Mensenrechtenhof veroordeelt Frankrijk wegens behandeling ouders die - ondanks geruststellende tests tijdens zwangerschap - permanent gehandicapte kinderen krijgen (en)
Press release issued by the Registrar
GRAND CHAMBER JUDGMENT (JUST SATISFACTION)
DRAON v. FRANCE & MAURICE v. FRANCE
The European Court of Human Rights has today notified in writing its Grand Chamber judgments1 concerning just satisfaction in the cases of Draon v. France (application no. 1513/03) and Maurice v. France (no. 11810/03).
With regard to Article 41 of the European Convention on Human Rights (just satisfaction),
· The Draon v. France case was struck out of the Court’s list following a friendly settlement under the terms of which Mr and Mrs Draon are to receive 2,488,113.27 euros (EUR), including in particular EUR 1,428,540 paid to enable them to provide for the needs of their child throughout his life;
· The Maurice v. France case was struck out of the Court’s list following a friendly settlement under the terms of which Mr and Mrs Maurice are to receive 2,440,279.14 euros (EUR), including in particular EUR 1,690,000 paid to enable them to provide for the needs of their child throughout her life.
(The judgments are available in English and French.)
These judgments do not change in any way the Court’s findings in its judgments on the merits of the two cases, delivered on 6 October 2005 (see press release no. 513 of 2005), in which it held that there had been a violation of Article 1 of Protocol No. 1 to the Convention (protection of property) and no violation of Article 13 (right to an effective remedy) or of Article 8 (right to respect for private and family life), even supposing that the latter provision was applicable. The Court also considered that it was not necessary to examine the complaints raised under Article 14 (prohibition of discrimination) and Article 6 § 1 (right to a fair hearing).
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1.Principal facts
The applicants are French nationals: Christine and Lionel Draon were born in 1962 and 1961 respectively and live in Rosny-sous-Bois (France); Sylvia and Didier Maurice were born in 1965 and 1962 respectively and live in Bouligny (France). Mr and Mrs Maurice also acted on behalf of their two daughters, aged 15 and eight.
Mr and Mrs Draon and Mr and Mrs Maurice are the parents of children with severe congenital disabilities which, due to medical errors, were not discovered during prenatal examinations. They brought proceedings against the hospital authorities concerned. However, the Law of 4 March 2002, better known as the “Kouchner Law” or “anti-Perruche Law”2 – which applied to pending proceedings – came into force while their actions were pending. They were therefore awarded compensation only for non-pecuniary damage and disruption to their lives, and not for the special burdens arising from their child’s disability.
New provisions have since been introduced, by the Law of 11 February 2005, to reform the disability compensation system in France.
Draon v. France
When pregnant with her first child, Mrs Draon had an ultrasound scan which disclosed an anomaly in the development of the foetus. An amniocentesis was performed in August 1996 at the Saint-Antoine Hospital, for which the Paris Health Authority (Assistance Publique-Hôpitaux de Paris – AP-HP) is responsible. No foetal abnormality was detected. However, Mr and Mrs Draon’s child, who was born in December 1996, very soon presented serious cerebral malformations, a major disability and total, permanent invalidity requiring full-time specialist care. AP-HP admitted that there had been an error of diagnosis and that the chromosomal abnormality could have been traced when the amniocentesis was carried out.
The applicants issued proceedings in the administrative courts against AP-HP. The urgent-applications judge made them an interim award of approximately EUR 155,500 in total. While their case was being examined on the merits, the Law of 4 March 2002, which had recently come into force, was applied to their case.
Relying on that Law and on an opinion given on the subject by the Conseil d’Etat on 6 December 2002, the Paris Administrative Court ruled on 2 September 2003 that AP-HP had been grossly negligent and had deprived the applicants of the possibility of seeking a voluntary termination of pregnancy on therapeutic grounds. It ruled that they were therefore entitled to compensation. It dismissed the part of the applicants’ claims relating to the special burdens arising from the child’s disability throughout his life, and awarded them EUR 180,000 for non-pecuniary damage and disruption to their lives. An appeal by Mr and Mrs Draon against that judgment is currently pending before the Paris Administrative Court of Appeal.
Maurice v. France
In 1990 Mr and Mrs Maurice’s first child was born with infantile spinal amyotrophy, a genetic disease which causes muscular atrophy. Two years later Mrs Maurice decided to terminate a second pregnancy on learning that there was a risk that the child she was carrying might be suffering from the same illness.
In 1997 Mrs Maurice became pregnant for a third time and sought a prenatal diagnosis, which was performed by an AP-HP laboratory. The tests did not reveal any abnormalities. The child was born in September 1997 and it became apparent over the following months that she was suffering from the same genetic illness. A report by a medical expert found that there had been a diagnostic error, Mr and Mrs Maurice’s results having been mixed up with those of another family.
The applicants issued proceedings in the administrative courts against AP-HP. The urgent-applications judge made them an interim award of EUR 152,499, which was reduced on appeal to EUR 15,245 under the Law of 4 March 2002, that had come into force in the meantime. In December 2002 the Conseil d’Etat set the interim award at EUR 50,000.
On 25 November 2003 the Paris Administrative Court, applying the provisions of the Law of 4 March 2004, dismissed the applicants’ claims in respect of the special burdens arising from their child’s disability throughout her life but ordered AP-HP to pay them EUR 224,500 to cover non-pecuniary damage and the disruption to their lives. An appeal by the applicants is currently pending before Paris Administrative Court of Appeal. The applicants also brought an action for damages against the State arguing that it had incurred liability by passing the Law of 4 March 2002. The action was dismissed at first instance and an appeal is currently pending before the Paris Administrative Court of Appeal.
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2.Procedure and composition of the Court
The applications were lodged with the European Court of Human Rights on 2 January and 28 February 2003 respectively. They were declared admissible on 6 July 2004. On 19 October 2004 the Chamber to which the two cases had been allocated relinquished jurisdiction in favour of the Grand Chamber, in accordance with Article 303 of the Convention. A Grand Chamber hearing was held at the Human Rights Building in Strasbourg on 23 March 2005.
The judgment concerning just satisfaction was given by the Grand Chamber of 17 judges, composed as follows:
Luzius Wildhaber (Swiss), President,
Christos Rozakis (Greek),
Jean-Paul Costa (French),
Nicolas Bratza (British),
Giovanni Bonello (Maltese),
Lucius Caflisch (Swiss)4,
Loukis Loucaides (Cypriot)
Corneliu Bîrsan (Romanian),
Peer Lorenzen (Danish),
Karel Jungwiert (Czech),
Volodymyr Butkevych (Ukrainian),
András Baka (Hungarian),
Mindia Ugrekhelidze (Georgian),
Vladimiro Zagrebelsky (Italian),
Khanlar Hajiyev (Azerbaijani),
Renate Jaeger (German),
Danut? Jo?ien? (Lithuanian), judges,
and also Lawrence Early, Section Registrar.
Complaints
The applicants alleged that the Law of 4 March 2002 had infringed their right to the peaceful enjoyment of their possessions and amounted to a breach of Article 1 of Protocol No. 1.
They also complained that that law had created an unjustified inequality of treatment between the parents of children whose disabilities were not detected before birth on account of medical negligence or the direct act or omission of a third party, and the parents of children whose disability was not detected before birth on account of some other form of negligence. They relied on Article 14 of the Convention.
Relying also on Article 6, the applicants alleged that the immediate applicability of the Law of 4 March 2002 to pending proceedings, including their case, had infringed their right to a fair hearing. Relying on Article 13, they further alleged that the immediate applicability of that Law to pending proceedings had deprived them of an effective remedy, since they could no longer obtain compensation, from the person responsible, for the special burdens arising from their child’s disability.
Lastly, the applicants maintained that the legal rules introduced by the Law of 4 March 2002 constituted, among other things, arbitrary interference by the State in their private and family life, as guaranteed by Article 8 in that, by depriving them of part of the compensation to which they would have been entitled before the Law entered into force, it prevented them from providing for their children’s needs.
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The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).
Press Contacts
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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.
1 Grand Chamber judgments are final (Article 44 of the Convention).
2 . The Law of 4 March 2002 on patients’ rights and the quality of the health service, establishes new rules for compensation for losses sustained by the parents of children born with a disability which, due to negligence, was not discovered during pregnancy. The rules preclude, among other things, claims against the doctor or hospital concerned for compensation for special burdens arising throughout the child’s life as a result of its disability, whereas such claims could be made under the previous rules.