Resolution CM/ ResDH (2012) 73 [1]

Execution of the judgments of the European Court of Human Rights

Christensen, Valentin and Nielsen against Denmark

(Christensen, application No. 247/07, judgment of 22/01/2009, final on 22/04/2009,

Valentin , application No. 26461/06, judgment of 26/03/2009, final on 26/06/2009,

Nielsen, application No. 44034/07, judgment of 02/07/2009, final on 02/10/2009)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern the excessive length of civil proceedings and the lack of an effective remedy in this respect in the cases of Christensen and Valentin , as well as the unjustified interference with the applicant ’ s right to peaceful enjoyment of his possessions in the case of Valentin (violations of Article 6, paragraph 1, of Article 13 and of Article 1 of Protocol No. 1) (see details in Appendix);

Having invited the government of the respondent State to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent State paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent State, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent State (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2012) 73

Information on the measures taken to comply with the judgments in the cases of

Christensen, Valentin and Nielsen against Denmark

Introductory case summaries

These cases concern the excessive length of civil proceedings (violations of Article 6, paragraph 1). In the case of Christensen, proceedings for medical malpractice had lasted almost 11 years at two levels of jurisdiction when they ended on 15/06/2006. In the case of Nielsen, proceedings concerning the applicant ’ s responsibility for stripping the assets of his former company had lasted for 11 years and two months at one level of jurisdiction when they ended on 10/12/2008. In the case of Valentin , b ankruptcy proceedings lasted for 17 years and four months at three levels of jurisdiction before they ended on 20/12/2005.

In the cases of Christensen and Valentin , the Court also found that the applicants did not have at their disposal an effective remedy to complain about the length of the proceedings (violations of Article 13).

Lastly, in the case of Valentin , the Court also found an unjustified interference with the applicant ’ s right to peaceful enjoyment of his possessions as he had been deprived of the possibility to administer his assets for almost the entire duration of the proceedings, i.e. for almost 17 years (violation of Article 1 of Protocol No. 1).

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non- pecuniary damage

Costs and expenses

Total

Christensen

-

4000 EUR

-

4000 EUR

Paid on 16/02/2009

Valentin

-

16000 EUR

-

16000 EUR

Paid on 16/04/2009

Nielsen

-

6000 EUR

6000 EUR

Paid on 01/10/2009

b) Individual measures

It transpires from the Court ’ s judgments that the domestic proceedings in question had already ended when the Court delivered its judgments. It further transpires from the Court ’ s judgment in the case of Valentin that the remaining assets of the estate, minus the costs of administration of the estate, where handed over to the applicant when the domestic proceedings were closed. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

a) Legislative measures

As regards the length of proceedings (Article 6), the government considered that in the cases at issue the excessive length was closely linked to the special circumstances of these cases, and that the general obligation incumbent upon courts to take positive action to ensure respect of the reasonable-time requirement is today well anchored in Danish judicial practice, in particular following the Court ’ s judgment in the case of A. and others against Denmark (see Final Resolution ResDH (96)606, adopted on 15/11/1996).

As regards the lack of effective remedies to complain about the excessive length of proceedings (Article 13), the government indicated that even before the adoption of the Court ’ s judgment in the cases of Christensen and Valentin , new specific acceleratory remedies had been introduced to prevent excessive length of proceedings (section 152a of the Administration of Justice Act and section 127a of the Bankruptcy Act, with entry into force in January 2007 and July 2007). According to section 152a of the Administration of Justice Act, a party may request that the court fix a date for the main hearing if it is necessary to make sure that the case is heard within a reasonable time. This provision and the explanatory note refer explicitly to Article 6 of the Convention and Denmark ’ s obligations under that Article. According to section 127a of the Bankruptcy Act, a party may request that the court fix a time for e.g. the meeting of heirs, if it is necessary to ensure the fulfilment of Denmark ’ s obligations under Article 6 of the Convention. The government considers that these new acceleratory remedies, coupled with the existing possibilities of compensation under the Administration of Justice Act described in the Court ’ s judgment in the case of Christensen (see §102), will effectively prevent new violations of Article 13 of the Convention as they appear in this group of cases.

As regards the right to peaceful enjoyment of possessions (Article 1 of Protocol No. 1), it should be noted that the origin of this violation is to be found in the excessive length of the bankruptcy proceedings . For the duration of the bankruptcy proceedings, the liquidator administers the property and is responsible before the courts for all questions relating to it. The Court did not call into question such interference in the administration and representation of property in itself but only insofar as it lasted too long and thereby upset the balance between the individual interest of the bankrupt and the general interest of the creditors (see §§ 70-71 in the Valentin judgment) . The general measures required in this respect are thus identical with those already adopted to overcome the general problem of the excessive length of judicial proceedings (see above). The Danish authorities consider that the violation in the case of Valentin was an isolated incident due to its special circumstances and that similar violations in this respect will be prevented through the direct effect of the Convention and the Court’s case-law in Denmark (see below for details on publication and dissemination).

b) Publication and dissemination

The Court ’ s judgments in all three cases were sent out to the domestic courts and authorities involved in the proceedings. Moreover, in view of the direct effect of the Convention and the Court ’ s case-law in the Danish legal system, summaries in Danish were published in the periodical EU-ret og Menneskeret (EU Law and Human Rights Law), issues No. 2/2009, p. 152, No. 4/2009, p. 263 and No. 5/2009, p. 337.

III. Conclusions of the respondent State

The government considers that no individual measures are required apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that Denmark has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 6 June 2012 at the 11 44 th Meeting of the Ministers’ Deputies .