Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25419/94

by Martin DENEV

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 9 April 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 8 July 1994 by

Martin DENEV against Sweden and registered on 13 October 1994 under

file No. 25419/94;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 20 September 1996 and the observations in reply submitted

by the applicant on 2 October 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Swedish and Bulgarian citizen born in 1938, is

a scientist. He resides at Velingrad, Bulgaria.

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

summarised as follows.

A. The particular circumstances of the case

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.

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).

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.

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.

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.

On 10 January 1994 the Supreme Administrative Court refused the

applicant leave to appeal.

B. Relevant domestic law

Provisions on the protection of designs are found in the Design

Protection Act.

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).

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).

A decision by the Patent and Registration Office may be appealed

against to the Court of Patent Appeals and a decision by that court

may, subject to leave to appeal, be appealed against to the Supreme

Administrative Court (Section 22).

The proceedings before the Court of Patent Appeals are regulated

by the Act on the Court of Patent Appeals (Lag om patentbesvärsrätten,

1977:729). Sections 2 and 4 of that Act stipulate that the court shall

be composed of three members with either legal or technical competence.

In design protection cases, at least two members must be legally

qualified.

In some respects, the Act on the Court of Patent Appeals refers

to provisions of the Administrative Procedure Act (Förvaltnings-

processlagen, 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.

Section 47 of the Design Protection Act provides that decisions

of the Court of Patent Appeals may be appealed against to the Supreme

Administrative Court. This remedy, which is subject to leave to appeal

being granted, is 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.

..."

COMPLAINTS

1. The applicant contends that he has been denied a determination

of his civil rights by an independent tribunal in violation of

Article 6 para. 1 of the Convention, as the Court of Patent Appeals

failed to examine his case on the merits and as the Supreme

Administrative Court refused him leave to appeal.

2. He further claims that his case was not determined within a

reasonable time as required by Article 6 para. 1 of the Convention.

3. Also under Article 6 para. 1 of the Convention, he complains of

the failure of the Supreme Administrative Court to state reasons for

its decision of 10 January 1994.4. Moreover, he complains of a

violation of Article 1 of Protocol No. 1 to the Convention. He argues

that the courts destroyed the signed appeal petition and that their

decisions were unfair and constituted a de facto expropriation of his

right to the design in question.

5. Finally, he claims that the alleged violations are results of

discrimination on account of his being an immigrant. In this respect,

he invokes Article 14 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 8 July 1994 and registered on

13 October 1994.

On 17 January 1996 the Commission (First Chamber) decided to

communicate the application to the respondent Government, pursuant to

Rule 48 para. 2 (b) of the Rules of Procedure. The Government were

requested to deal with the questions whether the applicant's

application for the registration of a design concerned the

determination of a "civil right" within the meaning of Article 6

para. 1 of the Convention and, if so, whether the applicant had access

to a court for that determination and whether the proceedings in the

case were concluded within a reasonable time.

The Government's written 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.

THE LAW

1. The applicant contends that he has been denied a determination

of his civil rights by an independent tribunal in violation of

Article 6 para. 1 (Art. 6-1) of the Convention, as the Court of Patent

Appeals failed to examine his case on the merits and as the Supreme

Administrative Court refused him leave to appeal.

Article 6 para. 1 (Art. 6-1) reads, in relevant parts, as

follows:

"In the determination of his civil rights ..., everyone is

entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal ..."

The respondent Government first call into question whether

proceedings determining, as in the present case, whether the conditions

for the registration of a design are fulfilled actually concern a

"civil right" and thus fall within the ambit of Article 6 para. 1

(Art. 6-1). They contend that it is the decision to register a design

that confers an exclusive right to exploit the design and that, before

registration, there is no right protected by the national judicial

system. The Government further state that the decision by the Patent

and Registration Office not to confer a design right on the applicant

did not affect his economic situation, as he was not deprived of any

material wealth. Moreover, no question of alleged infringements of

recognised rights arose.

Should the Commission find that Article 6 para. 1 (Art. 6-1)

applies, the Government submit that the present complaint is, in any

event, manifestly ill-founded. They argue that the applicant had

access to a court and indeed availed himself of the possibility to

institute court proceedings against the decision of the Patent and

Registration Office. However, he failed to fulfil the requirements of

Section 3 of the Administrative Procedure Act in that his appeal

petition was not signed. When later instructed by the Court of Patent

Appeals to confirm the appeal petition with his signature, such

confirmation was not received according to the court's file record.

As regards the registered letter sent by the applicant to the Court of

Patent Appeals on 24 September 1991 and delivered to the court on 26

September, its contents can hardly be established with any certainty.

However, on the latter date the court received from the applicant the

certificate of service. It had been signed by the applicant on 24

September, i.e. the very day the registered letter was sent to the

court.

The applicant submits that the right to a design is an

intellectual property right similar to a patent and that it is,

accordingly, a "civil right". He claims that, as it was not possible

to reject his application for registration of his design on the merits,

the courts destroyed the signed appeal petition in order to enable them

to dismiss his case on formal grounds. In reply to the Government's

statement that the Court of Patent Appeals only received the

certificate of service, the applicant states that the signed appeal

petition was sent by the same registered letter. Thus, it is not true

that the registered letter only contained the certificate.

The Commission first finds that the dispute in the present case

was decisive for the registration of the applicant's design and thus

his exclusive right to exploit that design. This right, representing

a financial value, was of a pecuniary nature. The legal protection of

a design is, in this respect, comparable to that of a patent. The

Commission therefore considers that the proceedings at issue involved

a determination of "civil rights" within the meaning of Article 6 para.

1 (Art. 6-1), which is thus applicable to the present case (cf. Eur.

