Preliminary objection dismissed (victim);Preliminary objection dismissed (non-exhaustion);No violation of Art. 2;Violation of Art. 3;Violation of Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The facts of the case , particularly concerning events on CARDINAL and DATE when PERSON , the applicant 's brother , was apprehended by gendarmes during an operation at the village of ORG and went to hospital for emergency medical treatment of a serious head injury , were disputed by the parties . The Commission , pursuant to former LAW ( a ) of the LAW , conducted an investigation with the assistance of the parties .

The Commission delegates heard witnesses in GPE from CARDINAL to DATE and on CARDINAL DATE . The witnesses included the applicant ; his brother PERSON ; PERSON , the villager who was apprehended during the same operation ; PERSON , the commander of the PERSON central gendarmerie , in charge of the operation at ORG ; PERSON , the commander of the local gendarmerie station at Konaklı ; ORG , a gendarme doing his military service at ORG ; PERSON , the doctor who examined PERSON at ORG ; PERSON , who treated PERSON at ORG ; Dr PERSON , from ORG ; PERSON , the GPE public prosecutor ; and PERSON , a soldier with paramedical training who had served at GPE .

The DATE 's findings of fact , which are accepted by the applicant , are set out in its report of DATE and summarised below ( Section A ) . The relevant domestic proceedings and the ORG 's submissions concerning the facts are also summarised below ( Sections B and C ) .

Abdüllatif İlhan lived in the village of ORG , located in the south - east region of GPE , CARDINAL to QUANTITY from the town of GPE . It came under the jurisdiction of the gendarmerie command at GPE . The nearest gendarmerie station was at PERSON , several villages away . The central provincial gendarmerie commander , PERSON , knew the village . He had been informed that the PERSON family cooperated with the ORG ( ORG of Kurdistan ) who were very active in the region at this time . He also suspected the villager PERSON of involvement with the ORG .

Aytepe village was located on high ground in a hilly area . There was a garden area below the village to the south , described as containing fruit trees and bushes . The descriptions of this area given by witnesses before the ORG 's delegates varied . It was common ground that there were stone walls in the garden which were in places quite high . There were rivers or streams to the east and west of this area .

On DATE , shortly before dawn , the GPE gendarmes , under PERSON command and assisted by men from PERSON station , started an operation at Aytepe village . The report by PERSON central provincial gendarmerie command stated that a villager , PERSON , was wanted for harbouring QUANTITY persons wanted for aiding and abetting the ORG . The weather was very cold , with snow on the ground .

Abdüllatif İlhan and PERSON saw the soldiers approaching the village from the surrounding hills . From past experience , they feared that they might be beaten . They ran to hide in the gardens south of the village . They did not hear anyone shouting after them to stop . PERSON , the PERSON station commander , saw the CARDINAL men running away through binoculars . He was ordered by the operation commander , PERSON , to apprehend them . He took a team of CARDINAL men and went to the gardens .

The gendarmes found both men hiding under the bushes and trees in the garden area . PERSON did not try to run away when he was found . He was beaten and kicked by the gendarmes . They found PERSON hiding nearby and gathered round him . PERSON saw the gendarmes kick him . He also saw them raise and lower their rifles as if striking PERSON with the butts . He did not , however , see any rifle butt hitting him . PERSON remembered that he was kicked many times and struck on the hip with the barrel of a GCARDINAL rifle which tore his skin all the way down . He was also struck on the right side of the head with a rifle butt . He lost consciousness and remembered little after that for DATE . The gendarmes doused him in the nearby river to revive him .

The Commission rejected as implausible and contradictory the testimony of the gendarmes concerning the apprehension of the CARDINAL men . Neither PERSON nor PERSON witnessed the apprehension of PERSON or ORG and their accounts lacked credibility . ORG claimed that he had found PERSON concealed in the bushes and that the latter had run away , falling twice near the river . The Commission , however , found that his testimony was inconsistent on a number of crucial points and that he gave his evidence in a clearly exculpatory manner . On being questioned in detail , he also admitted that he could not see exactly what had happened . The Commission therefore found that the Government had not produced a witness who could unequivocally state that he had witnessed PERSON sustain injuries as a result of a fall . It accepted the testimony of PERSON and PERSON , which it found to be credible and convincing .

