1.2.2 Tribunals under Article 6 of the European Convention on Human Rights

According to the first sentence of Art. 6(1) of the European Convention on Human Rights (ECHR), "[i]n the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

In R 8/13 of 20 March 2015 the Enlarged Board of Appeal stated that it was established case law of the Enlarged Board (R 2/14 of 17 February 2015: and of the boards of appeal) that the EPC, which had been signed by contracting parties to the ECHR, must be applied in a way which supports the fundamental principles of Art. 6(1) ECHR (G 1/05, OJ 2007, 362, point 22 of the Reasons; G 2/08 of 15 June 2009, point 3.3 of the Reasons). It further stated that the Enlarged Board fell within the definition laid down by the European Court of Human Rights (hereinafter "ECtHR") in Campbell and Fell v. the United Kingdom (28 June 1984, No 7819/77, paragraph 76): "the word ‘Tribunal’ in Article 6 paragraph 1 is not necessarily to be understood as signifying a court of law of the classic kind, integrated within the standard judicial machinery of the country". A tribunal may also be set up to deal with specific subject-matter which can be appropriately administered outside the ordinary court system. What is important, to ensure compliance with Art. 6(1) ECHR, are the guarantees, both substantive and procedural, which are in place (ECtHR, Rolf Gustafson v. Sweden, 1 July 1997, No. 23196/94, paragraph 45).

In R 1/16, the Enlarged Board ruled that a complaint based on a breach of the right to a fair trial under Art. 6(1) ECHR, of the protection of legitimate expectations and of the judicial duty to direct the parties was inadmissible as such because those were not grounds included in the exhaustive list under Art. 112a(2) EPC in conjunction with R. 104 EPC.

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