PROCEDURE

The case originated in an application (no. 5989/03) 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, Mrs Lise Donald Iversen (“the applicant”), on 11 February 2003.

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

The applicant alleged that civil proceedings initiated by her had not been determined within a reasonable time within the meaning of Article 6 § 1 of the Convention.

The application was originally allocated to the First Section of the Court.

By decision of 29 September 2005 the Court declared the application admissible.

The applicant and the Government each filed observations on the merits (Rule 59 § 1).

On 1 April 2006 the case was assigned to the newly constituted Fifth Section (Rule 25 § 5 and Rule 52 § 1 of the Rules of Court

THE FACTS

A. The circumstances of the case

The applicant was born in 1948 and lives in Hundested.

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, the applicant's ability to open her mouth was improved. She could thus open her mouth up to 20 millimetres. However, 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 Health of Frederiksborg County (Embedslægeinstitutionen for Frederiksborg Amt), the Medio-Legal Council (Retslægerådet) and the National Board of Health (Sundhedsstyrelsen). The Medico-Legal Council submitted their opinion on 5 March 1993 and the National Board of Health submitted their recommendation on 23 November 1993.

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 defendant, i.e. 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 it 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.

Due to the fact that shortly thereafter the applicant submitted various American articles on the issue, the case was re-submitted to the Medico‑Legal Council on 17 June 1994 with further questions. Having received more material from the parties, on 21 September 1994 the Medico‑Legal Council submitted their opinion.

The National Board of Health issued their opinion on 10 October 1994.

Also, at some time during 1994, the applicant was awarded anticipatory pension.

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.

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 involved. Upon receipt, 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 the applicant's patient files from three hospitals and to draft questions to the Medico-Legal Council, when the 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 disablement and loss of working 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 their 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: the lack of documentation as to the applicant's income situation and medicine expenses and whether to obtain further material from the applicant's patient files The City Court suggested that the parties reviewed the patient 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. During the hearing the parties also discussed whether to hold a separate hearing of parts of the case and adjourn other parts while awaiting a preliminary ruling from the European Court of Justice in another case before the Supreme Court (Højesteret). Thus, the City Court ordered that counsel for the applicant in his pleading specify which parts of the case he wanted to be heard and adjudicated separately, and which parts he wished 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 reply. 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's amended claim amounted to DKK 908,583 in compensation. Moreover, she 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, since the applicant before the jaw operation was able to open her mouth only 5 mm, whereas after the operation her ability to open her mouth had actually improved, although still reduced compared to normal. As the applicant's previous request that the National Board of Industrial Injuries determine her degree of disablement and loss of working capacity had presumed liability for her reduced ability to open her mouth 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 disablement and loss of working capacity in which 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 their 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. The defendant was ordered to pay the applicant's costs and expenses in the amount of DKK 54,000.

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 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 the applicant's patient file.

During a court 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 their opinion after four deliberating experts had had the case submitted three times.

During a hearing held on 8 April 2002 the applicant's counsel wished to put supplementary questions to the Medico-Legal Council. Noting that a reference solely to the length of the proceedings could not constitute a sufficient basis for barring the request, the High Court granted it. Subsequently, also counsel for the County of Frederiksborg produced a number of supplementary questions and the proceedings were adjourned until 6 July 2002 awaiting the reply to these questions.

The Medico-Legal Council's reply 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. The High Court ordered that each party should pay their own costs and expenses.

B. Relevant domestic law and practise

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.

A Supreme Court judgment printed in the Weekly Law Review (Ugeskrift for Retsvæsen), 2005, page 2390, concerned a patient who died due to medical malpractice. Without pursuing the case before any administrative bodies, the surviving spouse brought an action directly before the City Court, claiming compensation for pain and suffering, and for permanent injury and loss of working capacity, and loss of dependency.