ITEMID: 001-57953
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF BRITISH-AMERICAN TOBACCO COMPANY LTD v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1;Not necessary to examine Art. 13;No separate issue under P1-1
JUDGES: John Freeland;N. Valticos
TEXT: 7. The applicant company are a limited liability company established under the law of the United Kingdom. Their business includes the manufacture and sale of tobacco products.
8. On 14 May 1986 the applicant company, acting through a Netherlands patent agent, filed a patent application with the Netherlands Patent Office (Octrooiraad). They claimed priority as from 24 May 1985 on the basis of a patent application filed in the United Kingdom (Article 4 of the 1883 Paris Convention for the protection of industrial property, as revised ("the Paris Convention") - see paragraph 18 below).
The application, which concerned a cigarette, comprised nine claims (conclusies). It was laid open to public inspection (terinzagelegging; section 22C of the Patent Act (Rijksoctrooiwet) - see paragraph 34 below) on 16 December 1988.
9. On 15 May 1987, following a request to that effect by the applicant company (section 22I of the Patent Act - see paragraph 35 below), the Patent Office sent the applicant company a search report listing four patent publications as background to the state of the art. Two of these publications had been published after the date from which priority was claimed but before the filing date in the Netherlands.
10. Following a request (section 22J of the Patent Act - see paragraph 36 below) by the applicant company for a decision as to the grant of a patent, an Examination Division (Aanvraagafdeling) consisting of one technically qualified member of the Patent Office stated in a letter dated May 1988 that in its opinion the patent claims described no patentable invention and in the same letter offered the applicant company the opportunity to refute its objections. The letter noted, inter alia, that one of the measures described in the main claim did not appear in the corresponding application filed in the United Kingdom.
11. By letter of 24 June 1988 the Examination Division agreed to publish the application for opposition purposes (openbaarmaking; section 25 of the Patent Act - see paragraph 39 below) provided certain changes were made. These changes included defining the scope of the protection claimed in a single patent claim, the wording of which was to conform to a suggestion made by the Examination Division itself. However, the Examination Division refused to recognise the priority claimed.
12. By letter of 20 September 1988 the applicant company submitted two new and independent claims, requesting recognition of the priority originally invoked only in respect of the first of these.
13. On 13 October 1988 the Examination Division gave a final decision (eindbeschikking) stating that the invention might equally well be described in a single claim without loss of clarity. It considered that the use of two independent claims for the sole purpose of resolving problems relating to the recognition of the priority invoked ran counter to the requirements of fair procedure (goede procesorde) and could therefore not be allowed. It therefore refused to publish the application for opposition purposes.
14. On 11 January 1989 the applicant company lodged an appeal with the Appeals Division (Afdeling van Beroep) of the Patent Office.
In their statement of grounds of appeal (memorie van grieven), they pointed to a number of published decisions of the Appeals Division from which it appeared, in their submission, that allowing more than one independent claim in a single patent application was not unacceptable. They also expressed doubts as to how the use of two independent claims for the sole purpose of resolving problems relating to the recognition of priority could run counter to the requirements of fair procedure. While they admitted that the invention might well be covered by a single claim, they pointed out that the scope of the protection offered by the patent would thereby be limited.
They requested the Appeals Division to overrule the decision of the Examination Division and order the publication of the application for opposition purposes with the two independent claims put forward by them but with a recognition of priority only in respect of the first claim. In the alternative, they requested the publication of the application for opposition purposes with the single claim proposed by the Examination Division, the scope of which they agreed to limit further, together with recognition of the priority invoked.
15. The Appeals Division, composed of two technically qualified members and one legally qualified member, held a hearing on 7 June 1989. On 15 January 1990 it sent the applicant company a letter stating that for the time being it was of the opinion that neither the two independent claims nor the single claim proposed as an alternative described any patentable invention and setting out its reasons for that view. The Appeals Division offered the applicant company the opportunity to put forward a defence against the objections thereby raised ex officio.
The applicant company replied by a letter of 15 June 1990, giving arguments to the contrary.
After the Appeals Division had made it clear that it was not convinced by these arguments, a second hearing was held on 23 January 1991 which was attended by the applicant company's Netherlands and British patent agents. The applicant company submitted fresh claims on 28 January.
16. The Appeals Division gave a final decision on 29 August 1991.
In the view of the Appeals Division, it did not necessarily run counter to any rule of fair procedure to use two independent claims to circumvent problems relating to the recognition of priority. Since the applicant company's original appeal had been limited to this issue, it was therefore declared well-founded.
Nonetheless, the Appeals Division considered that the subject-matter of the application was not patentable since it did not involve an inventive step and refused on that ground to publish the application for opposition purposes.
17. The Paris Convention of 20 March 1883 for the protection of industrial property, as subsequently revised on numerous occasions (most recently in Stockholm on 14 July 1967, [1972] 828 United Nations Treaty Series, pp. 305 et seq.), sets up a Union for the protection of industrial property. The expression "industrial property" covers patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations of origin and the repression of unfair competition (Article 1) but not copyright.
The Paris Convention is intended to prevent discrimination against non-nationals and lays down a number of very general standards as regards procedural and substantive industrial property law.
18. Article 4 of the Paris Convention, in so far as relevant, provides:
"A. (1) Any person who has duly filed an application for a patent ... in one of the countries of the Union, or his successor in title, shall enjoy, for the purpose of filing in the other countries, a right of priority for the periods hereinafter fixed.
...
B. Consequently, any subsequent filing in any of the other countries of the Union before the expiration of the periods referred to above shall not be invalidated by reason of any acts accomplished in the interval, in particular, another filing, the publication or exploitation of the invention ... and such acts cannot give rise to any third-party right or any right of personal possession ...
C. (1) The [period] of priority shall be twelve months for patents ...
..."
19. Article 12, in so far as relevant, reads:
"(1) Each country of the Union undertakes to establish a special industrial property service and a central office for the communication to the public of patents, utility models, industrial designs, and trademarks. ..."
20. Patent law, both substantive and procedural, is governed by the Patent Act (Act of 7 November 1910, Official Gazette (Staatsblad) 1910, no. 313, as subsequently amended). Certain procedural details are dealt with in delegated legislation made by the Minister for Economic Affairs under the Patent Act.
21. Section 1A of the Patent Act provides as follows:
"A patent shall be granted, on his application, to a person who has invented a novel product or method."
A patent must be granted unless the invention is either already known or an obvious development, given the current state of the art (sections 2-2A).
To be patentable, the invention must lead to a result in the field of industry or agriculture (section 3 (1)). However, no patent may be granted for new varieties of plants or animals, or for essentially biological processes for producing plants or animals, except for processes involving micro-organisms (section 3 (2)).
A patent application may only relate to a single invention or to a group of inventions based on a single inventive idea (section 5A).
22. A patent remains valid for twenty years from the filing date of the originating application, subject to payment of an annual fee (sections 47 and 35 (1) of the Patent Act).
23. Subject to the provisions of the Patent Act, a patent confers on the patentee the exclusive right, inter alia, to make, use, market, resell, hire out, deliver, import or stock the patented product or, when applicable, to apply the patented process commercially or to make, use, market, resell, hire out, deliver, import or stock the product obtained directly from the application of the patented process (section 30 of the Patent Act).
The patentee may enforce his exclusive rights against any person (section 43); this may involve, for instance, obtaining an injunction or (if an infringement is knowingly committed (desbewust)) damages through the civil courts.
Until the application matures into a patent, the applicant whose application has been published for opposition purposes in accordance with section 25 (see paragraph 39 below) has an inchoate right: he may only take measures to facilitate the eventual exercise of the right he hopes to obtain. Once the patent is granted, however, the patentee may enforce his rights retrospectively with regard to actions committed between the date of publication for opposition purposes and the date on which the application matured into a patent; such actions become retrospectively unlawful (section 44). Actions prior to publication for opposition purposes remain lawful in principle, although the patentee is entitled to reasonable remuneration on a royalty basis if such actions were committed by a person who was aware that they were covered by the patent application (section 43A).
24. Pursuant to section 33, the right to perform acts prohibited to any person other than the patentee may be acquired from the patentee by means of a licence.
