EUROPEAN COMMISSION OF HUMAN RIGHTS SECOND CHAMBER. Application No /91. Wiktor Olesen. against. Denmark REPORT OF THE COMMISSION

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1 EUROPEAN COMMISSION OF HUMAN RIGHTS SECOND CHAMBER Application No /91 Wiktor Olesen against Denmark REPORT OF THE COMMISSION (adopted on 18 October 1995) TABLE OF CONTENTS I. INTRODUCTION (paras. 1-17) A. The application (paras. 2-4) B. The proceedings (paras. 5-12) C. The present Report (paras ) II. ESTABLISHMENT OF THE FACTS (paras ) A. The particular circumstances of the case (paras ) B. Relevant domestic law (paras ) III. OPINION OF THE COMMISSION (paras ) A. Complaint declared admissible (para. 39) B. Point at issue (para. 40) C. As regards Article 6 para. 1 of the Convention (paras ) CONCLUSION (para. 51) APPENDIX: DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY OF THE APPLICATION I. INTRODUCTION Page 1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

2 A. The application 2. The applicant is a Danish citizen, born in He is retired and resides at Hirtshals. Before the Commission the applicant is represented by Mr. Morten L. Wagner, a lawyer practising at Viborg. 3. The application is directed against Denmark. The respondent Government are represented by their Agent, Mr. Laurids Mikaelsen, of the Ministry of Foreign Affairs. 4. The case concerns the length of the proceedings in a liability and compensation dispute between the applicant and a hospital. These proceedings commenced in 1982 and are at present still pending. The applicant considers that the dispute has not been determined within a reasonable time and invokes in this respect Article 6 para. 1 of the Convention. B. The proceedings 5. The application was introduced on 15 July 1990 and registered on 11 April On 2 September 1992 the Commission (Second Chamber) decided to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaint concerning the length of the proceedings. 7. The Government's observations were submitted on 20 November On 8 December 1992 the Commission granted the applicant legal aid for the representation of his case. 9. On 31 March 1993 the applicant submitted his observations in reply to those of the respondent Government. 10. On 5 July 1994 the Commission declared the application admissible in so far it concerned the length of the proceedings. The remainder of the application was declared inadmissible. 11. The text of the Commission's decision on admissibility was sent to the parties on 20 July 1994 and they were invited to submit such further information or observations on the merits as they wished. The Government submitted further information and observations on 9 September On 30 March 1995 the applicant informed the Commission that he maintained his position. 12. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected. C. The present Report 13. The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present: MM. H. DANELIUS, President G. JÖRUNDSSON J.-C. SOYER H.G. SCHERMERS F. MARTINEZ

3 L. LOUCAIDES J.-C. GEUS M.A. NOWICKI I. CABRAL BARRETO J. MUCHA D. SVÁBY 14. The text of this Report was adopted on 18 October 1995 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention. 15. The purpose of the Report, pursuant to Article 31 of the Convention, is: (i) to establish the facts, and (ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention. 16. The Commission's decision on the admissibility of the application is annexed hereto. 17. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission. II. ESTABLISHMENT OF THE FACTS A. The particular circumstances of the case 18. On 17 December 1973 the applicant was admitted to Hjørring hospital for a prostate operation which was carried out on 20 December Certain unforeseen complications occurred as a result of which the applicant was re-operated on the same day as well as the following day. The applicant was discharged from the hospital on 5 January Subsequently, the applicant experienced a certain deterioration of his health and a number of medical examinations were made. In 1977 it was established that the applicant suffered from a so-called pre-senile dementia and further medical examinations were carried out in order to establish its cause. Following these examinations the applicant became convinced that his illness derived from errors committed by the medical staff during the operations in 1973 and on 15 January 1982 he therefore instituted proceedings in the High Court of Western Denmark (Vestre Landsret) against the hospital. He claimed damages in the amount of 800,000 DKK maintaining that the hospital staff had committed errors during the operations which again had caused the deterioration of his health. The parties agreed to request the Medico-Legal Council (Retslægerådet), hereinafter "the Council", to submit an expert opinion and by 1 June 1983 the parties had agreed on the questions to be submitted to the Council. 20. The first expert opinion by the Council was submitted on 9 April 1984 and this was followed by further submissions from the parties. On 25 February 1985 a preliminary hearing was held in court during which the applicant requested access to the hospital's medical records, a request which was apparently refused. Furthermore, the question arose of asking the Council to submit additional explanations, something which was finally agreed upon during another preliminary court session held on 4 March The Council's further explanations were submitted on 23 May Nevertheless, it appears that further disagreements arose in respect of access to the hospital's medical records and whether further

