EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 25419/94

Martin Denev

against

Sweden

REPORT OF THE COMMISSION

(adopted on 14 January 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-15)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-27)              3

A. The particular circumstances of the case

(paras. 16-21)              3

B. Relevant domestic law

(paras. 22-27)              3

III. OPINION OF THE COMMISSION

(paras. 28-38)              5

A. Complaint declared admissible

(para. 28) 5

B. Point at issue

(para. 29) 5

C. As regards Article 6 para. 1 of the Convention

(paras. 30-37)              5

a. Applicability of Article 6 para. 1

(paras. 33-35)              5

b. Compliance with Article 6 para. 1

(paras. 36-37)              6

CONCLUSION

(para. 38) 7

DISSENTING OPINION OF MR P. LORENZEN              8

APPENDIX: DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION              9

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant, a Swedish and Bulgarian citizen, was born in 1938 and resides in Velingrad , Bulgaria.  He is a scientist.

3. The application is directed against Sweden.  The respondent Government were represented by their agent Ms Eva Jagander , Ministry for Foreign Affairs.

4. The application concerns legal proceedings relating to the application for the registration of a design.  The applicant invokes Articles 6 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention.

B. The proceedings

5. The application was introduced on 8 July 1994 and registered on 13 October 1994.

6. On 17 January 1996 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits, limited to the applicant's complaints under Article 6 of the Convention that the courts failed to determine his civil rights and that the proceedings in the case were not concluded within a reasonable time.

7. The Government's observations were submitted on 2 April 1996 after an extension of the time-limit fixed for that purpose.  The applicant replied on 10 June 1996.

8. On 9 April 1997 the Commission (Second Chamber) declared admissible the complaint concerning the length of the proceedings.  It declared inadmissible the remainder of the application.

9. The text of the Commission's decision on admissibility was sent to the parties on 18 April 1997 and they were invited to submit such further information or observations on the merits as they wished.  The Government informed the Commission on 9 May 1997 that they had no further observations to submit in the case.  The applicant submitted further observations on 16 May 1997.

10. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

A. ARABADJIEV

12. The text of this Report was adopted on 14 January 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14. The Commission's decision on the admissibility of the application is annexed hereto.

15. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. On 28 March 1990 the applicant applied to the Patent and Registration Office (Patent- och registreringsverket ) for the registration of a design of a target for the practice of, inter alia , golf, tennis and hockey shots.

17. On 15 January 1991 the Patent and Registration Office rejected the application.  It found that the design was not distinct from what was widely known and that it thus did not meet the requirements under Section 2 of the Design Protection Act ( Mönsterskyddslagen , 1970:485).

18. On 15 March 1991, within the applicable time-limit, the applicant appealed by telefax to the Court of Patent Appeals ( Patentbesvärs-rätten ).  By letter of 19 September, the court ordered the applicant to sign the appeal petition and return it by 18 October at the risk of his appeal being dismissed if he did not comply with the order.  A certificate of service ( delgivningskvitto ) was enclosed, also to be signed and returned by the applicant as evidence of his having been served the order.

19. By decision of 13 December 1991, the Court of Patent Appeals dismissed the appeal without entering on the merits, finding that the applicant had failed to comply with the order.

20. On 10 February 1992 the applicant appealed against the decision of the Court of Patent Appeals to the Supreme Administrative Court ( Regeringsrätten ).  He submitted a receipt from the post office in Semmering , Austria dated 24 September 1991 showing that he had sent a registered letter to the Court of Patent Appeals that day and a declaration by the post office of 6 February 1992 that the letter had been delivered to the court on 26 September 1991.  He claimed that the registered letter contained the signed appeal petition and that he thus had complied with the court's order.

21. On 10 January 1994 the Supreme Administrative Court refused the applicant leave to appeal.

B. Relevant domestic law

22. Provisions on the protection of designs are found in the Design Protection Act.

23. The person who has created a design may obtain, through registration by the Patent and Registration Office, an exclusive right to exploit the design (Sections 1 and 9 of the Act).  Certain conditions apply to the registration, inter alia that the design has to differ substantially from what is already known (Section 2).

24. A registration of a design is valid for a period of five years from the date of the filing of the application for registration and may, upon application, be renewed for two further periods of five years (Section 24).

25. A decision by the Patent and Registration Office to register or not to register a design may be appealed against to the Court of Patent Appeals and a decision by that court may, subject to leave to appeal, be reviewed by the Supreme Administrative Court (Section 22).

26. The proceedings before the Court of Patent Appeals are regulated by the Act on the Court of Patent Appeals (Lag om patentbesvärsrätten , 1977:729).  In some respects, that act refers to provisions of the Administrative Procedure Act ( Förvaltningsprocesslagen , 1971:291).  Sections 3, 5 and 44 of the latter act are thus made applicable to cases before the Court of Patent Appeals.  Section 3 provides, inter alia , that an appeal petition shall be signed by the appellant or his representative.  Under Section 44, a telegram or any other unsigned message shall be confirmed by the sender with his signature if so requested by the court.  According to Section 5, the court shall order the appellant, at the risk of his appeal being dismissed, to remedy a deficiency of the appeal petition if the petition is incomplete to the extent that it cannot be considered on the merits.  The same applies to petitions which do not meet the requirements of Section 3.

