ITEMID: 001-107508
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF SALIBA AND OTHERS v. MALTA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - reserved;Non-pecuniary damage - award
JUDGES: David Scicluna;George Nicolaou;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 6. The applicants were born in 1922, 1920, 1962, 1958, 1955, 1953, 1935, 1933, 1958, 1959, 1968, 1964, 1961, 1962, 1966, 1957, 1962 and 1959 respectively. The ninth, tenth, twelfth and thirteenth applicants live in the United Kingdom, the eleventh applicant lives in the United States and all the other applicants live in Malta.
7. The applicants or their ancestors (hereinafter “the applicants”) were owners of half an undivided share of several properties in Senglea, namely, five apartments on the ground floor and an adjacent entrance giving access to another twenty apartments above. At the time when the property was acquired, for the price of 345 pounds sterling (approximately 400 euros (“EUR”)), it was leased and occupied by various third parties.
8. This property was damaged during the Second World War and war-damage compensation was due to the owners under the War Damage Ordinance.
9. By a declaration of 27 February 1951 the Government took possession of this property under title of “possession and use” in accordance with the Land Acquisition (Public Purposes) Ordinance (see relevant domestic law). Under this title the owners were paid a yearly acquisition rent of 88 Maltese liras (“MTL”) − approximately EUR 205 for the entire property. This rent was calculated on the rental value declared by the owners to the Land Valuation Office.
10. Subsequently, without requesting prior consent from the owners and without having the plans of the property as it stood, the Government demolished the property and built a new set of apartments on wholly different plans, using part of the property to widen a road. The Government noted that permission for demolition was not necessary since they had legal possession of the property. At the time since the city of Senglea had been totally bombarded and consisted of a pile of rubble, the Government were engaged in an intensive restructuring and construction exercise, taking possession of properties and rebuilding the area with residences for social accommodation. In doing this the applicants alleged that the Government had also appropriated to themselves the war-damage compensation due to them. The Government considered this allegation to be unsubstantiated.
11. On 24 September 1991 the owners wrote to the Commissioner of Lands (“COL”) requesting compensation for their property. They suggested the sum of MTL 105,000 – approximately EUR 244,584. Receipt of their request was acknowledged but the claim remained unanswered.
12. By a declaration of 22 June 1993 the Government acquired the said property under the title of “public tenure” according to the Land Acquisition (Public Purposes) Ordinance (see relevant domestic law). Under this title the owners continued to be paid EUR 205 per year for the entire property.
13. In the meantime, this property was allocated as housing to third parties and included a shop.
14. The applicants pointed out that in 1988 the Government had declared that it would no longer be resorting to takings under titles of “possession and use” or “public tenure”. During political debate, the Deputy Prime Minister had in fact referred to such takings as a nefarious method of acquisition. Indeed, in the past twenty years the Government had converted takings under title of “possession and use” or “public tenure” to takings under “outright purchase”. The latter provided for a more favourable form of compensation, namely the market value of the property at the time of taking. The applicants submitted a number of examples reflecting this allegation (for example, Legal Notice nos. 271 and 272 of 2010 converting previous takings to outright purchases, and declaration no. 578 of 31 August 1990 substituting a declaration of taking under possession and use of a few months earlier with an outright purchase, following complaints by the owners. In the latter case the property had also been demolished and rebuilt and was being used for social housing).
15. The applicants also submitted an expert report valuing the entire property in Senglea at EUR 950,000. Thus, their share as owners of half an undivided share was worth EUR 475,000.
16. On 13 March 1998 the applicants brought constitutional redress proceedings. Invoking Article 1 of Protocol No. 1 to the Convention and Article 14 they requested that the court find a violation of their rights as a consequence of the actions taken by the COL and to grant adequate compensation. Given the way the application was presented the Government did not plead non-exhaustion in respect of the failure of the applicants to institute proceedings before the LAB.
17. The case was set down for hearing on 25 March 1998. On 25 September 1998 the court-appointed architect was requested to conduct an on-site inspection to determine whether the property built by the Government was indeed built on the applicants’ property and what use was being made of the ground floor. The report was submitted on 5 January 1999; however, the court-appointed expert failed to draw up an estimate of the value of the property in issue and the applicants’ request for additional terms of reference to be given to the expert was rejected on 16 December 1999 on the basis that the value of the property was irrelevant to the merits of the claim. Subsequently, on 7 September 2001 the case was adjourned pending negotiations regarding the possibility of reaching an amicable solution to the case. This having failed, the proceedings continued on 20 February 2002 at the applicants’ request. On 14 November 2002 the applicants requested the court to make written submissions. On 1 March 2005 the applicants requested that the case be suspended pending the determination of another constitutional case that could have affected the merits of their case. The hearing of submissions recommenced on 22 May 2007. The Government filed their written submissions on 12 September 2007 and the case was scheduled for judgment on 9 October 2007.
18. By a judgment of 16 October 2008 the Civil Court (First Hall), acting in its constitutional jurisdiction, rejected their claims. It held that, since the applicants were still owners of the said property, the taking under both titles could not be considered a deprivation of property but a control of the use of such property. This control had been necessary in view of the fact that the property had been ruined in the war and that there had been a need to provide social housing in the post-war years. For the same reasons, even assuming that the taking under title of public tenure had been a deprivation of possessions, it would have been in the public interest. In respect of the fair balance required, the court observed that, when the State was pursuing economic reform or social justice, less reimbursement was due than the full market value. While it was true that the recognition rent payable to the applicants was not high and there were no prospects for it to be increased in future years, it was comparable to the rents applicable under the controlled rents regime in force in respect of other old properties. Moreover, in the present case the owners had not been required to incur expenses for the building of the new apartments or for their maintenance and when the property had been originally purchased by the owners’ ancestors it was already rented to third parties to which such regulated rents applied. In consequence, it could not be said that the applicants had borne an excessive burden. The court found that their related complaint under the same provision in respect of the unauthorised demolition could not be examined ratione temporis.
19. Lastly, as to the complaint regarding the difference in treatment as a result of the taking under title of public tenure as opposed to an outright purchase, the court held that the choice was specifically available to the Government. However, according to the policy in force, takings under titles of possession and use were converted to outright purchases in cases where the properties were used for commercial purposes. Other properties, where the Government wished to keep control of the expropriated property, were taken under title of public tenure. While this choice allowed for a large margin of appreciation, the applicants had not proved that other people in an analogous position had been treated more favourably and it did not appear that the policy had been applied arbitrarily or in a discriminatory fashion in the applicants’ case.
20. On appeal, by a judgment of 6 October 2009 the Constitutional Court upheld the first-instance judgment.
21. Primarily, it noted that the applicants had been acquiescent for a period of forty years before they ever solicited any action from the authorities or the relevant courts. On the merits, it confirmed that the interference did not amount to a deprivation since quite apart from retaining the title of ownership, the applicants had continued to receive rent in respect of the said property and to have standing to institute proceedings in respect of complaints relating to the property. Thus, not all the legal rights of the owners had been extinguished.
22. It further noted that the legality of the interference and the public interest involved were not disputed. Indeed, the law (section 12(3) of the Land Acquisition (Public Purposes) Ordinance, prior to its amendment) allowed the State to carry out works on property taken under possession and use, without any specific limitation. Moreover, the property which had been demolished and rebuilt had been taken in a damaged state, and any complaints about the entitlement to war-damage compensation remained unsubstantiated and were irrelevant to the main complaint in issue.
