FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 57211/00
by Britta STRØMBERG
against Denmark
The European Court of Human Rights, sitting on 20 June 2002 as a Chamber composed of
MrC.L. Rozakis, President,
MrGaukur Jörundsson,
MrG. Bonello,
MrsN. Vajić,
MrE. Levits,
MrsS. Botoucharova,
MrV. Zagrebelsky, judges,
MrE. Fribergh, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 17 June 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated on 20 June 2002, decides as follows:
THE FACTS
The applicant, Britta Strømberg, is a Danish national, born in 1938 and living in Rønde, Denmark. She is represented before the Court by her husband, Mr Verner Hansen.
The respondent Government are represented by its Agent Ms Nina Holst‑Christensen, Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In the early 1980s the applicant stood security for an amount of 250,000 Danish kroner (DKK), for her husband’s debt to the Danish Bank (Den Danske Bank). In the late 1980s her husband entered into negotiations concerning the development of a golf course, which involved selling three plots of land belonging to him. As part of the husband’s original terms of sale he made it a condition that the Danish Bank would release the applicant from the above guarantee. Though the bank did not comply with this wish, the applicant’s husband signed a conditional deed to sell the land on 1 November 1990. Subsequently, the applicant’s husband signed a power of attorney on 7 August 1991, permitting two named lawyers to sign all documents relating to the above sale.
In the meantime, on 23 July 1991, the applicant’s husband had signed a declaration according to which he owed the applicant DKK 2,210,434. With reference thereto the applicant levied execution on her husbands “rights emanating from the sale of one of the above plots of land” and on 8 August 1991 she requested the Bailiff’s Court to sell the land at a foreclosure auction.
Due to default in payments, on 22 June 1992 the Danish Bank called in all loans granted to the applicant’s husband. Consequently, on 22 July 1992 the bank ordered the applicant to pay the DKK 250,000 she stood security for. Since the applicant did not pay, the bank sent a bankruptcy petition to the Probate Court of Århus (Skifteretten i Århus), which declared the applicant bankrupt on 25 August 1992. On appeal, this decision was upheld by the High Court of Western Denmark (Vestre Landsret) on 1 October 1992. The trustee in bankruptcy thereafter withdrew the applicant’s request to sell the land at a foreclosure auction.
On 15 June 1993 the applicant, represented by a lawyer, initiated civil proceedings in the High Court of Western Denmark against the Danish Bank and the above two lawyers. The applicant claimed compensation from the bank in the amount of DKK 2,210,434. In the alternative she claimed the same amount of compensation from the bank and the lawyers. In a counterclaim, the bank maintained that the applicant should pay DKK 250,000 emanating from her bank guarantee.
During the pre-trial period written pleadings were submitted by the three defendants on 31 August and 3 September 1993, and 7 January 1994 respectively. On 1 February 1994 the applicant’s lawyer withdrew from the case. The applicant’s pleading was submitted on 22 April 1994.
Following exchange of correspondence between the parties and the court on 1 July 1994 the preparations were closed. On 6 October 1994 the hearing was scheduled to commence on 10 October 1995. On that date the applicant appeared with the intention of being represented by her husband. However, the High Court found it impossible to give the case a proper consideration without legal assistance and pursuant to section 259 of the Administration of Justice Act (retsplejeloven) the applicant was ordered to retain counsel. According to the said provision the court can order a litigant in civil proceedings to be represented by counsel “if the court finds it impossible to hear the case properly (“på forsvarlig måde”) without such representation”. The case was consequently adjourned on this matter. On 27 October 1995 the High Court assigned a lawyer for the applicant. He requested a three-month extension of the time‑limit for lodging a pleading on the applicant’s behalf. At a court session on 23 January 1996 his request was complied with and at the same time, in order to avoid that ongoing further preparation would delay the proceedings the trial was re-scheduled to commence on 17 February 1997. Having requested another adjournment on 11 and 22 March 1996, the lawyer informed the High Court on 20 May 1996 that he wished to withdraw from the case. In a session held on 23 May 1996, the applicant was instructed to find another counsel. On 20 June 1996 the High Court assigned a third lawyer for the applicant, but on 19 September 1996 also this lawyer wished to withdraw from the case as the trust between counsel and client had broken down. At a session on 24 September 1996 a fourth lawyer was appointed and at the same time the High Court emphasised that the applicant could not expect to have yet another lawyer appointed, should problems of co‑operation arise between her and her lawyer.
The applicant’s submissions were finally delivered to the High Court in writing on 28 January 1997.
The trial took place from 18 until 20 February 1997 and on 23 April 1997 the High Court pronounced its judgment finding for the bank and the two lawyers.
On 2 May 1997 the applicant, represented by her husband, appealed against this judgment to the Supreme Court (Højesteret). Pleadings from the defendants were received on 28 May 1997. On 3 July 1997 the applicant requested permission to procure additional evidence, notably to hear a witness before an alternative court. With the defendants’ consent the Supreme Court complied with her request and the witness in question was heard in the City Court of Assens on 2 September 1997. On 30 September 1997 the defendants were ready for the scheduling of the trial. On 6 October 1997 the applicant submitted her reply. Thereafter, on 21 October 1997 drawing attention to the scope and complexity of the case she requested that a named attorney, who apparently had agreed to represent her, be appointed. At a court session held on 9 December 1997 the Supreme Court refused to appoint a lawyer, but ordered that the applicant be represented by one. By letter of 13 January 1998 the said named lawyer informed the applicant’s husband that he could not undertake to represent the applicant , partly because he found the prospects of success extremely poor. Subsequently, although the applicant alleged that she could not find a lawyer who would represent her without being appointed the Supreme Court upheld its decision on this subject on 2 and 11 March 1998. Having succeeded in finding an attorney who would represent her, at a session held on 23 April 1998 the lawyer in question requested an adjournment in order to procure additional evidence. The proceedings were then adjourned and on 28 April 1998 the lawyer’s specified that he wished to re-hear one of the witnesses already heard before the High Court, however only as regards a limited specified subject. At a session held on 17 August 1998 the request was complied with, and the examination of the witness was carried out before the City Court of Århus on 23 October 1998. On 20 November 1998 the defendants stated being ready for the scheduling of the trial. On 25 November 1998 the applicant’s lawyer requested an adjournment pending his evidential and procedural considerations. The request was granted. On 22 December 1998 the applicant’s pleadings were submitted containing a statement that the proceedings gave rise to no further claims. Thus, on 23 December 1998 the parties were summoned to a pre-trial review on 14 January 1999. However, on 30 December 1998 the applicant requested that the Supreme Court revoke its order that she retain counsel as in her opinion no lawyer were able to appear on her behalf in an adequate manner. Also she revoked her pleading of 22 December 1998. By letter of 7 January 1999 the said lawyer regretted to inform the Supreme Court that the applicant’s husband had asked him to resign from the case. In the circumstances on 29 January 1999 the Supreme Court decided to release the applicant from its previous order, and her husband subsequently represented her. On 5 February 1999 the court received a pleading from the applicant replacing the former of 22 December 1998 and entailing new submissions. Against the defendants’ objections on 29 April 1999 the Supreme Court allowed the new submissions and a pre-trial review was set for 16 June 1999. On 3 May 1999 the applicant submitted yet another pleading containing additional submissions. Correspondence in this respect were exchanged between the parties and the Supreme Court and it appears that at the session on 16 June 1999 the defendants accepted the new submissions and thus the final hearing was scheduled to take place on 12 April 2000. The trial was eventually conducted on 13 April 2000 and the Supreme Court pronounced its judgment on 19 April 2000 upholding the High Court judgment.
COMPLAINTS
The applicant complains that the civil proceedings were not terminated within a reasonable time within the meaning of Article 6 § 1 of the Convention. Notably, she submits that the courts’ orders to compel her to be represented by a lawyer in conjunction with these lawyers’ alleged incompetence prolonged the proceedings in an unreasonable way.
Further, the applicant maintains that the Supreme Court judgment did not contain a correct summary of her submissions and that two of the Supreme Court judges were not impartial. In this respect, the applicant invokes Article 6 § 1 of the Convention as well.
THE LAW
Complaining that the proceedings exceeded the reasonable time requirement, that the Supreme Court judgment did not contain a correct summary of her submissions and that two of the Supreme Court judges were partial the applicant invokes Article 6 § 1 of the Convention, which reads as follows:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
1. The complaint concerning the length of the proceedings
(a) Period to be taken into consideration
As regards the period to be considered it is undisputed that the proceedings commenced on 15 June 1993 when the applicant instituted proceedings before the High Court and ended on 19 April 2000 when the Supreme Court pronounced its judgment. Thus, the total length of the proceedings, which the Court must assess under Article 6 § 1 of the Convention, was six years, ten months and four days.
(b) Reasonableness of the length of proceedings
From a general point of view the reasonableness of the length of the proceedings must be assessed with reference to the complexity of the case, the conduct of the applicant and that of the authorities before which the case was brought (cf. Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).
Complexity of the case.
The Government contend that the case was complex, involving three defendants and concerning the contents of sales and financing agreement with several elements mutually influencing each other, and that this has been of importance to the length of the proceedings. They note that on 21 October 1997 also the applicant expressed that she found the case complex when she requested that the Supreme Court appoint her a counsel.
The applicant submits that the case as instituted by her on 15 June 1993 was of a quite simple nature and that it was not until after she was ordered to be legally represented that the case became complex. As to her request of 21 October 1997 she maintains that although her request was officially reasoned by the complex nature of the case, it was in fact motivated by economic considerations and by the fact that neither she nor her husband felt that they could take the responsibility for the case alone.
The Court, although satisfied that the case raised factual questions of some complexity, does not consider that this alone could justify the considerable length of the proceedings. It will therefore examine the conduct of the parties to the proceedings and of the relevant authorities.
The applicant’s conduct
In the Government’s opinion the applicant has very considerably contributed to extending the length of the proceedings before both instances, caused in particularly by the circumstances concerning her legal representation. Thus, during the proceedings the applicant was represented by no less than five different attorneys as well as by her spouse. The Government maintain that the State cannot be held liable for these resulting delays.
The applicant contests the Government’s submission. In particular she maintains that the fact that five different lawyers and her husband represented her did not delay the proceedings. Only while represented by the fifth lawyer from 23 April 1998 until 7 January 1999 did the case lay idle, but this was caused, she alleges, by the said lawyer’s attempt to obstruct the case, for which she had no responsibility. Finally, the applicant submits that it cannot be held against her that the courts issued unnecessary representation orders and that all the lawyers’ representing her allegedly attempted to obstruct the case in solidarity with the two lawyers against whom her case was instituted.
The Court notes that the applicant and her husband appear to have been very much involved in the procedural disputes during the proceedings concerned, that the applicant preferred to be without legal representation in spite of her request of 21 October 1997, and that she renounced responsibility for any procedural acts decided on by the various lawyers who represented her which may have prolonged the proceedings. However, it follows from case-law that she is nevertheless to be held responsible for the possible delays caused by her representative (e.g. Capuano v. Italy judgment of 25 June 1987, Series A no. 119, p. 12, § 28 and Kjeld Andersen v. Denmark (dec.), no. 43519/98, 7 December 2000, unreported), and that in the assessment of the applicant’s conduct, delays caused by numerous changes of lawyers are circumstances which can be taken into account at her detriment.
During the proceedings the applicant was ordered pursuant to section 259 § 2 of the Administration of Justice Act to be represented by legal counsel. In the opinion of the Court the case discloses no appearance that the order imposed did not pursue the legitimate aim of ensuring a proper administration of justice or that there was an unreasonable relationship of proportionality between the means employed and the aim sought to be achieved in this respect.
Furthermore, the Court has found no substantiation of the applicant’s allegation as to the reasons for the excessive change of counsels. Conversely, the Court considers that the applicant to a significant extent was responsible for their resigning from the case by her direct request or by her persistent involvement as to the content of her procedural submissions combined with her lack of confidence shown in general to the lawyers in question.
More specifically, the Court notes as to the proceedings before the High Court, that a lawyer was appointed on 27 October 1995 and subsequently the proceedings were stayed awaiting the applicant’s pleading. Having changed counsel twice thereafter her pleading was delivered on 28 January 1997. As to the proceedings before the Supreme Court it notes that during two periods, namely between 3 July 1997 and 6 October 1997, and between 23 April 1998 and 22 December 1998 the appeal proceedings concerned the production of additional evidence on the applicant’s request. Moreover, the pre-trial review originally scheduled to be held on 14 January 1999 had to be adjourned until 16 June 1999 due to the applicant’s request that her pleading of 22 December 1998 and the representation order be revoked. Thus, the Court considers that a lapse of at least fifteen months before the High Court and an elapse of at least sixteen months before the Supreme Court i.e. altogether at least two years and seven months can be attributed to the applicant.
In these circumstances the Courts finds that the applicant’s conduct prolonged the proceedings and caused unnecessary delays.
Conduct of the national authorities
In the Government’s view the conduct of the courts does not give rise to any criticism although the proceedings were apparently inactive before the High Court from the pre-trial review on 6 October 1994 until the session on 10 October 1995 during which the trial was supposed to be conducted, i.e. one year and four days, plus before the Supreme Court from the pre-trial review on 16 June 1999 until 13 April 2000 i.e. nine months and twenty‑eight days. In this respect the Government point out however, that when viewed in the context of the total length of the proceedings, these periods cannot entail criticism of the length of the proceedings.
The applicant maintains that several unacceptable periods of inactivity occurred for which the courts were responsible, namely before the High Court from 6 June 1994 until 6 October 1994, during the scheduling period from 6 October 1994 until 10 October 1995, and during the re‑scheduling period from 23 January 1996 until 18 February 1997. Before the Supreme Court it concerns the period between 9 December 1997 when the legal representation order was issued until 29 January 1999, when the order was revoked, and during the scheduling period from 16 June 1999 until 13 April 2000.
The Court reiterates that only delays attributable to the State may justify a finding of failure to comply with the "reasonable time" requirement (see e.g. Ciricosta and Viola v. Italy judgment of 4 December 1995, Series A no. 337-A, p. 10, § 28).
The Court recalls that before the High Court the proceedings lasted three years, ten months and eight days including the scheduling time i.e. the period from when the case was ready for trial until the trial actually commenced. The Court recalls that originally on 6 October 1994 the trial was scheduled to take place on 10 October 1995, thus the original scheduling period amounted to one year and four days.
Later, when the applicant was represented by counsel on 23 January 1996 the final hearing was re-sceduled to commence on 17 February 1997, thus the re-scheduling period lasted one year and 25 days. However, as to the latter period the Court recalls that the preparation of the case continued, procedural questions were dealt with and that the applicant’s final pleading was submitted on 28 January 1997, thus 20 days before the trial.
A scheduling period of more than a year in a case like the present may seem rather lengthy. However, the Court takes into account that the scheduling depended not only on the courts; due regard had to be paid to all the counsels and their planning as well. Moreover, the Court recalls that during the scheduling period procedural questions may be dealt with, as occurred during the re-scheduling period in the present case. Finally, the Court finds that the main reason for the length of these proceedings is not to be found in the scheduling period.
As to the proceedings before the Supreme Court the Court reiterates that they lasted two years, eleven months and seventeen days including a scheduling time amounting to nine months and twenty-eight days, namely from 16 June 1999 until 12 April 2000. With reference to the findings above the Court considers that such a period is not unreasonable. Also, it finds that the main reason for the length of these proceedings is not to be found in the scheduling period.
Accordingly, in the view of the Court the conduct of the relevant authorities was not in this case primarily responsible for the length of the proceedings.
Overall assessment
In the above circumstances, and although the proceedings before the High Court of Eastern Denmark and the Supreme Court lasted a total of six years, ten months and four days, the case does not disclose to the Court such periods of inactivity or delays attributable to the State which could bring the proceedings at variance with Article 6 § 1 of the Convention. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
2. As to the complaint that the Supreme Court judgment did not contain a correct summary of her submissions, the Court recalls that its only function under Article 6 of the Convention is to examine cases in which it is alleged that any of the specific procedural guarantees laid down in this provision has been disregarded in the proceedings before the national courts and that the proceedings, considered as a whole, have been conducted in such a manner as to ensure a fair hearing to the applicant.
With regard to the current complaint, the Court has found no substantiation in the applicant’s allegations, which could lead it to conclude that the proceedings were unfair or that the courts reached their decisions unfairly. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
3. As to the complaint that two of the Supreme Court judges were not impartial the Court recalls that under the notion of Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. This condition is not met by the mere fact that an applicant has submitted his or her case to the various competent courts. It is also necessary for the complaint brought before the Court to have been raised by the applicant, at least in substance, during the proceedings in question. On this point the Court refers to its established case-law. In the present case the Court finds that in the proceedings before the Supreme Court the applicant failed to raise either in form or in substance the complaint that is made to the Court. It follows that this part of the application is inadmissible for non‑exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Erik FriberghChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy