AS TO THE ADMISSIBILITY OF
Application no. 21846/04
by Jens BRØSTED
The European Court of Human Rights (Fifth Section), sitting on 30 August 2006 as a Chamber composed of:
Mrs S. Botoucharova, President,
Mr P. Lorenzen,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 11 June 2004,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Jens Brøsted, is a Danish national, who was born in 1949 and lives in Copenhagen. He is represented before the Court by Mr Christian Harlang, a lawyer practising in Copenhagen.
The Danish Government (“the Government”) are represented by their Agent, Mrs Nina Holst-Christensen, of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant has a law degree. He has described himself as a social scientist and an international human rights lawyer. In 1992, having been unemployed for some time, his entitlement to unemployment benefits in the insurance system was about to terminate and he risked passing into the social security system. Beforehand, however, on 22 December 1992 he accepted a job offer for seven months by the Nordic Council of Ministers (Nordisk Ministerråd) in accordance with an Act No. 929 of 27 December 1991 on Amendment of the Act on Job Offers to Unemployed (Lov om ændring af lov om arbejdstilbud til ledige), which entailed that his salary would be less than a normal salary under the collective agreement entered between his trade union, DJØF, and the public employment sector.
Thus, in the period from 30 December 1992 until 20 August 1993 his monthly salary amounted to 12,826 Danish kroner (DKK), whereas under the collective agreement it would have amounted to DKK 25,525.
When the seven month “job offer” period ended, the Nordic Council of Ministers offered the applicant a prolongation of the employment until the end of 1993 on normal terms, which meant that his salary was to be paid in accordance with the collective agreement.
On 30 January 1998 the applicant instituted civil proceedings before the High Court of Eastern Denmark (Østre Landsret) against the Ministry of Employment (Beskæftigelsesministeriet), claiming among other things that the Ministry pay him DKK 83,025, equal to approximately 11,000 Euros (EUR), corresponding to the difference between the salary he received during the seven months “job offer” period and the salary he received in accordance with the collective agreement.
Pleadings were submitted by the parties on 8 April, 23 July and 11 December 1998, on 5 March 1999, on 23 February, 25 May, and 22 June 2000.
At a court session held on 18 September 2000, the trial was scheduled to take place during three days in August 2001. On the defendant’s request it was re-scheduled to take place in February 2002. Subsequently, it was re-scheduled to take place on 14, 16 and 17 May 2002.
Beforehand, however, on 8 May 2002 the High Court decided that the case should commence before the City Court.
Having been granted leave to appeal against this decision to the Supreme Court (Højesteret), on 20 December 2002 the latter found for the applicant, and referred the case back to the High Court. The Supreme Court stated that the High Court should have tried the case pursuant to section 232, subsection 2 of the Administration of Justice Act (Retsplejeloven) as the preparations had been completed and the trial was imminent, even though it considered itself not to be the proper venue.
On 27 January 2003 the trial was scheduled by telephone. The High Court proposed the beginning of October, but the applicant’s counsel was unable to appear in that month due to other professional engagements. The trial was then fixed for 1, 2, and 5 December 2003. Due to a misunderstanding of the dates, and since the applicant’s counsel could not appear on 1 December 2003, on 3 February 2003 the trial was re-scheduled to take place on 3, 5 and 9 February 2004.
In a letter of 20 May 2003 to the Ministry of Justice and the Court Administration (Domstolsstyrelsen) the applicant complained that the length of the proceedings had exceeded the reasonable time requirement within the meaning of Article 6 of the Convention. By letter of 16 June 2003 the Ministry referred the applicant to lodge his complaint before the High Court, where the case was pending. By letter of 18 June 2003 the Court Administration concurred with the Ministry’s reply.
By letter of 8 August 2003 to the division of the High Court dealing with the case, the applicant repeated his complaint and claimed compensation.
It follows from the court records of 29 August 2003 that the High Court offered to schedule the trial earlier, including dates in October, November and December 2003. However, since the applicant’s counsel was busy with other cases until April 2004 a rescheduling turned impossible.
In a letter of 11 December 2003 the President of the High Court replied to the applicant’s letter of 8 August 2003 that he found no reason to grant the applicant compensation inter alia because the High Court had offered that the trial could commence in October 2003, but that the applicant’s counsel had been unable to appear on any of the proposed days.
It appears that the President sent a copy of his reply to the division of the High Court dealing with the case. It also appears that subsequently the applicant did not raise the issue of the length of the proceedings before the High Court.
By order of 9 January 2004 the High Court refused the applicant’s request made in a pleading of 1 December 2003 to the effect that the bench of the High Court be composed of judges from the High Court of Western Denmark. In this connection the applicant had referred to the cancellation of the trial in May 2000 and to a personal antagonism which apparently had arisen between the applicant and the President of the High Court of Eastern Denmark.
Summary pleadings were submitted on 9 and 12 January 2004.
On 21 January 2004 the applicant requested leave to appeal against the High Court’s decision of 9 January 2004. His request was refused by the Leave-to-Appeal Board (Procesbevillingsnævnet) on 30 January 2004 finding that it did not concern a matter of principle.
By letter of 2 February 2004, the day before the trial was about to commence, the applicant’s counsel requested a re-scheduling of the case as he had fallen ill. The High Court proposed the period from 9 until 13 February 2004, however, this turned impossible as the applicant’s counsel was going on holiday as from 10 February 2004.
On 9 February 2004, the trial was finally re-scheduled to take place on 23, 26 March and 2 April 2004.
By judgment of 6 May 2004 the High Court found against the applicant. Also, it ordered that the applicant pay defendant’s costs to the Ministry of Employment in the amount of DKK 90,000, equal to approximately EUR 12,000, with the following reason:
“With regard to the assessment of the costs, the High Court has taken into account that the case has reached such a dimension, notably due to [the applicant’s] numerous and extensive submissions, that it justifies a divergence from the ordinary rates. Also, it has taken into account that the duration of the proceedings has been extraordinary long – although part of the length of the proceedings cannot be attributed to [the applicant]. ”
It appears that the usual costs in a case concerning a claim for compensation in the amount of approximately DKK 80,000 would amount to DKK 15,000, and that the representative for the defendant, i.e. Legal Adviser to the Government (Kammeradvokaten), billed DKK 165,000 plus VAT for his work on the case before the High Court.
On 1 July 2004 the applicant appealed against the judgment to the Supreme Court (Højesteret), which received it the following day. It appears that the applicant, in the appeal statement, included a remark to the effect that in his view the High Court itself had acknowledged that the lengthy proceedings were not attributable to the applicant and that the “periods of inactivity” caused by the High Court in themselves might give rise to concern in relation to Article 6 of the Convention.
By judgment of 6 October 2004 the Supreme Court dismissed the appeal on the ground that it had been submitted after the expiry of the time-limit pursuant to section 372, subsection 2 of the Administration of Justice Act.
By letter of 10 October 2004 the applicant requested an extraordinary re-opening of the case pursuant to section 399, subsection 1 of the Administration of Justice Act. In support thereof he submitted that on 1 July 2004 he had received a letter from the Directorate of Civil Law (Civilretsdirektoratet) granting him free legal aid for an appeal to the Supreme Court, thus exactly the same day that the time-limit for appeal expired.
By decision of 7 January 2005 the Supreme Court granted the request.
A preparatory hearing was held on 7 April 2005 during which the applicant submitted that the preparation of the case had not been completed. Accordingly, he requested that the scheduling of the case did not take place yet.
At a preview hearing on 15 June 2005 the trial was scheduled to take place on 19 April 2006.
On 8 July 2005 the Supreme Court refused inter alia a request submitted by the applicant to take further evidence.
On 26 April 2006, the Supreme Court upheld the High Court’s judgment. It ordered that the Treasury pay costs to the Ministry of Employment in the amount of DKK 75,000.
B. Relevant domestic law and practice
Danish law does not refer to a remedy specifically designed or developed to provide redress in respect of complaints about an excessive length of civil proceedings. Accordingly to domestic case-law, however, in civil proceedings initiated by an individual against or involving a public authority, the courts may grant redress for a length-of-proceedings violation, by for example exempting the individual from paying legal costs or by deciding that expenses and fees shall be covered by the Treasury (see, among others, Kirsten Norman v. Denmark (dec.), no. 44704/98, 14 June 2001 and Hansen and others v. Denmark (dec.) no. 26194/03, 29 May 2006).
The applicant complained under Articles 6 § 1 and 13 of the Convention that his dispute with the Ministry of Employment was not terminated within a reasonable time, and that he did not have at his disposal an effective domestic remedy with regard to this complaint.
Invoking Article 6 of the Convention, he also complains that the proceedings before the High Court were unfair allegedly because its President was partial.
1. The applicant complained that the proceedings had exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention, and that he did not have at his disposal an effective domestic remedy as required by Article 13 of the Convention. The said provisions provide, in so far as relevant:
Article 6 § 1
“In the determination of ...any criminal charge against him, everyone is entitled to a fair ...hearing within a reasonable time by [a] tribunal...”
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
2. The Government submitted that the applicant could not claim to be a victim within the meaning of Article 34 of the Convention as to these complaints. He had been able to raise his length-of-proceedings complaint before the courts, and actually did so, which proved to be an effective remedy both in law and practise for ensuring a more expeditious determination of the case and providing the applicant with adequate redress for the delays that had occurred.
Firstly, the High Court had tried to remedy any violation of Article 6 that might have occurred by offering that the trial be scheduled earlier than already fixed. This had been to no avail because the applicant’s counsel was unable to appear at the dates suggested.
Secondly, in its judgment of 6 May 2004, the High Court at least in substance acknowledged the potential failure to observe the reasonable time requirement and afforded the applicant redress therefor by reducing the costs that he was ordered to pay. In this respect, the Government pointed out that “due to the applicant’s numerous and extensive submissions”, the High Court decided to fix the costs to be paid to the defendant at a substantially higher amount than usual, only to reduce the cost again “due to the unusually long duration of the proceedings”. Even though the exact amount by which the costs were reduced was not specified, it was in the Government’s opinion considerable, notably having regard to the fact that the usual costs in a case concerning a claim for compensation in the amount of approximately DKK 80,000 would amount to DKK 15,000, and to the fact that the representative for the defendant, i.e. the Legal Adviser to the Government (Kammeradvokaten) billed DKK 165,000 plus VAT for his work on the case before the High Court.
Furthermore, they asserted, if the applicant found that he had not been awarded appropriate and sufficient redress, it would have been normal to raise the issue before the Supreme Court during the appeal proceedings. The applicant had not, however, claimed a violation of Article 6 of the Convention and sought redress before the Supreme Court.
The applicant submitted that he could still be considered victim within the meaning of Article 34. More specifically, he contested that the High Court’s judgment of 6 May 2004 was a sufficiently clear recognition of the failure to comply with the “reasonable time” requirement, and that an express and measurable redress was afforded him. On the contrary, the length-of-proceedings issue was neither argued before the High Court, nor considered by it in its judgment.
The applicant pointed out that since there was no clear remedy in the Administration of Justice Act against a violation of the reasonable time requirement within the meaning of Article 6 of the Convention, he chose to keep this issue from the main issue in the proceedings before the High Court. Accordingly, in separate proceedings he claimed compensation due to the excessive length of the proceedings. His request was refused by the President of the High Court in his letter of 11 December 2003, a decision that was neither considered nor overruled by the High Court in the said judgment.
Moreover, the applicant maintained, the Government has failed to show the existence of an effective remedy in Denmark providing redress for a length-of-proceedings violation in civil lawsuits against public authorities. In addition, even if such a remedy existed, the minimum requirements in order to provide redress on the costs had not been satisfied in the present case.
Finally, the applicant alleged that from 18 September 2000 until 23 March 2004, there had been several periods of inactivity in the High Court proceedings, which could not be attributable to him. Notably, since originally the trial had been scheduled to take place in February 2002, the High Court was to blame for the delay of the proceedings from 8 May 2002 until the judgment was passed on 6 May 2004.
3. The Court reiterates that under Article 34 of the Convention it may “receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting parties of the rights set forth in the Convention or the Protocols thereto...” and that in principle a decision or measure favourable to an applicant is not sufficient to deprive him of his status as a “victim” unless, the national authorities have acknowledged, either expressly or in substance, the failure to observe the reasonable time requirement and then provided redress therefor (see, for example, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006-...; Eckle v. Germany judgment of 15 July 1982, Series A no. 51, § 66; Jensen v. Denmark (dec.), no. 48470/99, 20 September 2001, ECHR 2001-X, Normann v. Denmark (dec.), no. 44704/98, 14 June 2001, and Hansen and others v. Denmark (dec.), no. 26194/03, 29 May 2006).
In the present case, the applicant lost his lawsuit before both the High Court and the Supreme Court. Consequently, in the proceedings before it, the High Court decided that the applicant had to pay costs to the defendant. The amount was fixed at approximately EUR 12,000, with the following reason: “With regard to the assessment of the costs, the High Court has taken into account that the case has reached such a dimension, notably due to [the applicant’s] numerous and extensive submissions, that it justifies a divergence from the ordinary rates. Also, it has taken into account that the duration of the proceedings has been extraordinary long – although part of the length of the proceedings cannot be attributed to [the applicant]. ”
The Court cannot exclude that ambiguous statements may amount to an acknowledgement, at least in substance, of a failure to observe the reasonable time requirement (see for example Kelling v. Denmark (dec.), no. 32460/96, 2 February 1999; and, mutatis mutandis, Hansen and others v Denmark (dec.), cited above).
In the present case, however, the wording of the statements implies that part of the extraordinary length of the proceedings can be attributed to the applicant. Moreover, although the applicant’s complaint was not as such pleaded before the High Court, by letter of 11 December 2003 the President of the High Court had refused the applicant’s request of 8 August 2003 to be granted compensation due to the length of the proceedings. To find that the High Court nevertheless in substance did acknowledge a violation of the Conventions increases, in the Court’s view, the demands to the clearness of the circumstances, from which such an acknowledgement might be deduced (see, inter alia, Jensen v. Denmark (dec.), cited above). In addition, the extent to which the High Court reduced the costs that the applicant would normally have been ordered to pay in a case concerning a claim for compensation in the amount of approximately DKK 80,000 is unclear. Furthermore, in view of the ambiguous wording of the relevant judgment, the question may arise whether the High Court reduced the costs at all, having first increased them apparently in order to sanction the applicant’s procedural attitude.
Having regard thereto, the Court is not convinced that the national authorities in a sufficiently clear way acknowledged a failure to comply with the “reasonable time” requirement within the meaning of Article 6 § 1 of the Convention and afforded the applicant redress therefor by reducing the costs to be paid to the defendant party, which was a public authority.
Finally, as to the Government’s submission that the applicant could have raised the issue before the Supreme Court during the appeal proceedings, the Court notes that in those proceedings the applicant was granted free legal aid. Thus, even if he had repeated his length-of-proceedings complaint in those proceedings, and the Supreme Court had found a violation of Article 6 of the Convention, it could not have granted redress therefor by exempting the applicant from paying legal costs, because those were in any event to be paid by the Treasury.
Accordingly, the Court finds that the applicant may claim to be a victim of a violation of his right to trial within a reasonable time as guaranteed by 6 § 1 of the Convention.
Finally, the Courts considers, in the light of the parties’ submissions, that the complaint raises serious issues of facts and law under the Convention, the determination of which should depend on an examination of the merits. The Courts concludes therefore that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
4. With regard to the complaint under Article 13 of the Convention, the Court recalls that the burden of proving the existence of an effective and sufficient remedy, lies upon the State invoking the rule (see among others Vernillo v. France, judgment of 20 February 1991, Series A no. 198, § 27).
Moreover, remedies available to a litigant at domestic level for raising a complaint about the length of proceedings are “effective”, within the meaning of Article 13 of the Convention if they “[prevent] the alleged violation or its continuation, or [provide] adequate redress for any violation that [has] already occurred”. Article 13 therefore offers an alternative: a remedy is “effective” if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (see, among others, Kudla v. Poland [GC], no. 30210/96, §§ 157-159 ECHR-XI).
In the present case, the Court observes that the Government did not maintain that Danish law contained remedies which had been specifically designed or developed to provide a remedy in respect of complaints about the length of civil proceedings, whether preventative or compensatory in nature.
The Courts considers, in the light of the parties’ submissions, that the complaint raises serious issues of facts and law under the Convention, the determination of which should depend on an examination of the merits. The Courts concludes therefore that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
5. The applicant also complained, under Article 6 of the Convention, that the proceedings were unfair, alleging that the President of the High Court was partial.
The Court has examined the applicant’s complaint as it has been submitted. In the light of all the material in its possession, and in so far as the criteria set out in Article 35 § 1 have been complied with and the matter complained of is within its competence, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this complaint must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits of the case, the complaints that the proceedings had exceeded a reasonable time, and that the applicant did not have an effective domestic remedy concerning this complaint.
Declares inadmissibe the remainder of the application.
Claudia Westerdiek Snejana Botoucharova
BRØSTED v. DENMARK DECISION
BRØSTED v. DENMARK DECISION