Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 18068/91

Wiktor Olesen

against

Denmark

REPORT OF THE COMMISSION

(adopted on 18 October 1995)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 17). . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2 - 4). . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5 - 12) . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 13 - 17). . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 18 - 38) . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 18 - 30). . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(paras. 31 - 38) . . . . . . . . . . . . . . . . .5

III. OPINION OF THE COMMISSION

(paras. 39 - 51) . . . . . . . . . . . . . . . . . . . .7

A. Complaint declared admissible

(para. 39). . . . . . . . . . . . . . . . . . . . .7

B. Point at issue

(para. 40). . . . . . . . . . . . . . . . . . . . .7

C. As regards Article 6 para. 1 of the Convention

(paras. 41 - 50). . . . . . . . . . . . . . . . . .7

CONCLUSION

(para. 51). . . . . . . . . . . . . . . . . . . . .9

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 10

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Danish citizen, born in 1921. He is retired

and resides at Hirtshals. Before the Commission the applicant is

represented by Mr. Morten L. Wagner, a lawyer practising at Viborg.

3. The application is directed against Denmark. The respondent

Government are represented by their Agent, Mr. Laurids Mikaelsen, of

the Ministry of Foreign Affairs.

4. The case concerns the length of the proceedings in a liability

and compensation dispute between the applicant and a hospital. These

proceedings commenced in 1982 and are at present still pending. The

applicant considers that the dispute has not been determined within a

reasonable time and invokes in this respect Article 6 para. 1 of the

Convention.

B. The proceedings

5. The application was introduced on 15 July 1990 and registered on

11 April 1991.

6. On 2 September 1992 the Commission (Second Chamber) decided to

give notice of the application to the respondent Government and to

invite the parties to submit written observations on the admissibility

and merits of the applicant's complaint concerning the length of the

proceedings.

7. The Government's observations were submitted on 20 November 1992.

8. On 8 December 1992 the Commission granted the applicant legal aid

for the representation of his case.

9. On 31 March 1993 the applicant submitted his observations in

reply to those of the respondent Government.

10. On 5 July 1994 the Commission declared the application admissible

in so far it concerned the length of the proceedings. The remainder of

the application was declared inadmissible.

11. The text of the Commission's decision on admissibility was sent

to the parties on 20 July 1994 and they were invited to submit such

further information or observations on the merits as they wished. The

Government submitted further information and observations on

9 September 1994. On 30 March 1995 the applicant informed the

Commission that he maintained his position.

12. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

13. The present Report has been drawn up by the Commission (Second

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

MM. H. DANELIUS, President

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

14. The text of this Report was adopted on 18 October 1995 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

15. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

16. The Commission's decision on the admissibility of the application

is annexed hereto.

17. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

18. On 17 December 1973 the applicant was admitted to Hjørring

hospital for a prostate operation which was carried out on

20 December 1973. Certain unforeseen complications occurred as a result

of which the applicant was re-operated on the same day as well as the

following day. The applicant was discharged from the hospital on

5 January 1974.

19. Subsequently, the applicant experienced a certain deterioration

of his health and a number of medical examinations were made. In 1977

it was established that the applicant suffered from a so-called

pre-senile dementia and further medical examinations were carried out

in order to establish its cause. Following these examinations the

applicant became convinced that his illness derived from errors

committed by the medical staff during the operations in 1973 and on

15 January 1982 he therefore instituted proceedings in the High Court

of Western Denmark (Vestre Landsret) against the hospital. He claimed

damages in the amount of 800,000 DKK maintaining that the hospital

staff had committed errors during the operations which again had caused

the deterioration of his health. The parties agreed to request the

Medico-Legal Council (Retslægerådet), hereinafter "the Council", to

submit an expert opinion and by 1 June 1983 the parties had agreed on

the questions to be submitted to the Council.

20. The first expert opinion by the Council was submitted on

9 April 1984 and this was followed by further submissions from the

parties. On 25 February 1985 a preliminary hearing was held in court

during which the applicant requested access to the hospital's medical

records, a request which was apparently refused. Furthermore, the

question arose of asking the Council to submit additional explanations,

something which was finally agreed upon during another preliminary

court session held on 4 March 1986. The Council's further explanations

were submitted on 23 May 1986.

21. Nevertheless, it appears that further disagreements arose in

respect of access to the hospital's medical records and whether further

questions should be put to the Council. On 1 May 1987 another

preliminary court session was held during which the Court allowed the

applicant to put further questions to the Council whereas it appears

that his request for access to the hospital's medical records was

refused again. On 10 June 1987 the Council submitted that it was unable

to answer the remaining questions.

22. On 10 November 1987 the preparation of the case had finished and

the case was scheduled for the main hearing which took place on

12 April 1988. Judgment was pronounced on 28 June 1988. The applicant's

claims for damages were rejected as the Court did not find it

established that medical errors had been committed by the hospital

staff. Costs in the amount of 45,000 DKK were awarded against the

applicant.

23. On 5 July 1988 the applicant appealed against the judgment to the

Supreme Court (Højesteret). He furthermore applied to the Ministry of

Justice for free legal aid which, however, was refused by the Ministry

on 24 November 1988 as he was not considered to have any reasonable

prospects of being successful in his appeal.

24. As the applicant maintained that he was unable to conduct the

case in the Supreme Court himself, he requested the Court to appoint

counsel for him. However, on 12 May 1989 the Supreme Court refused the

request.

25. The applicant furthermore requested permission to put further

questions to the Council and also to have access to the hospital's

medical records. Both requests were refused by the Appeals Selection

Committee of the Supreme Court (Højesterets anke- og kæremålsudvalg)

on 14 March 1990. The applicant then proceeded on his own to obtain

further expert opinions and on 21 May 1990 also asked for an

adjournment in order to find a lawyer who could assist him, something

in which he was not successful.

26. On 23 April 1991 the Supreme Court decided to order the applicant

to present his case through counsel. Furthermore, the Court appointed

a lawyer to represent him, following which the applicant again

requested the Court to give him access to the hospital's medical

records. On 6 November 1991 the Court decided to meet the applicant's

request.

27. Having studied the medical records the applicant, on

9 March 1992, asked the Court for permission to submit further evidence

and to obtain further explanations from the Medico-Legal Council. On

16 December 1992 the Appeals Selection Committee of the Supreme Court

granted the request. However, as before the parties were unable to

agree on the questions to be put to the Council. Eventually, on

9 November 1993, the Appeals Selection Committee decided that three

specific questions, drawn up by the Committee, were to be put to the

Council. The case was adjourned pending the Council's reply which was

submitted on 18 March 1994.

28. In the meantime the applicant had applied to the Department of

Private Law (Civilretsdirektoratet) for legal aid. This was refused on

27 March 1992 and subsequent applications were refused inter alia on

15 April 1992, 11 December 1992, and 17 May 1993. Eventually, on

30 March 1994, the Department of Private Law granted the applicant free

legal aid in respect of the appeal proceedings in the Supreme Court.

29. Following the Medico-Legal Council's reply of 18 March 1994 new

questions were put to the Council on 21 October 1994. The Council's

reply was submitted on 14 June 1995.

30. The applicant's civil case against Hjørring hospital is still

pending in the Supreme Court. The main hearing has been scheduled for

15 April 1996.

B. Relevant domestic law

31. In civil lawsuits the court acts at the request of the parties.

Civil proceedings are instituted by one of the parties submitting a

writ of summons to the court concerned (cf. section 348 of the

Administration of Justice Act (retsplejeloven)). Certain lawsuits, like

the present one, are brought before the High Court as the court of

first instance (cf. sections 224 to 226 of the Administration of

Justice Act). Legal proceedings are considered to be instituted when

the court receives the writ of summons. The court is responsible for

the service of the writ of summons. The lawsuit then falls into two

parts - a preparatory phase and a hearing phase.

32. Two procedures may be followed in respect of the preparation.

Pursuant to section 351 of the Administration of Justice Act, the

preparation of a case may be carried out by the parties appearing at

preliminary hearings either personally or through a representative

entitled to appear for the person concerned. This is called oral

preparation. Pleadings are exchanged and formally submitted to the

court during a session. Pursuant to section 352 of the Administration

of Justice Act, the court may decide that the case is to be prepared

without the parties appearing in court at preliminary hearings. This

is called written preparation. In the case of written preparation the

parties forward their pleadings to the court which records the

documents and sees to it that the opponent receives a copy of them.

33. The purpose of preparing a case is to establish the facts and the

legal issues of the case, to make sure that the case is elucidated in

the best possible way and to establish what the parties disagree on.

34. In addition to the normal preparatory court hearings during the

preparation phase the court may hold preliminary hearings pursuant to

section 355 of the Administration of Justice Act. The court may summon

the parties to such preliminary hearings for the purpose of gaining

sufficient clarity of the scope of the evidence and the points at issue

when the court finds this expedient. During such preliminary hearings,

the court may also decide on disputes between the parties relating to

the preparation and actual organisation of the case.

35. According to the Administration of Justice Act, the parties in

a civil lawsuit have competence as regards the substance of the case,

i.e. the problems to be considered by the court. On the other hand the

court has the final responsibility for the judicial procedure. A stay

of proceedings can only be granted if there are reasonable grounds for

such a stay. The relevant provision is section 345 of the

Administration of Justice Act according to which "the court may adjourn

proceedings, if this is found expedient, also in order to await an

administrative or legal decision which may influence the outcome of the

case. The court shall notify all parties concerned regarding the stay

of proceedings as soon as possible."

36. Proceedings may for instance be stayed in order for the parties

to produce evidence of relevance to the case, to conduct friendly

settlement negotiations, to procure expert opinions, to clarify the

positions of the parties etc. Moreover, proceedings will normally be

adjourned if one of the parties submits a pleading in order to allow

the other party to comment on it. Proceedings will usually also be

adjourned when an expert opinion has been submitted, enabling the

parties to review the result and decide whether the expert opinion

necessitates further questions to the expert.

37. In civil lawsuits the case is elucidated by the parties and takes

the form of a negotiation between them. The parties decide the

questions to be considered by the court, and it is the parties who

present the material to the court. As a starting point, the parties

thus decide themselves how much or how little the court is to be

presented with and consider. The court ensures that continuous progress

is made in the case, and that the case is not allowed to be neglected.

The court intervenes in situations where one of the parties professes

misgivings concerning a stay of proceedings, or when the court feels

that a stay does not serve any real purpose. Finalising the preparation

of the case and fixing it for hearing involve a restriction on the new

material to be presented by a party, (cf. section 357 and section 363

of the Administration of Justice Act).

38. Following the finalisation of the preparation of the case it is

for the court to fix the date for the hearing of the case, (cf.

section 356, subsection 2, of the Administration of Justice Act). The

court may if necessary summon the parties for this purpose.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

39. The Commission has declared admissible the applicant's complaint

that his case has not been determined within a reasonable time.

B. Point at issue

40. Accordingly, the only point at issue is whether the length of the

proceedings exceeded the "reasonable time" referred to in Article 6

para. 1 (Art. 6-1) of the Convention.

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

41. Article 6 para. 1 (Art. 6-1) of the Convention reads, in so far

as relevant, as follows:

"In the determination of his civil rights and obligations

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

reasonable time by (a) ... tribunal ..."

42. It is undisputed that the proceedings in question involve a

determination of a "civil right" and thus fall within the scope of

Article 6 para. 1 (Art. 6-1) of the Convention.

43. The proceedings began on 15 January 1982 when the applicant

instituted proceedings against Hjørring hospital. These proceedings are

at present pending in the Supreme Court. Until now they have

accordingly lasted more than thirteen years and nine months.

