AS TO THE ADMISSIBILITY OF
Application no. 5989/03
by Lise Donald IVERSEN
The European Court of Human Rights (First Section), sitting on 29 September 2005 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mr P. Lorenzen,
Mrs N. Vajić,
Mrs S. Botoucharova,
Mr A. Kovler, judges,
and Mr S. Nielsen, Registrar,
Having regard to the above application lodged on 11 February 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicant, Ms Lise Donald Iversen, is a Danish national, who was born in 1948 and lives in Hundested. She is represented before the Court by Mr Tyge Trier, a lawyer practising in Copenhagen. 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.
Subsequent to having suffered severe problems with her jaw, resulting in her being able to open her mouth only 5 millimetres, on 19 April 1988 at a hospital in Hillerød the applicant underwent a jaw operation which entailed implanting Teflon in both her jaw-joints.
Following the surgery, she experienced a lot of complications. Having regard thereto and due to a debate among doctors as to the potential danger related to the use of Teflon, in April 1990, the applicant had it removed.
She continued to experience problems, and on 20 February 1992, alleging mal-practice, she complained to the National Patients’ Complaints Board (Sundhedsvæsenets Patientklagenævn) which is an impartial public authority which may express criticism of the medical staff or submit particularly serious cases to the public prosecutor with a view to taking the cases to court. In support of her complaint she maintained that subsequent to the operation in 1988 she had suffered from headache, and constant pain in the jaw-joints and the masticatory muscle.
Before deciding on the issue, the applicant’s complaint was sent for preliminary examination with the Medical Officer of Heath of Frederiksborg County (Embedslægeinstitutionen for Frederiksborg Amt), the Medio-Legal Council (Retslægerådet) and the National Board of Health (Sundhedsstyrelsen).
By decision of 16 February 1994 the National Patients’ Complaints Board found against the applicant.
Consequently, on 4 March 1994 the applicant submitted a number of questions to the National Board of Health, which in return requested the Medico-Legal Council to prepare an opinion.
Also, alleging malpractice, on 7 March 1994 the applicant instituted proceedings before the City Court of Hillerød (Retten i Hillerød) against the County of Frederiksborg (Frederiksborg Amt) being responsible for the hospital. The applicant claimed compensation for her medical costs, loss of working capacity and disablement.
On 7 April 1994 the applicant’s counsel notified the court that he had requested that the National Board of Health submit the case to the Medico-Legal Council. Also, he enclosed a letter that he had written to the County of Frederiksborg in which he informed them that he had issued the writ on a slightly incomplete basis owing to lack of time and suggesting that the County of Frederiksborg postpone filing their defence until the reply from Medico-Legal Council had been submitted.
By letter of 11 April 1994 the County of Frederiksborg informed the court that it would comply accordingly.
On 3 June 1994 the Medico-Legal Council submitted their opinion to the National Board of Health, but since shortly thereafter the applicant submitted various American articles on the issue, on 17 June 2004 the case was re-submitted to the Medico-Legal Council with further questions. Having received more material from the parties, on 21 September 1994 the Medico-Legal Council submitted their opinion to the National Board of Health, which issued their opinion on 10 October 1994.
By letter of 16 March 1995 the City Court requested that the parties inform it of what was holding up the case, and indicated that it would be set down for trial should the parties not reply within three weeks.
On 20 March 1995 counsel for the County of Frederiksborg informed the court that he had send a reminder on 10 February 1995 to the applicant’s counsel asking about his position on the opinions submitted by the Medico-Legal Council and the National Board of Health.
Thereafter, on 24 March 1995 the applicant submitted a supplementary claim invoking also product liability, and counsel explained that the case had been awaiting his examination of the basis of the liability.
On 16 May 1995 the Court asked the County of Frederiksborg what was upholding the case, which resulted in the submission of their rejoinder on 8 June 1995.
On 9 June 1995 the City Court informed the parties that the pre-trial proceedings depended on the parties, who were expected to complete them without the assistance of the court.
A reply was filed with the City Court by the applicant on 29 August 1995 and a rejoinder by the County of Frederiksborg on 3 November 1995.
On 20 December 1995 the court asked the applicant’s counsel what was upholding the case, to which the latter replied on 5 January 1996 that due to vacation his pleading could not be expected until early February.
On 5 March 1996 the City Court ordered that the applicant file a pleading within three weeks.
The applicant’s pleading no. 1 was filed on 9 April 1996, following which the court ordered that the applicant’s counsel file a pleading within fourteen days stating the applicant’s claim for compensation, including particularly the losses included. When such had been submitted, the court would arrange a hearing to discuss the case.
Thus, the applicant’s pleading no. 2 was submitted on 13 May 1996, and a court hearing was held on 6 June 1996. During the hearing the applicant’s counsel specified that he wished to change his writ and only invoke product liability. Consequently, counsel for the County of Frederiksborg was granted a postponement to submit his pleading, which was eventually filed on 3 September 1996.
In October 1996 the parties informed the City Court of their intentions anew to put questions before the Medico-Legal Council, for which reason they requested an adjournment of the proceedings pending their drafting those questions.
On request, in December 1996 the City Court was informed that the parties’ counsel had met and agreed to obtain patient’s files from three hospitals and to draft questions to the Medico-Legal Council, when the patient’s file material was available. Thus, the parties requested an adjournment of the proceedings.
In May 1997 the applicant’s counsel informed the City Court that he had requested the National Board of Industrial Injuries (Arbejdsskadestyrelsen) to issue an opinion concerning the applicant’s degree of injury and loss of earning capacity. During the months to follow the applicant’s pension case file was consulted, and the case was brought before a dental consultant and a neurological specialist of the National Board of Industrial Injuries. On 19 March 1998 the National Board of Industrial Injuries delivered its opinion.
On 28 April 1998 the City Court asked the applicant’s counsel, whether the National Board of Industrial Injuries had delivered its opinion. The latter was forwarded to the City Court on 7 May 1998 and at the same time the applicant’s counsel stated that he would now calculate the final claim.
A hearing was scheduled for 19 June 1998 to discuss the further proceedings, including the time necessary for any further pre-trial procedures. Also, the Court ordered that the applicant’s counsel file a pleading within fourteen days, stating the applicant’s final claim.
On request by the applicant’s counsel the hearing was re-scheduled for 21 August 1998. Counsel was also granted an extension of the time-limit to submit the final claim. The latter was submitted as pleading no. 3 on 10 August 1998. The applicant’s claim amounted to 908,996 Danish kroner (DKK).
During the hearing on 21 August 1998 a number of problems were discussed, inter alia: documentation as to the applicant’s income situation and medicine expenses; the production of further patient’s file material; and a separate hearing of parts of the case and adjournment of other parts while awaiting a preliminary ruling from the European Court of Justice in another case before the Supreme Court (Højesteret). The City Court suggested that the parties reviewed the patient’s file material together and selected the relevant material. At the same time, the Court ordered the applicant’s counsel to file a pleading no later than 21 October 1998, stating the applicant’s amended claim and providing an account of her income situation and medicine expenses. The pleading also had to specify the parts of the case which counsel wanted to be heard and adjudicated separately, and specify the parts which counsel wanted adjourned awaiting the European Court of Justice. The City Court indicated that when the applicant’s pleading had been filed, it would impose a fairly short time-limit on the counsel for the County of Frederiksborg to file his pleading. Moreover, the City Court suggested that the parties expedite the proceedings as much as possible and indicated that the court expected the pre-trial procedures to be complete by the end of 1998. Finally, the case was set down for trial on 22 and 23 February 1999.
The applicant’s pleading no. 4 was filed on 22 October 1998 (according to which the applicant claimed DKK 908,583 in compensation and waived her request for having part of the case heard separately in order to await the ruling of the European Court of Justice). The County of Frederiksborg’s pleading no. 2 was filed on 24 November 1998.
The trial was held on 22 and 23 February 1999 and the case was set down for judgment.
By decision of 6 April 1999, however, the City Court decided to re-open the pre-trial proceedings. It found that a basis of liability existed, and that compensation could be granted for the pain, but not for the applicant’s reduced ability to open her mouth. As the National Board of Industrial Injuries had included the latter in its opinion of 19 March 1998 when determining the degree of injury and loss of earning capacity, the City Court found that it was necessary to require supplementary information from the National Board of Industrial Injuries in order to obtain an assessment of the applicant’s degree of injury and loss of earning capacity if her reduced ability to open her mouth was disregarded.
When the parties had agreed to the contents of a submission letter, on 2 June 1999 the case was submitted to the National Board of Industrial Injuries, before which a dental consultant was heard twice and a special medical certificate was obtained. The National Board of Industrial Injuries issued its opinion on 13 January 2000.
On 31 January 2000 the applicant’s pleading no. 5 was filed increasing the claim for compensation to DKK 1,147,035. The County of Frederiksborg submitted their pleading no. 3 on 10 February 2000; and the case was set down for judgment, which was expected to be passed on 29 May 2000.
Shortly thereafter, the deputy judge responsible for the case became ill and the case was therefore adjourned. She resumed work on 4 July 2000 on a part-time basis, and by judgment of 21 August 2000 the City Court found for the applicant, who was granted compensation in the amount of DKK 676,900.
On 2 September 2000 the County of Frederiksborg appealed against the judgment to the High Court of Eastern Denmark (Østre Landsret).
On 20 December 2000 a hearing was held, during which counsel for the County of Frederiksborg produced a number of questions to the Medico-Legal Council, and the proceedings were adjourned until 23 March 2001 pending a reply from the Council.
On 10 January 2001, the case was submitted to the Council, and during its examination a couple of months passed with exchange of letters between the two counsel due to doubt as to whether there had been a mistake in a patient’s file.
During a hearing held on 4 December 2001 the parties were granted leave to put further questions to the Medico-Legal Council in accordance with the applicant’s proposal, and the proceedings were adjourned until 1 February 2002.
On 5 March 2002 the Medico-Legal Council issued its opinion after four deliberating experts had had the case submitted three times.
During a hearing held on 8 April 2002 the High Court noted that a reference solely to the length of the proceedings did not constitute a sufficient basis for barring the applicant’s counsel from putting supplementary questions to the Medico-Legal Council. Thus, the proceedings were adjourned until 6 July 2002 pending the reply of the latter to these questions. Subsequently, also counsel for the County of Frederiksborg produced a number of supplementary questions.
The Medico-Legal Council’s opinion was submitted on 19 August 2002 after three deliberating experts had assessed the case.
On 22 November 2002 the proceedings were terminated before the High Court as the parties had entered a friendly settlement according to which the County of Frederiksborg was to pay the applicant DKK 477,503 plus VAT in compensation.
B. Relevant domestic law
The Administration of Justice Act (Retsplejeloven) provides in as far as relevant:
(1) The court decides when the pre-trial procedures are completed.
(2) At the completion of the pre-trial procedure or as soon as possible thereafter, the court shall fix a date for the trial. The court may convene the parties to discuss such date.
(3) The court may decide that the trial will take place in continuation of a preliminary hearing if the parties agree thereon or if the evidence is found adequate and the case is also otherwise suited for immediate trial.
(4) Any directions of the court on pre-trial proceedings are subject to variation.
The applicant complains that the length of the proceedings exceeded the “reasonable time” requirement within the meaning of Article 6 § 1 of the Convention.
Complaining that the proceedings were not determined within a reasonable time the applicant relies on Article 6 of the Convention which in so 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 by [a] ... tribunal...”
The Government’s objection
The Government claim that the applicant has failed to exhaust domestic remedies because she failed to request that the courts schedule the case for trial on the evidence available, which pursuant to section 356 of the Administration of Justice Act she could have done at any time during the proceedings.
In support thereof, the Government have submitted three domestic judicial decisions. The first decision was passed by the High Court of Eastern Denmark of 16 May 1995 (unpublished) setting down two civil law suits for trial despite an objection from one of the parties. The second decision was passed by the High Court on 20 February 1996 (see the Weekly Law Review, Ugeskrift for Retsvæsen 1996, p. 723), refusing a request to re-open pre-trial proceedings, which at that time had lasted for three years. The High Court found that the requested re-opening most likely would have led to a considerable extension of the length of the proceedings, and reference was also made to Article 6 § 1 of the Convention. The third decision was passed by the High Court on 17 September 2002 (unpublished) refusing to re-schedule a trial as requested by the parties who had wanted more time to prepare the trial.
Thus, the Government maintain, section 356 can be used to induce the court to set down a case for trial and is accordingly an effective remedy to bring civil proceedings to an end.
The applicant disagrees and finds the alleged remedy highly theoretical.
She notes that section 356 of the Administration of Justice Act is just one out of many under Danish procedure law outlining the role of the court as being responsible for the handling of civil cases, and that never before has this provision been invoked as a remedy to be exhausted under Article 35 of the Convention.
Moreover, she finds that none of the cases submitted show the possibility of such an action being either preventative of further delay, or giving adequate redress. Besides, they involve a very different set of factual and legal circumstances in comparison with the applicant’s case, notably in that they were set down for trial after finalisation of the pre-trial proceedings. Also, none of the cases have any connection, even remotely, to medical mal-practise cases.
As to the question whether the applicant has exhausted domestic remedies, the Court recalls that the purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see e.g. Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). 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 and Dalia v. France, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, § 38).
Danish law contains no remedies which have been specifically designed or developed to provide a remedy in respect of complaints of length of civil court proceedings, whether preventative or compensatory in nature, but the Government have invoked three domestic decisions from respectively 1995, 1996 and 2002, which in the Government’s view show that section 356 of the Administration of Justice Act can be used to induce the court to set down a case for trial on the evidence available, and that accordingly this is an effective remedy to bring civil proceedings to an end.
The Court need not rule in general whether section 356 of the Administration of Justice Act as claimed by the Government is a remedy which, depending on the circumstances of a case, should be exhausted, for example where a court refuses to terminate the preparation of a case which according to the applicant is ready for trial, or fix court hearings with shorter intervals in order to speed up the trial.
In the present case, however, the length of the proceedings was primarily caused by the repeated requests by the parties to obtain opinions from the Medico-Legal Council and the National Board of Industrial Injuries, and the time used by those bodies to answer their requests.
In the Court’s opinion, the Government have not shown that section 356 of the Administration of Justice Act would in such circumstances have been an effective remedy, which the applicant should have exhausted for the purposes of Article 35 § 1 of the Convention.
The alleged breach of Article 6 § 1 of the Convention
The Government submitted that the proceedings commenced on 7 March 1994, when the applicant brought the case before the City Court of Hillerød, and ended on 22 November 2002, when the High Court registered in its court records the friendly settlement obtained between the parties. Thus, the relevant period lasted approximately eight years and nine month. They point out in this respect that according to Danish law it was not a requirement that the applicant filed a complaint with the National Board of Patients’ Complaints before she brought the case before the courts.
In the opinion of the Government the case was complex, which indeed influenced the length of the proceedings. This can be seen inter alia from the fact that it was necessary to submit the matter to the Medico-Legal Council five times with several questions to be answered, and that the latter had to involve more deliberating experts than usual. Also, it was necessary to procure an opinion twice from the National Board of Industrial Injuries.
In the Government’s view the applicant’s conduct was to a considerable extent a contributory cause of the length of the proceedings. They note that at no time did she object to questions being put before the Medico-Legal Council or the National Board of Industrial Injuries, and that at no time did she object to adjournments of the proceedings, on the contrary, she often required the adjournments herself.
Finally, the Government submit that there were no periods of inactivity during the proceedings which can form the basis of criticism of the authorities involved.
The applicant maintains that the proceedings commenced on 20 February 1992, when she complained to the National Patients’ Complaints Board and that the proceedings thus lasted approximately ten years and nine months.
In her view the case was not complex, nor did she have any responsibility in the proceedings being protracted.
Finally, the applicant maintains that she was suffering dramatic consequences, including a high level of disability and constants pains, for which reason the national authorities should have shown “special diligence” in handling her case. However, this did not happen. In this connection, she recalls, inter alia, that the case lasted more than six and a half year before the City Court, and that before the High Court, the case was stayed almost fourteen months awaiting the opinion by the Medico-legal Council, although the council at the relevant time already three times before had answered questions regarding the applicant’s case.
The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
Søren Nielsen Christos Rozakis
IVERSEN v. DENMARK DECISION
IVERSEN v. DENMARK DECISION