4 questions should be put to the Council. On 1 May 1987 another preliminary court session was held during which the Court allowed the applicant to put further questions to the Council whereas it appears that his request for access to the hospital's medical records was refused again. On 10 June 1987 the Council submitted that it was unable to answer the remaining questions. 22. On 10 November 1987 the preparation of the case had finished and the case was scheduled for the main hearing which took place on 12 April Judgment was pronounced on 28 June The applicant's claims for damages were rejected as the Court did not find it established that medical errors had been committed by the hospital staff. Costs in the amount of 45,000 DKK were awarded against the applicant. 23. On 5 July 1988 the applicant appealed against the judgment to the Supreme Court (Højesteret). He furthermore applied to the Ministry of Justice for free legal aid which, however, was refused by the Ministry on 24 November 1988 as he was not considered to have any reasonable prospects of being successful in his appeal. 24. As the applicant maintained that he was unable to conduct the case in the Supreme Court himself, he requested the Court to appoint counsel for him. However, on 12 May 1989 the Supreme Court refused the request. 25. The applicant furthermore requested permission to put further questions to the Council and also to have access to the hospital's medical records. Both requests were refused by the Appeals Selection Committee of the Supreme Court (Højesterets anke- og kæremålsudvalg) on 14 March The applicant then proceeded on his own to obtain further expert opinions and on 21 May 1990 also asked for an adjournment in order to find a lawyer who could assist him, something in which he was not successful. 26. On 23 April 1991 the Supreme Court decided to order the applicant to present his case through counsel. Furthermore, the Court appointed a lawyer to represent him, following which the applicant again requested the Court to give him access to the hospital's medical records. On 6 November 1991 the Court decided to meet the applicant's request. 27. Having studied the medical records the applicant, on 9 March 1992, asked the Court for permission to submit further evidence and to obtain further explanations from the Medico-Legal Council. On 16 December 1992 the Appeals Selection Committee of the Supreme Court granted the request. However, as before the parties were unable to agree on the questions to be put to the Council. Eventually, on 9 November 1993, the Appeals Selection Committee decided that three specific questions, drawn up by the Committee, were to be put to the Council. The case was adjourned pending the Council's reply which was submitted on 18 March In the meantime the applicant had applied to the Department of Private Law (Civilretsdirektoratet) for legal aid. This was refused on 27 March 1992 and subsequent applications were refused inter alia on 15 April 1992, 11 December 1992, and 17 May Eventually, on 30 March 1994, the Department of Private Law granted the applicant free legal aid in respect of the appeal proceedings in the Supreme Court. 29. Following the Medico-Legal Council's reply of 18 March 1994 new questions were put to the Council on 21 October The Council's reply was submitted on 14 June The applicant's civil case against Hjørring hospital is still pending in the Supreme Court. The main hearing has been scheduled for 15 April 1996.

5 B. Relevant domestic law 31. 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 (retsplejeloven)). Certain lawsuits, like the present one, are brought before the High Court as the court of first instance (cf. sections 224 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 hearing phase. 32. Two procedures may be followed in respect of the preparation. Pursuant to section 351 of the Administration of Justice Act, the preparation of a case may be carried out by the parties appearing at preliminary hearings either personally or through a representative entitled to appear for the person concerned. This is called oral preparation. Pleadings are exchanged and formally submitted to the court during a session. 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. 33. The purpose of preparing a case 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. 34. 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 scope 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. 35. 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. On the other hand the court has the final responsibility for the judicial procedure. A stay of proceedings can only be granted if there are reasonable grounds for such a stay. The relevant provision is section 345 of the Administration of Justice Act according to which "the court may adjourn 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." 36. 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 adjourned if one of the parties submits a pleading in order to allow the other party to comment on it. Proceedings will usually also be adjourned when an expert opinion has been submitted, enabling the parties to review the result and decide whether the expert opinion necessitates further questions to the expert. 37. In civil lawsuits the case is elucidated by the parties and takes the form of a negotiation between them. The parties decide 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 how much or how little the court is to be

