FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 70210/01 by Lizzy PETERSEN against Denmark

The European Court of Human Rights ( First Sect ion) , sitting on 18 September 2003 as a Chamber composed of

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mrs F. Tulkens , Mrs N. Vajić , Mr E. Levits , Mr V. Zagrebelsky , Mrs E. Steiner, judges , and Mr S øren Nielsen , Deputy Section Registrar ,

Having regard to the above application introduced on 6 April 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Lizzy Petersen, is a Danish [Note1] national, who was born in 1953 and lives in Grenaa . She is represented before the Court by Mr Karsten Steen Jensen, a lawyer practising in Esbjerg . The respondent Government are represented by their Agent, Ms Nina Holst -Christensen, the Ministry of Justice.

A. Circumstances of the case

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

In 1970, when the applicant was 17 years old, she started working as a fillet cutter at a fish factory. In 1984 she suffered severe pain in her neck, shoulders and arms. Alleging that there was causality between her pain and her work she claimed compensation from the National Board of Industrial Injuries (formerly called Sikringsstyrelsen ). By decision of 20 September 1984 the Board refused to acknowledge that the applicant’s injury was work related. The applicant appealed to the Social Appeal Board ( den Sociale Ankestyrelse ) which ordered a study of the applicant’s working conditions and a description of the work process. On 22 May 1986, finding that the Occupational Diseases Committee ( Erhvervsudvalgsstyrelsen ) should be heard, the Social Appeal Board quashed the decision and referred the case back to the National Board of Industrial Injuries. Contrary to the Occupational Diseases Committee’s recommendation, on 19 January 1988 the National Board of Industrial Injuries upheld its former decision. The applicant appealed again to the Social Appeal Board, which on 28 October 1988 again quashed the decision and referred the case back to the Board. On 25 November 1988 the National Board of Industrial Injuries upheld its former decision, and on appeal, the Social Appeal Board confirmed this on 5 April 1989.

The applicant complained to the Parliamentary Ombudsman, as in her opinion the grounds stated by the National Board of Industrial Injuries and the Social Appeal Board in their decisions were inadequate. The Social Appeal Board submitted additional reasoning to the Parliamentary Ombudsman on 15 January 1990. On 30 May 1990 the Parliamentary Ombudsman agreed with the applicant that the reasons given by the National Board of Industrial Injuries and the Social Appeal Board in their decisions, had not been sufficient.

On 18 June 1992 the applicant instituted proceedings before the High Court of Eastern Denmark ( Østre Landsret ) claiming that the Social Appeal Board acknowledge that her injuries were caused by her work. In the period from 18 January 1992 until 23 November 1993, thirteen court hearings were held, and on the latter day the case was scheduled for trial on 30 May 1994. On that date the High Court stated in an advisory opinion that it would find for the applicant in case of a judgment, whereupon the proceedings were adjourned until 28 June 1994 pending the Social Appeal Board’s considerations as to whether it would accept the advisory opinion or demand that judgment be passed. At the end of June 1994 the Board chose the latter, and by judgment of 27 September 1994 the High Court found for the applicant.

On 10 October 1994 the Social Appeal Board appealed to the Supreme Court ( Højesteret ) which complied with their request that a statement be obtained from the Medico-Legal Council ( RetslægerÃ¥det ). The proceedings were adjourned until 5 December 1994 pending considerations with regard to the questions to be put to the Medico ‑ Legal Council. On 12 January 1995 the Social Appeal Board submitted their draft questions. On 14 February 1995 the applicant submitted her comments, and the proceedings were adjourned pending the Social Appeal Board’s consideration thereon. On 2 June 1995 the parties had come to an agreement on the wording of the questions. The proceedings were thereafter postponed awaiting the Medico-Legal Council’s reply. On 10 October 1995 the Supreme Court sent reminders to the parties and requested information within eight days on what had happened in the proceedings. On 11 October 1995 the Supreme Court received the reply from the Medico ‑ Legal Council.

