SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 44704/98
by Kirsten NORMANN
against Denmark
The European Court of Human Rights (Second Section), sitting on 14 June 2001 as a Chamber composed of
MrC.L. Rozakis, President,
MrA.B. Baka,
MrG. Bonello,
MrsV. Strážnická,
MrP. Lorenzen,
MrM. Fischbach,
MrA. Kovler, judges,, judges,
MrE. Fribergh, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 23 February 1998 and registered on 27 November 1998,
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, Kirsten Normann, is a Danish national, born in 1945 and living in Kastrup, Denmark. She is represented before the Court by Mr M. Alstrom, a lawyer practising in Copenhagen.
The respondent Government are represented by their Agent, Ms N. Holst-Christensen of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
By judgment of 30 October 1991 the City Court of Copenhagen (Københavns Byret) granted the applicant a divorce from her husband M.N. The division of their property was not decided in the judgment, but the parties’ lawyers had already before the judgment commenced negotiations on this question. As they were unable to reach an agreement the Probate Court of Tårnby (Skifteretten for Tårnby retskreds) was asked, in the beginning of 1992, to decide the matter.
On 18 March 1992 a preliminary court session was held with the parties and their lawyers and certain questions were agreed. The Probate Court decided to adjourn the case in order to enable the parties to reach an out‑of‑court settlement on the remaining issues. As this appeared to be impossible, a court session was held on 20 August 1992, where the court decided that the division should take place under the court’s supervision (offentligt skifte) and appointed a lawyer to assist the court, hereinafter called the assisting lawyer.
In the meantime, on 15 April 1992, the applicant was granted free legal aid by the County of Copenhagen (Københavns Statsamt).
After fruitless attempts to sell real estate in Denmark and Spain belonging to M.N., the latter’s lawyer, on 25 October 1993, asked the assisting lawyer to convene a new preliminary court session. This session was held on 16 February 1994, where the parties agreed on certain proposals and were asked to consider other proposals put forward by the assisting lawyer. A preliminary court session scheduled for 27 May 1994 was cancelled due to the death of the assisting lawyer. Subsequently, the Probate Court appointed a new assisting lawyer.
A preliminary court session scheduled for 31 October 1994 was adjourned by the court, first to 7 November and then to 6 December 1994. The applicant was now represented by a new lawyer. The assisting lawyer agreed to produce a provisional inventory of the estate which was done on 22 December 1994.
In letters of 4 January, 12 January and 24 April 1995 the applicant’s lawyer informed the assisting lawyer of certain alleged shortcomings in the provisional inventory and invited him to gather further information on various questions and initiate legal proceedings in order to accelerate the sale of the real property.
On 22 May 1995 the assisting lawyer produced a new provisional inventory and a preliminary court session was scheduled for 20 June 1995. The session was, however, cancelled by the Probate Court. A new preliminary court session was scheduled for 12 September 1995, but was apparently also cancelled by the court.
In the period September - December 1995 M.N. changed lawyer twice. In a letter of 11 December 1995 the applicant’s lawyer asked the Probate Court to fix a preliminary court session before the end of January 1996. A session scheduled for 15 January 1996 was cancelled at the request of M.N.’s lawyer and a session scheduled for 12 February 1996 was cancelled due to the fact that M.N. had once more changed lawyer.
On 2 April and 15 May 1996 the applicant’s lawyer asked the Probate Court to fix a new preliminary court session. A court session was held on 25 June 1996. A transcript of the session was apparently not made. According to the applicant the case was adjourned in order to clarify certain questions and no decisions of substance were made.
In October 1996 M.N. once more changed lawyer. In letters of 18 October 1996 the applicant’s lawyer complained to the Probate Court and the assisting lawyer about the length of the proceedings. A preliminary court session was then held on 20 November 1996, but apparently no transcript was made. According to the applicant no questions of substance were decided, but the court indicated that some problems relating to the real estate in Spain were to be examined further. In a letter of 19 December 1996 the applicant’s lawyer reminded the assisting lawyer to progress the examination of the problems relating to the property in Spain.
During the first months of 1997 further information on the real estate in Spain was obtained. On 13 March 1997 the assisting lawyer asked the Probate Court to convene a preliminary court session mainly to decide on the real estate in Denmark. A session was held on 13 May 1997, but no decisions were taken.
In a court session on 30 May 1997 the question of the real estate in Denmark was pleaded, and the parties were later informed that judgment would be pronounced on 25 July 1997. On 8 August 1997 they were informed by the court that the pronouncement had been delayed. The judgment on this question was pronounced on 8 January 1998.
In the meantime further information on the real estate in Spain was obtained, including a report on the valuation of the property. At the request of the applicant’s lawyer a court session was held on 28 October 1997, but apparently no decisions were taken. Preliminary court sessions were scheduled for 18 November and 3 December 1997 and 9 January 1998, but there is no information on the outcome.
