AS TO THE ADMISSIBILITY OF
Application No. 20826/94
by U.M.D. and Others
against Denmark
The European Commission of Human Rights (Second Chamber) sitting
in private on 30 November 1994, the following members being present:
MM. S. TRECHSEL, President
C.A. NØRGAARD
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 27 August 1992 by
U.M.D. and Others against Denmark and registered on 21 October 1992
under file No. 20826/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 15 June 1994 and the observations in reply submitted by
the applicant on 10 October 1994;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicants are/were all Danish nationals and are in the
following referred to under A to G/G1, and K to L. Before the
Commission they, or their heirs, are represented by the Danish
Association of Haemophiliacs (Danmarks Bløderforening) and Mr. Tyge
Trier, a lawyer practising in Copenhagen.
A was born in 1975 and resides at St. Heddinge. It was discovered
that he was HIV positive on 13 May 1986.
B was born in 1950 and resides at Kværndrup. He was found to be
HIV positive on 24 February 1986.
C was born in 1958. It was discovered that he was HIV positive
on 21 June 1985. C died of AIDS on 14 September 1993. His widow has
informed the Commission that she wants to pursue the application.
D was born in 1963. He resides in Copenhagen. He was found to be
HIV positive on 10 May 1985.
E was born in 1946. He resides at Frederiksberg. The HIV positive
diagnosis was announced on 11 March 1985. E decided to withdraw from
the court proceedings in Denmark on 4 November 1993.
F was born in 1935. He was diagnosed to be HIV positive on
20 March 1985. F died of AIDS on 9 September 1992. His widow pursues
the case before the Commission.
G/G1 are the parents of a haemophiliac who was born in 1941.
Their son was found to be HIV positive on 9 April 1987 and died of AIDS
on 9 August 1992.
K is the widow of a haemophiliac who was born in 1941. K's
husband was found to be HIV positive on 26 March 1985 and died of AIDS
on 10 April 1987.
L is the mother of a haemophiliac who was born in 1976. It was
discovered that L's son was HIV positive on 31 October 1985. L died of
AIDS on 27 April 1986.
The applicants A to F as well as the sons of G/G1 and L and K's
husband had undergone several blood transfusions at the National
University Hospital (Rigshospitalet) where, as indicated above, it was
discovered during the period from 11 March 1985 until 9 April 1987 that
they were HIV positive.
A. The particular circumstances of the case
Due, inter alia, to the interventions of the Danish Association
of Haemophiliacs the issue arose in Denmark as to the use of unscreened
donor blood in transfusions following which it was decided to introduce
donor blood screening as from 1 January 1986. However, in certain
circumstances it remained possible to use unscreened plasma. On
13 November 1987 the National Health Board (Sundhedsstyrelsen) informed
the Danish blood plasma producers that factor preparations containing
unscreened blood were to be withdrawn immediately.
In the light of the incidents of haemophiliacs becoming HIV
positive as a result of receiving contaminated blood in transfusions
the Ministry of Health granted HIV infected haemophiliacs an ex gratia
compensation of 100,000 DKK in September 1987. This amount has later
been increased to 750,000 DKK and has been, and will be, granted to
haemophiliacs found to be infected with HIV following treatment with
blood products at Danish hospitals and for HIV positive persons who
have in all probability been infected through blood transfusions at
Danish hospitals.
A judicial inquiry was carried out in order to clarify the
question of the use of unscreened plasma. The findings of this inquiry
were presented in May 1988, following which an official inquiry was
instituted against seven officials and criminal proceedings were
instituted against a producer of blood products. This producer was
subsequently found guilty of a violation of the Medical Drug Act and
fined 15,000 DKK.
On 14 December 1987 the Danish Association of Haemophiliacs
instituted proceedings in the High Court of Eastern Denmark (Østre
Landsret) against the Ministry of the Interior (later changed to the
Ministry of Health), the National Health Board, the company
Novo-Nordisk Limited and the National Serum Institute (Statens
Seruminstitut). It was alleged that the defendants had acted in an
unjustifiable and irresponsible manner towards the Association's
members by contributing to the use of products, which might have
contained the AIDS virus, after 1 January 1986. The Association
therefore claimed that the defendants be ordered to acknowledge that
they were liable to pay damages, jointly and severally, to those of the
suing Association's members in whom antibodies containing HIV had been
found following the use of blood products supplied by the company
Novo-Nordisk Limited and/or the National Serum Institute. The case was
registered in the High Court under file no. Ø.L. III nr. 364/1987.
At the first preliminary court hearing in the case on
18 February 1988 all defendants claimed primarily dismissal of the
plaintiff's claim and alternatively judgment for the defendants. One
of the grounds on which the claim for dismissal was based was that the
Association could not act on behalf of its members. It was maintained
that the action could only be allowed if the Association acted as
representative (mandatar) for its members. The case was then adjourned
pending final statements of defence.
It appears that the case was adjourned again on 7 April and
5 May 1988 pending the outcome of the judicial inquiry mentioned above,
the findings of which became available in May 1988.
At the court hearing on 15 August 1988 the defendants requested
that their claim for dismissal be heard separately. The case was
adjourned pending submission of the plaintiff's pleading on the claim
for dismissal, which happened at a new hearing on 8 September 1988. The
Association now stated in the said pleading that it was acting as
representative of a member who wished to remain anonymous and asked
that the name be disclosed to the court only.
At the following court hearing on 10 November 1988 the defendants
maintained their claim for dismissal unless the plaintiff specified its
claim. They also maintained that the identity of the member in question
should be disclosed since the defendants would otherwise be prevented
from assessing and producing documentation concerning the question of
liability. An extended preliminary court hearing was fixed for
9 February 1989 in pursuance of Section 355 of the Danish
Administration of Justice Act (retsplejeloven). Owing to illness in
December 1988/January 1989 the Association's representative was unable
to attend court on that day and the hearing was cancelled.
At subsequent court hearings on 18 May and 28 September 1989 the
question of presenting the case on behalf of individual members of the
Association was discussed further. At the court hearing on
23 November 1989 the applicants A - F and the son of G/G1 were
presented as parties to the case. In his submissions of the same day
counsel for the plaintiffs stated as follows:
(translation)
"With reference to the court hearing of 18 May 1989 during
which the parties agreed that the Danish Association of
Haemophiliacs appears as representative (mandatar) of those
members of the Association who have become infected with
HIV after 1 January 1985 and that such identification of
the plaintiffs is provided which will nevertheless protect
their identity from being made public to others than the
court, I hereby submit that the following plaintiffs have
joined the case (followed by the mentioning of the
applicants A - F and the son of G/G1) ..."
The case was then adjourned until 18 January 1990 at which the
defendants' final statements of defence were to be presented. On this
date the case was adjourned again as the final statement of defence was
not yet available.
At the court session on 22 March 1990 an additional four
plaintiffs joined the case, including the applicants K and L. At the
session the question arose as to requests for and the presentation of
further documents. The defendants maintained that they could not
prepare their statement of defence before this question had been
solved. The case was adjourned until 17 May 1990 on which date it was
adjourned until 21 June 1990 when it appears that the question of
documentation had been clarified.
During the following court session on 23 August 1990 the
questions of medical records and medical expert opinions were
discussed. On 27 September 1990 the appointment of experts was proposed
by the plaintiffs.
From 25 October 1990 until 6 August 1992 the parties appeared at
court sessions on 25 October and 29 November 1990, 21 February,
4 April, 16 May, 6 June, 8 August, 12 September, 7 November and
19 December 1991 as well as 20 February, 12 March, 9 April and
4 June 1992 during which primarily questions concerning the appointment
of medical experts and questions to be put to the experts were
discussed. On 6 August 1992 two experts were appointed and the case was
adjourned pending the experts' report.
On 9 August 1992 the son of the applicants G/G1 died. The
applicant F died on 9 September 1992. At a court hearing on 13 October
1992 the presiding judge demanded that the proceedings be sped up.
Furthermore, the parties' representatives met, on 11 November 1992,
with the Minister of Health to consider the possibilities of
accelerating the case. The defendants argued in particular that, having
regard to the fact that the purpose of the law suit, in their opinion,
was to obtain damages, the plaintiffs had not yet presented any
specific claim for damages. The plaintiffs argued that the purpose of
the law suit was not only to secure damages but also to place the
responsibility for the alleged wrongdoings.
The experts' opinion became available at the end of December 1992
following which the parties commenced discussing the supplementary
questions to be put to the experts at a court session held on
11 February 1993. As the parties had not reached consensus thereon the
case was adjourned on 18 March 1993. At the court session on
1 April 1993 an agreement was reached on the supplementary questions
to be put to the experts and the case was adjourned. It was adjourned
again on 13 May 1993 pending the experts' supplementary report.
In May 1993 the plaintiffs were granted legal aid and during the
court session on 17 June 1993 they submitted their claims for damages.
On 2 September 1993 the case was adjourned pending the experts'
supplementary report, part I of which became available on
9 September 1993.
On 14 September 1993 the applicant C died.
Part II of the experts' supplementary report became available on
22 October 1993.
During the following court session held on 4 November 1993
specific claims for compensation were presented by eight plaintiffs
(the applicants A-D, F-G/G1 and K-L) whereas the applicant E announced
that he withdrew from the case. The plaintiffs claimed damages in
respect of incapacity of work, medical invalidity, loss of supporter
and funeral costs in amounts up to 1,090,000 DKK. During two court
sessions held on 16 December 1993 and 13 January 1994 further documents
relevant to the question of damages were produced.
On 3 March 1994 the High Court fixed the dates for the main
hearing to be held from 24 October until 22 November 1994. This was
subsequently changed to 28 November 1994 until 17 January 1995.
B. Relevant domestic law
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. Certain lawsuits, like the present one,
are brought before the High Court as the court of first instance, cf.
sections 244 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 main hearing phase. Two procedures may be followed in respect
of preparation. Pursuant to section 351 of the Administration of
Justice Act, preparation of a case may be carried out by the parties
appearing at preliminary hearings either personally or represented by
other persons. This is called oral preparation. Pleadings are exchanged
and formally submitted to the court during a hearing. 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.
The purpose of the preparation 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.
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 extent 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.
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. The court, on the
other hand, has the final competence as regards the judicial procedure.
A stay of proceedings requires that there are reasonable grounds for
such a stay. The relevant provision in section 345 of the
Administration of Justice Act reads as follows:
"The court may stay 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."
A stay of proceedings requires that the court finds such a step
expedient. 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 stayed, if one of the parties submits a pleading so that
the other party has the opportunity to comment on it. Proceedings will
usually also be stayed when an expert opinion has been given so that
the parties can review the result and decide whether the expert opinion
necessitates further questions to the expert.
In civil lawsuits the case is elucidated by the parties and takes
the form of a negotiation between them. The parties determine 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 what material the court shall receive and be
asked to consider. The court sees to it 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 his
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 a 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.
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.
COMPLAINTS
The applicants complain that their case has not been determined
within a reasonable time. They invoke Article 6 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 27 August 1992 and registered
on 21 October 1992.
On 6 April 1994 the Commission (Second Chamber) decided to bring
the application to the notice of the respondent Government and to
invite them to submit written observations on its admissibility and
merits.
The Government's observations were submitted on 15 June 1994. The
applicants' observations in reply were submitted on 10 October 1994,
following two extensions of the time-limit fixed for that purpose.
THE LAW
The Commission first recalls that the applicants G/G1 as well as
K and L introduced their application with the Commission on behalf of
their sons and husband who had already died at that moment in time. The
Commission finds that these applicants, as the parents and widow who
were affected by the death of their relatives, may claim to be a
"victim" in the sense of Article 25 (Art. 25) of the Convention (cf.
for example No. 9833/82, Dec. 7.3.85, D.R. 42 p.53).
Furthermore, the Commission recalls that, in respect of the
applicants C and F who died after the application was introduced with
the Commission, their widows intend to pursue the application. Having
regard to their family relationship with C and F and the nature of the
complaint the Commission considers that they are directly affected by
the interference complained of and have sufficient legal interest in
pursuing the complaint. The Commission accordingly accept that they are
entitled to pursue the complaint submitted by C and F (cf. for example
Nos. 10474/83, Dec. 6.5.86, D.R. 47 p. 106).
The applicants complain that their case has not been determined
within a reasonable time and they invoke Article 6 (Art. 6) of the
Convention which, as far as relevant, reads as follows:
"In the determination of his civil rights and obligations
... everyone is entitled to a ... hearing within a
reasonable time ...".
The applicants submit that the period to be taken into
consideration began when the Danish Association of Haemophiliacs lodged
preliminary claims for compensation with the Minister of the Interior.
Without being able to pinpoint the exact time, the applicants argue
that these claims were lodged in late 1986. The applicants furthermore
maintain that the Association is to be considered as representing the
individual members to the extent that it is without importance that the
members now involved in the civil suit were only identified at a date
subsequent to the date on which the writ of summons was presented to
the High Court of Eastern Denmark on 14 December 1987. Having regard
to this the applicants claim that the case has been pending for
approximately eight years which cannot be considered to be reasonable
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
The Government do not dispute that the case in question concerns
a civil right within the meaning of Article 6 (Art. 6) of the
Convention, nor that the court proceedings commenced in the High Court
of Eastern Denmark on 14 December 1987 but they maintain that the
individual applicants of the present case were not involved before they
joined the case, which was on 23 November 1989 and 22 March 1990. In
the Government's view the period to be assessed under Article 6
(Art. 6) of the Convention cannot therefore start to run prior to those
dates. Furthermore, having regard to the complexity of the case, and
in particular the conduct of the applicants, the Government do not
consider that the reasonable time requirement has been infringed.
The Commission recalls that the period to which Article 6
(Art. 6) is applicable in civil cases normally starts to run with the
issuing of the writ commencing proceedings before the court to which
the plaintiff submits the dispute. However, where such proceedings may
only be instituted after a determination of the same dispute by an
administrative authority the concept of "reasonable time" must be
applied so as to include both the administrative and the court
proceedings (cf. Eur. Court H.R., König judgment of 28 June 1978,
Series A no. 27, p. 33, para. 98).
In the present case, however, the Commission notes that the
applicants have not specified any of the requests for compensation
allegedly submitted to the Ministry of the Interior, nor have they been
able to submit exactly when their claims were made. In any event the
Commission notes that these requests did not, under Danish law, prevent
the applicants from instituting civil proceedings in the ordinary
courts of law, nor was it necessary to await their outcome for this
purpose. This cannot, therefore, be taken into consideration for the
purposes of determining the period to be taken into consideration under
Article 6 (Art. 6) of the Convention.
The writ commencing the proceedings in the High Court of Eastern
Denmark was issued on 14 December 1987 and registered under file number
Ø.L. III nr. 364/1987. It was alleged that the defendants had acted in
an unjustifiable and irresponsible manner towards the members of the
Danish Association of Haemophiliacs and that, therefore, the defendants
were liable to pay damages to those of the Association's members who
had suffered therefrom. It is true that the case has subsequently
developed in that the applicants to the present case were identified
and their individual claims specified, but in the Commission's view
this does not alter the fact that the proceedings commenced on 14
December 1987 although it might affect the way in which the
reasonableness of the length of the proceedings should be evaluated.
It follows that the period to be taken into consideration
commenced on 14 December 1987. The proceedings are at present still
pending in the High Court of Eastern Denmark. The case has therefore
already lasted almost seven years.
The European Court of Human Rights and the Commission have
consistently held that the reasonableness of the length of proceedings
coming within the scope of Article 6 para. 1 (Art. 6-1) of the
Convention must be assessed in each case according to its particular
circumstances and on the basis of the following criteria: the
complexity of the case as regards the facts and the law, and the
conduct of the applicant and the competent authorities (cf. e.g. Eur.
Court H.R., Vernillo judgment of 20 February 1991, Series A no. 198,
p. 12, para. 30).
Applying these criteria, and taking into account the
circumstances of the present case as well as the parties' submissions,
the Commission considers that the period of time which elapsed in the
proceedings so far raises a serious issue under Article 6 para. 1
(Art. 6-1) of the Convention requiring an examination of the merits of
the case.
Consequently, the Commission considers that the application is
not manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other grounds for declaring it
inadmissible have been established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy