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You are here: BAILII >> Databases >> European Court of Human Rights >> A. AND OTHERS v. DENMARK - 20826/92 [1996] ECHR 2 (8 February 1996) URL: http://www.bailii.org/eu/cases/ECHR/1996/2.html Cite as: (1996) 22 EHRR 458, 22 EHRR 458, [1996] ECHR 2 |
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In the case of A and Others v. Denmark (1),
The European Court of Human Rights, sitting, in
accordance with Article 43 (art. 43) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the
Convention") and the relevant provisions of Rules of Court A (2),
as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr A. Spielmann,
Mr J. De Meyer,
Mr I. Foighel,
Mr J.M. Morenilla,
Mr D. Gotchev,
Mr B. Repik,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 27 October 1995 and
22 January 1996,
Delivers the following judgment, which was adopted on
the last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 60/1995/566/652. The first number is
the case's position on the list of cases referred to the Court
in the relevant year (second number). The last two numbers
indicate the case's position on the list of cases referred to the
Court since its creation and on the list of the corresponding
originating applications to the Commission.
2. Rules A apply to all cases referred to the Court before the
entry into force of Protocol No. 9 (P9) (1 October 1994) and
thereafter only to cases concerning States not bound by that
Protocol (P9). They correspond to the Rules that came into force
on 1 January 1983, as amended several times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 6 July 1995,
within the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated
in an application (no. 20826/92) against the Kingdom of Denmark
lodged with the Commission under Article 25 (art. 25) by ten
Danish nationals (see paragraph 7 below) on 27 August 1992.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Denmark
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision
as to whether the facts of the case disclosed a breach by the
respondent State of its obligations under Article 6 para. 1
(art. 6-1) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of A, the applicants stated that
they wished to take part in the proceedings and designated the
lawyer who would represent them (Rule 30).
3. The Chamber to be constituted included ex officio
Mr I. Foighel, the elected judge of Danish nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 4 (b)). On 13 July 1995,
in the presence of Mr V. Berger, Head of Division, the President
drew by lot the names of the other seven members, namely
Mr F. Matscher, Mr L.-E. Pettiti, Mr A. Spielmann,
Mr J. De Meyer, Mr J.M. Morenilla, Mr D. Gotchev and Mr B. Repik
(Article 43 in fine of the Convention and Rule 21 para. 5)
(art. 43).
4. As President of the Chamber (Rule 21 para. 6),
Mr Ryssdal, acting through the Registrar, consulted the Agent of
the Danish Government ("the Government"), the applicants' lawyer
and the Delegate of the Commission on the organisation of the
proceedings (Rules 37 paras. 1 and 38). Pursuant to the order
made in consequence on 3 August 1995, the Registrar received the
Government's memorial on 13 September 1995 and the applicants'
memorial on 18 September. On 10 October 1995 the Secretary to
the Commission informed the Registrar that the Delegate did not
wish to reply in writing.
5. On 12 and 19 October 1995 the Commission produced
certain documents from its file on the proceedings before it and
on 20 October the Government and the applicants submitted further
particulars, as requested by the Registrar on the President's
instructions.
6. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg,
on 26 October 1995. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr L. Mikaelsen, Ambassador, Head of the Legal Department,
Ministry of Foreign Affairs, Agent,
Mr J. Reimann, Chief Legal Adviser,
Ministry of Justice, Co-Agent,
Mr M. Jørgensen, Head of Department,
Ministry of Health,
Mr A. Skibsted, Legal Adviser,
Ministry of Foreign Affairs, Advisers;
(b) for the Commission
Mr Gaukur Jörundsson, Delegate;
(c) for the applicants
Mr T. Trier, advokat, Lecturer in Law
at the University of Copenhagen, Counsel,
Ms K. Sindbjerg, Legal Resources Centre, Durban,
Mr T. Andersen, Chairperson of the Danish
Association of Haemophiliacs, Advisers.
The Court heard addresses by Mr Gaukur Jörundsson,
Mr Trier,
Mr Mikaelsen and Mr Reimann.
AS TO THE FACTS
I. Particular circumstances of the case
A. Events giving rise to compensation proceedings
7. The applicants, listed below, are all Danish citizens
who are either themselves victims of the Human Immunodeficiency
Virus (HIV) or relatives of deceased victims of the virus. All
the victims frequently received blood transfusions at Danish
hospitals and were infected with HIV during the periods indicated
below in brackets.
Mr A (7 July 1985 - 25 May 1986) lives at St Heddinge
and is studying agriculture.
Mr Henning Eg (9 June 1985 - 10 February 1986) lives at
Kværndrup and worked as an electronics technician until he was
granted an early retirement pension in 1991.
Mr C (1 January 1978 - 7 June 1985) worked as an
electronics technician and was granted an early retirement
pension after the first signs of the acquired immunodeficiency
syndrome (AIDS) appeared during the winter of 1991 to 1992; he
died of AIDS on 14 September 1993 and his widow,
Mrs Gitte Christensen, is pursuing the application on his behalf.
Mr D (1 January 1978 - 27 April 1985) lives in
Copenhagen.
Mr E (16 January 1980 - 21 February 1985) lives at
Frederiksberg and withdrew from the domestic proceedings in issue
in the present case on 4 November 1993.
Mr F (3 January 1980 - 6 March 1985) died of AIDS on
9 September 1992; his widow, Mrs F, is pursuing the application
on his behalf.
Mr and Mrs G are the parents of a haemophiliac
(10 May 1986 - 26 March 1987) who died of AIDS on 9 August 1992.
Mrs Kirsten Feldskov is the widow of a haemophiliac
(1 January 1978 - 12 March 1985) who had received a pension since
the age of 15 and who died of AIDS on 10 August 1987.
Mrs Britt Lykkeskov Jacobsen is the mother of a
haemophiliac (1 January 1978 - 17 October 1985) who died of AIDS
on 27 August 1986, the symptoms having appeared in 1985.
8. In 1982 it became known that AIDS could be transmitted
through blood transfusion and through the use of certain blood
products. In 1984 a Blood Products Committee (blodproduktudvalg)
was established in Denmark. In 1985 the Committee discussed the
question of screening donor blood in order to avoid the use of
contaminated blood. In March 1985 the Danish Association of
Haemophiliacs (Den danske Bløderforening - "the Association")
requested the Minister of the Interior to introduce heat
treatment of blood products and screening of donor blood.
9. On 10 September 1985 the Minister of the Interior
requested the National Health Board to introduce, as soon as
possible, a general obligation to subject blood products to heat
treatment and to screen donor blood. As a result such heat
treatment and screening were made compulsory as from
1 October 1985 and 1 January 1986 respectively.
However, it remained possible to use unscreened blood
products in certain circumstances. On 11 November 1987 the
National University Hospital submitted a report to the National
Health Board on the possibility of unscreened blood products
causing HIV infections. On 13 November 1987 the National Health
Board indicated to the Danish producers that all unscreened blood
products should be withdrawn immediately.
10. In the meantime, in April 1987, the Association had
drawn up a report stating that approximately ninety haemophiliacs
had been infected with HIV. The Association urged Parliament
(Folketinget) to adopt legislation allowing awards of
450,000 Danish kroner (DKK) or more as ex gratia compensation to
the victims.
11. By Executive Order (bekendtgørelse) of 2 September 1987,
Parliament authorised the Minister of the Interior to award
DKK 100,000 in ex gratia compensation to haemophiliacs who had
become HIV-positive as a result of receiving contaminated blood
in transfusions. After criticism by the Association in a letter
of 15 October 1987 to the Parliamentary Health Committee
(Folketingets Sundhedsudvalg), Parliament increased the amount
on 14 June 1988 to DKK 250,000 and ordered that awards could also
be made to certain relatives. Finally, by a further Executive
Order of 19 November 1992, the size of the award was increased
to DKK 750,000. Awards of this amount have been, and will
continue to be, made to haemophiliacs infected with HIV following
treatment with blood products and to other HIV-positive persons
infected through blood transfusions at Danish hospitals. The ex
gratia compensation may in certain circumstances be paid to the
heirs of persons in the above category.
12. Under the above compensation scheme the first five
applicants and Mrs Feldskov each received DKK 750,000. Mr F
received DKK 250,000 and, after his death on 9 September 1992,
his widow, Mrs F, was awarded the remaining DKK 500,000. Mr and
Mrs G's son received DKK 250,000 before he died on 9 August 1992.
As he did not have any principal heirs (livsarvinger), the
remaining DKK 500,000 were not paid out. No payment was made in
respect of Mrs Lykkeskov Jacobsen's son as he died before the
Executive Order of 2 September 1987 and left no principal heirs.
13. In addition to authorising ex gratia payments,
Parliament requested the Government to take steps to clarify the
circumstances in which unscreened blood products came to be used
after the introduction of screening on 1 January 1986. As a
result, a judicial inquiry was carried out and a report on the
inquiry was presented in May 1988. In July of the same year, the
Ministry of Health opened an official inquiry in respect of seven
officials who had been criticised in the report. Moreover,
criminal proceedings were instituted against a producer of blood
products, who, on 29 November 1989, was found guilty of a
violation of the Medical Drugs Act and fined DKK 15,000.
B. Civil proceedings in the High Court
14. On 14 December 1987 the Association filed a writ
instituting proceedings in the High Court of Eastern Denmark
(Østre Landsret) against the Ministry of the Interior (which
later became the Ministry of Health), the National Health Board,
Novo-Nordisk A/S (a company) and the National Serum Institute.
The Association and the company were each represented by an
advokat and the other three defendants were represented by the
Government Solicitor (kammeradvokaten). In its writ the
Association alleged that the defendants had acted in an
unjustifiable and irresponsible manner towards its members
through their involvement after 1 January 1986 in the use of
products which might have contained the AIDS virus. The
Association requested the High Court to order the defendants to
acknowledge that they were jointly and severally liable to pay
damages to those of its members who were found to have been
infected by HIV after using blood products supplied by
Novo-Nordisk A/S and/or the National Serum Institute.
15. At the first court sitting in the case, held on
18 February 1988, the defendants submitted their replies
(svarskrift), requesting the High Court to dismiss the
plaintiffs' claims on the grounds that the Association could not
act on behalf of its members. The defendants maintained that the
action should only be admitted for examination if the Association
acted as the representative (mandatar) of its members. In the
alternative, the defendants asked the High Court to rule in their
favour on the merits. They also requested the High Court to
adjourn the case pending the final defence pleadings which would
not be made until after the conclusion of the judicial inquiry
mentioned in paragraph 13 above.
The High Court adjourned the case first until
7 April 1988 and then until 5 May 1988, each time pending the
final defence pleadings, as the judicial inquiry report did not
become available until May 1988. At the next court sitting on
15 August 1988, the defendants submitted no observations but
asked the High Court to hear their dismissal claim separately,
whereas the Association requested permission to submit written
observations on this point. The High Court accordingly adjourned
the case until 8 September 1988.
16. On 8 September 1988 the Association asked the High Court
to reject the defendants' request for separate examination of
their dismissal claim. The Association stated that it was now
acting as representative (mandatar) of a member who wished to
remain anonymous and that it also had an independent legal
interest, on behalf of all its members, in obtaining the High
Court's decision on whether the defendants could be held liable
vis-à-vis members infected by HIV after a certain date. The case
was adjourned until 10 November 1988 in order to allow the
defendants to submit written observations in reply.
17. On 10 November 1988 the defendants maintained their
claim that the case should be dismissed but indicated their
willingness to reconsider the matter if the Association agreed
to regard the case as one concerning a claim of specific and
actionable damage caused by the defendants to the member the
Association was acting for as mandatar. At the parties' request,
the High Court decided to hold a preliminary hearing on
9 February 1989 under section 355 of the Administration of
Justice Act (retsplejeloven) in order to have the above matters
clarified (see paragraph 49 below). However, owing to illness,
counsel for the Association was unable to attend. On
2 March 1989 the High Court, having consulted the parties, set
the preliminary hearing down for 18 May 1989.
18. During the preliminary hearing on 18 May 1989 counsel
for the Association agreed to discuss with the Association
whether individual members could be identified so that specific
claims for damages could be made. In order to allow such
discussion the case was adjourned until 28 September 1989.
In its pleadings of 18 May 1989, the Association
modified its claims to the effect that the defendants were liable
for their actions already as from 1 January 1985, as opposed to
1 January 1986, the date previously maintained.
19. On 28 September 1989 the Association asked for an
eight-week adjournment in order to consider whether to await the
outcome of the criminal proceedings against Novo-Nordisk A/S.
It had not yet been decided whether individual plaintiffs should
be identified. The High Court granted the request and set the
case down for 23 November 1989. However, the presiding judge,
referring to discussions at the preliminary hearing on
18 May 1989, requested the parties to settle certain questions
of formality.
20. At the hearing on 23 November 1989 the Association
submitted that it acted as the representative (mandatar) of
members who had been infected with HIV after 1 January 1985 and
that the first six applicants and Mr and Mrs G's son had joined
the case on the understanding that their identity would not be
made public.
21. In order to allow the defendants to submit their final
statement of defence, the High Court adjourned the case to
18 January 1990 and then to 22 March 1990.
22. At the hearing on 22 March 1990 four further plaintiffs,
including Mrs Feldskov and Mrs Lykkeskov Jacobsen (see
paragraph 7 above), joined the case. The proceedings were
adjourned until 17 May 1990, pending the defendants' final
defence pleadings which, they argued, could not be submitted
until the applicants had decided to what extent they maintained
their various requests for documents.
23. On 17 May 1990 the case was adjourned until 21 June 1990
in order to allow the applicants to examine certain documents.
On 21 June 1990 the applicants submitted twenty-one further
documents. Pending the defendants' observations on this evidence
the case was adjourned until 23 August 1990 and then until
27 September 1990.
24. At the hearing on 27 September 1990 the applicants
proposed that a medical opinion be obtained and stated that they
would present relevant documents in this respect. The case was
then adjourned until 25 October 1990, in order to enable the
defendants to comment on the applicants' suggestion. On
25 October 1990 Novo-Nordisk A/S accepted their proposal, whilst
the other defendants did not state their views on the matter, for
which reason the case was adjourned until 29 November 1990.
25. On 29 November 1990 all parties agreed to obtain a
medical opinion. The case was adjourned until 21 February 1991
and then until 4 April 1991, as the applicants were in the
process of preparing further medical evidence in respect of six
additional prospective plaintiffs.
26. On 4 April, 16 May and 6 June 1991 the High Court
granted further adjournments as the parties failed to agree on
which experts should be appointed, the questions to be put to
them and the procedure. On 8 August 1991, at a preliminary
hearing under section 355 of the Administration of Justice Act
(see paragraph 49 below), the plaintiffs submitted their
proposals in respect of obtaining a medical expert opinion and
three of the defendants asked for an adjournment in order to
consider the matter further. The High Court adjourned the case
until 12 September 1991.
On 12 September 1991 the parties informed the High Court
that they had now agreed on the procedure for the medical
opinion. In order to allow the parties to reach agreement on the
appointment of experts and on the questions to be put to the
experts, the High Court granted further adjournments on the
aforementioned date, on 19 December 1991, 20 February 1992,
12 March 1992 and 4 June 1992. According to the applicants,
although they presented their suggestion of questions on
5 February 1992, they did not receive the comments of three of
the defendants until 6 August.
The plaintiffs' pleadings of 5 February 1992 replaced
all of their seven previous pleadings, entailing the
reformulation of their claims and arguments on a number of
points. Two plaintiffs withdrew from the case.
27. On 6 August 1992 the parties informed the High Court
that they had reached agreement on who could be appointed as
experts and on the issues to be dealt with by them. The High
Court then appointed the experts suggested and adjourned the case
until 10 December 1992 pending their report.
28. On 9 August 1992 Mr and Mrs G's son died and on
9 September 1992 Mr F died. On the latter date the High Court
was informed that the applicants had lodged an application with
the European Commission of Human Rights complaining under
Article 6 para. 1 (art. 6-1) of the Convention about the length
of the proceedings. Further, it appears that certain problems
arose in respect of the material to be transmitted to the experts
for evaluation.
In the light of the above, the presiding judge, on
13 October 1992, added this statement to the court records:
"... during the preparatory stage up till now the case
has been adjourned each time in accordance with the
requests made jointly by counsels for the parties ...
The presiding judge has urged the defendants' counsel to
submit to the High Court and counsel [for the
plaintiffs], by 1 November 1992, their reply to [the
plaintiffs' counsel's] observations of 9 September 1992.
The presiding judge added that any further exhibits to
be presented to the experts should first be presented in
court."
29. On 11 November 1992, at the request of the Minister of
Health, the Government Solicitor convened counsel for the
plaintiffs to a meeting in order to consider possibilities of
expediting the proceedings. The defendants argued in particular
that although the purpose of the lawsuit in their opinion was to
obtain damages, the applicants had not yet presented any specific
claim in this respect. The applicants stated that the object of
their action was not only to secure damages but also to establish
where responsibility for the alleged wrongdoings lay.
30. As the expert opinion was not yet available by the time
of the next hearing, on 10 December 1992, the High Court
adjourned the case, with the parties' agreement.
31. On 10 December 1992 the applicants made an application
for legal aid to the Ministry of Justice in so far as their
action for damages was concerned (having previously obtained
legal aid for the action for liability). The Ministry granted
legal aid to eight of the applicants on 11 June 1993.
32. Following the submission of the expert opinion on
17 December 1992, the parties commenced discussions on additional
questions to the experts. At a hearing on 11 February 1993 the
case was adjourned until 18 March 1993 in order to allow the
parties to state their views on the matter.
On 18 March 1993 the parties had still not agreed.
According to the record of the hearing on that date, counsel for
the Ministry of Health, the National Health Board and the
National Serum Institute had remarked that the Minister of Health
wished the case to proceed as quickly as possible. The presiding
judge repeated what he had stated on 13 October 1992 (see
paragraph 28 above), namely that each adjournment of the case had
been made at the joint request of counsels for both parties.
Moreover, he pointed out that in civil proceedings it was
primarily the responsibility of the parties to pursue the case.
The case was adjourned until 1 April 1993, pending the parties'
agreement on additional questions to the experts. The parties
agreed that there was no need for a preliminary hearing under
section 355 of the Administration of Justice Act (see
paragraph 49 below).
33. On 1 April 1993 the parties informed the High Court of
the additional questions to be put to the experts. Pending the
experts' reply, the proceedings were adjourned until 13 May 1993
and then until 17 June 1993.
34. At the hearing on 17 June 1993 the applicants submitted
a preliminary claim for damages in the amount of DKK 1,000,000
in respect of the first six applicants and of Mr and Mrs G's son.
They also claimed DKK 750,000 for Mrs Feldskov but made no
preliminary claim for Mrs Lykkeskov Jacobsen, as the relevant
legislation provided no basis for a parent to claim compensation
for loss of a child below the age of 18.
As the supplementary expert opinion was not yet
available, the case was adjourned until 2 September 1993 and then
until 4 November 1993. Parts I and II of the report were
presented on 9 September and 22 October 1993 respectively.
35. On 14 September 1993 Mr C died.
36. At a hearing on 4 November 1993 the first four
applicants, Mrs F, Mr and Mrs G and Mrs Feldskov, presented
specific compensation claims in amounts up to DKK 1,090,000 for
unfitness for work, disability, loss of supporter and funeral
costs. Mrs Lykkeskov Jacobsen did not claim damages and Mr E
announced that he was withdrawing from the case.
At further hearings held on 16 December 1993 and
13 January 1994 additional evidence with regard to damages was
produced. The defendants suggested that the Industrial Injuries
Board (Arbejdsskadestyrelsen) should be asked to make an
assessment of the applicants' claims, but agreed not to pursue
this any further.
37. On 3 March 1994, at a preliminary hearing held under
section 355 of the Administration of Justice Act (see
paragraph 49 below) the High Court, having consulted the parties,
set the case down for trial between 24 October and
22 November 1994. At the applicants' request, the case was
adjourned and set down for 28 November 1994 to
17 January 1995.
38. The case was tried during the period fixed. The
applicants dropped all claims against the National Serum
Institute. Mr Eg, Mrs Christensen, Mr D, Mrs F widow and
Mrs Lykkeskov Jacobsen withdrew all claims against Novo-Nordisk
A/S. With these changes the applicants, except for Mr E who had
withdrawn from the case, maintained that the defendants had acted
negligently and thereby caused the HIV infections. The remaining
applicants, but not Mrs Lykkeskov Jacobsen, maintained their
claims for damages, which ranged between DKK 24,630.24 and
DKK 1,090,000.
39. By judgment of 14 February 1995 the High Court rejected
all remaining claims against Novo-Nordisk A/S and found that the
Ministry of Health and the National Health Board had acted
negligently in respect of a certain period of time. On the other
hand, only the son of Mr and Mrs G had been affected thereby.
On an equitable basis, the High Court awarded him DKK 18,718.24
plus interest as from 17 June 1993, when the compensation claim
was first submitted (see paragraph 34 above). All other
compensation claims were rejected.
C. Political measures taken after the High Court's judgment
40. On 22 February 1995, following a discussion in
Parliament of the political consequences of the High Court's
judgment, the Minister of Health issued a press release,
delivered to the Association on the same date, declaring that
"the Parties of the Parliament and the Government" sympathised
with the HIV-infected haemophiliacs and regretted the terrible
tragedy that eighty-nine haemophiliacs at the end of the 1970s
and in the following years had been infected with HIV via their
factor preparations before the danger of HIV infection was
realised and methods of preventing its transmission were
developed. Parliament and the Government acknowledged and
regretted that in the light of recent knowledge measures taken
in 1985 and 1986 had to be regarded as insufficient in certain
respects.
On the other hand, they respected the High Court's
judgment upholding the view of the relevant authorities that they
had not acted negligently by not demanding heat treatment of
blood until 1 October 1985 and screening of all donor blood until
1 January 1986.
Nevertheless, Parliament and the Government considered
that they had a moral duty to show great flexibility in order to
reach a politically acceptable solution. The indemnification
which had already been granted (see paragraph 11 above) was a
clear manifestation of the sympathy which Parliament had for all
HIV-infected haemophiliacs. In addition, Parliament and the
Government had agreed to create as soon as possible a fund of
DKK 20 million to be administered by the Association. This was
to ensure that the special and individual needs of the
haemophiliacs - now and in the years to come - could be better
met. Furthermore, the Government would initiate as soon as
possible - through special legislation - a medical insurance
scheme to cover drugs in broad terms and to ensure easier access
to compensation than provided by the Product Liability Act.
Finally, the Government would offer the Association
representation on the Blood Product Committee of the National
Health Board, which had the task of proposing measures to ensure
the best possible use of donor blood and the greatest possible
self-sufficiency in products deriving therefrom.
The Fund established as a result of the above, has
recently decided to grant an additional DKK 90,000 to
haemophiliacs who have been contaminated through blood
transfusion.
41. In a press release of 15 March 1995 the Association
stated that, in its view, the Minister's declaration was a
sufficient basis for the case to come to an end. For a long time
the Association had actively pursued a quick and honourable
solution to the case, bearing in mind not only human
considerations but also the limited resources of the Association.
Nevertheless, the Association considered that it would have been
more appropriate had the declaration contained a more unreserved
recognition of the fact that the haemophiliacs' risk of HIV
infection had not been dealt with adequately during the period
from 1984 to 1986. Furthermore, it would have been preferable
if the statement had better reflected the High Court's judgment,
including the fact that the State's liability had been
established in one of the cases.
The Association further stated that it regretted the
fact that at least three of the eight plaintiffs had decided to
appeal against the High Court judgment to the Supreme Court.
Although it respected their choice in this respect, it would no
longer act as their representative.
On the other hand, the Association pointed out, since no
regrets had been expressed in respect of the unreasonableness of
the length of the proceedings - more than seven years - the
Association considered that there was still a violation of the
haemophiliacs' human rights and therefore that the application
lodged with the European Commission of Human Rights would be
maintained.
D. Appeal to the Supreme Court
42. On 10 April 1995 Mr A, Mr Eg and Mrs Feldskov, but not
the other applicants, appealed against the High Court's judgment
to the Supreme Court. They reserved their right to request a new
expert opinion and to ask the Supreme Court to hear those
witnesses who had given evidence before the High Court.
43. On 10 May 1995 Novo-Nordisk A/S submitted its statement
of defence and, on 16 May, the three other defendants filed their
statements of defence. The defendants invited the appellants to
specify the arguments upon which they based their claims.
44. On 16 May 1995, counsel for the defendants asked the
Supreme Court to obtain an assessment by the Industrial Injuries
Board of the disability degree and loss of earning capacity of
Mr A and Mr Eg. Pending the appellants' comments, the Supreme
Court adjourned the proceedings on 17 May, 7 June, 14 June and
30 June.
On 14 June 1995 the Supreme Court gave permission to
approach the National Industrial Injuries Board and, on 16 June,
counsel for the defendant authorities requested the Board's
assessment.
45. On 27 June 1995, Mr A and Mrs Feldskov put certain
questions to Novo-Nordisk A/S and, on their suggestion, the
Supreme Court adjourned the case until 27 July 1995 pending the
company's reply.
46. The Supreme Court again adjourned the case until
22 August 1995, pending the appellants' comments on the
statements of defence. It also invited the appellants to state
as soon as possible their views on the evidence in the case. On
2 November 1995, the Supreme Court set the case down for trial
for the period from 16 to 23 September 1996.
II. Relevant domestic law
47. Civil proceedings such as the present ones may be
brought before the High Court, as the court of first instance,
by issuing a writ of summons. They are considered to be
instituted when the court receives the writ (sections 224 to 226
and 348 of the Administration of Justice Act). The proceedings
are divided into two stages, a preparatory stage and a trial
stage.
48. The preparation of a case may take an oral form, with
the parties appearing, in person or through representatives, at
preliminary hearings, during which pleadings and other documents
are exchanged and formally submitted to the competent court
(section 351 of the Administration of Justice Act). The
preparation may also be conducted in writing, with each party
forwarding the documents to the court, which sees to it that
copies are transmitted to the other party (section 352).
The purpose of such preparations is to establish the
facts and the legal issues of the case, to ensure that the case
is elucidated in the best possible way and to identify the
subject-matter of the dispute.
49. In addition to the above, should the court deem it
expedient, it may summon the parties to a special preliminary
hearing under section 355 of the Administration of Justice Act,
in order to clarify as far as possible the parties' positions
regarding the facts and law in question, the extent to which the
facts are undisputed and whether the production of evidence is
required. During such preliminary hearings, the court may also
determine disputes between the parties relating to the
preparation of the case and organisation of the procedure.
50. In civil proceedings it is for the parties to determine
the subject-matter of the case. The court may not award a party
more than he or she has claimed and may in principle only take
into account the submissions made by that party (section 338 of
the Administration of Justice Act).
On the other hand, under section 339 the court may, by
putting questions to the parties, seek clarifications of their
claims or submissions and invite them to indicate their views on
questions of facts and of law which have a significant bearing
on the case or to adduce evidence. The parties may make
suggestions to the court as to the appointment of experts, but
the court is not bound to follow their proposals (section 200).
According to section 340, evidence should be submitted
at the trial but, in exceptional circumstances, the court may
decide that all evidence or parts of it should be submitted prior
to the trial and may then prescribe a time-limit.
51. Where expedient, the court may order a stay of the
proceedings (section 345). In practice, such measures are taken,
for instance, to allow a party to comment on the pleadings of the
other party or to produce relevant evidence, or to enable the
parties to obtain and consider an expert opinion, conduct
friendly settlement negotiations or clarify their respective
positions.
In practice the court also ensures that continuous
progress is made in the case. It 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.
52. The court decides when the preparation of the case is
completed (section 356). When this decision has been taken the
parties may not alter their claims, make new submissions or
adduce new evidence unless they satisfy certain restrictive
conditions (sections 357 and 363). In practice, the court will
normally be reluctant to end the preparatory stage if the parties
consider that there are matters which need further clarification.
Once the preparation of the case has been completed or
immediately thereafter, the court fixes a date for the hearing
(section 356).
53. Under Danish law the plaintiff in compensation
proceedings has the burden of proving damages, fault or
negligence and liability. The burden of proof may shift to the
defendant if it is probable that the factual allegations made by
the plaintiff are accurate.
PROCEEDINGS BEFORE THE COMMISSION
54. In their application to the Commission of 27 August 1992
(no. 20826/92), the applicants complained that, in breach of
Article 6 para. 1 (art. 6-1) of the Convention, their case had
not been determined within a reasonable time.
55. On 30 November 1994, the Commission declared the
application admissible. In its report of 24 May 1995
(Article 31) (art. 31), the Commission expressed the opinion that
there had been a violation of Article 6 para. 1 (art. 6-1) of the
Convention with respect to the first eight applicants
(unanimously) but not with regard to Mrs Feldskov and
Mrs Lykkeskov Jacobsen (unanimously). The full text of the
Commission's opinion is reproduced as an annex to this
judgment (1).
_______________
Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment (in Reports
of Judgments and Decisions - 1996-I), but a copy of the
Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS MADE TO THE COURT
56. At the hearing on 26 October 1995 the Government, as
they had done in their memorial, invited the Court to hold that
there had been no violation of Article 6 para. 1 (art. 6-1) of
the Convention.
57. On the same occasion the applicants reiterated their
request to the Court, stated in their memorial, to find that
there had been a breach of Article 6 para. 1 (art. 6-1) and to
award them just satisfaction under Article 50 (art. 50) of the
Convention.
AS TO THE LAW
I. ALLEGED VIOLATION OF Article 6 Para. 1 (art. 6-1) OF THE
CONVENTION
58. The applicants alleged that they were victims of a
violation of Article 6 para. 1 (art. 6-1) of the Convention,
which, in so far as is relevant, reads:
"In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing
within a reasonable time by [a] ... tribunal ..."
59. The Government contested this allegation. The
Commission upheld it in so far as it concerned Mr A, Mr Eg, Mr C,
Mr D, Mr E, Mr F and the son of Mr and Mrs G, but rejected it
with respect to Mrs Feldskov and Mrs Lykkeskov Jacobsen (for
details on the applicants, see paragraph 7 above).
60. It was common ground between those appearing before the
Court that the proceedings in question involved the determination
of the applicants' "civil rights" and that Article 6 para. 1
(art. 6-1) was applicable to those proceedings. The Court sees
no reason to hold otherwise. On the other hand, the applicants
disputed that the proceedings had been conducted within a
reasonable time, as required by that provision (art. 6-1).
Before examining this issue, the Court must determine the periods
to be taken into consideration.
A. Periods to be taken into consideration
61. In the applicants' submission, the periods to be
considered began on 14 December 1987 when the Association filed
the writ with the High Court requesting it to declare that the
relevant authorities were liable vis-à-vis those members who had
been infected by HIV through blood products (see paragraph 14
above). The action of 14 December 1987 should be considered as
one lodged on behalf of a distinct group of ninety haemophiliacs,
including the applicants, who clearly had an interest in the
outcome of the case. The reason why it had taken until
23 November 1989 for the Association to specify individual
claimants (see paragraph 20 above) lay in part in the members'
fear of their identity being disclosed in the court proceedings.
In any event, as regards the son of Mr and Mrs G, the
relevant period started at the latest on 8 September 1988, as he
had been explicitly mentioned in the plaintiff's written
pleadings of that date (see paragraph 16 above).
62. In the Commission's opinion, the relevant periods began
when the applicants joined the proceedings, namely on
23 November 1989 in the case of Mr A, Mr Eg, Mr C, Mr D, Mr E,
Mr F and the son of Mr and Mrs G and on 22 March 1990 with regard
to Mrs Feldskov and Mrs Lykkeskov Jacobsen (see paragraphs 20 and
22 above).
63. The Government contended that, since the proceedings in
issue essentially concerned compensation, the relevant periods
had not started until the applicants had presented their initial
compensation claims on 17 June 1993 (see paragraph 34 above).
In the Government's alternative argument, the periods had started
on 5 February 1992, when the plaintiffs withdrew and amended a
number of their pleadings (see paragraph 26 above). In the
further alternative, they maintained that under no circumstances
could the periods have started to run before the applicants had
joined the proceedings, as the Association had not been the
proper plaintiff in the proceedings.
In any event, the applicants' argument that the son of
Mr and Mrs G had already joined the proceedings on
8 September 1988 was unfounded, as the pleadings of that date
only referred to an anonymous haemophiliac and did not identify
the person as the son of Mr and Mrs G (see paragraph 16 above).
64. The Court observes that there were significant changes
in the proceedings instituted by the Association, not only with
regard to the plaintiffs' submissions (see paragraphs 14, 18, 26
and 34 above) and claims but also with regard to their identity
(see paragraphs 14-20 and 22 above).
As to the changes in the arguments and claims the Court
does not find that these were such as to warrant removing
specific stages of the domestic court proceedings from the
Court's assessment of whether their duration was reasonable.
On the other hand, the changes as to the identity of the
plaintiffs were of greater consequence. In its writ of
14 December 1987 the Association requested the High Court to find
that the defendants were liable to pay damages to those of its
members who had been contaminated with HIV by using blood
products supplied by the defendants (see paragraph 20 above).
There is nothing to indicate that a finding of liability by the
domestic courts would have meant that all contaminated members
of the Association would have been entitled to compensation. On
the contrary, as explained by the applicants, under Danish law,
in order to establish liability they had to show that the
defendants had negligently failed to take such precautionary
measures as could reasonably be expected of them in the
circumstances prevailing at the material time (see paragraph 53
above). Thus, for each member of the Association the question
of liability depended upon certain individual factors such as the
time at which the member had been contaminated. Eventually, only
ten or so of the approximately ninety HIV-infected members joined
the court action.
For these reasons, the Court considers that the mere
fact that the applicants belonged to a category of members on
whose behalf the Association had acted on 14 December 1987 is not
sufficient to justify the conclusion that they were affected by
the duration of the proceedings from that date onwards. Like the
Commission, the Court finds that it was only from the dates when
the Association identified the applicants as individual
plaintiffs that they could claim to be victims, within the
meaning of Article 25 (art. 25) of the Convention, of the alleged
breach of Article 6 (art. 6). Accordingly, the periods to be
taken into consideration started to run on 23 November 1989 in
the case of Mr A, Mr Eg, Mr C, Mr D, Mr E, Mr F and the son of
Mr and Mrs G; and on 22 March 1990 in the case of Mrs Feldskov
and Mrs Lykkeskov Jacobsen.
65. Whilst Mr A, Mr Eg and Mrs Feldskov's appeals to the
Supreme Court are still pending (see paragraphs 42 and 46 above),
the proceedings concerning Mr E ended on 4 November 1993 when he
withdrew from the case (see paragraph 36 above) and those
concerning the remaining applicants came to a close on
14 February 1995 when the High Court delivered its judgment (see
paragraph 39 above).
66. Consequently, the periods to be taken into account have
now lasted approximately six years and two months in the case of
Mr A and Mr Eg, five years and three months in the case of
Mrs Christensen, Mr D, Mr F and Mr and Mrs G, four years in the
case of Mr E, five years and ten months in the case of
Mrs Feldskov and four years and eleven months in the case of
Mrs Lykkeskov Jacobsen.
B. Reasonableness of the length of the proceedings
67. The reasonableness of the length of proceedings is to be
assessed in the light of the criteria laid down in the Court's
case-law, in particular the complexity of the case, the conduct
of the applicants and that of the relevant authorities. On the
latter point, what is at stake for the applicants in the
litigation has to be taken into account in certain cases (see,
as the most recent authority, the Karakaya v. France judgment of
26 August 1994, Series A no. 289-B, p. 43, para. 30).
1. Complexity of the case
68. The applicants submitted that the case was of some
complexity since it was necessary to obtain medical opinions and
other evidence in order to enable the High Court to examine the
case properly.
69. In the Commission's view, although the case raised
undoubtedly difficult questions concerning the use of donor
blood, these had to a certain extent already been solved by the
National Health Board's decision of 13 November 1987 prohibiting
the use of unscreened blood and the judicial inquiry report
available in May 1988 (see paragraphs 9 and 13 above). The case
was therefore not so complex as to justify the length of the
proceedings.
70. In the Government's submission, the case was a
particularly complex one. It raised a number of difficult legal
questions, for instance whether the public authorities could, in
view of the speediness demanded by the Association, be held
liable for failure to issue new regulations in this particular
area at a specific time. Moreover, it was crucial to establish
what the authorities knew or ought to have known at the relevant
time about a wide range of issues, including the safety,
effectiveness and possible side-effects of heat-treated products,
the safety of imported heat-treated preparations based on
screened blood from paid as opposed to voluntary donors and a
number of scientific and technological developments. The
findings by the National Health Board of November 1987 and those
of the judicial inquiry of May 1988 were of little assistance to
the court as they dealt primarily with screening rather than
heat-treatment of blood (see paragraphs 9 and 13 above).
71. The Court, although satisfied that the case raised
factual and legal questions of some complexity, does not consider
that this alone could justify the considerable length of the
proceedings. It will therefore examine the conduct of the
parties to the proceedings and of the relevant authorities.
2. Applicants' conduct
72. The applicants admitted that they were responsible for
a limited number of delays in the proceedings. These were
however insignificant when considered in the context of the total
length of the proceedings. At the preparatory stage their
representatives had been faced with the difficult dilemma whether
to secure the speedy progress of the proceedings by accepting the
suggestions of the defendants and the President of the High Court
or to ask the High Court to decide the points discussed. The
applicants had accepted the large number of adjournments
requested by the defendants, partly through fear of being
penalised if they took an aggressive stance and partly because
of what they described as the collegiate spirit among lawyers in
civil cases in Denmark. However, as they had repeatedly stated
at the preliminary hearings held under section 355 of the
Administration of Justice Act, they at all times wanted the
proceedings to progress (see paragraphs 17, 26 and 49 above).
In addition, copies of their application of 27 August 1992 to the
Commission complaining about the length of the proceedings had
been transmitted to the defendants and to the President of the
High Court (see paragraph 28 above).
The reason why the applicants had not presented their
claims for damages until 17 June 1993 was that their application
of 10 December 1992 to the Ministry of Justice for legal aid had
not been granted until mid-June 1993 (see paragraph 31 above).
73. The Government argued that the regrettable delays in the
case were essentially caused by the conduct of the applicants'
representatives, for which the applicants themselves, not the
Danish authorities, were responsible. At no time during the
proceedings did the applicants or their representatives request
the High Court to speed up the proceedings or in any other way
express any wishes to that effect. The fact that the applicants
had transmitted for information to the High Court a copy of their
application to the Commission was not tantamount to a request for
expeditious handling of the case by the High Court. Their
conduct in the domestic proceedings rather gave the opposite
impression.
Through their representatives, the applicants had either
asked for or consented to the large number of adjournments
granted by the High Court. Moreover, on 27 September 1990 the
plaintiffs had undertaken to submit records and medical
certificates and suggestions for questions to the experts (see
paragraph 24 above). The evidence in question was not filed
until 21 February 1991 for some of the applicants and
16 September 1991 for others and the proposals for questions were
not submitted until 5 February 1992. On the latter date the
plaintiffs substantially changed their pleadings and only on
17 June 1993 did they present claims for damages (see
paragraph 26 above).
In addition, on 3 March 1994, when counsel for the
applicants was consulted on the fixing of the dates for the
trial, he had stated that because of his own workload he would
not be available until 16 May 1994 and that he would have
difficulties in attending a trial before the summer holidays.
As a result, the case was set down for trial after the summer.
It was subsequently adjourned (see paragraph 37 above) in order
to accommodate the wishes of the Association's Chairperson, who
had other engagements.
74. The Court observes that when the applicants lodged their
application to the Commission, the domestic proceedings had
already lasted for an appreciable period; almost three years had
elapsed since most of them had joined the case (see
paragraphs 20, 22 and 28 above). Although, on that occasion,
they undeniably conveyed to the High Court and the defendants
that they found the length of the proceedings unacceptable, their
attitude in this respect was contradicted by their own conduct
before the High Court. Like the Commission, the Court notes that
at no stage did they request the High Court to speed up the
proceedings and the very large number of adjournments had either
been requested or consented to by the applicants'
representatives. It took them more than two years to agree on
the appointment of experts (see paragraphs 25-27 above). No
convincing explanation has been provided for why they waited
until as late as 17 June 1993 before submitting claims for
damages. Therefore the applicants were to a significant extent
responsible for the protracted nature of the proceedings (see,
mutatis mutandis, the Kamasinski v. Austria judgment of
19 December 1989, Series A no. 168, p. 33, para. 65, and the
Stanford v. the United Kingdom judgment of 23 February 1994,
Series A no. 282-A, p. 11, para. 28).
3. Conduct of the administrative and judicial
authorities
75. The applicants maintained that the main cause of the
excessive length of the proceedings had been the conduct of the
administrative and judicial authorities and that there had thus
been a violation of Article 6 para. 1 (art. 6-1) of the
Convention in respect of all the applicants.
76. The Government contested the above allegations,
maintaining that any delays were caused only by the complexity
of the case and the applicants' conduct. They argued that Danish
civil procedure was not of the inquisitorial type but one whose
progress depended almost entirely on the diligence of the parties
(see paragraph 50 above). The preparatory stage of the
proceedings under consideration had been conducted without any
periods of inactivity. None of the adjournments in question had
been granted without the agreement of both parties.
Furthermore, the Government Solicitor had taken a number
of measures to ensure the progress of the proceedings. He had
repeatedly asked the plaintiffs to clarify their claims and to
adduce evidence and had taken the initiative in calling the
meeting on 11 November 1992, the object of which was to
accelerate the proceedings (see paragraph 29 above).
In addition, the Government maintained that it had been
necessary to avoid any attempt to unduly speed up the
proceedings, in view of the prejudice this might have caused to
the applicants' preparation of their case and of the complexity
and seriousness of the case.
77. As already indicated, the Court considers that the
applicants contributed significantly to the length of the
proceedings. It is also mindful of the fact that the proceedings
in issue were not inquisitorial but were subject to the principle
that it was for the parties to take the initiative with regard
to their progress (see paragraph 50 above). Most of the period
considered was spent on preparation of the case for trial (see
paragraphs 20-37 above) and, as the proceedings went on, evidence
was adduced and the plaintiffs' claims were reformulated (see
paragraphs 20, 26 and 34 above). The Court recognises that in
these circumstances, the competent authorities were faced with
a difficult task in trying to accommodate the various interests
of the applicants. However, these features did not dispense them
from ensuring compliance with the requirement of reasonable time
in Article 6 para. 1 (art. 6-1) of the Convention (see, for
instance, the Guincho v. Portugal judgment of 10 July 1984,
Series A no. 81, p. 14, para. 32; the Capuano v. Italy judgment
of 25 June 1987, Series A no. 119, p. 11, para. 25; and the
Scopelliti v. Italy judgment of 23 November 1993, Series A
no. 278, p. 9, para. 25).
78. The Court shares the Commission's opinion that what was
at stake in the proceedings was of crucial importance for Mr A,
Mr Eg, Mr C,
Mr D, Mr E, Mr F and the son of Mr and Mrs G in view of the
incurable disease from which they were suffering and their
reduced life expectancy, as was sadly illustrated by the fact
that Mr C, Mr F and the son of Mr and Mrs G died of AIDS before
the case was set down for trial. Accordingly, in so far as
concerns the first eight applicants, the competent administrative
and judicial authorities were under a positive obligation under
Article 6 para. 1 (art. 6-1) to act with the exceptional
diligence required by the Court's case-law in disputes of this
nature (see the X v. France judgment of 31 March 1992, Series A
no. 234-C, pp. 90-94, paras. 30-49; the Vallée v. France judgment
of 26 April 1994, Series A no. 289-A, pp. 17-20, paras. 33-49;
and the above-mentioned Karakaya judgment, pp. 42-45,
paras. 29-45).
79. However, also the defendant authorities had themselves
either asked for or accepted the very large number of
adjournments requested to the High Court (see paragraphs 28 and
32 above). Only once, at the meeting on 11 November 1992, when
the proceedings had lasted for almost three years, did they call
for the proceedings to be accelerated (see paragraph 29 above).
Despite this request, the defendant authorities themselves did
not significantly change their pattern of prolonging the
proceedings (see paragraphs 30-37 above).
80. As regards the conduct of the competent judicial
authorities, the Court notes that when the first seven applicants
joined the case, it had already been pending for approximately
two years before the High Court (see paragraph 20 above). By
that time the High Court was presumably familiar with a number
of the issues involved and would have been able to take on an
active role in conducting the proceedings before it. Despite
this, the High Court granted all of the parties' numerous
requests for adjournments, hardly ever using its powers to
require them to specify their claims, clarify their arguments,
adduce relevant evidence or decide on who should be appointed as
experts (see paragraphs 28, 32 and 50 above).
On the latter point, it is to be observed that, although
all parties involved had agreed on 29 November 1990 that it was
necessary to obtain a medical opinion, the High Court, without
ever intervening, allowed them to negotiate until as late as
6 August 1992 the question who should be appointed as experts
(see paragraphs 25-27 above). Thus, whilst the High Court had
powers to give directions on these matters, the parties spent an
abnormally long period of almost two years discussing them.
In addition, when the case was ready in March 1994, the
High Court set it down for trial as late as October-November 1994
(see paragraph 37 above). Similarly, on 2 November 1995, the
Supreme Court decided to hold the trial in September 1996 (see
paragraph 46 above).
81. In these circumstances, even having regard to the delays
caused by the applicants, the Court, like the Commission, does
not find that the competent authorities acted with the
exceptional diligence required by Article 6 (art. 6) of the
Convention in cases of this nature. It holds that Mr A, Mr Eg,
Mr C and his widow, Mr D, Mr E, Mr F and his widow, Mr and Mrs G
and their son were victims of a breach of Article 6 para. 1
(art. 6-1) of the Convention.
On the other hand, since no duty of exceptional
diligence applied with regard to Mrs Feldskov and
Mrs Lykkeskov Jacobsen, the Court reaches the same conclusion as
the Commission, namely that they were not victims of a violation
of Article 6 para. 1 (art. 6-1).
II. APPLICATION OF Article 50 (art. 50) OF THE CONVENTION
82. Mr A, Mr Eg, Mrs Christensen (on behalf of Mr C), Mr D,
Mr E,
Mrs F (on behalf of Mr F) and Mr and Mrs G (on their son's
behalf) (see paragraph 7 above) sought just satisfaction under
Article 50 (art. 50) of the Convention, which reads:
"If the Court finds that a decision or a measure taken
by a legal authority or any other authority of a High
Contracting Party is completely or partially in conflict
with the obligations arising from the ... Convention,
and if the internal law of the said Party allows only
partial reparation to be made for the consequences of
this decision or measure, the decision of the Court
shall, if necessary, afford just satisfaction to the
injured party."
A. Non-pecuniary damage
83. The above-mentioned applicants requested compensation
for non-pecuniary damage which they had sustained as a result of
the excessive length of the proceedings. Under this heading,
Mr A and Mr Eg, whose appeals are pending before the Supreme
Court, asked for DKK 425,000 each; Mrs Christensen, Mr D, Mrs F
and Mr and Mrs G, who did not appeal from the High Court's
judgment of 14 February 1995, claimed DKK 375,000 each; and Mr E,
who withdrew from the case on 4 November 1993, sought
DKK 325,000.
Referring to the above-mentioned judgments in Vallée
(p. 20, para. 54) and Karakaya (p. 46, para. 50), where the Court
had ordered the French Government to pay FRF 200,000 in
compensation for non-pecuniary damage, the applicants maintained
that the awards in their case should be higher. Not only had the
periods in question been longer in their case but also the
compensation paid by the Danish authorities had been less.
84. In the Government's view, the finding of a violation
would constitute adequate just satisfaction of any non-pecuniary
damage suffered by the applicants as a result of the length of
the proceedings. In any event, should the Court award a sum to
any of the applicants, the Government invited it to take into
account the ex gratia payments made to the applicants, ranging
between DKK 250,000 and DKK 750,000, and the additional payments
of DKK 90,000 made to each haemophiliac from the DKK 20 million
fund established on
22 February 1995.
85. The Delegate of the Commission shared the views of the
Government.
86. The Court considers that the applicants must have
suffered non-pecuniary damage as a result of the excessive length
of the proceedings and that the Court's finding of a violation
of the Convention is not sufficient to constitute just
satisfaction in this respect. On the other hand, the Court
cannot, in reaching its decision under Article 50 (art. 50) of
the Convention, overlook the fact that ex gratia payments had
been made by the Danish State to the applicants (see
paragraphs 12 and 40 above). Nor can it disregard the fact that,
unlike the applicants in the above-mentioned French cases, the
applicants in the present case significantly contributed to the
length of the proceedings. Bearing these circumstances in mind,
the Court, deciding on an equitable basis, awards DKK 100,000
each to Mr A, Mr Eg, Mrs Christensen, Mr D, Mr E and Mrs F and
to Mr and Mrs G jointly for non-pecuniary damage.
B. Legal fees and expenses
87. The applicants further requested reimbursement of legal
fees and expenses incurred, totalling DKK 427,653, in respect of
the following items:
(a) DKK 28,500 for legal fees in the domestic proceedings;
(b) DKK 399,153 for legal fees and expenses in the
Strasbourg proceedings, including DKK 24,000 for travel expenses
for appearance at the hearing before the Court, DKK 9,500 for
subsistence expenses and local transport in this connection and
DKK 1,438 for transport and postal charges in Denmark.
The above legal fees should be increased by any
applicable Value Added Tax (VAT).
88. The Government did not comment on the above, whereas the
Delegate of the Commission stated that any legal aid from the
Council of Europe should be deducted.
89. As regards item (a) the Court does not find that the
fees in question were necessarily incurred in order to prevent
or obtain redress for the matter found to constitute a violation
of the Convention. This claim must therefore be rejected.
As regards item (b) the Court, deciding on an equitable
basis, awards DKK 200,000 for fees and DKK 34,938 for expenses,
to be increased by any applicable VAT, less the FRF 27,964
received by way of legal aid from the Council of Europe for fees
and expenses.
C. Default interest
90. According to the information available to the Court, the
statutory rate of interest applicable in Denmark at the date of
adoption of the present judgment is 9.25% per annum.
FOR THESE REASONS, THE COURT
1. Holds by six votes to three that there has been a
violation of Article 6 para. 1 (art. 6-1) of the
Convention with respect to Mr A, Mr Eg, Mr C and his
widow, Mr D, Mr E, Mr F and his widow and Mr and Mrs G
and their son;
2. Holds unanimously that there has been no violation of
this provision (art. 6-1) with respect to Mrs Feldskov
and Mrs Lykkeskov Jacobsen;
3. Holds unanimously
(a) that the respondent State is to pay, within three
months, 100,000 (one hundred thousand) Danish kroner
each to Mr A, Mr Eg, Mrs Christensen, Mr D, Mr E and
Mrs F and to Mr and Mrs G jointly in compensation for
non-pecuniary damage and, for legal fees and expenses,
234,938 (two hundred and thirty-four thousand nine
hundred and thirty-eight) Danish kroner, plus any
applicable VAT, less 27,964 French francs to be
converted into Danish kroner at the rate applicable on
the date of delivery of the present judgment;
(b) that simple interest at an annual rate of 9.25%
shall be payable from the expiry of the above-mentioned
three months until settlement.
4. Dismisses unanimously the remainder of the claim for
just satisfaction.
Done in English and in French and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
8 February 1996.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of Rules of Court A, the joint
dissenting opinion of Mr Ryssdal, Mr Matscher and Mr Foighel is
annexed to this judgment.
Initialled: R. R.
Initialled: H. P.
JOINT DISSENTING OPINION OF JUDGES RYSSDAL, MATSCHER AND
FOIGHEL
We do not agree that there has been a violation of
Article 6 para. 1 (art. 6-1) of the Convention in the present
case.
It is, of course, regrettable that several years passed
until the preparatory stage of the case was completed and a date
for the hearing could be fixed. However, in our opinion the
responsibility for this lies essentially with the applicants and
their lawyer.
The Court has found that the periods to be taken into
consideration started to run on 23 November 1989 and on
22 March 1990 respectively as it was only from these dates that
the applicants as individual plaintiffs could be regarded as
victims of the alleged breach of Article 6 (art. 6) (see
paragraph 64 of the judgment). However, even accepting this
point of view, it is important to note that the applicants on
these dates had not put forward specific claims to be determined
by the domestic court. Moreover, on 5 February 1992 they
substituted all of their previous pleadings and reformulated
their arguments. It was not until 17 June 1993 that they set out
preliminary claims. Their finalised claims for damage were only
presented at a hearing on 4 November 1993. At the same time one
of the applicants, Mr E, withdrew from the case.
In the meantime, the applicants had requested or
accepted a large number of adjournments, partly because of
protracted discussion as to the appointment of medical experts
and on questions to be put to them, partly because the applicants
considered it necessary to provide further evidence in order to
substantiate their claims. It is true that also the defendants
asked for or consented to a number of adjournments. But on
11 November 1992 counsel for the defendants called for a meeting
in order to expedite the proceedings and the President of the
High Court stated on two occasions - in October 1992 and in
March 1993 - that each adjournment had been made at the joint
request of counsel for both parties.
Throughout the long-lasting preparatory stage the
domestic court had regard to what was at stake for the applicants
in their complex and important case. There were no inactive
periods and, in our opinion, it has to be accepted that the court
granted extensions which it considered to be in the interests of
the applicants.
The period between the end of the preparatory stage in
March 1994 and the hearing - which began in November 1994 - may
seem to be too long. However, counsel for the applicants
indicated that it would be very difficult for him to accept a
date before the summer break. In addition, the adjournment from
24 October to 28 November was decided at the applicants' request.
The hearing lasted seventeen days and the High Court delivered
its judgment on 14 February 1995. Three of the applicants
appealed to the Supreme Court and it is noteworthy that they have
not made any objection as to the length of the appeal
proceedings.
In sum, even bearing in mind the special diligence owed
by national authorities in cases such as the present, there were,
in our opinion, no delays attributable to the State which may
justify the finding that a reasonable time has been exceeded in
the present case.