PERSON and PERSON were brought before the operation commander , PERSON , who kept them outside the village until the end of the operation . A third man , PERSON , was also apprehended for aiding and abetting the ORG . ORG did not accept as credible testimony that a fire was lit to warm PERSON . Nor were any dry clothes brought for him from the village . At this point , PERSON had a visible injury to his head , with bruising around the left eye and a mark on the right - hand side of his head , which had bled . He was limping , showing an injury to the left leg . There were also noticeable irregularities in his manner of speaking when PERSON questioned him at this time .

An incident report was drawn up by the gendarmes , dated DATE . It stated that PERSON and ORG had failed to stop when ordered and that ORG had fallen down a slope , injuring his left eye and leg . The report was signed by PERSON , PERSON and PERSON . It also bore the apparent signatures of PERSON and ORG . However , PERSON was illiterate and unable to sign his name . He generally placed his thumbprint on documents . Although the report purported to have been drawn up and signed at the scene by the persons present , the Commission noted that PERSON and ORG recollected signing it later . It also found that it was an unreliable and misleading document , which did not correspond to the events as described orally by the gendarmes .

After completing the operation at the village , the gendarmes returned to the PERSON station . PERSON was unable to walk . PERSON carried him to the next village , ORG , where a donkey was obtained . PERSON rode on the donkey to PERSON , with PERSON helping to keep him in the saddle . They arrived at CARDINAL to TIME

At the station , PERSON took the statements of both men . PERSON was otherwise kept in the canteen while PERSON was placed in the custody area . No custody record recording their detention was provided by the Government . At TIME , the PERSON gendarmes left in their vehicles to return to PERSON , taking PERSON and PERSON with them .

The gendarmes arrived in GPE during the night , passing ORG on the way . PERSON and PERSON were put in the cafeteria of the GPE central provincial gendarmerie station . PERSON recalled that CARDINAL men in civilian clothes had come to the cafeteria . CARDINAL of them , who was apparently a doctor , had looked at ORG without examining him and said that he was faking his condition . PERSON told the Commission delegates that he had called a doctor and a paramedic to examine PERSON and that , after the examination , the doctor had stated that PERSON was exaggerating his symptoms . The Commission asked for the doctor and the paramedic to be identified . The doctor identified by the Government failed to appear and give evidence . The paramedic appeared , but could not remember ever being called out to examine a detainee in the circumstances described . No infirmary or medical records were produced to substantiate that treatment was given . The Commission did not make any findings as to who had come to look at ORG . It did find that at most he had received only cursory first - aid treatment and that the purported doctor had discounted visible signs of distress , without taking any precautionary steps in respect of an evident trauma to the head .

PERSON took further statements from the CARDINAL men during DATE of DATE , probably DATE TIME Abdüllatif İlhan 's statement bore his thumbprint and the explanation that he did not have a signature . PERSON described PERSON condition as worsening as DATE progressed . He could not walk , needed to be supported and , before giving his statement , lost control of his bowels .

At TIME on DATE , TIME after their apprehension , PERSON and PERSON were admitted for treatment at ORG . A document dated DATE and signed by PERSON requested that both be treated as they had fallen and hurt themselves . According to the hospital record , PERSON was treated for trauma to the right ear . A report dated DATE and signed by ORG stated that ORG general condition was average , and that he was conscious and responsive . The report also stated that hemadermy was present in the left eye periorbital . It indicated that the life of the patient , who suffered from left hemiparesis , was threatened .

Abdüllatif İlhan was taken to ORG , where his condition was found to be fair , though risk to life remained , with symptoms of concussion and left hemiplegia . The applicant arrived at the hospital to see his brother on DATE . He took PERSON to a clinic , where he paid for scans to be taken . On the basis of these films , which disclosed , inter alia , cerebral oedema and left hemiparesis , PERSON decided that surgery was not necessary . PERSON was treated with drugs and discharged from hospital on DATE .

Abdüllatif İlhan returned to the hospital for examination at CARDINAL monthly intervals . On DATE a report from PERSON and Dr PERSON stated that he was suffering from a PERCENT loss of function on the left side . The applicant submitted to the ORG recent scans of his brain showing an area of brain atrophy . The ORG 's delegates who saw PERSON on DATE noted that a loss of function on the left hand side was still visible . However , on the basis of the evidence of the doctors who testified before the delegates , the ORG found that the delay in treatment had not been shown to have appreciably worsened the long - term effects of the head injury .

