FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 57204/00 by Ingelise ANDERSEN against Denmark

The European Court of Human Rights ( First Section) , sitting on 5 September 2002 as a Chamber composed of

Mr C.L . Rozakis , President , Mrs F. Tulkens , Mr P. Lorenzen , Mrs N. Vajić , Mr E. Levits , Mr A. Kovler , Mr V. Zagrebelsky , judges , and Mr E.Fribergh , Section Registrar ,

Having regard to the above application introduced on 29 March 2000,

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, Ingelise Andersen, is a Danish national , born in 1957 and living in Copenhagen, Denmark. The respondent Government are represented by their Agent, Mrs Nina Holst -Christensen, the Ministry of Justice.

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

As a result of a traffic accident in 1988 the applicant suffered a whiplash injury. Subsequently, on the basis of a calculation made by the National Board of Industrial Injuries ( Arbedsskadestyrelsen ) as to the applicant’s degree of disablement and her loss of working capacity she was granted compensation in the amount of 393,785 Danish kroner (DKK) from her insurance company, Zürich Forsikring A/S . However, having been granted free legal aid and being represented by a lawyer, on 18 September 1993 the applicant instituted civil proceedings in the High Court of Eastern Denmark ( Østre Landsret) against the insurance company claiming additional compensation.

Several court sessions were held in which written observations were submitted by the parties and in which a question whether the claim had become time-barred was resolved. Thus, sessions were held on 3 November and 22 December 1993, on 12 January, 23 February, 9 March, 23 March, 27 April, 11 May, 15 June, 24 August, 21 September, 12 October, 2 November, 30 November and 21 December 1994. At the latter court session the final hearing was scheduled to take place on 16 June 1995. At the final hearing the applicant’s partner and an insurance agent were heard as witnesses on the applicant’s behalf.

On 6 December 1995 the High Court pronounced its judgment finding for the insurance company.

The applicant applied for free legal aid to appeal against the judgment to the Supreme Court ( Højesteret) . However, on 23 January 1996 pursuant to Section 330 and Section 331 of the Administration of Justice Act ( retsplejeloven ), the Civil Law Directorate ( Civilretsdirektoratet ) rejected the application since, by referring to the High Court’s reasoning in its judgment of 6 December 1995, the Directorate did not find that the applicant would have reasonable prospects of being successful in an appeal, nor did it find that the case raised any issues of principle or that other special reasons would require that the applicant should be granted legal aid. Subsequent applications were rejected on the same grounds.

Nevertheless, on 30 January 1996, the applicant instituted appeal proceedings in the Supreme Court. On 17 April 1996 the applicant’s lawyer withdrew from the case and requested an adjournment of the proceedings pending the applicant’s retention of another counsel.

On 4 June and 15 July 1996, respectively, the applicant repeated the request which was granted. On 5 August 1996 a preliminary hearing was scheduled to take place on 11 September 1996, but on that day the applicant’s partner stated that, representing the applicant, he could not appear due to illness. The case was then rescheduled for 9 October 1996.

In the meantime the applicant’s partner had reported to the police that the insurance agent, who was heard as witness before the High Court, had given untruthful evidence. Finding the allegation unsubstantiated on 9 October 1996 the Police in Copenhagen dropped the case without further investigation.

In the period between 9 October 1996 and 14 March 1997 issues relating to the applicant’s requests for additional evidence were dealt with, inter alia that the National Board of Industrial Injuries be reheard on the basis of a supplementary opinion obtained from a specialist doctor and that, for the purpose of the Supreme Court’s assessment of the case, the insurance agent be re-examined before an alternative court.

On 14 March 1997 the proceedings were adjourned pending the re ‑ examination of the said witness before the City Court in Helsinge ( retten i Helsinge ) . On 11 April 1997 an attempt was made to schedule the re ‑ hearing, but the applicant requested an adjournment awaiting some further written material. On 10 June 1997 the Supreme Court called on the applicant to set a date for the re-examination and summon the witness before the alternative court. On 6 August 1997 the applicant retained legal representation anew. Due to a disagreement between the parties as to submission of some exhibits, a planned date for the re ‑ examination of the witness was adjourned from September until November 1997, but then had to be cancelled as the witness had fallen seriously ill. On 26 January 1998 the applicant informed the Supreme Court that the witness had to undergo surgery two months later.

