SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39581/98 by Egon Verner SKOUBO against Denmark

The European Court of Human Rights ( Second Section ), sitting on 9 March 2000 as a Chamber composed of

Mr C.L. Rozakis, President , Mr F. Fischbach,

Mr G. Bonello, Mrs V. Stráznická, Mr P. Lorenzen, Mr A.B. Baka, Mr E. Levits , judges , [Note1]

and Mrs S. Doll é , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 21 November 1997 and registered on 30 January 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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 is a Danish citizen, born in 1934.  He resides in Søborg , Denmark.  In the proceedings before the Court the applicant is represented by Mr Tyge Trier , a lawyer practising in Frederiksberg , Denmark.

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

On 18 March 1983 the applicant, who previously had been operated several times on his knees, underwent knee surgery at the National Hospital in Copenhagen ( Rigshospitalet ) .  According to the applicant the operation was carried out without his consent and seriously deteriorated his condition.

1. Administrative proceedings

On 28 April 1986 the applicant complained to the National Health Board ( Sundhedsstyrelsen ), hereinafter referred to as “the NHB”, about the treatment he had received in 1983.  The consideration of the case was apparently stayed at the request of the applicant until 29 January 1988, when he submitted a detailed complaint.

On 27 February 1989 the NHB expressed the view that the hospital treatment of the applicant had been neither erroneous nor negligent.  The same day his complaint was forwarded for decision to the newly established Patient Complaints Board of the Health Service ( Sundhedsvæsenets Patientklagenævn ), hereinafter referred to as “the PCB”.

Having received an opinion of 23 March 1990 from the NHB based on a re ‑ assessment of the case, the PCB decided the complaint on 26 October 1990.  The Board found that the applicant had not received sufficient information prior to the operation, but agreed with the NHB that no errors had been committed, nor had any negligence occurred in the treatment.

On 11 November 1990 the applicant requested the PCB to reassess his complaint.  Having received an opinion of 22 November 1991 from the NHB, the PCB on 10 December 1991 informed the applicant, that there was no base for re-opening the case.

On 18 December 1991 the applicant asked the PCB to answer some questions in relation to the NHB’s opinion of 22 November 1991.  The PCB received a further opinion of 21 February 1992 from the NHB, which was communicated to the applicant.  On 28 April 1992 and again on 19 June 1992, he requested the PCB to adjourn the case.  Based on a letter of 17 August 1992 from the applicant, the NHB submitted an opinion of 26 March 1993 in which the Board referred to its previous opinions.  The PCB forwarded the opinion to the applicant on 1 April 1993.

A further letter of 9 August 1993 from the applicant with a number of questions was answered by the PCB on 3 February 1994 with reference to an opinion of 15 December 1993 from the NHB.

2. Court proceedings

In order to suspend a limitation period the applicant, on 16 March 1988, brought an action before the High Court of Eastern Denmark ( Østre Landsret ) against the National Hospital claiming damages for alleged malpractice by one of the hospital’s doctors.  He claimed compensation in the amount of 80,000 Danish Crowns (DKK).  On the same day counsel for the applicant wrote to the National Hospital: “I have asked the High Court not to speed up the action as I should very much like to hear your opinion of the case before the merits of the action are considered.....” - allegedly with the aim to avoid court proceedings, if another operation could solve the problems.

A first preliminary hearing was held on 7 June 1988 and in the period up to 3 November 1992 a total of 24 preliminary hearings were held, all of which led to an adjournment of the case.  During the period from 7 June 1988 until 1 May 1990 the case was adjourned on 14 occasions to enable the applicant to present a written memorial.  Between 1 May 1990 and 15 January 1991 it was adjourned a further five times at the request of the parties in order to await a reply from the PCB.  The applicant was granted an adjournment on four subsequent occasions between 15 January and 5 November 1991 to consider a reply from the PCB and a possible new application to the Board, and in the period from 5 November 1991 until 3 November 1992 the case was adjourned twice awaiting a further reply from the PCB.

At a preliminary court hearing on 3 November 1992, the case was adjourned in order for the parties to draft questions for submission to the Medico-Legal Council ( RetslægerÃ¥det ).   Questions drafted by counsel for the applicant were sent to counsel for the defendant and to the court on 27 April 1993, and they were considered ready for submission to the Medico-Legal Council at a preliminary court hearing on 14 December 1993.  Due to an error on the part of the High Court the questions  - in total 31 - were however not forwarded to the Medico-Legal Council until 16 November 1994.  In the meantime the case was adjourned partly due to the applicant’s change of lawyer.  On 10 July 1995 the Medico ‑ Legal Council answered the questions.

During the period from 5 September 1995 until 25 June 1996 the case was adjourned on five occasions pending the applicant’s request for free legal aid and considerations concerning the size of his claim.  It appears from the transcripts of the court records that the presiding judge at a hearing on 21 March 1996 stated that the case ought to be concluded, and at a further hearing on 25 June 1996 the case was set for trial on 28 and 29 November 1996.

At a preliminary court hearing on 29 October 1996 counsel for the applicant requested an adjournment in order to obtain an opinion from the National Board of Industrial Injuries ( Arbejdsskadestyrelsen ), hereinafter referred to as “the NBI”, on the applicant’s degree of disablement and loss of working capacity.  It appears that the NBI had been asked for an opinion on 23 January 1996, but that the Board had only received a requested medical certificate upon which the applicant wanted to comment on 2 September 1996.  The presiding judge stated that the case had become unduly old and that an adjournment gave rise to serious hesitations.  However, taking into account the importance attached by counsel for the applicant to an opinion from the NBI, the court accepted a short adjournment.  The case was accordingly rescheduled for trial from 22 to 24 April 1997.

The opinion of the NBI was submitted on 17 April 1997 and the trial took place as scheduled.  By judgment of 17 June 1997 the High Court found in favour of the defendant.

On 11 August 1997 the applicant appealed against the judgment to the Supreme Court ( Højesteret ).   The parties filed written memorials by 26 May 1998, on which date the case was set for trial on 4 May 1999.  The hearing was adjourned, however, at the applicant’s request due to a change of lawyer.

On 6 December 1999 judgment was pronounced by the Supreme Court.  The applicant was awarded damages in the amount of 20,000 DKK.

COMPLAINTS

The applicant complains, under Article 6 §1 of the Convention, that his case against the National hospital was not determined within a reasonable time.

THE LAW

The applicant complains, under Article 6 § 1 of the Convention, of the length of the proceedings concerning the determination of his claim for damages.  According to the Government the relevant period began on 16 March 1988 when proceedings were instituted before the High Court of Eastern Denmark.  The applicant submits, however, that the relevant period began on 28 April 1986 when he complained to the NHB.  The proceedings came to an end on 6 December 1999.  Accordingly, they lasted at least more than 11 years.

The applicant considers that the length of the proceedings exceeds the reasonable time requirement set out in Article 6 § 1 of the Convention.  The Government contest this.

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

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

S. Doll é C.L. Rozakis Registrar President

[Note1] Judges names are to be followed by a COMMA and a MANUAL LINE BREAK ( Shift+Enter ). When inserting names via AltS please remove the substitute judge’s name, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Section Registrar.)