(Application no. 247/07)
22 January 2009
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 Christensen v. Denmark,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Rait Maruste, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 16 December 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
1. Administrative proceedings
2. Proceedings before the courts
14. From September 1995 to March 1996 pleadings were exchanged.
II. RELEVANT DOMESTIC LAW AND PRACTICE
(1) The losing party shall compensate
the opponent for the expenses inflicted on the opponent by the
proceedings, unless otherwise agreed by the parties.
(2) The court may decide that the losing party shall not or shall only partially compensate the opponent for the expenses inflicted if particular reasons make it appropriate.
The National Patients' Complaints Board and the Patient Insurance Association
Article 6 § 1 of the Convention
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
Article 13 of the Convention
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
71. The Court reiterates that the purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V).
72. It considers that the question of whether the requirement to exhaust domestic remedies has been satisfied in the instant case is closely linked to the complaint concerning the existence of an effective remedy within the meaning of Article 13 of the Convention and therefore joins the Government's objection to the merits of the latter provision.
B. Merits of the complaint under Article 6 § 1 of the Convention
1. Period to be taken into consideration
74. The Government contended that the relevant period started on 7 September 1995 when, before the High Court, the applicant changed the defendant from the medical consultant, who performed the cystoscopic examinations, to Copenhagen County. As regards the applicant's claim that the proceedings started on 30 June 1993, the Government pointed out that there was no requirement to file a complaint with the National Patients' Complaints Board before bringing the case before the courts; thus, the applicant could have brought the case concerning the compensation claim against Copenhagen County directly before the High Court in 1993.
2. Reasonableness of the length of the proceedings
a. Complexity of the case
83. In the Government's view the case was very complex as regards the facts, which contributed greatly to the length of the proceedings.
b. The applicant's conduct
c. Conduct of the national authorities
d. Overall assessment
C. Merits of the complaint under Article 13 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.”
B. Costs and expenses in the domestic proceedings
C. Costs and expenses before the Court
D. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Joins to the merits of Article 13 the Government's objection concerning non-exhaustion of domestic remedies under Article 6 of the Convention and dismisses it;
2. Declares the application admissible;
3. Holds that there has been a violation of Article 6 § 1 of the Convention;
4. Holds that there has been a violation of Article 13 of the Convention;
(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, EUR 4,000 (four thousand euros) in respect of non-pecuniary damage plus any tax that may be chargeable on this amount, which is to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;
(b) 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;
6. Dismisses unanimously the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 22 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Rait Maruste
Deputy Registrar President
1 On 25 February 2008, when the applicant submitted her claim.