The applicant and his brother did not lodge any complaint with the LOC public prosecutor , PERSON . The public prosecutor had been informed , however , that ORG had been injured at the time of his apprehension by PERSON and he had received documents prepared by the gendarmes concerning the apprehension of PERSON and PERSON . In a written report dated DATE to the public prosecutor , PERSON had stated that both PERSON and PERSON had run away despite numerous warnings to stop . He described how both men had physically resisted the security forces and had fallen from the rocks while they were pushing the gendarmes . The public prosecutor had also spoken on the telephone with PERSON and received oral explanations , inter alia , that PERSON had in fact hidden without running away .

On DATE the public prosecutor issued a decision not to prosecute which concluded that PERSON injury resulted from an accident for which no one was at fault , either intentionally or through negligence . He did not interview PERSON or PERSON or any gendarme who had witnessed the alleged accident before issuing his decision .

On DATE the public prosecutor drew up an indictment charging PERSON with the offence of resistance to officers contrary to LAW ( TCC ) . It stated that during an operation ORG had run away from the security forces , ignoring their orders to stop . He told the delegates that he did not charge PERSON with any offence due to the oral explanations given by PERSON .

On DATE Abdüllatif İlhan appeared before ORG of ORG . The minutes recorded that he accepted that the charge was true . He was recorded as stating that , on DATE of the incident , he did not understand the security forces ' warning . Although he understood it afterwards , he ran away fearing that they would harm him . In its decision of that date , the court found that PERSON had admitted that he had failed to comply with an order to stop and had thus resisted an officer contrary to LAW ORG . He was sentenced to a fine of MONEY ( TRL ) , which was suspended . The applicant stated to the Commission that he had not been allowed to accompany his brother into the courtroom and that his brother , who spoke NORP , was not provided with an interpreter . The court minutes made no reference to an interpreter being provided .

The Government relied on the incident report drawn up by the gendarmes and the statements taken from ORG and PERSON by the gendarmes , as well as the oral testimony of the gendarmerie officers .

Abdüllatif İlhan was ordered to stop by the gendarmes conducting an operation at his village . He ran away and , due to the slippery terrain , fell and injured himself . PERSON evidence that PERSON was beaten by the soldiers was unreliable and inconsistent , inter alia , as his son had joined the ORG . Both men had signed the incident report and statements drawn up by the gendarmes . The fact that PERSON was illiterate did not mean that he was unable to sign documents if he wished .

After the accident , PERSON was neither in danger of losing his life nor in a coma . He did not lose consciousness as alleged . He was able to make statements to the gendarmes and so did not appear to PERSON to be seriously hurt . PERSON , who examined him at ORG , described him as responsive . In any event , PERSON was not neglected but received medical treatment for his injuries in hospital . Such treatment was not available in the rural area where the accident occurred .

Abdüllatif İlhan had admitted before ORG of ORG that he had resisted the security forces and had had no difficulty in giving evidence .

The principles and procedures relating to liability for acts contrary to the law may be summarised as follows .

Under LAW ( ORG ) all forms of homicide ( Articles CARDINAL to CARDINAL ) and attempted homicide ( Articles CARDINAL and DATE ) constitute criminal offences . It is also an offence for a ORG employee to subject anyone to torture or ill - treatment ( Article CARDINAL in respect of torture and Article CARDINAL in respect of ill - treatment ) . The authorities ' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by ORG CARDINAL to CARDINAL of LAW . Offences may be reported to the authorities or the security forces as well as to public prosecutors ' offices . The complaint may be made in writing or orally . If it is made orally , the authority must make a record of it ( LAW .

By Article CARDINAL of LAW , any public official who fails to report to the police or a public prosecutor 's office an offence of which he has become aware in the exercise of his duty is liable to imprisonment .

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution ( LAW ) .

In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout GPE .

If the suspected offender is a civil servant and if the offence was committed during the performance of his duties , the preliminary investigation of the case is governed by LAW on the prosecution of civil servants , which restricts the public prosecutor 's jurisdiction ratione personae at that stage of the proceedings . In such cases it is for the relevant local administrative council ( for the district or province , depending on the suspect 's status ) to conduct the preliminary investigation and , consequently , to decide whether to prosecute . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .

An appeal to ORG lies against a decision of the council . If a decision not to prosecute is taken , the case is automatically referred to that court .

By virtue of DATE , paragraph ( i ) , of Decree no . CARDINAL of DATE on the authority of the governor of a state of emergency region , the DATE PERSON ( see paragraph CARDINAL above ) also applies to members of the security forces who come under the governor 's authority .