23. The decision as to under which title the property could be taken fell within the margin of appreciation of the State. As to the fair balance and the relevant amount of compensation, while it was true that a rent of EUR 205 was by today’s standards low for the property in issue, the value of the property had to reflect the values applicable in 1951 and not 2009. It noted that the applicants had not even contested the amount of rent due before the Land Arbitration Board (“LAB”) and that their acquiescence had led to a situation where even if they had wanted to do so, they could not prove the boundaries of the property. However, it was also true that the authorities had failed in their duty to draft a report as to the state and the boundaries of the property before they demolished it and created new plans for it. Thus, at this stage it was impossible to determine the actual boundaries of the property and in this state of uncertainty it was not surprising that the applicants had not taken up the procedure before the LAB. In any event, the court was of the view that the complaint was manifestly ill-founded.
24. As to the complaint under Article 14, it noted the witness testimony from the Department of Lands to the effect that takings under absolute purchase had occurred, although they generally related to commercial properties; that there had been cases were the Government had acted differently and acquired property by outright purchase following a taking by title of possession and use; that there was no hard policy regulating what type of taking was required in each case; and that to the witness’s knowledge there had been no political or other specific reasons motivating such an action. The court concluded that the fact that it had been established that other property had been taken by absolute purchase was not enough to prove discriminatory treatment and therefore there could not be a violation of the said provision.
25. The Constitutional Court further criticised the delay of ten and a half years which the first-instance court had taken to decide on the case even though a good part of the delay had been attributable to the applicants who, inter alia, had taken four and a half years to make submissions.
26. Following the introduction of the application with the Court (April 2010), on 3 June 2010 the Government issued a declaration that the property was being taken under title of absolute purchase. The property was valued in terms of section 22 of the Ordinance and the compensation offered was that of EUR 168,417.43.
27. Section 5 of the Land Acquisition (Public Purposes) Ordinance (“the Ordinance”), Chapter 88 of the Laws of Malta provides for three methods of acquisition by the Government of private property. It reads as follows:
“The competent authority may acquire any land required for any public purpose, either -
(a) by the absolute purchase thereof; or
(b) for the possession and use thereof for a stated time, or during such time as the exigencies of the public purpose shall require; or
(c) on public tenure:
Provided that after a competent authority has acquired any land for possession and use or on public tenure the conversion into public tenure or into absolute ownership of the terms upon which such land is held shall always be deemed to be an acquisition of land required for a public purpose and to be in the public interest:
Provided also that, subject to the provisions of articles 14, 15 and 16, a competent authority may acquire land partly by one and partly by another or others of the methods in paragraphs (a), (b) and (c):
Provided further that where the land is to be acquired on behalf and for the use of a third party for a purpose connected with or ancillary to the public interest or utility, the acquisition shall, in every case, be by the absolute purchase of the land.”
28. Section 13 regarding compensation reads, in so far as relevant, as follows:
“ (1) The amount of compensation to be paid for any land required by a competent authority may be determined at any time by agreement between the competent authority and the owner, saving the provisions contained in subarticle (2).
(2) The compensation shall in the case of acquisition of land for temporary possession and use be an acquisition rent and in the case of acquisition of land on public tenure be a recognition rent determined in either case in accordance with the relevant provisions contained in article 27.”
29. The Ordinance provides that compensation in respect of absolute purchase is calculated in accordance with the applicable “fair rent”, as agreed by the parties following the Government’s offer or as established by the LAB. In respect of public tenure, section 27(13) of the Ordinance provides as follows:
“The compensation in respect of the acquisition of any land on public tenure shall be equal to the acquisition rent assessable in respect thereof in accordance with the provisions contained in subarticles (2) to (12), inclusive, of this article, increased (a) by forty per centum (40%) in the case of an old urban tenement and (b) by twenty per centum (20%) in the case of agricultural land.
30. In so far as relevant, section 19(1) and (5) reads as follows:
(1) When land has been acquired by a competent authority for use and possession during such time as the exigencies of the public purpose shall require, the owner may, after the lapse of ten years from the date when possession was taken by the competent authority, apply to the Board for an order that the land be purchased or acquired on public tenure or vacated within a period of one year from the date of the order, and the land shall either be vacated or acquired on public tenure or purchased upon compensation to be determined in accordance with the provisions of this Ordinance or of any Ordinance amending or substituted for this Ordinance.
(5) Public tenure shall of its nature endure in perpetuity, without prejudice to any consolidation by mutual consent or otherwise according to law of that tenure with the residual ownership of the land; and the recognition rent payable in respect thereof shall in every case be unalterable, without prejudice to the effects of any consolidation, total or partial. The residual ownership of land held on public tenure with the inherent right to receive recognition rent, shall, for all purposes of law, be deemed to be an immovable right by reason of the object to which it refers and shall be transferable according to law at the option of the owner, from time to time, of that right.
31. Thus, while a taking under title of “possession and use” is intended for a determinate period of time, a taking under title of “public tenure” is for an indeterminate period of time, possibly forever, and the relevant recognition rent is to remain unaltered for its duration.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-59682
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF HIRVISAARI v. FINLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Georg Ress
TEXT: 8. On 14 February 1992 the pension fund of the applicant’s employer granted the applicant a full temporary disability pension as from 1 March 1992 until 30 June 1992. Thereafter the period of full pension was prolonged several times.
9. On 13 June 1997 the pension fund reviewed its previous decision and changed the applicant’s pension into a partial one for an indefinite period beginning on 1 June 1997. The pension fund reasoned its decision by observing that, according to the documents submitted to the pension fund, the applicant’s capability to work could no longer be considered reduced to such an extent as entitling him to a full disability pension. It was also noted that the applicant could be expected to work at least part-time.
10. The applicant appealed to the Pension Board, which on 4 March 1998 rejected the appeal. The decision was reasoned as follows:
“An employee is entitled to a full disability pension provided that his or her ability to work has continuously been reduced by at least three fifths for a minimum of one year and that this reduction has been caused by an illness, a defect or an injury. The employee’s remaining ability to earn income by carrying out work that would be available to him or her and that he or she could reasonably be expected to perform must be taken into account when assessing the reduction in the employee’s ability to work. Furthermore, the employee’s education, previous activities, age, living conditions and other comparable factors must be taken into consideration.
According to the statements on [the applicant’s] state of health, [the applicant] suffers from depression that has become more difficult during the autumn of 1997. However, [the applicant’s] symptoms must be considered as mild. Therefore, the Pension Board finds [the applicant] still partly capable of working as from 1 June 1997.”
11. The applicant appealed to the Insurance Court. He referred, inter alia, to several medical statements according to which he was for the time being incapable of working because of his mental illness. On 27 October 1998, the Insurance Court rejected the appeal reasoning the decision as follows:
“[The Insurance Court refers to] the reasons given in the Pension Board’s decision. The new material filed while the case was pending [before the Insurance Court] does not change the evaluation of [the applicant’s] disability.”
12. The pension fund decided later, on 27 January 1999, to reject the applicant’s renewed application for a full disability pension instead of partial one. The Pension Board rejected the applicant’s appeal on 25 May 1999. The applicant further appealed to the Insurance Court which, on 22 June 2000, found that the applicant’s capability of working had been reduced at least by 60 percent on account of his illness as from the beginning of December 1999, and ordered the pension fund to grant the applicant a full disability pension as from 1 January 1999.
13. According to the Employee’s Pensions Act (työntekijäin eläkelaki, lag om pension för arbetstagare; 395/1961) and the Employment Pensions Decree (työntekijäin eläkelaki, förordning om pension för arbetstagare) a party who is not satisfied with a decision of a pension fund concerning private sector employment pensions may appeal against such a decision to the Pension Board.
