COUR EUROPÉENNE DES DROITS DE L HOMME EUROPEAN COURT OF HUMAN RIGHTS

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1 CONSEIL DE L EUROPE COUNCIL OF EUROPE COUR EUROPÉENNE DES DROITS DE L HOMME EUROPEAN COURT OF HUMAN RIGHTS FIFTH SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 8305/04 by Per Karsten POULSEN against Denmark The European Court of Human Rights (Fifth Section), sitting on 4 September 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 12 February 2004, Having regard to the decision to apply Article 29 3 of the Convention and examine the admissibility and merits of the case together, 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 FACTS The applicant was born in 1956 and lives in Hørsholm. He is represented before the Court by Claus Hanghøj, a lawyer practising in Kalundborg. The Danish Government ( the Government ) are represented by their Agent, Mrs Nina Holst-Christensen, of the Ministry of Justice.

2 2 POULSEN v. DENMARK DECISION A. The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicant worked as a printer from 1976 until January 1993, when he had to report sick, having suffered from headaches, nose bleedings, dizziness and fatigue for some time. The administrative proceedings On 15 January 1993 his doctor reported to the National Board of Industrial Injuries (Arbejdsskadestyrelsen, formerly called Sikringsstyrelsen) that the applicant s illness could be a work related injury resulting from organic-solvents poisoning, and thus giving rise to compensation. On 12 October 1993, the Board informed the applicant that it was unable to make its assessment within the nine-month s time-limit set out in the Act on Protection against the consequences of Industrial Injuries (lov om forsikring mod følger af arbejdskade), the reason being that the disease did not meet the conditions for recognition according to the list of occupational diseases pursuant to the said Act. Therefore the case had to be submitted to the Occupational Diseases Committee (Erhvervsudvalgsstyrelsen) before a decision could be taken. On 10 May 1994 the Occupational Diseases Committee recommended dismissal of the case as the disease was not exclusively or predominantly due to the applicant s work. By decision of 3 June 1994 the Board refused to acknowledge that the applicant s illness was an occupational disease within the meaning of the Act on Protection against the consequences of Industrial Injuries. On 6 July 1994, the applicant appealed against the decision to the Social Appeal Board (Den Sociale Ankestyrelse), which on 2 February 1995 upheld the decision. Twice, enclosing new medical assessments, the applicant requested in vain that the case be re-opened. His requests were refused by the National Board of Industrial Injuries on 4 May 1995 and 31 October 1996 and, on appeal, by the Social Appeal Board on respectively 12 September 1995 and 5 February 1997, with the reasoning that the result of the new medical examinations confirmed the previous ones. On 22 August 1997, anew the applicant requested a re-opening of his case, which resulted in the National Board of Industrial Injuries initiating a neurological examination of the applicant. On 18 May 1998 the National Board of Industrial Injuries, on the basis of the neurological medical certificate, re-opened the case and, by decision of 29 June 1998, it recognised that the applicant s injury was work related.

3 POULSEN v. DENMARK DECISION 3 Thereafter, on 10 July 1998 the National Board of Industrial Injuries found that the applicant s degree of disablement amounted to 20 %. On 13 November 1998 it found that the degree of his loss of working capacity amounted to 50 %. On appeal, on 27 November 1998 the Social Appeal Board upheld the calculation as to the degree of disablement and on 23 June 1999 as to the degree of the loss of working capacity. On 20 August 2001, the applicant applied for free legal aid with the County of Copenhagen (Københavns Statsamt) with a view to initiating civil proceedings before the courts against the Social Appeal Board claiming that his loss of working capacity amounted to 100 %, In this connection the latter heard the Social Appeal Board, which on 4 February 2002 decided to re-open the case and re-calculate the applicant s degree of loss of working capacity to 85 %. The proceedings before the courts 1. On 8 March 2002, having been granted free legal aid, the applicant instituted civil proceedings before the High Court of Eastern Denmark (Østre Landsret) claiming that the degree of his loss of working capacity be set to 100 %. By judgment of 7 February 2003 the High Court found for the Social Appeal Board. On appeal, on 20 January 2004, the Supreme Court (Højesteret) upheld the judgment. 2. In the meantime, on 7 March 2003 the Social Appeal Board refused to re-open the case concerning its assessment of the applicant s degree of disablement. Consequently, on 5 September 2003 the applicant instituted another set of proceedings before the High Court claiming that the Social Appeal Board should acknowledge that his degree of disablement be set to 50 %, or in the alternative between 20 % and 50 %. The Social Appeal Board stated that in accordance with the new scale (méntabel) to be used as from 1 January 2004, it could accept that the degree be set to 25 %. By judgment of 25 June 2004 the High Court found that the degree of disablement should be set to 25 %. The applicant appealed against the judgment to the Supreme Court. Having obtained another medical expert statement on 5 August 2005, by judgment of 6 April 2006, the Supreme Court upheld the High Court judgment of 25 June B. Relevant domestic law and practice According to Danish law it is not a requirement for instituting civil court proceedings that administrative appeal proceedings have been exhausted beforehand, unless specifically provided.

