relevant procedural law

23. At the material time the Administrative Courts' Code

contained, inter alia, the following provisions:

Article R.102

"Except in cases concerning public works, proceedings may

not be instituted in the Administrative Court otherwise than

in the form of an appeal against a decision; such an appeal

shall be lodged within two months of the notification or the

publication of the contested decision.

Where no reply is forthcoming from the relevant authority

for more than four months, that silence is to be construed

as a decision rejecting the complaint.

... "

Article R.111

"The President of the Administrative Court shall give a

formal warning (mise en demeure) to the relevant authority

or to a party who has failed to comply with the time-limit

laid down pursuant to Articles R.105 and R.110; in a case of

force majeure, a new and final time-limit may be accorded."

Article R.129

"The President of the Administrative Court or of the

Administrative Court of Appeal, or the judge delegated by

one of the latter, may award an advance to a creditor whose

application on the merits is pending before the court in

question, where the existence of an obligation cannot

seriously be contested. He may, even of his own motion,

make the payment of the advance subject to the lodging of a

security."

Article R.142

"Immediately after the application instituting the

proceedings has been registered with the registry, the

President of the court or, in Paris, the President of the

section to which the application has been transmitted, shall

appoint a rapporteur.

Under the authority of the President of the competent

court, the rapporteur shall, having regard to the

circumstances of the case, fix the time-limit to be given,

if necessary, to the parties for the production of

supplementary memorials, observations, statements of defence

or replies. He may request the parties to supply any

evidence or documents relevant to the solution of the

dispute, to be added to the file so as to be accessible to

all parties."

Article R.182

"A member of the Administrative Court or of the

Administrative Court of Appeal may be assigned by the

competent court or by the latter's President to carry out

any investigative measures other than those provided for in

sections 1 to 4 of this chapter."

PROCEEDINGS BEFORE THE COMMISSION

24. Mr X lodged his application with the Commission on

19 February 1991 alleging that his case had not been heard within a

reasonable time as required under Article 6 para. 1 (art. 6-1) of

the Convention.

25. The Commission declared the application (no. 18020/91)

admissible on 12 July 1991.

In its report of 17 October 1991 (Article 31) (art. 31), it

expressed the opinion, by thirteen votes to two, that there had been

a violation of Article 6 para. 1 (art. 6-1). The full text of its

opinion and the dissenting opinion contained in the report is

reproduced as an annex to this judgment*.

_______________

* Note by the Registrar: for practical reasons this annex will

appear only with the printed version of the judgment (volume 234-C

of Series A of the Publications of the Court), but a copy of the

Commission's report is obtainable from the registry.

_______________

AS TO THE LAW

I. PRELIMINARY OBSERVATION

26. The applicant died on 2 February 1992. In a letter of

6 February his parents expressed their wish to continue the

proceedings.

In such circumstances the Commission has sometimes struck

out of its list cases concerning compliance with the reasonable time

requirement laid down in Article 6 para. 1 (art. 6-1) of the

Convention. It has taken the view that the complaint was so closely

linked to the person of the deceased that the heirs could not claim

to have a sufficient interest to justify the continuation of the

examination of the application (reports of 9 October 1982 on

application no. 8261/78, Kofler v. Italy, Decisions and Reports

no. 30, p. 9, paras. 16-17, and of 13 January 1992 on application

no. 12973/87, Mathes v. Austria, paras. 18-20).

The Court, however, in accordance with its own case-law,

accepts in the present case that Mr X's father and mother are now

entitled to take his place (see, inter alia, the Vocaturo v. Italy

judgment of 24 May 1991, Series A no. 206-C, p. 29, para. 2, the

G. v. Italy judgment of 27 February 1992, Series A no. 228-F, p.65,

para. 2, and the Pandolfelli and Palumbo v. Italy judgment of

27 February 1992, Series A no. 231-B, p.16, para. 2).

II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)

27. The applicant complained of the time taken to examine the

action which he had brought against the State in the administrative

courts. He alleged a violation of Article 6 para. 1 (art. 6-1) of

the Convention, according to which:

"In the determination of his civil rights and obligations

..., everyone is entitled to a ... hearing within a

reasonable time by [a] ... tribunal ... ."