14. The Pension Board applies written procedure. A case file concerning disability pension contains a written doctor’s opinion prepared in accordance with Section 11 of the Employment Pensions Decree. Such a medical opinion shall provide information on symptoms, medical examination results and any other factors affecting the health of the patient. The doctor will also give his or her own opinion on the patient’s capability to work and on his or her possibilities to rehabilitate. The Pension Board’s decision may be appealed against to the Insurance Court.
15. According to Section 9 of the Insurance Court Act (laki vakuutusoikeudesta, lag om försäkringsdomstolen), as in force at the relevant time, the provisions concerning proceedings in ordinary courts were, mutatis mutandis, applied to those in the Insurance Court. The said provisions can be found in the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken). The relevant provisions concerning the statement of reasons for a decision were included in Chapter 24, Section 3 (573/1984), according to which a judgment shall clearly indicate those main reasons and legal provisions on which the decision is based.
16. The provisions in Chapter 24 of the Code of Judicial Procedure were amended in 1998 (Act 165/1998). The new provisions were not applicable to the applicant’s case.
17. Section 9 of the Insurance Court Act has later been amended so as to make the provisions of the Act on Judicial Procedure in Administrative Matters (hallintolainkäyttölaki, förvaltningsprocesslag) applicable in cases which have become pending before the Insurance Court on 1 April 1999 or later.
18. A decision of the Insurance Court may not be appealed against. According to Section 21-d of the Employment Pensions Act, the Insurance Court may annul a final decision, if it is based on incorrect or deficient evidence or is manifestly against the law.
19. In accordance with Section 5 of the Insurance Court Act, the members of the Insurance Court include a doctor in cases where medical assessment is necessary.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-93894
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SOROKINA AND GONCHARENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva
TEXT: 4. The first applicant was born in 1947 and the second in 1949. Both applicants live in the city of Mykolaiv, Ukraine.
5. By two separate judgments of 9 December 2002, the Zavodskoy District Court of Mykolaiv awarded the first applicant 6,932 Ukrainian hryvnyas (UAH) and the second applicant UAH 4,329.73 in salary arrears and other payments, to be paid by the open joint-stock company Chornomormebli (“the debtor company”).
6. The State-owned company Chornomorsky sudnobudivny zavod held 51 % of the shares in the debtor company on the date the judgments were delivered.
7. The judgments became final and enforcement proceedings were instituted.
8. In the period between April and June 2003 the first applicant received UAH 2,425.59 and the second UAH 1,567.38 in part settlement of the judgment debts.
9. By a letter of 15 July 2003 the Bailiffs’ Service notified the applicants that they were unable to collect the full amount of the awards because the financial assets of the debtor company were insufficient. They further explained that other assets could not be sold, as the State owned 51 % of the debtor company’s share capital. The debtor company was therefore subject to the Law of 29 November 2001 “on the Introduction of a Moratorium on the Forced Sale of Property”.
10. Since 5 May 2004 the State has held 9,64 % of the shares in Chornomorsky sudnobudivny zavod.
11. By a letter of 11 April 2006 the State Bailiffs’ Service proposed that the applicants accept the debtor company’s seized property in satisfaction of the judgment debts, but the applicants did not agree.
12. In February 2007 insolvency proceedings were instituted against the debtor company. On 12 June 2007 it was declared insolvent.
13. In September 2007 the enforcement proceedings were discontinued since the debtor company had been declared insolvent. The liquidation proceedings are still pending.
14. The relevant domestic law is summarised in the judgments of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004) and Sokur v. Ukraine (no. 29439/02, §§ 17-22, 26 April 2005).
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-70445
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: GRANDCHAMBER
DATE: 2005
DOCNAME: CASE OF MAURICE v. FRANCE
IMPORTANCE: 1
CONCLUSION: Violation of P1-1;No separate issue under Art.14+P1-1;No separate issue under Art. 6-1;No violation of Art. 13;No violation of Art. 8;Costs and expenses partial award - Convention and domestic proceedings;Just satisfaction reserved
JUDGES: Luzius Wildhaber;Nicolas Bratza
TEXT: 12. The applicants were born in 1962 and 1965 respectively and live in Bouligny.
13. In 1990 the applicants had their first child, A., who was born with type 1 infantile spinal amyotrophy, a genetic disorder causing atrophy of the muscles.
14. In 1992 Mrs Maurice became pregnant again. A prenatal diagnosis conducted at Nancy University Hospital revealed that there was a risk of the unborn child’s being afflicted by the same genetic disorder. The applicants chose to terminate the pregnancy.
15. In 1997 Mrs Maurice, who was pregnant for the third time, again requested a prenatal diagnosis. This was conducted at Briey General Hospital, which sent the sample to the molecular diagnosis laboratory of the Necker Children’s Hospital Group, run by Assistance publique-Hôpitaux de Paris (“AP-HP”). In June 1997, in the light of that laboratory’s diagnosis, Briey General Hospital assured the applicants that the unborn child was not suffering from infantile spinal amyotrophy and was “healthy”.
16. C. was born on 25 September 1997. Less than two years after her birth it became apparent that she too suffered from infantile spinal amyotrophy. On 22 July 1999 a report by the head of the laboratory at the Necker Children’s Hospital in Paris revealed that the mistaken prenatal diagnosis was the result of transposing the results of the analyses relating to the applicants’ family and those of another family, caused by the switching of two bottles.
17. According to medical reports, C. presents grave disorders and objective signs of functional deficiency – frequent falls from which she is unable to get up unassisted, unsteady walk, tiredness at any effort. She needs the assistance of another person (particularly at night in order to turn her over so as to prevent her from suffocating, since she is unable to turn over alone). She cannot sit on her own and moves around with an electric scooter. She has to receive treatment several times a week and cannot be admitted to school because the latter is not suitably equipped. Her family doctor has expressed the view that “one must have reservations until the time of puberty both about motor and respiratory functions and about possible orthopaedic deformations”. These facts gave rise to several sets of proceedings.
18. On 13 November 2000 the applicants submitted a claim to AP-HP seeking compensation for the pecuniary and non-pecuniary damage suffered as a result of C.’s disability.
19. They also submitted to the urgent applications judge at the Paris Administrative Court a request for an interim award and for an expert to be appointed. The latter was appointed by an order issued on 4 December 2000.
20. In an order made on 26 April 2001, the urgent applications judge at the Paris Administrative Court dismissed the request for an interim award on the ground that, as the expert had not yet delivered his report, “AP-HP’s obligation to pay [could] not be regarded as indisputable”.
21. The expert submitted his report on 11 June 2001, concluding that on the occasion of the prenatal diagnosis conducted at the AP-HP laboratory there had not been medical negligence, because “the techniques employed [had been] consistent with the known scientific facts”, but there had been “negligence in the organisation and functioning of the service causing the transposition of results between two families tested at the same time”.