4 4 POULSEN v. DENMARK DECISION The relevant provisions of the then applicable Act on Protection against the Consequences of Industrial Injuries (Lov om forsikring mod følger af arbejdskade, nu afløst af Lov om arbejdsskadesikring), were worded as follows: Section 54 Where nothing to the contrary has been provided, the National Board of Industrial Injuries shall make decisions on all matters under this Act. Section Decisions made by the National Board of Industrial Injuries under section 54 may be brought before the Social Appeal Board by a) the injured person or the injured person s surviving relatives; [and]... A Supreme Court judgment printed in the Weekly Law Review (Ugeskrift for Retsvæsen), 2003, page 47, concerned a nurse who injured her back during work. Having acknowledged that her injury was work related, the National Board of Industrial Injuries fixed her degree of disablement at 20 % and her loss of working capacity at 25 %. Without pursuing any further administrative appeals, the nurse brought the decision concerning the degree of loss of working capacity directly before the High Court, which passed judgment remitting the case to the National Board of Industrial Injuries on the ground that the latter had not taken the nurse s income into account when making its decision. The nurse appealed against the High Court s judgment to the Supreme Court, which by judgment of 9 October 2002 fixed her loss of working capacity at 50 %. Pursuant to section 224 of the Administration of Justice Act (Retsplejeloven), as the main rule, civil proceedings are instituted before the City Court being the first judicial instance. Certain lawsuits, however, are brought before the High Court (sections 225 and 226 of the said Act) as the court of first instance, for example if a dispute between an individual and the public concerns a review of a decision taken by the administrative body, which has the highest authority, like the Social Appeal Board. COMPLAINT The applicant complained that the length of the proceedings, which he maintained commenced on 15 January 1993, exceeded the reasonable time requirement within the meaning of Article 6 1 of the Convention.

5 POULSEN v. DENMARK DECISION 5 THE LAW The applicant complained that the length of the proceedings had been incompatible with the reasonable time requirement, laid down in Article 6 1 of the Convention, which 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... Period to be taken into consideration Firstly, the Government submitted that the initial administrative proceedings should not be included as an integral part of the proceedings to be assessed under Article 6 of the Convention. Accordingly, in their view the proceedings commenced at the earliest on 8 March 2002, when the applicant instituted proceedings before the High Court concerning the calculation of the degree of loss of working capacity. Secondly, should the Court find that the dispute arose on 6 July 1994, when the applicant appealed against the National Board of Industrial Injuries decision of 3 June 1994 to the Social Appeal Board, the Government maintained that the period between 6 July 1994 and 8 March 2002 should not be taken into account, since the applicant could have brought the National Board of Industrial Injuries decision directly before the High Court. Thirdly, should the Court find that the administrative proceedings should be included to a greater extent, the Government submitted that the only relevant period to be taken into account could be from December 1997, when the National Board of Industrial Injuries took steps to re-open the case on the basis of new medical information, until 13 November 1998, when it made a decision on the applicant s loss of working capacity. The applicant submitted that the initial administrative proceedings should be included as an integral part of the proceedings to be assessed under Article 6 of the Convention. Thus, he maintained, the proceedings commenced on 15 January 1993 when the applicant s doctor reported the injury to the National Board of Industrial Injuries. It was not until his ailment was finally recognised as an industrial injury on 29 June 1998 that he could proceed to the determination of his loss of working capacity and degree of disablement, and consequently the compensation that he was entitled to. Finally, the applicant contested that he could have brought the National Board of Industrial Injuries decision directly before the High Court. The Court recalls its case-law according to which the proceedings before an administrative body are to be included when calculating the length of the civil proceedings for the purposes of Article 6 if under the national legislation an applicant has to exhaust a preliminary administrative