On 19 November 1999 the Probate Court decided to approve a final draft for the division, according to which the applicant apparently will receive 382,741 Danish kroner (DKK) from her former husband. As to the length of the proceedings the Probate Court stated:
“Taking the high uncertainty of the real value of the house in Spain into account, thereby rendering it doubtful whether the estate as a whole is actually solvent, the Probate Court decides that the expenses connected with the administration of the estate ... including the fees to the appointed lawyers shall all be covered by the Treasury. In doing so the Probate Court has also taken into account that the duration of the proceedings has been unreasonably excessive compared with the requirement that follows, inter alia, from the European Convention on Human Rights. However, by letting the Treasury cover these expenses the Probate Court finds that the parties have been given full compensation therefor.”
It appears that an appeal has been lodged against the decision with the High Court of Eastern Denmark (Østre Landsret) where it is at present pending.
COMPLAINTS
The applicant complains, under Article 6 § 1 of the Convention, that the case against her former husband concerning division of their property has not been determined within a reasonable time.
THE LAW
The applicant complains that the length of the civil proceedings exceeds the reasonable time requirement set out in Article 6 § 1 of the Convention which, in as far as relevant, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
The Government submit that the applicant can no longer claim to be a victim within in the meaning of Article 34 of the Convention, since on 19 November 1999 the Probate Court acknowledged the alleged violation of the Convention due to the excessive length of the proceedings, and therefore exempted the applicant from paying the fees to her counsel and the costs related to the proceedings in the Probate Court.
The Government point out that the expenses to be paid to the applicant’s lawyers amount to DKK 452,737. As regards the expenses related to the Probate Court proceedings these amount to DKK 262,666, consisting of expenses to the first assisting lawyer amounting to DKK 12,500, expenses to the second assisting lawyer amounting to DKK 221,000, and finally expenses related to the valuations of property amounting to DKK 29,166.
With regard to the above expenses amounting to DKK 262,666, the Government submit that these would normally be divided between the parties according to usual probate court practice. However, a person who is granted free legal aid throughout the proceedings will only be ordered to pay his or her share of the costs in the Probate Court proceedings and the fees for his or her counsel, if the outcome of the division of the matrimonial property so justifies. If such a party receives a major cash amount after the division of the matrimonial property, it is firm practice to order the party to pay at least part of the costs and fees. Thus, since according to the estate inventory, the applicant stands to receive DKK 382,741 in cash from her former husband, the Government alleges that the applicant in the present case has in fact been exempted from defraying expenses of which she would normally have to pay at least a part.
The applicant maintains that the Probate Court’s exemption of her from defraying expenses does not constitute any actual, or at any rate significant, financial compensation for the alleged violation of Article 6 of the Convention. Consequently, she has not ceased to be a victim in the sense of the Convention.
The applicant points out that the Probate Court’s decision that the Treasury covers the expenses was first and foremost based on the uncertainties with regard to the actual value of the assets and that the total property to be divided therefore might be of negative value. The Probate Court only mentioned the length of the proceedings and the European Convention on Human Rights second to the above considerations on the value of the property.
Moreover, the applicant notes that as the applicant was granted free legal aid in 1992, the expenses related to her lawyer’s fees were already borne by the Treasury. Also, in cases like the present where property division is concluded through a settlement, assisted by the Probate Court, it is not uncommon that the court waives certain expenses.
The Court notes that an applicant’s status as a “victim” within the meaning of Article 34 of the Convention may depend on compensation being awarded on the basis of the facts about which he or she complains before the Court. In cases concerning complaints of length of proceedings the domestic authorities must have acknowledged, either expressly or in substance, the alleged infringement of the Convention and, if necessary, provided redress in relation thereto. Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Eur. Court HR, Eckle v. Germany judgment of 15 July 1982, Series A no. 51, p. 32 §§ 69 et seq., application no. 10868/84, decision of 21 January 1987, DR 51, p. 62 and application no. 13156/87, decision of 16 February 1993, DR 74, p. 5).
In the present case the Court notes that the applicant was granted free legal aid in 1992 and, therefore, was already exempted from paying the fees to her lawyer. Thus, a decision taken on 19 November 1999 to exempt her from paying these expenses cannot constitute an actual redress in relation to the Convention.
As for the costs related to the proceedings in the Probate Court, the Court does not find it established on the basis of the material submitted that the applicant would have been obliged to pay these costs or a part thereof, notwithstanding the findings of the Probate Court on 19 November 1999. In this respect the Court further notes that according to the information available, the division has not at all become final, but is pending on appeal before the High Court of Eastern Denmark. Thus, the Court cannot share the view of the Government that the applicant in fact has been exempted from paying such an amount that it constitutes a redress in relation to the alleged violation of the Convention thereby precluding the examination of the application.
In these circumstances the Court finds that the applicant may claim to be a victim of the alleged violation of Article 6 § 1 of the Convention.
In respect of this complaint the Court considers, in the light of the criteria established by the case-law of the Court 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.
Erik FriberghChristos L. Rozakis
RegistrarPresident
Full & Egal Universal Law Academy