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SARA LIND EGGERTSDOTTIR v. ICELAND - 31930/04 [2007] ECHR 553 (5 July 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/553.html
Cite as:
[2007] ECHR 553,
(2009) 48 EHRR 32,
48 EHRR 32
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THIRD
SECTION
CASE OF SARA LIND EGGERTSDÓTTIR v. ICELAND
(Application
no. 31930/04)
JUDGMENT
STRASBOURG
5 July
2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Sara Lind Eggertsdóttir v. Iceland,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mrs E.
Fura-Sandström,
Mrs A. Gyulumyan,
Mr David Thór
Björgvinsson,
Mrs I. Ziemele,
Mrs I. Berro-Lefèvre,
judges,
and Mr S. Naismith, Deputy Section Registrar.
Having
deliberated in private on 14 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 31930/04) against the Republic
of Iceland lodged with the Court on 2 September 2004 under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by Mr Eggert Ísólfsson
and Mrs Sigurmunda Skarpheðinsdóttir on behalf of
their minor daughter, an Icelandic national, Ms Sara Lind
Eggertsdóttir (“the applicant”).
The
applicant, who had been granted legal aid, was represented by Mr H.Ö.
Herbertsson, a lawyer practising in Reykjavik. The Icelandic
Government (“the Government”) were represented by their
Agent, Mr Thorsteinn Geirsson, of the Ministry of Justice and
Ecclesiastical Affairs.
The
applicant complained under Article 6 § 1of the Convention that
the Supreme Court had not afforded her a fair hearing before an
impartial tribunal, in particular by basing its findings on the
opinion of the employees of the respondent party.
On
9 May 2006 the Court decided to give notice of the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant, Sara Lind Eggertsdóttir, is an Icelandic national
who lives in Reykjavík.
On
5 March 1998 the applicant was born at the National and University
Hospital (hereinafter referred to as the NUH) in Reykjavík,
which was a State hospital. Soon after her birth it became clear that
the applicant was severely handicapped both physically and mentally.
Her disability is assessed at 100%.
In
July 1998 the applicant's parents complained to the Medical Director
of Iceland, who in October 1999 concluded that the child had not been
given improper treatment.
Thereafter,
represented by a lawyer, the applicant's parents on her behalf
brought judicial proceedings against the State of Iceland before the
Reykjavik District Court. The arguments could be described as
twofold. Firstly, a mistake had been committed in the delivery room
by reacting too late to hypoxia that was diagnosed already on the
mother's arrival there. Secondly, paediatricians had made a mistake
when attending to the child immediately after birth. The parents
alleged that a catheter inserted into the child's umbilical artery
had been abnormally bent to a U-shape and had been left that way for
approximately 32 hours. This had been capable of causing the damage
that had occurred to the child's health. Instead the doctors should
have properly withdrawn the catheter to a straight position or, if
not, inserted it into a limb.
The
respondent requested the District Court to release it from the
applicant's claim, maintaining that she had suffered damage to her
health as a result of hypoxia during pregnancy, before her mother's
arrival at the labour ward of the NUH, and that no additional loss
could be linked to any possible mistakes on the part of the hospital
staff. The applicant had been in a serious condition already at the
time of her delivery by means of a caesarean section, and hypoxia had
by then already caused arterial thrombosis. The positioning of the
catheter had therefore not caused the damage to the applicant's
health.
The
District Court, sitting with one professional judge and two lay
judges, one of whom was a paediatrician and the other a gynaecologist
and obstetrician, heard extensive evidence from all the hospital
personnel involved and from experts.
By
a judgment of 24 April 2002, the District Court rejected the first
claim described above but upheld the second claim and found that the
State was liable to pay compensation to the applicant. It awarded her
28,522,474 Icelandic Crowns (ISK) in compensation (ISK 20,684,948 for
pecuniary damage and ISK 7,756,856 for non-pecuniary damage), plus
interest, as well as certain sums for legal costs, to be received by
her parents on her behalf. Its reasoning on the merits included the
following passages:
“By reference to the foregoing the court concludes
that proof has not been adduced for the plaintiff's disability having
solely been due to her illness following thrombosis of the aorta and
the renal arteries . On the other hand there is a significant
probability that her illness following the said thrombosis at least
contributed to the serious brain damage she suffered, which caused
her disability and non-financial loss. Whether the plaintiff had
already suffered brain damage, and what her illness may have added to
that damage, is impossible to ascertain.
With a view to the plaintiff's difficult situation as
regards proof, and with a view to the rules of evidence that must be
regarded as having been formed in this field of the law of
compensation, the respondent must be charged with the burden of
proving that the brain damage from which the plaintiff now suffers
would have occurred even if the respondent's employees had not made
the mistake of letting the catheter remain in a U-turn in her aorta
for up to 32 hours. As the respondent is, according to the above,
deemed not to have succeeded in adducing such proof, the plaintiff's
view that the conditions for compensation liability on the
respondent's part on account of her disability and non-financial loss
are fulfilled, will be sustained.
It is not possible, on the basis of the available
evidence and the above rule of proof to sustain the respondent's view
that only a small part of the plaintiff's disability can be traced to
her illness caused by thrombosis of the aorta and the renal arteries.
As it has not been demonstrated whether or to what extent the damage
to the plaintiff's health was due to other causes, the respondent
will be deemed liable for her entire loss.”
The
Solicitor General appealed against the above judgment to the Supreme
Court. In support thereof, he filed two statements by certain named
doctors of the University Hospital commenting on the District Court's
judgment and criticising its conclusion. The statements had been
addressed to the Hospital's Chief Medical Executive, who apparently
had endorsed them and forwarded them to the Solicitor General.
The
Supreme Court initially scheduled the oral hearing for 24 January
2003, but on 21 January 2003 it informed the applicant's lawyer and
the Solicitor General that it had postponed the hearing pending an
opinion it intended to request from the State Medico-Legal Board
(SMLB). On this occasion the Supreme Court gave the parties an
opportunity to propose questions to be put by it to the SMLB.
In reply, by a letter of 24 January 2003, the applicant's lawyer
protested, in particular, against the Supreme Court's seeking the
SMLB's opinion without having first offered the parties an
opportunity to express their views on the measure. It was noted that,
pursuant to section 1 of the SMLB Act, many doctors engaged with the
NUH, where the disputed medical services had been provided, had a
seat on the Board. Moreover, the Medical Director had already
expressed himself on the matter and was therefore disqualified from
any further involvement. The lawyer also protested against any
consideration of the matter by the hospital's employees, and demanded
their withdrawal.
In
the event that the Supreme Court, despite the applicant's protest,
were to proceed to ask the SMLB for an opinion, the applicant's
lawyer specified 11 items for questions that he wished be addressed
to the SMLB.
The
Supreme Court replied on 30 January 2003 that it found no reason not
to ask for the SMLB's opinion but that it would consider the
applicant's proposal for questions.
On
31 January 2003 the Solicitor General indicated 13 questions which he
thought should be addressed to the SMLB, but he did not comment on
the priority of asking the SMLB for an opinion.
On
12 February 2003 the Supreme Court formally decided to obtain an
opinion from the SMLB on 19 questions relating to the matter in
dispute, giving the following reasons:
“It was difficult to ascertain from the evidence
and testimonies submitted what was the cause of the [applicant's]
injury and some points were also not as clear as desirable. It was
therefore deemed proper, before the case were tried by the Supreme
Court, to obtain the opinion of the State Medico-Legal Board under
section 2 (1) and (2) of the SMLB Act and to seek answers on certain
points since, according to the said Act, it is the SMLB's role to
provide the courts with opinions on medical matters.”
In
connection with the above the Supreme Court drew particular attention
to the applicant's request of 24 January 2003 for the withdrawal of
certain members.
The
SMLB was composed of the Director of Health (Landlæknir)
of Iceland, as the chairperson, and eight other members.
The SMLB delivered its opinion on 21 November 2003. It found that at
the maternity ward an abnormal foetal monitor printout had been
reacted to belatedly. On the other hand, there was no reason to
criticise the child's treatment at the paediatric clinic following
birth. The Board considered that the positioning of the catheter had
not caused blood coagulation and that no mistake had been made
concerning the manner in which it lay. Thus, the Board differed from
the District Court on points that were material for establishing
liability to pay compensation.
In
the context of the Board's own procedure, the matter had first been
referred direct to its Forensic Chamber composed of three Board
members, all of whom were employees at the University Hospital and
decided that they were not disqualified. The Forensic Chamber had
sought two opinions on the applicant's birth, one - by a consultant
surgeon and member of the Board - on the child's case history after
birth, and another by an external obstetrician on the mother's
pregnancy and the child's birth.
At
a meeting held on 18 November 2003, the SMLB had discussed and had
unanimously approved the two doctors' opinions and had adopted its
final opinion that was transmitted to the Supreme Court. The session
had been presided by one the Forensic Chamber's three members,
replacing the SMLB's Chairperson who had withdrawn due to his having
previously been involved with the case as the Medical Director of
Iceland.
At
the oral hearing on 27 February 2004 before the Supreme Court, the
applicant's lawyer disputed the procedure before the SMLB but to no
avail.
By
a judgment of 11 March 2004 the Supreme Court overturned the District
Court's finding that the State was liable to pay compensation to the
applicant for negligence by the University Hospital.
Before
turning to the merits, the Supreme Court dealt with the issue of
disqualification:
“As regards the conclusion of the SMLB and its
Forensic Chamber, the respondent [the applicant] observes that
doctors employed at the National and University Hospital took part in
handling the matter and bringing it to a conclusion; that they, as
employees of the appellant, were disqualified from doing so, and that
consequently the SMLB's opinion was to be entirely disregarded.
As noted in the above, it is the role of the SMLB to
provide the courts with opinions on medical matters. The situation in
Iceland is such that most experts in the field of medical science are
employed at the National and University Hospital. Of the SMLB's nine
members four are employed at the hospital, but none of the members
taking part in handling this matter is employed at the department of
obstetrics and gynaecology, nor at the paediatric hospital
Barnaspítali Hringsins, and none of them was involved with the
treatment of the respondent's illness, or of her mother. Furthermore
none of them is a member of the hospital's highest management, which
has taken a stand with respect to this matter in conformity with the
opinion of the doctors of the departments of obstetrics and
neonatology. It has not been demonstrated that the Board's handling
of the case was contrary to the SMLB Act and Regulation No. 192/1942
on the Procedure of the SMLB, or that the Board's resolution was
influenced by any alien considerations. The Board's opinion and all
other opinions provided in this case will have to be assessed in the
light of the positions occupied by those who provide them.”
As
to the merits, the Supreme Court concluded:
“It is generally acknowledged that the use of
arterial catheters may entail a danger of thrombosis. The respondent
was dangerously ill and had been placed in a respirator, which
demanded a monitoring of blood oxygen and acid/base levels and blood
pressure, and the administration of fluids and drugs. The situation
in which the doctors found themselves when they decided to leave the
catheter alone must be kept in mind; as noted above this provided the
only arterial access, as matters had developed. It has not been
established that a catheter lying in a loop entails an increased risk
of thrombosis.
As explained above, the experts consider that the
respondent's brain damage was first and foremost due to hypoxia. The
damage revealed by examinations of her brain is consistent with
hypoxia, and it must be regarded as highly likely that this was the
cause of her loss. Brain damage that might have followed thrombosis
in the fifth day after the respondent's birth would on the other hand
have appeared as haemorrhage due to hypertension, but such brain
damage is not extensive. It can not be seen, therefore, that there is
a causal relationship between the positioning of the catheter and the
respondent's brain damage. It has not been demonstrated that the
respondent's loss is traceable to a fault on the part of the
appellant's employees.”
II. RELEVANT DOMESTIC LAW
The
respondent Government drew particular attention to the following
provisions of the Code of Civil Procedure (CIP), No. 91/1991:
Article 44
“The judge shall in each case determine, by an
assessment of the evidence brought forth, whether an assertion
relating to facts at issue shall be regarded as proven, subject to
any binding rules in this respect which may be expressly laid down by
statute.”
Article 46
“The parties shall collect evidence if they are
capable of making dispositions concerning the subject matter of the
action. The judge may, as he may consider necessary for purposes of
clarification, invite the parties to collect evidence relating to
particular facts of a case. If the judge deems that a fact, which a
party desires to establish, is obviously irrelevant or that such
evidence does not serve a purpose, he may preclude the party from
introducing such evidence.”
Article 104
“If the judge discovers, after he has received a
case for adjudication, that the submissions of a party or the
information on the facts provided by a party is seriously lacking in
clarity, and the deficiency can be deemed to be due to the judge not
having provided the parties with adequate guidance or made his
observations to them, he shall notify the parties to appear in court
and, as the case may be, question them or draw their attention to the
need for further evidence. The proceedings may be deferred as
necessary, and finally the judge shall provide the parties with an
opportunity to make any observations in addition to their previous
oral argumentation, and receive the case for adjudication anew.”
Article 111
“The judge shall not exceed the requests of the
parties in his judgment or decision, except on points to which he
shall attend on his own accord. A request not made in the summons
shall be dismissed from the court, unless the respondent has agreed
that the judge may consider such request. The same shall apply to an
increase in a monetary claim or any other changes to the respondent's
disadvantage.
The judge may not base his resolution on a statement of
facts or on an objection which could have been made, but was not made
during the procedure. The judge shall assess, with a view to the
circumstances, what account shall be taken of a fact mentioned in a
submitted document, which has not been mentioned specifically in the
support of a request during oral pleadings.
The judge shall assess, with a view to the
circumstances, whether a party's silence with respect to an assertion
or a claim made by his adversary shall be regarded as his
acquiescence.”
Article 163
“1 . The judgments of the Supreme Court shall be
based on what has been submitted in the relevant case and has been
proven or acknowledged. The provisions of Section 111 shall apply to
the Supreme Court's judgments.
2. The Supreme Court may base its resolution of a case
on the requests or arguments of fact expressed by a party which were
not expressed to the district court, provided they were stated in the
party's exposition, the basis of the litigation remains unaltered,
the failure to express them to the district court was excusable, and
the party's rights would be adversely affected if they were not
considered.”
The
State Medico-Legal Board Act, No. 14/1942 (“the SMLB Act”),
contains inter alia the following provisions:
Section 2
“The State Medico-Legal Board shall have the role
of providing the courts, the prosecution authorities and the supreme
health authorities with expert opinions on medical matters.
Among its functions shall be the provision of opinions
on any medical certificates submitted to the courts, provided these
are sent to the Board in accordance with a judicial decision.
The State Medico-Legal Board shall provide the supreme
health authorities with its opinions as to the propriety of a
particular measure, action or conduct on the part of a doctor,
dentist, masseur, pharmacist nurse, midwife or other similar health
professional.
The State Medico-Legal Board shall provide the supreme
health authorities with its opinions relating to health measures of
extensive scope, in particular extensive measures taken against the
spreading of infectious diseases.”
Section 3
“The State Medico-Legal Board shall only attend
to matters referred to the Board in accordance with the provisions of
section 2, by the parties stated there.
The Board shall not provide opinions on the mental
condition or criminal responsibility of any person, unless an expert
opinion following suitable examination has already been obtained,
provided such examination has been possible.
The Board shall not provide an opinion on any person's
cause of death, unless an expert opinion following autopsy, or a
report on loss of life in accordance with the applicable legislation
in cases of violent or sudden death, has already been obtained,
provided such evidence can be obtained.”
Section 4
“The State Medico-Legal Board shall seek the
opinions of outside experts on matters not within the specialist
knowledge of its members.
Before invalidating a doctor's certificate the board
shall, if possible, offer the doctor in question an opportunity to
bring forth his arguments in its support.
The Board shall, if possible, consult the person in
question, and his professional organisation, on any matters
specifically relating to a measure, an action or conduct of a doctor
or other health professional (cf. Section 2, the third paragraph),
before providing its opinion.”
Section 5
“No member of the State Medico-Legal Board shall
take part in deciding on a matter relating to himself or his
principal, or a matter with respect to which he has previously taken
a stand, personally or in official capacity. If the Board becomes
unable to exercise its function as a result of some of its expert
members being unable to take part in deciding on a matter coming
under his speciality, the Minister shall appoint another expert in
his stead as the Board may propose, for considering that particular
matter.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that, in the proceedings before the Supreme
Court, she had not been afforded a fair hearing before an impartial
tribunal as provided in Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
The
Government contested that argument.
A. Admissibility
The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Submissions of the parties
(i) The applicant
The applicant complained under Article 6 § 1 of
the Convention that the Supreme Court had not afforded her a fair
hearing before an impartial tribunal: (1) by deciding of its own
accord to take evidence without any involvement of the parties; (2)
by doing so without giving the parties an opportunity to comment on
the measure; (3) by acting in this way with the purpose to overturn
the expert conclusions made at first instance and thereby favour the
adversary party, the NUH; (4) by basing its findings on the opinion
of the employees of the respondent party; and (5) by deciding on the
issue of disqualification on the basis of a wrong standard, namely
that it had not been demonstrated that extraneous considerations had
influenced the Board's opinion.
The
applicant maintained that it was contrary to the principle reflected
in Articles 46, 104, 111 and 163 of the CIP on the parties' power of
disposition over the subject matter of a civil case for a court to
decide of its own accord to seek further evidence in the case. It was
incomprehensible that such a decision had been taken without giving
the parties an opportunity to comment on the measure beforehand. A
large number of similar cases had been decided without first
obtaining the SMLB's opinion. It had been the position of both
parties that the evidence submitted was sufficient for the Supreme
Court's examination. In the applicant's view, since the parties
according to their power of disposition had been in agreement as to
what evidence should constitute the basis for the Supreme Court's
adjudication, the latter had had no authority to take investigative
measures of its own. When the Supreme Court nevertheless, contrary to
the principles of Icelandic procedural law, of its own accord sought
the opinion of the SMLB, the applicant could legitimately fear that
the Supreme Court lacked the impartiality required by Article 6 §
1.
Moreover,
in the applicant's submission, it must be considered incompatible
with the requirement of impartiality in Article 6 § 1 and the
principle of equality of arms inherent in the notion of fairness in
that provision for a national court to seek the opinion of experts
who were employees of a party to a case and subsequently base its
judgement on their opinion. Four of the SMLB members had been
employees of the adversary party, the NUH, where the alleged
liability had occurred. Even though they had not been previously
involved in the case, their employer, on whom they depended for their
livelihood, had already taken a stance on the matter. The likelihood
of these employees finding against the firmly stated views of their
employer and colleagues at the NUH was negligible.
The
applicant further submitted that three of the four SMLB members who
were employees of the NUH had constituted the Forensic Chamber, whose
opinion had been endorsed by the SMLB before being transmitted to the
Supreme Court. Since the Supreme Court had based its judgment solely
on the SMLB's opinion, that body should have satisfied the
requirements of independence and impartiality. However, it did not do
so.
The
applicant disputed the Government's contention that it was impossible
to find experts to provide an opinion on specialised and complicated
medical issues as here without any of them having links to the NUH.
There were a number of Icelandic medical experts working abroad who
could have been called upon to take part in the SMLB's examination.
For example, before the publication of its own opinion, the
Directorate of Health, which had dealt with her case at the
administrative level, had sought the opinion of two Icelandic doctors
working abroad. Nothing in the SMLB Act would have prevented this.
The Government's submission was especially peculiar in view of the
fact that none of the nine members of the SMLB who had been involved
was a specialist in the relevant field, paediatrics, despite the
District Court's finding that it was in the paediatric unit that
liability had arisen.
(ii) The Government
The
Government maintained that the requirements of a fair trial were
fulfilled in every respect, both as regards any individual aspects of
the case, and in relation to the trial as a whole.
The
Government emphasised that, before the domestic courts, the
applicant's case was characterised by great uncertainty as regards
proof, where the conclusion depended on the resolution of the
disputed medical issue whether the inaccurate positioning of a
catheter in the newborn infant's umbilical artery had led to
permanent brain damage, whether the brain damage had occurred before
the applicant's birth or whether it had been a result of concurrent
causes. The Supreme Court's conclusion was obviously based on a
comprehensive assessment of the evidence as a whole, i.e. both the
expert opinions submitted to the District Court, provided by doctors
both engaged with the NUH and elsewhere, and those provided by the
SMLB in the form of answers to particular questions, where four of
the nine members were employees of the NUH. The applicant's
contention that the Supreme Court had taken sides with one of the
parties and therefore sought the SMLB's predictable opinion was
groundless.
The
Government invited the Court also to reject, as being
unsubstantiated, the applicant's allegation that the parties had
agreed that the case should be adjudicated by the Supreme Court on
the basis of the evidence at hand. Nor was it correct, as suggested
by the applicant, that in the absence of any request to this effect
by any of the parties the Supreme Court lacked powers to seek an
opinion from the SMLB. In fact, it clearly followed from sections 2
and 3 of the SMLB Act that in civil proceedings, as here, none of the
parties but only the Supreme Court was empowered to make such a
request. Thus far the SMLB Act provided for a narrow exemption of a
long tradition from the general rule of Icelandic law on civil
procedure, that the parties in a civil case had the power of
disposition over the subject matter of the action.
As
to the applicant's objections regarding the composition of the SMLB,
the Government pointed out that in view of the small size of the
population in Iceland, inhabited by some 300,000 people, it was not
possible to find experts to provide an opinion on medical questions
as specialised and complicated as those at issue in the applicant's
case, without any of them having links to the NUH which was by far
the largest and most advanced hospital in Iceland. In the
Government's opinion, there was ample support in the Convention
institution's case-law for the view that it would not be practicable
if an expert were to be disqualified from providing an opinion to a
court simply because he or she was employed by a public institution
involved in the case. Thus it would not be possible to apply the same
standards to experts as to judges. In this regard the Government
prayed in aid Beleggings- en Beheersmaatschappij Indiana B.V. v.
the Netherlands (dec.), no. 21491/93, of 29 November 1995, and
Wolfgang Blum and Klaus Ignaz Jacobi v. Austria (dec.) no.
26527/95 of 18 November 1995.
The Government emphasised that both parties had been
afforded a reasonable opportunity to present their case, including
evidence, under conditions that had not placed them at a disadvantage
vis-à-vis their adversary. There was no doubt, either, that
the status of the parties had been equal and that they had had the
same opportunities to adduce evidence and to submit questions to the
SMLB. The equal right of the parties to have questions asked to the
SMLB had been fully respected, and both had exercised that right.
They also had had unlimited and equal access to the evidence brought
forth and the case was argued orally at a public hearing.
2. Assessment by the Court
In
their pleadings, the Government emphasised the need to take into
account the particular demographic situation in Iceland, with a
relatively small population, and the difficulty of finding suitable
experts who did not have any ties to the NUH. In as much as it
implies that variable standards should apply to the competent
“tribunal” depending on practical considerations, the
Court does not accept the Government's reasoning (see
Walston v. Norway, no. 37372/97 (dec.), 11
December 2001). The question whether a tribunal is impartial for the
purposes of Article 6 § 1 must be determined solely according to
the principles laid down in the Court's case-law, namely according to
a subjective test, that is on the basis of the personal conviction of
a particular judge in a given case, and also according to an
objective test, that is ascertaining whether the judge offered
guarantees sufficient to exclude any legitimate doubt in this respect
(see Pétur Thór Sigurðsson v.
Iceland, no. 39731/98, § 37, ECHR 2003 IV;
Wettstein v. Switzerland, no. 33958/96, § 42, ECHR
2000-XII).
As
to the subjective test, the personal impartiality of a judge must be
presumed until there is proof to the contrary.
Under
the objective test, it must be determined whether, quite apart from
the judge's personal conduct, there are ascertainable facts which may
raise doubts as to his impartiality. In this respect even appearances
may be of a certain importance. What is at stake is the confidence
which the courts in a democratic society must inspire in the public.
Accordingly, any judge in respect of whom there is a legitimate
reason to fear a lack of impartiality must withdraw. This implies
that in deciding whether in a given case there is a legitimate reason
to fear that a particular judge lacks impartiality, the standpoint of
the party concerned is important but not decisive. What is decisive
is whether this fear can be held to be objectively justified (ibid.).
The
Court notes that in disputing the Supreme Court's impartiality in the
present case, the applicant advanced a variety of arguments, all
related to the SMLB. These could be divided into two groups, one
relating to the manner and purpose of the consultation of the SMLB by
the Supreme Court and another concerning the SMLB's composition and
its position and role in the proceedings before the Supreme Court.
As
to the first group of arguments, the Court is not convinced by the
applicant's submission that the Supreme Court's decision to request
an expert opinion from the SMLB without the parties' consent gave
rise to any misgivings under Article 6 § 1. The Court sees no
reason to call into doubt the correctness of the Supreme Court's
interpretation and application of domestic law to the effect that it
was empowered to request an opinion from the SMLB irrespective of the
parties' stance on that question. As explained by the respondent
Government, the impugned request had a legal basis in sections 2 and
3 of the SMLB Act and this was an exception to the general rule of
Icelandic law on civil procedure that the parties to a civil case had
the power of disposition over the subject matter of the action. The
Court further reiterates that the Convention does not lay down rules
on evidence as such. In the Court's view, a decision to appoint an
expert, be it with or without the parties' consent, is a matter that
normally falls within the national court's discretion under Article 6
§ 1 in assessing the admissibility and relevance of evidence,
which has been recognised by the Court in its case-law (see Eskelinen
and Others v. Finland, no. 43803/98, § 31,
8 August 2006; Schenk v. Switzerland, judgment of 12 July
1988, Series A no. 140, p. 29, § 46).
Nor
does the Court find any support for the applicant's argument that the
Supreme Court's purpose in appointing the SMLB to give an expert
opinion was to overturn the District Court's findings made on the
basis of the expert conclusions at first instance. As can be seen
from the Supreme Court's decision, its motive related to the
complexity and unclearness of the evidence submitted to it. The
applicant has adduced no proof to the effect that the decision was
founded on any personal bias against her. Nor were there any
objective justifications for doubting the Supreme Court's
impartiality in taking the decision.
In
these circumstances the Court is satisfied that the Supreme Court's
decision to commission an expert opinion from the SMLB clearly fell
within its discretion under Article 6 § 1 of the Convention and
disclosed no lack of impartiality or unfairness for the purposes of
this provision.
The
second group of arguments is more problematic, in that it does not
concern the composition of the Supreme Court but that of the SMLB and
its procedural position and role in the proceedings before the
Supreme Court. It should be noted that Article 6 § 1 of the
Convention guarantees a right to a fair hearing by an independent and
impartial “tribunal” and does not expressly require that
an expert heard by that tribunal fulfils the same requirements (see,
mutatis mutandis, Mantovanelli v. France, judgment
of 18 March 1997, Reports of Judgments and Decisions 1997 II,
p. 436, § 33). However, the opinion of an expert who
has been appointed by the competent court to address issues arising
in the case is likely to carry significant weight in that court's
assessment of those issues. In its case-law the Court has recognised
that the lack of neutrality on the part of a court appointed expert
may in certain circumstances give rise to a breach of the principle
of equality of arms inherent in the concept of fair trial (see
Bönisch v. Austria, judgment of 6 May 1985 (Merits),
Series A no. 92, §§ 30-35; Brandstetter v. Austria,
judgment of 28 August 1991, Series A no. 211, p. 21,
§ 33). In particular, regard must be had to such factors as
the expert's procedural position and role in the relevant proceedings
(see Bönisch, cited above, §§ 31-35).
In
the instant case, the four members of the SMLB who were employed as
doctors at the NUH, but who had not had any prior involvement in the
case, did not withdraw, unlike the Chairperson who withdrew because
he had been thus involved in his capacity as the Medical Director of
Iceland. Three of the four members in question had been those three
members constituting the Board's Forensic Chamber which (with the
assistance of two other experts) had prepared the Board's own
examination before it submitted its final report to the Supreme
Court. The Court considers that the ties of those four members to the
NUH could give rise to certain apprehensions on the part the
applicant. While such apprehensions may have a certain importance,
they are not decisive; what is decisive is whether the doubts raised
by appearances can be held objectively justified (see Brandstetter
v. Austria, judgment of 28 August 1991, Series A no. 211,
p. 21, § 44).
In
this connection, the Court notes that in view of the SMLB's special
statutory role as provider of medical opinions to inter alia
the courts, it can be assumed that the SMLB's opinions on matters
referred to it would carry greater weight in their assessment than
those of an expert witness called by any of the parties (see Bönisch
v. Austria, judgment of 6 May 1985, Series A no. 92, pp. 15-16, §
33). Indeed, as is apparent from the Supreme Court's own reasoning,
the latter attached significant weight to the SMLB's expert opinion
in its decision to quash the award of compensation made by the
District Court and to reject the applicant's compensation claim (see
paragraph 25 above).
An
additional factor illustrating the SMLB's dominant role in the
proceedings, albeit not as such incompatible with the notion of
fairness within the meaning of Article 6 of the Convention (see
Sigurdur Gudmundsson v. Iceland (dec.), 31 August 2006), was
the fact that, as already mentioned above, the Supreme Court was
empowered to request an opinion from the SMLB irrespective of the
parties' stance on the matter and that it was the Supreme Court and
not the parties that formulated and addressed the written questions
to the SMLB.
It
is also to be noted that the issue to be determined in the relevant
proceedings before the Supreme Court was whether the State was liable
to pay compensation on account of medical negligence in connection
with the applicant's birth at the same hospital as where the four
members were employed, the NUH. Their task was not simply to give an
expert opinion on any given subject that might or might not differ
from an opinion previously stated by their colleagues and the
management at the NUH on the same subject. In preparing the SMLB's
expert opinion for the Supreme Court, the four members in question
were called to do something more intricate, namely to analyse and
assess the performance of their colleagues at the NUH with the aim to
assist the Supreme Court in determining the question of their
employer's liability. Therefore, the Court is unable to share the
Government' view that this was merely a situation of experts being
employed by the same administrative authority as was involved in the
case (see Bönisch, cited above, § 32; cf.
Brandstetter, cited above, p. 21, §§ 44-45;
Zumtobel v. Austria, Commission's report of 30 June 1992, §
86, ECHR Series A no. 268-A; Beleggings- en Beheersmaatschappij
Indiana B.V. v. the Netherlands (dec.) no. 21491/93, 29 November
1995; and Wolfgang Blum and Klaus Ignaz Jacobi v. Austria
(dec.) no. 26527/95 of 18 November 1995).
Furthermore,
while the doctors in question were not assigned to the same
departments of the hospital as that where the disputed events had
taken place, their hierarchical superior, the Chief Medical
Executive, had taken a clear stance against the District Court's
judgment by endorsing critical statements (see paragraph 12 above) by
two hospital doctors that were forwarded to the Solicitor General and
joined to the State's appeal to the Supreme Court (see, mutatis
mutandis, Sramek v. Austria, judgment of 22 October
1984, Series A no. 84, pp. 19-20, §§ 41-42,
relating to the independence of civil servant members of a tribunal
in a subordinate position vis-à-vis one of the parties). In
the Court's view, this endorsement is an important consideration. On
the other hand, it sees no need to consider the applicant's
additional argument that the Supreme Court's refusal to exclude the
said statements from the case-file disclosed a lack of fairness in
the proceedings, which in any event was not specifically mentioned as
a complaint in her initial application under the Convention.
In
the light of the above, the Court considers that the applicant could
legitimately fear that the SMLB did not act with proper neutrality in
the proceedings before the Supreme Court. It further transpires that,
as a result of this deficiency and of the SMLB's particular position
and role, the applicant's procedural position was not on a par with
that of the adversary party, the State, in the manner required by the
principle of equality of arms.
What
is more, the Supreme Court's objective impartiality was compromised
by SMLB's composition, procedural position and role in the
proceedings before it.
Against
this background, the applicant was not afforded a fair hearing before
an impartial tribunal before the Supreme Court. Accordingly, there
has been a breach of Article 6 § 1 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant sought (1) ISK 28.522.474 (approximately 340,000 euros
(EUR) in compensation for pecuniary damage, which corresponded to the
award made by the District Court in this respect. This amount should
be increased by certain interests specified by the applicant. The
applicant further claimed (2) ISK 10.000.000 (approximately 116,000
euros (EUR)) in respect of non-pecuniary damage on account of
suffering and distress occasioned by the violation the Convention.
The applicant maintained that after the District Court had ruled in
her favour and had ordered the State to pay her compensation for
pecuniary and non-pecuniary damage, the Supreme Court had deprived
her of her award by quashing that ruling in a procedure violating her
right to a fair trial before an independent and impartial tribunal.
Had it not been for the fact that the Supreme Court obtained and
attached decisive weight to the SMLB's opinion, in breach of the
Convention, it would most probably have reached the same conclusion
as that of the District Court. There was thus a causal connection
between the violation of the Convention and her damage.
The
Government disputed that any causal link had been demonstrated
between the alleged violation of Article 6 of the Convention on one
hand, and the conclusion of the Supreme Court's judgment on the
other. In their view, the claim for pecuniary damage should be
rejected. As regards non-pecuniary damage, the Government were of the
opinion that the finding of violation of the Convention would in
itself constitute adequate just satisfaction.
The
Court observes that an award of just satisfaction can only be based
on the fact that the applicant did not have the benefit of all the
guarantees of Article 6 § 1. It cannot speculate as to the
outcome of the trial had the position been otherwise. Nevertheless,
the Court does not exclude the possibility that the applicant
suffered, as a result of the potential effects of the violation
found, a loss of real opportunities of which account must be taken,
even if the prospects of realising them were questionable (see,
mutatis mutandis, Bönisch v. Austria (Article
50), judgment of 2 June 1986, Series A no. 103, p. 8, §
11).
In
addition, the applicant must have suffered anguish and distress from
the violation and which this finding cannot adequately compensate
(see Pétur Thór Sigurðsson ,
cited above, § 51; and H. v. Belgium, judgment of 30
November 1987, Series A no. 127-B, p. 37, § 60). Deciding on an
equitable basis, the Court awards the applicant a total amount of EUR
75,000 under this head.
B. Costs and expenses
The
applicant also claimed altogether ISK 3,850,163 (approximately EUR
45,000) for the costs and expenses incurred before the Court, in
respect of the following items:
(a)
her lawyer's work (for 52 hours at an hourly rate of ISK 35,000);
(b)
his associate Mrs Hulda Árnadóttir's work (for 41.75
hours at an hourly rate of ISK 22.000);
(c)
and his colleague Mrs Hrafnhildur Kristinsdóttir's (paralegal)
work (for 29.5 hours at an hourly rate of ISK 12.000);
(d)
ISK 62.250 in expense for a translation from Icelandic into English
of her initial complaint.
The
above amounts should be increased by 24.5% in value added tax (VAT).
The
Government disputed the claim, arguing that the number of hours was
excessive and that the hourly rate charged by the applicant's lawyer
was unreasonably high.
According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, the Court does not find that all of the
fees claimed under items (a) to (c) were necessary (see paragraphs 44
to 46 above, compare paragraphs 47 to 55). Item (d) should be granted
in its entirety. Regard being had to the information in its
possession and the above criteria, the Court considers it reasonable
to award the total sum of EUR 18,000 (inclusive of VAT) for costs and
expenses incurred in the proceedings before the Court, from which the
EUR 850 received in legal aid from the Council of Europe falls to be
deducted.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
75,000 (seventy five thousand euros) in respect of damages;
(ii) EUR
18,000 (eighteen thousand euros) in respect of costs and expenses,
less the EUR 850 (eight hundred and fifty euros) she had received by
way of legal aid from the Council of Europe;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
these sums are to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement;
(c) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 5 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Boštjan M. Zupančič Deputy
Registrar President
