EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 18068/91
Wiktor Olesen
against
Denmark
REPORT OF THE COMMISSION
(adopted on 18 October 1995)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 17). . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2 - 4). . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5 - 12) . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 13 - 17). . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 18 - 38) . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 18 - 30). . . . . . . . . . . . . . . . . .3
B. Relevant domestic law
(paras. 31 - 38) . . . . . . . . . . . . . . . . .5
III. OPINION OF THE COMMISSION
(paras. 39 - 51) . . . . . . . . . . . . . . . . . . . .7
A. Complaint declared admissible
(para. 39). . . . . . . . . . . . . . . . . . . . .7
B. Point at issue
(para. 40). . . . . . . . . . . . . . . . . . . . .7
C. As regards Article 6 para. 1 of the Convention
(paras. 41 - 50). . . . . . . . . . . . . . . . . .7
CONCLUSION
(para. 51). . . . . . . . . . . . . . . . . . . . .9
APPENDIX: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 10
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Danish citizen, born in 1921. He is retired
and resides at Hirtshals. Before the Commission the applicant is
represented by Mr. Morten L. Wagner, a lawyer practising at Viborg.
3. The application is directed against Denmark. The respondent
Government are represented by their Agent, Mr. Laurids Mikaelsen, of
the Ministry of Foreign Affairs.
4. The case concerns the length of the proceedings in a liability
and compensation dispute between the applicant and a hospital. These
proceedings commenced in 1982 and are at present still pending. The
applicant considers that the dispute has not been determined within a
reasonable time and invokes in this respect Article 6 para. 1 of the
Convention.
B. The proceedings
5. The application was introduced on 15 July 1990 and registered on
11 April 1991.
6. On 2 September 1992 the Commission (Second Chamber) decided to
give notice of the application to the respondent Government and to
invite the parties to submit written observations on the admissibility
and merits of the applicant's complaint concerning the length of the
proceedings.
7. The Government's observations were submitted on 20 November 1992.
8. On 8 December 1992 the Commission granted the applicant legal aid
for the representation of his case.
9. On 31 March 1993 the applicant submitted his observations in
reply to those of the respondent Government.
10. On 5 July 1994 the Commission declared the application admissible
in so far it concerned the length of the proceedings. The remainder of
the application was declared inadmissible.
11. The text of the Commission's decision on admissibility was sent
to the parties on 20 July 1994 and they were invited to submit such
further information or observations on the merits as they wished. The
Government submitted further information and observations on
9 September 1994. On 30 March 1995 the applicant informed the
Commission that he maintained his position.
12. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
13. The present Report has been drawn up by the Commission (Second
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
MM. H. DANELIUS, President
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
14. The text of this Report was adopted on 18 October 1995 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
15. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
16. The Commission's decision on the admissibility of the application
is annexed hereto.
17. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
18. On 17 December 1973 the applicant was admitted to Hjørring
hospital for a prostate operation which was carried out on
20 December 1973. Certain unforeseen complications occurred as a result
of which the applicant was re-operated on the same day as well as the
following day. The applicant was discharged from the hospital on
5 January 1974.
19. Subsequently, the applicant experienced a certain deterioration
of his health and a number of medical examinations were made. In 1977
it was established that the applicant suffered from a so-called
pre-senile dementia and further medical examinations were carried out
in order to establish its cause. Following these examinations the
applicant became convinced that his illness derived from errors
committed by the medical staff during the operations in 1973 and on
15 January 1982 he therefore instituted proceedings in the High Court
of Western Denmark (Vestre Landsret) against the hospital. He claimed
damages in the amount of 800,000 DKK maintaining that the hospital
staff had committed errors during the operations which again had caused
the deterioration of his health. The parties agreed to request the
Medico-Legal Council (Retslægerådet), hereinafter "the Council", to
submit an expert opinion and by 1 June 1983 the parties had agreed on
the questions to be submitted to the Council.