6 6 POULSEN v. DENMARK DECISION procedure before having recourse to a court. In such cases, the relevant period starts running as soon as a dispute arises (see, among other authorities, König v. Germany, judgment of 28 June 1978, Series A no. 27, pp , 98; Janssen v. Germany, no /94, 40, 20 December 2001; Gavrielides v. Cyprus, no /02, 38, 1 June 2006; Hellborg v. Sweden, no /99, 59, 28 February 2006; Nowicky v. Austria, no /02, 47, 24 February 2005; and Morscher v. Austria, no /00, 38, 5 February 2004). In the present case, it follows from Danish law, notably section 54 of the Act on Protection against the Consequences of Industrial Injuries that is was necessary for the applicant to apply to the National Board of Industrial Injuries for a determination as to whether his injury fell within the scope of the Act and for a determination of the benefits to which he was entitled. By contrast, section 55, subsection 1 of the said Act did not require that he had to exhaust the administrative appeals procedure before bringing a decision by the National Board of Industrial Injuries before the courts. This understanding is confirmed by the Danish Supreme Court, inter alia, in the judgment printed in the Weekly Law Review, 2003, page 47, in which a nurse successfully brought a decision by the National Board of Industrial Injuries directly before the courts although she could also have appealed against the decision to the Social Appeal Board. Hence, the Court must conclude that pursuant to national law it was not a requirement that the applicant exhausted the administrative procedures before the Social Appeal Board before having recourse to the courts. Accordingly, the dispute arose in principle on 3 June 1994, when the National Board of Industrial Injuries passed its first decision in the case refusing to acknowledge that the applicant s illness was an occupational disease within the meaning of the Industrial Injury Insurance Act. The applicant did not, however, bring the dispute directly before the City Court as he could have done. As a matter of fact the applicant did not bring the question whether or not his disease was occupational within the meaning of the Act on Protection against the consequences of Industrial Injuries before the courts, as it was settled in his favour by the National Board of Industrial Injuries on 29 June The original dispute did evolve though with the National Board of Industrial Injuries decision of 10 July 1998 regarding the applicant s degree of disablement, which it fixed at 20 %, and its decision of 13 November 1998 regarding the applicant s degree of the loss of working capacity, which it fixed at 50 %. The applicant did not, however, bring these issues directly before the City Court either. In fact, only on 20 August 2001 did he apply for free legal aid with a view to initiating civil proceedings claiming that his loss of working capacity had amounted to 100 %.

7 POULSEN v. DENMARK DECISION 7 Moreover, having been granted free legal aid by the County of Copenhagen within a time span of maximum seven months, the applicant initiated the first set of proceedings before the High Court concerning his loss of working capacity on 8 March He initiated the second set of proceedings concerning the degree of disablement on 5 September Accordingly, the Court finds that the period to take into consideration with regard to the first set of proceedings commenced on 8 March 2002 and ended on 20 January 2004, and thus lasted less than two years for two court instances. Likewise, it finds that the period to take into consideration with regard to the second set of proceedings commenced on 5 September 2003 and ended on 6 April 2006, and thus lasted approximately two years and six months for two court instances. Reasonableness of the length of the proceedings The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no /96, 43, ECHR 2000-VII). As stated above, the first set of proceedings lasted less than two years for two court instances, and the second set of proceedings lasted approximately two years and six months for two court instances. Such lengths cannot give rise to criticism. In these circumstances, and since none of the proceedings disclose any periods of inactivity which could bring them at variance with Article 6 1 of the Convention, the application is manifestly ill-founded within the meaning of Article 35 3 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible. Claudia WESTERDIEK Registrar Snejana BOTOUCHAROVA President