A. Applicability of Article 6 para. 1 (art. 6-1)

28. The applicant and the Commission both considered that this

provision was applicable in the present case.

29. The Government took the opposite view. In instituting

proceedings in the administrative courts, Mr X had challenged the

Minister's delay in using the powers relating to health policy which

Articles L. 668 and L. 669, taken together, of the Public Health

Code conferred on him. His action had been founded exclusively on

the State's liability for alleged negligence in the exercise of its

regulatory authority, which in France fell outside the scope of the

principles of the civil law and could not be classified as "civil".

In addition, the legal problems raised by Mr X's application

differed considerably from those in issue in the H. v. France case

(judgment of 24 October 1989, Series A no. 162); the general

negligence deriving from the rules concerning the supply of blood

products could not be regarded as equivalent to the individual

negligence of a doctor who had prescribed inappropriate treatment.

30. As the Court has consistently held, the notion of "civil

rights and obligations" is not to be interpreted solely by reference

to the respondent State's domestic law and Article 6 para. 1

(art. 6-1) applies irrespective of the parties' status, be it

private or public, and of the nature of the legislation which

governs the manner in which the dispute is to be determined; it is

sufficient that the outcome of the proceedings should be decisive

for private rights and obligations.

That is indeed the case in this instance, in view of the

purpose of the action, so that Article 6 para. 1 (art. 6-1) is

applicable.

B. Compliance with Article 6 para. 1 (art. 6-1)

1. Period to be taken into consideration

31. The period to be taken into consideration began on

1 December 1989 when the applicant filed his preliminary claim with

the Minister for Solidarity, Health and Social Protection (see

paragraph 11 above). It has not yet ended, as Mr X appealed to the

Paris Administrative Court of Appeal on 20 January 1992 (see

paragraph 21 above). It has therefore already lasted more than two

years.

2. Reasonableness of the length of the proceedings

32. The reasonableness of the length of proceedings is to be

assessed in the light of the circumstances of the case and having

regard to the criteria laid down in the Court's case-law, in

particular the complexity of the case, the behaviour of the

applicant and the conduct of the relevant authorities. On the

latter point, what is at stake for the applicant in the litigation

has to be taken into account in certain cases (see, mutatis

mutandis, the H. v. the United Kingdom judgment of 8 July 1987,

Series A no. 120-B, pp. 59 and 62-63, paras. 71 and 85, and the Bock

v. Germany judgment of 29 March 1989, Series A no. 150, pp. 18 and

23, paras. 38 and 48-49).

(a) Complexity of the case

33. According to Mr X, the proceedings did not give rise to any

particular difficulty because they concerned typical questions of

liability: namely whether there had been negligence, whether there

had been any damage and whether there was a causal connection

between the two. Furthermore, the administrative court could have

given judgment without the report drawn up by the I.G.A.S. (see

paragraph 17 above).

34. That is also in substance the Commission's opinion. In 1989

the relevant authorities had already had available to them for

several years all the information which they needed to decide the

case without delay.

35. The Government invoked the very exceptional nature of the

dispute, which raised not merely the question of the liability of a

medical establishment for prescribing treatment, but also the more

complex and general problem of the liability of the State for

negligence in the exercise of its power to regulate blood products

and derivatives. They cited in support of this view the report of

the I.G.A.S. That document showed that at the time when Mr X's

application was introduced, and until the completion of the report,

the relevant authorities had lacked the information necessary to

determine whether, if at all, the State authorities were liable. It

demonstrated, by drawing attention to the nature and the number of

the problems involved, the complexity of the case. The report

pointed out that for a long time and for various reasons the

scientific community had been divided on the matter.

36. In the Court's opinion the case was one of some complexity

and investigations could have been necessary to determine the

State's liability and its extent. However, the Government had

probably been aware for a long time that proceedings were imminent.

It would have been possible for them to obtain much of the relevant

information and they ought to have commissioned an objective report

on the question of liability immediately after the commencement of

the cases against them.

(b). The applicant's behaviour

37. The Government criticised the applicant for not having

produced until 11 July 1990 medical information on his personal

condition and for having, prior to that, expressed himself in very

general terms, which failed to make clear that he had developed full

AIDS. Urgency in this kind of case could not be assessed in the

abstract.

Mr X had also made the mistake of opting for a means of

redress which necessitated a wide-scale investigation and which went

beyond the confines of an action for damages, whereas he could have

brought other proceedings, for instance against the suppliers of the

contaminated plasma or the establishments where the transfusions had

been carried out.

38. The applicant stated in reply that the communication on

11 July 1990 of Professor Frottier's medical certificate had been

intended to confirm an established and undisputed question of fact,

namely that he was HIV positive. As soon as he had developed full

AIDS in the second half of 1990, he had informed the court and

requested it to speed up the examination of his case.

It was true that he could have decided to sue the blood

transfusion centres in the ordinary courts, but he stressed that his

action, like those of the other infected haemophiliacs (see

paragraph 13 above), was intended to challenge the State, on which

it was considered that responsibility really fell.

39. According to the Commission, Mr X displayed normal diligence

and used all the possibilities available to him to galvanise the

investigation.

40. The Court notes that already in his memorial of 11 July 1990

the applicant had emphasised the consequences for him of the

discovery that he was HIV positive and of the "idea that he was

potentially afflicted with an incurable disease"; in his

supplementary memorial of 29 October 1990 he had stated that his

condition had deteriorated (see paragraph 14 above). Even before

the disclosure on 10 September 1991 that he had developed full AIDS

(see paragraph 18 above), he had therefore drawn the administrative

court's attention to the worsening of his condition and the

immediacy of the grave risks with which he was confronted.

The Court adds that the choice of the means of redress for

obtaining compensation fell to the applicant alone.

(c) Conduct of the national authorities

i. The administrative authorities

41. The applicant complained that the relevant Minister had

waited until the last day of the four-month prescribed period

before rejecting the preliminary application and until

21 February 1991 before filing his memorial in the administrative

court.

42. In the Commission's view it is incumbent on the

administrative authorities, when they are the defendants in court

proceedings, to take every necessary measure not only to comply with

the time-limits laid down, but also to ensure that the dispute is

speedily concluded. That had not been the case in this instance.

Moreover, the Government's delay in making public all the details

concerning the infection of numerous haemophiliacs in 1984 and 1985

had contributed to prolonging the proceedings.

43. The Government maintained that a party could not be

criticised for using the entire period prescribed by statute for

replying and that the filing of the ministerial defence memorial had

not been indispensable for the continuation of the proceedings.

44. The Court can accept this argument only in so far as the

nature and the importance of what is at stake for the applicant

permit (see paragraph 47 below).

ii. The judicial authorities

45. The applicant acknowledged that the French administrative

courts took on average two years to give judgment and that the

examination of his case had not suffered any really abnormal delay.

He argued nevertheless that his case - like those of the other

infected haemophiliacs - ought to have been dealt with as a matter

of urgency because the life expectancy of the persons concerned was

of from 16.7 to 28.5 months.

Yet the court had not communicated the memorial of

11 July 1990 to the ministry until 22 August, over a month later.

The President-judge-rapporteur accorded the defendant the usual

three months to reply thereto, whereas, in view of the nature of the

case, he could have reduced this period; he ought to have directed

the Minister to submit his memorial once the time-limit had expired,

especially as the applicant had requested him to do so in his

memorial of 29 October 1990. The court had not ordered additional

investigative measures until 5 April 1991, one month and ten days

after receiving the Minister's memorial. Finally, if it considered

that it did not have available to it important information the court

should have had recourse to the powers of inquiry conferred on it by

Articles R. 158 to R.185 of the Administrative Courts' Code, without

its being necessary to wait for the report of the I.G.A.S.

46. In the Government's contention, it is impossible to

establish a rigid link between the length of proceedings and the

individual circumstances of a party to them, because that would

disrupt the functioning of the national courts. Evidently the

courts should proceed more quickly where health and life were at

risk, but they could not determine the length of proceedings on the

basis of the seriousness of an illness.