On 16 March 1998 the applicant’s counsel resigned from the case. On 20 March 1998 the Supreme Court enquired whether the applicant wanted to retain new counsel, and reminded her about the setting of a date for a re ‑ hearing of the witness before the alternative court. By letter of 11 May 1998 and at a preliminary court session held on 26 May 1998 the applicant stated that she was seeking another counsel and that it had been impossible to carry out the examination owing to the witness’ condition, but that she would be notified when the witness had been reported well. The Supreme Court invited the applicant to reconsider whether to maintain that the witness be re-examined. Also, the Supreme Court scheduled a preliminary court session to take place on 12 August 1998.

However, on the basis of a letter from the applicant this session was cancelled on 11 August 1998. On that date, the Supreme Court furthermore requested a statement from the applicant, to be submitted within eight days, as to whether and in the affirmative when steps had been taken to carry out the re-examination of the witness before the alternative court. The Supreme Court was in possession of a letter of 3 June 1998 from the witness stating that he had been available for an examination since the end of March 1998. By letter of 18 August 1998, being represented once again by her partner, the applicant replied that she had not been acquainted with the insurance agent’s condition. She requested that his statement given before the High Court on 16 June 1995 be disregarded in the appeal proceedings. This was refused on 22 October 1998 by the Supreme Court, which at the same time expressed its presumption that the applicant’s letter of 18 August 1998 contained a waiver of the request to re ‑ hear the insurance agent. Thus, a court session was set for 11 November 1998. The applicant’s request to postpone this court session was refused by the Supreme Court. During the session the parties agreed that the further procedure could be in writing. Thus, in the period between 11 November 1998 and 24 August 1999 the Supreme Court received additional written submissions from the parties, and dealt with a dispute over new exhibits that the applicant wanted to submit.

On 6 October 1999 the Supreme Court upheld the High Court judgment .

COMPLAINTS

1. The applicant complains that the civil proceedings were not terminated within a reasonable time within the meaning of Article 6 § 1 of the Convention.

2. Further, with regard to the proceedings in the Supreme Court the applicant complains a) that she was not allowed to hear a witness, b) that two of the Supreme Court judges were partial, and c) that she was refused free legal aid. In this respect, the applicant also invokes Article 6 § 1 of the Convention.

3. Finally, the applicant invokes Articles 5, 8, 10 and 13 of the Convention without further specifying the reason therefor.

THE LAW

1. The applicant complains that the proceedings exceeded the reasonable time requirement set out in Article 6 § 1 of the Convention, which in so 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...”

As regards the period to be considered it is undisputed that the proceedings commenced on 18 September 1993 when the applicant instituted proceedings before the High Court and ended on 6 October 1999 when the Supreme Court pronounced its judgment . Thus, the total length of the proceedings, which the Court must assess under Article 6 § 1 of the Convention, was six years and eighteen days.

The Court recalls that the reasonableness of the length of the proceedings must be assessed in the light of the circumstances of the particular case and with regard to the criteria laid down in the Court’s case-law, notably 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).

Complexity of the case.

The Government contend that the case was complex and refer in this respect to the fact that the case concerned a claim for insurance payment on the occasion of a personal injury where it was considered necessary inter alia to assess the degree of disablement and loss of working capacity, to procure supplementary opinions from specialist doctors and to re-submit the case to the national Board of Industrial Injuries.

The Court, although satisfied that the case raised factual questions of some complexity, does not consider that this alone could justify the length of the proceedings.

The applicant’s conduct

In the Government’s opinion the applicant contributed considerably to prolonging the proceedings before the Supreme Court, partly by changing counsel twice, partly by maintaining her request for a re-examination of the witness and notably since she apparently did nothing to get the examination carried out after the witness was available.

