EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 23749/94
Brown & Williamson Tobacco Corporation
against
Finland
REPORT OF THE COMMISSION
(adopted on 2 December 1997)
TABLE OF CONTENTS
Page
I.INTRODUCTION
(paras. 1-16)1
A.The application
(paras. 2-4)1
B.The proceedings
(paras. 5-11)1
C.The present Report
(paras. 12-16) 2
II.ESTABLISHMENT OF THE FACTS
(paras. 17-42) 3
A.The particular circumstances of the case
(paras. 17-34) 3
B.Relevant domestic law
(paras. 35-42) 5
III.OPINION OF THE COMMISSION
(paras. 43-85) 7
A.Complaint declared admissible
(para. 43)7
B.Points at issue
(para. 44)7
C.As regards Article 6 para. 1 of the Convention
(paras. 45-83) 7
(i)The absence of an oral hearing before an
independent and impartial tribunal
(paras. 47-62) 7
CONCLUSION
(para. 63)10
(ii)The fairness of the proceedings
(paras. 64-82) 10
CONCLUSION
(para. 83)13
D.Recapitulation
(paras. 84-85) 13
APPENDIX:DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION 15
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 is a limited liability company incorporated in Louisville, Kentucky, the United States of America. It was represented by Mr Kari Lautjärvi, a lawyer practising in Helsinki, Finland.
3.The application is directed against Finland. The respondent Government were represented by their Agent Mr Holger Rotkirch, Director-General for Legal Affairs, Ministry for Foreign Affairs, and by Mr Arto Kosonen, Co-Agent, of the same Ministry.
4.The case concerns the fairness of patent proceedings and the absence of an oral hearing before an independent and impartial tribunal. The applicant company invokes Article 6 para. 1 of the Convention.
B.The proceedings
5.The application was introduced on 8 March 1994 and registered on 23 March 1994.
6.On 29 November 1995 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.
7.The Government's observations were submitted on 15 February 1996. The applicant company replied on 9 May 1996.
8.On 26 November 1996 the application was transferred from the First Chamber to the Plenary Commission, by decision of the latter.
9.On 3 December 1996 the Commission declared admissible the applicant company's complaint under Article 6 para. 1 of the Convention. It declared inadmissible the remainder of the application.
10.The text of the Commission's decision on admissibility was sent to the parties on 9 December 1996 and they were invited to submit such further information or observations on the merits as they wished. The applicant company submitted observations on 4 April 1997.
11.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
12.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:
MrS. TRECHSEL, President
MrsG.H. THUNE
MrsJ. LIDDY
MME. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. ŠVÁBY
G. RESS
A. PERENIČ
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIŪNAS
E.A. ALKEMA
M. VILA AMIGÓ
MrsM. HION
MMR. NICOLINI
A. ARABADJIEV
13.The text of this Report was adopted on 2 December 1997 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.
14.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.
15.The Commission's decision on the admissibility of the application is annexed hereto.
16.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
17.On 19 May 1986 company B filed an application with the Finnish Board of Patents and Registers (patentti- ja rekisterihallitus, patent-och registerstyrelsen) aimed at obtaining a patent for an invention relating to the fabrication of tobacco products. Whilst apparently not referring to any specific witnesses or experts, the company also requested that an oral hearing be held in case of doubt as to the patentability of the invention. The application was accepted for publication and published on 31 August 1990 in order to afford third parties an opportunity to lodge objections.
18.On 30 November 1990 another tobacco company, F, lodged an opposition, referring to five publications on the subject. Its opposition was withdrawn on 31 December 1990.
19.On 28 March 1991 the rights pertaining to the patent application were transferred to the applicant company which, on 14 June 1991, submitted observations to the Board of Patents and Registers on the publications referred to in company F's opposition.
20.On 8 August 1991 the Board of Patents and Registers rejected the application, considering that the invention lacked the required inventive character. The Board based its decision on the five publications referred to by company F. The decision was made by S and R, senior research engineers of the Board's Technical Office no. II.
