ITEMID: 001-91323
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF BANTAYEVA AND OTHERS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life);Violation of Article 13+3 - Right to an effective remedy (Article 3 - Prohibition of torture);Violation of Article 13+5 - Right to an effective remedy (Article 5 - Right to liberty and security)
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicants are:
1) Ms Dagman Bantayeva, born in 1932,
2) Ms Kometa Mauladiyevna Manayeva, born in 1966,
3) Ms Zina Rashedovna Bantayeva, born in 1970,
4) Ms Khava Abubakarovna Bantayeva, born in 1988,
5) Ms Petimat Salmanovna Bantayeva, born in 1991,
6) Mr Islam Abubakarovich Manayev, born in 1998,
7) Ms Amnat Abubakarovna Bantayeva, born in 1996,
8) Mr Magomed Salmanovich Bantayev, born in 1989,
9) Ms Rayana Salmanovna Bantayeva, born in 2003,
10) Mr Dzhokhar Salmanovich Bantayev, born in 1998, and
11) Ms Amina Abubakarovna Manayeva, born in 1993.
7. The applicants are Russian nationals who live in the village of Komsomolskoye, in the Gudermes district of Chechnya.
8. The applicants are relatives. The first applicant is the mother of Mr Abubakar Aliyevich Bantayev (also known as Bakra Manayev), born in 1957, and Mr Salman Aliyevich Bantayev, born in 1962. Abubakar Bantayev is married to the second applicant; they are the parents of the fourth, sixth, seventh and the eleventh applicants. Salman Bantayev is married to the third applicant; they are the parents of the fifth, eighth, ninth and tenth applicants. The first applicant has two other children, Ms Madina Bantayeva and Mr Shamil Bantayev, who are not applicants in this case.
9. Prior to 2000 Abubakar and Salman Bantayev participated in illegal armed groups. In 2000 they quitted paramilitary activities and voluntarily handed their arms over to the Chechnya Department of the Federal Security Service (the Chechnya FSB). On 21 January 2000 Abubakar and Salman Bantayev were provided with individual statements to this effect by the Department of the Federal Security Service of Gudermes District (the Gudermes FSB) together with the military commander of the security zone of Gudermes District (комендант зоны безопасности).
10. At the material time Russian federal forces checkpoints were located on roads leading to and from the village of Komsomolskoye.
11. According to the first applicant, about five months prior to 2 January 2003, that is, in the summer of 2002, she, her son Salman Bantayev and their neighbour were in a KAMAZ lorry driving from their village to the village of Engel-Yurt in the Gudermes district of Chechnya. On the road between Kadi-Yurt and Engel-Yurt their lorry was stopped by Russian military servicemen in an APC (armoured personnel carrier). They checked the identity papers of Salman Bantayev and his neighbour. The servicemen had a list against which they checked Salman Bantayev’s name. After that they told the first applicant that they would take her son away with them. They put Salman Bantayev into the APC and took him to a military unit stationed near Gudermes. The applicant’s other son, Abubakar Bantayev, went to the military unit on the same day to find out the reasons for his brother’s detention. Later in the evening of the same day Salman Bantayev was released.
12. On the night of 1-2 January 2003 Abubakar Bantayev and his children were sleeping in one part of the house at 1 Zapadnaya Street, in the village of Komsomolskoye. Abubakar Bantayev’s brother, Shamil Bantayev, was sleeping in another part of the house. Abubakar Bantayev’s wife was not at home that night as she was visiting her relatives in another village.
13. Between 3 a.m. and 4 a.m. a group of masked men wearing camouflage uniforms and armed with machine guns broke into the house. The men did not introduce themselves; they spoke Russian without an accent. The fourth applicant thought they were Russian servicemen.
14. The servicemen pointed their guns at the family members and lined them up along the wall. When the fourth applicant started to cry, one of them ordered her in Russian to keep silent.
15. The servicemen searched the house and took the family’s TV set, Abubakar Bantayev’s identity papers and the documents for his car. After that they took Abubakar Bantayev outside, put him into a UAZ vehicle parked next to the house and drove away to an unknown destination.
16. Immediately after Abubakar Bantayev’s apprehension Shamil Bantayev rushed to see their mother in the house of his brother Salman Bantayev. The latter’s house was located just a few minutes’ walk from Abubakar Bantayev’s house. On his way there he met his sister Madina Bantayeva who told him that their brother Salman had also been abducted by armed men.
17. On the night of 1-2 January 2003 the first applicant, Madina Bantayeva, Salman Bantayev and his children were sleeping in Salman Bantayev’s house at 8 Stalskogo Street (also spelled Stalskaya Street), in the village of Komsomolskoye. The house was located about 50 metres from the local military commander’s office.
18. Between 3 a.m. and 4 a.m. on 2 January 2003 a group of around ten men broke into the house. They wore masks and camouflage uniforms with no insignia and were armed with machine guns. They spoke both Russian and Chechen. The applicants thought they were Russian military servicemen. A group of ten servicemen waited outside, next to the grey and khaki-coloured UAZ vehicles parked in the yard.
19. The servicemen tied up Madina Bantayeva and the eighth applicant and put them in one of the rooms. Then they searched the house, ripping upholstery, turning furniture upside down and demanding gold and money from Salman Bantayev. From the window of their room Madina Bantayeva saw the intruders taking some items of their family property and putting them in one of the UAZ vehicles. When Madina Bantayeva saw from the window one of the intruders taking a TV set into the UAZ vehicle, she started screaming that their house was being robbed. The serviceman with the TV set heard this and put the TV set back in the house.
20. The servicemen took a number of items of the family’s property, including a video camera, as well as Salman Bantayev’s identity papers, marriage certificate, documents for his car and the family photograph albums. After that they took Salman Bantayev into the yard. Without letting him put on clothing or shoes, the servicemen put Salman Bantayev in one of the UAZ vehicles and drove away towards Gudermes.
21. The applicants’ neighbour Mrs M.M. testified that late at night on 2 January 2003 she had seen military UAZ cars and a grey UAZ car (“таблетка”) pulling over by Salman Bantayev’s house. About twenty armed men in camouflage uniforms and masks went into the yard. Mrs M.M. thought these men belonged to the Russian military. Having spent about half an hour in the applicants’ house, the servicemen left. Then Mrs M.M. saw the first applicant and her daughter stepping outside the house; the two women told her that the servicemen had taken Abubakar and Salman Bantayev away. Mrs M.M. went into the applicants’ house and saw that everything there had been turned upside down.
22. Shortly after Salman Bantayev’s abduction and the meeting with his sister Madina on the way, Shamil Bantayev came over to his mother’s house and told her that Russian servicemen had also taken Abubakar Bantayev away.
23. The first applicant and Shamil Bantayev immediately went to the Gudermes District military commander’s office (the district military commander’s office) and requested information about their relatives from a duty officer who refused to identify himself. The officer replied that he knew nothing about the Bantayev brothers and that he would not bother his superiors in the middle of the night.
24. In the morning of 2 January 2003 the first applicant reported her sons’ disappearance to the Gudermes District department of the interior (the Gudermes ROVD). Later on the same day the police visited the houses of the Bantayev brothers and collected witness statements.
25. The applicants have had no news of Abubakar and Salman Bantayev since 2 January 2003.
26. In support of their statements, the applicants submitted the following documents: witness statement of the first applicant, provided on 27 February 2005; witness statement of the fourth applicant, provided on 2 March 2005; witness statement of the eighth applicant, provided on 2 March 2005; witness statement of the first applicant’s daughter Mrs Madina Bantayeva, provided on 7 November 2003; witness statement of the first applicant’s neighbour Mrs M.M., provided on 23 March 2004; witness statement of the applicants’ relative Mrs A.R., provided on 27 March 2003; hand-drawn map of the first applicant’s house; copies of statements no. 002 and no. 606 issued by the Gudermes FSB and the military commander of the Gudermes district security zone in respect of Abubakar Bantayev and Salman Bantayev accordingly, confirming that they had surrendered their weapons and quitted their participation in illegal armed groups, both documents dated 21 January 2000.
27. The Government did not dispute the circumstances of the abduction of Abubakar and Salman Bantayev. According to their submission, “during the night of 2 January 2003, unidentified persons in camouflage uniforms and masks, armed with automatic weapons, abducted Salman Aliyevich Bantayev from his house at 8 Stalskaya Street and Abubakar Aliyevich Bantayev from his house at 1 Zapadnaya Street in the village of Komsomolskoye in the Gudermes district of the Chechen Republic”.