The applicant recalls that the two counsel retained to represent her in the proceedings before the Supreme Court both resigned from the case. She maintains that the last counsel tried in vain to summon the insurance agent to the re ‑ examination. Whenever a session had been scheduled for this purpose before the alternative court, allegedly the witness somehow succeeded in avoiding giving the statement. It was only after her second counsel had resigned and it proved impossible for her to find another lawyer that the witness declared himself prepared to give statement. However, the applicant was not capable herself of carrying out such a complex subsidiary hearing.

As to the two counsel, representing the applicant during the Supreme Court proceedings who both resigned from the case, the Court recalls its case-law that the applicant is to be held responsible for the possible delays caused by her representative (e.g. Capuano v. Italy judgment of 25 June 1987, Series A no. 119, p. 12, § 28 and Kjeld Andersen v. Denmark (dec.), no. 43519/98, 7 December 2000, unreported), and that in the assessment of the applicant’s conduct, delays caused by a change of lawyers are circumstances which can be taken into account to her detriment.

In the present case the first counsel resigned on 17 April 1996 and subsequently the applicant requested several times an adjournment of the proceedings pending her retention of another lawyer. Thus, the first preliminary hearing was not scheduled to take place until 11 September 1996, on which day the applicant’s representative, being her partner and not a counsel, called in sick. When the applicant’s second counsel (engaged in August 1997) resigned from the case on 16 March 1998, the applicant replied on 11 and 26 May 1998 to the Supreme Court’s enquiry of 20 March 1998 that she intended to seek another legal representation.

Accordingly, in the Court’s view at least a delay of 7 months can be attributed to the fact that the applicant’s two counsel resigned.

With regard to the applicant’s wish to procure additional evidence during the appeal proceedings, notably her request for a subsidiary hearing of the insurance agent, the Court notes that the Supreme Court called on the applicant to set a date for the re-examination and to summon the witness before the alternative court i.e. the City Court in Helsinge . Nevertheless, from 14 March 1997 when the Supreme Court proceedings were adjourned pending the subsidiary hearing until 22 October 1998 when the Supreme Court expressed its presumption that the request had been waived, that is a period of more than one year and seven months, the applicant did not succeed in re-hearing the witness. Finally, the Court notes that the Supreme Court regularly reminded the applicant to set a date for the subsidiary hearing, and at least once invited her to reconsider whether to maintain that the witness be re-examined.

In these circumstances the Courts finds that the applicant’s conduct prolonged the proceedings and also caused unnecessary delays.

Conduct of the national authorities

In the Government’s view the conduct of the courts does not give rise to any criticism although the proceedings were apparently inactive before the High Court from the pre-trial review on 21 December 1994 until the trial on 16 June 1995, and from 23 June 1995, when the case was set down for judgment , until it was pronounced on 6 December 1995. As to the latter elapse of time the Government point out that the case was set down for judgment immediately before the summer holiday period, but nevertheless viewed in the context of the total length of the proceedings, these periods cannot entail criticism of the length of the proceedings.

The Court reiterates that only delays attributable to the State may justify a finding of failure to comply with the "reasonable time" requirement (see e.g. Ciricosta and Viola v. Italy judgment of 4 December 1995, Series A no. 337-A, p. 10, § 28).

The Court recalls that before the High Court the proceedings lasted two years, two months and eighteen days including the scheduling time i.e. the period from when the case was ready for trial until the trial actually commenced and including the period during which the judgment was to be drafted and pronounced.

The Court finds that the length of these proceedings respected the ”reasonable time” requirement.

The proceedings before the Supreme Court lasted three years, eight months and seven days.

Such a period may at first sight seem excessive. However, with reference to the findings above concerning the applicant’s conduct, the Court considers that the main reason for the length of these proceedings cannot be attributed to the Supreme Court.

In these circumstances, and although the proceedings before the High Court of Eastern Denmark and the Supreme Court lasted a total of six years and eighteen days, the Court finds that the case does not disclose such periods of inactivity or delays attributable to the State which would violate Article 6 § 1 of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

2 a). The applicant further complains, with regard to the proceedings in the Supreme Court, that she was not allowed to hear the insurance agent as witness.