6 presented with and consider. The court ensures 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 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 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). 38. 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. III. OPINION OF THE COMMISSION A. Complaint declared admissible 39. The Commission has declared admissible the applicant's complaint that his case has not been determined within a reasonable time. B. Point at issue 40. Accordingly, the only point at issue is whether the length of the proceedings exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention. C. As regards Article 6 para. 1 (Art. 6-1) of the Convention 41. Article 6 para. 1 (Art. 6-1) of the Convention reads, in so far as relevant, as follows: "In the determination of his civil rights and obligations... everyone is entitled to a... hearing within a reasonable time by (a)... tribunal..." 42. It is undisputed that the proceedings in question involve a determination of a "civil right" and thus fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention. 43. The proceedings began on 15 January 1982 when the applicant instituted proceedings against Hjørring hospital. These proceedings are at present pending in the Supreme Court. Until now they have accordingly lasted more than thirteen years and nine months. 44. The Commission recalls that the reasonableness of the length of proceedings must be assessed with reference to the following criteria: the complexity of the case, the conduct of the parties and that of the authorities before which the case is brought. Furthermore, the special circumstances of the case, in particular what is at stake for the applicant in the litigation, must be taken into account and may call for an overall assessment (cf. Eur. Court H.R., Vernillo judgment of 20 February 1991, Series A no. 198, p. 12, para. 30 and X v. France judgment of 31 March 1992, Series A no. 234-C, p. 90, para. 32). 45. The Commission also recalls that in civil cases the exercise of the right to a hearing within a reasonable time is subject to diligence being shown by the party concerned (cf. Eur. Court H.R., Pretto and Others judgment of 8 December 1983, Series A no. 71, pp. 14 et seq., paras. 33 et seq.). Nonetheless this principle cannot absolve the courts from securing that the case progresses within a reasonable time (cf. Eur. Court H.R., Martins Moreira judgment of 26 October 1988, Series A no. 143, p. 17, para. 46), and Article 6 para. 1 (Art. 6-1) of the Convention imposes on the Contracting States the duty to organise their legal system in such a way that their courts can meet each of its requirements (cf. Eur Court, H.R., Bunkate judgment of

7 26 May 1993, Series A no. 248-B, p. 31, para. 23). 46. Whereas the applicant maintains that a period of more than thirteen years cannot in any circumstances be considered reasonable in a case of this kind, the Government submit that of the period of time the case has been before the Danish courts the parties are responsible for the delays of more than eight years characterised more than anything else by the fact that they have been unable to reach agreement on some points and have reached agreement on other points only after very long periods of discussions during the preparatory phases both in the High Court and in the Supreme Court. Furthermore, the Government maintain that the complexity of the case is evident, inter alia, from the fact that it has been deemed necessary to have a very large number of questions put to the Medico-Legal Council and other medical experts. 47. As regards the latter point the Commission recalls that the case concerns an action for damages as a result of alleged errors committed by the hospital during the operations the applicant underwent there. The Commission does not consider this to be of particular complexity from a legal point of view. Thus, although the production of evidence, including expert evidence from the Medico-Legal Council, has turned out to be time-consuming, the Commission does not find that the complexity of the case can justify the period of time involved. 48. As regards the conduct of all parties involved the Commission recalls that the Danish legal system in civil cases is not of an inquisitorial type, but the lawsuit is elucidated by the parties and takes the form of a negotiation between them. However, according to the Administration of Justice Act it is nevertheless the court which ensures that continuous progress is made in the case and that the case is not allowed to be neglected. 49. In the present case the Commission notes that the applicant was not allowed access to the hospital's medical records until 6 November 1991, i.e. almost ten years after the case commenced, when the Supreme Court overruled its own Appeals Selection Committee's prior refusal. It is hardly surprising, therefore, that the applicant tried several times through the Medico-Legal Council, or by other means, to obtain evidence which might support his claims. Nor is it surprising that the applicant was in need of time to prepare the case, having regard to the fact that free legal aid was refused until 30 March 1994, i.e. more than twelve years after the case commenced. 50. However, the gist of the matter lies in the fact that the High Court of Western Denmark and the Supreme Court did not use their powers to make orders for the speeding up of the progress of the proceedings. In both courts it became clear that the parties were unable to resolve the numerous disputes over the issues which were to be examined by the Medico-Legal Council as well as other matters, and it may well be, as maintained by the Government, that more than eight years passed in particular due to this. However, in such circumstances the courts ought to have intervened in accordance with their powers under the Administration of Justice Act in order to ensure proper progress in the proceedings regardless of the parties' conduct. However, the courts failed to do so. Accordingly the dispute between the applicant and the Hjørring hospital has not been determined within a reasonable time within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. CONCLUSION 51. The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention. Secretary to the Second Chamber (M.-T. SCHOEPFER) President of the Second Chamber (H. DANELIUS)

AS TO THE ADMISSIBILITY OF. Application No /95 by Flemming PETERSEN against Denmark

AS TO THE ADMISSIBILITY OF. Application No /95 by Flemming PETERSEN against Denmark AS TO THE ADMISSIBILITY OF Application No. 28288/95 by Flemming PETERSEN against Denmark The European Commission of Human Rights (Second Chamber) sitting in private on 16 April 1998, the following members