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CASE OF A AND OTHERS v. DENMARKJOINT DISSENTING OPINION OF JUDGES RYSSDAL, MATSCHER AND

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Document date: February 8, 1996

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CASE OF A AND OTHERS v. DENMARKJOINT DISSENTING OPINION OF JUDGES RYSSDAL, MATSCHER AND

Doc ref: • ECHR ID:

Document date: February 8, 1996

Cited paragraphs only

JOINT DISSENTING OPINION OF JUDGES RYSSDAL, MATSCHER AND

FOIGHEL

We do not agree that there has been a violation of

Article 6 para. 1 (art. 6-1) of the Convention in the present

case.

It is, of course, regrettable that several years passed

until the preparatory stage of the case was completed and a date

for the hearing could be fixed. However, in our opinion the

responsibility for this lies essentially with the applicants and

their lawyer.

The Court has found that the periods to be taken into

consideration started to run on 23 November 1989 and on

22 March 1990 respectively as it was only from these dates that

the applicants as individual plaintiffs could be regarded as

victims of the alleged breach of Article 6 (art. 6) (see

paragraph 64 of the judgment). However, even accepting this

point of view, it is important to note that the applicants on

these dates had not put forward specific claims to be determined

by the domestic court. Moreover, on 5 February 1992 they

substituted all of their previous pleadings and reformulated

their arguments. It was not until 17 June 1993 that they set out

preliminary claims. Their finalised claims for damage were only

presented at a hearing on 4 November 1993. At the same time one

of the applicants, Mr E, withdrew from the case.

In the meantime, the applicants had requested or

accepted a large number of adjournments, partly because of

protracted discussion as to the appointment of medical experts

and on questions to be put to them, partly because the applicants

considered it necessary to provide further evidence in order to

substantiate their claims. It is true that also the defendants

asked for or consented to a number of adjournments. But on

11 November 1992 counsel for the defendants called for a meeting

in order to expedite the proceedings and the President of the

High Court stated on two occasions - in October 1992 and in

March 1993 - that each adjournment had been made at the joint

request of counsel for both parties.

Throughout the long-lasting preparatory stage the

domestic court had regard to what was at stake for the applicants

in their complex and important case. There were no inactive

periods and, in our opinion, it has to be accepted that the court

granted extensions which it considered to be in the interests of

the applicants.

The period between the end of the preparatory stage in

March 1994 and the hearing - which began in November 1994 - may

seem to be too long. However, counsel for the applicants

indicated that it would be very difficult for him to accept a

date before the summer break. In addition, the adjournment from

24 October to 28 November was decided at the applicants' request.

The hearing lasted seventeen days and the High Court delivered

its judgment on 14 February 1995. Three of the applicants

appealed to the Supreme Court and it is noteworthy that they have

not made any objection as to the length of the appeal

proceedings.

In sum, even bearing in mind the special diligence owed

by national authorities in cases such as the present, there were,

in our opinion, no delays attributable to the State which may

justify the finding that a reasonable time has been exceeded in

the present case.

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