CASE OF BRITISH-AMERICAN TOBACCO COMPANY LTD v. THE NETHERLANDS

No violation of Art. 6-1;Not necessary to examine Art. 13;No separate issue under P1-1

ORG The applicant company are a limited liability company established under the law of GPE . Their business includes the manufacture and sale of tobacco products .

ORG On DATE the applicant company , acting through a GPE patent agent , filed a patent application with ORG GPE ) . They claimed priority as from CARDINAL DATE on the basis of a patent application filed in GPE ( LAW ORG for the protection of industrial property , as revised ( " LAW " ) - see paragraph CARDINAL below ) .

The application , which concerned a cigarette , comprised CARDINAL claims ( conclusies ) . It was laid open to public inspection ( terinzagelegging ; section CARDINALC of LAW ( Rijksoctrooiwet ) - see paragraph CARDINAL below ) on DATE .

ORG On DATE , following a request to that effect by the applicant company ( section CARDINALI of LAW - see paragraph CARDINAL below ) , ORG sent the applicant company a search report listing CARDINAL patent publications as background to the state of the article CARDINAL of these publications had been published after the date from which priority was claimed but before the filing date in the GPE .

ORG Following a request ( section CARDINALJ of LAW - see paragraph CARDINAL below ) by the applicant company for a decision as to the grant of a patent , an ORG ( ORG ) consisting of CARDINAL technically qualified member of ORG stated in a letter dated DATE that in its opinion the patent claims described no patentable invention and in the same letter offered the applicant company the opportunity to refute its objections . The letter noted , inter alia , that CARDINAL of the measures described in the main claim did not appear in the corresponding application filed in GPE .

ORG By letter of CARDINAL DATE the ORG agreed to publish the application for opposition purposes ( openbaarmaking ; section CARDINAL of LAW - see paragraph CARDINAL below ) provided certain changes were made . These changes included defining the scope of the protection claimed in a single patent claim , the wording of which was to conform to a suggestion made by ORG itself . However , ORG refused to recognise the priority claimed .

ORG By letter of CARDINAL DATE the applicant company submitted CARDINAL new and independent claims , requesting recognition of the priority originally invoked only in respect of the first of these .

ORG On DATE ORG gave a final decision ( eindbeschikking ) stating that the invention might equally well be described in a single claim without loss of clarity . It considered that the use of CARDINAL independent claims for the sole purpose of resolving problems relating to the recognition of the priority invoked ran counter to the requirements of fair procedure ( goede procesorde ) and could therefore not be allowed . It therefore refused to publish the application for opposition purposes .

ORG On DATE the applicant company lodged an appeal with ORG ( PERSON ) of ORG .

In their statement of grounds of appeal ( PERSON ) , they pointed to a number of published decisions of ORG from which it appeared , in their submission , that allowing CARDINAL independent claim in a single patent application was not unacceptable . They also expressed doubts as to how the use of CARDINAL independent claims for the sole purpose of resolving problems relating to the recognition of priority could run counter to the requirements of fair procedure . While they admitted that the invention might well be covered by a single claim , they pointed out that the scope of the protection offered by the patent would thereby be limited .

They requested ORG to overrule the decision of ORG and order the publication of the application for opposition purposes with the CARDINAL independent claims put forward by them but with a recognition of priority only in respect of the first claim . In the alternative , they requested the publication of the application for opposition purposes with the single claim proposed by ORG , the scope of which they agreed to limit further , together with recognition of the priority invoked .

The Appeals Division , composed of CARDINAL technically qualified members and CARDINAL legally qualified member , held a hearing on DATE . On DATE it sent the applicant company a letter stating that for the time being it was of the opinion that neither the CARDINAL independent claims nor the single claim proposed as an alternative described any patentable invention and setting out its reasons for that view . ORG offered the applicant company the opportunity to put forward a defence against the objections thereby raised ex officio .

The applicant company replied by a letter of DATE , giving arguments to the contrary .

After ORG had made it clear that it was not convinced by these arguments , a second hearing was held on DATE which was attended by the applicant company 's GPE and NORP patent agents . The applicant company submitted fresh claims on DATE .

The Appeals Division gave a final decision on CARDINAL DATE .

In the view of ORG , it did not necessarily run counter to any rule of fair procedure to use CARDINAL independent claims to circumvent problems relating to the recognition of priority . Since the applicant company 's original appeal had been limited to this issue , it was therefore declared well - founded .

Nonetheless , ORG considered that the subject - matter of the application was not patentable since it did not involve an inventive step and refused on that ground to publish the application for opposition purposes .

ORG LAW DATE for the protection of industrial property , as subsequently revised on numerous occasions ( most recently in GPE on DATE , [ DATE ] CARDINAL United Nations Treaty Series , pp . CARDINAL et seq . ) , sets up a Union for the protection of industrial property . The expression " industrial property " covers patents , utility models , industrial designs , trademarks , service marks , trade names , indications of source or appellations of origin and the repression of unfair competition ( DATE ) but not copyright .

LAW is intended to prevent discrimination against non - nationals and lays down a number of very general standards as regards procedural and substantive industrial property law .

Article CARDINAL of LAW , in so far as relevant , provides :

" A. ( CARDINAL ) Any person who has duly filed an application for a patent ... in CARDINAL of the countries of the Union , or his successor in title , shall enjoy , for the purpose of filing in the other countries , a right of priority for the periods hereinafter fixed .

B. Consequently , any subsequent filing in any of the other countries of the ORG before the expiration of the periods referred to above shall not be invalidated by reason of any acts accomplished in the interval , in particular , another filing , the publication or exploitation of the invention ... and such acts can not give rise to any third - party right or any right of personal possession ...

PERSON ( CARDINAL ) The [ period ] of priority shall be DATE for patents ...

Article CARDINAL , in so far as relevant , reads :

" ( CARDINAL ) Each country of the Union undertakes to establish a special industrial property service and a central office for the communication to the public of patents , utility models , industrial designs , and trademarks . ... "

Patent law , both substantive and procedural , is governed by LAW of DATE , ORG ) DATE , no . CARDINAL , as subsequently amended ) . Certain procedural details are dealt with in delegated legislation made by ORG under LAW .

ORG LAW provides as follows :

" A patent shall be granted , on his application , to a person who has invented a novel product or method . "

A patent must be granted unless the invention is either already known or an obvious development , given the current state of the art ( sections CARDINAL - CARDINALA ) .

To be patentable , the invention must lead to a result in the field of industry or agriculture ( section CARDINAL ( CARDINAL ) ) . However , no patent may be granted for new varieties of plants or animals , or for essentially biological processes for producing plants or animals , except for processes involving micro - organisms ( section CARDINAL ( CARDINAL ) ) .

A patent application may only relate to a single invention or to a group of inventions based on a single inventive idea ( section CARDINALA ) .

ORG A patent remains valid for DATE from the filing date of the originating application , subject to payment of an DATE fee ( sections DATE and DATE ( CARDINAL ) of LAW ) .

Subject to the provisions of LAW , a patent confers on the patentee the exclusive right , inter alia , to make , use , market , resell , hire out , deliver , import or stock the patented product or , when applicable , to apply the patented process commercially or to make , use , market , resell , hire out , deliver , import or stock the product obtained directly from the application of the patented process ( section CARDINAL of LAW ) .

The patentee may enforce his exclusive rights against any person ( section CARDINAL ) ; this may involve , for instance , obtaining an injunction or ( if an infringement is knowingly committed ( desbewust ) ) damages through the civil courts .

Until the application matures into a patent , the applicant whose application has been published for opposition purposes in accordance with LAW see paragraph CARDINAL below ) has an inchoate right : he may only take measures to facilitate the eventual exercise of the right he hopes to obtain . Once the patent is granted , however , the patentee may enforce his rights retrospectively with regard to actions committed between the date of publication for opposition purposes and the date on which the application matured into a patent ; such actions become retrospectively unlawful ( section CARDINAL ) . Actions prior to publication for opposition purposes remain lawful in principle , although the patentee is entitled to reasonable remuneration on a royalty basis if such actions were committed by a person who was aware that they were covered by the patent application ( section CARDINALA ) .

ORG Pursuant to LAW , the right to perform acts prohibited to any person other than the patentee may be acquired from the patentee by means of a licence .

ORG Both a patent and the entitlement to a patent pursuant to sections CARDINAL and following of LAW are assignable and otherwise transferable in whole or in part ( section CARDINAL of LAW ) .

ORG A patent may be declared null and void ( nietig ) ab initio if it does not conform to the substantive requirements laid down by LAW ( section CARDINAL ) . It may also be claimed ( opeising ) by any person who alleges that he , not the patentee , is entitled to it ( section CARDINAL ) .

ORG A compulsory licence under a patent may be claimed either by the holder of a patent based on a subsequent patent application if he requires it to make proper use of his own patent ( section CARDINAL ( CARDINAL ) of LAW ) or by ORG together with any Minister directly concerned if the interests of the ORG so require ( section CARDINALA ) .

In either case , the patentee is entitled to a reasonable remuneration .

