FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 23890/06
by Milorad GAVRIC
against Denmark
The European Court of Human Rights (Fifth Section), sitting on 16 September 2008 as a Chamber composed of:
Rait Maruste, President,
Peer Lorenzen,
Volodymyr Butkevych,
Renate Jaeger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 9 June 2006,
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, Milorad Gavric, is a Danish national who was born in 1947 and lives in Fuglebjerg. He was represented before the Court by Mr Tyge Trier, a lawyer practising in Copenhagen. The Danish Government (“the Government”) were represented by their Agent, Mrs Nina Holst‑Christensen, of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was employed as an abattoir worker.
On 26 October 1992 he sustained an injury while transporting slaughtered pigs to a cooling room on devices called “Christmas trees”. The transportation took place by pushing the devices along a rail system in the ceiling. While pushing, suddenly the applicant suffered intense back pains. He went to see a doctor on 2 November 1992 and went on sick leave from 20 November 1992.
On 29 December 1992 his employer notified the Danish Working Environment Authority (Arbejdstilsynet).
On 28 January 1993 the applicant’s insurance company filed a claim about the incident with the National Board of Industrial Injuries (Arbejdsskadestyrelsen) and on 26 March 1993, the applicant submitted a form, in which he provided a summary of the accident. He specified that while pushing the devices along the rail system, he had reached for a switch and accordingly had to give an extra push, whereby he strained his back and fell to his knees due to sharp pains. He replied in the negative to a question on the form as to whether he slipped, fell or stumbled.
On 4 May 1993 the applicant’s request for compensation was refused by the National Board of Industrial Injuries on the grounds that the injury could not be recognised as an industrial injury under section 9, subsection 1(i) and (ii) of the Act on Protection against the Consequences of Industrial Injuries (Arbejdsskadeforsikringsloven) then applicable.
In October and December 1993 the applicant appealed against the decision to the Social Appeals Board (Den Sociale Ankestyrelse).
In addition, on 17 January 1994 he requested that the National Board of Industrial Injuries reopen the case. Later, during the proceedings he submitted a statement of 13 October 1994 by a medical expert, to whom the applicant had explained that, on the day of the accident, he slipped on the greasy floor, lost his balance, and fell on his knees. In that connection he suddenly felt the sharp pain in his back. The applicant’s request was refused on 9 November 1994.
On 5 December 1994 the applicant appealed against that decision to the Social Appeals Board, which on 15 February 1995 upheld the parts of the decisions of the National Board of Industrial Injuries of 4 May 1993 and 9 November 1994 concerning section 9, subsection 1(i) of the Act on Protection against the Consequences of Industrial Injuries then applicable. At the same time, the Social Appeals Board remitted the part of the case that related to section 9, subsection 1(ii) of the Act on Protection against the Consequences of Industrial Injuries then applicable to the National Board of Industrial Injuries, requesting the Board to obtain further information with a view to determining whether the incident could be recognised as having caused a short-term injury.
On 9 November 1995 the National Board of Industrial Industries decided that the incident of 26 October 1992 could not be recognised as having caused a short-term injury under section 9, subsection 1(ii) of the said Act.
On 7 December 1995 the applicant appealed against this decision to the Social Appeals Board, which upheld it on 13 September 1996.
On 11 June 1997 the applicant brought the case before the High Court of Eastern Denmark (Østre Landsret).
The pre-trial proceedings lasted from 11 June 1997 until 30 June 2000. During this period the applicant requested seven times, and was granted, an extension of a time limit set by the High Court. The case was brought before the Medico-Legal Council (Retslægerådet), which delivered an opinion and a supplementary opinion. On 30 June 2000 the High Court closed the pre‑trial proceedings and offered to schedule the trial in August or September 2000. This was refused by the applicant, and the trial was then initially scheduled for 22 March 2001. Due to rescheduling, however, the trial was ultimately conducted on 6 December 2000. The applicant and two witnesses were heard and substantial documentary material was submitted.
A judgment was passed in favour of the Social Appeals Board on 18 January 2001. The applicant was ordered to pay costs to the opponent party amounting to a total of 15,000 Danish kroner (DKK) (approximately 2,000 euros (EUR)).
On 6 February 2001 the applicant appealed against the judgment to the Supreme Court (Højesteret). He stated that he wanted further witness testimony and reserved the right to put supplementary questions to the Medico-Legal Council.
Before the Supreme Court the pre-trial proceedings lasted from 6 February 2001 until 12 December 2005. The trial was held on the latter date. During this period, the applicant requested fifteen times, and was granted, an extension of a time limit set by the Supreme Court and three times the applicant and the Social Appeal Board jointly were granted an extension of a time limit. The case was brought before the Danish National Institute for Occupational Health (Arbejdsmiljøinstitutet) and once again before the Medico Legal Council.
The trial took place as scheduled on 12 December 2005 and by judgment of 19 December 2005 the Supreme Court upheld the High Court’s judgment. The applicant was ordered to pay costs to the opponent party amounting to DKK 75,000 (approximately EUR 10,000).
B. Relevant domestic law and practice
With regard to civil proceedings the Administration of Justice Act reads in as far as relevant:
Section 312
(1) The losing party shall compensate the opponent for the expenses inflicted on the opponent by the proceedings, unless otherwise agreed by the parties.
(2) The court may decide that the losing party shall not or shall only partially compensate the opponent for the expenses inflicted if particular reasons make it appropriate.
(3)...
Thus, although Danish law does not refer to a remedy specifically designed or developed to provide redress in respect of complaints about an excessive length of civil proceedings, accordingly to domestic case-law, in civil proceedings initiated by an individual against or involving Government Institutions, if the courts, having examined a length of proceedings complaint, finds a violation, they may grant redress therefore by, for example, exempting the individual from paying legal costs or by deciding that expenses and fees shall be covered by the Treasury (see, inter alia, Kirsten Norman v. Denmark (dec.), no. 44704/98, 14 June 2001).
To illustrate that section 312, subsection 2 of the Administration of Justice Act is an effective remedy for providing adequate redress for a violation of Article 6 § 1 of the Convention in civil lawsuits of this nature, the Government referred to the decision of the Supreme Court of 24 April 2003 published in the Weekly Law Review (Ugeskrift for Retsvæsen) 2003, page 1550 (U 2003.1550 H). In that case the Supreme Court upheld a High Court judgment in a case filed by a child and its parents against a County Council. Even though the plaintiffs lost the case, the Supreme Court, taking into account the extraordinary length of the legal proceedings, invoked section 312, subsection 2 and exempted the plaintiffs from compensating the County Council for its legal costs. When doing so the Supreme Court explicitly referred to Article 6 of the Convention.
COMPLAINTS
The applicant complained under Article 6 of the Convention that the proceedings exceeded the reasonable time requirement within the meaning of Article 6 of the Convention.
Moreover, invoking Article 13 of the Convention, he complained that he did not have at his disposal an effective domestic remedy for his complaint about the length of the proceedings.
THE LAW
1. The applicant complained that the proceedings had exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention, which in so far as relevant provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
The Government contended that the complaint should be declared inadmissible due to non-exhaustion of domestic remedies because the applicant had failed to raise before the Danish courts, either in form or substance, the complaint made to the Court.
The applicant disagreed.
The Court reiterates that the purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). The Court also reiterates that the burden of proving the existence of an effective and sufficient remedy lies upon the State invoking the rule (see among others Vernillo v. France, judgment of 20 February 1991, Series A no. 198, § 27, Dalia v. France, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, § 38 and Susini and others v. France (dec.), no. 43716/98, 8 October 2002).
At the relevant time, Danish law did not refer to a remedy specifically designed or developed to provide redress in respect of complaints about an excessive length of civil proceedings. According to domestic case-law, however, in civil proceedings initiated by an individual against or involving government institutions, if the courts, having examined a length of proceedings complaint, find a violation, they may grant redress therefore by, for example, exempting the individual from paying legal costs or by deciding that expenses and fees shall be covered by the Treasury (see, inter alia, Hansen and others v. Denmark (dec.), no. 26194/03 and Kirsten Norman v. Denmark (dec.), no. 44704/98, 14 June 2001).
It is not in dispute that, before the domestic courts, the applicant did not complain about the length of the proceedings in form or in substance.
Moreover, the Court notes that the applicant was not granted free legal aid and that altogether he was ordered to pay costs to the opponent party by the High Court and the Supreme Court in the total amount of approximately EUR 12,000. Thus, had the applicant submitted his length of proceedings complaint before the High Court or the Supreme Court, and had the courts found a failure to observe the reasonable time requirement, they could have granted redress therefore by exempting or partially exempting the applicant from paying legal cost.
In these circumstances, the Court finds that the applicant failed to avail himself of a remedy which may be considered effective for the purposes of Article 35 § 1 (see, Pindstrup Mosebrug A/S (dec.), 34943/06, 3 June 2008 and, mutatis mutandis, Ugilt Hansen v. Denmark (dec.), 11968/04, 26 June 2006).
It follows that this part of the application must be rejected pursuant to Article 35 § 4 of the Convention.
2. The applicant further complained that he had not had an effective remedy in respect of his complaint about the excessive length of the proceedings. He relied on Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Referring to its objection above under Article 6 § 1 of the Convention, the Government contended that the applicant could not be considered to be a victim of a violation of Article 13 of the Convention. In the alternative, the complaint should be declared inadmissible as being manifestly ill-founded, because the applicant had access to an effective remedy as required by Article 13 of the Convention, but chose not to make use of it.
The applicant disagreed.
As the Court has held on many occasions, Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint; however, the remedy required by Article 13 must be “effective” both in law and in practice (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI).
In the present case, even assuming that the applicant had an arguable claim under Article 6 of the Convention and that he can claim to be a victim of Article 13 of the Convention, for the reasons set out under the complaint as regards Article 6 of the Convention, in the present case the Court finds effective the remedy provided for by Danish case-law, whereby in civil proceedings initiated by an individual against or involving a public authority, the courts may grant redress for a length of proceedings violation by, for example, exempting the individual from paying legal costs or by deciding that expenses and fees shall be covered by the Treasury (see Pindstrup Mosebrug A/S (dec.), quoted above).
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.
Claudia WesterdiekRait Maruste
RegistrarPresident
Full & Egal Universal Law Academy