Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18068/91

by Wiktor OLESEN

against Denmark

The European Commission of Human Rights (Second Chamber) sitting

in private on 5 July 1994, the following members being present:

MM. S. TRECHSEL, President

C.A. NØRGAARD

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 15 July 1990 by

Wiktor OLESEN against Denmark and registered on 11 April 1991 under

file No. 18068/91;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 20 November 1992 and the observations in reply submitted

by the applicant on 31 March 1993;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the parties, may be

summarised as follows.

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

and resides at Hirtshals, Denmark.

On 17 December 1973 the applicant was admitted to the hospital

of Hjørring for a prostate operation which was carried out on

20 December 1973. Certain unforeseen complications occurred for which

reason the applicant was reoperated the same day as well as the

following day. The applicant was discharged from the hospital on

5 January 1974.

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.

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.

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

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.

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.

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. Subsequent applications

for free legal aid have also been refused, most recently on

20 December 1991.

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.

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 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.

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.

Having studied the medical records the applicant asked for

permission to submit further evidence and to obtain further

explanations from the Medico-Legal Council. This was granted by the

Court but as the parties apparently could not agree on the questions

to put to the Council the applicant brought the issue before the Court.

On 9 November 1993 the Appeals Committee of the Supreme Court granted

permission to put three specific questions to the Council and the case

was adjourned pending the Council's reply. This was submitted on

18 March 1994.

The applicant's civil case against the hospital is still pending

in the Supreme Court (July 1994).

COMPLAINTS

With reference to the above facts as a whole the applicant

complains that he has been subjected to inhuman and degrading treatment

since 1980. He complains in particular of the fact that he has been

refused legal aid which has caused him great suffering during the court

proceedings, taking his age and handicap into consideration.

Furthermore, he maintains that errors were committed during the

operations in 1973 at the hospital of Hjørring and that, therefore, the

High Court judgment of 28 June 1988 is wrong.

In connection with the court proceedings the applicant complains

in particular that he has been prevented from presenting his case

properly in that he was refused access to the medical records and that

he has been denied the possibility of submitting additional questions

in connection with the explanations obtained from the Medico-Legal

Council. The applicant also complains of a slow and discriminatory

procedure.

He invokes Articles 2, 3, 4, 5, 6, 7 and 8 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 15 July 1990 and registered on

11 April 1991.

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

bring the application to the notice of the respondent Government and

to invite them to submit written observations on the admissibility and

merits of the issue of the length of the proceedings.

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

On 8 December 1992 the Commission decided to grant legal aid to

the applicant.

On 31 March 1993 the applicant submitted his observations in

reply to those of the respondent Government.

THE LAW

1. The Commission finds that one of the applicant's complaints

relates to the length of the proceedings in question. He invokes

Article 6 (Art. 6) of the Convention which in so far as relevant reads

as follows:

"In the determination of his civil rights ..., everyone is

entitled to a fair ... hearing within a reasonable time ... ."

The Commission recalls that the applicant instituted proceedings

against the hospital of Hjørring on 15 January 1982. These proceedings

are still pending.

According to the applicant, the length of the proceedings - at

present a period of more than twelve years - is in breach of the

"reasonable time" requirement laid down in Article 6 para. 1

(Art. 6-1) of the Convention. The Government refute the allegation.

The Commission considers, in the light of the criteria

established by the case-law of the Convention organs on the question

of "reasonable time" (the complexity of the case, the applicant's

conduct and that of the competent authorities), and having regard to

all the information in its possession, that an examination of the

merits of this complaint is required. It follows that this part of the

application cannot be regarded as manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other

ground for declaring it inadmissible has been established.

2. The applicant also submits a number of complaints concerning the

proceedings. He complains, in particular, that he was refused legal

aid, that he was refused access to the hospital's medical records and

that he was prevented from putting additional questions to the

Medico-Legal Council.

The Commission has considered these complaints under Article 6

para. 1 (Art. 6-1) of the Convention in so far as this provision

guarantees to everyone the right to a fair hearing. However, according

to its established case-law, in order to determine whether Article 6

para. 1 (Art. 6-1) of the Convention has been complied with, the

Commission must examine the proceedings as a whole once they have been

concluded, though it is not impossible that a particular procedural

element could be so decisive to the proceedings that the conduct

thereof could be assessed at an earlier stage (cf. No. 9938/82,

Dec. 15.7.86, D.R. 48 p. 21).

As regards the latter point the Commission recalls that the

Supreme Court has now provided the applicant with a court-appointed

counsel, he has received access to the hospital's medical records and

the Medico-Legal Council has in fact submitted further explanations as

requested by him. In these circumstances the Commission does not

consider it necessary to consider any particular procedural element

separately and thus finds, in the light of the fact that the

proceedings are still pending, that it is premature to consider whether

these are conducted in conformity with Article 6 para. 1 (Art. 6-1) of

the Convention. It follows that this part of the application is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3. Finally, the Commission has examined the remainder of the

application, as submitted by the applicant, in so far as it raises

separate issues under Articles 2, 3, 4, 5, 7 and 8

(Art. 2, 3, 4, 5, 7, 8) of the Convention. However, to the extent that

these matters have been substantiated and are within its competence,

the Commission finds that they do not disclose any appearance of a

violation of the provisions invoked.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits of the case,

the applicant's complaint relating to the length of the

proceedings; and

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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OLESEN v. DENMARK

OLESEN v. DENMARK

LEXI