21.The applicant company appealed to the then Appeals Division (valitusosasto, besvärsavdelningen) of the Board of Patents and Registers. The company also requested that an oral hearing be held, thus enabling it to present its invention further. It did not suggest that any particular witness or expert be examined.
22.On 20 December 1991 company F's representative sent the Appeals Division, "for information", a translation of a decision of the Board of Appeal of the Dutch Patent Office refusing an allegedly similar patent application lodged by the applicant company. The representative's cover letter referred to the applicant company's patent application pending before the Appeals Division.
23.The Appeals Division did not communicate the translation of the Dutch patent refusal to the applicant company. Its representative in the proceedings before the Appeals Division was informed of the Dutch refusal only after she had submitted the company's appeal to the Appeals Division.
24.In its decision of 27 May 1992 the Appeals Division first summarised the proceedings, noting, inter alia, the following:
"On 20 December 1991 the opponent lodged submissions relating to the matter."
25.The Appeals Division went on to reject the applicant company's request for an oral hearing, considering that the invention had been sufficiently presented in the written submissions. The Appeals Division furthermore upheld the decision of the Board of Patents and Registers, basing itself on four of the five publications referred to therein. The Appeals Division concluded that the subject-matter of the patent application did not concern a new invention but rather an application of an already known technique.
26.The Appeals Division was chaired by the Chief Director of the Board of Patents and Registers. The other two members were J, Chief Engineer and Head of Technical Office no. II of the Board, and K, Chief Engineer of the Appeals Division. The Appeals Division's decision was sent to company F's representative for information.
27.The applicant company appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), submitting, inter alia, that the refusal of its patent application in the Netherlands was not yet final; that its application to the Finnish authorities was in any case different; that the Appeals Division had taken into account material submitted by company F after it had withdrawn its opposition; and that the Appeals Division had not given the applicant company an opportunity to comment on that material.
28.In case the applicant company's appeal could not be accepted already on the basis of its written submissions, the company also requested an oral hearing for the purpose of hearing its representatives and experts. It did not name any such expert but argued that none could be found in Finland, whereas such specialists did exist in the United States of America, England and Germany. In the alternative, the company requested that the matter be referred back to the Appeals Division for the purpose of holding an oral hearing at that level.
29.Due to new legislation which entered into force on 1 September 1992 the Appeals Division was reorganised and renamed the Appeals Board (valituslautakunta, besvärsnämnden).
30.The Supreme Administrative Court requested the Appeals Board to comment on the applicant company's appeal. On 24 September 1992 the Appeals Board stated, on the one hand, that company F's submissions of 20 December 1991 had not had any impact on its refusal of the applicant company's appeal but had been mentioned merely for information purposes. On the other hand, the Appeals Board noted that the applicant company had not on its own initiative informed the then Appeals Division of the refusal of its patent application in the Netherlands. In any case, from the moment the company had been informed of that refusal it had had ample time to comment thereon in the proceedings before the Appeals Division.
31.The Appeals Board furthermore recalled that by requesting an oral hearing before the Appeals Division the company had simply sought to present its invention further, whereas a request to hear experts had been made only in the company's appeal to the Supreme Administrative Court.
32.On 6 November 1992 the applicant company commented on the Appeals Board's opinion. It argued, inter alia, that if the manner in which the Appeals Division had processed the company's appeal became practice, an opponent to a patent application could phrase a de facto opposition as a document sent for information only and thereby prevent the patent applicant from commenting thereon. Since company F's submissions of 20 December 1991 had supported the refusal of the Board of Patents and Registers, there had been all the more reason to afford the applicant company an opportunity to comment thereon. The applicant company had been under no obligation to draw the Appeals Division's attention to the refusal of its patent application in the Netherlands which in any case had not yet become final.
33.The applicant company finally recalled that it had referred to studies by four different experts as well as to two affidavits. As the Appeals Division had totally neglected those submissions, an oral hearing before that body would have been necessary.