25. Both a patent and the entitlement to a patent pursuant to sections 1 and following of the Patent Act are assignable and otherwise transferable in whole or in part (section 37 of the Patent Act).
26. A patent may be declared null and void (nietig) ab initio if it does not conform to the substantive requirements laid down by the Patent Act (section 51). It may also be claimed (opeising) by any person who alleges that he, not the patentee, is entitled to it (section 53).
27. A compulsory licence under a patent may be claimed either by the holder of a patent based on a subsequent patent application if he requires it to make proper use of his own patent (section 34 (4) of the Patent Act) or by the Minister for Economic Affairs together with any Minister directly concerned if the interests of the State so require (section 34A).
In either case, the patentee is entitled to a reasonable remuneration.
28. Patent applications must be filed with, and patents are granted by, the Patent Office (section 13 of the Patent Act).
29. It appears from the explanatory memorandum to the bill which eventually became the Patent Act (Annex to Parliamentary Documents, Lower Chamber of Parliament, 1904-1905 197, no. 3, p. 16) that the intention was to prevent as far as possible the granting of patents "for which no good reasons exist[ed]". It was therefore decided to establish a system involving an examination of patent applications by a State agency which was "entitled, though not obliged," to extend its examination to "all points which [might] be of relevance to the validity of the patent", and in which "during the examination the opportunity [should] be offered for entering objections". An expert body was created for this purpose, the Patent Office. It was observed that only by creating such a body "[could] the technical experts, who [were] quite indispensable, obtain an independence befitting them" and "[could] the required guarantee be provided for the quality of the decisions which, although they [might] not quite be judicial decisions in the strict sense of the word, [came] very close to being so".
30. The legal provisions governing the procedure before the Patent Office are very summary, so that over the years the Patent Office has had to develop a number of procedural rules through its case-law to fill in gaps. For present purposes it is of interest to note that, in accordance with the aims recorded in the drafting history of the Patent Act adverted to above, the Patent Office does not consider itself bound by the facts as submitted to it by parties and by what is requested by applicants, but establishes the facts itself, of its own motion if need be.
The following is a summary rendering of the principal rules of patent application procedure.
31. Formal requirements relating to patent applications are to be found in the Patent Act itself and in delegated legislation known as the Patent Rules (Octrooireglement).
32. A patent application must comprise, inter alia, a general description of the invention, and the scope of the exclusive rights desired must be set forth in one or more claims appended to the description (section 22A (1) (e) of the Patent Act). The description (which may include drawings or graphs) must be such as to enable the person skilled in the art to understand and apply the invention, and the claims must be detailed (section 22B (1)). The claims must enumerate separately and in detail the novel features of the invention for which exclusive rights are claimed (Rule 24 para. 2 of the Patent Rules).
In practice the first claim generally describes the main inventive idea and other claims, dependent thereon, describe particular embodiments of the invention.
33. The priority right created by Article 4 of the Paris Convention (see paragraph 18 above) must be expressly invoked (section 7).
34. As soon as possible after eighteen months have passed from the date of filing, or after the date from which priority is claimed if that is earlier, the application is laid open to public inspection (section 22C (1) of the Patent Act). It then becomes part of the state of the art, to be considered in relation to subsequent applications as regards the requirement of novelty (section 2 (3)).
35. The applicant, or - after the application has been laid open to public inspection - any other person, may ask the Patent Office for a search report listing published documents which it considers relevant as descriptions of the state of the art (section 22I (1) of the Patent Act).
In practice these search reports are prepared not by the Netherlands Patent Office itself but by the European Patent Office (pursuant to section 22 (8)).
Documents mentioned in the search report are usually other patent applications filed in the Netherlands and in other countries.
36. After the search report has been issued, the applicant or any other person may request a decision as to the grant of a patent (section 22J (1) of the Patent Act).
At this point the Patent Office makes known any objections which it may have to the grant of a patent. In response to these the applicant may then file arguments in writing or amend the application (section 23 (2)).
The application is then placed in the hands of the Examination Division (see paragraph 58 below) (section 23 (3)). The Examination Division must offer the applicant the opportunity to be heard and give a decision as soon as possible thereafter (section 23 (4)).
37. Section 24 (1) of the Patent Act provides as follows:
"If the Examination Division finds that no patent should be granted for all or part of the matter covered by the application, it shall give a decision not to publish the application for opposition purposes; if it finds the opposite, it shall give a decision to publish the application [or the part which it considers patentable] for opposition purposes."
38. The applicant may appeal to the Appeals Division, within three months, against a decision not to publish the application for opposition purposes, or to publish it only in part. This is done by filing a written statement of grounds of appeal (section 24A (1) of the Patent Act).
Like the proceedings before the Examination Division, those before the Appeals Division are not adversarial. The Appeals Division must hear only the applicant, or at least offer him the opportunity to be heard. It may order a supplementary search report (section 24A (3)). The decision of the Appeals Division is reasoned (section 24A (5)).
39. If the application is considered patentable in whole or in part, either in the initial stage by the Examination Division or on appeal by the Appeals Division, the application is published for opposition purposes (section 25 (1) of the Patent Act).
40. Within four months following publication of the application for opposition purposes, any person may oppose the grant of a patent (section 25 (3) of the Patent Act). If no opposition is filed within that time, or if the opposition is held to be unfounded, the application becomes a patent and the exclusive rights of the patentee are established (section 28 (1) of the Patent Act).
41. Oppositions are heard by the Examination Division which decided on the publication of the application for opposition purposes (section 26 (1)). If the original Examination Division consisted of only one member, its membership is extended to three.
Opposition proceedings are fully adversarial: both the opposing party and the applicant are heard (or offered the opportunity to be heard) (section 26 (1)). The Examination Division must give a reasoned decision (section 26 (1)).
Either party may appeal to the Appeals Division against the outcome of the opposition proceedings. Except for the fact that the appeal proceedings are also adversarial, the same rules apply to these appeals as to appeals against the decision of the Examination Division not to publish the application for opposition purposes (section 27).
42. Hearings of the Patent Office are not open to the public, nor are its decisions delivered in public.
43. Until 1 January 1991, various provisions in the Patent Act specified the documents to which the applicant for a patent and other interested parties were to be given access (objections (bezwaarschriften), requests and statements of grounds of appeal concerning them). Some, but not all, of these documents were also required to be made available to the public once the patent application had been laid open to public inspection.
On 1 January 1991, a new provision (section 28A of the Patent Act) entered into force which provides that once the patent application has been laid open to public inspection (or published for opposition purposes, whichever is the sooner), any person may inspect all documents relating to the patent application which have been received by the Patent Office or which the Patent Office has sent to the applicant for a patent or to third parties pursuant to the provisions of the Patent Act. As long as the patent application has not been laid open to public inspection, these documents may be inspected by third parties only with the permission of the applicant for a patent unless the third party concerned proves that the applicant for a patent has invoked the patent application against him.
44. Proceedings relating to the enforcement of a patent, for the revocation of a patent (nietigverklaring) and for challenging the entitlement of the patentee (opeisen) are brought before an ordinary civil court, the Regional Court (arrondissementsrechtbank) of The Hague (section 54 of the Patent Act), whose competence in such matters is exclusive. An appeal lies to the Hague Court of Appeal (gerechtshof) and a further appeal on points of law (cassatie) to the Supreme Court.
45. Proceedings for claiming a compulsory licence are brought before the Patent Office if the claimant is a private person (section 34 (6) of the Patent Act); the granting of a compulsory licence in the interests of the State may simply be ordered by the Ministers concerned (see paragraph 27 above).
The remuneration in such cases is set by the Patent Office, if both parties agree to make a request to that effect; if the parties cannot agree either on the amount of the remuneration or to submit the matter to the Patent Office, the patentee may file a claim before the Hague Regional Court (section 34 (9)).
46. There is no statutory provision which either allows or expressly bars access to the civil courts to challenge a decision of the Appeals Division of the Patent Office.