NORP If the suspect is a member of the armed forces , the applicable law is determined by the nature of the offence . Thus , if it is a “ military offence ” under LAW ( Law no . CARDINAL ) , the criminal proceedings are in principle conducted in accordance with PERSON no . CARDINAL on the establishment of courts martial and their rules of procedure . Where a member of the armed forces has been accused of an ordinary offence , it is normally the provisions of LAW which apply ( see LAW and sections CARDINAL to CARDINAL of Law no . CARDINAL ) .

The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person 's life by disobeying an order ( LAW ) . In such cases civilian complainants may lodge their complaints with the authorities referred to in LAW ( see paragraph CARDINAL above ) or with the offender 's superior .

Under LAW of PERSON no . CARDINAL on administrative procedure , anyone who sustains damage as a result of an act by the authorities may , within DATE after the alleged act was committed , claim compensation from them . If the claim is rejected in whole or in part or if no reply is received within DATE , the victim may bring administrative proceedings .

Article CARDINAL § § CARDINAL and CARDINAL of the LAW provides :

“ All acts or decisions of the authorities are subject to judicial review ...

The authorities shall be liable to make reparation for all damage caused by their acts or measures . ”

That provision establishes the ORG 's strict liability , which comes into play if it is shown that in the circumstances of a particular case the ORG has failed in its obligation to maintain public order , ensure public safety or protect people 's lives or property , without it being necessary to show a tortious act attributable to the authorities . Under these rules , the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons .

DATE of Decree no . CARDINAL of DATE , the last sentence of which was inspired by the provision mentioned above ( see paragraph DATE ) , provides :

“ No criminal , financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken , or acts performed , by them in the exercise of the powers conferred on them by this legislative decree , and no application shall be made to any judicial authority to that end . This is without prejudice to the rights of individuals to claim reparation from the ORG for damage which they have been caused without justification . ”

Under LAW , anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages ( Articles CARDINAL to CARDINAL ) and non - pecuniary loss ( Article CARDINAL ) . The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant 's guilt ( Article CARDINAL ) .

However , under LAW no . CARDINAL on ORG employees , anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may , in principle , only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant ( see LAW ) . That is not , however , an absolute rule . When an act is found to be illegal or tortious and , consequently , is no longer an “ administrative ” act or deed , the civil courts may allow a claim for damages to be made against the official concerned , without prejudice to the victim 's right to bring an action against the authority on the basis of its joint liability as the official 's employer ( LAW ) .

Article CARDINAL of the ORG provides in its first paragraph :

“ Whoever , by force or threat , resists a public officer or his assistants during the performance of their official duties shall be punished by a term of imprisonment of not DATE and not DATE . ”

Article CARDINAL of the ORG provides :

“ Whoever exerts influence or force to prevent the execution of any of the provisions of a statute or regulation shall be punished by a term of imprisonment of not DATE . ”


The applicant , Mr PERSON , is a NORP national , who was born in DATE . He was represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government were represented by their Agent , PERSON , succeeded by PERSON in that function .

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

In DATE the applicant emigrated to GPE . He returned to GPE in DATE . Subsequently the following relevant facts occurred .

Upon his arrival in GPE , the applicant registered with the authorities as permanently living at the address of his mother and sister in GPE . The house in question was owned by the applicant ’s sister . The applicant submitted a written consent of his mother when registering his permanent address . He was issued with an identity card on the basis of this registration .

According to the applicant , his identity card was stolen , together with other objects , from a flat which also served as the premises of a political party of which he was a member in DATE .

On DATE the applicant ’s sister requested the PERSON municipal authorities to cancel the registration of the applicant as permanently residing in her house on the ground that she had never consented to such a registration . On DATE the NORP municipal authorities therefore cancelled the applicant ’s registration as having a permanent address at his sister ’s house .

The applicant filed a criminal complaint against the Mayor of GPE in this context . It was dismissed by ORG on DATE . The decision stated , inter alia , that following her request for the applicant ’s permanent address in her house to be cancelled the applicant ’s sister had found a flat for the applicant and that she had paid the rent for DATE in advance . According to the decision , the applicant subsequently refused to pay the rent and again left for GPE .

In his application to the ORG the applicant stated that the authorities refused to issue him with a new identity card as he had no permanent address .

The Government submitted a copy of the records of the competent authority indicating that the applicant had reported a loss of his personal identity card on DATE . Another remark in the same document , dated CARDINAL DATE , indicates that the applicant ’s personal identity card was subsequently found and that it was left with the applicant .