20. The first expert opinion by the Council was submitted on
9 April 1984 and this was followed by further submissions from the
parties. On 25 February 1985 a preliminary hearing was held in court
during which the applicant requested access to the hospital's medical
records, a request which was apparently refused. Furthermore, the
question arose of asking the Council to submit additional explanations,
something which was finally agreed upon during another preliminary
court session held on 4 March 1986. The Council's further explanations
were submitted on 23 May 1986.
21. Nevertheless, it appears that further disagreements arose in
respect of access to the hospital's medical records and whether further
questions should be put to the Council. On 1 May 1987 another
preliminary court session was held during which the Court allowed the
applicant to put further questions to the Council whereas it appears
that his request for access to the hospital's medical records was
refused again. On 10 June 1987 the Council submitted that it was unable
to answer the remaining questions.
22. On 10 November 1987 the preparation of the case had finished and
the case was scheduled for the main hearing which took place on
12 April 1988. Judgment was pronounced on 28 June 1988. The applicant's
claims for damages were rejected as the Court did not find it
established that medical errors had been committed by the hospital
staff. Costs in the amount of 45,000 DKK were awarded against the
applicant.
23. On 5 July 1988 the applicant appealed against the judgment to the
Supreme Court (Højesteret). He furthermore applied to the Ministry of
Justice for free legal aid which, however, was refused by the Ministry
on 24 November 1988 as he was not considered to have any reasonable
prospects of being successful in his appeal.
24. As the applicant maintained that he was unable to conduct the
case in the Supreme Court himself, he requested the Court to appoint
counsel for him. However, on 12 May 1989 the Supreme Court refused the
request.
25. The applicant furthermore requested permission to put further
questions to the Council and also to have access to the hospital's
medical records. Both requests were refused by the Appeals Selection
Committee of the Supreme Court (Højesterets anke- og kæremålsudvalg)
on 14 March 1990. The applicant then proceeded on his own to obtain
further expert opinions and on 21 May 1990 also asked for an
adjournment in order to find a lawyer who could assist him, something
in which he was not successful.
26. On 23 April 1991 the Supreme Court decided to order the applicant
to present his case through counsel. Furthermore, the Court appointed
a lawyer to represent him, following which the applicant again
requested the Court to give him access to the hospital's medical
records. On 6 November 1991 the Court decided to meet the applicant's
request.
27. Having studied the medical records the applicant, on
9 March 1992, asked the Court for permission to submit further evidence
and to obtain further explanations from the Medico-Legal Council. On
16 December 1992 the Appeals Selection Committee of the Supreme Court
granted the request. However, as before the parties were unable to
agree on the questions to be put to the Council. Eventually, on
9 November 1993, the Appeals Selection Committee decided that three
specific questions, drawn up by the Committee, were to be put to the
Council. The case was adjourned pending the Council's reply which was
submitted on 18 March 1994.
28. In the meantime the applicant had applied to the Department of
Private Law (Civilretsdirektoratet) for legal aid. This was refused on
27 March 1992 and subsequent applications were refused inter alia on
15 April 1992, 11 December 1992, and 17 May 1993. Eventually, on
30 March 1994, the Department of Private Law granted the applicant free
legal aid in respect of the appeal proceedings in the Supreme Court.
29. Following the Medico-Legal Council's reply of 18 March 1994 new
questions were put to the Council on 21 October 1994. The Council's
reply was submitted on 14 June 1995.
30. The applicant's civil case against Hjørring hospital is still
pending in the Supreme Court. The main hearing has been scheduled for
15 April 1996.
B. Relevant domestic law
31. In civil lawsuits the court acts at the request of the parties.
Civil proceedings are instituted by one of the parties submitting a
writ of summons to the court concerned (cf. section 348 of the
Administration of Justice Act (retsplejeloven)). Certain lawsuits, like
the present one, are brought before the High Court as the court of
first instance (cf. sections 224 to 226 of the Administration of
Justice Act). Legal proceedings are considered to be instituted when
the court receives the writ of summons. The court is responsible for
the service of the writ of summons. The lawsuit then falls into two
parts - a preparatory phase and a hearing phase.
32. Two procedures may be followed in respect of the preparation.
Pursuant to section 351 of the Administration of Justice Act, the
preparation of a case may be carried out by the parties appearing at
preliminary hearings either personally or through a representative
entitled to appear for the person concerned. This is called oral
preparation. Pleadings are exchanged and formally submitted to the
court during a session. Pursuant to section 352 of the Administration
of Justice Act, the court may decide that the case is to be prepared
without the parties appearing in court at preliminary hearings. This
is called written preparation. In the case of written preparation the
parties forward their pleadings to the court which records the
documents and sees to it that the opponent receives a copy of them.
33. The purpose of preparing a case is to establish the facts and the
legal issues of the case, to make sure that the case is elucidated in
the best possible way and to establish what the parties disagree on.
34. In addition to the normal preparatory court hearings during the
preparation phase the court may hold preliminary hearings pursuant to
section 355 of the Administration of Justice Act. The court may summon
the parties to such preliminary hearings for the purpose of gaining
sufficient clarity of the scope of the evidence and the points at issue
when the court finds this expedient. During such preliminary hearings,
the court may also decide on disputes between the parties relating to
the preparation and actual organisation of the case.
35. According to the Administration of Justice Act, the parties in
a civil lawsuit have competence as regards the substance of the case,
i.e. the problems to be considered by the court. On the other hand the
court has the final responsibility for the judicial procedure. A stay
of proceedings can only be granted if there are reasonable grounds for
such a stay. The relevant provision is section 345 of the
Administration of Justice Act according to which "the court may adjourn
proceedings, if this is found expedient, also in order to await an
administrative or legal decision which may influence the outcome of the
case. The court shall notify all parties concerned regarding the stay
of proceedings as soon as possible."
36. Proceedings may for instance be stayed in order for the parties
to produce evidence of relevance to the case, to conduct friendly
settlement negotiations, to procure expert opinions, to clarify the
positions of the parties etc. Moreover, proceedings will normally be
adjourned if one of the parties submits a pleading in order to allow
the other party to comment on it. Proceedings will usually also be
adjourned when an expert opinion has been submitted, enabling the
parties to review the result and decide whether the expert opinion
necessitates further questions to the expert.
37. In civil lawsuits the case is elucidated by the parties and takes
the form of a negotiation between them. The parties decide the
questions to be considered by the court, and it is the parties who
present the material to the court. As a starting point, the parties
thus decide themselves how much or how little the court is to be
presented with and consider. The court ensures that continuous progress
is made in the case, and that the case is not allowed to be neglected.
The court intervenes in situations where one of the parties professes
misgivings concerning a stay of proceedings, or when the court feels
that a stay does not serve any real purpose. Finalising the preparation
of the case and fixing it for hearing involve a restriction on the new
material to be presented by a party, (cf. section 357 and section 363
of the Administration of Justice Act).
38. Following the finalisation of the preparation of the case it is
for the court to fix the date for the hearing of the case, (cf.
section 356, subsection 2, of the Administration of Justice Act). The
court may if necessary summon the parties for this purpose.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
39. The Commission has declared admissible the applicant's complaint
that his case has not been determined within a reasonable time.
B. Point at issue
40. Accordingly, the only point at issue is whether the length of the
proceedings exceeded the "reasonable time" referred to in Article 6
para. 1 (Art. 6-1) of the Convention.
C. As regards Article 6 para. 1 (Art. 6-1) of the Convention
41. Article 6 para. 1 (Art. 6-1) of the Convention reads, in so far
as relevant, as follows:
"In the determination of his civil rights and obligations
... everyone is entitled to a ... hearing within a
reasonable time by (a) ... tribunal ..."
42. It is undisputed that the proceedings in question involve a
determination of a "civil right" and thus fall within the scope of
Article 6 para. 1 (Art. 6-1) of the Convention.
43. The proceedings began on 15 January 1982 when the applicant
instituted proceedings against Hjørring hospital. These proceedings are
at present pending in the Supreme Court. Until now they have
accordingly lasted more than thirteen years and nine months.
44. The Commission recalls that the reasonableness of the length of
proceedings must be assessed with reference to the following criteria:
the complexity of the case, the conduct of the parties and that of the
authorities before which the case is brought. Furthermore, the special
circumstances of the case, in particular what is at stake for the
applicant in the litigation, must be taken into account and may call
for an overall assessment (cf. Eur. Court H.R., Vernillo judgment of
20 February 1991, Series A no. 198, p. 12, para. 30 and X v. France
judgment of 31 March 1992, Series A no. 234-C, p. 90, para. 32).
45. The Commission also recalls that in civil cases the exercise of
the right to a hearing within a reasonable time is subject to diligence
being shown by the party concerned (cf. Eur. Court H.R., Pretto and
Others judgment of 8 December 1983, Series A no. 71, pp. 14 et seq.,
paras. 33 et seq.). Nonetheless this principle cannot absolve the
courts from securing that the case progresses within a reasonable time
(cf. Eur. Court H.R., Martins Moreira judgment of 26 October 1988,
Series A no. 143, p. 17, para. 46), and Article 6 para. 1 (Art. 6-1)
of the Convention imposes on the Contracting States the duty to
organise their legal system in such a way that their courts can meet
each of its requirements (cf. Eur Court, H.R., Bunkate judgment of
26 May 1993, Series A no. 248-B, p. 31, para. 23).
46. Whereas the applicant maintains that a period of more than
thirteen years cannot in any circumstances be considered reasonable in
a case of this kind, the Government submit that of the period of time
the case has been before the Danish courts the parties are responsible
for the delays of more than eight years characterised more than
anything else by the fact that they have been unable to reach agreement
on some points and have reached agreement on other points only after
very long periods of discussions during the preparatory phases both in
the High Court and in the Supreme Court. Furthermore, the Government
maintain that the complexity of the case is evident, inter alia, from
the fact that it has been deemed necessary to have a very large number
of questions put to the Medico-Legal Council and other medical experts.
47. As regards the latter point the Commission recalls that the case
concerns an action for damages as a result of alleged errors committed
by the hospital during the operations the applicant underwent there.
The Commission does not consider this to be of particular complexity
from a legal point of view. Thus, although the production of evidence,
including expert evidence from the Medico-Legal Council, has turned out
to be time-consuming, the Commission does not find that the complexity
of the case can justify the period of time involved.
48. As regards the conduct of all parties involved the Commission
recalls that the Danish legal system in civil cases is not of an
inquisitorial type, but the lawsuit is elucidated by the parties and
takes the form of a negotiation between them. However, according to the
Administration of Justice Act it is nevertheless the court which
ensures that continuous progress is made in the case and that the case
is not allowed to be neglected.
49. In the present case the Commission notes that the applicant was
not allowed access to the hospital's medical records until
6 November 1991, i.e. almost ten years after the case commenced, when
the Supreme Court overruled its own Appeals Selection Committee's prior
refusal. It is hardly surprising, therefore, that the applicant tried
several times through the Medico-Legal Council, or by other means, to
obtain evidence which might support his claims. Nor is it surprising
that the applicant was in need of time to prepare the case, having
regard to the fact that free legal aid was refused until 30 March 1994,
i.e. more than twelve years after the case commenced.
50. However, the gist of the matter lies in the fact that the High
Court of Western Denmark and the Supreme Court did not use their powers
to make orders for the speeding up of the progress of the proceedings.
In both courts it became clear that the parties were unable to resolve
the numerous disputes over the issues which were to be examined by the
Medico-Legal Council as well as other matters, and it may well be, as
maintained by the Government, that more than eight years passed in
particular due to this. However, in such circumstances the courts ought
to have intervened in accordance with their powers under the
Administration of Justice Act in order to ensure proper progress in the
proceedings regardless of the parties' conduct. However, the courts
failed to do so. Accordingly the dispute between the applicant and the
Hjørring hospital has not been determined within a reasonable time
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
CONCLUSION
51. The Commission concludes, unanimously, that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy