FIRST SECTION
DECISION
Application no. 61815/13
Behruz VAZVAN
against Finland
The European Court of Human Rights (First Section), sitting on
3 November 2015 as a Chamber composed of:
Mirjana Lazarova Trajkovska, President,
Päivi Hirvelä,
Ledi Bianku,
Linos-Alexandre Sicilianos,
Aleš Pejchal,
Robert Spano,
Armen Harutyunyan, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 25 September 2013,
Having regard to the observations submitted by the respondent
Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Behruz Vazvan, is a Finnish national who was born
in 1961 and lives in Vantaa. He was represented before the Court by
Mr Risto Rouvari, a lawyer practising in Helsinki.
2. The Finnish Government (“the Government”) were represented by
their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised
as follows.
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VAZVAN v. FINLAND DECISION
Background of the case
4. The applicant made a technical invention, for which he applied for a
patent on 28 October 1994. Subsequently, on 14 December 2001, he
received a patent for his invention which was, however, later withdrawn.
5. On 1 November 1994 the applicant joined a big telecommunications
company in Finland. He told the company early on about his invention and
proposed cooperation with the company. The company apparently learned
about his patent application on 12 July 1995 but was not interested in
cooperation. On 18 October 1995 the applicant’s employment with the
company ended.
6. In 2002 the applicant noticed that the company was infringing his
patent and informed the company of this. The company initiated civil
proceedings against the applicant, claiming ownership of the applicant’s
invention. On 9 February 2006 the Helsinki District Court (käräjäoikeus,
tingsrätten) rejected the company’s claim to ownership of the applicant’s
invention but accepted its alternative claim and confirmed that the applicant
had made the invention in question while working for the company. The
court also confirmed that the company held a licence for the invention and
that it had to pay the applicant reasonable compensation for this patent
licence. On 31 January 2008 the Helsinki Appeal Court (hovioikeus,
hovrätten) upheld the District Court judgment. This judgment became final.
Impugned proceedings
7. As the applicant and the company could not agree on reasonable
compensation for the patent licence, the applicant initiated civil proceedings
against the company in the Helsinki District Court on 27 November 2006.
He claimed, inter alia, compensation of 924,720,000 euros (EUR) for the
use of the patent licence.
8. On 6 October 2010 the Helsinki District Court accepted the
applicant’s claims partly and ordered the company to pay him EUR 12,000
in compensation. The applicant was also ordered to pay the company’s costs
and expenses before the District Court, which after mitigation amounted to
EUR 60,000. The court found that the applicant had not been able to show
that the company had actually used the invention for which it held the
licence. The invention had thus had no greater value for the company. The
fact that the company held the patent licence had not prevented the applicant
from patenting the invention or giving further licences to it, as the applicant
still held all rights. As there were six separate patents, the court estimated
the proper compensation to be EUR 2,000 for each patent and thus
EUR 12,000 in total. At the same time as the judgment, the parties also
received, for information, a statement drafted by the technical experts
appointed by the court and given to the court in the present case.
VAZVAN v. FINLAND DECISION
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9. By letter dated 16 December 2010 the applicant appealed to the
Helsinki Appeal Court requesting, inter alia, that the company be ordered to
pay him EUR 924,720,000 in compensation for the holding of the patent
licence and that he be freed from the obligation to pay the company’s costs
and expenses. He requested that an oral hearing be held and that the
technical experts attend this hearing. Moreover, the applicant complained
about the fact that the obligation to pay costs and expenses completely
cancelled out his right to compensation and asked to be dispensed from
paying. The company lodged a counter appeal, requesting that the
compensation be reduced to EUR 2,000 and that the applicant be ordered to
pay the company’s costs and expenses.
10. On 17 October 2012 the Helsinki Appeal Court, after having held an
oral hearing, accepted the company’s claims and reduced the amount of
compensation payable to the applicant to EUR 2,000. It also ordered the
applicant to pay the company’s costs and expenses before the District Court
and the Appeal Court to a total of EUR 444,471.08 plus interest. The court
found that as the compensation concerned just one patent, to which the
company held only a licence, EUR 2,000 was proper compensation. As to
the costs and expenses, the court found that the different material positions
of the applicant and the company spoke for the mitigation of the payment
obligation in the applicant’s favour. However, even though the invention
had been important to the applicant, he had requested compensation equal to
4% to 8% of the annual turnover of the whole company-group. His claims
had, from the outset, been manifestly ill-founded and non-itemised, and no
evidence had been presented to support them. The grounds for mitigation
were not therefore fulfilled and the applicant was ordered to pay the costs
and expenses of the company in full.
11. By letter dated 11 December 2012 the applicant appealed to the
Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds
of appeal already presented before the Appeal Court. Moreover, he stressed
the fact that the technical experts had not attended the Appeal Court hearing
and requested that they be asked to present a further statement on the matter
at hand. If that option was not available, he requested that the case be
referred back to the Appeal Court for the hearing of the experts.
12. On 30 May 2013 the Supreme Court refused the applicant leave to
appeal.
B. Relevant domestic law and practice
Patents Act
13. According to sections 65 and 66 of the Patents Act (patenttilaki,
patentlagen, Act no. 550/1967, as in force at the material time), t he Helsinki
District Court is competent to hear patent matters. When examining a patent
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VAZVAN v. FINLAND DECISION
matter, the District Court is to be assisted by two technical experts
appointed by the court. The experts are to give their views on the matters
submitted to them by the court. Their views are entered in the record and
they are entitled to question the parties and witnesses.
14. Section 67 of the Patents Act provides the following:
“The District Court shall appoint an appropriate number of experts as referred to in
section 66 for each calendar year. Before making the appointments, the Court shall
request the opinion of the Technical Research Centre of Finland. Such appointment
may not be refused without statutory justification.
Before taking up his appointment, an expert shall be required to take the prescribed
oath.
Experts shall be paid a reasonable fee for each case as laid down by the Court
together with compensation for travelling expenses as prescribed by the Government.”
15. It appears from the Government proposal HE 124/2012 vp that the
practice at the relevant time was that the experts practically always gave
their statement after the conclusion of the oral hearing. The parties to the
proceedings were not given a possibility to comment on the experts’
statement.
16. This state of affairs changed when the Patents Act was amended
with effect from 1 September 2013 (Act no. 101/2013). According to the
new section 66c of the Act, the District Court shall provide the parties a
possibility to comment on the statement of the experts before deciding the
case. According to the transitional provisions, if such a matter has already
become pending in a District Court before the entry into force of the
amendment, the previous provision is applicable.
Code of Judicial Procedure
17. Chapter 17, section 46, of the Code of Judicial Procedure
(oikeudenkäymiskaari, rättegångsbalken, Act no. 571/1948) provides that:
“Before an expert witness is appointed, the parties shall be heard on this. If the
parties agree on an expert witness, that person shall be used if he or she is deemed to
be suitable and there is no impediment to the same. In addition, the court may appoint
one expert witness.
No one may be appointed an expert witness against his or her will, unless he or she
is under the obligation to serve as an expert witness by virtue of public office or
function or on the basis of a special provision.”
18. Chapter 17, section 50, of the same Act (as amended by Act
no. 1052/1991) further provides that:
“An expert shall give a detailed account on the findings in his or her investigation
and, on the basis of the account, a substantiated statement on the question put to him
or her. The statement shall be compiled in writing, unless the court deems there to be
reason to allow for its being given orally. When a person is appointed as an expert
witness not on the basis of his or her official position or function, the court shall
determine the time within which the statement is to be given.
VAZVAN v. FINLAND DECISION
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An expert witness who has given a written statement shall be orally heard in court, if
a party so requests and the hearing is not evidently irrelevant, or if the court deems the
hearing of the expert witness necessary. If there are several expert witnesses, one or
several of them may be called to be heard.”
COMPLAINT
19. The applicant complained under Article 6 § 1 of the Convention that
he had not had a fair hearing as he had not been able to comment on the
expert statement drafted by the technical experts, used by the District Court.
This statement had been given to the parties only together with the District
Court judgment and the experts had not attended the Appeal Court hearing.
THE LAW
20. The applicant complained under Article 6 § 1 of the Convention of
the lack of a fair hearing.
21. Article 6 § 1 of the Convention reads, in relevant parts, as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a
fair ... hearing ... by [a] ... tribunal ...”
22. The Government argued that the applicant was not put in a position
of significant disadvantage vis-à-vis the other party to the civil proceedings
as the expert statement was presented to both parties at the same time and,
consequently, both parties had the same opportunity to have it assessed at
later judicial stages. The principle of equality of arms was thus respected.
23. Moreover, the Government maintained that the impugned expert
statement and the concomitant role of the experts formed a part of the
internal deliberations of the District Court. According to the Patents Act,
technical experts appointed by the Helsinki District Court were not ordinary
expert witnesses but rather considered as assistants of that court. They were
appointed yearly by the Helsinki District Court to their positions on the
basis of their relevant technical expertise. The Helsinki District Court
appointed yearly some one hundred expert assistants, representing tens of
areas of technical expertise. When compared to the provisions concerning
expert witnesses, in particular in Chapter 17, sections 46 and 50, of the
Code of Judicial Procedure, it was clear that the appointment of expert
assistants under the Patents Act differed drastically from the calling of
expert witnesses under the Code of Judicial Procedure. Expert assistants
were a part of the composition and could put questions to parties and
witnesses. They had no right to vote but were considered as non-voting
ad hoc expert members of the court. Their role was thus to strengthen the
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VAZVAN v. FINLAND DECISION
District Court’s own expertise when dealing with cases that required
specialist technical knowledge.
24. The Government further maintained that statements of expert
assistants reflected their replies given to the court’s questions and served as
a basis for the court’s deliberations in which the expert assistants also took
part. During deliberations, expert assistants could be asked to reply to
further enquiries made by judges or to comment on the draft judgment, as
far as technical aspects of the case were concerned. Their statements, which
did not, however, turn on the legal aspects of the case, were recorded in the
minutes of the court’s deliberations. The domestic law did not require the
communication of such statements to the parties but such a practice had
evolved through domestic case-law.
25. The Government noted that the deliberations of a District Court were
secret. For this reason conversations and clarification requests between the
composition of the court and the expert assistants were never made public.
For the same reason also, written statements of the expert assistants were
not communicated to the parties. However, as the written expert statements
were not cited in their entirety in patent law decisions of the District Court,
a practice had evolved to notify the parties of such statements at the same
time as the decision was made public, reflecting thus maximal transparency.
If the parties then appealed, they were able to assess the information
provided by the expert assistants, as required by the Court’s case-law. In
any event, there was no record of the applicant having requested an
opportunity to comment on the expert statement during the District Court
proceedings. Therefore, expert assistants were to be considered as members
of the composition and the publication of their statements, together with the
District Court judgments, did not breach the fairness requirements under
Article 6 of the Convention as they formed a part of internal deliberations.
The application was thus manifestly ill-founded and should be declared
inadmissible under Article 35 §§ 3 (a) and 4 of the Convention.
26. The applicant disagreed with the Government. He argued that
technical experts were not members of the court and their statements did not
form a part of the internal deliberations. They were not a part of the quorum
and did not belong to the composition of the court. At the time of the facts,
the applicant had no possibility to comment on the expert statement, even
though he had made such a request. However, the law had changed on
1 September 2013, after which parties had such a possibility during the
District Court proceedings. The preparatory works to this amendment
clearly indicated that the earlier practice had not fulfilled the fair trial
requirements and that there was a need to amend the law in that respect.
27. The applicant maintained that judges had no technical training and
that in technical cases they were dependent on technical experts’ opinions.
An error or misunderstanding in the latter’s statement could result in a
mistake in the legal reasoning. For this reason it was important for parties to
VAZVAN v. FINLAND DECISION
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be able to comment on such statements in advance. By referring to the
possibility to appeal, the Government accepted that the District Court
proceedings had not been fair. The applicant stressed that the District Court
proceedings needed to fulfil the fair trial criteria. As he had received the
expert statement only after the District Court judgment, his only possibility
to comment on it was to appeal to the Appeal Court, which represented a
financial risk. Had the parties been able to comment on the statement before
the District Court, he would have considered the need to appeal from a
different standpoint. There had thus been a violation of Article 6 § 1 of the
Convention.
28. The Court reiterates that one of the elements of a fair hearing within
the meaning of Article 6 § 1 is the right to adversarial proceedings; each
party must in principle have the opportunity not only to make known any
evidence needed for his claims to succeed, but also to have knowledge of
and comment on all evidence adduced or observations filed with a view to
influencing the court’s decision (see, among many other authorities,
Korošec v. Slovenia, no. 77212/12, § 46, 8 October 2015; Eskelinen and
Others v. Finland, no. 43803/98, § 31, 8 August 2006; Mantovanelli
v. France, 18 March 1997, § 33, Reports of Judgments and Decisions
1997-II; and Nideröst-Huber v. Switzerland, 18 February 1997, § 23,
Reports 1997-I.
29. The Court further reiterates that the appointment of experts is
relevant in assessing whether the principle of equality of arms has been
complied with. In ascertaining the expert’s procedural position and his role
in the proceedings, one must not lose sight of the fact that the opinion given
by a court-appointed expert is likely to carry significant weight in the
court’s assessment of the issues within that expert’s competence (see
Shulepova v. Russia, no. 34449/03, § 62, 11 December 2008; Sara Lind
Eggertsdóttir v. Iceland, no. 31930/04, § 47, 5 July 2007; and Bönisch
v. Austria, 6 May 1985, § 33, Series A no. 92).
30. The Court observes that the present case concerns in essence the
status of the experts appointed under the Patents Act and, in particular,
whether their statement given to the Helsinki District Court in a patent
matter formed, under the domestic law, a part of the case file which needed
to be communicated to the applicant for possible comments, or a part of the
internal deliberations of that court. The Court reiterates in the first place that
it is not its function to deal with errors of fact or law allegedly made by a
national court, unless and insofar as they may have infringed rights and
freedoms protected by the Convention (see García Ruiz v. Spain [GC],
no. 30544/96, § 28, ECHR 1999-I). In any event, it is primarily for the
national authorities, notably the courts, to resolve problems of interpretation
of national legislation. This applies in particular to the interpretation by the
courts of rules of a procedural nature (see Pekinel v. Turkey, no. 9939/02,
§ 53, 18 March 2008). The Court’s role is confined to ascertaining whether
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VAZVAN v. FINLAND DECISION
the effects of such an interpretation are compatible with the Convention in
general and with the fair trial principles, guaranteed by Article 6 of the
Convention, in particular.
31. Turning to the facts of the present case, the Court notes that the
applicant’s complaint relates to the alleged non-communication by the
District Court, during the proceedings before it, of the statement drafted by
patent law experts appointed by that court. It is not in dispute between the
parties that the applicant received the statement in question together with
the District Court judgment. It is equally clear from the case file that the
applicant had the statement at his disposal when he appealed to the Appeal
Court and that he specifically challenged its content before both the Appeal
Court and the Supreme Court.
32. The Court notes that the applicant was able to challenge the content
of the expert statement before both the Appeal Court and the Supreme
Court. Had there been a procedural mistake in the proceedings before the
first instance court, such a mistake would in any event have been corrected
on appeal as the expert statement was clearly a part of the case file both
before the Appeal Court and the Supreme Court, and both parties to the case
had equal opportunity to comment on it.
33. In the light of the above, the Court finds that the applicant’s
complaint under Article 6 of the Convention must be rejected as manifestly
ill-founded and declared inadmissible pursuant to Article 35 §§ 3 (a) and 4
of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 26 November 2015.
André Wampach
Deputy Registrar
Mirjana Lazarova Trajkovska
President