Patent applications must be filed with , and patents are granted by , ORG ( section CARDINAL of LAW ) .

ORG It appears from the explanatory memorandum to the bill which eventually became LAW ( Annex to Parliamentary Documents , ORG , DATE CARDINAL , no . CARDINAL , p. CARDINAL ) that the intention was to prevent as far as possible the granting of patents " for which no good reasons exist[ed ] " . It was therefore decided to establish a system involving an examination of patent applications by a ORG agency which was " entitled , though not obliged , " to extend its examination to " all points which [ might ] be of relevance to the validity of the patent " , and in which " during the examination the opportunity [ should ] be offered for entering objections " . An expert body was created for this purpose , ORG . It was observed that only by creating such a body " [ could ] the technical experts , who [ were ] quite indispensable , obtain an independence befitting them " and " [ could ] the required guarantee be provided for the quality of the decisions which , although they [ might ] not quite be judicial decisions in the strict sense of the word , [ came ] very close to being so " .

ORG The legal provisions governing the procedure before ORG are very summary , so that over DATE ORG has had to develop a number of procedural rules through its case - law to fill in gaps . For present purposes it is of interest to note that , in accordance with the aims recorded in the drafting history of LAW adverted to above , ORG does not consider itself bound by the facts as submitted to it by parties and by what is requested by applicants , but establishes the facts itself , of its own motion if need be .

The following is a summary rendering of the principal rules of patent application procedure .

ORG Formal requirements relating to patent applications are to be found in LAW itself and in delegated legislation known as LAW ( Octrooireglement ) .

ORG A patent application must comprise , inter alia , a general description of the invention , and the scope of the exclusive rights desired must be set forth in one or more claims appended to the description ( section CARDINALA ( CARDINAL ) ( e ) of LAW ) . The description ( which may include drawings or graphs ) must be such as to enable the person skilled in the art to understand and apply the invention , and the claims must be detailed ( section CARDINALB ( CARDINAL ) ) . The claims must enumerate separately and in detail the novel features of the invention for which exclusive rights are claimed ( Rule CARDINAL para . CARDINAL of LAW ) .

In practice the first claim generally describes the main inventive idea and other claims , dependent thereon , describe particular embodiments of the invention .

ORG The priority right created by LAW ( see paragraph CARDINAL above ) must be expressly invoked ( section CARDINAL ) .

ORG As soon as possible after DATE have passed from the date of filing , or after the date from which priority is claimed if that is earlier , the application is laid open to public inspection ( section CARDINALC ( CARDINAL ) of LAW ) . It then becomes part of the state of the art , to be considered in relation to subsequent applications as regards the requirement of novelty ( section CARDINAL ( CARDINAL ) ) .

ORG The applicant , or - after the application has been laid open to public inspection - any other person , may ask ORG for a search report listing published documents which it considers relevant as descriptions of the state of the art ( section CARDINALI ( CARDINAL ) of LAW ) .

In practice these search reports are prepared not by ORG itself but by ORG ( pursuant to section CARDINAL ( CARDINAL) ) .

Documents mentioned in the search report are usually other patent applications filed in the GPE and in other countries .

ORG After the search report has been issued , the applicant or any other person may request a decision as to the grant of a patent ( section CARDINALJ ( CARDINAL ) of LAW ) .

At this point ORG makes known any objections which it may have to the grant of a patent . In response to these the applicant may then file arguments in writing or amend the application ( section CARDINAL ( CARDINAL ) ) .

The application is then placed in the hands of ORG ( see paragraph CARDINAL below ) ( section CARDINAL ( CARDINAL ) ) . ORG must offer the applicant the opportunity to be heard and give a decision as soon as possible thereafter ( section CARDINAL ( CARDINAL ) ) .

ORG Section CARDINAL ( CARDINAL ) of LAW provides as follows :

" If ORG finds that no patent should be granted for all or part of the matter covered by the application , it shall give a decision not to publish the application for opposition purposes ; if it finds the opposite , it shall give a decision to publish the application [ or the part which it considers patentable ] for opposition purposes . "

ORG The applicant may appeal to ORG , within DATE , against a decision not to publish the application for opposition purposes , or to publish it only in part . This is done by filing a written statement of grounds of appeal ( section CARDINALA ( CARDINAL ) of LAW ) .

Like the proceedings before ORG , those before ORG are not adversarial . ORG must hear only the applicant , or at least offer him the opportunity to be heard . It may order a supplementary search report ( section CARDINALA ( CARDINAL ) ) . The decision of ORG is reasoned ( section CARDINALA ( CARDINAL ) ) .

ORG If the application is considered patentable in whole or in part , either in the initial stage by ORG or on appeal by ORG , the application is published for opposition purposes ( section CARDINAL ( CARDINAL ) of LAW ) .

ORG Within DATE following publication of the application for opposition purposes , any person may oppose the grant of a patent ( section CARDINAL ( CARDINAL ) of LAW ) . If no opposition is filed within that time , or if the opposition is held to be unfounded , the application becomes a patent and the exclusive rights of the patentee are established ( LAW ( CARDINAL ) of LAW ) .

ORG Oppositions are heard by ORG which decided on the publication of the application for opposition purposes ( section CARDINAL ( CARDINAL ) ) . If the original ORG consisted of CARDINAL member , its membership is extended to CARDINAL .

Opposition proceedings are fully adversarial : both the opposing party and the applicant are heard ( or offered the opportunity to be heard ) ( section CARDINAL ( CARDINAL ) ) . ORG must give a reasoned decision ( section CARDINAL ( CARDINAL ) ) .

Either party may appeal to ORG against the outcome of the opposition proceedings . Except for the fact that the appeal proceedings are also adversarial , the same rules apply to these appeals as to appeals against the decision of ORG not to publish the application for opposition purposes ( section CARDINAL ) .

Hearings of ORG are not open to the public , nor are its decisions delivered in public .

ORG Until DATE , various provisions in LAW specified the documents to which the applicant for a patent and other interested parties were to be given access ( objections ( bezwaarschriften ) , requests and statements of grounds of appeal concerning them ) . Some , but not all , of these documents were also required to be made available to the public once the patent application had been laid open to public inspection .

On DATE , a new provision ( section CARDINALA of the Patent Act ) entered into force which provides that once the patent application has been laid open to public inspection ( or published for opposition purposes , whichever is the sooner ) , any person may inspect all documents relating to the patent application which have been received by ORG or which ORG has sent to the applicant for a patent or to third parties pursuant to the provisions of LAW . As long as the patent application has not been laid open to public inspection , these documents may be inspected by third parties only with the permission of the applicant for a patent unless the third party concerned proves that the applicant for a patent has invoked the patent application against him .

ORG Proceedings relating to the enforcement of a patent , for the revocation of a patent ( nietigverklaring ) and for challenging the entitlement of the patentee ( opeisen ) are brought before an ordinary civil court , ORG ( arrondissementsrechtbank ) of GPE ( section QUANTITY ) , whose competence in such matters is exclusive . An appeal lies to ORG ( gerechtshof ) and a further appeal on points of law ( cassatie ) to ORG .

ORG Proceedings for claiming a compulsory licence are brought before ORG if the claimant is a private person ( section CARDINAL ( CARDINAL ) of LAW ) ; the granting of a compulsory licence in the interests of the ORG may simply be ordered by the Ministers concerned ( see paragraph CARDINAL above ) .

The remuneration in such cases is set by ORG , if both parties agree to make a request to that effect ; if the parties can not agree either on the amount of the remuneration or to submit the matter to ORG , the patentee may file a claim before ORG ( section CARDINAL ( CARDINAL ) ) .

ORG There is no statutory provision which either allows or expressly bars access to the civil courts to challenge a decision of ORG .

It appears , however , that the legislature intended the competence of ORG to be an exclusive CARDINAL . The explanatory memorandum to the bill which eventually became LAW states ( GPE to Parliamentary Documents , ORG , DATE CARDINAL , no . CARDINAL , p. CARDINAL ) :

" The decision of ORG taken at final instance that an application [ for a patent ] should not be granted ought not to be subject to appeal . It should be assumed that when ORG , which is the expert body par excellence , considers that the law does not allow it the freedom to grant the patent applied for , that opinion is based on solid ground . In any case , the wording of a patent could hardly be left to any other body than ORG , which has the required expert knowledge . "

The competence of the administrative tribunals is expressly excluded by statute ( at the material time , section CARDINAL ( f ) of the LAW concerning administrative jurisdiction as to decisions of the administration ( FAC administratieve rechtspraak overheidsbeschikkingen - " LAW " ) ) .

ORG In the GPE , the industrial property service referred to in LAW is ORG Bureau voor de Industriële Eigendom ) . ORG is part of ORG ( section CARDINAL of LAW ; LAW industriële eigendom ) ) .

ORG The President of ORG is also Director of ORG ( Article CARDINAL para . CARDINAL of ORG ) . All officials and other staff - an expression which includes the members of ORG - are subordinate to him ; he may , acting on the instructions of ORG , lay down regulations for the day - to - day running of the ORG ; these are , however , subject to the Minister 's approval ( LAW ) . The Director must submit an DATE report on the ORG 's activities to the Minister for Economic Affairs ( LAW ) .

ORG In taking its decisions ORG is not bound by instructions from any other administrative authority .

ORG Officials and other staff of the ORG may not have any other remunerated position without the permission of the Minister for Economic Affairs . They may not be practising lawyers or patent attorneys , nor may they be involved even in an advisory capacity in an enterprise involving the filing of patent applications or the registering of trademarks , designs or semiconductor masks . They are forbidden to apply for a patent themselves ( LAW ) .

ORG consists of CARDINAL ordinary members and substitute members , divided into legally qualified and technically qualified members , and of CARDINAL extraordinary members ( Rule CARDINAL of LAW ) .

ORG The President and all members of ORG are appointed , and may be dismissed , by the ORG ( that is the Monarch together with the responsible Minister ) ( section CARDINAL ( CARDINAL ) of LAW ) . Before taking up their duties they must take a pledge worded as follows ( section CARDINAL ( CARDINAL ) of LAW and LAW ) :

" I promise that I will diligently , meticulously and impartially discharge the duties required by the office of President [ or Vice - President , ordinary member , extraordinary member or substitute member ] of ORG , and especially that I will participate in the decisions to be taken by the ORG according to my own convictions and keep secret that which is known to me through my duties regarding patent applications in so far as these have not been laid open to public inspection or published for opposition purposes and that I will help to implement with precision the appropriate acts and ordinances ( algemene maatregelen PERSON ) and that I will not accept any promise or any gift , whether directly or indirectly , to do or omit anything in the discharge of my duties ... "

ORG No member of ORG may take part in proceedings in which he has a direct or indirect interest or in which he is in any way involved ( Rule CARDINAL of LAW ) .

ORG The appointment of the President and ordinary members remains valid until their retirement .

The extraordinary members are appointed for a DATE period , which may be extended for DATE at a time ( Rule CARDINAL para . CARDINAL of LAW ) . They are recruited on the basis of expertise in a particular technical field and , in general , are university professors in CARDINAL of the technical or applied sciences .

There are no specific rules protecting the President or members of ORG against dismissal . They enjoy the same protection as other permanently appointed civil servants , who may be dismissed involuntarily only on certain limited grounds laid down by law and may contest their dismissal before ORG ( ambtenarenrechter ) .

ORG There is CARDINAL case on record of dismissal of a member of ORG .

That case concerned a member of ORG who had refused an order by the President to carry out preparatory work on patent applications consisting of checking them for compliance with formal requirements . This was work normally done by lower - ranking civil servants but occasionally by members of ORG on a voluntary basis ; the assistance of the members of ORG had become necessary due to a growing backlog of work . When the member concerned refused to give his assistance voluntarily even after consultation , he was officially ordered to do so by the President . The member refused to obey and was dismissed on that ground .

He unsuccessfully contested his dismissal before both ORG and on appeal before ORG ( ORG ) . The member had not contested the order itself . For that reason the tribunals had to assume that he could only have been dismissed without justification if the order had manifestly been given without proper authority . In the particular case , the order was capable of being based on Rule CARDINAL of ORG ( Reglement Industriële Eigendom ) , a provision introduced in DATE , according to which duties incumbent on ORG but not assigned specifically to any ORG were to be carried out by the President , who was empowered to delegate them to ordinary members of ORG . ORG quoted the explanatory memorandum to the Order of DATE introducing the above LAW , from which it appeared that the competent Minister had assumed that members of ORG were subordinate to the President except in relation to decisions relating to patent applications . With regard to such decisions they could act only in accordance with their own convictions ( see the judgment of ORG of CARDINAL DATE , no . CARDINAL/B CARDINAL , unpublished ) .

ORG comprises CARDINAL ORG as well as ORG , ORG and Special Divisions ( section CARDINAL ( CARDINAL ) of LAW ) .

ORG has CARDINAL members . It is presided over ex officio by the President of ORG ; the other CARDINAL members are appointed by ORG ( Rule CARDINAL of LAW ) .

ORG decides on the composition of the other Divisions .

Examination Divisions , Appeals Divisions and Special Divisions are set up for each individual case as necessary .

ORG , consisting of either CARDINAL member ( who must then be technically qualified ) or CARDINAL members ( CARDINAL or CARDINAL of whom must be legally qualified ) , decide whether a patent application may be published for opposition purposes and hear oppositions ( see paragraphs CARDINAL and CARDINAL above ) ( Rules CARDINAL para . CARDINAL and CARDINAL of LAW ) . ORG which hear oppositions are always made up of CARDINAL Members , even if the application itself was dealt with by an ORG consisting of a single member ( section CARDINAL ( CARDINAL ) of LAW ) .

Special Divisions , consisting of either CARDINAL member ( who must then be legally qualified ) or CARDINAL members ( CARDINAL or CARDINAL of whom must be legally qualified ) , deal at first instance with all other matters coming within the jurisdiction of ORG CARDINAL para . CARDINAL and CARDINAL of LAW ) .

ORG , consisting of either CARDINAL members ( CARDINAL or CARDINAL of whom must be legally qualified ) or CARDINAL members ( CARDINAL or CARDINAL of whom must be legally qualified ) depending on the nature and complexity of the case , hear appeals against decisions of other ORG CARDINAL para . CARDINAL and CARDINAL of LAW ) . The President of ORG presides over ORG ex officio but he may be replaced in his absence by a Vice - President ( Rules CARDINAL para . CARDINAL and CARDINAL of LAW ) .

ORG may not include members who have been involved in drafting the search report or who have taken part in the decision appealed against as members of ORG ( section CARDINALA ( CARDINAL ) of LAW ) .

There are no statutory provisions allowing applicants to challenge either individual members of a ORG or an entire ORG .

ORG LAW provides as follows :

" The judiciary shall judge all disputes relating to civil rights and claims for payment . "

According to the settled case - law of ORG , this provision should be interpreted so as to encompass practically all disputes between individuals and government authorities . The civil courts are thus said to constitute a " safety net " as regards the protection of the individual against actions by the authorities . This means that although the civil courts must decide for themselves when to exercise their jurisdiction , they must declare an action inadmissible if they find that another legal remedy exists which offers sufficient procedural guarantees . On the other hand , if they find that no such remedy exists or that the existing remedy offers insufficient guarantees , they must deal with the merits of the case .

As regards actions brought by individuals against government authorities it is the established case - law of ORG since ORG PERSON v. the GPE judgment of DATE ( Series A no . CARDINAL ) that the civil courts must take into account the requirements of LAW . ( For a detailed discussion of the relevant legal developments and of the influence of the ORG judgment , see the ORG 's NORP v. the GPE judgment of CARDINAL DATE , Series A no . CARDINAL . )

ORG The question whether proceedings before ORG offer sufficient guarantees has only twice been submitted to the civil courts . On neither occasion was it answered conclusively .

The first time the issue was raised before a civil jurisdiction was in summary proceedings ( kort geding ) before the President of ORG of GPE ( judgment of DATE , ORG , ORG ) DATE , p. CARDINAL ) . In that case the plaintiff , against whom an injunction had been issued in earlier summary proceedings restraining it from infringing a patent owned by the defendant , asked for a declaration that this injunction applied only to the period between the issuing of the injunction and the date on which the plaintiff had requested ORG to grant a compulsory licence under the patent . The defendant pleaded that the proceedings relating to compulsory licences were not binding on it as ORG , in deciding on compulsory licences ( which in the defendant 's view amounted to the determination of civil rights and obligations as understood by DATE ( article CARDINAL ) of the Convention ) , was not an " independent and impartial tribunal " . The President of ORG declined to give a ruling on this issue . Even if its assumption were correct , the defendant could , after the grant of the compulsory licence , address itself to the civil courts , which would then decide whether the compulsory licence had been properly granted . The defendant 's objection to the arrangement for the grant of a compulsory licence could therefore in no way warrant the conclusion that such a licence should never be granted to the plaintiff , which had been the thinking underlying the defence plea .

The President of ORG commented , as an obiter dictum , that as matters stood - given the way in which the duties of ORG were stipulated by law and given the way in which the legal provisions governing proceedings relating to compulsory licences were stipulated and implemented in practice - the likelihood that in full civil proceedings ( bodemprocedure ) the GPE civil courts , or alternatively ORG , would hold ORG or the procedure relating to compulsory licences to fall foul of LAW was not sufficiently strong for him to base his decision in summary proceedings on such a hypothesis .

According to information provided by the ORG , the issue was raised a second time in DATE , when a company brought a case against the ORG before ORG of The Hague also based on a complaint about the grant of a compulsory licence under a patent which it owned . The court was asked to declare the decision of ORG unlawful , one of the reasons given being that ORG allegedly did not meet the standards of LAW . The Government has stated before this ORG that they did not raise any objection as to the admissibility of these allegations but , on the contrary , put forward defences on the merits of the question . It appears that the company decided not to pursue the case to a conclusion ; consequently , it did not result in any ruling by ORG .

ORG As from DATE LAW has been replaced by an entirely new LAW , LAW of DATE , ORG ) DATE , no . CARDINAL ) . However , patent applications filed before DATE , patents granted on the basis of such applications and licences under such patents continue to be governed by LAW . LAW will ultimately be repealed .

LAW has abolished the system of substantive examination of patent applications before the grant of a patent . Following the NORP example in particular , the new system involves the registration of patents after an examination for compliance with formal requirements only . Substantive examination is left to the civil courts , upon which it is incumbent to judge whether the requirements of patentability , particularly as regards inventive step , have been complied with . Oppositions must be brought directly before the civil courts .

Under the new system ORG in its present form will ultimately cease to exist .


CASE OF JAFARLI AND OTHERS v. AZERBAIJAN

Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible

Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicants are NORP nationals who were born in DATE , DATE and DATE respectively and live in GPE , GPE .

The applicants were members of a cooperative ( “ Əlincə ” PERSON – “ the NORP ” ) incorporated in GPE . The ORG was created by a decision of a general meeting of DATE and was initially composed of CARDINAL members , including the first applicant .

The ORG 's charter was officially registered on DATE by ORG of GPE . According to this charter , the ORG was to be liquidated , inter alia , if the number of its members dropped to CARDINAL .

According to TIME of the ORG 's general meetings available in the case file , there were subsequently some changes in the membership of the ORG . Following the departure of CARDINAL members of the ORG , on DATE the second and third applicants became its new members and the total number of the members amounted to CARDINAL . In all these documents the first applicant was mentioned as the chairman of the ORG .

Pursuant to a number of contracts concluded in DATE , the ORG supplied CARDINAL of the units of ORG of Border Troops of ORG ( “ ORG ” ) with various foodstuffs .

Although the ORG had fulfilled its contractual obligations , it was not fully paid .

On an unspecified date the ORG brought an action against ORG and ORG No . DATE , asking for payment of an accrued debt in the amount of CARDINAL old NORP manats ( ORG PERCENT interest , as stipulated by the contract .

NORP On DATE ORG No . CARDINAL dismissed the claim against ORG . However , ORG No . CARDINAL upheld the claim against ORG No . DATE and ordered the latter to pay AZM CARDINAL,CARDINAL,CARDINAL in total to the ORG . This amount included the principal debt of NORP and the penalty charge of GPE .

No appeals were lodged against that judgment and , pursuant to the domestic law , it became enforceable within DATE of its delivery .

On DATE ORG No . CARDINAL issued a writ of execution of the judgment . However , ORG No . DATE refused to comply with the judgment and , despite the applicants ' complaints to various authorities , it was not enforced .

In the meantime the Department of Border Troops was reorganised and renamed as ORG .

The documents in the case file show that , on the basis of a request by the ORG dated DATE , signed by the first applicant , the ORG 's activity as a taxpayer was ceased and this fact was recorded by ORG .

On an unspecified date in DATE the ORG brought an action against ORG and ORG complaining about the non - enforcement of the judgment of DATE . The ORG claimed CARDINAL for lost earnings , ORG CARDINAL for material damage and CARDINAL for non - pecuniary damage .

On DATE ORG No . CARDINAL dismissed the claim , finding that neither of the defendants could be held responsible for the non - enforcement of the judgment , because the amount awarded to the ORG by the judgment of DATE had not been paid due to the refusal of ORG to allocate state funds for this purpose .

On DATE ORG and on DATE ORG upheld the first - instance court 's judgment .

In the period from DATE , the judgment of DATE was fully executed and the total amount of GPE DATE was paid into the bank account that the ORG held at ORG .

By a decision of CARDINAL DATE ORG of GPE terminated the enforcement proceedings owing to the execution of the judgment of DATE .

The Law on Cooperation in the GPE of CARDINAL DATE of the GPE provided that a cooperative was established on a voluntary basis . The number of members of a cooperative could not be CARDINAL ( Article CARDINAL ) .

The PERSON of DATE on the temporary remaining in force of former GPE laws on the territory of GPE and their application provided a list of former GPE laws which would remain in force in GPE until the relevant laws of GPE were adopted . LAW in the GPE of CARDINAL DATE appeared on this list . This PERSON ceased to apply on DATE .

The Civil Code of DATE provides that a cooperative is a type of commercial company which is a voluntary union of individuals or legal entities established for the purpose of satisfying material and other needs of its members through consolidation of their material contributions ( Article CARDINAL ) . A cooperative can be established by CARDINAL members ( Article CARDINAL - CARDINAL.CARDINAL ) .

Members of a cooperative , in essence , enjoy rights similar to those of founders or shareholders of other types of legal entities , including the right to participate in the management of the cooperative and to receive a share of its profits ( Articles CARDINAL and CARDINAL in fine ) . The cooperative 's property is divided among the members in accordance with its charter ( LAW . The cooperative 's profits are distributed to the members in accordance with their shares , as well as the extent of their participation in the function of the cooperative , by way of contributing personal labour or otherwise ( LAW ) .

The supreme management body of a cooperative is the general meeting of members . Each member has CARDINAL vote at the general meeting regardless of the size of his or her contribution to the cooperative 's capital fund ( Articles CARDINAL and CARDINAL ) .

ORG The executive bodies of a cooperative are a management board and/or a chairman . A cooperative 's chairman may only be elected from among the cooperative 's members . The chairman is elected for a specified term at the general meeting of members and has the right to represent the cooperative ( Articles CARDINAL and CARDINAL ) . A cooperative may be voluntarily reorganised or liquidated by a decision of its members ' general meeting ( Article CARDINAL ) .

Article CARDINAL of LAW provides that legal entities can be represented before courts by their bodies , acting within the scope of powers conferred on them by law , regulations or constitutive documents of the legal entity , or by representatives acting on the basis of a power of attorney .


No violation of Art. 6-1;Not necessary to examine Art. 13

The applicant was born in DATE and lives in Velenje .

On DATE the applicant was injured in an accident at work . The applicant ’s employer had taken out insurance with the insurance company ZT .

On DATE the applicant instituted civil proceedings against ZT in ORG , ORG ( PERSON sodišče v PERSON , PERSON v PERSON ) seeking damages in the amount of CARDINAL SIT ( MONEY ) for the injuries sustained .

DATE and DATE the applicant lodged CARDINAL preliminary written submissions .

Of the CARDINAL hearings held DATE and DATE none was adjourned at the request of the applicant .

At the last hearing the court decided to deliver a written judgment . The judgment , rejecting the applicant ’s claim in part , was served on the applicant on DATE .

On DATE the applicant appealed to ORG ( PERSON v PERSON ) .

On DATE the court allowed the appeal , quashed the first - instance court judgment and remitted the case to the first - instance court for re - examination . The decision was served on the applicant on DATE .

DATE and DATE the applicant filed CARDINAL preliminary written submissions in the proceedings in the re - examination proceedings before a new first - instance court judge .

At the last hearing the court decided to deliver a written interim judgment . The judgment , holding the applicant ’s adversary absolutely liable for damages sustained by the accident , was served on the applicant on DATE . The court did not rule on the amount of damages and the costs of the case .

On DATE ZT appealed to ORG ( PERSON v PERSON ) .

The appeal was dismissed on DATE .

On DATE ZT lodged an appeal on points of law with ORG sodišče ) .

On DATE the court rejected the appeal .

The judgment was served on the applicant on DATE .

DATE and DATE , in the continued proceedings before the first instance court , the applicant made CARDINAL requests that a date be set for a hearing .

On DATE and DATE he filed preliminary written submissions .

A hearing scheduled for DATE was cancelled at the applicant ’s request in anticipation of out of court settlement .

At the hearing held on DATE the applicant withdrew his claim since the case was settled out of court on DATE .


Violation of Article 3 - Prohibition of torture;Violation of Article 5 - Right to liberty and security

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev

The applicant was born in DATE and lives in GPE .

In DATE a criminal case was opened against the applicant on suspicion of theft , an offence under LAW . The applicant signed an undertaking to appear .

On DATE the Primorskiy ORG of GPE convicted the applicant of theft and sentenced him to probation of an unspecified duration . Counsel for the applicant appealed .

On DATE GPE upheld the conviction but relieved the applicant from punishment by virtue of LAW of DATE ( cited in paragraph CARDINAL below ) .

In DATE a criminal case was opened against the applicant on suspicion of his having stolen , in DATE , car parts valued at MONEY ( RUB , less than CARDINAL euros ) . The prosecutor preferred the charge of theft aggravated by repetition and substantial damage , an offence under LAW of LAW .

On DATE ORG ordered the applicant ’s retrieval and arrest for the following reasons :

“ On DATE [ the applicant ] received a copy of the bill of indictment in this criminal case . He was summoned , by a phone call , to the court hearing at TIME on DATE , but he did not appear at that time .

Due to [ the applicant ’s ] absence the examination of the case was adjourned until TIME on DATE to find out whether there had been any valid reasons for his absence . At TIME on DATE [ the applicant ’s ] mother called the court on the phone and said that she and her son had been advised belatedly by her relatives DATE who had taken the phone call – about the court hearing on DATE , and that was the reason why her son had not appeared at the court . [ The applicant ’s ] mother also told [ the registry ] that [ the applicant ] had no illness preventing him from appearing before the court and no medical certificate . During that conversation [ the applicant ’s ] mother was informed that the court hearing was scheduled for TIME on DATE .

At the court hearing at TIME on DATE [ the applicant ] failed to appear once again . The case was rescheduled for TIME on DATE . At TIME [ the applicant ’s ] mother again telephoned the court and said that , although she and her son had known about the scheduled court hearing , he would not appear before the court unless the summons was sent by mail . Under these circumstances the court has reasons to believe that [ the applicant ] is absconding from justice , that he refuses to appear before a court and interferes with timely examination of the case . In this connection the court considers it necessary to order retrieval of [ the applicant ] and vary the measure of restraint to that of placement in custody . ”

On DATE the applicant was taken into custody .

Counsel retained by the applicant ’s mother asked ORG to commission an expert examination of the applicant ’s mental health and to release him pending trial .

On DATE ORG held as follows :

“ According to the available case file materials , [ the applicant ] was repeatedly , on CARDINAL occasions DATE , summoned to a court hearing and failed to appear without a valid reason . [ The applicant ] is charged with an offence which is classified as a serious crime , and in such cases a custodial measure may be imposed for the sole reason of the dangerousness of the committed offence . [ The applicant ’s ] explanation that he did not appear in court because his mother had asked him not to is without substance because [ the applicant ] is an adult who should have been aware of the consequences of a violation of the undertaking given by him , as well as of the fact that liability for his failure to appear would be his and not his mother ’s . ”

The court remanded the applicant in custody sine die and ordered a psychiatric examination . It appears that the decision was not appealed against . The following hearing in the case was fixed for DATE .

On DATE counsel for the applicant asked ORG to vary the legal characterisation of the applicant ’s act , to prefer a lesser charge of non - aggravated theft and to discontinue proceedings on the basis of LAW of DATE . ORG granted the lawyer ’s request , finding as follows :

“ The investigators had characterised PERSON acts as repetitive theft , having regard to the fact that he had already been charged [ with theft ] on CARDINAL DATE . However , on DATE PERSON was convicted of that offence ... and , by the appeal decision of DATE ... was relieved from punishment . Thus , the acts of Mr Gusev lack the constituent element of repetition .

It has not been shown that PERSON caused substantial damage to the victim P. because he is charged with theft of a car PERSON and a pump valued at MONEY . It does not appear that the small amount of MONEY was important for the victim and there is no information about his income or dependants . ”

Having thus established that the aggravating circumstances had ceased to exist or had not been made out , ORG characterised the applicant ’s act as non - aggravated theft under LAW and discontinued the second criminal case against him on the basis of LAW of DATE . However , ORG held that the applicant should remain in custody on the basis of the arrest warrant of DATE ( see below ) .

In the meantime , on CARDINAL DATE an investigator with ORG of GPE initiated a third criminal case against the applicant ( case no . DATE ) on suspicion of his having stolen certain items from a car in DATE which were valued at RUB CARDINAL ( EUR CARDINAL ) . The investigator designated the act as repetitive theft , an offence under LAW .

On DATE PERSON , an investigator with the investigations department of ORG , ordered the applicant ’s placement in custody . On DATE the arrest warrant was approved by a deputy prosecutor of LOC .

On DATE counsel for the applicant lodged a complaint against the detention order of DATE . He submitted that the order had been unlawful and unjustified because it had referred to the “ gravity ” rather than the “ dangerous nature ” of the offence charged .

On DATE counsel lodged a further complaint . He claimed , in particular , that LAW ( c ) of the Convention did not provide for such a ground for pre - trial detention as the “ gravity of the offence ” and that the prosecutor ’s statements about the applicant ’s intention to abscond or obstruct the establishment of the truth were not substantiated . He further pointed out that a copy of the order had not been served on the applicant and the procedure for lodging an appeal had not been explained to him . In any event , his authorised detention had expired on DATE and no documents in the case file indicated that it had been extended . Finally , the applicant ’s lawyer pointed to the appalling conditions of the applicant ’s pre - trial detention .

On DATE dismissed the challenge . It found as follows :

“ The decision to impose the chosen measure of restraint was read out to [ the applicant ] on DATE at the ORG of GPE following the pronouncement of the judgment . Likewise , the procedure for lodging an appeal against the detention order was explained to him . However , [ the applicant ] refused to sign that document , and [ the investigator PERSON ] , lacking professional experience , omitted to make an appropriate note thereof . At present the periods of preliminary investigation and pre - trial detention of [ the applicant ] have been extended in accordance with the law .

[ The applicant ] is charged with a serious crime and its dangerousness alone may be , pursuant to LAW , the ground for ... holding him in custody . In these circumstances , dangerousness of the crime to which the law refers is in itself sufficient to anticipate undesirable conduct on the part of the accused , including continuation of criminal activities and absconding upon commission of a crime , in other words the reference in the law to the dangerous nature of a crime enables the investigative authorities to anticipate these very events to which the [ NORP ] Convention refers .

No information showing that [ the applicant ] can not remain in the investigative ward was provided to the court . ”

On DATE counsel appealed against the court decision of DATE . He indicated , in particular , that the provision of LAW relied upon by the first - instance court had been struck down as incompatible with the LAW by ORG in the part which provided for placement in custody on the sole ground of the dangerous nature of an offence .

On DATE GPE dismissed the appeal as unsubstantiated .

In the meantime , on DATE the third criminal case against the applicant and his co - defendants was submitted for trial by ORG . On DATE the applicant ’s lawyer made a new request for the applicant ’s release pending trial .

On DATE ORG issued a decision to schedule the first trial hearing for DATE . In the same decision the court dismissed the lawyer ’s request for release , stating that the measure of restraint had been imposed “ lawfully and reasonably , taking into account the gravity of the charge and the information on his character ” . It did not specify for how long the applicant should remain in custody . Counsel for the applicant appealed , relying on the same grounds as before . On DATE GPE upheld the decision of DATE .

It appears that the hearing scheduled for DATE was adjourned .

On DATE the Primorskiy ORG again adjourned the criminal proceedings until DATE , because counsel for the applicant ’s co - defendant failed to appear . It also extended the applicant ’s pre - trial detention until DATE as , in the court ’s opinion , “ [ his ] release would impede a thorough , complete and objective examination of the case ” .

The applicant appealed against the decision . He pointed , in particular , to the inhuman and degrading conditions of his detention in facility no . IZ-CARDINAL/CARDINAL . He also submitted that he had a permanent residence in GPE and lived with his disabled mother , CARDINAL younger brothers and CARDINAL sisters and that there were no grounds to believe that he would abscond . A supplementary appeal on points of law was lodged by his lawyer .

On DATE GPE dismissed the appeals , finding the extension order had been lawful and justified because “ the arguments set out in the appeals had been known to the trial court which [ had ] had due regard to them ” .

On an unspecified date the applicant ’s mother made another request for the applicant ’s release pending trial .

On DATE ORG examined the request and , upon finding that the maximum detention period of DATE would expire in DATE , ordered the applicant ’s release against a written undertaking not to leave the city .

By a judgment of DATE , ORG convicted the applicant of aggravated theft and sentenced him to CARDINAL years’ imprisonment conditional on DATE probation . The applicant was relieved from the punishment by virtue of LAW of DATE . The applicant did not appeal against the conviction .

On DATE the applicant was taken into custody and placed in remand centre IZ-CARDINAL/CARDINAL of GPE , commonly known as “ GPE ” .

The applicant was held in cell CARDINAL until DATE , then in cell CARDINAL until DATE and in cell CARDINAL after that date . In his submission , each cell measured CARDINAL to QUANTITY m and accommodated CARDINAL persons simultaneously . Part of each cell was occupied by a table , toilet bowl and bed , so that the living space was QUANTITY . m per inmate . The Government indicated the floor space of each cell as QUANTITY . m and asserted that the number of detainees detained in each cell was impossible to establish as the relevant documents had been destroyed .

The applicant indicated that he had never had a separate bed . In cell CARDINAL he had shared the bed on the third tier with CARDINAL other inmates . In cell CARDINAL he had not been allowed by the informal “ chief ” of the cell to sleep on a bed , he had slept on the floor or under the bed . In cell CARDINAL he had shared the bed on the third tier with another inmate . No bedding had been provided by the facility , until DATE he had slept on wooden planks and covered himself with his clothing . In their post - admissibility submissions the Government enclosed a certificate issued by the remand centre director on DATE , according to which the applicant had had a separate bed and personal bedding at all times .

In support of his contentions , the applicant submitted written statements by PERSON , who had been held in the same remand centre from DATE and by PERSON , who had stayed there from DATE to DATE . Although they had not shared cells with the applicant , they attested , in particular , to the general overcrowding of the remand centre in DATE and the lack of sleeping places and bedding .

The applicant further submitted that the windows in all cells had bars and iron shutters on them which blocked access to daylight and air . The shutters covered the entire window and it was forbidden to open them . The Government claimed that the cells had been “ naturally ventilated ” through the holes in the walls . The applicant denied that , indicating that ventilation holes in the walls had been patched with concrete . In their initial submissions on the admissibility and merits of the case , the Government indicated that on DATE the temperature in the cell had been CARDINAL.CARDINALo C. In their submissions following the admissibility decision , the Government enclosed a certificate issued by the director of the remand centre on DATE . It said that the temperature in the cells had been taken and recorded on a DATE basis and the average temperature had been DATE C in DATE and DATE C in DATE .

The Government stated that the cells had been equipped with sanitary installations separated from the living space by a folding screen . They enclosed a certificate issued by the director of the remand centre on DATE which attested to that fact . The applicant submitted that there had been no folding screen and that it had been prohibited to separate the cell from the toilet bowl located QUANTITY from the table .

Section CARDINAL of ORG no . CARDINAL-FZ of DATE ) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by ORG of GPE . Section CARDINAL provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should be afforded QUANTITY of personal space in the cell .

A repetition of criminal offences exists if the suspect has committed CARDINAL or more offences characterised under the same provision of LAW ( LAW ) . Criminal offences are not considered repetitive if the proceedings in respect of the previously committed offence have been discontinued or if the criminal record of that offence has been extinguished or purged ( LAW ) .

Article CARDINAL § CARDINAL established that simple theft was punishable by up to CARDINAL GPE imprisonment . LAW ( b ) and ( g ) established that repetitive theft entailing substantial damage was punishable by DATE imprisonment . LAW established punishment for theft committed by a person who had been previously convicted of theft or extortion on CARDINAL or more occasions .

On DATE ORG of GPE adopted an act of amnesty in commemoration of the CARDINALth anniversary of the victory in the Great Patriotic War of DATE ( Second World War ) .

The Amnesty Act provided that criminal proceedings in cases pending before investigative bodies or courts were to be discontinued if , in particular , the person was charged with a criminal offence committed before the entry into force of LAW and punishable with CARDINAL years’ imprisonment ( section CARDINAL ( a ) ) .

The Amnesty Act also provided that the convicts who had been sentenced to probation should be relieved from punishment ( section CARDINAL ) .

LAW was to be implemented by investigative bodies in respect of suspects whose cases were being investigated or by courts in respect of defendants whose cases had been submitted for trial ( section CARDINAL of ORG no . CARDINAL on the procedure for application of LAW ) .

LAW of DATE establishes that a judicial decision is required before a defendant can be detained or his or her detention extended ( Article CARDINAL ) . A decision ordering pre - trial detention could be taken by a prosecutor or a court ( Articles CARDINAL , CARDINAL and CARDINAL of the RSFSR Code of Criminal Procedure , the “ CCrP ” ) .

Before DATE , pre - trial detention was authorised if the accused was charged with a criminal offence carrying a sentence of DATE imprisonment ( LAW CCrP ) . The amendments of DATE repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they have committed .

After the arrest the suspect was placed in custody “ pending investigation ” for an initial DATE period ( LAW of the ORG ) . Further extensions could be granted by prosecutors at ascending levels of jurisdiction .

Once the investigation had been completed and the defendant had received the charge sheet and finished reading the case file , the file was submitted to a trial court . From DATE the defendant ’s detention was “ before the court ” ( or “ pending trial ” ) . Until DATE LAW set no time - limit for detention “ pending trial ” . On DATE a new LAW was inserted which established that the period of detention “ during trial ” could not normally exceed DATE from the date the court received the file .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE . He is currently detained in FAC . ORG ( “ the Government ” ) were represented by their Agent , PERSON , from ORG .

NORP By a final judgment of DATE the ORG convicted the applicant of aggravated murder and sentenced him to life imprisonment . He was imprisoned in FAC .

NORP The applicant lodged his first application with ORG on DATE ; however , his file was destroyed because he had not submitted a complete application pack by the required time - limit .

NORP The applicant lodged a second application with ORG DATE alleging that he had sent the first application pack by the required time - limit as instructed by the ORG ’s letter of CARDINAL DATE , but that ORG authorities had failed to post his letter .

According to the information submitted by the applicant , the food provided by ORG authorities was insufficient , poorly cooked , failed to include certain food groups ( meat , milk , sweets and fruit ) , was lacking in nutritional value , and was served in unhygienic conditions . Moreover , he did not have adequate access to drinking water because the supply was repeatedly cut off .

On DATE the applicant submitted CARDINAL statements by fellow inmates in support of his application , which generally back up his complaints concerning the quality of the food and lack of adequate access to drinking water .

In a letter of CARDINAL DATE the applicant informed the ORG that his phone problem had been solved and that he now had DATE access to phone conversations .

According to the information submitted by the ORG , ORG was connected to the public water network and was permanently supplied with drinking water .

DATE the applicant was hospitalised in FAC because he was suffering from gastritis . Upon his discharge from the prison hospital he was recommended a diet suitable for his gastritis . He was given a special diet until DATE , when this was modified to take into account the applicant ’s medical condition of dystrophia which led to the wasting of his muscles .

The applicant ’s DATE diet contained QUANTITY and included all the food groups . The food was varied and was not cooked in the same way all the time . The quality of the ingredients was checked on a DATE basis by the prison ’s governor , a doctor and a representative of the prisoners .

NORP The prison had CARDINAL rooms fitted with CARDINAL and CARDINAL phones , respectively . From DATE the phones were fitted with booths in order to preserve the confidentiality of the phone conversations . The prison wardens charged with the surveillance of the ORG phone conversations had a duty to record the numbers dialled by the prisoners in a report and then to visually supervise the prisoners during the phone conversations .

DATE FAC was fitted with an electronic phone system and CARDINAL phones were installed in all the detention areas . The prisoners were granted the right to use the phones on a DATE basis under visual supervision .

On an unspecified date in DATE the applicant brought proceedings against FAC seeking a court order to force the prison authorities to provide him with copies of his prison file .

By a final judgment of CARDINAL DATE ORG allowed the applicant ’s action in part and ordered the prison authorities to provide him with copies of the covering notes of his prison file , on the ground that these contained notes made by the authorities concerning the applicant , including how much of a danger he was considered to be . The court held , with regard to the other documents contained in the file , that according to the applicant ’s own statements he had already been allowed access to them and had been provided with copies . Finally , the court dismissed his request for copies of the photographs contained in the file , stating that they were photographs taken on his arrival at the prison and that he had insufficient justification for being given them .

On DATE , the applicant brought proceedings against the FAC authorities seeking a court order to force them to stop the illtreatment he alleged he was being subjected to . He argued that , among other things , the food was insufficient and of poor quality and that he had been repeatedly taken before the domestic courts in restrictive handcuffs and chains . He also asked to be taken to a specialist for a medical examination and argued that the confidentiality of his phone conversations was not being respected in so far as his conversations could be overheard by other prisoners and the wardens and the fact that he had been compelled to inform the prison authorities of the phone numbers he wished to call prior to dialling the numbers .

On DATE the applicant brought proceedings against the Arad Prison authorities seeking a court order to force them to take him for an ophthalmological examination . He argued that as a result of the poor living conditions , in particular the thick metal grille obstructing natural light from entering the “ metal cage ” he was living in , he had partially lost his eye sight .

By a final judgment of CARDINAL DATE ORG allowed in part the action brought by the applicant against FAC authorities on DATE and ordered them to ensure the confidentiality of the applicant ’s phone conversations . The domestic court held that according to LAW no . CARDINAL , phone conversations were to be treated as confidential . However , according to witness statements , the applicant ’s conversations had taken place in a room fitted with CARDINAL phones and no phone booths , in the presence of CARDINAL prison wardens and other prisoners . Consequently , the prison wardens and the other prisoners present in the room might have been able to overhear the applicant ’s conversations .

The court dismissed the remainder of the applicant ’s complaints . It held that , although this was a complaint not regulated by Ordinance no . CARDINAL , according to the information submitted by ORG authorities the DATE diet provided to the applicant had contained CARDINAL calories and had been of good quality . The applicant had not substantiated his claim that he had asked the prison medical staff to take him to be examined by a specialist . The witnesses heard by the court in respect of the applicant ’s claim of being tightly handcuffed and chained were unable to report on the applicant ’s individual situation and , in any event , the prison authorities reported that his restraint was prescribed by paragraph CARDINAL ( CARDINAL ) of ORG no . CARDINAL , which was applicable in his case . Finally , the fact that the prison authorities had limited the duration and number of the applicant ’s phone conversations did not breach any of the applicant ’s rights - a practice that was allowed by Ordinance no . CARDINAL .

By a final judgment of DATE ORG dismissed the action brought by the applicant against FAC authorities on DATE on the ground that his claims were unsubstantiated . The applicant ’s prison medical file did not contain any record that he was suffering from eye problems or that he had requested to see a specialist physician . Moreover , the metal grille fitted to the window was closed only during the night , TIME , and the room was fitted with a QUANTITY neon light which was kept on even during DATE when the grille was open .

On DATE the applicant brought proceedings against the prison authorities , seeking to obtain a court order to stop the prison wardens from recording the phone numbers he called and from limiting the number of his phone calls . Moreover , he demanded that the metal grill ( fitted QUANTITY from the door and window of his cell ) be removed on the ground that this prevented natural light from entering the room , made it impossible for him to open the window , and caused him to live in a metal cage .

On DATE the applicant brought proceedings against FAC authorities seeking to be declassified from the “ maximum security ” regime under which he was detained .

By a final judgment of CARDINAL DATE ORG dismissed the applicant ’s action of DATE on the grounds that the seriousness of his crime and his conduct did not justify his declassification from the “ maximum security ” regime .

By a final judgment of CARDINAL DATE ORG dismissed the applicant ’s action of DATE on the ground that the requirement to pre - register the phone numbers the applicant was calling and the limitation on the number of phone calls he could make pursued a legitimate aim and did not interfere with the requirement of confidentiality of private phone conversations . This measure was put in force in order to deter the applicant from committing new crimes and the authorities were able to keep a record of the number of calls made by each prisoner and the individuals he had telephone contact with . Further , this was the only way each prisoner could be allowed access to phone calls given the limited number of available phones . The court also dismissed the applicant ’s action seeking the removal of the metal grille fitted in his cell , on the ground that the grille served as a deterrent against escape . However , the court ordered FAC authorities to enforce a schedule for the opening of a door fitted in this grille facing the window so that the applicant could air the room . The court held that the door of the grille should be open DATE during DATE and TIME .

On DATE the applicant brought proceedings against FAC authorities , seeking a court order to force them to provide him with full copies of ORG nos . CARDINAL/C/CARDINAL and CARDINAL/C/CARDINAL .

By a final judgment of DATE ORG dismissed the applicant ’s action of DATE on the ground that the orders requested by the applicant were not mentioned in LAW no . CARDINAL/CARDINAL as being among those documents which were required to be made available to prisoners , and that they did not concern the applicant directly . The orders regulated the functioning of the special security measures in maximum security prisons and the applicant had not provided a reason why he needed full copies of such documents , particularly since he had already been provided with copies of the excerpts from the said orders which did concern him directly .

On DATE and DATE the applicant complained to ORG that although he had not been classified as a highly dangerous inmate , he had been restrained each time he was taken before the domestic courts . He claimed that the prison guards intentionally tightened the restraints in order to cause him physical suffering . Moreover , he argued that his living conditions , in so far as the metal grille fitted to his room was concerned , did not comply with the acknowledged NORP standards for prisoners .

In CARDINAL letters , nos . BCARDINAL and ORG , ORG informed the applicant that his living conditions and the methods used by the prison wardens to restrain him complied with the provisions of ORG no . CARDINAL/C/CARDINAL , which set out the rules for prisoners serving life sentences , and provided him with the relevant excerpts from the said order . Moreover , the applicant was informed that , as of DATE , he was no longer classified as a “ highly dangerous ” prisoner .

On DATE and DATE , relying on the provisions of LAW of GPE ( LAW ) , the applicant brought proceedings against CARDINAL employees of FAC , namely ORG , ORG and ORG , for unlawful interference with his correspondence .

On an unspecified date in DATE , again relying on the provisions of LAW , the applicant brought proceedings against ORG and ORG , prison wardens at FAC , for unlawful censorship and interception of his phone conversations . The applicant complained that the serial number of the phone card he had used and the numbers he had dialled had been registered in a phone record book and that the confidentiality of his conversations had been breached in so far as his phone conversations had been conducted on at the same time as other prisoners who were using the other CARDINAL phones available in the room .

On DATE the applicant brought proceedings against the head of FAC for abuse of power . He argued that on DATE the head of the prison had not allowed him to phone his family and he had stated that the applicant could phone his family only on certain dates . Lastly , the prison authorities had breached the confidentiality of his phone calls because he had been forced to disclose the phone numbers he was calling .

By a final judgment of CARDINAL DATE ORG dismissed the applicant ’s action against ORG and PERSON on the ground that no unlawful act had been committed by the prison wardens The court held that ORG and ORG had performed their lawful duty and ensured that all prisoners had access to the phones at least once DATE , in compliance with the applicable legal provisions . The fact that the applicant had been compelled to register , in a phone record book , the serial number of the phone card he was using and the numbers he wished to dial did not amount to censorship of his phone conversations .

By a final judgment of DATE ORG dismissed the proceedings brought by the applicant on DATE and DATE against ORG , ORG and ORG on the ground that no unlawful act had been committed . The court held that ORG had mistakenly cut an opening of QUANTITY in envelope no . DATE before he realised that it was addressed to the applicant . However , the envelope had not been further opened and no one had been able to see or copy its contents . Moreover , the applicant had not raised any objections or complaints in respect of this damage at the time he was handed the envelope by ORG and ORG

By a final judgment of CARDINAL DATE ORG dismissed the applicant ’s action of DATE on the ground that no unlawful act had been committed by the governor of FAC . It held that ORG had already examined the applicant ’s complaints concerning the restriction of his phone rights to certain dates and his duty to disclose the numbers he wished to dial and had found it lawful . Moreover , the applicant had not indicated any emergency that would have justified his demand for access to the phone on DATE .

Excerpts from the relevant legal provisions concerning the rights of detainees , namely Emergency Ordinance No . CARDINAL/CARDINAL , Law No . CARDINAL/CARDINAL and reports of ORG for the Prevention of Torture , are given in the cases of LOC v. GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) ; GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) ; and ORG v. GPE ( ( dec . ) no . CARDINAL , § § CARDINAL , DATE ) .

Section CARDINAL of ORG no . CARDINAL/C/CARDINAL provides that restraints must be used in respect of prisoners serving a life sentence when they are transferred from the prison , appear in public or attend hearings before domestic courts .

Article CARDINAL § CARDINAL of Law no . CARDINAL/CARDINAL provides that , immediately following their imprisonment , prisoners are to be provided with copies of LAW ORG , CARDINAL and the rules governing the enforcement of the said laws , copies of the orders and the relevant sections of LAW and LAW concerning the execution of prison sentences , and copies of the prison rules and guidelines .

Section CARDINAL of ORG Order no . CARDINAL/CARDINAL and ORG decision no . CARDINAL/CARDINAL oblige the prison wardens to move away from the prisoner after they have witnessed him dialling the number he has registered in advance , in order to ensure the privacy of the phone conversation .


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-2 - Information in language understood);Non-pecuniary damage - award

András Sajó;Helen Keller;Ineta Ziemele;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in the village of A. in eastern GPE .

The applicant is innately deaf and dumb and has medium - grade intellectual disability . He is illiterate .

According to the bill of indictment preferred in the case , on DATE the applicant – a multiple recidivist offender with the most recent conviction dating from DATE mugged a passer - by in ORG . He was then halted for an identity check by officers of ORG . He attempted to escape but was apprehended while still in possession of the stolen item . He was committed to the police station .

Since the applicant was perceived to use a sort of sign language , a sign - language interpreter was appointed for him at once . TIME he was interrogated as a suspect of robbery . No lawyer was present .

The Government submitted that the applicant had understood the charges brought against him but made no complaint about it and admitted the commission of the offence by signing the minutes of the interrogation . The applicant denied this , arguing that the sign language used by him and the one used by the interpreter were different and thus no comprehension had been possible between them .

The applicant ’s signature on TIME in question consists of his scribbled nickname , hardly legible .

Between DATE and CARDINAL DATE the applicant was detained on remand on the charge of mugging at PERSON .

NORP The applicant maintained that the conditions of detention were inapt to his condition and that he had been molested , sexually and otherwise , by the other inmates . The Government argued that special measures had been put in place to address the applicant ’s situation ( in particular , the prison governor issued an instruction to that effect on CARDINAL DATE ) – an assertion of which the efficacy has been disputed by the applicant ( for details , see paragraphs CARDINAL and CARDINAL below ) .

On DATE the applicant was released from detention and placed under house arrest . ORG , having noted that he did not know any sign language and was able to communicate only with his mother , was of the view that the time spent by the applicant in detention had be to be reduced to a minimum .

Meanwhile , on DATE the applicant was indicted for robbery . His mental condition was noted by the prosecution . A public defence counsel and a sign - language interpreter were appointed for him .

While detained , the applicant was examined by a forensic psychiatrist . On DATE the expert gave the opinion that the applicant ’s faculties were to a large extent reduced and that he should be placed under partial guardianship . This was done by ORG on DATE . The court noted that the applicant ’s IQ was DATE , he was deaf and dumb , he had medium - grade intellectual disability , he could not count and did not know sign language ; the only person with whom he could communicate was his mother .

The criminal proceedings conducted against the applicant are still pending .

The applicant submitted the testimonies of a Mr F. and a Mr NORP who were present when Mr PERSON met with the applicant on DATE to discuss his representation before the ORG . According to these testimonies , the applicant communicated using a peculiar sign - language - like method , essentially only intelligible to his mother , which appeared to be completely different from the standard sign language .

Act no . ORG of DATE on LAW provides as follows :

“ ( CARDINAL ) A defendant ’s pre - trial detention may be ordered in proceedings conducted for a criminal offence punishable by imprisonment and only if :

a ) the defendant has escaped or absconded from the reach of the court , the prosecutor or the investigating authority or attempted to do so , or if other proceedings for an intentional criminal offence punishable by imprisonment has been instituted against him during the procedure ,

b ) due to the risk of his escape or absconding or for other reasons it can reasonably be assumed that his attendance at the procedural acts can not be ensured otherwise ,

c ) it can reasonably be assumed that if left at large he would frustrate , obstruct or jeopardise the taking of evidence , especially by influencing or intimidating the witnesses , or by destroying , falsifying or concealing physical evidence or documents ,

d ) it can reasonably be assumed that if left at large he would accomplish the attempted or prepared criminal offence , or would commit another criminal offence punishable by imprisonment . ”

The United Nations Convention on the Rights of Persons with Disabilities contains the following provisions :

“ For the purposes of the present Convention :

“ Reasonable accommodation ” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden , where needed in a particular case , to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms ; ... ”

“ CARDINAL . GPE Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others , including through the provision of procedural and age - appropriate accommodations , in order to facilitate their effective role as direct and indirect participants , including as witnesses , in all legal proceedings , including at investigative and other preliminary stages . ”

“ CARDINAL . States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process , they are , on an equal basis with others , entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention , including by provision of reasonable accommodation . ”

The Interim Report of the Special Rapporteur on the question of torture and other cruel , inhuman or degrading treatment or punishment , submitted on DATE by ORG High Commissioner for Human Rights to the CARDINALrd session of ORG of the ORG ( ORG ) , contains the following passages :

“ The Special Rapporteur draws the attention of ORG to the situation of persons with disabilities , who are frequently subjected to neglect , severe forms of restraint and seclusion , as well as physical , mental and sexual violence . He is concerned that such practices , perpetrated in public institutions , as well as in the private sphere , remain invisible and are not recognized as torture or other cruel , inhuman or degrading treatment or punishment . ” [ summary ]

“ Persons with disabilities are often segregated from society in institutions , including prisons , social care centres , orphanages and mental health institutions . They are deprived of their liberty for long periods of time including what may amount to a lifelong experience , either against their will or without their free and informed consent . Inside these institutions , persons with disabilities are frequently subjected to unspeakable indignities , neglect , severe forms of restraint and seclusion , as well as physical , mental and sexual violence . The lack of reasonable accommodation in detention facilities may increase the risk of exposure to neglect , violence , abuse , torture and ill - treatment . ” [ paragraph CARDINAL ]

“ Persons with disabilities often find themselves in ... situations [ of powerlessness ] , for instance when they are deprived of their liberty in prisons or other places ... In a given context , the particular disability of an individual may render him or her more likely to be in a dependant situation and make him or her an easier target of abuse ... ” [ paragraph CARDINAL ]

“ States have the further obligation to ensure that treatment or conditions in detention do not directly or indirectly discriminate against persons with disabilities . If such discriminatory treatment inflicts severe pain or suffering , it may constitute torture or other form of ill - treatment . ... ” [ paragraph CARDINAL ]

“ The Special Rapporteur notes that under LAW , paragraph CARDINAL , of the [ Convention on the Rights of Persons with Disabilities ] , GPE have the obligation to ensure that persons deprived of their liberty are entitled to ‘ provision of reasonable ORG . This implies an obligation to make appropriate modifications in the procedures and physical facilities of detention centres ... to ensure that persons with disabilities enjoy the same rights and fundamental freedoms as others , when such adjustments do not impose disproportionate or undue burden . The denial or lack of reasonable accommodation for persons with disabilities may create detention ... conditions that amount to ill - treatment and torture . ” [ paragraph CARDINAL ]


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

In DATE the applicant was the Managing Director and controlling shareholder of ORG or ORG . At the time DEL was involved in the development of CARDINAL industrial units in GPE . According to the applicant , an oral agreement was reached in a meeting on DATE with PERSON from ORG to the effect that ORG would take over the funding of the development and that the applicant ’s personal borrowings and ORG ’s borrowings would be secured on the development and also by a mortgage on the applicant ’s home . According to the applicant , it was also agreed that the short term bridging loan would be replaced by long term mortgage finance once CARDINAL of the units had been let and CARDINAL had been sold . Transfers and debits of money , flowing from the agreement , were made on ORG ’s account . ORG in later proceedings denied the existence of any such oral agreement .

ORG refused to provide long term financing and in DATE gave notice that they were calling in their loans . This led to protracted litigation in which the applicant was unsuccessful in his claims against ORG which gained possession of his home and , in DATE , made him bankrupt .

In DATE the applicant traced Mr G , who allegedly disclosed the existence of contemporaneous notes of the meeting in DATE . These notes had never been disclosed in the various proceedings .

On DATE and DATE , the applicant made application for access to the notes under LAW DATE ( “ the DATE LAW ) , claiming that he was a data subject and that personal data concerning him was either processed or part of a filing system within the meaning of that LAW .

On DATE , ORG refused to order disclosure of the notes . Mr Justice PERSON noted that it was not in dispute that ORG held no computerised records relating to the applicant and that any such documents that might be retained were in the form of unstructured bundles kept in boxes . There were , it was accepted , some documents which at least mentioned the applicant within the bundles relating to ORG . The applicant ’s counsel had conceded that such files were not sufficiently structured to fall within the scope of " relevant filing systems " and the judge rejected arguments that sought to bring the notes within the scope of the LAW by reference to the fact that at one time they might have been subject to word processing or could be rendered into a structured form by means of scanning and processing , relying inter alia on indications in domestic and NORP materials that only filing systems , and not unstructured files , were intended to be covered by data protection The judge also considered that the notes did not concern " personal data " about the applicant . He cited case - law indicating that not all information retrieved from a search against an individual ’s name was personal data ; that mere mention of an individual ’s name in a document held by a data controller did not mean that the document contained personal data ; and that in determining whether information was capable of constituting personal data depended on its relevance or proximity to the data subject and that in answering that question it was relevant to consider whether the information was biographical in a significant sense , whether it had the putative data subject as its focus and finally whether the information affected the privacy of the putative data subject . Applying those principles , it was clear that the documents held by ORG and the information contained therein were not personal to the applicant in the relevant sense . The files related to the loans to ORG and the applicant was only mentioned because he acted on behalf of the company . The documents were not biographical about the applicant to a significant extent , dealing with the loan and its terms . Indeed what the applicant was trying to obtain were not documents about himself but documents dealing with the terms of an oral agreement under which ORG were to make GBP CARDINAL,CARDINAL available to ORG .

On DATE , ORG rejected his application for permission to appeal . Lady ORG also found that domestic and NORP legislation did not cover information held in unstructured files as opposed to a processing or filing system . She also rejected arguments that the data were personal to the applicant , noting that if the documents were covered it would mean that whenever an individual was involved in a transaction all the information about the transaction became his personal data . She further referred to judicially - expressed doubts that the LAW was an appropriate means of seeking to compel the disclosure of documents which could not be obtained in legal proceedings for the purpose of obtaining documents to use in legal proceedings .


The applicant was born in DATE and lives in GPE , GPE .

On DATE , the applicant , who is a taxi driver by profession , was involved in a traffic accident .

On DATE the applicant was charged with causing the accident . On DATE the applicant was served with a bill of indictment .

The hearing set for DATE was adjourned due to the presiding judge ’s illness . On DATE ORG ( Sąd Rejonowy ) held the first hearing in the case . The hearing set for DATE was adjourned due to the ORG absence .

On DATE the court ordered an expert opinion to be obtained . On DATE the expert submitted his opinion to the court . The court ordered a supplementary opinion to be obtained .

The hearing set for DATE was adjourned . At the hearing held on DATE the GPE ORG gave judgment . The applicant appealed .

On DATE ORG ( PERSON ) quashed the firstinstance judgment and remitted the case .

Following the remittal , on DATE the GPE ORG gave judgment . The court sentenced the applicant to DATE imprisonment stayed for DATE . The applicant appealed .

The applicant filed a complaint with ORG under LAW DATE on complaints about a breach of the right to a trial within a reasonable time ( “ CARDINAL Act ” ) . On DATE ORG gave a decision and confirmed that the proceedings had indeed been lengthy . However , the court did not grant any compensation to the applicant .

On DATE ORG held an appeal hearing and gave judgment . The judgment is final .

On DATE the applicant again filed a complaint with ORG under LAW alleging that a copy of the final judgment had not yet been served on him . ORG rejected the complaint , on a later unknown date , as the applicant had never asked to be served with a copy of the final judgment .

On DATE the applicant for the third time filed a complaint with ORG under LAW . On DATE the court refused to deal with the merits of the complaint . The court held that the proceedings had already been terminated and therefore the complaint was groundless .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the ORG ’s decisions in the cases of ORG v. GPE no . CARDINAL ( dec . ) , § § CARDINAL , ORG CARDINALV and PERSON v. GPE no . CARDINAL ( dec . ) , ORG CARDINALVIII and its judgment in the case of ORG v. GPE , no . CARDINAL , § § CARDINAL , ORG CARDINAL