PROCEDURE

The case originated in an application (no. 39594/98) against the French Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mrs Marlène Kress (“the applicant”), on 30 December 1997.

The applicant was represented by her counsel. The French Government (“the Government”) were represented by their Agent.

Relying on Article 6 § 1 of the Convention, the applicant complained of the excessive length of administrative proceedings she had brought against Strasbourg Hospital. She also complained under Article 6 of the Convention that she had not had a fair trial, because it had been impossible to inspect the submissions of the Government Commissioner (commissaire du gouvernement) before the hearing and reply to them at the hearing, and because the Commissioner had taken part in the deliberations.

The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

It was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). In a decision of 2 February 1999 the Third Section decided to communicate the application to the Government for written observations.

On 29 February 2000, in the light of the observations submitted by the parties, the application was declared admissible by a Chamber of the Third Section, composed of the following judges: Sir Nicolas Bratza, President, Mr J.-P. Costa, Mrs F. Tulkens, Mr W. Fuhrmann, Mr K. Jungwiert, Mr K. Traja, Mr M. Ugrekhelidze, and also of Mrs S. Dollé, Section Registrar [Note by the Registry. The Court’s decision is obtainable from the Registry]. On the same day, the Section announced its intention of relinquishing jurisdiction in favour of the Grand Chamber, under Article 30 of the Convention.

On 23 May 2000, there having been no objections from the parties, the Third Section confirmed its decision to relinquish jurisdiction, in accordance with Rule 72 § 2.

The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.

On 18 April 2000 the Court of Cassation and the Conseil d’Etat Bar applied for leave to intervene under Article 36 § 2 of the Convention and Rule 61. The President of the Court gave leave and the Bar produced a memorial on 3 July 2000.

A hearing took place in public in the Human Rights Building, Strasbourg, on 11 October 2000 (Rule 59 § 2). There appeared before the Court: (a) for the Government Mr R. Abraham, Director of Legal Affairs, Ministry of Foreign Affairs, Agent; (b) for the applicant Mr A. Schwab, of the Saverne Bar, Counsel. The Court heard addresses by them.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

On 8 April 1986 the applicant, who was then aged 44, underwent a gynaecological operation under general anaesthetic at Strasbourg Hospital.

On wakening, she suffered a neurological syndrome. In the days that followed she suffered a further vascular accident and her shoulder was scalded when a cup of tea was upset. Since then she has been 90% disabled; she is hemiplegic, has difficulty coordinating her upper limbs, can speak only with difficulty and suffers from double vision.

On 27 May 1986 the applicant made an urgent application to the President of the Strasbourg Administrative Court seeking the appointment of an expert. In an order of 28 May 1986 the President appointed an expert, who filed a report on 2 June 1986 in which he concluded that there had not been any medical error.

On 6 August 1987 (after a preliminary claim of 22 June 1987 had been refused) the applicant brought an action for damages against Strasbourg Hospital in the Strasbourg Administrative Court.

In submissions of 21 October 1987 the applicant criticised the findings set out in the report of 2 June 1986 and applied for a detailed, thorough expert opinion.

In letters of 10 November 1988 and 11 January 1989 the applicant’s lawyers sought to have the case set down for hearing. The clerk of the Administrative Court replied (in letters of 18 November 1988 and 13 January 1989) that on account of the backlog of work, it was not currently possible to foresee the date on which the case might be set down for hearing.

The hearing was eventually listed for 19 April 1990.

In a judgment delivered on 25 May 1990 the Strasbourg Administrative Court ordered further inquiries into the facts with a view to commissioning a report from a panel of two experts.

On 23 October 1990 the experts filed the following findings: “As regards the cerebral arterial thromboses that occurred on 8 April and 17 April 1986, nothing in Mrs Kress’s clinical condition or in the results of the tests made them foreseeable. The treatment of this complication was appropriate to the patient’s state of health and in accordance with the current state of scientific knowledge. As regards the scald on the left shoulder, the experts attribute it to a lack of assistance and organisation in the department.”

The applicant criticised that expert report and in reasoned submissions of 22 March 1991 quantified the damage she had sustained.

At the request of Strasbourg Hospital the hearing set down for 4 April 1991 was postponed to 13 June 1991.

In a judgment delivered on 5 September 1991 the Strasbourg Administrative Court assessed the amount of damage sustained by the applicant as a result of her scalded shoulder at 5,000 French francs and dismissed the rest of the claim for damages.

The applicant appealed against that judgment to the Nancy Administrative Court of Appeal. In a judgment of 8 April 1993 that court dismissed the appeal on the ground that whatever the seriousness of the consequences of the surgical operation, the circumstances of the hospitalisation had not disclosed any failure to provide information about the nature of the operation and its foreseeable consequences or any negligence or presumption of negligence in the organisation or running of the relevant department.

On 11 June 1993 the applicant, represented by a member of the Court of Cassation and Conseil d’Etat Bar, appealed on points of law against that judgment to the Conseil d’Etat and filed full pleadings on 11 October 1993. She referred to a judgment of the Judicial Assembly of the Conseil d’Etat of 9 April 1993 that had been delivered in the meantime (the Bianchi judgment of 9 April 1993, Revue française de droit administratif 1993, p. 574), in which no-fault liability in hospital cases had been extended to cover the risks of treatment, and in her sole ground of appeal relied on the fact that the hospital should in her case have been found liable without fault. She submitted that there had been a causal link between the operation and the damage, that the existence of the risk had been known, even if it was statistically only a very slight one, and that she had, within the meaning of the Bianchi judgment, sustained extremely serious special damage.

Strasbourg Hospital filed a defence on 12 September 1994 and the applicant replied on 16 January 1995. The hospital lodged a rejoinder on 10 March 1995.

The case was heard in public on 18 June 1997 by the 5th and 3rd sections sitting together and considered on the basis of a report by the 5th section. After hearing the observations of the reporting judge, those of the parties’ lawyers and, last, the Government Commissioner’s submissions, the Conseil d’Etat reserved judgment. Counsel for the applicant then produced a memorandum for the deliberations (note en délibéré) in which it was argued that the Government Commissioner had wrongly expressed doubts as to the extreme seriousness of the applicant’s afflictions since the operation of 8 April 1986.

In a judgment delivered on 30 July 1997 the Conseil d’Etat dismissed the applicant’s appeal on the following grounds: “It appears from the evidence submitted to the courts below that Mrs Kress underwent a hysterectomy on 8 April 1986 at the Strasbourg Regional Hospital Centre. Following that operation, which took place normally, post-operative complications, which supervened twice, caused serious, disabling after-effects and damage for which Mr and Mrs Kress sought compensation, relying in the courts below on mistakes that they alleged had been made by the hospital. Before this Court Mr and Mrs Kress have maintained for the first time that the hospital should have been held liable without fault. On the basis of the unappealable assessment it made of the facts, the Nancy Administrative Court of Appeal inevitably held that no-fault liability on the part of the Strasbourg Regional Hospital Centre for the damage relied on by Mrs Kress had not been made out. In so doing, that court did not make any error of law, seeing that it is apparent from the evidence submitted to the courts below that the circumstances in which such liability could be incurred did not obtain.”