22. The applicants lodged a further application, asking for the hospital to be ordered to pay them an advance of 594,551 euros (EUR). In an order made on 19 December 2001, the urgent applications judge at the Paris Administrative Court ordered AP-HP to pay an advance of EUR 152,449. He observed in particular:
“... it is apparent from the investigation that in May 1997, at Briey General Hospital, a sample of amniotic fluid was taken from [Mrs Maurice] ...; that the analysis of that amniotic fluid was carried out by Assistance publique-Hôpitaux de Paris; that while the results given [to the applicants] indicated that the unborn child was not suffering from infantile spinal amyotrophy, they related to a sample taken from another family tested at the same time and did not mention that, the sample of amniotic fluid having been contaminated by the mother’s blood, they were attended by uncertainty; that [the applicants] are therefore entitled to argue that Assistance publique-Hôpitaux de Paris was guilty of negligent acts or omissions; that those negligent acts wrongly led [the applicants] to the certainty that the child conceived was not suffering from infantile spinal amyotrophy and that [Mrs Maurice’s] pregnancy could be carried to term in the normal way; that these negligent acts must be regarded as the direct causes of the damage sustained by [the applicants] from the disorder from which C. suffers; and that, this being the case, the existence of the obligation claimed by [the applicants] is not seriously open to challenge.”
23. AP-HP appealed. In its submissions it argued that, while the transposition of the analyses had indeed constituted negligence in the organisation and functioning of the public hospital service, the only result of that negligence had been to deprive the applicants of information apt to enlighten their decision to seek a termination of the pregnancy. On the basis of the above-mentioned expert report, AP-HP submitted that even if the samples had not been transposed, the results would have been uncertain, having regard to the presence of the mother’s blood in the sample taken. Consequently, the applicants would not in any case have had reliable information available to them.
24. In a judgment of 13 June 2002, the Paris Administrative Court of Appeal varied the order issued by the urgent applications judge, reducing from EUR 152,449 to EUR 15,245 the amount of the interim award to the applicants. In its judgment it observed:
“Liability:
... after the birth [of C.], as the child had been found to be suffering from [infantile spinal amyotrophy], it emerged that the reason incorrect information had been given to the parents was that the results of the analyses carried out on two patients had been switched. It is not contested that the results were switched by the staff of [AP-HP] ...The negligence thus committed, as a result of which [Mrs Maurice] had no reason to request an additional examination with a view to termination of the pregnancy on therapeutic grounds, must be regarded as the direct cause of the prejudice suffered by [the applicants].”
The court went on to say:
“Entitlement to the interim award requested:
... the infantile spinal amyotrophy from which the child C. suffers is not the direct consequence of the above-mentioned negligence ... Accordingly, pursuant to the provisions ... of paragraph I of section 1 of the Law of 4 March 2002 [on patients’ rights and the quality of the health service – “the Law of 4 March 2002”], [AP-HP] would only be required to compensate the damage sustained by [the applicants], to the exclusion of the ‘special burdens arising throughout the life of the child’ from the latter’s disability, compensation for disability being a matter for national solidarity according to those same provisions. That being so, [AP-HP]’s plea that, for assessment of [the applicants’] right to compensation, the above-mentioned provisions of the Law of 4 March 2002 should have been applied to the dispute constitutes a serious defence against the applicants’ claim at first instance, in the amount awarded by the court below. If the above-mentioned legislative provisions ... are held to be applicable in the main proceedings now pending in the Paris Administrative Court, the only obligation [on AP-HP] which could be regarded as not seriously open to challenge would be the obligation to compensate [the applicants] . Consequently, the interim award [AP-HP] is required to pay should be reduced to that sum ...”
25. The applicants and AP-HP appealed on points of law. The applicants submitted only one ground of appeal to the Conseil d’Etat. Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, they argued that the immediate applicability of the Law of 4 March 2002 to pending proceedings was contrary to the Convention.
26. Having been seised in the context of a similar case (Draon, also submitted to the Court, application no. 1513/03), the Conseil d’Etat ruled, in an opinion delivered on 6 December 2002, that the Law of 4 March 2002 was indeed applicable to pending proceedings and was compatible with the provisions of the Convention (see paragraph 52 below).
27. In a judgment of 19 February 2003 the Conseil d’Etat, ruling on the above-mentioned appeal on points of law, followed the line set out in that opinion, observing:
“It is not seriously open to challenge that such facts constituting gross negligence [faute caractérisée] which deprived [the applicants] of the possibility of terminating the pregnancy on therapeutic grounds, confer entitlement to compensation pursuant to section 1 of the Law of 4 March 2002, which came into force after the ruling of the urgent applications judge at the Paris Administrative Court and is applicable to pending proceedings. It is appropriate, in the particular circumstances of the case, to set at 50,000 euros the amount of the interim award [AP-HP] is required to pay on account of the prejudice sustained by [the applicants] personally.”
28. Having received no reply from AP-HP two months after submitting their claim on 13 November 2000, and the absence of any reply amounting to implicit rejection, the applicants brought proceedings in the Paris Administrative Court. In their application they requested that the implicit rejection be set aside and AP-HP ordered to pay them, in particular, the following amounts: 2,900,000 French francs (FRF) (EUR 442,102) for the construction of a house and the purchase of a vehicle and a wheelchair; FRF 500,000 (EUR 76,225) in respect of non-pecuniary damage and disruption to their lives; FRF 10,000,000 (EUR 1,524,490) for pecuniary damage; and FRF 30,000 (EUR 4,573) in respect of the non-pecuniary damage suffered by their eldest daughter.
29. Following the opinion given by the Conseil d’Etat on 6 December 2002, the applicants submitted supplementary observations to the Administrative Court asking it not to consider itself bound by the Judicial Assembly’s opinion and to declare the Law of 4 March 2002 incompatible with the provisions of the Convention. AP-HP, for its part, again submitted that the prenatal diagnosis communicated to the applicants would have been uncertain even if the results had not been transposed.
30. In a judgment of 25 November 2003, the Paris Administrative Court ordered AP-HP to pay the applicants a total of EUR 224,500 (EUR 220,000 on their own behalf and EUR 4,500 on behalf of their eldest daughter) in respect of non-pecuniary damage and the disruption to their lives. It observed in particular:
“LIABILITY:
[The applicants] seek to establish [AP-HP’s] liability for the damage they suffered on account of the fact that their daughter C. was born with a disability not detected during pregnancy.
...
The provisions of section 1 of the Law of 4 March 2002, in the absence of any provisions in the Law providing for deferred entry into force, are applicable under the conditions of ordinary law following publication of the Law in the Official Gazette of the French Republic. The rules which it lays down, as decided by the legislature on general-interest grounds relating to ethical considerations, the proper organisation of the health service and the equitable treatment of all disabled persons, are not incompatible with the requirements of Article 6 of the Convention ..., with those of Articles 13 and 14 of the Convention or with those of Article 1 of Protocol No. 1 to [the] Convention. ... The general-interest ground which the legislature took into account when laying down the rules contained in the first three sub-paragraphs of paragraph I justifies their application to situations which arose prior to the commencement of pending proceedings. Having regard to the wording of the Law of 4 March 2002, neither the fact that the system of compensation has not yet entered into force nor the fact that the mistaken diagnosis is alleged to have resulted from negligence in the organisation and functioning of the service are such as to bar application of the above-mentioned provisions to the present proceedings brought on 16 March 2001.
The administrative courts do not have jurisdiction to determine the constitutionality of statute law. The appellants cannot therefore validly assert that the above-mentioned Law of 4 March 2002 is unconstitutional.