According to the applicant , he was twice refused free dental treatment , in DATE and in DATE respectively , on the ground that he did not have his permanent residence registered in the district where he applied for the treatment . On DATE ORG in GPE refused to entertain the applicant ’s request for free medical treatment in a spa resort . The letter stated that the costs of stays in spa resorts were covered by a person ’s health insurance according to the place of permanent residence of the person concerned .

On DATE the ORG refused to deliver a firearms licence to the applicant on the ground that he was not registered as permanently residing in the NORP district . Finally , the applicant submits that he was not allowed to trade securities on the public market , on DATE , on the ground that he was not able to prove his identity by means of a personal identity card .

On DATE the applicant applied for a new personal identity card . He stated that his original personal identity card had been lost during the forcible removal of his belongings from an apartment . A personal identity card was issued to the applicant on DATE .

The applicant also possessed a valid passport issued by the NORP authorities .

In a letter addressed to ORG DATE the applicant stated , inter alia , that following the parliamentary election held in DATE he had left GPE for GPE from where he had returned in DATE . In the letter the applicant further stated that he had no place to live and that he had been repeatedly treated in psychiatric hospitals , for an overall period of DATE , whereby he had been saved from starvation .

The documents before the ORG indicate that the applicant was registered with the competent authorities as an employment seeker from DATE to DATE , DATE and DATE and also in DATE . He was considered as a person in need and received a social allowance provided for by law . By a decision of DATE he was granted an invalidity pension with effect from DATE .

On DATE the applicant requested the ORG that “ proceedings concerning an estate ” be re - opened . On DATE and on DATE a judge replied to the applicant that his submissions were illegible and unclear . The applicant was invited to specify the subject - matter of his claim and also to indicate the name of the person whose estate was to be determined , the date of his or her death , and to submit the relevant documents . The applicant was informed that the court would not be in a position to proceed with the case in the event that he failed to remedy the formal shortcomings in his action .

On DATE the ORG informed the applicant that the real property in question had formed part of the estate of his late parents . That estate had been distributed in CARDINAL separate sets of proceedings which ended in DATE and on DATE respectively . In the first set of proceedings the authorities noted that the applicant lived in GPE and that he had waived his rights in respect of his father ’s estate . In the second set of proceedings , which concerned the estate of the applicant ’s mother , ORG appointed a guardian to represent the applicant as his whereabouts were unknown . At the same time a leaflet was issued inviting the applicant to inform the court within DATE whether or not he accepted the estate . In the absence of any such reply , the applicant would not be taken into consideration when distributing the estate . The letter of DATE concluded that the estate in question could not be redetermined as the above decisions had become final .

On DATE the applicant claimed damages from his sister before ORG . On DATE the latter informed the applicant that his action was incomplete . The applicant was invited to submit , within DATE , a new action in accordance with the formal requirements . The letter explicitly stated what information the action should contain . As the applicant did not comply with the court ’s request , ORG declined to proceed further with the case .

On DATE the applicant sued the PERSON municipality before ORG . He claimed CARDINAL NORP korunas on the ground that his personality rights had been affected as a result of the decision to terminate the registration of his permanent address at his sister ’s place .

On DATE ORG informed the applicant that his action was incomplete . The applicant was invited to submit , within DATE , a new action in accordance with the formal requirements which were indicated in the letter .

On DATE the applicant made further written submissions to ORG which the latter considered to be unclear . As the applicant also requested that a lawyer be appointed to represent him , the court sent him a form with a view to establishing whether his situation justified granting the request . After the postman had failed to reach the applicant at the address indicated by him on DATE respectively , he left a message for the applicant informing him that the envelope would be deposited at the post office . The applicant did not withdraw the mail .

As the applicant neither eliminated the formal shortcomings in his submissions nor submitted a claim for a lawyer to be appointed , no further action was taken on his claim .

The applicant filed a criminal complaint alleging that ORG had lost parcels which he had addressed to himself from GPE and which contained a large quantity of silver coins . On DATE a public prosecutor dismissed the complaint as being unsubstantiated .

On DATE the applicant sued ORG for the loss of the coins before LOC . On DATE and on DATE the judge invited the applicant to eliminate formal shortcomings in his submissions .