Court HR, 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).

As to the present complaint, the Commission finds that the

applicant had access to court, in particular the Court of Patent

Appeals and the Supreme Administrative Court, and that these courts met

the requirements laid down in Article 6 para. 1 (Art. 6-1). It

considers, in this connection, that the applicant's allegation that

they were not independent has not been substantiated.

The question remains, however, whether, in view of the decision

to dismiss his appeal, the applicant was given a fair hearing by the

courts. In examining this question, the Commission must examine the

proceedings as a whole. In so doing, the Commission recognises the

need of regulating the procedure before national courts provided that

such regulation is for the good administration of justice. In this

respect, the Contracting States enjoy a certain margin of appreciation.

The Commission recalls that the applicant was ordered by the

Court of Patent Appeals to sign and return his appeal petition before

18 October 1991 at the risk of his appeal being dismissed. On

13 December 1991 the appeal was indeed dismissed, as the court found

that the applicant had not signed and returned the appeal petition.

It appears that, in ordering the applicant to sign his appeal

petition, the Court of Patent Appeals requested him, in accordance with

the relevant provisions of the Administrative Procedure Act, to confirm

his identity and his intention to appeal against the decision of the

Patent and Registration Office. The Commission finds that the order

had a legitimate aim and thus served the good administration of

justice. In so finding, the Commission attaches importance to the fact

that the applicant was informed of the possible consequence should he

fail to comply with the order.

The applicant alleges that he sent the signed appeal petition by

registered letter which was received by the Court of Patent Appeals on

26 September 1991 and that he thus complied with the order. The

contents of that letter are, however, a matter of dispute between the

parties, the Government claiming that the court only received the

certificate of service of the order. The Commission finds that it is

not possible to establish which document or documents were included in

the registered letter. It notes that only after the Government had

submitted their observations did the applicant claim that the letter

contained both the signed appeal petition and the certificate of

service. The Commission finds, in these circumstances, that the

evidence in the case does not show that the applicant complied with the

order and that the court's finding of 13 December 1991 was erroneous.

Accordingly, the Commission cannot find that the decision to

dismiss the applicant's appeal rendered the proceedings in the case

unfair. The applicant's submissions in support of the present

complaint thus fail to disclose any appearance of a violation of

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

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant further claims that his case was not determined

within a reasonable time as required by Article 6 para. 1

(Art. 6-1) of the Convention. 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, i.e. a period of

about three years and nine and a half months. 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.

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.

The Commission considers, in the light of the criteria

established by the case-law of the Convention organs on the question

of "reasonable time", and having regard to all the information in its

possession, that an examination of the merits of the complaint,

including the question of the applicability of Article 6 (Art. 6) to

the proceedings before the Supreme Administrative Court, is required.

3. Also under Article 6 para. 1 (Art. 6-1) of the Convention, the

applicant complains of the failure of the Supreme Administrative Court

to state reasons for its decision of 10 January 1994. The Commission

recalls that this decision only concerned the question whether to

accept the applicant's petition for leave to appeal to the court of

last resort. It did not review the decision of the Court of Patent

Appeals, nor did it deal with the merits of the applicant's application

for a design registration.

The Commission accepts that under specific circumstances the

absence of reasons in a court decision might raise an issue as to the

fairness of the procedure which is guaranteed by Article 6 para. 1

(Art. 6-1) of the Convention. However, even assuming that this

provision applies to the decision of the Supreme Administrative Court,

the Commission considers that if the domestic law, as in the present

case, subjects the acceptance of an appeal to a decision by the

competent court whether it considers that the appeal raises important

legal issues or there are other special reasons, as specified by the

relevant legal provision, it may be sufficient for this court simply

to accept or reject this petition (cf. No. 8769/79, Dec. 16.7.81, D.R.

25, p. 240).

Thus, in the circumstances of the case, the Commission cannot

find that the absence of reasons in the Supreme Administrative Court's

decision rendered the proceedings unfair. The applicant's submissions

in this regard thus fail to disclose any appearance of a violation of

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

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

4. The applicant complains of a violation of Article 1 of

Protocol No. 1 (P1-1) to the Convention. He argues that the courts

destroyed the signed appeal petition and that their decisions were

unfair and constituted a de facto expropriation of his right to the

design in question.

Article 1 of Protocol No. 1 (P1-1) provides the following:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of

his possessions except in the public interest and subject

to the conditions provided for by law and by the general

principles of international law.

The preceding provisions shall not, however, in any way

impair the right of a State to enforce such laws as it

deems necessary to control the use of property in

accordance with the general interest or to secure the

payment of taxes or other contributions or penalties."

The Commission considers that this complaint is in substance

identical to that already examined and rejected in the context of

Article 6 para. 1 (Art. 6-1) of the Convention (see above under 1).

Consequently, no separate issue arises under Article 1 of Protocol No.

1 (P1-1) in relation to the matters complained of (cf. the above-

mentioned British-American Tobacco Company Ltd. v. the Netherlands

judgment, Series A no. 331, p. 29, para. 91).

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

5. Finally, the applicant claims that the above alleged violations

are results of discrimination on account of his being an immigrant.

In this respect, he invokes Article 14 (Art. 14) of the Convention,

which reads as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any

ground such as sex, race, colour, language, religion,

political or other opinion, national or social origin,

association with a national minority, property, birth or

other status."

The Commission finds that the applicant has failed to

substantiate the present complaint.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits of the case,

the applicant's complaint that his case was not determined within

a reasonable time;

DECLARES INADMISSIBLE the remainder of the application.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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DENEV v. SWEDEN

DENEV v. SWEDEN

LEXI