34.In its decision of 10 September 1993 the Supreme Administrative Court rejected the applicant company's request for an oral hearing, having found the matter sufficiently clarified. It went on to uphold the conclusion reached by the Appeals Division, having found no appearance of any procedural errors in the examination of the patent application. The Supreme Administrative Court concluded, moreover, that the invention, even as presented in the amended claims filed with the Supreme Administrative Court, did not differ essentially from what had already become known through the publications cited in the decision of the Appeals Division.
B.Relevant domestic law
35.The granting of patents is governed by the 1967 Patent Act (patenttilaki, patentlag 550/1967) and a related 1980 Decree (669/1980). At the relevant time the proceedings before the Board of Patents and Registers were governed by a 1965 Act (749/1965) and a related 1982 Decree (213/1982). As of 1 September 1992 the 1965 Act and the 1982 Decree were replaced by a 1992 Act (575/1992) and Decree (799/1992). On the same date a further Act (576/1992) and Decree (800/1992) entered into force concerning the new Appeals Board's examination of appeals against decisions of the Board of Patents and Registers.
36.If a patent application does not comply with the formal requirements of the 1967 Act or if the Board of Patents and Registers finds any other obstacle to the granting of the application, the applicant shall be afforded an opportunity to comment thereon or correct the application within a certain period (section 15 of the 1967 Act). If an obstacle remains after the expiry of that period, the application shall normally be refused (section 16). If an application is formally correct and no obstacle to the granting of the patent has been found, the application shall be accepted for publication (section 19).
37.After a patent application has been published anyone may oppose the granting of the patent within three months (section 21 of the 1967 Act). After the expiry of that period the examination of the application shall be continued and it shall be determined whether it can be granted. The applicant shall be informed of any opposition and be given an opportunity to comment thereon (section 23). All submissions of an opponent shall be communicated to the applicant (section 35 of the 1980 Decree). The applicant shall also be notified of any material submitted at a time other than that reserved for the lodging of oppositions, provided that this material is significant for the examination of the application. Further instructions as to the processing of applications may be issued by the Board of Patents and Registers (section 36).
38.According to the 1982 Act on Administrative Procedure (hallinto-menettelylaki, lag om förvaltningsförfarande 598/1982), an authority shall hear a party in respect of any claims presented by others as well as any other material which could affect the authority's decision (section 15). If a party wishes to present a matter orally, this opportunity shall as far as possible be afforded (section 18). The Act on Administrative Procedure does not govern proceedings before administrative courts or other bodies with judicial functions (section 1).
39.When examining the conditions for granting a patent, the Board of Patents and Registers shall have regard to all evidence of which it obtains knowledge (section 26 of the 1980 Decree). If deemed necessary, it may request the assistance of external experts (section 27). On certain conditions a patent applicant may be obliged to inform the Board of the position taken by foreign patent authorities in relation to similar requests lodged by the applicant. The Board may in an interim decision order a patent applicant to present such information (section 29).
40.At the relevant time a decision made on behalf of the Board of Patents and Registers upon a patent application could be appealed against to its Appeals Division (section 4 of the 1965 Act). The Appeals Division consisted of three members and was chaired by the Director-General or the Chief Director of the Board. When dealing with patent cases, the other two members of the Appeals Division could be a senior engineer acting as head or deputy head of the Patents Division; a senior engineer acting as head of one of the six technical offices; or a senior engineer of the Appeals Division. If possible, one of these two members should be head of the technical office which had previously dealt with the matter. The Chairman decided on the composition of the Appeals Division in a particular case (sections 17 and 35 of the 1982 Decree). The Appeals Division was to follow "the legal code of court procedure" ("laillista oikeudenkäyntijärjestystä"; "laga rättegångsordning") and could hold oral hearings (sections 6 and 8 of the 1965 Act).
41.An appeal against a decision of the Appeals Division lay with the Supreme Administrative Court (section 9 of the Act). When the Court is dealing with a patent matter two chief engineers appointed by the President of the Republic for a three-year period participate as justices (section 10 of the 1965 Act and section 9 of the 1992 Act).
