Violation of Art. 3 (in case of expulsion to Iran)

Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and is currently in GPE .

On DATE the applicant arrived in GPE and DATE he requested ORG ( Migrationsverket ) to grant him asylum and a residence permit in GPE .

The Board held a first interview with the applicant on DATE during which he stated that he was NORP ' NORP and came from a city in the south of GPE where his wife and CARDINAL minor sons remained . A smuggler had arranged for his travel to GPE and he had travelled all the way hidden in a lorry . He claimed that he had criticised the NORP government on several occasions and , the last time he had participated in a student demonstration to show his sympathy , he had been arrested . He had spent DATE in GPE prison and then been transferred to a prison in his home town where he had spent DATE . He had never been formally tried in court but DATE there had been a sort of religious trial where he had been put before a priest who had decided on his continued imprisonment . While imprisoned , he had been subjected to torture and still suffered from headaches because of it . He knew others who had participated in the demonstration and who were still imprisoned without trial .

A complete asylum investigation was conducted by ORG on DATE where the applicant maintained his initial statements and essentially added the following . In DATE he had quit his job and returned to his village to work as a farmer . He had discussed with other villagers about the lack of human rights and freedom in GPE . TIME ORG ( a “ people 's militia ” , loyal to the Supreme Leader ) had come and destroyed his fields with a tractor . When he had tried to report the incident to the police , they had advised him not to , since it would lead nowhere . He had also expressed his opinion of the government when he had watched television in public places . ORG had later destroyed his car , thrown stones at his house and sent messages that he should stop his activities and “ information evenings ” . He had received the threats through a relative of his wife who worked for the regime . The threats had commenced in DATE but had become more serious after he had participated in his first demonstration in DATE . It had been a student demonstration and he had escaped when the police intervened . On DATE he had participated in his second student demonstration where he had been arrested because police had closed off all escape routes and had been filming the protesters as evidence . Many others had also been arrested . During the demonstration they had shouted slogans against the president and the government and demanded the release of student prisoners . In GPE prison he had been tortured . He had been stabbed twice in the thigh , boiling water had been poured over his chest and his captors had hit him with their fists . However , on DATE , he had been transferred to the prison in his home town . He had been planning to escape for DATE by being very co - operative with the prison guards so that he had earned their trust . The “ religious trials ” had taken place at a court outside the prison and the applicant had spoken with CARDINAL of his friends , who had visited him in prison to help him . On DATE he had been taken to the court and his friends had been there . He had worn his normal clothes under his prison outfit and he had not had any handcuffs as the guards trusted him . He had told the guard that he had to go to the bathroom , where he had taken off his prison outfit . In the meantime one of his friends had gone to start the car and another friend had spoken to the guard to distract his attention from the applicant . The applicant had then walked straight out of the court , got into the car and they had driven off . It had been a revolution court and there had been a lot of people . He had then remained hidden at a friend 's home for DATE while his friend had found a smuggler to help him out of the country . While he had been in hiding , his wife had been taken to the police twice for questioning about his whereabouts . His father had also been questioned . The applicant underlined that he was not , and never had been , a member of a political party or any organisation and that he had never been formally convicted of any crime . He was convinced that he would be executed if returned to GPE since he had escaped from prison and because he would be accused of having co - operated with those who are against ORG .

The applicant further stated that he continuously suffered from headaches and sleeplessness and had problems with his legs . He submitted a medical certificate , dated DATE and issued by PERSON , a physician at a local health care centre . The certificate stated that the applicant had scars around both ankles , scars on the outside of both kneecaps and CARDINAL lateral scars on his left thigh . He also had a reddish area stretching from his neck down to his chest and when he yawned there was a loud clicking sound from the left side of his jaw . In the physician 's opinion , these injuries could very well originate from the torture to which the applicant claimed that he had been subjected in GPE , namely , that he had been chained around his ankles and suspended upside down for TIME , that boiling water had been thrown at his chest , that he had received blows to his head , jaw , abdomen and legs , and that he had been stabbed twice in the left thigh with a bayonet .

On DATE ORG rejected the request . It first noted that the applicant had not claimed to have been a member either of an organisation or of a political party or to have had a leading role in the organisation of demonstrations . Moreover , the proceedings before the revolutionary courts were in general not open to the public . The ORG found that the applicant had not substantiated his story in any way and that he had thus failed to show that he had been , or would be , of interest to the NORP authorities . It therefore considered that the applicant would not attract special attention from the NORP authorities if he were to be returned to his home country . As concerned the ill - treatment and torture of which the applicant claimed to have been the victim , the ORG found that the medical certificate did not prove that he had been tortured even if the injuries documented could very well originate from the torture described . In its view , there was no reason to believe that the applicant would be subjected to ill - treatment or torture upon return to GPE . Thus , it concluded that the applicant could neither be granted asylum in GPE nor a residence permit based on humanitarian grounds .

The applicant appealed to ORG ( Utlänningsnämnden ) , maintaining his claims and adding that CARDINAL of the inhabitants in his home town knew him since he used to be a football player . Moreover , he had been CARDINAL of CARDINAL organisers of the demonstration held in DATE . They had written the banners and decided which slogans to use . The other organisers , who were students and previously imprisoned critics of the regime , had also been punished . Following his escape , his wife had been taken in for questioning about his whereabouts on CARDINAL occasions and had been kept in detention on QUANTITY occasions . His father had been questioned on QUANTITY occasions and their home had also been searched on QUANTITY occasions . The applicant further claimed that he had been kept in an isolation cell for DATE of his detention . Furthermore , the public had access to hearings before the revolutionary courts and it had been relatively easy for him to escape since his friends had distracted the guards and he had thus been able to leave the building . Lastly , submitting CARDINAL medical certificates , the applicant invoked his deteriorating health as he suffered , inter alia , from depression and panic attacks .

In DATE the applicant was informed that the case would be transferred to ORG ( Migrationsdomstolen ) for further proceedings , following the entry into force of a new LAW ( see below under LAW ) .

On DATE ORG held an oral hearing . In response to his lawyer 's questions the applicant stated , inter alia , that he had participated in demonstrations critical against the regime since DATE and that , in DATE or CARDINAL , he had started to notice that his criticism was not appreciated . He had participated in yearly demonstrations , such as on women 's day and on labour day . Mostly he had participated in meetings on various LOC . A relative of his wife had been an official at the intelligence agency and thus he had been assured that nothing would happen to him . He had been CARDINAL of CARDINAL participants in the demonstration in DATE and he had played no special role , but it had been monitored by the authorities . He had been arrested and accused of being against ORG and the regime . In connection with a visit by his wife to PERSON prison while he was there , she had been detained for DATE and questioned about him . However , no other relatives had been summoned or questioned by the authorities . He had escaped when his friends had come to the revolutionary court for his hearing and had pretended to have a fight with each other so that he could go to the toilets to change . It had then taken him TIME to leave the building since there were no exit controls . In response to questions by ORG , the applicant claimed that he had organised demonstrations and that he had been CARDINAL of the leaders at the demonstration in DATE . He had been arrested because he had been in the front row and had shouted slogans .

In a judgment of DATE , ORG , by CARDINAL votes to one , rejected the appeal . It first noted that the applicant appeared to have expanded his grounds for asylum by claiming that he had not just participated in demonstrations but had actually been involved in organising them . However , since he had not been a member of a party or an organisation which was critical of the regime , the court found it unlikely that he would be of any interest to the authorities in his home country if he returned . It further considered that the applicant 's account of how he had escaped from the revolutionary court was not credible , having regard , inter alia , to international sources which stated that insights into the functioning of the revolutionary courts were very limited . The court also noted that he had remained in GPE for DATE following his escape before leaving the country . Moreover , it found that the applicant had failed to show that he had been tortured in ORG and that his health problems were not of such a serious nature that he could be granted leave to remain on humanitarian grounds .

CARDINAL of the CARDINAL lay judges dissented as he considered that the applicant had given a credible account of events and should be granted asylum as a refugee in GPE .

On DATE the applicant appealed to ORG ( Migrationsöverdomstolen ) , maintaining his claims and stating that he was only telling the truth . He was also of the opinion that ORG had failed to take into account the medical certificate testifying to his torture injuries . He further requested some extra time in order to submit certain documents that his family had sent to him from GPE . The court granted an extension of the time - limit and , on DATE , the applicant submitted , among other things , CARDINAL summonses , CARDINAL to his wife and CARDINAL to his father , to appear before the revolutionary court in his home town on DATE to answer questions concerning the applicant and his escape from prison .

On DATE ORG refused leave to appeal .

The applicant was called to a meeting with ORG on DATE .

On DATE , following a request by the applicant , the President of the ORG to which the case had been allocated decided , under LAW , to indicate to ORG that it was desirable in the interest of the parties and the proper conduct of the proceedings before the ORG not to deport the applicant to GPE until further notice .

Following the request by the ORG , on DATE ORG stayed the enforcement of the deportation order until further notice .

Upon request by ORG , the applicant submitted a forensic medical report dated DATE and issued by PERSON , specialist in forensic medicine at the Crisis and Trauma Centre at FAC . The report was drawn up on the basis of the protocols from the interviews with the applicant before ORG , the medical certificate by PERSON , a letter from the applicant 's representative dated DATE and the applicant 's own story as told to PERSON during his examination on DATE . The report contained photos of the scars together with a written protocol of all the scars and the medical record from the examination as well as Dr PERSON 's opinion .