27. A decision of the Court of Patent Appeals to dismiss an appeal petition without entering on the merits of the case may be appealed against to the Supreme Administrative Court in accordance with Section 47 of the Design Protection Act.  This remedy, which is subject to leave to appeal being granted, is further regulated in Sections 35-37 of the Administrative Procedure Act.  Section 36 reads as follows:

(Translation)

"Leave to appeal is granted,

1. if it is of importance for the direction of the application of the law that the case is examined by the Supreme Administrative Court or

2. if there are special reasons for such an examination, for example that grounds to reopen the case exist or that the outcome of the case in [the Court of Patent Appeals] depends on gross oversight or gross error.

..."

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

28. The Commission has declared admissible the applicant's complaint under Article 6 para. 1 (Art. 6-1) of the Convention that the proceedings in the case were not concluded within a reasonable time.

B. Point at issue

29. Accordingly, the issue to be determined is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention with regard to the length of the proceedings in the case.

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

30. Article 6 para. 1 (Art. 6-1) of the Convention reads, in its relevant parts, as follows:

"1.  In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time ..."

31. The applicant states that his case was not determined within a reasonable time.  He considers that the period to be taken into account is the period between 28 March 1990, when he applied for the registration of the design, and 10 January 1994, when the Supreme Administrative Court refused him leave to appeal.  He claims that the examination of an application for the registration of a design normally takes one month at each level.  He further contends that, had his design eventually been registered, the protection afforded would have been practically useless given the fact that it would have been valid for five years from the date of the filing of his application.

32. The Government agree with the applicant with regard to the period to be taken into account and admit that the proceedings in the case were not concluded within a reasonable time.  The Government point to the fact that the registration of a design is valid for only five years and acknowledge that the issues involved were not complex and that certain delays in the proceedings may be attributed to the State.

a. Applicability of Article 6 para. 1 (Art. 6-1)

33. In its decision of 9 April 1997 as to the admissibility of the present application, the Commission found that the proceedings at issue involved a determination of the applicant's "civil rights" as they were decisive for the registration of his design.  The Commission thus concluded that Article 6 para. 1 (Art. 6-1) of the Convention applies to the present case.  However, the question of the applicability of that Article to the proceedings before the Supreme Administrative Court was left open.

34. In this respect, the Commission recalls that the only issue before the Supreme Administrative Court was whether the Court of Patent Appeals had correctly dismissed the applicant's appeal on procedural grounds.  The former court was not called upon to examine the merits of the application for a design registration.  Moreover, the Supreme Administrative Court refused the applicant leave to appeal and thus did not rule on the procedural issue before it.  The Commission notes, however, that, had leave been granted, the Supreme Administrative Court could have quashed the decision by the Court of Patent Appeals and referred the case back to that court for re-examination.  Consequently, the decision of the Supreme Administrative Court was capable of affecting the outcome of the applicant's claim for design protection (cf. Eur. Court HR, Deumeland v. Germany judgment of 29 May 1986, Series A no. 100, p. 26, para. 77; see also British-American Tobacco Company Ltd. v. the Netherlands judgment of 20 November 1995, para. 67, and Comm. Report 19.5.94, paras. 51-52, Series A no. 331, pp. 23 and 33 respectively).  Thus, noting that the Government do not challenge the applicability of Article 6 para. 1 (Art. 6-1) in this respect, the Commission considers that the proceedings before the Supreme Administrative Court are to be taken into account when assessing whether the case was determined within a reasonable time.

35. In agreement with the parties, the Commission accordingly finds that the period to be taken into consideration commenced on 28 March 1990 and ended on 10 January 1994.  Thus, the total length of the proceedings to be assessed under Article 6 para. 1 (Art. 6-1)  was approximately three years and nine and a half months.

b. Compliance with Article 6 para. 1 (Art. 6-1)

36. From a general point of view the reasonableness of the length of the proceedings must be assessed with reference to the complexity of the case, the conduct of the applicant and that of the authorities before which the case was brought (cf., e.g., Eur. Court HR, Boddaert v. Belgium judgment of 12 October 1992, Series A no. 235-D, p. 82, para. 36).

37. The Commission notes that it took the Supreme Administrative Court almost two years to decide on the question of leave to appeal.  As acknowledged by the Government, the case does not appear to have involved any complex issues.  Further, there is no evidence - and it has not been claimed by the Government - that the length of the proceedings was caused by the applicant's conduct.  Moreover, special regard should be had to the fact that the registration of a design - should it be granted - is valid for only five years from the date of the filing of the application.  In the light of the criteria established by the case-law and having regard to the circumstances of the present case, the Commission therefore considers that the length of the proceedings was excessive and failed to meet the "reasonable time" requirement.

CONCLUSION

38. The Commission concludes, by 13 votes to 2, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

M.-T. SCHOEPFER                          J.-C. GEUS

        Secretary                              President

  to the Second Chamber                  of the Second Chamber

(Or. English)

DISSENTING OPINION OF MR P. LORENZEN

I regret not being able to share the conclusion of the majority that there has been a violation of Article 6 para. 1 of the Convention in the present case.

In my opinion, a decision of a national court regarding the formal requirements for lodging an appeal in a civil case does not involve the determination of "civil rights and obligations" within the meaning of Article 6 para. 1 of the Convention. In this respect I refer to the arguments in my dissenting opinion in the case J.J. v. the Netherlands, No. 21351/93, Dec. 15.10.96, which is pending before the European Court of Human Rights.