42.According to the 1918 Act on the Supreme Administrative Court (no. 74/1918), as in force at the relevant time, it could hold oral hearings and carry out inspections (section 15, subsection 1). The 1996 Act on Judicial Procedure in Administrative Matters (hallinto-lainkäyttölaki, förvaltningsprocesslag 588/1996) entered into force on 1 December 1996. It stipulates, inter alia, that the Supreme Administrative Court shall, if so requested by a private party, hold an oral hearing when dealing with an appeal against the decision of an administrative body. In certain circumstances an oral hearing may nevertheless be refused (section 38, subsection 1).
III.OPINION OF THE COMMISSION
A.Complaint declared admissible
43.The Commission has declared admissible the applicant company's complaint that it did not receive a fair and oral hearing by an independent and impartial tribunal established by law.
B.Points at issue
44.The issues to be determined are:
- whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention on account of the absence of an oral hearing before an independent and impartial tribunal; and
- whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention on account of the alleged unfairness of the proceedings.
C.As regards Article 6 para. 1 (Art. 6-1) of the Convention
45.Article 6 para. 1 (Art. 6-1) of the Convention reads, in so far as it is relevant, as follows:
"In the determination of his civil rights ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. ..."
46.It is undisputed between the parties that Article 6 para. 1 (Art. 6-1) applies in the present case, as the proceedings in question involved the determination of the applicant company's "civil rights and obligations". The Commission sees no reason to take a different view (see Eur. Court HR, British-American Tobacco Company Ltd v. the Netherlands judgment of 20 November 1995, Series A no. 331, p. 23, para. 67).
(i)The absence of an oral hearing before an independent and impartial tribunal
47.The applicant company complains that it was denied an oral hearing by an independent and impartial tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. The applicant company does not contest the validity of Finland's reservation in so far as pertaining to the right to an oral hearing before the Supreme Administrative Court. It contends, however, that if the violations of Article 6 para. 1 (Art. 6-1) during the earlier stages of the proceedings in question were to be ignored, this would result in a de facto extension of the reservation.
48.The applicant company finds no substantiation of the Government's assertion that an oral hearing was unnecessary in the case. It would be contrary to the principle of "equality of arms" if the courts were to heed only the "public interest" when assessing the need for an oral hearing. The "public interest" may be taken into account only and in so far as the right to request an oral hearing has been waived. There had been no such waiver in the present case.
49.The Government consider that Article 6 para. 1 (Art. 6-1) has not been violated as a result of the absence of an oral hearing. The respondent State was not required to submit the dispute in question to a procedure which at every stage met the requirements of Article 6 para. 1 (Art. 6-1), as the dispute was eventually determined by a body which did fulfil those conditions. Oral hearings contribute to the length of proceedings and significantly increase the costs of the procedure. The dispute at hand did not give rise to any questions of public interest making an oral hearing necessary. The written material was sufficiently extensive and accurate and included, inter alia, experts' writings. The dispute was therefore better dealt with in writing.
50.Were the Commission to find that the applicant company was entitled to an oral hearing before the Supreme Administrative Court, the Government refer to its reservation to Article 6 (Art. 6), according to which Finland cannot for the time being guarantee a right to an oral hearing in so far as the current Finnish laws do not provide for such a right. At the relevant time this applied, inter alia, to proceedings governed by section 15 of the Supreme Administrative Court Act.
51.The Commission recalls that the holding of court hearings in public constitutes a fundamental principle enshrined in Article 6 para. 1 (Art. 6-1) of the Convention. This public character protects litigants against the administration of justice in secret with no public scrutiny. It is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6 para. 1 (Art. 6-1), namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention (see, e.g., Eur. Court HR, Diennet v. France judgment of 26 September 1995, Series A no. 325, p. 23, para. 33).
52.Nevertheless, Article 6 (Art. 6) does not oblige the Contracting States to submit disputes over civil rights to a procedure which at each stage meets the requirements of Article 6 (Art. 6), provided it eventually may be determined by a body which does (cf., e.g., Eur. Court HR, Le Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1984, Series A no. 43, pp. 22-23, para. 51). It is sufficient that, in the determination of "civil rights and obligations", decisions taken by administrative authorities which do not themselves satisfy the requirements of that provision be subject to subsequent control by an independent judicial body with sufficient jurisdiction and which itself provides the safeguards required by Article 6 para. 1 (Art. 6-1) (see, e.g., Eur. Court HR, Fischer v. Austria judgment of 26 April 1995, Series A no. 312, p. 17, para. 28; the above-mentioned British-American Tobacco Company Ltd v. the Netherlands judgment, pp. 25-26, para. 78).