To the extent that the applicant complains about assessment of the evidence and the result of the proceedings before the national courts, the Court recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties in the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, amongst other authorities, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

Furthermore, the Courts reiterates that the right to a fair hearing entails, in both civil and criminal proceedings, that everyone who is a party to such proceedings shall have reasonable opportunity of presenting their case to the court under conditions which do not place him or her at a substantial disadvantage vis-à-vis his or her opponent, the essential aim being an equality of arms in the proceedings (see, among other authorities, Dombo Beheer B.V. v. the Netherlands judgment of 27 October 1993, Series A no. 274, p. 19, § 33; Ankerl v. Switzerland judgment of 23 October 1996 , Reports of Judgments and Decisions 1996-V, pp. 1567 ‑ 68, § 38 and the Nideröst -Huber v. Switzerland judgment of 18 February 1997, Reports 1997-I, p. 107, § 23).

In the present case in March 1997 the Supreme Court initially granted the applicant’s request that the proceedings be adjourned pending the re ‑ examination of the witness before an alternative court. In March 1998 the Supreme Court invited the applicant to reconsider whether to maintain that the subsidiary hearing be carried out. Finally, having received the applicant’s letter of 18 August 1998, the court presumed that she had waived her request for the re-hearing and accordingly proceeded with the case without a re-examination of the witness but taking into consideration the insurance agent’s statement as submitted by him in the High Court on 16 June 1995.

The Court finds no elements which would suggest that the Supreme Court went beyond its discretion to proceed with the case without a subsidiary hearing of the said witness or that the applicant thereby was placed at a disadvantage vis-à-vis her opponent to such an extent that the proceedings were at variance with Article 6 § 1 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

b). As regards the complaint that two of the judges in the Supreme Court were partial the applicant submits in support of this that they participated in the preliminary written preparation of the case and that one of them is a member of the Insurance Complaint Board ( Anken ævnet for Forsikring ). The Court recalls that under Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. This condition is not met by the mere fact that an applicant has submitted his or her case to the various competent courts. It is also necessary for the complaint brought before the Court to have been raised by the applicant, at least in substance, during the proceedings in question. On this point the Court refers to its established case-law (see e.g. the Cardot v. France judgment of 19 March 1991, Series A no. 200, p. 18, § 34 and Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). In the present case the Court finds that in the proceedings before the Supreme Court the applicant failed to raise either in form or in substance the complaint that is made to the Court. It follows that this part of the application is inadmissible for non ‑ exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

c). As regards the applicant’s complaint that she was not granted legal aid the Court recalls that Article 6 § 1 of the Convention does not guarantee a right to free legal aid in all civil cases (cf. e.g. Nicholas v. Cyprus (dec.), no. 37371/97, 14 March 2000 and Gnahore v. France , no. 40031/98, ECHR-IX). Also, it reiterates that Article 6 guarantees effective access to court in the determination of civil rights, which guarantee includes, in certain cases, the assistance of a lawyer when such assistance proves indispensable by reason of the complexity of the case in question ( Airey v. Ireland judgment of 9 October 1979, Series A no. 37, pp. 15-16, § 26).

In the present case the Civil Law Directorate rejected the application for legal aid since, by referring to the High Court’s reasoning in its judgment of 6 December 1995, it did not find that the applicant would have reasonable prospects of being successful in an appeal, nor did it find that the case raised any issues of principle or that other special reasons would require that the applicant should be granted legal aid.

The Court points out that the authorities necessarily have a certain discretionary power in this respect. It notes that the applicant has not submitted evidence which could lead to conclude that the decision was arbitrary. Moreover, the Court recalls that in fact the applicant did have her dispute determined before the courts, albeit at her own expense, and it finds that the applicant had sufficient opportunity to present her arguments to the Supreme Court.

In these circumstances, the Court considers that the refusal to continue legal aid in the appeal proceedings did not deprive the applicant of a fair hearing within the meaning of Article 6 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

3. Finally, as to Articles 5, 8, 10 and 13 of the Convention the Court has examined this part of the application as submitted by the applicant. In the light of all the material in its possession, the Court finds that this does not disclose any appearance of a violation of the rights and freedoms set out in the invoked Articles of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Erik Fribergh Christos Rozakis Registrar President