U.M.D. and OTHERS v. DENMARK

AS TO THE ADMISSIBILITY OF

Application No. 20826/92

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. ŠVÁBY

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. 20826/92;

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 applicants 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 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 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 of the Convention.

The Government do not dispute that the case in question concerns a civil right within the meaning of Article 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 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 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 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 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 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 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)

 

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