[The applicants], whose eldest daughter suffers from infantile spinal amyotrophy, and who decided in 1992 to terminate another pregnancy after a prenatal diagnosis had revealed that the unborn child was afflicted by the same pathology, had a daughter named C. in 1997 who was discovered during 1999 to be likewise suffering from that disorder despite the fact that, in view of the results of the amniocentesis conducted on [Mrs Maurice], they had been told that the foetus was healthy. That information proved to have been incorrect because the results from two patients had been transposed. The investigation showed that the switch was imputable to [AP-HP], which runs the Necker Children’s Hospital on whose premises the sample had been analysed. The switching of the results constituted gross negligence [faute caractérisée] for the purposes of the Law of 4 March 2002. In order to absolve itself of liability, Assistance publique-Hôpitaux de Paris cannot effectively argue that, even in the absence of negligence, the diagnosis would not have been reliable because of the presence of the mother’s blood in the foetal sample, since in such circumstances it was incumbent on the practitioner responsible for the analysis to inform [the applicants] accordingly, so that they would then have been able to have a new sample taken. The gross negligence mentioned above deprived the applicants of the possibility of terminating the pregnancy on therapeutic grounds, for which there is no time-limit. Such negligence entitles them to compensation under the conditions laid down in section 1 of the Law of 4 March 2002 ...”
31. As regards assessment of the damage suffered, the court ruled as follows:
“... firstly, the amounts sought in respect of treatment, special education costs and the costs of building a new house and purchasing a vehicle and an electric wheelchair relate to special burdens arising throughout the life of the child from her disability and cannot therefore be sums for which [AP-HP] is liable, regard being had to the above-mentioned provisions of section 1 of the Law of 4 March 2002;
... secondly, [the applicants] are suffering non-pecuniary damage and disruptions to their lives, particularly their work, of exceptional gravity, regard being had to the profound and lasting change in their lives resulting from the birth of a second severely disabled child;
... thirdly, the above-mentioned provisions of the Law of 4 March 2002 do not bar payment of compensation, under the rules of ordinary law, for the non-pecuniary damage suffered by A. Maurice;”
32. On 19 January 2004 the applicants appealed against the above judgment. The appeal is at present pending before the Paris Administrative Court of Appeal.
33. In a complaint submitted to the Prime Minister on 24 February 2003, the applicants requested payment of compensation in the sum of EUR 1,970,593.33 based on the State’s liability for damage inflicted by reason of the Law of 4 March 2002.
34. On expiry of the two-month time-limit following the lodging of their complaint, the applicants referred it to the Paris Administrative Court, requesting it to set aside the Prime Minister’s implicit decision to reject it and to order the State to compensate them for the damage they considered they had suffered.
35. In a judgment of 25 November 2003, the Paris Administrative Court dismissed the complaint. It observed in particular:
“It is clear from the drafting history of the Law of 4 March 2002 that this provision is based, firstly, on the desire of the legislature not to require health-care professionals or establishments to pay compensation for the burdens occasioned by a disability not detected during pregnancy, and, secondly, on a fundamental requirement: the rejection of any discrimination between disabled persons whose disability would be compensated for in accordance with the principles of liability and those whose disability would be covered by national solidarity, their mother having refused an abortion or the disability being undetectable at the time of the prenatal diagnosis.
This desire on the part of the legislature to eliminate any discrimination between disabled persons is a bar to the establishment [by the applicants] of the State’s liability by reason of the immediate application to pending proceedings of the Law of 4 March 2002, for the purpose of obtaining compensation for the special burdens arising from the disability, not detected during pregnancy, of their child C. Consequently, the [applicants’] submissions seeking the annulment of the contested decision and an order requiring the State to pay damages must be dismissed.
...”
36. The applicants appealed against this judgment. The appeal is now pending before the Paris Administrative Court of Appeal.
37. Before enactment of the Law of 4 March 2002 on patients’ rights and the quality of the health service (“the Law of 4 March 2002”), the legal position was established by the relevant case-law.
38. An action for damages brought by the parents of a child born disabled and by the child itself may come within the jurisdiction of either the administrative courts or the ordinary courts, depending on the identity of the defendant. If the defendant is a private doctor or a private medical laboratory, the dispute is referred to the ordinary courts. Where, on the other hand, as in the instant case, a public hospital service is involved, the dispute falls within the jurisdiction of the administrative courts.
39. The Conseil d’Etat gave judgment on 14 February 1997 (CE, Sect., 14 February 1997, Centre hospitalier de Nice c. Quarez, Recueil Lebon, p. 44). Mrs Quarez, then aged 42, had undergone an amniocentesis at her own request in order to verify the health of the foetus she was carrying. Although the result of that examination revealed no anomaly, she gave birth to a child suffering from trisomy 21, a condition detectable through the chromosome test carried out. The Conseil d’Etat held in the first place that the hospital which had carried out the examination had been guilty of negligence, since Mrs Quarez had not been informed that the results of the amniocentesis might be subject to a higher margin of error than usual on account of the conditions under which the examination had taken place.
40. Secondly, a distinction was drawn between the disabled child’s entitlement to compensation and that of its parents.
With regard to the disabled child’s right to compensation, the Conseil d’Etat ruled: “In deciding that a direct causal link existed between the negligence of the hospital centre ... and the damage incurred by the child M. from the trisomy from which he suffers, when it is not established by the documents in the file submitted to the court which determined the merits that the infirmity from which the child suffers and which is inherent in his genetic make-up was the consequence of [an] amniocentesis, the Lyon Administrative Court of Appeal made an error of law.”
On the other hand, with regard to the parents’ right to compensation, the Conseil d’Etat noted: “By asking for an amniocentesis, Mrs Quarez had clearly indicated that she wished to avoid the risk of a genetic accident to the child she had conceived, the probability of which, given her age at the time, was relatively high.” It went on to say that in those conditions the hospital’s negligence had “wrongly led Mr and Mrs Quarez to the certainty that the child conceived was not trisomic and that Mrs Quarez’s pregnancy could be carried normally to term” and that “this negligence, as a result of which Mrs Quarez had no reason to ask for a second amniocentesis with a view to abortion on therapeutic grounds under Article L. 162-12 of the Public Health Code, should be regarded as the direct cause of the prejudice caused to Mr and Mrs Quarez by their child’s infirmity”.
41. With regard to compensation, the Conseil d’Etat took into account, under the head of pecuniary damage, the “special burdens, particularly in terms of specialist treatment and education” made necessary by the child’s infirmity, and awarded the parents an annuity to be paid throughout the child’s life. It also ordered the hospital to pay compensation for their nonpecuniary damage and the disruption to their lives.
42. Thus the Conseil d’Etat did not accept that a disabled child was entitled to compensation on the sole ground that the disability had not been detected during the mother’s pregnancy. It did accept on the other hand that the parents of a child born with a disability were entitled to compensation and made an award not only in respect of their non-pecuniary damage but also in respect of the prejudice caused by the disruption to their lives and of pecuniary damage, specifying that the latter included the special burdens which would arise for the parents from their child’s infirmity (expenditure linked to specialist treatment and education, assistance from a helper, removal to a suitable home or conversion of their present home, etc.).
43. The judgment did not attract particular comment and led to a line of case-law followed thereafter by the administrative courts.
44. The case-law of the ordinary courts was laid down by the Court of Cassation on 17 November 2000 (Cass., Ass. plén., 17 November 2000, Bull., Ass. plén., no. 9) in a judgment which was widely commented on (the Perruche judgment). In the Perruche case a woman had been taken ill with rubella at the start of her pregnancy. Having decided to terminate the pregnancy if the foetus was affected, she took tests to establish whether she was immunised against the disease. Because of negligence on the part of both her doctor and the laboratory, she was wrongly informed that she was immunised. She therefore decided not to terminate the pregnancy and gave birth to a child who suffered from grave disabilities resulting from infection with rubella in the womb. The Court of Cassation held: “Since the negligence on the part of the doctor and the laboratory in performing the services for which they had been contracted by Mrs X. prevented her from exercising her choice of terminating her pregnancy in order not to give birth to a disabled child, the child may claim compensation for the damage resulting from that disability and caused by the negligence found.”