53.In proceedings before a court of first and only instance the right to a "public hearing" in the sense of Article 6 para. 1 (Art. 6-1) may entail an entitlement to an oral hearing (see, e.g., Eur. Court HR, Fredin v. Sweden judgment (no. 2) of 23 February 1994, Series A no. 283-A, p. 10, para. 21). If several judicial bodies may examine the matter, a hearing before one of them may suffice (cf., e.g., Jan-Åke Andersson v. Sweden judgment of 29 October 1991, Series A no. 212-B, pp. 45-46, paras. 27 et seq.).
54.In the present case the Commission need not, for the reasons below, ascertain whether the Appeals Division of the Board of Patents and Registers met the requirements of an "independent and impartial tribunal" within the meaning of Article 6 para. 1 (Art. 6-1).
55.The Commission notes that the Appeals Division refused to hold the oral hearing which the applicant company had requested in order to present its invention further. However, the Appeals Divison was not the only appeal body to rule on the case (cf., a contrario, Eur. Court HR, Håkansson and Sturesson v. Sweden judgment of 21 February 1990, Series A no. 171, p. 20, para. 64). The applicant company lodged a further appeal with the Supreme Administrative Court which, and this has not been disputed, was an "independent and impartial tribunal" within the meaning of Article 6 para. 1 (Art. 6-1). The Supreme Administrative Court furthermore had full appellate jurisdiction.
56.The Commission notes that it was only in the company's final appeal to the Supreme Administrative Court that it sought to obtain the oral examination of experts. The Commission is of the view that at least in such circumstances an oral hearing before the Supreme Administrative Court would have sufficed to satisfy the requirements of Article 6 para. 1 (Art. 6-1).
57.In Application No. 20772/92 (Helle v. Finland, Comm. Report 15.10.96, presently pending before the Court) the Commission already examined the question whether the absence of an oral hearing before the Supreme Administrative Court was covered by Finland's reservation to Article 6 para. 1 (Art. 6-1). It answered this question in the affirmative (see para. 59 of the afore-mentioned Report).
58.The Commission observes that, on 20 December 1996, Finland withdrew part of its reservation in view of the entry into force of the Act on Judicial Procedure in Administrative Matters. In so far as pertinent to the present case the reservation read, in its relevant parts, as follows:
"In accordance with Article 64 (Art. 64) of the Convention, the Government of Finland makes the following reservation in respect of the right to a public hearing guaranteed by Article 6, paragraph 1 (Art. 6-1) of the Convention.
For the time being, Finland cannot guarantee a right to an oral hearing in so far as the current Finnish laws do not provide such a right. This applies to:
...
2. proceedings before ... the Supreme Administrative Court in accordance with ... section 15 of the Supreme Administrative Court Act; ...
The provisions of the Finnish laws referred to above are attached to this reservation as a separate annex."
59.The relevant part of section 15 of the Supreme Administrative Court Act read, according to the annex to the reservation, as follows:
"In investigating a case, the Supreme Administrative Court may ... hold oral hearings ... . In an oral hearing the parties, witnesses and experts may be heard, and other evidence may be received.
The Supreme Administrative Court may decide that oral hearings ... be conducted by one or more members of the Court together with the referendary."
60.Article 64 (Art. 64) of the Convention reads as follows:
"1.Any State may, when signing this Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision. Reservations of a general character shall not be permitted under this Article.
2.Any reservation made under this Article shall contain a brief statement of the law concerned."
61.In the present case the parties agree that Finland's reservation is valid in the light of Article 64 para. 1 (Art. 64-1). As in Helle v. Finland (see above para. 57), the Commission sees no reason to take a different view and finds no indication that the reservation does not comply with Article 64 para. 2 (Art. 64-2).
62.As the reservation is therefore compatible with Article 64 (Art. 64) and the absence of an oral hearing before the Supreme Administrative Court is covered by that reservation, the Commission finds that there has been no violation of Article 6 para. 1 (Art. 6-1) in this respect.
CONCLUSION
63.The Commission concludes, by 31 votes to 1, that in the present case there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention with regard to the absence of an oral hearing before an independent and impartial tribunal.
(ii)The fairness of the proceedings
64. The applicant company furthermore complains that its right to a fair hearing within the meaning of Article 6 (Art. 6) of the Convention was violated. First, the principle of equality of arms was not respected, as the applicant company was not given an opportunity to comment on company F's submissions to the Appeals Division of 20 December 1991. Whether or not company F at that time still retained the status of an objector within the meaning of the Patent Act and whether or not its submissions actually influenced the outcome of the proceedings are irrelevant factors in the assessment of the fairness of the proceedings as a whole. The authorities were under a duty to hear the applicant company in respect of all potentially relevant material. It should thus have been for the applicant company to assess whether or not company F' submissions deserved a reaction.
65.Second, the applicant company alleges that the Board of Patents and Registers was afforded a privileged position as the defender of the general interest, this putting the applicant company at a considerable disadvantage. Third, the company refers to the unsubstantiated refusals of its requests for an oral hearing for the purpose of, inter alia, hearing experts. Fourth, reference is made to the brevity of the Supreme Administrative Court's reasoning in respect of the merits of the applicant company's appeal.]
66.The Government consider that Article 6 para. 1 (Art. 6-1) has not been violated on these points either. They submit, in particular, that since company F had withdrawn its opposition prior to lodging its submissions of 20 December 1991, that material was not submitted by an "opponent" within the meaning of the Patent Act. Domestic law only required that submissions of significant importance to the outcome of the proceedings be sent to a patent applicant for possible comments. As company F's submissions did not form any basis for the Appeals Division's examination of the applicant company's patent application they were not communicated to the latter.
67.The Government finally submit that the applicant company was able to put to the Supreme Administrative Court all the arguments it wished to make and also to have them considered.
68.It is not the Commission's task to substitute its own assessment of the facts for that of the national courts. Instead it must ascertain whether the overall proceedings, including the way in which evidence was dealt with, were fair within the meaning of Article 6 para. 1 (Art. 6-1) (see, e.g., Eur. Court HR, Dombo Beheer v. the Netherlands judgment of 27 October 1993, Series A no. 274, pp. 18-19, para. 31 and the references therein).
69.The principle of "equality of arms" - one of the elements of the broader concept of fair trial - requires each party to be given a reasonable opportunity to present his case under conditions which do not place him at a substantial disadvantage vis-à-vis his opponent. The concept of fair trial also implies in principle the right for the parties to a trial to have knowledge of and comment on all evidence adduced or observations filed. The requirements derived from the right to adversarial proceedings are the same in both civil and criminal cases (see, e.g., Eur. Court HR, Nideröst-Huber v. Switzerland judgment of 18 February 1997, paras. 23-30 and the further references therein; to be published in Reports of Judgments and Decisions 1997). In short, the procedure must allow proper participation of each party (cf., e.g., Eur. Court HR, Kerojärvi v. Finland judgment of 19 July 1995, Series A no. 322, p. 16, para. 42 and the further references therein).
70.As to the other requirements inherent in the concept of a fair hearing, these are not necessarily the same in cases concerning the determination of civil rights and obligations as they are in cases concerning the determination of a criminal charge. This is borne out by the absence of detailed provisions such as paragraphs 2 and 3 of Article 6 (Art. 6) applying to cases of the former category. Thus, although these provisions have a certain relevance outside the strict confines of criminal law, the Contracting States have greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases (see, e.g., the above-mentioned Dombo Beheer judgment v. the Netherlands judgment, p. 19, para. 32 and the further references therein). Even so, an unexplained refusal by a tribunal to summon witnesses whose examination has been explicitly requested by a party may affect the overall fairness of the proceedings also in cases concerning civil rights or obligations.
71.In this connection it should also be recalled that Article 6 para. 1 (Art. 6-1) places the "tribunal" under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision. It also obliges the courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument. Nor are the Convention organs called upon to examine whether arguments are adequately met (see, e.g., Eur. Court HR, Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, pp. 19-20, paras. 59-61). The question whether a court has failed to fulfil the obligation to state reasons can only be determined in the light of the circumstances of the case (see, e.g., Eur. Court HR, Ruiz Torija v. Spain judgment of 9 December 1994, Series A no. 303-A, p. 12, para. 29).
72. Turning to the present case, the Commission recalls, as a preliminary observation, that the Board of Patents and Registers based its refusal of the applicant company's patent application largely on the expert writings which had been adduced by company F before it withdrew its opposition to the application. Those writings were already in the public domain, though perhaps not previously known to the Board of Patents and Registers. In these circumstances the fact that the initial refusal of the patent application was largely based on an opposition which had formally been withdrawn does not suffice for a finding of unfairness.
73.In respect of the applicant company's specific allegations of unfairness the Commission notes that, officially, company F's further submissions of 20 December 1991 were submitted to the Appeals Division merely "for information". However, in view of their contents it is clear that they were aimed at influencing the Appeals Division's decision. The effect which the submissions actually had on that decision is of little consequence (cf. the above-mentioned Nideröst-Huber judgment, paras. 26-27).
74.Nevertheless, in assessing the fairness of the proceedings as a whole the Commission must also take into account the fact that the applicant company was able to comment on company F's submissions in its final appeal to the Supreme Administrative Court. The Commission has already found above that this body was an independent and impartial tribunal with full jurisdiction (see para. 55). Moreover, the applicant company was also able to comment on the Appeals Board's opinion to the Supreme Administrative Court.
75.In these circumstances the Commission does not find that the Appeals Division's failure to provide the applicant company with an opportunity to comment on company F's submissions of 20 December 1991 suffices for a finding of unfairness.
76.The Commission has already found that an oral hearing before the Supreme Administrative Court would have sufficed to satisfy the requirements of a hearing before an independent and impartial tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention but that the lack of such a hearing was covered by Finland's reservation (see paras. 57 and 63). Because of the reservation the Commission considers that it cannot assess whether the Supreme Administrative Court's reasons for refusing to hold an oral hearing were sufficient.
77.The Commission will nevertheless assume that the manner in which the applicant company's request for an oral examination of experts was dismissed might be taken into account as an element affecting the fairness of the overall proceedings. The Commission notes that the Supreme Administrative Court's dismissal of the request was based on its finding that the matter had been sufficiently clarified in writing. In the circumstances of the present case the Commission cannot find that this reasoning was insufficient for the purposes of fairness within the meaning of Article 6 (Art. 6) of the Convention.
78.Finally, the Commission has dealt with the allegedly insufficient reasons given by the Supreme Administrative Court in dismissing the applicant company's appeal.
79.The Supreme Administrative Court first stated that it had found no appearance of any procedural errors in the examination of the patent application. It went on to conclude that the invention presented by the applicant company did not differ essentially from what had already become known through the publications cited in the decision of the Appeals Division.
80.In the Commission's view these reasons were sufficient for the purposes of fairness within the meaning of Article 6 (Art. 6) of the Convention.
81.Finally, the Commission cannot find any indication that the Board of Patents and Registers was afforded a privileged position viz-à-viz the applicant company in the proceedings before the Supreme Administrative Court.
82.Summing up, the Commission finds that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention as regards the fairness of the proceedings as a whole.
CONCLUSION
83.The Commission concludes, unanimously, that in the present case there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention with regard to the fairness of the proceedings.
D.Recapitulation
84.The Commission concludes, by 31 votes to 1, that in the present case there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention with regard to the absence of an oral hearing before an independent and impartial tribunal (para. 63).
85.The Commission concludes, unanimously, that in the present case there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention with regard to the fairness of the proceedings (para. 83).
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy