PROCEDURE

The case originated in an application (no. 247/07) against the Kingdom of Denmark lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Danish national, Ms Anne-Marie Christensen (“the applicant”), on 13 December 2006.

The applicant was represented by Mr Tyge Trier, a lawyer practising in Copenhagen. The Danish Government (“the Government”) were represented by their Agent, Mrs Nina Holst-Christensen of the Ministry of Justice.

The applicant complained about the length of civil proceedings and lack of an effective remedy under Articles 6 and 13 of the Convention.

The applicant and the Government each filed observations on the admissibility and the merits.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1944 and lives in Lyngby.

During the period from 1988 to 1992 the applicant received treatment at the Urological Unit of the County Hospital in Glostrup (Amtssygehuset i Glostrup).

In May 1992, the applicant underwent two cystoscopic examinations at the County Hospital in Gentofte (Amtssygehuset i Gentofte).

In October 1992 she underwent a diagnostic laparoscopic examination at the County Hospital in Glostrup.

1. Administrative proceedings

Alleging malpractice on the part of the consultant who performed the cystoscopic examinations, on 30 June 1993 the applicant’s insurance company, acting on her behalf, filed a grievance with the National Patients’ Complaints Board (Sundhedsvæsenets Patientklagenævn). The latter found against her by decision of 28 September 1995.

On 9 September 1997, alleging malpractice on the part of the consultant who performed the diagnostic laparoscopic examination, the applicant requested that the Patient Insurance Association (Patientforsikringen) grant her compensation. The latter refused her request on 28 January 1998 finding that her troubles were caused by the disorder for which she sought treatment, rather than the examination and treatment received in that connection. On appeal, on 20 January 2000 the Patient Injury Appeals Board (Patientskadeankenævnet), upheld the Patient Insurance Association’s decision.

2. Proceedings before the courts

On 29 June 1995, alleging malpractice, the applicant instituted civil proceedings before the High Court of Eastern Denmark (Østre Landsret - hereafter the High Court) against the medical consultant who performed the two cystoscopic examinations in May 1992.

On 7 September 1995 the applicant changed the defendant from the medical consultant to Copenhagen County (Københavns Amt), being responsible for the County Hospital in Gentofte. She amended the writ accordingly and requested that Copenhagen County be ordered to acknowledge its liability in damages for the injuries allegedly incurred in connection with the examinations carried out at Gentofte County Hospital.

During the proceedings before the High Court, which ended on 13 November 2002, the applicant changed counsel at least five times. Moreover, during the proceedings a significant amount of time was spent on the drafting and discussion of various questions to be submitted to the Medico‑Legal Council (Retslægerådet) for an expert opinion.

From September 1995 to March 1996 pleadings were exchanged.

From March 1996 to April 1997 the applicant was granted seven extensions of time limit to prepare her questions to the Medico-Legal Council and because she had changed lawyer.

From 10 April to 8 August 1997 the questions were discussed and approved by the High Court, and on the latter date they were forwarded to the Medico-Legal Council.

Having requested and received additional medical material, on 22 December 1997 the Medico-Legal Council issued its opinion.

In January and February 1998, it was established that one of the expert members of the Medico-Legal Council had to be disqualified due to conflict of interest. The Medico-Legal Council thus had to reconsider the questions. Beforehand, however, the parties wanted to prepare supplementary questions to be annexed. The case was accordingly adjourned five times and, at a hearing on 11 December 1998, the High Court fixed a time limit for 20 January 1999 for the applicant to finish her draft questions and a time limit for 24 February 1999 for the parties to agree on the final version of those questions.

On 19 March 1999 a hearing was scheduled for 18 June 1999, at which the questions were discussed. At a hearing in September a specific exhibit was procured and at a hearing on 19 November 1999 the draft questions were discussed anew. The proceedings were adjourned until 27 December 1999 pending the final approval of the questions.

On 24 January 2000 the High Court issued an order on the wording of the questions. The applicant disagreed with the wording and requested leave to appeal against the order. The proceedings were thus adjourned until 5 May 2000, when her request was refused by the Leave to Appeal Board (Procesbevillingsnævnet). Beforehand, however, on 16 March 2000 the High Court re-submitted the matter, including the original questions, to the Medico-Legal Council.

The Medico-Legal Council issued their opinion on 4 August 2000.

In the meantime, on 4 July 2000 the applicant requested that the Patients’ Injury Appeals Board’s decision of 20 January 2000 be joined to the proceedings pending before the High Court. Her request was granted and the Patients’ Injury Appeals Board submitted its writ of defense on 3 October 2000.

On 25 October 2000 the proceedings were adjourned for two months because the applicant wanted to change lawyer.

On 22 December 2000 the applicant’s third lawyer was granted an adjournment of the proceedings.

On 9 April 2001 the applicant’s fourth lawyer requested that nine further questions be submitted to the Medico-Legal Council. The defendant requested that three further questions be submitted. Although allowing the questions, the High Court fixed a short deadline of 9 May 2001 for the final version of the questions and stated that it expected that thereafter there would be no further referrals to the Medico-Legal Council.

On 9 May 2001, the applicant requested a further adjournment of the proceedings in order to prepare the supplementary questions. The defendant objected and the High Court decided on the wording of the questions and re‑submitted the matter to the Medico‑Legal Council on 14 May 2001.

The Medico-Legal Council issued its opinion on 4 October 2001.

Thereafter the applicant was granted approximately one month to consider the further procedure.

On 12 December 2001, the High Court summoned the parties for a scheduling hearing to take place on 21 December 2001.

Although on 20 December 2001 a fifth lawyer informed the High Court that he was now representing the applicant, the scheduling hearing was held as planned, and the trial was scheduled to take place on 9 and 11 September 2002.

The applicant’s fifth lawyer objected to the scheduling and brought the issue before the Leave to Appeal Board without success.

On 21 February 2002 the applicant’s fifth lawyer informed the High Court that she was resigning from the case.

On 20 March 2002, the applicant’s sixth lawyer submitted a pleading to the High Court requesting that further witnesses be heard.

On 26 March 2002, the High Court convened the parties to a hearing on 3 April 2002. The High Court invited the applicant to appear personally at this hearing, due to the many changes of counsel. On 2 April 2002, however, the applicant’s fifth counsel, who was briefly involved in the proceedings again, requested postponement of the scheduled hearing, which was granted, and instead the hearing took place on 30 April 2002. During this hearing, a deadline of 30 May 2002 was fixed for the applicant’s production of a notice of evidence for the trial.

On 28 May 2002 the applicant’s sixth counsel submitted a pleading containing a notice of evidence for the trial as well as new exhibits. During the subsequent months the final pleadings were submitted.

On 9 and 11 November 2002 the trial was held, during which the applicant and six witnesses were heard, and various medical records and statements were submitted.

By judgment of 13 November 2002 the High Court found against the applicant. She was ordered to pay the opponent parties’ costs amounting to a total of 100,000 Danish kroner (DKK), equal to approximately 13,500 Euros (EUR).

On 8 January 2003, a new (seventh) lawyer representing the applicant submitted an appeal to the Supreme Court (Højesteret).

The defence writs were received in February 2003.

Thereafter the proceedings were adjourned pending yet another (eighth) change of the applicant’s counsel and to submit a reply to the defence writs. The latter was received on 22 April 2003 with a request for further evidence, including a supplementary opinion from the Medico‑Legal Council.

From May to June 2003 pleadings were exchanged in this respect and on 18 June 2003 the Supreme Court granted the applicant fourteen days to submit her draft supplementary questions to the Medico‑Legal Council. On the applicant’s request, the time limit was extended until 1 September 2003. On that day the applicant submitted seventeen draft questions to be submitted to the Medico‑Legal Council

Between September and December 2003 the parties discussed the questions and the applicant was reminded several times to prepare the necessary documentary basis for obtaining an opinion from the Medico‑Legal Council.

On 14 January 2004 the Supreme Court approved nine of the applicant’s seventeen draft questions. The applicant requested an adjournment of the proceedings, inter alia, because she wanted to obtain supplementary evidence before the case was submitted to the Medico‑Legal Council. Having heard the parties, the Supreme Court refused her request.

On 29 April 2004, the applicant forwarded only five of the said questions to the Medico‑Legal Council.

On 25 June 2004 the applicant was granted free legal aid in the Supreme Court proceedings by the Directorate of Civil Law (Civilretsdirektoratet).

On 8 July 2004 the Medico‑Legal Council issued their opinion as to the five forwarded questions.

On the defendants’ request in July 2004 the Supreme Court summoned the parties for a scheduling hearing on 7 September 2004, to which the applicant objected, notably because four of the nine approved questions, apparently by mistake, had not been received by the Medico‑Legal Council and thus had not been replied to. The questions were therefore submitted on 28 July 2004.

The scheduling hearing on 7 September 2004 was maintained despite the applicant’s objection and the trial was scheduled to take place on 20 June 2005.

On 6 October 2004 the Medico-Legal Council issued their opinion as to the last four questions. At the relevant time the Medico-Legal Council had answered more than sixty questions.

On 17 March 2005 the applicant requested a re‑scheduling of the trial because a memorandum from a Swedish hospital, which she wanted to use as evidence, would not be available by June 2005. Her request was refused by the Supreme Court on 5 April 2005.

On 5 June 2005 the applicant submitted a new request for a re‑scheduling of the trial, which was refused by the Supreme Court on 9 June 2005.

On 13 June 2005 the applicant submitted yet another request for a re‑scheduling of the trial alleging that evidence had gone missing. Moreover, the following day the applicant’s counsel resigned from the case. Thus, on 15 June 2005 the Supreme Court had to cancel the trial planned for 20 June 2005 and adjourn the case.

On 11 July 2005 the Supreme Court convened the parties to a hearing on 23 August 2005. In the meantime, on 4 August 2005 the applicant’s ninth counsel stated that he was unable to appear for the hearing. By letter of the same day the Supreme Court maintained the date of the hearing, during which the Supreme Court ordered that the applicant’s requests for evidence should be submitted before 13 September 2005 and that the appeal trial should take place on 6 June 2006.

On 13 September 2005 the applicant requested renewed interviews of three medical consultants and permission to put newly elaborated questions to the Medico-Legal Council, and to initiate an inquiry into the applicant’s current state of health. Having heard the defendants, who objected, the applicant’s request was refused by the Supreme Court on 26 October 2005.

The applicant’s renewed request in this respect, of 19 April 2006, was refused by the Supreme Court on 11 May 2006.

The trial was held as scheduled on 6 June 2006, and by judgment of 15 June 2006 the Supreme Court upheld the High Court’s judgment. Since the applicant had been granted legal aid in the proceedings before the Supreme Court, the Treasury was ordered to pay the opponent parties’ costs, altogether in the amount of DKK 200,000, equal to approximately EUR 26,900. The applicant’s lawyer’s fee was fixed by the Supreme Court at DKK 150,000, equal to approximately EUR 20,300, which was also to be paid by the Treasury in so far as it was not covered by private legal insurance. The same applied to the fee for one of the applicant’s previous lawyers before the Supreme Court, which had been set at DKK 60,000, equal to approximately EUR 8,100.