NORP The report noted that the applicant had claimed that he had been tortured in prison in DATE and that the torture had consisted of beating with fists , kicks , being hit on his kneecaps with rifle butts , having a bayonet stuck twice in his thigh , as well as being flogged , suspended upside down for prolonged period of times and having hot water poured over him . He further stated that , as a result of the torture , he suffered from chronic headaches , reduced feeling in his right thigh , reduced mobility of his jaw , reduced eye sight , an ulcer , pain in his knees when walking and medical problems with his thyroid gland and diabetes . Dr GPE examined the applicant and found numerous scars on his body .

In Dr PERSON 's opinion , the injuries invoked by the applicant could very well have occurred in DATE as claimed and the scars observed on his body had the appearance and localisation which corresponded well with his statements of how they had appeared . For example , the scars on his kneecaps could well correspond to blows with rifle butts , the marks on the front of his shins from having been kicked with boots , the marks on his left ankle could have appeared as a consequence of having been suspended upside down by his ankles and the pigmentation on his neck corresponded well with a burn injury . In conclusion , PERSON noted that , in cases like this , alternative causes for the origins of the scars could not be completely excluded but that experience showed that self - inflicted injuries and injuries resulting from accidents normally had a different distribution to those showed by the applicant . The findings in the present case favoured the conclusion that the injuries had been inflicted on the applicant completely or to a large extent by other persons and in the manner claimed by him . Thus , the findings strongly indicated that the applicant had been tortured .

The basic provisions mainly applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in the DATE LAW ( Utlänningslagen , DATE hereafter referred to as “ the DATE LAW ) which replaced , on DATE , the old LAW ( Utlänningslagen , DATE ) . Both the old Aliens Act and the DATE Act define the conditions under which an alien can be deported or expelled from the country , as well as the procedures relating to the enforcement of such decisions .

Chapter CARDINAL , LAW , of the DATE Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE . According to LAW , LAW , of LAW , the term “ refugee ” refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , religious or political beliefs , or on grounds of gender , sexual orientation or other membership of a particular social group and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By “ an alien otherwise in need of protection ” is meant , inter alia , a person who has left the country of his or her nationality because of a well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of the DATE Act ) .

As regards the enforcement of a deportation or expulsion order , account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of the DATE Act ) . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , LAW , of the DATE Act ) .

Under certain conditions , an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force . This applies , under LAW , LAW , of LAW , where new circumstances have emerged that mean there are reasonable grounds for believing , inter alia , that an enforcement would put the alien in danger of being subjected to capital or corporal punishment , torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced . If a residence permit can not be granted under this provision , ORG may instead decide to re - examine the matter . Such a re - examination shall be carried out where it may be assumed , on the basis of new circumstances invoked by the alien , that there are lasting impediments to enforcement of the nature referred to in LAW , Sections CARDINAL and CARDINAL , of LAW , and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so . Should the applicable conditions not have been met , ORG shall decide not to grant a re - examination ( LAW , LAW , of LAW ) .

NORP Under LAW , matters concerning the right of aliens to enter and remain in GPE are dealt with by CARDINAL instances ; ORG , ORG and ORG ( LAW , LAW , and LAW , LAW , of LAW ) . Hence , upon entry into force on DATE of the DATE Act , ORG ceased to exist .

On DATE ORG of ORG PACE ) adopted a resolution on the situation in GPE in which it urged the NORP authorities to refrain from using force and violence against peaceful demonstrators and to release the CARDINAL demonstrators arrested since the elections on DATE as well as the CARDINAL politicians , members of their families and journalists detained . At its subsequent session in GPE , on DATE , ORG of the PACE , adopted a declaration in which it considered the violent reactions of the NORP authorities to peaceful protests to be a serious breach of NORP citizens ' human rights . It also called upon governments of other countries not to expel NORP citizens to GPE .

In a report ( A/CARDINAL/CARDINAL ) of ORG Secretary - General on The situation of human rights in GPE , dated DATE , and presented to ORG at its CARDINALth session , it was noted that DATE had seen an increase in human rights violations targeting women , university students , teachers , workers and other activist groups , particularly in the aftermath of the elections in DATE . Hence , during DATE and DATE , several independent ORG experts as well as the Secretary - General had voiced grave concerns about the use of excessive police force , arbitrary arrests , killings , ill - treatment of detainees and the use of torture to obtain confessions . Moreover , a variety of cases suggested a widespread lack of due process , access to lawyers and the failure to respect the rights of detainees , including allegations that individuals had been placed in detention without charge and had been kept “ incommunicado ” . It was noted that no visits by any special procedure mandate holders had taken place since DATE .

In its ORG DATE , ORG noted that respect for basic human rights in GPE continued to deteriorate and that the government showed no tolerance for peaceful protests or gatherings , routinely detaining participants and subjecting them to torture . The ORG and ORG continued to be responsible for many serious human rights violations . ORG , in its ORG DATE , made the same findings , also noting that demonstrations frequently led to mass arrests and unfair trials . Some were also detained without trial for long periods beyond control of the judiciary and were reported to have been tortured and denied access to lawyers and their families . ORG has repeatedly observed that trials before the revolutionary courts are not public . For instance , on CARDINAL August DATE , in its article “ Over CARDINAL NORP face grossly unfair trials ” , ORG noted that CARDINAL persons had gone on trial in GPE accused of organising widespread civil protests . The trial was held before ORG in GPE and it was closed to the public and even to the defendants ' lawyers .

According to Sections CARDINAL.CARDINAL and CARDINAL of ORG on GPE , dated DATE , the pressure for democratic reform in GPE changed dramatically after the student protests at ORG in DATE . DATE on DATE event , students have gathered at ORG and other major campuses throughout the country and the date has been a flashpoint for violence and tension ( Section CARDINAL.CARDINAL ) . Thus , in DATE , CARDINAL of NORP took to the streets and CARDINAL people were arrested all over the country before and after the protests . Although many of them had since been released , there were still scores of students behind bars . Some of these had been in prison since they were arrested as a result of similar disturbances in DATE , DATE and DATE .

Section CARDINAL of the U.K. Report further noted that in “ Evaluation of the DATE Country of ORG on GPE ” by PERSON PERSON GPE and Dr PERSON of ORG at ORG , dated DATE , it appeared that , if an NORP arrived in the country without a passport or any valid travel documents , they would be arrested and taken to a special court at FAC in GPE where the background of the individual , the date of their departure from the country , the reason for their illegal departure , their connection with any organisations or groups and any other circumstances would be assessed . This procedure also applied to people who were deported back to GPE , not in the possession of a passport containing an exit visa ; in this case ORG would issue them with a document confirming their nationality . Illegal departure was often prosecuted in conjunction with other , unrelated offences since the investigation into the facts surrounding the offence of illegal departure could result in the discovery of an underlying offence .

ORG report FAC , Women and NORP , and ORG , ORG , ORG and Reporting , etc . , released in DATE , following a fact finding mission to GPE from DATE to DATE , stated that some of its sources had claimed that the granting of travel documents at an NORP embassy did not necessarily mean that the person would not face problems with the NORP authorities upon return to GPE . The person in charge of passport border control at the NORP FAC in GPE ( a newly built airport which had replaced GPE airport ) had explained that an NORP travelling on a laissez - passer was likely to be interviewed upon arrival in GPE and questioned about how he or she had lost the previous passport . However , if a person arrived in GPE on a travel document issued by an NORP representation and the security check had been completed at the embassy , the airport authorities would not check his or her identity . The authorities at the airport would , however , ask the person how he or she had left GPE , since there was no exit stamp in his or her new travel document . A source in GPE claimed that , if a person had left GPE illegally , he or she had not been registered in the computer system as having left GPE and therefore would be questioned upon return . It was added that a person who had left the country illegally could also be arrested if he or she had committed an illegal act before leaving GPE . It was further observed that a person on a laissez - passer , issued by an NORP representation abroad , might be fined for illegal exit or subjected to TIME interrogation .


Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva

The names of the applicants , CARDINAL NORP nationals , are available for consultation in the ORG ’s file . They were represented before the ORG by PERSON , a lawyer practising in GPE .

The facts of the case , as submitted by the applicants , may be summarised as follows .

The applicants are CARDINAL NORP believers , including the person who used to be their parish priest . For DATE until the impugned events they attended religious services at FAC in GPE .

In accordance with the Statute of ORG ( “ the ORG ” ) , the “ temple ” is a legal person and part of ORG . It is governed by a church council , a body elected at a meeting of the parish and approved by the relevant eparchy .

Some of the applicants are members of the church council governing ORG .

Since DATE and until the events at issue the parish priest at GPE was PERSON , one of the applicants . In accordance with the procedure set out in the Statute of the Church , priests are ordained after approval by the respective eparchy and by ORG and elections conducted by secret ballot at a meeting of the parish .

During the same period , by virtue of a decision of CARDINAL DATE of the FAC and FAC , Mr PERSON was also chairman of the church council at FAC .

At the time of the impugned events , in DATE , the persons elected at a parish meeting held at DATE were the remaining members of the church council . The results of those elections were approved by the eparchy and registered at the FAC municipality in DATE , in accordance with LAW , which provided for such registration .

For DATE after DATE of communism and the beginning of the democratic changes in GPE after , ORG ( “ the ORG ” ) was divided . CARDINAL groups of leaders claimed legitimacy and sought to unite the believers under their leadership . Over DATE , successive governments supported CARDINAL or other of the CARDINAL leaderships . Also , each group had supporters among the clergy and the believers . A number of churches and monasteries became known as “ belonging ” to “ the alternative ORG ” presided over by metropolitan ORG , since the ministers in those places recognised his leadership . After DATE , CARDINAL different versions of the Statute of the Church existed . Contradictory acts registering CARDINAL or the other central leadership were issued DATE and some of them were later quashed by the courts ( see for a detailed account of these events , the ORG ’s judgment in the case of ORG of ORG ( Metropolitan Inokentiy ) and Others v. GPE , nos . PERSON and CARDINAL , DATE ) .

The applicants supported the “ alternative ORG ” presided over by FAC and did not accept the leadership of PERSON and the ORG presided over by him .

On DATE the new Religious Denominations Act CARDINAL came into force . It provided , inter alia , for the ex lege recognition of ORG . It also introduced a provision which stated that the ORG “ is headed by ORG and is represented by ORG ... ” The LAW prohibited CARDINAL denomination carrying the same name and stated , in its transitional provisions , that persons who had seceded from a registered religious institution were not entitled to use its name or assets .

On DATE the church council governing ORG in GPE gathered and adopted a decision declaring that the temple recognised the leadership of ORG presided over by FAC .

On DATE PERSON , the leader of the “ alternative LAW , issued a decision which stated that PERSON L.Popov was reappointed as parish priest and chairman of the church council at ORG in GPE .

On DATE several priests and other ministers led by Archimandrite PERSON , the PERSON of the FAC and Veliki Preslav Eparchy , entered the area around FAC and occupied it , refusing to let in members of the church council and the parish priest . They claimed that they were the true representatives of the ORG whose true head was PERSON .

PERSON and some of the other applicants informed the police and the prosecuting authorities and requested urgent action .

The district prosecutor initially issued a decision ordering the restoration of the situation but on DATE , CARDINAL DATE , having received a letter from the FAC and FAC , annulled his decision on the basis that urgent action was not called for . The decision of CARDINAL DATE was upheld on CARDINAL May and DATE by the regional and appeals levels of the prosecuting service on the basis that prosecutors should not intervene in an internal ORG dispute and having regard to the special procedure under Article ORG of LAW ( see below ) .

On DATE Mr PERSON , acting as chairman of the church council governing ORG , submitted an application to ORG for an order under Article PERSON of LAW to recover possession of the temple . Under that provision the claimant had to prove that he enjoyed the possession of a real property and that the defendant had deprived him thereof secretly or through violence .

On DATE the ORG delivered its decision dismissing the application . It reasoned as follows .

As to the admissibility of the application , it noted that under LAW , a church council could initiate judicial proceedings only with the authorisation of the eparchy or , in cases of eparchies comprising CARDINAL sole parish and a sole priest , of ORG . In the case under examination the claimant had submitted a document demonstrating that ORG presided over by FAC had approved the church council ’s decision to bring the proceedings at issue . Given the existence of CARDINAL religious communities bearing the name ORG , as noted by ORG in its judgment of DATE ( as to that judgment , see ORG and Others v. GPE , cited above , § CARDINAL ) , it was unclear which leadership was competent to give the requisite authorisation . This lack of clarity should not , however , hamper the possibility for each of the CARDINAL communities to seek judicial protection . Therefore , the authorisation presented by the claimants was sufficient and the application was admissible .

ORG accepted that the application was made on behalf of the local temple , which was a legal person under LAW , and that it had been made in the name of a local unit of the ORG governed by the “ alternative ” Synod .

It noted , however , that PERSON had been appointed parish priest and chairman of the local church council by decision approved by the FAC and FAC , who had also approved other decisions of the same church council . ORG presided over by PERSON had certified that ORG was the head of the FAC and Veliki Preslav Eparchy . In these circumstances , contrary to what was claimed in the application , the claimant had not possessed the disputed property on behalf of the religious organisation presided over by FAC but for the organisation presided over by PERSON . Seeing that those who had entered and occupied the property belonged to the same organisation , it followed that there had been no deprivation of possessions .

Upon the appeal submitted by Mr PERSON on behalf of the local temple , on DATE ORG annulled ORG decision and terminated the proceedings . The court noted that the claimant and the defendants belonged to the religious organisation of the NORP community in GPE . However , the State was not entitled to intervene in intra - religious matters and the courts were not competent to decide whether or not there had been a deprivation of possessions as in the particular circumstances the events concerned the manner in which the ORG governed its property . The courts could only deal with matters touching upon an internal conflict in a religious organisation if there was an issue of liability other than liability under canon law .

The court further stated that even if it were accepted that the courts were competent to examine the application , it was in any event inadmissible . In particular , it was unclear whether it was made on behalf of the local temple as a legal person or on behalf of the church council which did not have legal personality separate from the temple and could not claim to have possessed the temple in its own name . That should have been clarified by ORG .

Furthermore , there was no valid authorisation to institute proceedings , as required by Article ORG ) of the Statute of the ORG . Such authorisation could be issued by ORG solely in respect of eparchies comprising CARDINAL sole parish , which was not the case in the FAC and Veliki Preslav Eparchy . The authorisation in the particular case thus had to be issued by the bodies governing the eparchy . It had not been shown that such authorisation had been given .

The decision of ORG was final and was not amenable to further appeal .

In accordance with LAW of DATE , religious institutions are separate from the ORG . In its judgment no . CARDINAL of DATE ORG stated , inter alia , that the ORG must not interfere with the internal organisation of religious communities and institutions , which must be regulated by their own statutes and rules .

LAW DATE governed the organisational structure and functioning of religious denominations between DATE and DATE . It provided that each religious denomination had to apply for registration and approval of its statute by ORG and to register its leadership with the ORG . The local leaderships were registered by the municipal authorities .

In its judgment no . CARDINAL of DATE ORG , while agreeing that certain provisions of LAW DATE were clearly unconstitutional , found that it was not its task to repeal legal provisions adopted prior to the entry into force of the DATE LAW , the ordinary courts being competent to consider them superseded by LAW , which has direct applicability .

LAW , which entered into force on DATE , provides for judicial registration of all religious denominations except ORG , which is recognised as a legal person ex lege . In accordance with paragraph CARDINAL of the transitional provisions , ORG need not be re - registered under LAW , unlike all other religious denominations .

Section CARDINAL of the new LAW provides , inter alia , that ORG is a legal person whose structure is determined by its internal statute .

Section CARDINAL provides that information about religious denominations , including the names of the persons representing them for all legal purposes , is recorded ( вписване ) in a public register at ORG . ORG has stated that this requirement applies to ORG ( judgment no . CARDINAL of DATE in case no . CARDINAL ; see also the same interpretation in other judgments : ORG , judgment of DATE in case no . CARDINAL , and ORG , judgment no . CARDINAL of DATE in case no . CARDINAL ) .

Section CARDINAL provides that local religious leaderships must register with the relevant municipality .

Section CARDINAL provides that the central leadership may decide to seek the registration of its local organisations as legal persons by applying to the relevant regional court .

In accordance with the transitory and final provisions to LAW ( paragraph CARDINAL ) ) , local organisations which have obtained legal personality under the previous legal regime shall be registered ex officio at the respective regional court on request by the denomination ’s national leadership .

In civil or administrative proceedings involving local units of religious denominations ( опред. № DATE от CARDINAL на ВАС по PERSON DATE ; oпред. № DATE от CARDINAL г. на PERSON по адм. д. № CARDINAL DATE ; реш. от CARDINAL по гр. д. № DATE г. на Районен съд GPE ; oпред. № CARDINAL от CARDINAL г. по гр.д. № CARDINAL/CARDINALг. на ВKC ; реш. oт ORG по гр.д. № CARDINAL/CARDINAL на GPE съд NORP ) , the courts have accepted such PERSON locus standi without proof of registration at the relevant regional court , reasoning that LAW CARDINAL recognised the continuity of legal status acquired under previous legislation ( see also , реш. № CARDINAL от CARDINAL на ВАС по PERSON № DATE and oпред. № DATE от CARDINAL г. на ORG по адм. д. № CARDINAL г. , where the same interpretation of the relevant law was implicit ) .

In the initial period after the entry into force of LAW there was contradictory judicial practice on the question whether registration under section CARDINAL of LAW was needed in respect of local organisations of ORG . In its interpretative decision No . CARDINAL of DATE , ORG decided that local organisations of the ORG were not subject to the registration requirement , having regard to the special status of ORG as a legal person ex lege .

An account of additional relevant domestic law and practice has been set out in the ORG ’s judgment in the above - cited case of ORG of ORG ( Metropolitan Inokentiy ) and Others v. GPE .


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . The respondent Government were represented by PERSON , their Agent .

The facts of the case , as submitted by the parties , may be summarised as follows .

Proceedings concerning the applicant ’s action against ORG and ORG

On DATE the applicant lodged an action for protection of his reputation with the Bratislava I ORG . He claimed that a film concerning his person produced by the defendant company was defamatory .

On DATE the action was transferred to GPE ORG for reason of jurisdiction . On DATE the Bratislava III ORG found that it lacked jurisdiction to deal with the case . On DATE the case file was submitted to ORG and on DATE the latter instructed GPE ORG to deal with the case .

On DATE ORG held a hearing . The applicant submitted a document dated DATE by which he amended his action and explained that it was directed also against ORG . The case was adjourned as the presiding judge considered herself biased .

On DATE the ORG excluded CARDINAL ORG judges from dealing with the applicant ’s case .

DATE and DATE the ORG unsuccessfully attempted to obtain from ORG the file concerning criminal proceedings against the applicant which had been terminated earlier and which had given rise to the film in question . The file could not be submitted to ORG as it was needed in the context of examination of the applicant ’s request for re - opening of the criminal proceedings .

On DATE the president of GPE ORG transferred the case to a different chamber .

On DATE GPE ORG granted the applicant ’s request to extend the action and to consider also ORG as a defendant in the case .

On DATE ORG held a hearing .

On DATE ORG , a.s . informed ORG that it was the legal successor to ORG .

On DATE and on CARDINAL DATE the applicant submitted to ORG the judgment delivered in the criminal proceedings against him and also a decision by which his request for re - opening of the criminal proceedings had been dismissed .

On DATE ORG summoned the applicant ’s lawyer to an informative hearing . The lawyer appeared on DATE .

On DATE a judge of the Bratislava III ORG heard the applicant ’s lawyer .

On DATE the Bratislava III ORG discontinued the proceedings .

On DATE ORG quashed the first instance decision .

On DATE CARDINAL of the defendants informed the court that a different company owned the rights in respect of the film . On DATE the court requested the company concerned to submit a video - tape of the film . On DATE a representative of the company informed the court that the company did not possess the film .

On DATE the case was adjourned as one of the defendants failed to appear .

Subsequently the applicant requested that the case be transferred to a different court . ORG decision to dismiss this request was served on the applicant ’s lawyer on DATE .

On DATE CARDINAL of the defendant companies informed the court that it had become bankrupt and requested that the proceedings be adjourned .

ORG held hearings on DATE and on DATE . The case was adjourned until DATE . The proceedings are pending .

Proceedings concerning the applicant ’s action against a publisher

On DATE the applicant brought proceedings for protection of his reputation on the ground that a book published by “ PERSON - vydavateľstvo a nakladateľstvo odborárov na ORG ” contained defamatory statements in respect of his person . On CARDINAL DATE the applicant paid the court fees .

Subsequently the GPE I ORG took several procedural steps with a view to obtaining the relevant documentary evidence .

On DATE the judge invited the applicant ’s lawyer to specify which statements he considered defamatory . The applicant was further informed that the court could not proceed with the case as the criminal file concerning the applicant ’s case , which the ORG deemed necessary to consult , had been sent to ORG NORP and GPE .

On DATE the applicant submitted further information to the Bratislava I ORG at the latter ’s request .

On DATE the Bratislava I ORG suspended the proceedings as the file concerning criminal proceedings against the applicant was still being examined by ORG .

On DATE ORG requested the latter to submit the criminal file to it . On DATE ORG replied that a complaint in the interest of the law had been lodged on the applicant ’s behalf in the criminal proceedings and that the case file had been submitted to ORG of the NORP and GPE .

On DATE the president of the Bratislava I ORG assigned the applicant ’s case to a different judge . The latter received the case file on CARDINAL DATE .

On DATE ORG requested the above criminal file . On DATE ORG replied that the file was about to be sent to ORG in the context of examination of the applicant ’s request for re - opening of the criminal proceedings . Subsequently the ORG reiterated the request several times .

On DATE the Bratislava I ORG adjourned the case . On CARDINAL DATE the applicant submitted further information at the judge ’s request .

A hearing scheduled for DATE was adjourned as the defendant could not attend . The applicant requested that the case be transferred to ORG . On CARDINAL DATE ORG dismissed this request .

The parties failed to appear at a hearing scheduled for DATE .

On DATE ORG adjourned the case as the defendant ’s counsel claimed that his client was not a successor to the company against which the applicant had originally lodged his action .

On DATE the applicant ’s lawyer asked for access to the companies register with a view to establishing the relevant facts concerning the defendant . On DATE and on DATE the GPE I ORG judge requested the relevant file from the companies register .

On DATE the applicant requested a change in the defendants .

On DATE the case was assigned to a different judge .

On DATE the applicant was requested to specify his claims . He replied on DATE . The proceedings are pending .

LAW provides , inter alia , that every person has the right to have his or her case tried without unjustified delay .

As from DATE , the LAW has been amended in that , inter alia , individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to LAW which reads as follows :

“ CARDINAL . The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by GPE ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .

When the Constitutional Court finds that a complaint is justified , it shall deliver a decision stating that a person ’s rights or freedoms set out in paragraph CARDINAL were violated as a result of a final decision , by a particular measure or by means of other interference . It shall quash such a decision , measure or other interference . When the violation found is the result of the failure to act , ORG may order that [ the authority ] which violated such rights or freedoms should take the necessary action . At the same time ORG may return the case to the authority concerned for further proceedings , order that such an authority abstain from violating fundamental rights and freedoms ... or , where appropriate , order that those who violated the rights or freedoms set out in paragraph CARDINAL restore the situation existing prior to the violation .

In its decision on a complaint ORG may grant adequate financial satisfaction to the person whose rights under paragraph CARDINAL were violated . ” ...

The implementation of the above constitutional provisions is set out in more detail in Sections CARDINAL of Act No . CARDINAL/CARDINAL ( LAW ) , as amended with effect from DATE .

After that date ORG delivered a number of decisions in which it found a violation of LAW ) of the LAW , ordered the general court concerned to avoid any further delays in the proceedings and awarded the successful complainants financial compensation in respect of delays which had already occurred .

According to an explanatory letter by the president of ORG of DATE , nothing prevents ORG from dealing with complaints about length of proceedings in cases in which proceedings have also been instituted before ORG provided that the domestic proceedings complained of are still pending at the moment when the constitutional complaint is filed .


TOPPLAN ESTATES LTD v. THE UNITED KINGDOM

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza

The applicant , is a limited company registered in GPE . It is represented before ORG Iwanier , a firm of lawyers practising in GPE . The respondent Government are represented by PERSON PERSON , ORG .

The facts of the case , as submitted by the parties , may be summarised as follows .

In DATE , the applicant purchased , from the liquidators of an insolvent company , QUANTITY of land consisting of open fields in GPE and was registered as proprietor of the land at ORG . A neighbouring farmer , whose father had held a grazing licence over the land , had been using the land for grazing and for harvesting hay , without any right to do so , since DATE , but the applicant was unaware of this at the time of purchase .

On DATE , ORG dismissed the applicant ’s claim to possession in respect of all but a very small portion of the land which had been used by the local council during roadworks . ORG found that the farmer had been in adverse possession from DATE and had remained so for DATE from that date , except in the case of the working area . As such , it considered itself bound by the decision in PERSON ( ORG Another [ DATE ] CARDINAL AC CARDINAL to order that the farmer be registered as proprietor of the land other than the working area .

ORG dismissed the applicant ’s appeal on DATE for essentially the same reasons as those given by ORG . It held , inter alia , that there was no obligation in law for a squatter to draw the true owner ’s attention to the fact that time was running against him and concluded , as had ORG , that the farmer ’s activities on the land had been open and apparent .

ORG refused the applicant leave to appeal to ORG on DATE . ORG refused the applicant leave to appeal on DATE .

The domestic law on limitation and adverse possession is set out in ORG ( ORG v. GPE [ ORG ] , no . CARDINAL , § § CARDINAL , ORG CARDINAL,-


The applicant is NORP citizen , born in DATE and resident in FAC , GPE . He is represented before ORG by PERSON , a solicitor practising in GPE .

A.

On DATE , the applicant was arrested for obtaining property by deception in connection with fraudulent claims against ORG ( ORG ) . He was subsequently charged with his wife of CARDINAL counts :

Count CARDINAL : - Obtaining property by deception - dishonestly obtaining £ MONEY in unemployment and supplementary benefits and income support payments from the ... “ DHSS ” DATE by falsely representing that they were unemployed , not in receipt of income and had no capital savings .

Count CARDINAL : - Obtaining property by deception - dishonestly obtaining £ CARDINAL,CARDINAL.CARDINAL in housing benefits from ORG DATE and CARDINALth DATE by falsely representing that they were unemployed , not in receipt of income and had no capital savings and fulfilled the requirements for eligibility for unemployment and supplementary benefits and income support payments .

After committal for trial in DATE , the first pre - trial hearing was held in FAC on DATE . The applicant and his wife were jointly represented and pleaded not guilty . The applicant received legal aid for representation by solicitor and counsel .

On DATE , at the second pre - trial hearing , counsel informed the court that he was unable , due to a conflict of interest , to represent both the applicant and his wife and that the applicant would have to instruct fresh lawyers . The judge ordered the defendants to serve their accountant ’s report on the prosecution within DATE . A problem with the payment of the accountant ’s fees was drawn to the judge ’s attention .

On DATE , the applicant ’s counsel invited the judge at the third pre - trial hearing to express a view as to the necessity for an accountant ’s report , with a view to facilitating the request for legal aid for this purpose . The judge declined , expressing the view that the issues in the trial as to whether the applicant had income and if so , was he dishonest in representing to the authorities that he had none , did not require an accountant . The trial was listed to be heard on DATE .

ORG , on a date unspecified , refused to grant legal aid for an accountant ’s report . The applicant has not provided the decision . Correspondence prior to the decision included a warning by ORG that legal aid would be limited to the fees set in the relevant guidelines and that any further amounts would have to be justified on submission of the bill .

On DATE , the applicant ’s counsel applied to the trial judge for an adjournment for DATE to permit the applicant to apply for a loan to pay for the report , have the report prepared and served on the prosecution . The application was refused , the judge not being satisfied from counsel ’s submissions that there was at least an arguable defence that would be supported by such an accountant ’s report .

On DATE , without warning his lawyers , the applicant did not appear in court . He provided a letter which stated that he could not have a fair trial without an accountant and gave his reasons for that belief . After some deliberation , the judge decided to proceed with the trial in his absence . His counsel continued to represent him .

In summary , the evidence proved that the applicant ’s wife had “ signed on ” DATE on the family ’s behalf , representing that she and the applicant were unemployed , had no income , capital or savings or property apart from the family home . The prosecution also presented evidence to show that during the relevant period the applicant was working and did have some income , savings and capital .

On DATE , the applicant and his wife were convicted . Sentence was adjourned until DATE . On DATE , his wife was present and represented . The applicant still did not attend . The applicant was sentenced to CARDINAL years’ imprisonment and his wife to CARDINAL months’ imprisonment . Joint and several compensation orders were made for repayment of the benefits , plus interest .

On DATE , a single judge of ORG refused leave to appeal . On DATE , leave was granted by the full court . The applicant argued that the counts against him were duplicitous as they purported to cover a single “ obtaining ” of property whereas in reality they covered multiple “ obtainings ” . He also argued that the trial should not have continued in his absence and that he should have been granted an adjournment to obtain an accountant ’s report .

On DATE , the appeal was heard before ORG . It dismissed the appeal against conviction but reduced the applicant ’s sentence to DATE .

In respect of the applicant ’s counsel ’s arguments that the counts against him were duplicitous , ORG held that it was not duplicitous in form . Any duplicity in substance could have been discovered at or before the trial by requiring particulars from the ORG and if duplicity was shown , a motion to quash the indictment could have been moved . No such step had been taken by counsel and it was not being submitted by counsel at the appeal that trial counsel had been flagrantly incompetent in not doing so . The allegation that defence counsel had erred in failing to taking a particular step was not sufficient . It may indeed have been counsel ’s view that this method of proceeding was simpler and to the applicant ’s advantage .

As regarded the refusal of an adjournment and the applicant ’s refusal to attend without an accountant , ORG noted that “ the trouble was that the fee that ORG was prepared to pay to cover the accountant for legal aid was not nearly as much as the accountant wanted and the < applicant > was reluctant to have any other accountant . ” It referred to the views of the judges at the pre - trial hearings that the case did not require an accountant . For the applicant to say that if the court did what he wanted he would come to court but that if it did not he would not was totally unacceptable behaviour . ORG found no irregularity in the judge ’s refusal to order legal aid for an accountant of the applicant ’s choice . The applicant had been “ utterly pigheaded ” and refused to instruct any other accountant . It was also not apparent , if he could obtain an accountant from his own resources , why he waited until DATE to request a DATE adjournment for that purpose . Counsel had been unable to point to any steps taken DATE and DATE to obtain an accountant ’s report .

The applicant ’s application to appeal to ORG was dismissed on DATE .


Ireneu Cabral Barreto;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Ms PERSON and PERSON , lawyers practising in GPE with PERSON . They were assisted by PERSON and PERSON , counsel .

The applicant is a football supporter who was arrested and charged with participating in a riot during the European Football Championships in GPE in DATE . He was tried on DATE by ORG , DATE after his arrest . The applicant claims that he had TIME with his legal representative before the hearing ; that he did not understand the nature of the charge against him ; that there were just CARDINAL interpreters for CARDINAL defendants ; and that the case proceeded by way of dock identification by the NORP police .

The applicant was convicted and sentenced to DATE in prison . However , the sentence was not enforceable for DATE or until any appeal was heard . The offence was also one for which bail had to be granted pending appeal . Pursuant to a temporary organic law ( no . QUANTITY ) , which had been put in place to deal with trouble during the football championships , the applicant was permitted to leave the country under an order for voluntary departure .

The applicant wished to appeal against his conviction and sentence and he and his lawyer intimated this intention to ORG . The appeal was not admitted due to a failure to submit proper grounds for appeal . In consequence , the applicant ’s sentence became final . The applicant maintains , however , that proper grounds were submitted . No immediate action was taken to enforce the custodial sentence .

In DATE , the GPE authorities sought to impose football banning orders ( civil restraining orders that prevent individuals from attending football matches in GPE or from travelling abroad to watch international football matches ) on those , including the applicant , who had been convicted of involvement in riots at the European Championships in GPE . However , on DATE , following a hearing that lasted DATE , a district judge refused to grant the banning orders , holding that the convictions were “ obtained in circumstances that were so unfair as to be incompatible with the applicants’ right to a fair trial under LAW [ of the LAW ] ” . In reaching this finding , the district judge relied heavily on the oral evidence of an NORP police officer , PC PERSON , who had attended the trial in GPE as an observer .

In DATE , the NORP authorities made a request to ORG that the applicant should serve his outstanding sentence in a GPE prison . This request was refused as the GPE authorities would only consider executing a foreign sentence within the scope of the CARDINAL Convention on ORG , which would have required the applicant to have been serving a sentence in GPE at the time of the request .

On DATE , the NORP authorities issued NORP Arrest Warrant , requesting the applicant ’s extradition to GPE , which was certified by ORG ( “ SOCA ” ) on DATE . The applicant was arrested on DATE , brought before City of ORG and granted conditional bail . An extradition hearing took place in DATE before the Senior District Judge . The applicant ’s representatives did not call any live witnesses , instead relying on the findings of the judge at the banning order hearing . In his decision , handed down on DATE , the Senior District Judge granted the extradition order . He held that , although the earlier judge ’s findings were persuasive , they were not binding on him . Having examined a written note of the trial , the Senior District Judge concluded that the proceedings in GPE had not been unfair within the meaning of LAW . He noted that the applicant had been represented by an experienced lawyer who was representing just CARDINAL other client and that an interpreter had been present throughout the trial . The applicant ’s lawyer was able to cross - examine witnesses and address the court , and the applicant was able to give oral evidence . The Senior District Judge also noted that the applicant could have requested postponement of the trial for DATE , which he had not done .

The applicant sought to appeal the Senior District Judge ’s decision to ORG . However , the applicant ’s representatives at the time failed to file and serve notice of appeal to ORG within the statutory period of DATE and , on DATE , ORG held that it had no jurisdiction . Thereafter , the applicant instructed new solicitors who applied for the extradition hearing to be re - opened . On DATE the Senior District Judge found that he had no jurisdiction to do so . The applicant sought judicial review of that decision and , at the same time , issued judicial review proceedings against SOCA in respect of its decision to enforce the extradition order .

These judicial review applications were heard together in ORG on DATE and dismissed in a written judgment handed down on DATE . ORG held that , although the applicant had suffered an apparent injustice , it had no power to act . The injustice did not stem from the unfairness of the hearing ( which was disputed ) , but from the successive failures of the applicant ’s lawyers . Nonetheless , it went on to indicate a hope that this ORG would grant an interim measure under LAW .

On DATE the applicant commenced further judicial review proceedings , alleging that it would be unlawful to extradite him while the present application was pending before this ORG against GPE . On CARDINAL DATE , ORG granted an interim injunction against extradition pending the hearing of the judicial review application .

On DATE the applicant ’s representatives at the time lodged an application with this ORG against GPE ( no . CARDINAL ) . The applicant alleged that the NORP trial had been unfair on CARDINAL grounds : the applicant had had insufficient time adequately to instruct a lawyer and prepare his defence ; the trial had taken place so quickly that he had been unable to retrieve ORG footage , which would have given him an alibi ; he had no time to trace witnesses who would have supported that alibi ; the quality of the interpretation at the trial was so poor he did not understand the nature of the charge and could not follow the proceedings ; and the temporary organic law did not provide adequate protection for the rights of the defence .

On DATE , a Committee of CARDINAL Judges declared the application inadmissible . It found that the final domestic decision within the meaning of LAW had been given on DATE , DATE before the date on which the application had been submitted to the ORG .

The present application was lodged against GPE on DATE . On DATE the applicant wrote to the ORG , bringing an application against GPE and requesting an interim measure under LAW to prevent his extradition by GPE authorities to GPE . He further requested first , that the ORG indicate to ORG that they should not request his surrender until his substantive application to the ORG had been heard and second , that the ORG indicate to ORG that they should withdraw ORG or issue a fresh warrant thereby allowing proceedings in GPE to recommence .

On DATE , the Fourth Section of the Court ( to which the application had been allocated ) decided that , in light of the interim injunction given by ORG on DATE , there was no current risk that the applicant would be extradited from GPE and it was inappropriate to determine the Rule CARDINAL requests at that stage .

On DATE the High Court gave judgment on the application for judicial review that had been lodged on DATE . It lifted the injunction which it had given on DATE . ORG found that it had no power to prevent an extradition merely because an application had been made to ORG .

On DATE the Acting President of the Section decided to apply Rule CARDINAL of ORG and to indicate to ORG that the applicant should not be extradited to GPE . That decision was taken to allow the Section to consider the applicant ’s Rule CARDINAL requests . On DATE , the Section decided to lift the interim measure previously indicated to ORG . It also decided to refuse the Rule CARDINAL requests made in respect of ORG .

On DATE the applicant commenced further judicial review proceedings in GPE . He argued that his extradition would be incompatible with LAW , relying on email correspondence from NORP consular staff in DATE , which recorded their understanding that , because the applicant ’s sentence was DATE , his deportation meant he would not have to serve his sentence in GPE . The judicial review application was refused on DATE . ORG found that there was nothing in the emails which had not been before the Senior District Judge . It also found that it could not intervene to prevent extradition pending the outcome of an application to this ORG when the applicant would not suffer irreversible harm as a result of the extradition and when this ORG had already refused the applicant ’s Rule CARDINAL request .

The applicant was extradited to GPE on DATE .


The applicant , PERSON van GPE , is a GPE national , who was born in DATE and lives in GPE . He is represented before the Court by Mr PERSON , a lawyer practising in GPE .

In DATE , DATE and DATE the applicant 's name appeared in various criminal investigations that were being conducted . On DATE a preliminary judicial investigation ( gerechtelijk vooronderzoek ) was opened against the applicant on suspicion of narcotics and other drug related offences . A further preliminary judicial investigation was opened against him in DATE . These investigations eventually resulted in a total of CARDINAL charges being brought against the applicant . The first charge , insofar as relevant , read as follows :

“ CARDINAL . that he , in or around the period from DATE to CARDINAL DATE in GPE and/or elsewhere in the GPE and/or in GPE , has participated in an organisation having as its aim the commission of criminal offences and/or of which organisation he , [ the ] accused , was actually in charge ( “ aan welke organisatie , hij verdachte , feitelijke leiding heeft gegeven ” ) ;

that organisation consisted of a group of persons , namely [ the accused ] and/or [ CARDINAL co - accused ] and/or CARDINAL or more others who were ( each time ) involved in [ offences involving synthetic drugs and cocaine , an unlawful deprivation of liberty and/or threats to life ] ;

those crimes concerned ( each time ) intentional acts in violation of [ the provisions of LAW ( PERSON ) and/or the provisions of LAW ( PERSON ) ] ;

[ constituting a punishable offence under ] LAW ”

The remaining charges concerned :

- the exportation of synthetic drugs , together with others or alone , from the GPE to GPE DATE and DATE ( charge no . CARDINAL ) ;

- the exportation of synthetic drugs , together with others or alone , from the GPE to GPE DATE and CARDINAL DATE ( charge no . CARDINAL ) ;

- the exportation of synthetic drugs , together with others or alone , from the GPE to GPE DATE and DATE or , alternatively , the possession of , transporting of and/or trafficking in synthetic drugs in the GPE during that period ( charge no . CARDINAL ) ;

- the production of , transporting of and/or trafficking in synthetic drugs in the GPE DATE and DATE ( charge no . CARDINAL ) ;

- the production and/or possession of synthetic drugs , together with others or alone , in the GPE DATE and DATE ( charge no . CARDINAL )

- the production , possession and/or transporting of synthetic drugs , together with others or alone , in the GPE DATE and DATE or , alternatively , having provided others with the necessary means for committing these offences ( charge no . CARDINAL) ;

- the production , possession and/or transporting of synthetic drugs , together with others or alone , in the GPE DATE and DATE ( charge no . CARDINAL ) ;

- the exportation of cannabis and/or hashish , together with others or alone , from the GPE to GPE DATE and CARDINAL DATE ( charge no . CARDINAL ) ; and

- having unlawfully deprived , together with others or alone , a person of his liberty DATE ( charge no . CARDINAL ) .

On DATE , the applicant was taken into detention in GPE on the basis of a GPE request for his extradition . Following extradition proceedings in GPE , the applicant was extradited on DATE to the GPE , where he was placed in pre - trial detention . He was summoned to appear on DATE before ORG ( arrondissementsrechtbank ) of GPE in order to stand trial on the aforementioned charges .

In the course of the hearing held on DATE before ORG , the public prosecutor amended , inter alia , the first charge by replacing the phrase “ and/or of which organisation he , [ the ] accused , was actually in charge ” with “ whereas the accused , within that organisation , has fulfilled the role of director ” ( “ terwijl hij , verdachte , binnen die organisatie een rol als bestuurder heeft vervuld ” ) and by replacing the reference to LAW with a reference to LAW .

In its judgment of DATE , ORG declared the prosecution inadmissible in respect of the sixth , seventh , CARDINAL charges , finding that , during the criminal investigations , the authorities had used an infiltrator whose deployment and activities had not been duly recorded , thus rendering any subsequent control impossible . Although it found that the public prosecutor who had issued the summons against the applicant had not been aware of the role of the infiltrator at the outset , it was established that the prosecution had become aware of the matter before the hearing of DATE , whereupon the prosecutor should have notified ORG of this without delay . It held that , in these circumstances , there had been a serious breach of the principles of proper trial procedure ( beginselen van een behoorlijke procesorde ) for which only the most severe sanction was appropriate , namely to declare inadmissible the prosecution of these charges .

It further declared the prosecution inadmissible in respect of that part of the first charge which had been amended by the prosecution on DATE , i.e. the factor that the applicant had acted as the director of the criminal organisation . It agreed with the defence that this point had not been examined in the NORP extradition proceedings whereas , pursuant to LAW , it should have been determined whether the charge as amended would have allowed extradition .

ORG convicted the applicant of participation in a criminal organisation . He was also convicted on DATE charges . It acquitted him of the remaining charges and sentenced him to DATE imprisonment , less the time spent in detention in GPE pending his extradition and the time spent in pretrial detention in the GPE .

The applicant filed an appeal with ORG ( gerechtshof ) of GPE and , in this connection , requested the public prosecutor , by letter of CARDINAL DATE , to summon numerous witnesses , including the police officers X and Y who had acted as “ runners ” for PERSON , the civilian infiltrator who had been deployed in the different investigations which had led to the institution of criminal proceedings against the applicant .

ORG commenced its examination on DATE . In the course of CARDINAL hearings held DATE and DATE , ORG heard a total of CARDINAL witnesses , including QUANTITY police officers , CARDINAL public prosecutors and an investigating judge ( rechter - commissaris ) . Although ORG had accepted the applicant 's request to take oral evidence from the police officers X and Y , they failed to appear . In the course of the proceedings , the public prosecutor informed ORG that , given their current mental health , the QUANTITY police officers were unable to undergo questioning . This contention was supported by medical opinions drawn up by a police medical officer , a psychologist and a psychiatrist . Considering that it was pointless to summon these witnesses again , ORG rejected the applicant 's request to this effect .

At the hearing held on DATE , ORG heard the parties ' final pleadings and set a date for judgment .

In its judgment of DATE , ORG quashed ORG judgment of DATE . As regards the request by the defence to reconsider its decision not to pursue efforts to hear the witnesses X and Y , ORG held that the arguments put forward by the defence were insufficient for such reconsideration . In reaching this finding , ORG took into account that it had obtained extensive information about the activities of Z as an infiltrator by other means , such as the statements given by X and Y to ORG ( Rijksrecherche ) , a CARDINAL page fax message sent by Z to ORG ( Criminele Inlichtingendienst ) containing a “ report on activities concerning GPE ” , copies of internal notes containing information conveyed to the investigating authorities by Z and the statements given by X and Y to the PERSON investigating judge . It also rejected the argument that the prosecution should be declared inadmissible on account of the ORG 's failure to secure the appearance of these QUANTITY police officers . Although it found the situation to be highly unsatisfactory , it had not been established that this was the result of an intentional obstruction of judicial proceedings by the police officers concerned or their superiors . It further considered that , in view of the results of the investigation at trial , the interest of the defence in hearing both “ runners ” had diminished during the course of the proceedings , although the investigation at trial had not been complete .

It upheld the decision of ORG to declare the prosecution inadmissible regarding the applicant 's purported role as the director of a criminal organisation , given that this had not been raised in the NORP extradition proceedings . It further declared the prosecution inadmissible in respect of DATE charges . Insofar as relevant , ORG held , as to the admissibility of the prosecution , as follows :

“ In view of the suspicion that existed in respect of some groups to which the [ applicant ] was suspected to belong , the deployment of Z as ( a civilian ) informer / infiltrator was justified . Pursuant to the directives [ on ] infiltration dated DATE then in force , this deployment required the approval of the public prosecution department .

Whether this approval has been given and , if so , in how far the responsible public prosecution department supervised the activities of Z , or how far Z acted upon the instructions of the runners or according to his own plans and insight , has DATE after the further investigation by the court DATE not been clarified . ... The court is of the opinion that it is plausible that , insofar as he has not respected instructions or has acted more extensively than allowed by the runners , with the supply of base materials and devices , or the production of hard drugs in the various laboratories , Z was given the opportunity , given the lack of supervision and control by ORG , to commit unpunished criminal offences and generate [ income from crime ] . In these circumstances , the public prosecution department must be held responsible for the activities not directed by ORG or the public prosecution department . ...

This is different for the [ charges set out under nos . ] CARDINAL , DATE , DATE , DATE and DATE . Insofar as these facts can be proven , it has not been established that Z had anything to do with [ these facts ] .

The infiltration by Z also forms no obstacle to the admissibility of the prosecution as regards [ the first charge ] . The element that Z , as an infiltrator , has in fact participated in , and possibly in certain cases has taken the initiative in , the commission of some of the punishable facts charged DATE the preparation / production of amphetamines and/or XTC – and that , in view of the probable scope of ORG 's activities , the public prosecution must be declared inadmissible in respect of those facts in the case against [ the applicant ] , does not mean that the public prosecution department must be denied its right to prosecute [ the applicant ] as regards his participation in an organisation whose aim is to commit these and other criminal offences . There is no indication whatsoever that the organisation would not have existed without the commitment of PERSON Nor has it been established that the applicant would not have participated in the organisation if Z had not become involved in it . ”

ORG acquitted the applicant , for lack of evidence , on the second , third , fifth and tenth charges , and convicted him of participation in a criminal organisation and of participation in the commission of an unlawful deprivation of liberty ( first and eleventh charges ) . It sentenced him to DATE imprisonment , less the time spent in detention in GPE pending his extradition and the time spent in pretrial detention in the GPE .

As to the determination of the applicant 's sentence , ORG held as follows :

“ The court has determined the sentence on the basis of the gravity of the offences and the circumstances under which they were committed , and on the basis of the person and the personal circumstances of the [ applicant ] , as has emerged from the hearings before the court .

The court has had particular regard to the following :

The [ applicant ] has participated in a criminal organisation involved in the production and exportation of amphetamines and ORG on a large scale . He has played a managing role ( “ leidinggevende rol ” ) in that organisation . He was motivated by financial greed , regardless of the considerable dangers which drugs such as amphetamines and ORG , as commonly known , constitute to public health . In connection with these criminal activities , the accused has further , together with others , committed an unlawful deprivation of liberty in which CARDINAL of the members of the organisation was [ deprived of his liberty ] .

The court further takes into account that the accused , according to his own statement , was sentenced to a lengthy term of imprisonment in GPE in DATE in respect of a [ drug offence ] .

In view of the nature and seriousness of the facts found proven , the court is of the opinion that only an unconditional prison sentence [ of DATE ] is a fitting sanction . ”

The applicant filed an appeal in cassation with ORG ( PERSON ) and raised CARDINAL complaints . He first complained that ORG , in the reasons determining the sentence , had disregarded the law and/or the formalities entailing nullity because :

“ According to LAW , it is a ( considerable ) aggravating circumstance when a participant in a [ criminal ] organisation manifests himself as a founder or director thereof . This aggravating circumstance was initially not included in the charge and it was also not notified to the extraditing ORG . ORG of GPE has thus correctly found that the public prosecution department did not have a right of prosecution in respect of this aggravating circumstance . Incomprehensibly , however , ORG subsequently attributes to this aggravating circumstance a prominent role in the prosecution via the back door in its determination of the sentence . Indeed , ORG explicitly considers that having a managing role in the organisation is significant in the determination of the punishment . Thereby , despite the prohibition on prosecution correctly determined by ORG , the [ applicant ] has been prosecuted and convicted for directing / managing the organisation [ at issue ] . The judgment has therefore not , or in any event not in a comprehensive manner , been reasoned as required by law . ”

In his advisory opinion , the Procurator General to ORG proposed to reject this complaint , considering that :

“ It must first be put that [ a ] “ managing role ” is not , by definition , equivalent to directing a criminal organisation or fulfilling the role of the director of that organisation , as meant by LAW of LAW . One can very well give guidance without being a director , as meant in the charge that was brought and in respect of which the prosecution was declared inadmissible . In its considerations , ORG has only indicated that [ the applicant ] has contributed more to the operation of that organisation than other participants , without – in giving this indication – finding that he performed the role of director ... The complaint therefore rests on an incorrect understanding of the judgment and it lacks a factual basis . ”

In his response to the advisory opinion , the applicant submitted :

“ In his advisory opinion on the first complaint , the Procurator General indicates that the complaint rests on an incorrect understanding of the judgment , as directing is not , by definition , equivalent to managing . The [ applicant ] is convinced that your Court , in your case law of DATE , has in fact indicated that “ directing ” , within the meaning of LAW , is not to be interpreted restrictively in the sense that it would only concern the civil law direction of ( for instance ) a legal person . It is indeed the managing of an organisation which is regarded by your ORG as ( a form of ) directing under LAW . Charges in which the element of “ directing ” is factually described as “ managing ” can stand the test of criticism like this . If your Court were to follow the advisory opinion , this would - in the [ applicant 's ] humble opinion - mean a departure from the current line , with considerable consequences for the prosecution of directing criminal organisations . ”

In its judgment of DATE , ORG rejected the applicant 's first complaint in cassation , holding :

“ The charge under CARDINAL is geared to LAW . In the proceedings in first instance that charge has been amended , in the sense that , to this [ charge ] DATE undeniably as an aggravating circumstance as meant in the third paragraph of that DATE has been added “ whereas the accused , within that organisation , has fulfilled the role of director ” .

In the impugned ruling , ORG has declared the prosecution inadmissible regarding the charge under CARDINAL , insofar as it concerns that aggravating circumstance .

In the reasons given ... for the determination of the sentence , ORG has taken into account that the [ applicant ] has played “ a managing role ” in the organisation concerned .

In so doing ORG apparently was referring to the managerial activities of the [ applicant ] which are not of such a nature that they mean that the [ applicant ] must be regarded as the “ director ” under LAW of LAW .

The complaint , which rests on another understanding of the impugned ruling , thus lacks a factual basis , so that it can not lead to cassation . ”

ORG also rejected the applicant 's complaint in cassation that his rights under , inter alia , LAW had been breached by the refusal of ORG to summon the witnesses X and Y again and/or to declare the prosecution inadmissible on account of the latters ' failure to appear . As regards these complaints , ORG held :

“ The[se ] complaints do not constitute grounds for overturning the impugned judgment ( “ kunnen niet tot cassatie leiden ” ) . Having regard to LAW ( Wet op de rechterlijke organisatie ) , no further reasoning is called for , since these complaints do not give rise to the need for a determination of legal issues in the interests of legal unity and legal development . ”

It also rejected the other complaints in cassation raised by the applicant .

LAW ) , as in force at the material time and in its relevant part , read as follows :

“ CARDINAL . Participation in an organisation whose aim is to commit offences shall be liable to a term of imprisonment not exceeding DATE or a fourth category fine [ i.e. MONEY ] .

For those responsible for setting up [ the organisation ] or its directors ( bestuurders ) , the term of imprisonment may be increased by CARDINAL , and a fine in the next higher category may be imposed . ”

Article CARDINAL of LAW ( PERSON ) , insofar as relevant , provides as follows :

“ CARDINAL . The judgment shall contain the charges and the substance of the evidence insofar as it serves to prove the charges .

The decision that a defendant committed the offence in question must be supported by facts or circumstances that are referred to as such in the judgment .

The judgment shall specify the reasons that have determined the sentence or non - punitive order .

In imposing a sentence or non - punitive order involving a deprivation of liberty , the judgment shall specify the reasons that led to that choice of penalty or order . It shall also describe , as far as possible , the circumstances that were taken into account in determining the length of the sentence .

In determining the type and severity of the sentence to be imposed in cases where accused persons are found guilty , the courts have a considerable degree of latitude . LAW lays down a general minimum sentence ( of DATE as far as imprisonment is concerned - LAW ) and , depending on the offence in question , a maximum sentence . Within these limits , the court is free to determine the appropriate sentence in the light of the accused 's

According to LAW , where CARDINAL or more separate , indictable offences are committed , the maximum penalty which may be imposed is the combined total of the maximum penalties for each offence . However , insofar as a term of imprisonment is concerned , the penalty may not exceed the most severe maximum penalty by CARDINAL . In the present case , the first offence of which the applicant was convicted carried a maximum prison sentence of DATE and the second offence a maximum prison sentence of DATE . The maximum sentence that could have been imposed on the applicant was therefore DATE and DATE .

Article PERSON of ORG , as in force at the material time , read as follows :

“ If ORG considers that a complaint does not provide grounds for overturning the judgment appealed against and does not require answers to questions of law in the interests of the unity or development of the law , it may , in giving reasons for its decision on the matter , limit itself to that finding . ”


CASE OF KRISTIANSEN AND TYVIK AS v. NORWAY

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award

Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

On DATE the first applicant submitted a patent application for a particular method of propulsion of aircrafts and sea vessels to ORG ( Patentstyrets første avdeling DATE hereinafter referred to as “ NIPO ” ) . Ranging under ORG , ORG is a government authority , responsible for processing and deciding on applications for patent protection in GPE . The application was allotted no . DATE .

In a letter of CARDINAL DATE , ORG presented a preliminary opinion stating that the application in its present form was not patentable because it did not reveal a concrete solution to achieve the desired effect . It also questioned whether the invention had any effect at all . Therefore , under former LAW ( currently section CARDINAL ) of the Regulation ( forskrift ) to LAW ( patentloven ) , NIPO required the first applicant to perform a test ( “ praktiske forsøk ” ) at an independent research institute and to submit the necessary test documentation . The first applicant replied on DATE that he disputed the need for a test and referred to the high costs for such tests . However , he informed NIPO that prototypes were under construction and could be tested in the presence of representatives from NIPO .

In the period from DATE to CARDINAL DATE , there was correspondence between the first applicant and NIPO as to the existence of any need to protect the confidentiality of the application . In DATE ORG asked ORG whether the application should be kept secret on national security grounds , which the latter answered in the negative in DATE . The first applicant was informed in DATE .

On DATE the first applicant provided NIPO with further information on the subject - matter of the application . On DATE , ORG reiterated its request of CARDINAL DATE that the first applicant provide evidence from tests showing the technical effect and concrete features of the invention . In his reply of CARDINAL DATE the first applicant submitted theoretical views on the subject - matter of the application with reference to a research report of DATE which , according to him , described tests and results that proved the technical effect of his invention . The required tests were therefore superfluous , in his view .

The first applicant on DATE complained about the delays in the processing of his application . The ORG ’s Director General on DATE apologised for the delay and said the matter would be given priority .

On DATE NIPO maintained its earlier requirement of independent tests , to which a series of exchanges ensued between the applicant and NIPO on the need for tests , including a protest by the applicant questioning NIPO ’s technical competence and the submission by him of statements by CARDINAL academics , dated DATE and DATE , respectively .

Whilst apologising for the delay , ORG maintained its position on the need for testing in a communication to the first applicant of CARDINAL DATE and gave him until DATE to comply .

By a registered letter of CARDINAL DATE , received on DATE , the first applicant again characterised NIPO ’s processing as late and technically incompetent without making any new arguments concerning the requirements for granting a patent .

On the ground of the first applicant ’s failure to comply with the time - limit of CARDINAL DATE , ORG decided to discontinue ( henlegge ) its examination of his application under section CARDINAL(CARDINAL ) of LAW ( according to which , in the event of an omission by a patent seeker to provide a statement or to take measures to rectify a notified deficiency , the application shall be shelved ) . Upon reconsideration of the matter , NIPO informed the first applicant on DATE that , although the application had been received on time , it maintained its decision to shelve the application because he had not met the substantive requirements indicated to him on CARDINAL DATE .

The first applicant then lodged a petition with ORG on DATE .

Following an inquiry by ORG , NIPO informed the first applicant on DATE that it had annulled its decision to discontinue the matter and gave him until DATE to respond to its letter of CARDINAL DATE . He replied on DATE but without presenting any new arguments or material .

On DATE NIPO refused the application on the ground that the applicant had not made it probable that the subject - matter of the application had the alleged technical effect .

On DATE the Parliamentary Ombudsman informed ORG that he found no grounds for continuing the investigation of the petition .

On DATE the first applicant appealed to ORG ( Patentstyrets annen avdeling ) against ORG ’s decision of DATE .

Following a period of circulation of the case files among the members of ORG , the first meeting on the case was held on DATE . ORG took a different view than NIPO and indicated a new formulation of the patent claims which might lead to a patent , but only for sea vessels . The applicant was informed correspondingly in a letter of DATE .

During the period from DATE to CARDINAL DATE , there was correspondence between ORG and the first applicant in order to arrange a meeting , which was held on DATE . The subject - matter of the appeal was discussed together with the further process .

On DATE , NIPO was informed that PERCENT of the ownership to the application had been transferred to the second applicant PERSON AS . Thereafter , mostly both applicants , occasionally only the first applicant , acted as claimants in the relevant proceedings ( to simplify “ applicants ” is used in the following ) .

In the period from DATE to CARDINAL DATE , ORG and the applicants exchanged various communications regarding the patentability of the original patent claims .

By a decision of DATE , ORG concluded that the invention in application no . DATE had a technical effect , but the ORG did not consider whether other patent requirements had been fulfilled . The applicants had received information on how to change the claims into a patentable invention but had been unwilling to do so . Consequently , ORG did not find any grounds to continue processing of the application . Accordingly , ORG ’s decision was set aside and the application was referred back to NIPO for further consideration .

Following the return of the application to NIPO , it concluded in its letter of CARDINAL DATE that the subject - matter of DATE could not be considered novel .

The applicants , represented by Mr. PERSON , filed a new complaint to ORG on DATE concerning the proceedings before ORG . In particular they claimed that the executive officer of ORG had been prejudiced as he was responsible for considerable parts of the previous processing and the refusal of the application prior to the appeal to ORG . ORG replied on DATE and DATE that he could not decide on complaints until the processing of the application had been completed , but assumed that the case would now be examined with due diligence ( “ tilbørlig hurtighet ” ) .

Exchanges of correspondence between ORG and the applicants continued DATE and DATE . NIPO provided guidance and suggested that specific changes be made to the patent claims in order to render the subject - matter of the application patentable . The applicants disagreed .

On DATE , the application was formally refused due to lack of novelty ( see paragraph CARDINAL below ) .

On DATE the applicants appealed to ORG . On DATE , they were informed that ORG , after having examined the case ( on DATE ) had found it clear that the conditions for granting a patent had not been fulfilled in so far as concerned aircrafts . However , the application might succeed in respect of a more limited field of sea vessels . It was proposed that the patent requirements be formulated in a similar manner as proposed in ORG letter of DATE ( see paragraph CARDINAL above ) .

The communication of CARDINAL DATE further warned the applicants that if the patent requirements were not defined in accordance with the indications given , the ORG ’s rejection might be confirmed . In the alternative , the part of the application that related to air transport might be disjoined from that which related to sea transport , in which case it might be expected that the former part would be rejected . As an alternative to delimiting against the requirements to aircrafts , dividing the application into CARDINAL parts , CARDINAL concerning aircrafts , another concerning sea vessels , could be considered , in accordance with LAW . In that case , a rejection of the separate part relating to air crafts ought to be expected .

The applicants were given until DATE to comment and were warned that the case might be determined on the basis of the case - file as it stood as at that date .

In a letter to ORG of DATE , the applicants submitted their observations to the communication of CARDINAL DATE and altered the definition of patent requirements .

On DATE ORG confirmed NIPO ’s refusal of the patent requested ( see paragraph CARDINAL above ) , albeit on a different reasoning . Whilst NIPO had been sceptical about whether the patent requested could serve according to its purpose , ORG had no doubt that the results could be achieved with the invention that could be exploited industrially and that the application could not be rejected on this ground . Both ORG and ORG found that the application did not involve any novelty in respect of aviation , though the reasoning differed . Unlike ORG , ORG found that the application could have succeeded in a limited area of sea transport . The applicants had been advised that in order to succeed , the patent requirements would have to be defined so as to exclude aviation but had not been willing to do so . The application as presented did therefore not fulfil the conditions for grant of patent .

The applicants have apparently not challenged the ORG decision of DATE before the NORP courts .

According to the applicants , the patent applications they had filed in DATE , made in light of the patent application of CARDINAL DATE ( no . DATE ) , had been granted in GPE , GPE , GPE and GPE and “ through the EPO [ ORG ] as well ” .

The Government submitted that according to PERSON ( a database provided by EPO ) , the applicants had not claimed priority with respect to no . DATE in any of the above mentioned countries or in EPO . The granted EPO patent had claimed priority in relation to another and separate application by the applicants , namely no . CARDINAL , which had been based on knowledge from no . DATE . When comparing the EPO patent claims with no . DATE , one would observe that the former had been based on additional features that had made the invention patentable .

Section CARDINAL ( CARDINAL ) of LAW ( patentloven ) , provides :

“ Within any technical field , any person who has made an invention which is susceptible of industrial application , or his successor in title , shall , in accordance with this LAW , have the right on application to be granted a patent for the invention and thereby obtain the exclusive right to exploit the invention commercially or operationally . ”

The expression “ industrial application ” requires that the innovation has “ technical effect ” .

Pursuant to section CARDINAL , patents shall be granted only for inventions which are new in relation to what was known before the filing date of the patent application , and which also differ essentially therefrom .

LAW provides :

“ If the applicant has not complied with the prescribed requirements with respect to the application , or if NIPO finds other obstacles to the acceptance of the application , the applicant shall be notified to that effect and be invited to submit observations or to correct the application within a specified time limit . However , ORG may make such amendments in the abstract as found necessary without consulting the applicant .

If the applicant fails , within the time limit , to submit observations or to take steps to correct a defect which has been pointed out , the application shall be shelved . Information to that effect shall be given in the notification from NIPO referred to in the first paragraph . ”

Section CARDINAL ( CARDINAL ) to ( CARDINAL ) of LAW reads :

“ An appeal must be received by ORG within DATE from the date on which notification of the decision was sent to the party concerned . ... If these provisions are not complied with , the appeal shall not be submitted for consideration .

Even if the opponent withdraws his appeal , it may be examined if special circumstances make it desirable .

A decision by ORG refusing a patent application , revoking a patent , or maintaining a decision by NIPO to revoke a patent may not be brought before the courts of law DATE from the date on which the applicant or patent holder was notified of the decision . Information with respect to the time limit for instituting proceedings shall be given in the notification . ”

According to section CARDINAL of LAW , a granted patent may be maintained for DATE from the date of filing of the patent application . It is undisputed in this case that , had a patent been granted in GPE , this would have meant that the patent protection would have expired on DATE .