It appears, however, that the legislature intended the competence of the Appeals Division to be an exclusive one. The explanatory memorandum to the bill which eventually became the Patent Act states (Annex to Parliamentary Documents, Lower Chamber of Parliament, 1904-1905 197, no. 3, p. 25):
"The decision of the Patent Office taken at final instance that an application [for a patent] should not be granted ought not to be subject to appeal. It should be assumed that when the Patent Office, which is the expert body par excellence, considers that the law does not allow it the freedom to grant the patent applied for, that opinion is based on solid ground. In any case, the wording of a patent could hardly be left to any other body than the Patent Office, which has the required expert knowledge."
The competence of the administrative tribunals is expressly excluded by statute (at the material time, section 1 (f) of the Act concerning administrative jurisdiction as to decisions of the administration (Wet administratieve rechtspraak overheidsbeschikkingen - "AROB Act")).
47. In the Netherlands, the industrial property service referred to in Article 12 of the Paris Convention is the Industrial Property Bureau (Bureau voor de Industriële Eigendom). The Patent Office is part of the Industrial Property Bureau (section 14 of the Patent Act; Article 1 of the Industrial Property Bureau Ordinance (Besluit Bureau industriële eigendom)).
48. The President of the Patent Office is also Director of the Industrial Property Bureau (Article 2 para. 2 of the Industrial Property Bureau Ordinance). All officials and other staff - an expression which includes the members of the Patent Office - are subordinate to him; he may, acting on the instructions of the Minister for Economic Affairs, lay down regulations for the day-to-day running of the Bureau; these are, however, subject to the Minister's approval (Article 5 of the Industrial Property Bureau Ordinance). The Director must submit an annual report on the Bureau's activities to the Minister for Economic Affairs (Article 8 of the Industrial Property Bureau Ordinance).
49. In taking its decisions the Patent Office is not bound by instructions from any other administrative authority.
50. Officials and other staff of the Bureau may not have any other remunerated position without the permission of the Minister for Economic Affairs. They may not be practising lawyers or patent attorneys, nor may they be involved even in an advisory capacity in an enterprise involving the filing of patent applications or the registering of trademarks, designs or semiconductor masks. They are forbidden to apply for a patent themselves (Article 3 of the Industrial Property Bureau Ordinance).
51. The Patent Office consists of up to ninety ordinary members and substitute members, divided into legally qualified and technically qualified members, and of at least twelve extraordinary members (Rule 2 of the Patent Rules).
52. The President and all members of the Patent Office are appointed, and may be dismissed, by the Crown (that is the Monarch together with the responsible Minister) (section 14 (3) of the Patent Act). Before taking up their duties they must take a pledge worded as follows (section 14 (3) of the Patent Act and Rule 4 of the Patent Rules):
"I promise that I will diligently, meticulously and impartially discharge the duties required by the office of President [or Vice-President, ordinary member, extraordinary member or substitute member] of the Patent Office, and especially that I will participate in the decisions to be taken by the Divisions according to my own convictions and keep secret that which is known to me through my duties regarding patent applications in so far as these have not been laid open to public inspection or published for opposition purposes and that I will help to implement with precision the appropriate acts and ordinances (algemene maatregelen van bestuur) and that I will not accept any promise or any gift, whether directly or indirectly, to do or omit anything in the discharge of my duties ..."
53. No member of the Patent Office may take part in proceedings in which he has a direct or indirect interest or in which he is in any way involved (Rule 3 of the Patent Rules).
54. The appointment of the President and ordinary members remains valid until their retirement.
The extraordinary members are appointed for a five-year period, which may be extended for five years at a time (Rule 2 para. 2 of the Patent Rules). They are recruited on the basis of expertise in a particular technical field and, in general, are university professors in one of the technical or applied sciences.
There are no specific rules protecting the President or members of the Patent Office against dismissal. They enjoy the same protection as other permanently appointed civil servants, who may be dismissed involuntarily only on certain limited grounds laid down by law and may contest their dismissal before the Civil Service Tribunal (ambtenarenrechter).
55. There is one case on record of dismissal of a member of the Patent Office.
That case concerned a member of the Patent Office who had refused an order by the President to carry out preparatory work on patent applications consisting of checking them for compliance with formal requirements. This was work normally done by lower-ranking civil servants but occasionally by members of the Patent Office on a voluntary basis; the assistance of the members of the Patent Office had become necessary due to a growing backlog of work. When the member concerned refused to give his assistance voluntarily even after consultation, he was officially ordered to do so by the President. The member refused to obey and was dismissed on that ground.
He unsuccessfully contested his dismissal before both the Civil Service Tribunal and on appeal before the Central Appeals Tribunal (Centrale Raad van Beroep). The member had not contested the order itself. For that reason the tribunals had to assume that he could only have been dismissed without justification if the order had manifestly been given without proper authority. In the particular case, the order was capable of being based on Rule 11A of the Industrial Property Rules (Reglement Industriële Eigendom), a provision introduced in 1957, according to which duties incumbent on the Patent Office but not assigned specifically to any Division were to be carried out by the President, who was empowered to delegate them to ordinary members of the Patent Office. The Central Appeals Tribunal quoted the explanatory memorandum to the Order of 1957 introducing the above Rule 11A, from which it appeared that the competent Minister had assumed that members of the Patent Office were subordinate to the President except in relation to decisions relating to patent applications. With regard to such decisions they could act only in accordance with their own convictions (see the judgment of the Central Appeals Tribunal of 17 February 1971, no. 1970/B 12, unpublished).
56. The Patent Office comprises one Central Division as well as Examination Divisions, Appeals Divisions and Special Divisions (section 14 (2) of the Patent Act).
57. The Central Division has five members. It is presided over ex officio by the President of the Patent Office; the other four members are appointed by the Minister for Economic Affairs (Rule 5 of the Patent Rules).
The Central Division decides on the composition of the other Divisions.
58. Examination Divisions, Appeals Divisions and Special Divisions are set up for each individual case as necessary.
Examination Divisions, consisting of either one member (who must then be technically qualified) or three members (one or two of whom must be legally qualified), decide whether a patent application may be published for opposition purposes and hear oppositions (see paragraphs 39 and 41 above) (Rules 6 para. 1 and 7 of the Patent Rules). Examination Divisions which hear oppositions are always made up of three Members, even if the application itself was dealt with by an Examination Division consisting of a single member (section 26 (1) of the Patent Act).
Special Divisions, consisting of either one member (who must then be legally qualified) or three members (one or two of whom must be legally qualified), deal at first instance with all other matters coming within the jurisdiction of the Patent Office (Rules 6 para. 2 and 9 of the Patent Rules).
Appeals Divisions, consisting of either three members (one or two of whom must be legally qualified) or five members (two or three of whom must be legally qualified) depending on the nature and complexity of the case, hear appeals against decisions of other Divisions (Rules 6 para. 1 and 8 of the Patent Rules). The President of the Patent Office presides over Appeals Divisions ex officio but he may be replaced in his absence by a Vice-President (Rules 8 para. 3 and 12 of the Patent Rules).
An Appeals Division may not include members who have been involved in drafting the search report or who have taken part in the decision appealed against as members of an Examination Division (section 24A (4) of the Patent Act).
There are no statutory provisions allowing applicants to challenge either individual members of a Division or an entire Division.
59. Article 112 of the Netherlands Constitution provides as follows:
"The judiciary shall judge all disputes relating to civil rights and claims for payment."
According to the settled case-law of the Supreme Court, this provision should be interpreted so as to encompass practically all disputes between individuals and government authorities. The civil courts are thus said to constitute a "safety net" as regards the protection of the individual against actions by the authorities. This means that although the civil courts must decide for themselves when to exercise their jurisdiction, they must declare an action inadmissible if they find that another legal remedy exists which offers sufficient procedural guarantees. On the other hand, if they find that no such remedy exists or that the existing remedy offers insufficient guarantees, they must deal with the merits of the case.
As regards actions brought by individuals against government authorities it is the established case-law of the Supreme Court since the European Court's Benthem v. the Netherlands judgment of 23 October 1985 (Series A no. 97) that the civil courts must take into account the requirements of Article 6 (art. 6) of the Convention. (For a detailed discussion of the relevant legal developments and of the influence of the Benthem judgment, see the Court's Oerlemans v. the Netherlands judgment of 27 November 1991, Series A no. 219.)
60. The question whether proceedings before the Patent Office offer sufficient guarantees has only twice been submitted to the civil courts. On neither occasion was it answered conclusively.
The first time the issue was raised before a civil jurisdiction was in summary proceedings (kort geding) before the President of the Regional Court of The Hague (judgment of 11 July 1989, Bijblad bij De Industriële Eigendom (Industrial Property Law Review, BIE) 1990, p. 246). In that case the plaintiff, against whom an injunction had been issued in earlier summary proceedings restraining it from infringing a patent owned by the defendant, asked for a declaration that this injunction applied only to the period between the issuing of the injunction and the date on which the plaintiff had requested the Patent Office to grant a compulsory licence under the patent. The defendant pleaded that the proceedings relating to compulsory licences were not binding on it as the Patent Office, in deciding on compulsory licences (which in the defendant's view amounted to the determination of civil rights and obligations as understood by Article 6 (art. 6) of the Convention), was not an "independent and impartial tribunal". The President of the Regional Court declined to give a ruling on this issue. Even if its assumption were correct, the defendant could, after the grant of the compulsory licence, address itself to the civil courts, which would then decide whether the compulsory licence had been properly granted. The defendant's objection to the arrangement for the grant of a compulsory licence could therefore in no way warrant the conclusion that such a licence should never be granted to the plaintiff, which had been the thinking underlying the defence plea.
The President of the Regional Court commented, as an obiter dictum, that as matters stood - given the way in which the duties of the Patent Office were stipulated by law and given the way in which the legal provisions governing proceedings relating to compulsory licences were stipulated and implemented in practice - the likelihood that in full civil proceedings (bodemprocedure) the Netherlands civil courts, or alternatively the European Commission or Court of Human Rights, would hold the Patent Office or the procedure relating to compulsory licences to fall foul of Article 6 (art. 6) of the Convention was not sufficiently strong for him to base his decision in summary proceedings on such a hypothesis.
According to information provided by the Government, the issue was raised a second time in 1990, when a company brought a case against the State before the Regional Court of The Hague also based on a complaint about the grant of a compulsory licence under a patent which it owned. The court was asked to declare the decision of the Appeals Division unlawful, one of the reasons given being that the Patent Office allegedly did not meet the standards of Article 6 (art. 6) of the Convention. The Government has stated before this Court that they did not raise any objection as to the admissibility of these allegations but, on the contrary, put forward defences on the merits of the question. It appears that the company decided not to pursue the case to a conclusion; consequently, it did not result in any ruling by the Hague Regional Court.
61. As from 1 April 1995 the 1910 Patent Act has been replaced by an entirely new Act, the 1995 Patent Act (Act of 15 December 1994, Official Gazette (Staatsblad) 1995, no. 51). However, patent applications filed before 1 April 1995, patents granted on the basis of such applications and licences under such patents continue to be governed by the 1910 Patent Act. The 1910 Patent Act will ultimately be repealed.
The new Patent Act has abolished the system of substantive examination of patent applications before the grant of a patent. Following the Belgian example in particular, the new system involves the registration of patents after an examination for compliance with formal requirements only. Substantive examination is left to the civil courts, upon which it is incumbent to judge whether the requirements of patentability, particularly as regards inventive step, have been complied with. Oppositions must be brought directly before the civil courts.
Under the new system the Patent Office in its present form will ultimately cease to exist.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-108031
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF LADUNA v. SLOVAKIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 14+8;No violation of Art. 13;No violation of P1-1;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 6. The applicant was born in 1973. At present he is serving a life sentence in Leopoldov Prison.
7. The applicant was accused of several serious offences. In that context he was detained pending trial from 1 September 2001 to 9 February 2006. On the latter date he started serving a nine-year prison term to which he had been sentenced for robbery. Further details are set out in the decision of 20 October 2010 on the admissibility of the present application.
8. During his detention on remand the applicant lodged several complaints with the Directorate General of Prison Administration, in which he complained about the conditions of his detention. He raised many issues, among which were the restrictions on his visiting rights (visits were allowed only once a month for thirty minutes and it was only possible to speak to visitors through a partition), the right to buy food in prison, the lack of hot water in his cell, and a lack of contact with other prisoners. He also alleged that convicted prisoners serving a sentence had more rights than he had as a remand prisoner.
9. The Directorate General of Prison Administration sent replies to the applicant on more than ten occasions. It found all of the applicant’s complaints to be ill-founded. It also held that the conditions in the prisons in which the applicant had been detained during the investigation and judicial proceedings had been in conformity with the relevant law.
10. Furthermore, the applicant has been obliged, both during his detention and after his conviction, to use half of the money he received from his family to reimburse the debt which he owed to the State (this debt resulted from court decisions and from the statutory obligation to contribute to his maintenance in prison), failing which he was not allowed to buy supplementary food in the prison shop.
Thus, the applicant’s overall debt amounted to the equivalent of some 750 euros (EUR) in March 2008. In the period from December 2002 to January 2008 he had reimbursed approximately EUR 360 of the debt.
11. On 16 January 2003 the applicant lodged a complaint with the Prosecutor General submitting that his human rights had been violated. He complained, inter alia, about the manner in which the State had forced him to reimburse the debt resulting from the statutory obligation to contribute to his maintenance in prison.
12. On 30 January 2003 the Prosecutor General dismissed that complaint as no breach of the law had been found in the applicant’s case.
13. During the whole period of his detention during the investigation and trial the applicant could not watch television, whereas convicted prisoners had the possibility of watching television programmes collectively in the assembly room of the relevant prison wing. Through the prison broadcast system the prison administration let the detainees listen to a public and a private radio station, each of which was transmitted every other day. For almost the whole period of his detention pending trial the applicant was kept alone in his cell.
14. Pursuant to section 2(1) of the Detention Act 1993, a person’s detention during an investigation and judicial proceedings must respect the detained person’s right to be presumed innocent. Any restrictions must be justified by the purpose of the detention and by the aim of ensuring order, the safety of others and the protection of property in places where accused persons are detained. Subsection 2 of section 2 permits the restriction of only those rights of detained persons of which they cannot avail themselves in view of the fact that they are detained on remand. Detention on remand must not diminish the human dignity of the accused person.
15. Section 10(1) provides that an accused person detained during an investigation and judicial proceedings is entitled to receive visitors once a month for a minimum of thirty minutes. Where justified, the prison governor may permit more frequent visits or another form of contact. Subsection 5 of section 10 provides that visits to accused persons should take place in the presence of a prison officer and without direct contact between the accused and the visitor. Other arrangements may be authorised by the prison governor in justified cases.
16. Section 12a(10) states that an accused person is entitled to use his or her money to purchase groceries and other items in prison, provided that he or she has fulfilled the relevant statutory requirements. These include, inter alia, the obligation to pay at least the same amount of his or her debt to the prison administration or to other entitled people when wishing to withdraw money from his or her account in prison. When this and the other conditions are not met, the prison governor should allow the detained person, at his or her written request, to use money to purchase medicine and medical items which are not provided free of charge under the relevant law, to buy basic toiletries, and also to pay any applicable taxes and fees (section 12(11)).
17. Pursuant to section 19(1) of the Detention Act 2006, accused persons are entitled to receive visitors every three weeks for at least one hour.
Where an accused is detained on the ground that he or she could influence witnesses or co-accused, or hamper the criminal investigation into the case, he or she can receive visitors only subject to the consent of the prosecuting authority or court dealing with the case (section 19(2)).
Accused persons detained in prisons at the lowest security level are allowed to have direct contact with their visitors as a general rule. In other cases visits take place without direct contact unless the prison governor decides otherwise, and in the presence of a prison officer. In the situations set out in section 19(2), the prosecuting authority or court may request that the visit take place in the presence of one or more of its representatives (section 19(3)).
18. Section 1(1) of the Serving of Prison Sentences Act 1965 defines the purpose of the serving of a prison term as preventing convicted persons from committing further offences and preparing them on a continuous basis for an appropriate way of life.
19. Section 2 lists cultural and educational work as one of the means of attaining the purpose of the imprisonment of convicted persons.
20. Section 11 provides for the social rights of convicted persons. Subsection 1 guarantees to convicted persons the necessary material and cultural conditions for ensuring their appropriate physical and mental development.
21. Section 12(3) provides that a convicted person is entitled to receive visitors who are his or her close friends and/or relatives at a time determined by the prison governor. The frequency of the visits depends on the type of security level to which a convicted person is subject: visits are allowed at least once a fortnight for convicted persons at the lowest security level; once a month for convicted persons at the medium security level; and once every six weeks for those at the highest security level. Visits to a convicted person subject to the medium or highest levels of security take place without physical contact. A prison governor may exceptionally decide otherwise.
22. Section 24(1) of the Serving of Prison Sentences Act 2005 provides that a convicted person is entitled to receive visitors at least once a month for two hours.
23. Section 28(3) provides that, where a convicted person has not paid a part of his or her debt to the State in respect of prisoners’ maintenance contributions and to other creditors registered with the prison authorities, he or she can use his or her money only for the purchase of basic sanitary items, objects necessary to engage in correspondence, medicine (which cannot be provided free of charge), medical fees, and for the payment of debts and court and administrative fees.
24. Pursuant to section 34(1), subject to the approval of the prison governor, convicted persons may use in their cells, at their own expense, their own radio and television receivers.
25. Regulation 3(1) provides that convicted persons should be treated in a way which reduces the negative impact of imprisonment on their personality.
26. Regulation 8(1) lists sports and leisure activities, radio and television broadcasts, films and convicted persons’ own cultural, educational or entertainment activities among the cultural and educational activities for persons who serve a prison term.
27. Regulation 8(6) provides that convicted persons are allowed to follow radio and television broadcasts. The scope is to be determined by prison rules.
28. The frequency and duration of visits to convicted persons by their close friends and/or relatives is governed by Regulations 80, 86 and 90. Visits are allowed at least once a fortnight for convicted persons at the lowest security level; once a month for convicted persons at the medium security level; and once every six weeks for those at the highest security level. As a rule, visits take place without direct supervision by a prison officer in prisons with the lowest security level. In other cases visits are supervised by a prison officer and no direct contact between the convicted person and the visitor is allowed. In all three types of prison the duration of a visit is to be a minimum of two hours.
29. The relevant part of Article 10 of the International Covenant on Civil and Political Rights concerning humane treatment of persons deprived of liberty, by which Slovakia has been bound since 28 May 1993, reads as follows:
“2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons; ...”
30. General Comment No. 21 concerning humane treatment of persons deprived of liberty (Article 10 of the International Covenant on Civil and Political Rights) was adopted by the United Nations Human Rights Committee on 10 April 1992. In its relevant part it reads:
“9. Article 10, paragraph 2 (a), provides for the segregation, save in exceptional circumstances, of accused persons from convicted ones. Such segregation is required in order to emphasise their status as unconvicted persons who at the same time enjoy the right to be presumed innocent as stated in Article 14, paragraph 2. ...”
31. The European Prison Rules are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided by the Rules in their legislation and policies and to ensure wide dissemination of the Rules to their judicial authorities and to prison staff and inmates.
32. The 1987 European Prison Rules (Recommendation No. R (87) 3) were adopted by the Committee of Ministers of the Council of Europe on 12 February 1987. In Part V they contained a number of basic principles concerning untried prisoners, including the following:
“91. Without prejudice to legal rules for the protection of individual liberty or prescribing the procedure to be observed in respect of untried prisoners, these prisoners, who are presumed to be innocent until they are found guilty, shall be ... treated without restrictions other than those necessary for the penal procedure and the security of the institution.
92. 1. Untried prisoners shall be allowed to inform their families of their detention immediately and given all reasonable facilities for communication with family and friends and persons with whom it is in their legitimate interest to enter into contact.
92. 2. They shall also be allowed to receive visits from them ... subject only to such restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution. ...”
33. On 11 January 2006 the Committee of Ministers of the Council of Europe adopted a new version of the European Prison Rules (Recommendation Rec(2006)2). It noted that the 1987 Rules “need[ed] to be substantively revised and updated in order to reflect the developments which ha[d] occurred in penal policy, sentencing practice and the overall management of prisons in Europe”.
34. The 2006 Rules contain the following principles concerning untried prisoners, inter alia:
“95. 1. The regime for untried prisoners may not be influenced by the possibility that they may be convicted of a criminal offence in the future.
...
95. 3. In dealing with untried prisoners prison authorities shall be guided by the rules that apply to all prisoners and allow untried prisoners to participate in various activities for which these rules provide.
...
99. Unless there is a specific prohibition for a specified period by a judicial authority in an individual case, untried prisoners:
a. shall receive visits and be allowed to communicate with family and other persons in the same way as convicted prisoners;
b. may receive additional visits and have additional access to other forms of communication; ...”
35. On 6 December 2001 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) published its report on the visit to Slovakia which had taken place from 9 to 18 October 2000. The relevant parts read as follows:
“79. In the report on the 1995 visit (cf. paragraphs 126 to 130 of CPT/Inf (97) 2), the CPT stressed the importance for prisoners to be able to maintain good contact with the outside world. In view of the situation found in 1995, the Committee recommended that the visit entitlement of remand prisoners in Bratislava Prison be substantially increased and invited the Slovak authorities to explore the possibility of offering more open visiting arrangements for such prisoners. ...
80. In their responses, the Slovak authorities expressed some misgivings about the approach proposed by the CPT, principally based on the objective of preserving the interests of justice (preventing collusion, etc.).
It is therefore not surprising that the delegation which carried out the 2000 visit observed little or no change in this area. In particular, remand prisoners’ visit entitlement remained limited to a mere 30 minutes every month ..., although they could receive from time to time an additional visit at the director’s discretion. Further, visits for such prisoners continued to take place in booths, with prisoner and visitor(s) separated by a screen. ...
81. The CPT accepts that in certain cases it will be justified, for security-related reasons or to protect the legitimate interests of an investigation, to have visits take place in booths and/or monitored. However, the CPT wishes once again to invite the Slovak authorities to move towards more open visiting arrangements for remand prisoners in general.
...
Arguments based on the need to protect the interests of justice are totally unconvincing as a justification for the present inadequate visit entitlement for remand prisoners. The CPT therefore reiterates its recommendation that the visit entitlement for remand prisoners be substantially increased (for example, to 30 minutes every week).
...”
36. On 2 February 2006 the CPT published its report on the visit to Slovakia which had taken place from 22 February to 3 March 2005. The relevant parts read as follows:
“46. A fundamental problem as regards remand prisoners in the Slovak Republic is the total lack of out-of-cell activities offered to such inmates.
At the time of the visit, remand prisoners were being held for 23 hours a day in their cells in a state of enforced idleness; their only source of distraction was reading books from the prison library and listening to the radio and, in a limited number of cases, watching television. No work was offered to such prisoners, and possibilities for sports activities were few and far between, if available at all. ... The deleterious effects of such a restricted regime were exacerbated by the lengthy periods of time for which persons could be held in remand prisons. ...
The CPT calls upon the Slovak authorities to take steps, as a matter of priority, to devise and implement a comprehensive regime of out-of-cell activities (including group association activities) for remand prisoners. The aim should be to ensure that all prisoners are allowed to spend a reasonable part of the day outside their cells, engaged in purposeful activities of a varied nature (group association activities; work, preferably with vocational value; education; sport). The legislative framework governing remand imprisonment should be revised accordingly. ...
...
61. The situation as regards the visiting entitlements for remand prisoners had not changed in the last ten years. It remained the case that adults were entitled to a mere 30-minute visit per month ... The conditions under which visits took place continued to be closed (in booths with a screen separating inmates from their visitors). This was exactly the situation which prevailed during the first visit of the CPT to the Slovak Republic in 1995.
The CPT calls upon the Slovak authorities to revise the relevant legal provisions in order to increase substantially the visit entitlement for remand prisoners. The objective should be to offer the equivalent of a visit every week, of at least [30 minutes]. Further, the Committee invites the Slovak authorities to introduce more open arrangements for visits to remand prisoners.”
37. The Government’s response to the latter report, published on 2 February 2006, contains the following information:
“Under the methodological guidance issued by the General Director of the CPCG (No. GR ZVJS-116-45/20-2003) in conformity with the current legislation on the enforcement of remand imprisonment, remand prisoners are allowed to have their own TV sets subject to certain conditions. The methodological guidance issued by the General Director of the CPCG (No. GR ZVJS-116-38/20-2003) provides for certain leisure-time activities and allows the performance of certain sports and special-interest activities, in particular to juvenile and female remand prisoners. Remand prisons take permanent efforts to create spatial and material conditions for special-interest activities of remand prisoners, and for sports activities both inside and in outdoor premises of prison establishments.
The issue of creating [an] adequate programme of activities for remand prisoners is addressed also in the new draft law on remand imprisonment, which is currently considered by the National Council of the Slovak Republic in connection with the re-codification of the Criminal Code and of the Code of Criminal Procedure. The new draft law on remand imprisonment aims at introducing a lighter remand regime and proposes that remand prisoners be differentiated by categories to enable their participation in special-interest activities that can mitigate or reduce the negative impact of incarceration on remand prisoners. The implementation of adequate activity programmes proposed for all remand prisoners is conditional on the creation of adequate spatial, material and staffing conditions. After the new law has entered into effect, the CPCG will gradually create material conditions for [the] above-mentioned programmes and start [...] their practical implementation.
...
Under the new draft legislation on remand imprisonment, the visit entitlement is to be extended from one visit of at least 30 minutes a month to a visit of at least one hour once in three weeks. In justified cases, the prison governor will have the right to grant more frequent visits. ...”
VIOLATED_ARTICLES: 14
8
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-90177
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF AVRAM v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 5. The applicant was born in 1935 and lives in Grigoreşti.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. In 1996 the applicant received from the local authority in the village of Alexandreni a plot of land which she still uses. She was not, however, given title to the land, so in December 2003 she requested the local authority to transfer title to her.
8. On 20 February 2004 her request was turned down. She then brought court proceedings for the annulment of that decision and an order requiring the local authority to grant her title to the land. She explained that she continued to use it but needed a document proving her ownership.
9. On 9 June 2004 the Sîngerei District Court granted her request and ordered the local authority to transfer title to her. No appeal was lodged and the judgment became final and enforceable 15 days later.
10. The applicant obtained a warrant of execution which she lodged with the Decisions Enforcement Department of the Ministry of Justice (“the Department”) on 19 July 2004. On 26 July 2004 the Department requested the local authority to comply with the warrant.
11. According to documents submitted by the Government, on 27 July 2004 the local authority annulled its decision of 20 February 2004 and granted the applicant title to the land. According to the applicant, she was not informed of that decision.
12. On 16 February 2005 the applicant’s representative asked for the Department’s assistance in enforcing the judgment of 9 June 2004.
13. In a letter to the applicant dated 21 March 2005, the Department informed her that on 10 January 2005 the warrant of execution had been served on the Alexandreni local authority, but that the authority had still not complied with the judgment. The Department also informed the applicant that it was preparing documents with a view to inviting the court to penalise those responsible for the failure to comply with the judgment.
14. On 20 September 2005 the applicant’s representative again asked for the Department’s assistance in enforcing the judgment of 9 June 2004. It is unclear whether he received any answer.
15. On 14 December 2005 the Sîngerei branch of the Bălţi Territorial Cadastral Office issued the applicant with the cadastral plan of the land. On 26 December 2005 the applicant paid for the registration of her title at the Territorial Cadastral Office in Bălţi.
16. Following a request on 22 May 2006, the applicant obtained registration of her title to the land on 30 May 2006.
17. On 15 February 2007 the Department asked the Sîngerei Cadastre Office for information about the date and number of the registration of the applicant’s title to the land.
18. The relevant domestic law has been set out in Prodan v. Moldova (no. 49806/99, ECHR 2004III (extracts)).
19. In addition, the relevant provisions of the Enforcement Code (no. 443 of 22 December 2004, which has been in force since 1 July 2005) read as follows:
“Enforcement proceedings shall be discontinued when:
(a) the judgment has been enforced...”
“(1) Decisions to suspend or discontinue enforcement proceedings shall be taken by the head of the enforcement office, after the creditor and debtor have been notified. The absence of the creditor or debtor shall not prevent the adoption of such decisions.
... (3) The decision to suspend or discontinue the enforcement proceedings shall, within three days from its adoption, be served on the parties and the authority which issued the warrant of execution...”
VIOLATED_ARTICLES: 6


ITEMID: 001-88117
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: WILLIAMS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Dennis Williams, is a British national who lives in Warwickshire. He was represented before the Court by Ms J. Tonks, a welfare rights adviser in Warwickshire. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 19 September 1998. On 2 July 2001, the applicant made a claim for widows’ benefits. Subsequently the applicant was sent a further application form under the new system in place as from 9 April 2001. He duly completed and returned the application form on 23 August 2001. Subsequently the applicant was informed that his claim had been disallowed as he was not entitled to the benefits at issue because his wife had died before 9 April 2001.
The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-103387
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF NASUKHANOVY v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 2 - Right to life (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)
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The first applicant was born in 1953, the second applicant was born in 1958 and the third applicant was born in 1983. They live in the village of Starye Atagi, the Groznenskiy District, in the Chechen Republic.
6. The first and second applicants are spouses and the parents of Mr Movsar Nasukhanov, born in 1980, Mr Movladi Nasukhanov, born in 1981, and the third applicant.
7. Between 14 and 18 February 2002 the Russian federal military carried out a special “sweeping” operation in the village of Starye Atagi.
8. At about 9.30 a.m. on 14 February 2002 an armed clash commenced between a group of insurgents and the Russian servicemen. The insurgents hid inside a house at Argunskaya Street located in the vicinity of the applicants' family home and fired at the military. At some point Russian servicemen killed the insurgents and started checking other houses in the area.
9. At that time the applicants, Movsar and Movladi Nasukhanov and the first applicant's two daughters were inside their house. At some point a group of servicemen wearing blue camouflage uniforms and masks arrived at the applicants' house in armoured personnel carriers (“APCs”) and entered it. The first applicant believed that the men belonged to the State Intelligence Department (“GRU”). The servicemen in blue uniforms checked the Nasukhanovs' identity papers, asked why they had been hiding insurgents and left.
10. Another group of armed men who had arrived in UAZ vehicles entered the applicants' house. Those men had badges with a “B” letter and an eagle pinned to sleeves of their camouflage uniforms. The first applicant inferred that they were members of the Pennant unit (подразделение «Вымпел»). They ordered the male members of the Nasukhanov family to lie down on the floor, lined up the women next to a wall, checked the identity papers and left.
11. A few moments later a group of armed and masked men in yellow camouflage uniforms arrived at the applicants' house in UAZ vehicles with illegible registration plates. The first applicant peeked out of the window and saw a motorcade of military vehicles and several APCs parked outside his house. The servicemen in the yellow uniforms checked the identity papers of the first applicant's sons and asked them if they knew any insurgents. The young men replied in the negative. The servicemen in yellow uniforms said that it was necessary to run a check on them, and took the third applicant and Movsar and Movladi Nasukhanov away.
12. Shortly after the arrest of their sons the first and second applicants learned that the Russian military had established a filtration point near a poultry-house and a mill in Starye Atagi. Some 500 persons were being kept at the filtration point.
13. On the day following the arrest the second applicant went to the poultry-house. Relatives of other detained persons had gathered near the building to wait for news of their family members.
14. The servicemen started releasing the detainees. Some of them told the second applicant that her three sons were being kept inside the poultryhouse. The second applicant waited for her sons' release for the next three days.
15. On 16 February 2002 the third applicant was released. He had been severely beaten by the servicemen and could not walk, so he had to be carried home. His body was bruised. Once at home, the third applicant said that for three days the servicemen had questioned and beaten him. Before the release they had made him sign a declaration stating that he had no complaints. The third applicant had not seen his brothers after the arrest but knew that they had been transferred to the mill where the headquarters of the federal military was located.
16. On 19 February 2002 the special “sweeping” operation ended.
17. On 20 February 2002 the first and second applicants went to the village of Mesker-Yurt of the Shali District and examined two dead bodies, which had been burned from head to waist. The first and second applicants recognised their sons' shoes and trousers and identified the dead as Movsar and Movladi Nasukhanov. On the same day the first and second applicants took the bodies home.
18. On 18 February 2002 the Shali district temporary department of the interior (“the VOVD”) received a report that four men had been killed by servicemen of military unit no. 3179 in crossfire on the outskirts of MeskerYurt. Upon inspection of the scene of the incident four charred corpses and two AK-74 machine guns were discovered in the basement of a destroyed house.
19. The first applicant did not apply to a prosecutor's office after the discovery of Movsar and Movladi Nasukhanov's dead bodies as he feared for the safety of the third applicant.
20. On 18 February 2002 the Shali district department of the interior (“the ROVD”) received a report that four charred male corpses had been discovered in the basement of a house on the outskirts of Mesker-Yurt. Later two of those bodies were identified as Movsar and Movladi Nasukhanov.
21. On 18 February 2002 the prosecutor's office of the Shali District (“the district prosecutor's office”) instituted an investigation into the killing of Movsar and Movladi Nasukhanov under Article 105 § 2 of the Russian Criminal Code (aggravated murder). The case was assigned the number 59054.
22. On 25 February 2003 the district prosecutor's office issued a report on the investigation, stating the following:
“At about 1 p.m. on 18 February 2002 the Shali district department of the interior received a report that four charred male corpses had been found in the basement of a residential house on the outskirts of the village of Mesker-Yurt.
Later the three bodies were identified as villagers of Starye Atagi, namely, Movsar Nasukhanov, born in 1980, Movladi Nasukhanov, born in 1981, and Ruslan Nasukhanov, born in 1963.
An investigation into this matter was opened by the Shali district prosecutor's office in criminal case no. 59054 under Article 105 § 2 of the Russian Criminal Code on 18 February 2002.”
23. On 5 March 2003 the head of the local administration of Starye Atagi described the circumstances of the Nasukhanov brothers' arrest and the discovery of their dead bodies to the district prosecutor's office. He stated that on 14 February 2002 the servicemen of the United Group Alignment had carried out a special operation to arrest insurgents, that the latter had opened fire and then had been killed and that Movsar and Movladi Nasukhanov had been taken away by the servicemen and then killed. The head of the local administration also mentioned that Movsar and Movladi Nasukhanov had not participated in illegal armed groups.
24. On 15 December 2003 the first applicant complained to the prosecutor's office of the Chechen Republic about the ineffectiveness of the investigation in case no. 59054.
25. On 4 January 2004 the prosecutor's office of the Chechen Republic informed the applicants that on an unspecified date the investigation had been resumed and was pending before the district prosecutor's office.
26. On 10 February 2004 the first applicant was summoned to the district prosecutor's office. An investigator told him that the servicemen had made a deposition explaining that his sons had been killed as they had been inside a house from which insurgents had fired at military vehicles. However, according to a statement by the owners of that house, the servicemen had killed the Nasukhanov brothers, brought their bodies to the village's outskirts and set the house on fire. The first applicant read that statement, but was not allowed to make a copy of it.
27. On 15 February 2004 the district prosecutor's office suspended the investigation in case no. 59054 for failure to identify those responsible.
28. On 24 July 2004 the military prosecutor's office of the United Group Alignment forwarded the first applicant's complaint to the prosecutor's office of the Chechen Republic stating that an investigation into the killing of Movsar and Movladi Nasukhanov was not pending before them.
29. On 2 November 2004 the prosecutor's office of the Chechen Republic forwarded the first applicant's complaint to the district prosecutor's office and ordered that the investigation be carried out more vigorously.
30. On 29 April 2005 the acting head of the department for supervision on criminal investigations of the prosecutor's office of the Chechen Republic informed the first applicant of the following:
“The prosecutor's office of the Chechen Republic studied the criminal case materials, quashed the decision of the investigator of the Shali district prosecutor's office on suspension [of the investigation] and resumed the investigation.
You should address all further queries related to the investigation of this case to the Shali district prosecutor's office”.
31. On 15 February 2006 the SRJI requested an update on the progress of case no. 59054 from the district prosecutor's office.
32. On 3 March 2006 the prosecutor's office of the Chechen Republic informed the first applicant that the investigation in case no. 59054 had been suspended on 15 February 2004 for failure to identify those responsible and noted that the first applicant had the right to study non-classified documents from the case file on the district prosecutor's office's premises.
33. On 16 November 2006 the district prosecutor's office received from the SRJI a request for access to the entire investigation file in case no. 59054.
34. On 17 November 2006 the request was dismissed since pursuant to domestic laws a victim had no right to study a case file in its entirety prior to the completion of the investigation.
35. On 19 June 2009 the applicants were informed that the investigation had been resumed.
36. On 18 February 2002 the district prosecutor's office instituted an investigation in case no. 59054 into the killings of the four men found dead in Mesker-Yurt under Article 105 § 2 of the Russian Criminal Code (aggravated murder).
37. The investigators inspected the scene of incident and found inside a half-demolished house four seriously burned dead bodies showing signs of a violent death, two AK-74 machine guns with spent cartridges and a MOH50 mine. Next to the house they found forty-nine shells for 7.62 calibre bullets and two shells for 9 mm calibre bullets.
38. On 18 February 2002 the bodies were transferred to the deputy head of the Mesker-Yurt local administration, Mr M.
39. On 18 February 2002 the investigators questioned a serviceman from military unit no. 3179, Mr I., who stated the following. On 18 February 2002 a group of servicemen had been travelling past Mesker-Yurt when they were fired at from machine guns. Their senior officer had decided to block off the area from which the firing had come; the servicemen had fired back. Then a storm unit had moved forward and found four charred corpses in the ruins, two machine guns and a mine. Some servicemen had stayed at the scene of incident, and others had gone to Mesker-Yurt to bring in investigators.
40. On the same date Mr M. was questioned and stated that on 18 February 2002 he had heard sounds of an explosion and machine-gun fire. Then some servicemen had come to his office and told him that he had been called out by the military commander of the Shali District. They had arrived at the half-demolished house owned by Mr Kh. The servicemen had told Mr M. that they had discovered four charred corpses. He had not seen the bodies himself.
41. On 18 February 2002 an officer of military unit no. 3179 (his name has not been disclosed) was questioned as a witness and stated the following. On 18 February 2002 his unit had been travelling from Khankala in four armoured personnel carriers and ten lorries after having participated in the special operation carried out there. In the vicinity of Mesker-Yurt their vehicles had been fired at. The officer had ordered the APCs to surround those who had opened fire. Four or five men had run towards a red-brick building. The servicemen had surrounded the building and fired back. At some point the servicemen had sent two missiles from a grenade launcher; the building had been set on fire. The officer's subordinates had taken two machine guns out of the building and left as they had been unable to inspect the scene more closely because of the mines scattered there. The servicemen's actions had been strictly necessary. Other servicemen from the officer's unit were also questioned and made identical depositions.
42. A resident of Mesker-Yurt was questioned and stated that Mr Kh.'s house had been demolished in the course of a special operation on 8 February 2002.
43. On 19 February 2002 the district prosecutor's office instructed the police to find witnesses and identify the deceased, but to no avail.
44. On 26 March 2002 the district prosecutor's office sent a letter to the Groznenskiy district prosecutor's office, which read, in so far as relevant, as follows:
“On 18 February 2002 four charred corpses of unidentified men were found in a demolished house ... in Mesker-Yurt. According to the statements by the servicemen of military unit no. 3179, those men had been killed by them in the course of an armed clash.
The Shali district prosecutor's office instituted criminal proceedings in case no. 59054 ...
Upon assessment of the results of an inspection of the scene of the incident it is possible to conclude that the corpses had been transferred from another place and set on fire there [in the half-demolished house in Mesker-Yurt].”
45. On an unspecified date in 2002 (the exact date on the copy of the document at the Court's disposal is illegible) the district prosecutor's office sent a letter to the VOVD and the ROVD, which read, in so far as relevant, as follows:
“On 18 February 2002 four charred corpses of unidentified men were found in a demolished house ... in Mesker-Yurt. According to statements by the servicemen of military unit no. 3179, they killed the said men in the course of an armed clash.
... There are grounds to assume that the bodies were transferred to the said place in order to stage armed resistance to hide evidence of a murder.
Accordingly, I would ask your unit to take the following investigative measures:
...
2. To identify the killed men (they were most probably brought from Starye Atagi, where a special operation had been taking place)...”
46. On 18 April 2002 the district prosecutor's office suspended the investigation.
47. On 17 May 2002 the Groznenskiy district civil registrar's office issued death certificates in respect of Movsar and Movladi Nasukhanov, stating that they both died on 14 February 2002. Gunshot wounds to their bodies and heads were specified as the cause of the death in both cases.
48. In March 2003 ballistic expert examinations of the bullets and shells found at the scene of incident were carried out. They did not match those in the ballistic database of the Chechen Republic.
49. On an unspecified date in August 2003 (the exact date on the copy of the first page of the document at the Court's disposal is illegible) the prosecutor's office of the Chechen Republic quashed the decision on suspension of the proceedings for the reason that “the investigation [had] not actually been carried out, the decision on suspension [had] been taken by an investigator prematurely and unlawfully”. It was noted that the bodies had not been formally identified and that the relatives of the Nasukhanov brothers who had stated that the dead bodies belonged to their family members had not been questioned. Moreover, a post-mortem examination of the bodies had not been ordered and carried out.
50. It appears that at some point the proceedings were resumed.
51. On 20 January 2004 the district prosecutor's office ordered a postmortem examination of the four bodies to be carried out.
52. On 22 January 2004 Mr S.Kh., a resident of Starye Atagi, was questioned as a witness. He stated that in February 2002 there had been an armed clash between the federal troops and insurgents in his village. The federal servicemen had also carried out a special “sweeping” operation, in the course of which his son and the three Nasukhanov brothers and their cousin had been arrested. The detainees had been brought to the mill where the military unit had been stationed. At the request of the local authorities the servicemen had released his son and Vakha Nasukhanov. The two Nasukhanov brothers and their cousin, as well as twelve other residents of Starye Atagi, had not been released and their fate had been unknown. Two or three days later, after the special operation in Mesker-Yurt, Mr S.Kh. had heard that four unidentified dead bodies had been found there. Together with the Nasukhanovs' relatives, Mr S.Kh. had identified three of the bodies as the Nasukhanov brothers and their cousin; the fourth body had not been identified. All the four bodies had been charred and covered in blood but Mr S.Kh. had not seen any firearm wounds on them.
53. On 27 January 2004 the first applicant was granted victim status in case no. 59054 and questioned. He stated that on 14 February 2002 the armed clash between the federal troops and insurgents had commenced in his village. The servicemen had taken away his sons and their cousin, Ruslan Nasukhayev for an identity check. On the evening of 16 February 2002 his son Vakha had been released. On 17 February 2002 he had been told that four dead bodies had been found. On 20 February 2002 the first applicant, together with the second applicant and Mr S.Kh., had seen the burned bodies. The first applicant was only able to identify Movsar and Ruslan by their clothes and shoes. Firearm wounds had been visible on the bodies.
54. On 9 February 2004 the investigators questioned Ms N., a sister of Ruslan Nasukhayev, who stated that her brother and his cousins had been arrested and detained in the mill. Later Vakha had been released but Ruslan, Movladi and Movsar had been found dead.
55. On 11 February 2004 Mr Sh.Kh., a deputy prosecutor of the town of Argun, was questioned as a witness and stated that on 18 February 2002 he had visited the scene of incident together with an investigating team. They had found two machine guns, which had been dirty and had not been used for a while. There had been gunshot wounds on the bodies. In his opinion, the deaths had occurred some five to ten hours before his arrival.
56. On 15 February 2004 the district prosecutor's office suspended the investigation for failure to identify those responsible.
57. On 9 March 2006 the district prosecutor's office received a letter from the SRJI; they replied to it on 10 March 2006.
58. On 16 November 2006 a lawyer requested the district prosecutor's office for access to the investigation file. On 17 November 2006 the request was dismissed.
59. In the Government's submission, after 15 February 2004 the investigation remained suspended. No decisions to resume or suspend the investigation were taken on 29 April 2005 and 17 November 2006.
60. On 18 June 2009 the investigating unit of the Investigating Committee of the Russian Prosecutor's Office for the Chechen Republic (“the investigating unit”) resumed the investigation in case no. 59054.
61. On 1 July 2009 the investigating unit ordered an investigating group to be set up with the participation of civilian and military prosecutors to deal with case no. 59094. The decision read, in so far as relevant, as follows:
“At about 9.30 a.m. on 14 February 2002 in the village of Starye Atagi there was a skirmish between unidentified military servicemen and unidentified members of illegal armed groups. After the skirmish the unidentified servicemen kidnapped M. Nasukhanov, born in 1980, M. Nasukhanov, born in 1981, and R. Nasukhanov, born in 1965, from the house at 34 Nuradilov Street.
At about 12 noon on 18 February 2002 (the exact time has not been established by the investigation) the dead bodies of M. Nasukhanov, born in 1980, M. Nasukhanov, born in 1981, and R. Nasukhanov, born in 1965, as well as that of an unidentified man, were found inside a partially constructed house on the north-east outskirts of the village of Mesker-Yurt.
... Having studied the case materials, [the investigators] established that sufficient grounds existed to assume that the crime had been committed with the participation of the servicemen of the Russian federal armed forces, which, in particular, is proven by the fact of the skirmish between the servicemen of military unit no. 3179 and unidentified persons.”
62. On 9 July 2009 an official of the investigating unit requested his hierarchical superiors to extend the term of the investigation in case no. 59054. The request read, in so far as relevant, as follows:
“Between 12 and 19 February 2002 in the village of Starye Atagi of the Groznenskiy District unidentified military servicemen and officers of law-enforcement agencies [who were] using APCs, UAZ and Ural vehicles were carrying out special operations for the identification of members of illegal armed groups. At about 9.30 [a.m.] on 14 February 2002 a shoot out started between unidentified servicemen and unidentified insurgents. After the shooting, unidentified servicemen kidnapped M. Nasukhanov, born in 1980, M. Nasukhanov, born in 1981, and R. Nasukhanov, born in 1965, from the houses at 32 and 34 Nuradilov Street.
At about 12 noon on 18 February 2002 ... the dead bodies of M. Nasukhanov, born in 1980, M. Nasukhanov, born in 1981, and R. Nasukhanov, born in 1965, were discovered in ... Mesker-Yurt.”
63. Despite the Court's request to the Government to submit the entire investigation file in case no. 59054, they failed to do so. They submitted what they described as “the main materials of the investigation file”, sixtytwo pages of copies of documents with inconsistent numeration, among which were the following: the decision to open criminal proceedings; the record of the scene of incident inspection; a statement confirming that Mr M. took four bodies away to bury them; one page of the record of Mr I.'s interview; Mr. M.'s interview record; one page of the interview record of an officer from military unit no. 3179; copies of instructions by the investigators to the police; an order to carry out a ballistics expert examination; a certificate confirming that Mr M. was transporting the bodies of the Nasukhanovs; a certificate issued by the Shali ROVD on 1 April 2002; ballistics expert examination reports; decisions to suspend and resume the investigation; orders to carry out medical expert examinations; a record of Mr S.Kh.'s interview, decisions to grant victim status to the first applicant and Ms N. and their interview records; the death certificates of Movsar and Movladi Nasukhanov; a decision dismissing the request for access to the investigation file; and a decision to compose an investigating group. The Government explained that since the investigation in case no. 54059 was in progress, disclosure of all the documents would be in violation of Article 161 of the Code of Criminal Procedure as it would run contrary to the interests of the parties to the proceedings.
64. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).
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