Far from disregarding the evolution of Mr X's condition, the

proceedings respected the degree of urgency of the case and did not

disclose any failure on the part of the relevant court in this

regard. The interval between the filing of the applicant's initial

memorial and its communication to the Minister was explained by the

processing of mail, which was slightly less rapid in July and

August. The administrative court could not be criticised for

failing to shorten the time-limit for replying accorded to the State

authorities and for not giving them formal notice that they should

produce their statement of defence once that time-limit had expired;

on 5 April 1991 it had called for the communication of additional

documents as a result of the applicant's memorial in reply of

3 April 1991. It had waited for the report of the I.G.A.S. to

appear in order to draw certain conclusions concerning the case.

Moreover, the court had ordered, on 27 May 1991, the second

additional investigative measure through administrative channels

with a view to speeding up the proceedings and had adopted two

further measures on 28 June and 7 November 1991. Finally, it had to

deal with a considerable amount of litigation since some four

hundred cases had been allocated to it (see paragraph 13 above).

47. Like the Commission, the Court takes the view that what was

at stake in the contested proceedings was of crucial importance for

the applicant, having regard to the incurable disease from which he

was suffering and his reduced life expectancy. He was HIV positive

when he lodged his preliminary application with the Minister and

instituted proceedings in the administrative court and he had

subsequently developed full AIDS (see paragraphs 11 and 18 above).

There was a risk that any delay might render the question to be

resolved by the court devoid of purpose. In short, exceptional

diligence was called for in this instance, notwithstanding the

number of cases which were pending, in particular as it was a

controversy the facts of which the Government had been familiar with

for some months and the seriousness of which must have been obvious

to them.

48. Yet the administrative court did not use its powers to make

orders for the speeding up of the progress of the proceedings,

although from 29 October 1990 it was aware of the deterioration in

Mr X's health (see paragraph 40 above). In particular, it was under

a duty, as soon as the case was referred to it, to conduct inquiries

into the liability of the State and to enjoin forcefully the

Minister to produce his defence memorial or to give judgment without

it.

49. Making an overall assessment of the circumstances of the

case, the Court finds that a reasonable time had already been

exceeded when the judgment was delivered on 18 December 1991; the

subsequent proceedings in the Paris Administrative Court of Appeal

cannot redress this failure, whatever the outcome as to the merits.

There has therefore been a violation of Article 6 para. 1

(art. 6-1).

III. APPLICATION OF ARTICLE 50 (art. 50)

50. According to Article 50 (art. 50) of the Convention:

"If the Court finds that a decision or a measure taken by a

legal authority or any other authority of a High Contracting

Party is completely or partially in conflict with the

obligations arising from the ... Convention, and if the

internal law of the said Party allows only partial

reparation to be made for the consequences of this decision

or measure, the decision of the Court shall, if necessary,

afford just satisfaction to the injured party."

A. Damage

51. The applicant claimed in the first place 150,000 francs for

non-pecuniary damage. The length of the proceedings had prevented

him from obtaining the compensation which he had hoped for, and thus

from being able to live independently and in better psychological

conditions for the remaining period of his life; he had received

only an allowance of 3,000 francs a month as a disabled adult.

52. The Government considered the sum claimed excessive.

Despite the offers made before the Commission, the repeated and

growing demands of Mr X had made it impossible to reach a friendly

settlement.

53. The Delegate of the Commission recommended the payment of

compensation, but left it to the Court to assess the amount.

54. The Court finds that the applicant undeniably sustained non-

pecuniary damage. Taking into account the various relevant factors

and making an assessment on an equitable basis in accordance with

Article 50 (art. 50), it awards to his parents the entire

150,000 francs sought.

B. Costs and expenses

55. Mr X also claimed 30,000 francs for costs and expenses

incurred before the Commission and the Court.

56. The Delegate of the Commission considered these claims

justified. The Government did not put forward any objection to

them.

57. The Court allows these claims in their entirety, having

regard to the evidence at its disposal and to its case-law in this

field.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 6 para. 1

(art. 6-1);

2. Holds that the respondent State is to pay to the applicant's

parents, within three months, 150,000 (one hundred and fifty

thousand) French francs for damage and 30,000 (thirty

thousand) francs for costs and expenses.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 31 March 1992.

Signed: For the President

Feyyaz GÖLCÜKLÜ

Judge

Signed: Marc-André EISSEN

Registrar