Thus, contrary to the Conseil d’Etat, the Court of Cassation accepted that a child born disabled could itself claim compensation for the prejudice resulting from its disability.
In this case, therefore, account was taken of the pecuniary and non-pecuniary damage suffered by both the child and the parents, including the special burdens arising from the disability throughout the child’s life.
45. It thus appears that in the same circumstances both the Court of Cassation and the Conseil d’Etat base their approach on a system of liability for negligence. However, the Court of Cassation recognises a direct causal link between the medical negligence and the child’s disability, and the prejudice resulting from that disability for the child itself. The Conseil d’Etat does not recognise that link but considers that the negligence makes the hospital liable vis-à-vis the parents on account of the existence of a direct causal link between that negligence and the damage they have sustained.
Both lines of case-law allow compensation to be paid in respect of the special burdens arising from the disability throughout the child’s life. However, since the Conseil d’Etat considers that damage to have been sustained by the parents, whereas the Court of Cassation considers that it is sustained by the child, there may be significant differences in the nature and amount of such compensation, depending on whether the case-law of the former or the latter court is being followed.
46. The judgment of 17 November 2000 was upheld several times by the Court of Cassation, which reaffirmed the principle of compensation for a child born disabled, subject to proof where appropriate that the medical conditions for a voluntary termination of pregnancy on therapeutic grounds were satisfied (Cass., Ass. plén., three judgments of 13 July 2001, BICC, no. 542, 1 October 2001; see also Cass., Ass. plén., two judgments of 28 November 2001, BICC, 1 February 2002).
47. The Perruche judgment drew numerous reactions from legal theorists, but also from politicians and from associations of disabled persons and practitioners (doctors, obstetrical gynaecologists and echographers). The last-mentioned group interpreted the judgment as obliging them to provide a guarantee, and the insurance companies raised medical insurance premiums.
48. Both the Conseil d’Etat and the Court of Cassation took as their starting-point a system of liability for negligence. In French law, under the general rules on the question, the right to compensation for damage can be upheld only if the conditions for liability are first satisfied. That means that there must be prejudice (or damage), negligence and a causal link between the damage and the negligence.
More particularly, with regard to the liability of a public authority, for compensation to be payable the prejudice, which is for the victim to prove, must be certain. Loss of opportunity constitutes certain prejudice, provided that the opportunity was a serious one.
In the present case the prejudice resulted from a lack of information, or inadequate or incorrect information, about the results of an examination or analysis. In such a case, before the Law of 4 March 2002 was enacted, negligence falling short of gross negligence was sufficient. As to the relation between cause and effect, a direct causal link was established between the hospital’s negligence and the parents’ prejudice (see the above-mentioned Quarez judgment).
49. Still in the sphere of administrative law, the amount of compensation is governed by the general principle of full compensation for damage (neither impoverishment nor enrichment of the victim). Compensation may take the form of a capital sum or an annuity. According to the principle of the equal validity of claims for all heads of damage, both pecuniary damage and non-pecuniary damage confer entitlement to compensation.
50. The Law of 4 March 2002 put an end to the position established by the case-law mentioned above, of both the Conseil d’Etat and the Court of Cassation alike. Its relevant parts provide as follows:
“I. No one may claim to have suffered damage by the mere fact of his or her birth.
A person born with a disability on account of medical negligence may obtain compensation for damage where the negligent act directly caused the disability or aggravated it or prevented steps from being taken to attenuate it.
Where the liability of a health-care professional or establishment is established vis-à-vis the parents of a child born with a disability not detected during pregnancy by reason of gross negligence [faute caractérisée], the parents may claim compensation in respect of their damage only. That damage cannot include the special burdens arising from the disability throughout the life of the child. Compensation for the latter is a matter for national solidarity.
The provisions of the present paragraph I shall be applicable to proceedings in progress, except for those in which an irrevocable decision has been taken on the principle of compensation.
II. Every disabled person shall be entitled, whatever the cause of his or her disability, to the solidarity of the national community as a whole.
III. The National Advisory Council for Disabled Persons shall be charged, in a manner laid down by decree, with assessing the material, financial and non-material situation of disabled persons in France, and of disabled persons of French nationality living outside France and receiving assistance by virtue of national solidarity, and with presenting all proposals deemed necessary to Parliament, with the aim of ensuring, through an ongoing pluriannual programme, that assistance is provided to such persons ...”
51. These provisions came into force “under the conditions of ordinary law following publication of the Law in the Official Gazette of the French Republic” (see paragraph 52 below). Law no. 2002-303 was published in the Official Gazette on 5 March 2002 and it therefore came into force on 7 March 2002.
52. The Conseil d’Etat observed in particular:
“...
II. The date of the Law’s entry into force:
The liability criteria set out in the second sub-paragraph of paragraph I of section 1 were enacted in favour of persons born with disabilities resulting from medical negligence whether that negligence directly caused the disability, aggravated it or made it impossible to take steps to attenuate it. They were laid down with sufficient precision to be applied by the relevant courts without the need for further legislation to clarify their scope.
The different liability criteria defined in the third sub-paragraph of paragraph I of section 1 were enacted in favour of the parents of children born with a disability which, on account of gross negligence on the part of a medical practitioner or healthcare establishment, was not detected during pregnancy. They are sufficiently precise to be applied without the need for further legislative provisions or regulations. Admittedly, they bar inclusion of the damage consisting in the special burdens arising from the disability throughout the child’s life in the damage for which the parents can obtain compensation, and provide that such damage is to be made good through reliance on national solidarity. But the very terms of the Law, interpreted with the aid of its drafting history, show that Parliament intended to exclude compensation for that head of damage on the ground that, although there was a causal link between negligence and damage, that link was not such as to justify making the person who committed the negligent act liable for the resulting damage. In providing that this type of damage should be made good by reliance on national solidarity, Parliament did not therefore make implementation of the rules on liability for negligence which it had introduced subject to the enactment of subsequent legislation laying down the conditions under which national solidarity would be mobilised to assist disabled persons.
It follows that, since the Law does not contain provisions for the deferred entry into force of section 1, and since in addition Parliament’s intention, as revealed by the Law’s drafting history, was to make it applicable immediately, the provisions of section 1 came into force under the conditions of ordinary law following the Law’s publication in the Official Gazette of the French Republic.
III. Law no. 2002-303’s compatibility with international law:
(1) ...
The object of section 1 of the Law of 4 March 2002 is to lay down a new system of compensation for the damage suffered by children born with disabilities and by their parents, differing from the system which had emerged from the case-law of the administrative and ordinary courts. The new system provides for compensation, by means of an award to be assessed by the courts alone, for the damage directly caused to the person born disabled on account of medical negligence and the damage directly caused to the parents of a child born with a disability which, on account of gross medical negligence, was not detected during pregnancy. It prevents children born with a disability which, on account of medical negligence, was not detected during pregnancy from obtaining from the person responsible for the negligent act compensation for the damage consisting in the special burdens arising from the disability throughout their lives, whereas such compensation had previously been possible under the case-law of the ordinary courts. It also prevents the parents from obtaining from the person responsible for the negligent act compensation for the damage consisting in the special burdens arising from their child’s disability throughout its life, whereas such compensation had previously been possible under the case-law of the administrative courts. Lastly, it makes compensation for other heads of damage suffered by the child’s parents subject to the existence of gross negligence, whereas the case-law of the administrative and ordinary courts had formerly been based on the existence of negligence falling short of gross negligence.
This new system, which was put in place by Parliament on general-interest grounds relating to ethical considerations, the proper organisation of the health service and the equitable treatment of all disabled persons, is not incompatible with the requirements of Article 6 § 1 of the Convention, with those of Articles 5, 8, 13 and 14 of the Convention, with those of Article 1 of Protocol No. 1 or with those of Articles 14 and 26 of the Covenant on Civil and Political Rights.
(2) The last sub-paragraph of paragraph I of section 1 makes the provisions of paragraph I applicable to pending proceedings ‘except for those in which an irrevocable decision has been taken on the principle of compensation’.
The general-interest grounds taken into account by Parliament when it laid down the rules in the first three sub-paragraphs of paragraph I show, in relation to the points raised in the request for an opinion, that the intention behind the last sub-paragraph of paragraph I was to apply the new provisions to situations which had arisen previously and to pending proceedings, while rightly reserving final judicial decisions.”
53. French legislation (see Law no. 75-534 of 30 June 1975 on orientation in favour of disabled persons, which set up the basic framework, and later legislation) provides compensatory advantages to disabled persons based on national solidarity in a number of fields (such as the right to education for disabled children and adults, technical and human assistance, financial assistance, etc.).
In particular, the families of disabled persons are entitled to a special education allowance (allocation d’éducation spéciale – “the AES”). This is a family benefit paid from the family allowance funds, provided both the child and its parents are resident in France. The AES is granted by decision of the Special Education Board of the département in which the claimant lives, after the file has been studied by a multidisciplinary technical team. First the Special Education Board takes formal note of the child’s disability and assesses it. For entitlement to the AES, the level of disability found must exceed at least 50%. Where the disability exceeds 80%, entitlement to the AES is automatic; if the disability is assessed at between 50% and 80%, payment of the allowance is not automatic. It is subject to the child’s need for pedagogical, psychological, medical, paramedical and other forms of assistance.
The AES is a two-level benefit: the basic allowance plus top-up payments. The first level is automatically payable where the conditions mentioned above are satisfied. The basic rate of AES is EUR 115 per month (the figure supplied by the Government on 16 March 2003). Where the child’s state of health requires substantial expenditure or the assistance of a third person, this may then confer entitlement to one of the six levels of AES top-up payments, which are added to the basic rate.
The first five top-up payments depend on the level of expenditure required by the child’s state of health, the time for which the assistance of a third person is necessary, or a combination of both. The sixth level of top-up payment is for the most severe cases, where the child’s state of health requires the assistance of a third person throughout the day and the families have to provide constant supervision and treatment.
54. This Law emerged from a legislative process launched as far back as July 2002 with the intention of reforming the system of disability compensation in France. It was pointed out in particular that following the enactment of the Law of 4 March 2002 it was necessary to legislate again “to give effective substance to national solidarity” (see the Information Report produced on behalf of the Senate’s Social Affairs Committee by Senator P. Blanc, containing seventy-five proposals for amending the Law of 30 June 1975, appended to the record of the Senate’s sitting on 24 July 2002, p. 13).
55. The new Law makes a number of substantial changes. In particular, it includes for the first time in French law a definition of disability and introduces a new “compensatory benefit” to be added to existing forms of assistance.
56. To that end, the Law amends the Social Action and Family Code. Its relevant provisions are worded as follows:
Title I: General provisions
Section 2
“I. ... A disability, within the meaning of the present Law, is any limitation of activity or restriction on participation in life in society suffered within his or her environment by any person on account of a substantial, lasting or permanent impairment of one or more physical, sensory, mental, cognitive or psychological functions, a multiple disability, or a disabling health disorder.
...
Every disabled person shall be entitled to solidarity from the whole national community, which, by virtue of that obligation, shall guarantee him or her access to the fundamental rights of all citizens, and the full exercise of citizenship.
The State shall act as the guarantor of equal treatment for disabled persons throughout the national territory and shall lay down objectives for pluriannual action plans.
...
II. – 1. The first three sub-paragraphs of the first paragraph of section 1 of Law no. 2002-303 of 4 March 2002 on patients’ rights and the quality of the health service shall become Article L. 114-5 of the Social Action and Family Code.
2. The provisions of Article L. 114-5 of the Social Action and Family Code, as amended by sub-paragraph 1 of the present paragraph II, shall be applicable to proceedings in progress on the date of the entry into force of the above-mentioned Law no. 2002-303 of 4 March 2002, except for those in which an irrevocable decision has been taken on the principle of compensation ...”
Title III: Compensation and resources
Chapter 1: Compensation for the consequences of disability
Section 11
“ ... A disabled person shall be entitled to compensation for the consequences of his or her disability whatever the origin or nature of the impairment, or his or her age or lifestyle.
That compensation shall consist in meeting his or her needs, including nursery care in early childhood, schooling, teaching, education, vocational insertion, adaptations of the home or workplace necessary for the full exercise of citizenship and of personal autonomy, developing or improving the supply of services, in particular to enable those around the disabled person to enjoy respite breaks, developing mutual support groups or places in special establishments, assistance of all kinds to the disabled person or institutions to make it possible to live in an ordinary or adapted environment, or regarding access to the specific procedures and institutions dealing with the disability concerned or the resources and benefits accompanying implementation of the legal protection governed by Title XI of Book 1 of the Civil Code. The above responses, adapted as required, shall take into account the care or accompaniment necessary for disabled persons unable to express their needs alone.
The forms of compensation required shall be recorded in a statement of needs drawn up in the light of the needs and aspirations of the disabled person as expressed in his or her life plan, written by himself or herself or, failing that, where he or she is unable to express an opinion, with or for him or her by his or her legal representative.
Section 12 Compensatory benefit
...
I. – Every disabled person stably and regularly resident in metropolitan France ... above the age at which entitlement to the disabled child’s education allowance [formerly the AES] begins ..., whose age is below the cut-off point to be laid down by decree and whose disability matches the criteria to be laid down by decree, taking into account in particular the nature and scale of the forms of compensation required in the light of his or her life plan, shall be entitled to a compensatory benefit which shall take the form of a benefit in kind payable, at the wishes of the beneficiary, either in kind or in money.
...
III. – The element of the benefit mentioned in point 3 of Article L. 245-3 [of the Social Action and Family Code] may also be claimed, under conditions to be laid down by decree, by beneficiaries of the [disabled child’s education] allowance [formerly the AES], where on account of their child’s disability they are likely to bear burdens of the type covered by that paragraph. ...”
“Compensatory benefit may be used, under conditions to be laid down by decree, for:
1. burdens arising from the need for human assistance, including, where necessary, the assistance provided by family helpers;
2. burdens arising from the need for technical assistance, particularly the costs which remain payable by an insured person where such technical assistance forms one of the categories of benefit contemplated in point 1 of Article L. 321-1 of the Social Security Code;
3. burdens arising from adaptation of the home or vehicle of the disabled person, and any extra expenditure needed for his or her transport;
4. specific or exceptional burdens, such as those arising from the purchase or maintenance of products needed on account of the disability;
...”
“The element of the benefit mentioned in point 1 of Article L. 245-3 shall be granted to any disabled person either where his or her state of health makes necessary the effective assistance of a third person for the essential acts of his or her existence, or requires regular supervision, or where he or she is obliged to incur additional expenditure through carrying on an occupation or holding elective office.”
57. The new compensatory benefit is initially payable in full to persons over the age at which entitlement to the AES (renamed “disabled child’s education allowance” by the new legislation – see section 12 above) begins. With regard to children, section 13 of the Law of 11 February 2005 provides:
“Within three years from the entry into force of the present Law compensatory benefit shall be extended to disabled children. Within a maximum of five years those provisions of the present Law which distinguish between disabled persons on the ground of age in respect of compensation for the disability and payment of the costs of residence in social and medico-social establishments shall be repealed.”
58. The entry into force of the Law of 11 February 2005 is subject to publication of the implementing decrees. Section 101 provides:
“The regulations implementing the present Law shall be published within six months of its publication, after being referred for opinion to the National Advisory Council for Disabled Persons.
...”
59. According to the information supplied by the Government, the new compensatory benefit should come into force on 1 January 2006. It is expected that it will be payable in full to disabled children by 12 February 2008. In the meantime, children will apparently receive only part of the benefit: only the costs of adapting a disabled child’s home or vehicle, or his or her additional transport costs, can already be financed by the new system.
NON_VIOLATED_ARTICLES: 13
8


ITEMID: 001-4969
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: WEDENIG v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Austrian national, born in 1959 and living in Haimburg. He is represented before the Court by Mr Michael Gnesda, a lawyer practising in Vienna.
A.
On 8 September 1995 the Innsbruck Regional Court (Landesgericht) convicted the applicant inter alia of attempted extortion (versuchte ErpressungOberster Gerichtshof), it noted that it also had to take into account to what extent punishment was necessary to deter the applicant from further wrongdoing or to deter others from committing similar offences.
On 12 December 1995 the Supreme Court dismissed the applicant’s plea of nullity (Nichtigkeitsbeschwerde). It noted the applicant’s allegation that the Regional Court had violated the law in that it took aspects of deterrence (Spezial- und Generalprävention) into account when determining his sentence. However, within the statutory range of punishment, the court, when determining which specific sentence was commensurate to the accused’s guilt, had a certain margin of appreciation within which it could also have regard to aspects of deterrence. Thus, the applicant had to be understood as alleging that the Regional Court had not correctly exercised its discretion. This question had to be examined before the Innsbruck Court of Appeal (Oberlandesgericht).
On 1 February 1996 the Innsbruck Court of Appeal dismissed the applicant’s appeal (Berufung). It noted that the Regional Court had relied on well established case-law when indicating that it had also taken aspects of deterrence into account. The Court of Appeal stated that it saw no reasons to reduce the sentence and confirmed the Regional Court’s view that the sentence was commensurate to the applicant’s guilt.
B. Relevant domestic law and practice
The applicant alleges that the determination of the concrete sentence was in contradiction with section 32 of the Criminal Code (Strafgesetzbuch). Section 32 in the version which was in force at the material time - read as follows:
“(1) The basis for assessing the sentence is the degree of the offender’s guilt.
(2) In assessing the sentence, the court must weigh up the aggravating and mitigating factors, in so far as they have not already been taken into account to determine the type or tariff of penalty applicable. It must have regard, above all, to the extent to which the offence can be attributed to an attitude of rejection or indifference on the part of the offender towards values protected by the law, and the extent to which it can be traced back to external circumstances or motives capable of inducing even a law-abiding person to commit it.

(3) As a general principle, the severity of the sentence should be increased in proportion to the significance of the damage or injury, or risk of damage or injury, caused by the offender or for which he is liable, even if he did not cause it himself; the number of duties he breached by his conduct and the degree of premeditation, of care in preparing or ruthlessness in committing the offence, and in inverse proportion to the extent to which it could be guarded against.”
The established case-law (see for instance the Supreme Court’s judgments of 10.10.1977, EvBl 1978/49, of 21.06.1979, EvBl 1979/208, of 09.12.1980, EvBl 1981/117 and of 24.03.1983, EvBl 1984/38), as well as the prevailing opinion in academic writing (see for example Burgstaller, Grundprobleme des Strafzumessungsrechts in Österreich, ZStW 94 (1982) 127), interpret the above provision as follows: The offender’s guilt is decisive for the determination of the penalty. However, the offender’s guilt cannot be equated to one precise amount of penalty (Punktsstrafe), but determines a range of possible punishment (Schuldrahmentheorie). The actual sentence imposed on the offender must not exceed this range. Within this range, however, aggravating and mitigating circumstances as enumerated in sections 33 and 34 of the Criminal Code as well as aspects of deterrence may be taken into consideration when determining the actual amount of penalty.


ITEMID: 001-60015
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF JOSEF FISCHER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 9. On 12 May 1995 the Vienna Regional Court for Criminal Matters (Landesgericht für Strafsachen) convicted the applicant, inter alia, under Section 164 of the Penal Code (Strafgesetzbuch), on numerous counts of handling stolen goods (Hehlerei) and sentenced him to three years’ imprisonment. The Regional Court found that the applicant, who dealt with antiques, had bought, between 1986 and 1988, antiques which had been stolen in the north of Italy.
10. On 14 September 1995 the applicant filed a plea of nullity and an appeal against sentence with the Supreme Court (Oberster Gerichtshof).
11. On 12 October 1995 the Procurator General (Generalprokurator) submitted the following comments on the applicant’s plea of nullity:
"In the view of the Procurator General, the plea of nullity of the accused Josef Fischer can be dealt with under Section 285d of the Code of Criminal Procedure. The transmission of a decision is requested."
12. On 21 November 1995 the Supreme Court dismissed the applicant’s plea of nullity and, as regards the appeal against sentence, referred the case to the Vienna Court of Appeal (Oberlandesgericht). On 23 January 1996 the Court of Appeal dismissed the applicant’s appeal.
13. Under Section 285 (d) § 1 of the Code of Criminal Procedure (Strafprozessordnung), a plea of nullity may be rejected by the Supreme Court after deliberations in private if the Supreme Court unanimously finds that the complaint should be dismissed as manifestly ill-founded without any need for further deliberation.
14. Section 35 § 2 of the Code of Criminal Procedure, as in force at the relevant time, reads as follows:
"If the public prosecutor at an appellate court submits observations on an appeal on grounds of nullity ..., the appellate court shall communicate those observations to the accused (person concerned), advising him that he may submit comments on them within a reasonable period of time that it shall determine. Such communication may be dispensed with if the prosecutor confines himself to opposing the appeal without adducing any argument, if he merely supports the accused or if the accused’s appeal is upheld."
15. Since the 1996 Criminal Law Amendment Act (Strafrechtsänderungsgesetz) the last sentence of Section 35 § 2 reads as follows:
“Such communication may be dispensed with if the prosecutor merely supports the accused or if the accused’s appeal is upheld."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58093
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF ARGENTO v. ITALY
IMPORTANCE: 4
CONCLUSION: Art. 6 inapplicable
JUDGES: C. Russo;N. Valticos;R. Pekkanen
TEXT: 7. Mrs Maria Argento is a doctor employed at the local health unit (“the USL”) in Ragusa, where she lives.
8. On 30 November 1985 she instituted proceedings in the Sicily Regional Administrative Court (“the RAC”) for judicial review of a decision of the USL assigning her, at the time when she was recruited to a permanent post, to a staff category lower than the one to which she considered herself to be entitled.
9. On 11 December 1985 the applicant asked for a date to be fixed for the hearing.
10. According to the information supplied at the hearing before the Court by the applicant's representative, the proceedings were then still pending.