On 3 November 1995 the Social Appeal Board requested permission to put supplementary questions to the Medico-Legal Council. In order to prepare these questions they needed medical information from the applicant. This was submitted on 5 March 1996. In the meantime the Supreme Court had send a reminder. On 24 June 1996 the parties had come to an agreement as regards the supplementary questions, and the reply from the Medico ‑ Legal Council was received on 25 October 1996.

On 26 November 1996 the Social Appeal Board requested that the matter be submitted to an expert. The request was granted and the proceedings were adjourned awaiting the parties’ decision on whom to appoint and the questions to be put. The Supreme Court sent a reminder in this respect on 23 January 1997. On 1 April 1997 the parties came to an agreement and the expert opinion was submitted on 14 June 1997.

On 24 June 1997 the proceedings were adjourned in order that the parties’ state whether they were ready for the scheduling of the trial. On 16 July 1997 the Social Appeal Board requested an extension of the time ‑ limit. This was granted on 24 July 1997, but the Supreme Court indicated that further extensions of time-limits could not be expected.

At a pre-trial review on 9 October 1997 the trial was scheduled to take place on 17 September 1998. By judgment of 24 September 1998 the Supreme Court found for the applicant.

Subsequently, the Social Appeal Board referred the case back to the National Board of Industrial Injuries (then called Arbejdsskadestyrelsen ) in order that the Board calculate the degree of the applicant’s disablement and her loss of working capacity, and thus the equivalent compensation that the applicant was entitled to.

On 9 April 1999 the Board informed the applicant that her degree of disablement was calculated to 60 % and in this respect she was granted 229,227 Danish kroner (DKK) in compensation. As to the degree of her loss of working capacity the Board informed the applicant that an additional medical report had been obtained, for which reason the Board wished to put some questions to the Medico-Legal Council. Having obtained the Council’s answers on 6 December 1999, by decision of 28 April 2000 the National Board of Industrial Injuries set the degree of the applicant’s loss of working capacity to 35 % and granted her DKK 541,267 as compensation in this respect. On appeal, by decision of 20 February 2001 the Social Appeal Board increased the degree of loss of working capacity to 50 %. Subsequently, on 8 March 2001 the National Board of Industrial Injuries paid out the remainder of the compensation the applicant was entitled to.

B. Relevant domestic law

At the relevant time Section 10, subsection 1 of the Industrial Injury Insurance Act ( lov om arbejdsskadeforsikring ) provided inter alia that occupational diseases are diseases, which - according to medical and technical experience - are brought about by specific influences to which certain groups of people, through their work or working conditions, are more exposed than persons not having such work are. The head of the National Board of Industrial Injuries determines and lists such diseases. In this connection it may be laid down that diseases shall be included in the list only where such diseases have been brought about by work in specific working areas or where other special conditions are met. However, pursuant to Section 10, subsection 3 of the said Act other diseases than occupational diseases may be acknowledged if it be substantiated either that according to the newest medical experience the disease meets the requirements referred to in section 10, subsection 1 or that it be deemed to have been caused exclusively or predominantly by the particular nature of the work. In order to acknowledge the diseases mentioned under section 10, subsection 3 the Occupational Diseases Committee must have been heard. Moreover, the Committee should be heard unless the National Board of Industrial Injuries considers that the disease would have no prospect of being acknowledged.

Finally, it followed from the Act that decisions by the National Board of Industrial Injuries may be appealed against to the Social Appeal Board.

COMPLAINT

The applicant complains that the length of the proceedings during which her claim for compensation was determined exceeded the “reasonable time” requirement within the meaning of Article 6 § 1 of the Convention.

THE LAW

Complaining of the length of the proceedings the applicant invokes Article 6 § 1 of the Convention, which in as far as relevant reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Government’s  objection.

The Government submit that the application should be declared inadmissible as being submitted out of time, since in their view the proceedings came to an end on 24 September 1998 when the Supreme Court passed judgment, thus more than six months before the applicant lodged her complaint with the Court. The Government recalls in this respect that the dispute brought before the High Court on 18 June 1992 concerned the isolated question whether the applicant’s myopathy amounted to an industrial injury. It was not for the High Court to determine the extent of the applicant’s loss of working capacity or her degree of disablement or the benefits to be granted. Therefore the dispute was effectively disposed of on 24 September 1998, when the Supreme Court passed judgment ordering that the Social Appeal Board recognise that the applicant’s myophaty in her neck, shoulders and arms fell within the scope of the Industrial Injury Insurance Act, i.e. amounted to an industrial injury. Accordingly, in the Governments view the subsequent administrative proceedings should not be included in the relevant period to be assessed.

The applicant maintains that the proceedings, administrative as well as judicial must be seen as a whole. Thus, in her opinion the proceedings ended on 8 March 2001 when the National Board of Industrial Injuries finally paid out the compensation she had been entitled to all along. She submits that it is not for the ordinary courts to meter out the amount of compensation that industrial injured persons are entitled to and that therefore the courts will only be requested to determine whether the injury before it fulfils the requirements set out in the Industrial Injury Insurance Act. Consequently, subsequent to a final judgment the case will always be referred back to the administrative authorities, which dispose of the dispute by paying out the relevant compensation.

The Court has previously held that the determination of a civil right is constituted at the moment when the right asserted actually becomes effective (see e.g. the Di Pede v. Italy judgment of 26 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1384, § 22, Estima Jorge v. Portugal judgment of 21 April 1998, Reports 1998-II, p. 772, § 37 and Dewicka v. Poland, no. 38670/97, 4 April 2000, § 42). The close of the period to be taken into consideration accordingly extends right up to the moment where the dispute is effectively disposed of.

The Court reiterates that the applicant claimed compensation in 1984 alleging that there was causality between her injury and her work. It notes in this connection that the applicability of Article 6 § 1 of the Convention to the proceedings, be it administrative or judicial, is not in dispute in the present case.

Also, the Court reiterates that subsequent to the Supreme Court passing judgment on 24 September 1998 ordering that the Social Appeal Board recognise that the applicant’s myophaty in her neck, shoulders and arms fell within the scope of the Industrial Injury Insurance Act, thereby amounting to an industrial injury, she had to await that the National Board of Industrial Injury calculate her loss of working capacity, her degree of disablement and the equivalent compensation that she was entitled to. The National Board of Industrial Injury took its final position on these issues on 28 April 2000. On appeal, on 20 February 2001 the Social Appeal Board increased the degree of the applicant’s loss of working capacity, and on 8 March 2001 she received the remainder of the compensation she was entitled to.

In these circumstances the Court cannot but conclude that the right asserted by the applicant did not become “effective” until 8 March 2001, when her civil claim was finally satisfied. Thus, the administrative proceedings following the pronouncement of the Supreme Court’s judgment on 24 September 1998 must be regarded as a second stage of proceedings on the merits and, accordingly, their integral part.

Consequently, the Court rejects the Government’s objection.

The alleged breach of Article 6 § 1 of the Convention.

From a general point of view the reasonableness of the length of the proceedings must be assessed with reference to the complexity of the case, the conduct of the applicant and that of the authorities before which the case was brought (cf. Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).

The Government contend that the proceedings commenced on 18 June 1992 when the applicant instituted proceedings before the High Court and, as stated above, ended on 24 September 1998, when the Supreme Court passed judgment.

As to the commencement the Government point out that it is the National Board of Industrial Injuries which determines whether an industrial injury falls within the scope of the Industrial Injury Act and what benefits the injured person is entitled to. The applicant chose to bring the case before the Social Appeal Board. However, neither under the Act nor according to case law is it a requirement that a decision by the National Board of Industrial Injuries be brought before the Social Appeal Board, or put in other words, the applicant could have brought the decision of 20 September 1984 directly before the High Court. Moreover, the Government note that even though the Social Appeal Board made its final decision in the proceedings as the instance of recourse on 5 April 1989, the applicant did not bring this decision before the courts right away. On the contrary, the applicant chose to complain to the Parliamentary Ombudsman, a complaint that was not necessary in order to bring the case before the courts. In addition, approximately two more years passed before the matter was brought before the High Court.