28. The Government further submitted that the applicants had not been consistent in their description of the facts as, according to the first applicant, the abductors spoke Russian and Chechen, whereas the eighth applicant had stated that they spoke only Russian. According to the Government, communication in Chechen was not typical for representatives of Russian federal forces.
29. Since 2 January 2003 the first applicant has repeatedly applied in person and in writing to various public bodies. She has been supported in her efforts by the SRJI NGO. In her letters to the authorities the first applicant referred to her sons’ detention and asked for assistance and details of the investigation. Mostly these enquiries have remained unanswered, or purely formal replies have been given in which her requests have been forwarded to various prosecutors’ offices. The applicants submitted some of the letters to the authorities and their replies to the Court. These documents are summarised below.
30. On 4 March 2003 the first applicant requested the head of the Chechen administration, the Chechnya prosecutor and the Chechnya military prosecutor to assist her in the search for her sons. In her letter she stated that her sons had been abducted by unidentified men in camouflage uniforms who had arrived in two UAZ vehicles. She also pointed out that her sons had quitted their participation in illegal armed groups in 2000 and that since then they had been law-abiding citizens.
31. On 22 September 2003 the first applicant wrote to the Prosecutor General, the Chechnya prosecutor’s office, the military prosecutor of the United Group Alignment (the military prosecutor of the UGA) and the Chief Federal Inspector of the Southern Federal Circuit in Chechnya requesting assistance in the search for her sons. In her letters she stated that her sons had been abducted by unidentified men in camouflage uniforms who had arrived in two UAZ vehicles. She also pointed out that her sons had quitted their participation in illegal armed groups in 2000 and since then they had been law-abiding citizens. The applicant requested to be informed whether the authorities had brought any charges against her sons and what had been the reasons for their arrest.
32. On 22 September 2003 the first applicant requested the district prosecutor’s office to institute an investigation into her sons’ disappearance and provide her with information about its progress.
33. On 5 November 2003 the SRJI wrote on behalf of the first applicant to the district prosecutor’s office. They stated that the applicant’s two sons had been taken away by representatives of federal forces in camouflage uniforms who had arrived in two UAZ cars. The SRJI requested to be informed whether an investigation into the Bantayev brothers’ disappearance had been instituted and, if so, which investigative measures had been taken to solve the crime. They also requested that the first applicant be granted victim status in the criminal proceedings.
34. On 4 December 2003 the district prosecutor’s office replied to the SRJI stating that the investigation into the Bantayev brothers’ kidnapping had been instituted on 6 January 2003 and that it had been suspended on an unspecified date for failure to identify the culprits. They further noted that victim status in the criminal proceedings had already been granted to Shamil Bantayev.
35. On 20 January 2004 the SRJI requested the district prosecutor’s office to be informed about progress in the investigation, to have the criminal proceedings resumed and to be provided with information about the measures taken to solve the crime. No response was given to this request.
36. The applicants were not informed about any further progress in the criminal investigation.
37. On 2 January 2003 operational search officer A. of the Gudermes ROVD carried out a crime scene examination in the houses of the abducted Bantayev brothers. It does not appear that any evidence was collected from the crime scene.
38. On 6 January 2003 the district prosecutor’s office instituted an investigation into the abduction of Abubakar Bantayev and Salman Bantayev under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was assigned number 32000.
39. On 24 January 2003 the first applicant’s son Mr Shamil Bantayev was granted victim status in the criminal case. On the same date he was questioned by the investigators and testified that Abubakar Bantayev’s children had told him that at about 4 a.m. on 2 January 2003 their father had been abducted by unknown masked men. The abductors had also taken away a number of items of their property and documents. The witness had decided to inform his other brother Salman about Abubakar’s abduction. On the way to his house he had met his sister Madina who had told him that Salman had also been abducted by unidentified armed men who had arrived at their house in UAZ cars. Salman Bantayev’s abductors had also taken away documents and a number of items of property from the applicants’ house, including a video camera.
40. On 27 February 2003 the investigators questioned the applicants’ relative Mr A.Sh. who testified that he did not have any information about the reasons for the abduction of Abubakar and Salman Bantayev; he also stated that he was aware that in the past the brothers had participated in illegal armed groups.
41. On 6 March 2003 the investigation in criminal case no. 32000 was suspended for failure to identify the perpetrators.
42. On 25 December 2003 the deputy Chechnya prosecutor overruled the decision of 6 March 2003 and the investigation was resumed.
43. On 24 January 2004 the first applicant’s daughter, Mrs Madina Bantayeva, was granted victim status in the criminal proceedings and testified that on 1 January 2003 she had arrived at her mother’s house. Her mother was living with her brother Salman and his family. At about 3 a.m. on 2 January 2003 a group of unidentified armed men in masks had arrived at their house in two UAZ cars, which they had parked in the yard. The men entered the house, turned everything upside down, slashed the furniture’s upholstery, bound her hands with adhesive tape and put her with the first applicant in one of the rooms. Madina Bantayeva had not witnessed the abduction, but the eighth applicant had told her that the abductors had demanded money and gold. Madina Bantayeva stated that she had seen from the window the abductors taking away their property. When she had started screaming that their house was being robbed by the intruders, one of them had returned the TV set to the house.
44. On 24 January 2004 the investigation in the criminal case was suspended for failure to identify the perpetrators.
45. On 21 March 2005 the Gudermes district acting prosecutor overruled the decision of 24 January 2004 and the investigation was resumed. The applicants were informed about this decision.
46. On 22 August 2007 the investigators questioned the eighth and fourth applicants as well as Salman Bantayev’s neighbour, Mrs M.M. The eighth applicant testified that on an unspecified date in January 2003 he had woken up and had seen a group of armed masked men in camouflage uniforms in the house. They had demanded money and gold; having spent about twenty minutes in the house, they had left with his father Salman Bantayev. They had also taken away some of their family’s valuables. The fourth applicant testified that on an unspecified date in January 2003 she had woken up and had seen a group of armed masked men in camouflage uniforms. They had demanded money and gold; having spent about twenty minutes in the house, they had left with her father Abubakar Bantayev. They had also taken away their family’s TV set. Mrs M.M. testified that about 3 a.m. on 2 January 2003 she had seen from her window two UAZ cars next to the Bantayevs’ house. A group of seven or eight men in masks and camouflage uniforms had got out of the cars, entered Salman Bantayev’s house and had left about fifteen minutes later.
47. On the same day, i.e. on 22 August 2007, the investigators refused to open criminal proceedings in connection with the unlawful entry into the home and the theft of documents from the houses of Abubakar and Salman Bantayev due to the expiration of the statutory time-limits, but the district prosecutor’s office instituted an investigation into the theft from the houses of Abubakar and Salman Bantayev on the night of their abduction under Article 162 of the Criminal Code (aggravated robbery). The criminal case file was assigned number 15086. The investigators also granted Shamil Bantayev the status of civil plaintiff in criminal case no. 32000. On 23 August 2007 Madina Bantayeva was granted the same status in the criminal proceedings.
48. On an unspecified date the investigators requested information from the Gudermes ROVD about the passage of military vehicles through the checkpoints in the village of Komsomolskoye on the night of the abduction of the Bantayev brothers. According to the response from the ROVD, no passage of military vehicles had been registered that night.
49. According to the Government, the investigators also requested information from various law enforcement agencies in Chechnya concerning the disappearance of the Bantayev brothers. The Temporary Operational Troops of the Ministry of the Interior in Chechnya (временная оперативная группировка МВД РФ в Чечне), the Chechnya FSB and the Northern-Caucasus Operational Headquarters of Ministry of the Interior (Северокавказское оперативное управление МВД РФ) and other agencies submitted that they had no information concerning the whereabouts of the Bantayev brothers. Law enforcement agencies in Chechnya informed the investigators that their agents had not detained Abubakar Bantayev and Salman Bantayev and had not carried out any investigation in respect of them. The brothers had not been detained on administrative or criminal charges. No special operations had been carried out in respect of the disappeared men.
50. The investigation in the criminal case failed to establish the whereabouts of Abubakar and Salman Bantayev. However, it found no evidence to support the involvement of servicemen of federal forces in the abduction of the applicants’ relatives.
51. The Government further submitted that the investigation into the abduction of the Bantayev brothers had been suspended and resumed on several occasions, and so far it had failed to identify the perpetrators. The applicants had been duly informed of all decisions taken during the investigation.
52. Despite specific requests by the Court the Government did not disclose any documents from criminal case no. 32000. The Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings.
53. For a summary of relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, § 67-69, 10 May 2007.
VIOLATED_ARTICLES: 13
2
3
5


ITEMID: 001-5108
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: PIARE v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicant is a Dutch national, born in 1940, and currently serving a prison sentence. He is represented by Mr G. Spong and Mr C.J. van Bavel, both lawyers practising in The Hague and Utrecht respectively.
On 20 July 1994, the applicant was arrested and placed in detention on suspicion of narcotics offences. He remained in detention during the criminal proceedings that were subsequently brought against him.
On 24 November 1994, the Regional Court (Arrondissementsrechtbank) of The Hague handed down its judgment in the applicant’s case.
In its judgment of 21 July 1995, following proceedings on appeal, the Court of Appeal (Gerechtshof) of The Hague, quashed the judgment of 24 November 1994, convicted the applicant of participation in a criminal organisation and of narcotics offences and sentenced him to twelve years’ imprisonment and payment of a fine of NLG. 500,000.
On 26 July 1995, the applicant filed an appeal in cassation with the Supreme Court (Hoge Raad). On 14 May 1996, the applicant’s case-file was received by the Supreme Court. On 3 September 1996, the Supreme Court commenced its examination of the applicant’s appeal in cassation and, by judgment of 7 January 1997, rejected it. The applicant’s sole complaint was that, given the delay between the judgment of the Court of Appeal and the first examination of his appeal in cassation, the criminal proceedings against him had exceeded a reasonable time. The Supreme Court rejected this complaint, holding that the delay complained of was not of such a duration that the reasonable time requirement under Article 6 § 1 of the Convention had been violated.
The judgment of 21 July 1995 thus became final. The date on which the applicant would become eligible for early release was 31 January 2003. On the basis of the contents of a letter addressed by the applicant to the Procurator-General (Procureur-Generaal), which raised certain concerns as to the applicant’s mental health, it was decided to examine the applicant’s situation. To this end he was admitted to the Penitentiary Selection Centre (Penitentiair Selectie Centrum; “PSC”) for a clinical psychological examination. The PSC examination resulted in a finding that the applicant’s affective functioning was laboured, that he displayed an attitude of helplessness, that he was showing narcissistic, dependent and passive-aggressive tendencies and that is was clear that he was very vulnerable in detention and needed guidance and protection.
The applicant was subsequently placed in the Individual Care Unit (Individuele Begeleidingsafdeling; “IBA”) of the Norgerhaven prison, where inmates, who are unable to function in a regular prison environment on grounds of their mental state, are placed.
According to reports of the mental health consultative body (Psychisch Medisch Overleg; “PMO”) of the Norgerhaven prison on the applicant’s situation in detention, the applicant required much attention and care, and had to be stimulated constantly in order not to sink into a serious depression. With the exception of a short period, special surveillance measures had to be taken during the night on grounds of a perceived real risk of suicide.
In September 1998, the applicant filed a request for pardon (gratie) on, inter alia, compassionate grounds in relation to his mental problems caused by his detention. He argued that a continuation of his detention, in view of his resulting mental condition, constituted inhuman treatment. In a letter to the direction of the Norgerhaven prison, the PMO of the Norgerhaven prison supported this request for pardon.
The applicant’s request was further supported in a report dated 2 November 1998 by a rehabilitation officer (reclasseringswerker). This report mentions that the PSC had found that the IBA was the only option for detaining the applicant, as the chances of a suicide were so high that the applicant could too easily escape the attention of the warders working on a regular prison unit. The report further sketches the increasing mental problems of the applicant arising from his feeling to have been convicted unjustly and the detrimental effects of the applicant’s lengthy detention on his family life and his company. The applicant is described as a downcast, unstable and depressive man, who, as a consequence of continuous stress, develops more and more physical problems.
Although the Advocate-General (Advocaat-Generaal) to the Court of Appeal of The Hague had issued a positive opinion as to the applicant’s request for a pardon, the Court of Appeal, on 9 August 1999, advised the Minister of Justice to grant the applicant’s request only in part, i.e. by reducing the sentence from twelve years’ to ten years’ imprisonment.
As the applicant considered that his request for a pardon was not dealt with diligently, he instituted summary proceedings (kort geding) against the Netherlands State before the Regional Court of The Hague. He sought an injunction against the State, ordering the latter to immediately cease the execution of his sentence. He submitted that a continuation of his detention constituted inhuman treatment.
On 31 August 1999, the Regional Court examined the case and heard the parties. In the course of this hearing, the Netherlands State argued that the applicant could avail himself of the possibility of seeking an interruption of sentence (strafonderbreking). Following the parties’ hearing, the Regional Court decided to adjourn its further examination until 22 October 1999.
On the same day, the applicant filed a request for interruption of sentence. In his reply of 23 September 1999, the Minister of Justice noted that the applicant’s request for a pardon was still pending, that, according to a recent opinion of the Psychiatric Advisor to the Ministry of Justice, a further forensic psychiatric and psychological examination of the applicant was required in order to determine his suitability for detention (detentiegeschiktheid) and that, to this end, the PSC had agreed to admit the applicant with priority, namely during the first week of October 1999. The Minister informed the applicant that the decision on his request for interruption of sentence was postponed until the submission of the PSC report.
On 5 October 1999, the applicant was transferred from the Norgerhaven prison to the PSC for an examination of his suitability for detention. In its report of 23 November 1999, the PSC concluded that, on grounds of his mental problems, the applicant’s suitability for detention was reduced to a significant extent and that his request for a pardon warranted support and that only a substantial reduction of his punishment by way of a pardon could reduce the stress factors which maintained the applicant’s adjustment disorder.
On 22 October 1999, the Regional Court resumed its examination in the summary proceedings instituted by the applicant. After having heard the parties’ further submissions, it decided to adjourn its further examination until 24 January 2000.
In the light of the PSC report of 5 October 1999, the applicant’s request was re-submitted to the Court of Appeal of The Hague, requesting the court to consider whether or not these new elements gave reason to the court to alter its advice on the request for pardon.


ITEMID: 001-67559
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF PUOLITAIVAL AND PIRTTIAHO v. FINLAND
IMPORTANCE: 2
CONCLUSION: No violation of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 7. The applicants, Olavi Puolitaival and Esko Pirttiaho, are Finnish nationals who were born in 1945 and 1958 and live in Jääli and Tampere respectively.
8. The applicants were owners of a former company called Konekersantti Oy (hereinafter “the applicants' company”), which was a claimant in civil proceedings initiated on 3 December 1991 against another company called M.R. Ky (hereinafter “the M.R. company”). The proceedings concerned a dispute about the sale of movable property: the M.R. company had refused to pay the applicants' company the purchase price of an engine as they claimed, inter alia, that it did not contain all the components ordered.
9. The lawyer of the M.R. company in the proceedings before the Vaasa District Court and in the lodging of an appeal with the Vaasa Court of Appeal on 4 March 1992 was P.L., who was also at that time a judicial secretary (hovioikeudenviskaali, hovrättsfiskal) at the Vaasa Court of Appeal. Together with her husband, she owned a law firm until 1995. At the material time, P.L. worked part-time for the law firm as a partner, having been given permission to do so by the Court of Appeal.
10. In her notice of appeal of 4 March 1992 on behalf of the M.R. company P.L. submitted to the Court of Appeal, inter alia, that the applicants' company “seems to use concepts quite carelessly in its agreements in general”; that “what is essential about the case is that the seller must not act fraudulently and must not, even in good faith, draw up agreements the contents of which are unclear”; and, further, that “if we follow the logic of the City Court, overcharging is not a crime if you manage to overcharge more than one victim”.
11. The final decision in the above case was given by the Court of Appeal on 22 February 1993 in favour of the applicants.
12. The applicants' company was also the claimant in another set of civil proceedings initiated on 26 February 1992 in the Ylivieska District Court (kihlakunnanoikeus, häradsrätten), in which the respondent was an investment bank. That case concerned the bank's refusal to grant the applicants' company a bank guarantee for acquiring financing from abroad, and compensation for the ensuing loss of business profits. The applicants maintained, inter alia, that their company had been dissolved in 1992 because of the bank's failure to fulfil its contractual obligations. The applicants claimed, inter alia, 9,800,000 Finnish marks (FIM, equivalent to 1,648,242 euros (EUR)) in compensation for the business they had lost.
13. On 3 December 1992 the Ylivieska District Court refused to examine the applicants' claims as it found them to be too unspecific to provide a basis for any court proceedings.
14. On 3 November 1993 the Vaasa Court of Appeal (hovioikeus, hovrätten) remitted the case to the District Court (from 1 December 1993 käräjäoikeus, tingsrätten), finding that the District Court should have examined the applicants' claims. P.L. did not take part in those proceedings.
15. On 25 March 1994 the case was opened for re-examination by the District Court. It found that although the bank had breached its obligations towards the applicants' company, it had not caused the company's liquidation, and dismissed its claims on 30 April 1997.
16. The applicants' company appealed against that decision to the Court of Appeal, which upheld the District Court's decision and dismissed the appeal on 18 August 1998. The bench of the Court of Appeal which examined the case was composed of three judges, including P.L., who was now a judge.
17. The applicants' company requested leave to appeal to the Supreme Court, stating, inter alia, that P.L. was biased as she had taken part in other proceedings in 1992 (the first set of proceedings), in which the opposing party had been represented by the law firm in which P.L. had been a partner at that time. She had, for example, signed her client's submissions to the District Court and to the Court of Appeal.
18. Before making its decision concerning the request for leave to appeal, the Supreme Court requested a statement from P.L. The statement, dated 26 March 1996 (the date was apparently erroneous in that the year should have been 1999), read as follows:
“In addition to full-time judge's duties, I practised law as a partner in a law firm on a part-time basis, with the permission of the President of the Vaasa Court of Appeal, until 1995, when the firm was closed down. Thereafter I have had no part-time duties.
It is true that our law firm represented a client in a civil case between [the M.R. company] and [the applicants' company] before the Vaasa District Court. At that time the pleadings before the District Court were handled by J.I. ... and, after an appeal was lodged with the Court of Appeal, the pleadings before the Court of Appeal were handled by the advocate J.V., as I found that it was not appropriate for me to continue with the case in the Court of Appeal.
At the time of participating in the consideration of the present civil case between [the applicants' company] and the investment bank, I did not even remember that our law firm, which had been closed down, had approximately seven years earlier represented a client in a different case in which [the applicants' company] was the opposing party. Thus, no question of possible disqualification arose to be considered.
My personal view is that, when assessed on objective grounds, [the applicants' company] had no real reason to doubt my impartiality, considering in particular that the period of time between my earlier representation and the decision-making stage in the present case was long, and that there was no factual link between the two cases.”
19. On 11 May 1999 the Supreme Court refused the applicants' company leave to appeal. According to the decision, Judge P.L.'s statement had been communicated to the applicants for information.
20. On 20 April 2000 the applicants applied to the Supreme Court for annulment of the decision, again drawing attention, inter alia, to the alleged bias on the part of P.L. The application was refused by the Supreme Court on 21 May 2001.
21. The provisions concerning the disqualification of judges were at the relevant time contained in Chapter 13, section 1, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken). It contained a list of grounds on which a judge might be disqualified. The relevant provisions concerning the impartiality of judges were subsequently amended (Act no. 441/2001).
22. According to the domestic courts' case-law, the question of possible bias on the part of a judge was addressed, inter alia, by assessing whether his or her earlier activities as legal counsel constituted a justified reason to doubt his or her impartiality.
23. The Supreme Court found in a decision of 8 December 1997 (no. 1997:192) that a judge was not disqualified on the ground that he had earlier assisted one of the parties to the case in separate proceedings, as his duties as a legal representative and counsel did not pertain to the case at hand and his conduct and standpoint in his capacity as counsel or legal representative did not give rise to any objective reason to doubt his impartiality in respect of matters concerning the other party.
24. Chapter 25, section 12 (Act no. 165/1998), of the Code of Judicial Procedure provides that the deadline for lodging an appeal is thirty days from the date when the decision of the District Court was delivered or made available to the parties. Chapter 25, section 12, of the Code of Judicial Procedure, as in force at the relevant time, corresponded in essence to the current provision in the above-mentioned respects.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-85730
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MAJCHER v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant was born in 1934 and lives in Rzeszów.
5. In 1987 the applicant’s wife filed a petition for divorce. The divorce was granted shortly afterwards.
6. On 24 November 1987 the applicant lodged a claim for the division of matrimonial property with the Łańcut District Court (Sąd Rejonowy).
7. On 31 December 1988 the Łańcut District Court gave a decision and divided the property.
8. On an unspecified date the applicant appealed.
9. On 7 November 1989 the Rzeszów Regional Court (Sąd Okręgowy) remitted the case.
10. On 10 March 1998 the Łańcut District Court again gave a decision.
11. On unspecified dates both parties appealed.
12. On 11 September 1998 the Rzeszów Regional Court dismissed both appeals.
13. On 23 October 1998 the applicant lodged a cassation appeal with the Supreme Court (Sąd Najwyższy).
14. On 14 May 2001 the Supreme Court refused to hear the applicant’s cassation appeal.
15. The applicant submitted that as a consequence of the prolonged proceedings in his case he had been deprived of his property and had to live in a Welfare Home (Dom Pomocy Społecznej).
16. On an unspecified date the applicant instituted enforcement proceedings against his wife who apparently had failed to comply with the final decision on the division of their property.
17. On 6 May 1999 the Łańcut Bailiff informed the applicant that the enforcement had proved ineffective.
18. On 10 May 1999 the applicant lodged a complaint with the Łańcut District Court against the actions taken by the bailiff (skarga na czynności komornika). He submitted that those actions had been incorrect, because the money obtained from the debtor had been distributed wrongly. He also complained about the ineffectiveness of the enforcement.
19. On 21 July 1999 the Łańcut District Court dismissed his complaint. It held that the order of distribution had been in accordance with the Code of Civil Procedure. As regards the ineffectiveness of the enforcement, the court held that no valuable objects had been found in the debtor’s house which could be sold and used to satisfy the debt.
20. On an unspecified date the applicant appealed.
21. On 21 July 1999 the Rzeszów Regional Court dismissed his appeal.
22. The legal provisions applicable before the entry into force of the 2004 Act as well as matters of practice concerning the remedies against unreasonable length of proceedings are set out in paragraphs 26-35 of the judgment delivered by the Court on 30 May 2006 in the case of Barszcz v. Poland no. 71152/01.
23. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V; Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII; and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
VIOLATED_ARTICLES: 6


ITEMID: 001-112079
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: ZVEREV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 1. The applicant, Mr Aleksandr Anatolyevich Zverev, is a Russian national, who was born in 1956 and lived until his arrest in Moscow. The Russian Government (“the Government”) are represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. In 2001 the criminal proceedings were initiated against the applicant on suspicion of aggravated kidnapping and aggravated accessory to murder. On 22 May 2001 he was remanded in custody.
4. On 9 April 2004 the Moscow City Court gave judgment of conviction. The applicant was found guilty of aggravated kidnapping and aggravated accessory to murder and sentenced to eighteen years’ imprisonment.
5. The applicant and his defence lawyer lodged an appeal. On 13 October 2004 the Supreme Court of the Russian Federation upheld the conviction and the sentence in full.


ITEMID: 001-5626
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: DE PARIAS MERRY v. SPAIN
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant [Mr Alfonso de Parias Merry] is a Spanish national who was born in 1941 and lives in Seville. Before the Court he was represented by Mr M. Bravo-Ferrer Delgado, of the Madrid Bar.
The facts, as submitted by the applicant, may be summarised as follows.
On 30 March 1992 the Financial Inspectorate of the Junta de Andalucía (the autonomous regional government) drew up a non-compliance report on the applicant on the ground that as the lessor of a number of business premises he had failed to deposit with the Cadiz Chamber of Urban Property, as required by the provisions of the Junta’s Decree no. 266/84 of 10 October 1984, the sums corresponding to the statutory securities paid to him by his tenants, a total of 1,878,400 pesetas.
By a decision of 23 November 1993 the Junta ordered the applicant to deposit the sum corresponding to the securities and to pay a fine of the same amount. He was informed that in the event of failure to comply notice-to-pay proceedings would be brought against him for recovery of the debt (recaudación por vía de apremio).
The applicant appealed against the above decision to the Andalusia High Court arguing in particular that the obligation to deposit sums equivalent to the securities with a public institution in the form of a deposit without interest breached Article 33 of the Spanish Constitution, which guarantees the right of property and to peaceful enjoyment of possessions, and Article 14, which guarantees the principle of equality before the law. By a judgment of 1 October 1996, served on the applicant on 19 November 1996, the Andalusia High Court dismissed the appeal, holding, firstly, that the general interest and the social dimension of the right to housing justified certain inequalities with regard to leases, and secondly that the social function of the right of property could also justify restrictions on the right to dispose of certain possessions, regard being had to the fact that the funds thus deposited were used to finance housing policy.
The applicant lodged a recurso de amparo with the Constitutional Court, appealing against the above judgment and alleging in particular the breach of Articles 24 § 1 (right to a fair hearing), 25 § 1 (principle that offences and penalties must be defined by law) and 33 § 3 (right to peaceful enjoyment of possessions) of the Spanish Constitution. By a decision of 19 May 1997, served on the applicant on 22 May 1997, the Constitutional Court dismissed this appeal. With regard to the complaint of an infringement of the right to peaceful enjoyment of possessions (Article 33 of the Constitution), it observed that, according to Article 161 § 1 (b) of the Constitution and section 41(1) of the Institutional Law on the Constitutional Court, the right protected by Article 33 was not one of those which could form the subject of a recurso de amparo. As regards the complaints under Articles 24 § 1 and 25 § 1 of the Constitution, the Constitutional Court ruled that they were manifestly ill-founded.
“1. The Constitutional Court shall have jurisdiction throughout Spanish territory and it is empowered to hear:
...
(b) individual appeals for protection (amparo) on account of infringement of the rights and freedoms contemplated in Article 53 § 2 of the Constitution in the cases and the forms prescribed by law;
...”
“1. The rights and freedoms set forth in Articles 14 to 29 of the Constitution may form the subject of a recurso de amparo in the cases and the forms defined by the present Law... Identical protection shall be afforded to the right to conscientious objection recognised in Article 30 of the Constitution.
...”


ITEMID: 001-93430
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: RAMBUS INC. v. GERMANY
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant company, Rambus Inc., is a company incorporated in the United States of America. It was represented before the Court by Mr V. Henke, a lawyer practising in Hamburg.
The applicant was the proprietor of a European patent in the area of chip technology. The patent was contested in an opposition proceeding before the European Patent Office (“EPO”). At first instance, on 10 September 2002 the Opposition Division of the EPO maintained the patent in an amended (limited) form, that is, the proprietor added further features to the granted claims of the patent in order to meet the requirements of the European Patent Convention. The decision was appealed against by all parties to the proceedings. The applicant requested that the patent be upheld unamended, or, by way of auxiliary request, that it be maintained in accordance with one of six sets of amended claims filed with the grounds.
On 14 November 2003, the Board of Appeal of the EPO summoned the parties to oral proceedings to commence on 10 February 2004. The Board of Appeal indicated that it “may disregard evidence which is not submitted in good time prior to the oral proceedings.” It added that the same applied to amendments to the patent documents, which “should be filed as early as possible (at least one month before the date set for the oral proceedings).” On 9 January 2004, one day before the expiry of the time-limit, the applicant filed 19 new auxiliary requests. In the course of the oral proceedings the applicant withdrew its previous main request and all but five auxiliary requests. It requested that the decision under appeal be set aside and that the patent be maintained in its amended form on the basis of the five remaining auxiliary requests.
By letter dated 12 January 2004 one of the opponents filed new prior art documents. The opponents requested that the decision under appeal be set aside and the patent revoked.
As to the procedural issues, the opponents further argued that those of the nineteen requests filed on 9 January 2004 which opened up new issues were inadmissible, as they had not been lodged in due time. The applicant argued that the requests were admissible since they had been presented within the time-limit set by the Board of Appeal in the summons to oral proceedings.
At the end of the oral proceedings, on 12 February 2004, the Board of Appeal quashed the decision under appeal and revoked the patent.
It rejected three of the applicant’s (auxiliary) requests as inadmissible. Referring to two previous decisions, not published in the Official Journal of the EPO (“OJ EPO”), and to Article 11 § 6 of the Rules of Procedure of the Boards of Appeal (see relevant law below), the Board considered that requests filed at a point in time just before the minimum period set by the board in a summons to oral proceedings were to be regarded as belated if they raised issues which would require a further written phase in order to be properly dealt with. The Board further noted that, regardless of whether the opponents had been familiar with all the technical issues, they had not accepted that the invention according to the auxiliary requests was patentable. Thus, the divergent features would still have required extensive discussions.
The Board also rejected the applicant’s two remaining requests. In its reasoning it also took into account the documents filed by the opponents on 12 January 2004. With regard to the admissibility of these documents the Board found that their slight lateness had been of no importance and admitted them into the proceedings. It argued that it could always exercise certain discretion to admit documents and that there had been sufficient time left for all parties to study the documents. The written version of the decision was served on the applicant’s representative on 14 May 2004.
On 9 June 2004 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for adjudication. Referring to its caselaw establishing the principle that it would refrain from exercising its jurisdiction as long as the protection received within the framework of the European Patent Organisation fundamental rights was in general equivalent to the standard of the German Constitution, it held that the applicant had failed to sufficiently demonstrate that the fundamental rights protection within the European Patent Convention did not meet this standard.
The European Patent Organisation is an intergovernmental organisation that provides for an autonomous protection mechanism for individual inventors and companies seeking uniform patent protection in up to 38 European countries. When the events at issue occurred, the European Patent Convention 1973 was in force. A revised version of the European Patent Convention entered into force on 13 December 2007.
Article 2 of the European Patent Convention 1973 reads as follows:
“(1) Patents granted by virtue of this Convention shall be called European patents.
(2) The European patent shall, in each of the Contracting States for which it is granted, have the effect of and be subject to the same conditions as a national patent granted by that State, unless otherwise provided in this Convention.”
Article 64 of the European Patent Convention 1973 provides:
“(1) A European patent shall, subject to the provisions of paragraph 2, confer on its proprietor from the date of publication of the mention of its grant, in each Contracting State in respect of which it is granted, the same rights as would be conferred by a national patent granted in that State.
(2) ...
(3) Any infringement of a European patent shall be dealt with by national law.”
Article 68 of the European Patent Convention 1973 provides:
“The European patent application and the resulting patent shall be deemed not to have had, as from the outset, the effects specified in Articles 64 and 67, to the extent that the patent has been revoked in opposition proceedings.”
The European Patent Convention leaves it open to the Member States to provide for their own national patent protection system. Germany provides for such a protection mechanism with the Patent Act (Patentgesetz) and the German Patent and Trade Mark Office (Deutsches Patent- und Markenamt). Neither the European Patent Convention nor the German Patent Act exclude a patentee from applying under the other protection mechanism. Article 139 of the European Patent Convention 1973 provides:
“(1) In any designated Contracting State a European patent application and a European patent shall have with regard to a national patent application and a national patent the same prior right effect as a national patent application and a national patent.
(2) A national patent application and a national patent in a Contracting State shall have with regard to a European patent in which that Contracting State is designated the same prior right effect as they have with regard to a national patent.
(3) Any Contracting State may prescribe whether and on what terms an invention disclosed in both a European patent application or patent and a national application or patent having the same date of filing or, where priority is claimed, the same date of priority, may be protected simultaneously by both applications or patents.”
With regard to appeals to the Enlarged Board of Appeal, Article 112 § 1 of the European Patent Convention 1973 provides as follows:
“(1) In order to ensure uniform application of the law, or if an important point of law arises:
(a) the Board of Appeal shall, during proceedings on a case and either of its own motion or following a request from a party to the appeal, refer any question to the Enlarged Board of Appeal if it considers that a decision is required for the above purposes. If the Board of Appeal rejects the request, it shall give the reasons in its final decision;
(b) the President of the European Patent Office may refer a point of law to the Enlarged Board of Appeal where two Boards of Appeal have given different decisions on that question.”
Article 11 § 6 of the Rules of Procedure of the Boards of Appeal (OJ EPO 2003, 89) in force at the relevant time provides:
“(6) The Board shall ensure that each case is ready for decision at the conclusion of the oral proceedings, unless there are special reasons to the contrary. Before the oral proceedings are closed, the decision may be announced orally by the Chairman.”


ITEMID: 001-82671
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: PAEFFGEN GMBH v. GERMANY
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Paeffgen GmbH, is a limited liability company possessing legal personality under German law. It was represented before the Court by Mr B. Hoeller and colleagues, lawyers practising in Bonn.
The applicant company sells construction materials, but is also engaged in e-commerce. It held several thousand internet domain names which had been registered by the competent registration authority (DENIC e.G.) after payment of the respective fees (currently EUR 58 per domain registration and EUR 58 per year for the connectivity and administration of the domain by DENIC e.G.). In particular, in 1997 and 1998 the applicant successfully applied for the registration of the domains “freundin-online.de”, “ad-acta.de”, “Eltern-online.de” and “duck.de”.
The domain contracts concluded with DENIC e.G. granted the applicant the exclusive right to use or dispose of the domains registered. According to terms of the contract, DENIC e.G. did not examine whether the registration and use of the domain infringed the rights of others, which was a matter for the domain holder to verify. The contracts were open-ended and could be terminated by the domain holder without notice and by DENIC e.G. for good cause (such as the final finding of a court that the registration of the domain in question violated the rights of others or the contracting party’s failure to pay the domain fees).
Subsequently, several sets of proceedings were brought against the applicant by other companies and private individuals claiming that the registration and use by the applicant of certain domains breached their trademark rights and / or their rights to a (business) name.
On 4 October 2002 the Freundin Verlag GmbH, publisher of the women’s magazine “freundin” (“(girl)friend”) and licensed holder of the trademark “freundin”, brought an action in the Munich Regional Court for a court order prohibiting the applicant to use or dispose of the internet domain “freundin-online.de” and obliging the applicant to apply for a cancellation of this domain with the registration authority. It argued that the applicant breached its right to a business denomination and its trademark rights.
By decision of 20 February 2003 the Munich Regional Court separated two counterclaims brought by the applicant from the plaintiff’s claim. It argued that, contrary to the plaintiff’s action, the counterclaims, which had only been served in the hearing on 16 January 2003, were not yet ready for a decision.
In its judgment delivered on the same day the Munich I Regional Court, relying on section 15 §§ 3 and 4 of the Trademark Act (Markengesetz; see Relevant domestic law below), allowed the plaintiff’s action.
The Regional Court found that the magazine title “freundin” was a well-known business denomination as the women’s magazine, which addressed the general public with the issues it covered, had been sold in all newspaper stands for at least thirty years. Moreover, the plaintiff published the contents and services of its magazine on the website “freundin.de”. The applicant was unfairly taking advantage of the distinctiveness of the plaintiff’s business denomination for its internet platform without justification. As the applicant had failed to explain why it did not use its domain “freundin-online.de”, the respective website being “under construction” for years, the court concluded that the company had only “grabbed” this domain in order to sell it to the plaintiff which could then use the domain. As the applicant also had not set out what future use exactly it intended for the website at issue – the company had only announced that an internet portal should be created on which everyone having a connection with the domain name could present himself free of charge –, there was a risk that it would use the site in one of numerous possible manners which infringed the plaintiff’s rights. Therefore, the scope of the orders against the applicant could not be less broad.
By decision of 16 October 2003 the Munich Court of Appeal, having considered the parties’ written submissions, dismissed the applicant’s appeal. It found that the case did not raise a legal issue of fundamental importance, that its judgment was not necessary for the development of the law or for securing the uniform application of the law and that, for the reasons given by the Regional Court, the appeal was ill-founded.
The Court of Appeal further argued that the separation of the applicant’s two counterclaims from the plaintiff’s claim had complied with the applicable legal provisions and had neither been arbitrary nor breached the applicant’s right to be heard. The counterclaim against both the plaintiff and a third party company, by which the applicant pursued a partial cancellation of the word mark “freundin”, was irrelevant to the present proceedings as the scope of that word mark had not been relied upon by the Regional Court or by itself, the decision having been based on the protection of the plaintiff’s business denomination. The applicant’s counterclaim against the plaintiff alone for a declaration that the use by the applicant of the domain in order to sell computer discs did not breach the plaintiff’s rights was no more than a contestation of the plaintiff’s claim and had as such been taken into consideration in the Regional Court’s judgment. The applicant had, however, failed to demonstrate that it could use the domain in question in a way which did not breach the plaintiff’s rights.
On 21 November 2003 the applicant lodged a complaint with the Federal Constitutional Court. It submitted that the decisions taken by the civil courts had breached its right to be heard and to a fair trial due to the separation of its counterclaims from the plaintiff’s claims and by dismissing its appeal by way of a decision. Moreover, its right to property had been violated in that it was prohibited to use its domain “freundin-online.de” and obliged to apply for its cancellation.
On 12 January 2004 the Federal Constitutional Court, referring to the provisions allowing for that procedure, declined to consider the applicant’s constitutional complaint without giving reasons for its decision (file no. 1 BvR 2377/03). The decision was served on the applicant’s counsel on 14 January 2004.
In 2000 the ad-acta Datenschutz und Recycling GmbH, a company dealing with the destruction of files and data media, brought an action for a court order prohibiting the applicant to use the domain name “ad-acta.de” and obliging it to apply with the registration authority for a cancellation of that domain. It argued that the applicant breached its right to a business name and its trademark rights.
On 8 November 2000 the Düsseldorf Regional Court, relying on the right to protection of one’s name under section 12 of the Civil Code (see Relevant domestic law below), allowed the plaintiff’s action.
On 29 October 2001 the Düsseldorf Court of Appeal dismissed the applicant’s appeal. It found that the plaintiff had a claim under section 15 §§ 2 and 4 of the Trademark Act and section 12 of the Civil Code (see Relevant domestic law below) for the applicant to refrain from using the domain name “ad-acta.de”. The term “ad-acta” was part of the plaintiff’s business name. The use of the internet address “ad-acta.de” by the applicant company, which intended to offer definitions and advertisements concerning the storing and destruction of files on its website, was likely to lead to confusion with the plaintiff’s company and infringed the plaintiff’s right to a name. In order to have the interference with its rights removed, the plaintiff could also request the applicant to agree to the cancellation of its domain name with the registration authority.
On 13 June 2002 the Federal Court of Justice refused to grant the applicant leave to appeal on points of law, finding that the appeal had no prospects of success.
On 18 July 2002 the applicant lodged a constitutional complaint with the Federal Constitutional Court. It complained, in particular, that its right to property had been breached and that the civil courts had failed to consider its arguments relating to the violation of this right.
On 24 November 2004 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 1 BvR 1306/02). It found that the complaint had no prospects of success because the impugned decisions did not violate the applicant’s property rights.
Its contract with the registration authority provided that the applicant had a right to use the domain in question, which constituted “property” under the Basic Law. However, the application to the present case of the relevant provisions of the Trademark Act was a limitation on the applicant’s property rights which was compatible with the Basic Law. In particular, the applicant’s duty to apply for a cancellation of its domain with the registration authority did not disproportionately limit its property rights. There were no measures which would be less restrictive while fully satisfying the legitimate interests of the company holding the trademark rights to stop the interference with its rights. The danger of confusion could not sufficiently be averted, for example, by indications given on a website operated by the applicant under the domain name in question.
The decision was served on the applicant’s counsel on 6 December 2004.
On 8 August 2001 the Gruner + Jahr AG & Co. KG, which has published the magazine “Eltern” (“parents”) monthly since 1966 and has run the website “Eltern.de” since 1997, brought an action against the applicant company in the Hamburg Regional Court. It applied for an order prohibiting the applicant from using or to authorising others to use the domain name “eltern-online.de” and obliging the applicant to apply with the registration authority for a cancellation of that domain. It argued that the applicant breached its trademark rights.
On 5 August 2002 the Hamburg Regional Court, relying on section 15 §§ 2 and 4 of the Trademark Act, allowed the plaintiff’s action.
On 31 July 2003 the Hamburg Court of Appeal dismissed the applicant’s appeal. It argued that there was a danger of confusion between the domain name “eltern-online.de” registered by the applicant and the business denomination “Eltern” of the plaintiff’s magazine within the meaning of section 15 §§ 2 and 4 of the Trademark Act. In order to have the interference with its rights removed, the plaintiff could also request the applicant to agree to the cancellation of its domain name with the registration authority.
On 19 February 2004 the Federal Court of Justice dismissed the applicant’s complaint about the Court of Appeal’s refusal to grant it leave to appeal on points of law.
On 23 March 2004 the applicant lodged a constitutional complaint with the Federal Constitutional Court in which it complained, in particular, that its property rights had been breached by the decisions of the civil courts and that the civil courts had failed to consider its arguments concerning the violation of these rights.
On 24 November 2004 the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 1 BvR 650/04). The decision was served on the applicant’s counsel on 6 December 2004.
In 2001 Mr Peter Duck, an architect who had been working under the business name “Architekturbüro Duck” (“architecture office Duck”) since 2000, brought an action in the Munich Regional Court for a court order prohibiting the applicant to use or dispose of the domain name “duck.de” and obliging the applicant to apply with the registration authority for the cancellation of that domain. He argued that the applicant breached his right to a name and his trademark rights.
On 26 April 2001 the Munich I Regional Court allowed the plaintiff’s action.
On 10 January 2002 the Munich Court of Appeal dismissed the applicant’s appeal. The domain name contained the plaintiff’s family name and the applicant had failed to give sound reasons outweighing the plaintiff’s interests why it made use of the name. In particular, if the applicant company, as it had claimed, wanted to create a website concerning the duck as an animal or aliment, it was free to use the German expression for duck or a different denomination which was not likely to lead to confusion with the plaintiff’s name. As the applicant had spent less than 3,000 marks in domain fees and had not posted any contents on the internet under the domain name in question, its possession did not warrant protection.
The Federal Court of Justice subsequently refused to grant the applicant leave to appeal on points of law.
On 20 September 2002 the applicant lodged a complaint with the Federal Constitutional Court. It argued, in particular, that its property rights had been breached by the decisions of the civil courts and that the civil courts had failed to consider its arguments concerning the violation of these rights.
On 24 November 2004 the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 1 BvR 1774/02). The decision was served on the applicant’s counsel on 6 December 2004.
Section 12 of the Civil Code, which concerns the right to bear a name, provides that if someone contests the holder’s right to use a name or interferes with the holder’s interest by using the same name without justification, the holder may claim removal of the interference. If there is a risk of repeated interferences the holder may bring an action for a permanent injunction.
Section 15 of the Trademark Act lays down the rights of holders of a business denomination (geschäftliche Bezeichnung). It is prohibited for third parties to use the business denomination or a similar mark without justification in the course of business activities in a manner which may lead to confusion with the protected denomination (section 15 § 2).
Section 15 § 3 of the Trademark Act concerns business denominations which are well-known within the domestic territory. It is prohibited for third parties to use these business denominations or a similar mark in the course of business activities also if there is no danger of confusion within the meaning of paragraph 2 in so far as the use of the denomination unfairly exploits or interferes with the distinctiveness or esteem of the protected business denomination without justification.
According to section 15 § 4 of the Trademark Act, the holder of a protected business denomination may bring an action to cease and desist against anyone who uses a business denomination or a similar mark contrary to paragraphs 2 or 3.


ITEMID: 001-67627
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: DUBJAKOVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mrs Helena Dubjaková, is a Slovakian national, who was born in 1954 and lives in Trebišov. She is represented before the Court by Mr Juraj Füzer, a lawyer practising in Trebišov.
In 1989 the Humenné District Court (Okresný súd) pronounced the dissolution of the applicant's marriage.
On 31 May 1990 the applicant petitioned to the District Court for a division of the matrimonial property.
On 10 October 1994, in reply to the applicant's complaint, the President of the District Court acknowledged that there had been unjustified delays in the proceedings.
On 12 October 1994 the District Court sought evaluation by two sworn experts of the movable and immovable property in dispute. The reports were submitted on 26 January and 13 April 1995 respectively.
A hearing scheduled for 1 April 1996 had to be adjourned as, due to health problems, the defendant (the applicant's former husband) could not appear.
The District Court held hearings on 25 November 1996, 17 October 1997 and 7 April 1998.
On 15 April 1998, following a hearing held on the same day, the District Court divided the property. On 26 June 1998 it corrected clerical errors in its judgment.
On 26 August 1998 the defendant filed an appeal. On 10 September 1998 the District Court sent a copy of the appeal to the applicant. On 13 October 1998 the applicant filed her observations in reply. On 16 October 1998 the District Court submitted the casefile to the Prešov Regional Court (Krajský súd) for a decision on the appeal.
On 8 February 1999 the Regional Court quashed the District Court's judgment. It found that the District Court had failed to establish the facts of the case adequately and that there had been several formal errors in its judgment. It remitted the case to the District Court for reexamination and instructed it to establish carefully the subjectmatter of the proceedings.
On 24 February 2000 the District Court held a hearing. On 20 February 2002 the applicant demanded that the District Court determine the matter speedily. On 21 March 2002 the case was assigned to another judge. On 15 October 2002 the applicant again demanded that the District Court deal with her case promptly. On 18 November 2002 the District Court held a hearing at which it heard the parties.
On 22 November 2002 it again divided the property. The judgment became final and binding on 16 December 2002.
On 28 February 2000 the applicant lodged a petition (podnet) with the Constitutional Court (Ústavný súd) objecting to undue delays in the above proceedings. On 5 April 2000 the petition was declared admissible.
On 1 June 2000 the Constitutional Court found that the District Court had violated the applicant's right under Article 48 (2) of the Constitution to a hearing without unjustified delay. The Constitutional Court observed that it had jurisdiction ratione temporis to consider only the period after 15 February 1993 when it had been established. However it took into account the state of the proceedings at that time. The case was neither legally nor factually complex. The applicant's conduct did not contribute substantially to the length of the proceedings. The District Court failed to deal with the case with the requisite efficiency having regard to, in particular, the fact that the applicant was divorced, had the sole custody over two minor children and was principally claiming ownership of the house where she had once lived with her family. Upon service of the Constitutional Court's finding (nález) on the applicant and the District Court, it became final and binding on 8 June 2000.
On 10 October 2002 the applicant lodged a complaint (sťažnosť) with the Constitutional Court pursuant to Article 127 of the Constitution as in force since 1 January 2002. She objected that, despite the Constitutional Court's finding of 1 June 2000, there had been no progress in her case. She invited the Constitutional Court to find a recurring violation of her right under Article 48 (2) of the Constitutional Court to a hearing without unjustified delay, to order the District Court to proceed with her case without delay, to award her 422,431 Slovakian korunas (SKK) in just satisfaction and to order the District Court to reimburse her legal costs. On 23 October 2002 her complaint was declared admissible.
On 11 December 2002 the Constitutional Court found a violation of the applicant's constitutional right. This finding formally concerned only the period after 8 June 2000 when its first finding of 1 June 2000 had become final and binding. The Constitutional Court observed that in the period between 8 June 2000 and 15 October 2002 (2 years, 4 months and 7 days) the District Court had been completely inactive. It also took notice of the fact that the total length of the proceedings was more than 12 years and that there had already been one finding of a violation of the applicant's right to a hearing without unjustified delay in the case. The Constitutional Court found no reasons to justify the length of the proceedings by the complexity of the case or by the applicant's conduct. It awarded the applicant SKK 50,000 by way of just satisfaction in respect of nonpecuniary damage and dismissed her remaining claims.
Article 48 (2) provides, inter alia, that every person has the right to have his or her case tried without unjustified delay.
Pursuant to Article 130 (3), as in force until 30 June 2001, the Constitutional Court could commence proceedings upon a petition lodged by a natural or legal person claiming that their rights had been violated.
According to its caselaw under the former Article 130 (3) of the Constitution, the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner's rights under Article 48 (2) of the Constitution. It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found.
As from 1 January 2002, the Constitution has been amended in that, inter alia, natural and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127. Under this provision, the Constitutional Court has the power, in the event that it finds a violation of Article 48 (2) of the Constitution, to order the authority concerned to proceed with the case without delay. It may also grant adequate financial satisfaction to the person whose constitutional rights have been violated as a result of excessive length of proceedings (for further details see, e.g., Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22 October 2002).


ITEMID: 001-22391
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: S.R. v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Iranian national, who was born in 1963 and lives in Sweden. He was represented before the Court by Mr K. Jönsson, a lawyer practising in Stockholm. The respondent Government were represented by Mr L. Magnuson, Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 17 August 1988 the applicant arrived in Sweden and requested asylum. According to a memorandum written by the police authority in Stockholm the same day, the applicant stated that he had served four months in the military at the frontline in the war between Iran and Iraq but had deserted two months before his arrival in Sweden. Furthermore, he was a Mujahedin supporter and had distributed, inter alia, leaflets for this organisation. The authorities were not aware of his activities, however. A more comprehensive interview was held by the police authority in Lycksele on 12 December 1988. On that occasion, the applicant stated that he had been doing his military service in Iran as from April 1987 but had deserted in July 1988 after having been informed that he would be sent to the frontline. The applicant stated also that, although not formally a member of the Mujahedin, he had supported the organisation and taken part in its activities, inter alia by distributing leaflets and publications. He had started his activities in September/October 1987 while he was in military service. Allegedly, the Iranian authorities had eventually learned about the activities – revolutionary guards had found leaflets at his family’s home – and were therefore going to send him to the frontline. He decided to flee and so, after having been in hiding in Iran for some time, he left the country. His brother had been arrested by the revolutionary guards when they searched the family’s home and had not been released. However, the applicant had never been detained himself. The applicant alleged that, if returned to Iran, he would be executed as he had deserted from his military service and had been active for the Mujahedin.
On 23 March 1989 the National Immigration Board (Statens Invandrarverk) granted the applicant a permanent residence permit in Sweden. He was also provided with a Swedish alien’s passport. The Board did not find the applicant to be a refugee but nevertheless considered that, due to the prevailing political situation in Iran, there were compelling reasons not to return him to that country.
Allegedly, the applicant continued his political activities for the Mujahedin in Sweden by, inter alia, organising and participating in demonstrations.
In February 1994 the applicant was arrested and charged with drug trafficking involving four and a half kilograms of heroin. The District Court (tingsrätten) of Stockholm obtained an opinion of the National Immigration Board, dated 26 April 1994, in which the Board stated that, although Iranian authorities treated drug offences severely, the applicant would not risk being prosecuted again in Iran for the crimes that he had committed in Sweden. The Board thus concluded that there were no impediments to expel him to Iran.
By a judgment of 19 May 1994 the District Court found the applicant guilty of the charges brought against him and convicted him of an aggravated drug offence and of an attempted aggravated drug offence. He was sentenced to nine years’ imprisonment. Also, his expulsion from Sweden was ordered with a permanent prohibition on his return. With respect to the expulsion, the Court noted that the applicant’s sister was living in Sweden but that he had no other connection to the country. It had regard also to the severity of the crimes of which he had been convicted.
The applicant and the public prosecutor appealed against the judgment to the Svea Court of Appeal (Svea hovrätt). The applicant maintained his innocence and submitted in addition that an expulsion to Iran would expose him to a risk of persecution and ill-treatment by the Iranian authorities on account of his activities within the Mujahedin organisation in Iran and Sweden. He claimed also that he risked long imprisonment due to his desertion from the Iranian army.
By a judgment of 15 July 1994 the Court of Appeal upheld the applicant’s conviction and increased the sentence to ten years’ imprisonment. Furthermore, agreeing with the reasoning of the District Court, the appellate court upheld the expulsion order.
On 5 August 1994 the applicant applied for leave to appeal to the Supreme Court (Högsta domstolen). He maintained what he had submitted to the Court of Appeal relating to the risks facing him upon return to Iran and added that he could be prosecuted again in Iran for the drug offences in question and that he could be punished also for having taken part in the trafficking of asylum seekers from Iran to Turkey. He claimed that he would risk the death penalty if he were to be returned.
Leave to appeal was refused by the Supreme Court on 22 August 1994.
On 21 September 2000, shortly before the applicant’s release on probation, the police authority in Stockholm contacted the applicant concerning his expulsion from Sweden. The applicant stated that he wished to return to Iran and that he would contact the Iranian Embassy in Sweden in order to obtain a passport. He would thus not oppose his expulsion. A week later, the applicant not having been in contact with the embassy, the police authority called the embassy and was informed that they wished to meet the applicant in person. The applicant was escorted by policemen to the meeting which took place on 29 September. According to a police memorandum of 24 October, the meeting went well. At a later contact, however, the embassy required that the applicant write a “life resumé” in order to get a laissez-passer. The applicant refused to do this and stated that he would no longer return to Iran voluntarily.
On 8 October 2000 the applicant was released on probation. He was immediately detained with a view to his deportation to Iran.
On 26 October 2000 the applicant requested the Stockholm police authority to refrain from deporting him and to inform the Migration Board (Migrationsverket; previously the National Immigration Board) that there were impediments to his deportation. The applicant referred to Article 3 of the Convention and to the same circumstances as submitted to the courts during his trial. He stated that it had become apparent during the expulsion proceedings that the Iranian Embassy was aware of his asylum application. He referred also to the embassy’s requirement that he submit a statement giving details about his life, which he had not dared to do.
Having been informed by the police authority that they would not stay the deportation or refer the matter to the Migration Board, the applicant petitioned the Government under chapter 7 section 16 of the Aliens Act (Utlänningslagen, 1989:529). This provision empowers the Government to revoke an expulsion order that has been imposed as a consequence of a criminal conviction, if it finds that the order cannot be enforced or there are other special reasons against upholding the order.
On 20 November 2000 the Government stayed the enforcement of the expulsion order until further notice following the Court’s indication of 13 November 2000, under Rule 39 of the Rules of Court, that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to expel the applicant to Iran.
On 29 November 2000 the applicant obtained an opinion from Mr S. Mahmoudi, professor in international law at the University of Stockholm, which has subsequently been forwarded to the Government. In addition to giving an account of relevant Iranian legislation, Professor Mahmoudi made, inter alia, the following observations in regard to the applicant’s situation. As the Iranian authorities could be expected to know about the applicant’s asylum application and the reasons for his expulsion from Sweden, it is likely that he would be thoroughly questioned upon return to Iran. It is possible for the Iranian authorities to prosecute the applicant for the drug offences, although he has already been convicted and has served his sentence in Sweden. Previously, many people were sentenced to death and executed for drug offences, but today the usual practice is to impose long prison sentences. The death penalty is used only in a few cases involving repeated and organised large-scale drug trafficking. The applicant could also be sentenced to pay fines for having left Iran illegally and for having taken part in the trafficking of asylum seekers from Iran and he would risk a prison sentence for his desertion from the army. His involvement in Mujahedin activities is more difficult to assess; generally, however, the efforts of the Iranian authorities are mainly directed towards those who are more active members and have used arms against Government troops. Professor Mahmoudi maintained, however, that any prediction as to the outcome of a criminal case in Iran is difficult due to the courts’ arbitrary application of the laws. He thus concluded that it could not be excluded that the applicant would be sentenced to death. In any event, there is an apparent risk that he would be sentenced to imprisonment for life or for a very long period of time or to corporal punishment for the drug offences committed in Sweden and other crimes allegedly committed in Iran.
On 19 December 2000, at the request of the Government, the Migration Board gave its opinion on the applicant’s petition for the expulsion order to be revoked. The Board stated that, according to consistent Iranian case-law, the Iranian courts do not consider a criminal case when the person involved has already been convicted and served his or her prison sentence abroad. The Board therefore maintained the assessment made to the District Court on 26 April 1994 that there were no impediments to the applicant’s expulsion to Iran.
The applicant’s petition for a revocation of the expulsion order is still pending before the Government.
On 6 December 2000 the Government decided that the applicant be released from detention. Instead, an obligation to report to the police three times per week was imposed on the applicant in accordance with chapter 6 section 5 of the Aliens Act. By a decision of 5 June 2001 this obligation was changed to two occasions per week. A decision of 4 December 2001 did away with the reporting obligation but ordered the applicant to hand in his passport to the local police authority if that had not already been done.