44. The Commission recalls that the reasonableness of the length of

proceedings must be assessed with reference to the following criteria:

the complexity of the case, the conduct of the parties and that of the

authorities before which the case is brought. Furthermore, the special

circumstances of the case, in particular what is at stake for the

applicant in the litigation, must be taken into account and may call

for an overall assessment (cf. Eur. Court H.R., Vernillo judgment of

20 February 1991, Series A no. 198, p. 12, para. 30 and X v. France

judgment of 31 March 1992, Series A no. 234-C, p. 90, para. 32).

45. The Commission also recalls that in civil cases the exercise of

the right to a hearing within a reasonable time is subject to diligence

being shown by the party concerned (cf. Eur. Court H.R., Pretto and

Others judgment of 8 December 1983, Series A no. 71, pp. 14 et seq.,

paras. 33 et seq.). Nonetheless this principle cannot absolve the

courts from securing that the case progresses within a reasonable time

(cf. Eur. Court H.R., Martins Moreira judgment of 26 October 1988,

Series A no. 143, p. 17, para. 46), and Article 6 para. 1 (Art. 6-1)

of the Convention imposes on the Contracting States the duty to

organise their legal system in such a way that their courts can meet

each of its requirements (cf. Eur Court, H.R., Bunkate judgment of

26 May 1993, Series A no. 248-B, p. 31, para. 23).

46. Whereas the applicant maintains that a period of more than

thirteen years cannot in any circumstances be considered reasonable in

a case of this kind, the Government submit that of the period of time

the case has been before the Danish courts the parties are responsible

for the delays of more than eight years characterised more than

anything else by the fact that they have been unable to reach agreement

on some points and have reached agreement on other points only after

very long periods of discussions during the preparatory phases both in

the High Court and in the Supreme Court. Furthermore, the Government

maintain that the complexity of the case is evident, inter alia, from

the fact that it has been deemed necessary to have a very large number

of questions put to the Medico-Legal Council and other medical experts.

47. As regards the latter point the Commission recalls that the case

concerns an action for damages as a result of alleged errors committed

by the hospital during the operations the applicant underwent there.

The Commission does not consider this to be of particular complexity

from a legal point of view. Thus, although the production of evidence,

including expert evidence from the Medico-Legal Council, has turned out

to be time-consuming, the Commission does not find that the complexity

of the case can justify the period of time involved.

48. As regards the conduct of all parties involved the Commission

recalls that the Danish legal system in civil cases is not of an

inquisitorial type, but the lawsuit is elucidated by the parties and

takes the form of a negotiation between them. However, according to the

Administration of Justice Act it is nevertheless the court which

ensures that continuous progress is made in the case and that the case

is not allowed to be neglected.

49. In the present case the Commission notes that the applicant was

not allowed access to the hospital's medical records until

6 November 1991, i.e. almost ten years after the case commenced, when

the Supreme Court overruled its own Appeals Selection Committee's prior

refusal. It is hardly surprising, therefore, that the applicant tried

several times through the Medico-Legal Council, or by other means, to

obtain evidence which might support his claims. Nor is it surprising

that the applicant was in need of time to prepare the case, having

regard to the fact that free legal aid was refused until 30 March 1994,

i.e. more than twelve years after the case commenced.

50. However, the gist of the matter lies in the fact that the High

Court of Western Denmark and the Supreme Court did not use their powers

to make orders for the speeding up of the progress of the proceedings.

In both courts it became clear that the parties were unable to resolve

the numerous disputes over the issues which were to be examined by the

Medico-Legal Council as well as other matters, and it may well be, as

maintained by the Government, that more than eight years passed in

particular due to this. However, in such circumstances the courts ought

to have intervened in accordance with their powers under the

Administration of Justice Act in order to ensure proper progress in the

proceedings regardless of the parties' conduct. However, the courts

failed to do so. Accordingly the dispute between the applicant and the

Hjørring hospital has not been determined within a reasonable time

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

CONCLUSION

51. The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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OLESEN v. DENMARK

OLESEN v. DENMARK

LEXI