In the opinion of the Government the proceedings were complex and this element was of importance to the length of the proceedings. Since the applicant’s myopathy was not comprised by the list referred to in section 10, subsection 1 of the Industrial Injury Insurance Act, it had to be considered under section 10, subsection 3. Accordingly, information was required about the nature of the applicant’s disease, her work, and the causality between the myopathy and her work. It was therefore necessary to submit the matter to the Medico ‑ Legal Council twice and to procure an opinion from a medical specialist.

The Government endorse that what was at stake for the applicant required that the national authorities showed special diligence in the handling of the case and they find that such was shown.

The Government consider that the conduct of the High Court and the Supreme Court cannot give rise to any criticism. The total length of the proceedings before the High Court was two years, three months and nine days, including a reasonable scheduling period of six months and seven days. Before the Supreme Court the proceedings lasted three years, eleven months and sixteen days of which, being common in cases of the kind, a considerable period of time was spend on the parties’ preparation of questions to be put to the Medico-Legal Council and to the expert. The Government emphasise that the applicant at no time objected neither to questions being put to the Medico-Legal Council or to the expect, nor to any adjournment during the proceedings. In addition, the Supreme Court carefully monitored the proceedings by regularly sending reminders to the parties, requesting information on what had happened in the proceedings, and ensuring that time-limits were observed and that the proceedings progressed. Finally, recalling the nature of the Supreme Court the Government find that the scheduling period, which amounted to eleven months and eight days, cannot be considered unreasonable.

The applicant maintains that the proceedings commenced in 1984 when she claimed compensation from the National Board of Industrial Injuries. She points out that although the Industrial Injury Insurance Act does not contain any requirements that a decision from the National Board of Industrial Injuries must be appealed against to the Social Appeal Board before it can subsequently be brought before the ordinary courts, it is established practice that the administrative appeal system be exhausted beforehand. With reference to her own case she recalls that twice the Social Appeal Board quashed the decision taken by the National Board of Industrial Injury; on 22 May 1986 and 28 October 1988. Accordingly, not only was it reasonable and in the interest of procedural economy that the applicant exhausted the administrative appeal instance, that had also been the legislators’ intention by creating such.

The applicant endorses that a petition to a Parliamentary Ombudsman is not as such regarded as an effective remedy within the meaning of Article 35 of the Convention. However in the present case she points out that due to the Ombudsman’s intervention the Social Appeal Board was ordered to further reason its decision not to acknowledge her injury as an industrial one. Accordingly, the Social Appeal Board’s additional reasoning, submitted on 15 January 1990 to the Parliamentary Ombudsman had been essential for the applicant’s decision whether or not to bring the case before the ordinary courts.

The applicant contends that the case did not involve complex legal or factual issues that could explain such an excessive length of the proceedings. The only crucial element in the case concerned the question whether or not the pain in her neck, shoulders and arms could be acknowledged as an industrial injury under section 10, subsection 3 of the Industrial Injury Insurance Act. However, neither the medical evidence, nor the technical statement on the relevant working conditions had been complex or excessive.

Finally, the applicant submits that the case had significant importance for her and that therefore the authorities should have shown special diligence. Nevertheless, she had to await seventeen years before obtaining a clarification as to whether her suffering would be acknowledged as an industrial injury, and consequently what amount of compensation she was entitled to.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” and having regard to all the information in its possession, that an examination of the merits of the application is required.

For these reasons, the Court unanimously

Declares the [Note2] application admissible, without prejudging the merits of the case.

Søren Nielsen Christos Rozakis              Deputy Registrar President

[Note1] To be checked.

[Note2] If there was a partial decision where part of the complaints were already declared inadmissible.