On DATE ORG granted the applicant ’s request for waiver of court fees . A lawyer appointed by the court to file an action on the applicant ’s behalf did so on DATE . The action stated that CARDINAL parcels containing silver coins and addressed to the applicant arrived at the Zvolen CARDINAL post office on CARDINAL DATE . The applicant was invited to pay the tax and customs fees . He refused to do so as he considered that he was entitled to import the coins free of charge as a part of his personal belongings following his return after emigrating to GPE . Subsequently the applicant was informed that the parcels had been sent back to GPE . As far as it could be established by the applicant , the parcels were never returned to GPE .

On DATE the Zvolen ORG transferred the case to ORG . On DATE the latter requested PERSON to decide which court had jurisdiction to deal with the case . On DATE ORG found that the case fell to be examined by LOC .

In its submission of DATE the defendant argued that the applicant had failed to identify the parcels which had been allegedly lost and that in accordance with the relevant regulations the applicant should have first sought to obtain compensation from ORG .

On DATE the Zvolen ORG tried to establish the applicant ’s whereabouts . On DATE a mental hospital in GPE informed the court that the applicant had been treated as an in - patient between DATE and DATE as well as DATE .

On DATE the Zvolen ORG heard the parties .

Subsequently the ORG experienced difficulties in contacting the applicant as he frequently changed his address . The court therefore appointed a lawyer to represent the applicant on DATE .

On DATE the Zvolen ORG dismissed the action . The judgment stated that the applicant had not raised his complaint before the postal authorities within DATE statutory time - limit and that his right to claim damages had therefore lapsed . On DATE the applicant appealed .

On DATE the Banská Bystrica Regional Court quashed the first instance judgment and discontinued the proceedings . ORG found that the courts lacked jurisdiction to deal with the claim as , in accordance with the relevant regulations , the applicant should have first filed it with the postal authorities .

Under Section CARDINAL(CARDINAL ) of the Citizens’ Stay Registration Act of DATE ( PERSON o hlásení a evidencii pobytu občanov , No . CARDINAL/CARDINAL Coll . ) an individual may permanently reside for the purposes of that LAW only in LOC which have a registration number issued in accordance with special regulations .

Section CARDINAL ) provides that all citizens shall have the place of their permanent residence registered . For that purpose they shall submit their identity card and a certificate to the effect that they are authorised to use a flat or other dwelling LOC .

Pursuant to Section CARDINAL(CARDINAL)(b ) , an entry concerning the registration of a person ’s permanent residence is to be quashed where it has been shown that such an entry was made erroneously on the basis of an invalid document .

Act No . DATE has been repealed , with effect from DATE , by Act No . CARDINAL/CARDINAL on Reporting of the Citizens’ Stay and on ORG ( PERSON o hlásení pobytu občanov PERSON republiky a registri obyvateľov PERSON republiky ) . Section CARDINAL(CARDINAL ) of Act No . PERSON provides that persons who are not in a position to show that they are authorised to live in a flat or other dwelling premises shall have their permanent residence registered in the place of their birth or , when they were not born within GPE , in the place where they stay . In such cases the name of the municipality concerned shall be indicated as the place of their permanent residence .

Under LAW of LAW ( PERSON o občianskych preukazoch , No . CARDINAL/CARDINAL Coll . ) , a personal identity card is issued by the police authority in the district where a citizen registered his or her permanent residence .

Under LAW ) , an individual applying for a new personal identity card , e.g. when the identity card delivered earlier was stolen or lost , is obliged to substantiate by relevant documents any change in the data to be set out in the card .

In accordance with Section CARDINAL(CARDINAL)(b ) , applied by analogy , an individual whose permanent residence changed shall , when applying for a new personal identity card to be issued , submit a certificate of registration of his or her new permanent residence delivered by the competent municipal authorities .

Section CARDINAL(d ) provides that a personal identity card becomes invalid when any of the relevant information set out in it ceases to correspond to reality .

Pursuant to Section CARDINAL(CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) , in case of loss or theft of a personal identity card and when the request of the person concerned for a new personal identity card can not be satisfied immediately , the authorities are to issue such a person with a certificate replacing the personal identity card pending the delivery of a new one . The validity of such a certificate shall not exceed DATE .


GALEOTTI OTTIERI DELLA CIAJA AND SIX OTHERS v. ITALY

The applicants are CARDINAL NORP nationals , whose names , dates of birth and places of residence are indicated in the attached list .

They are represented before the ORG by Mr PERSON , Mr PERSON and Mr PERSON , CARDINAL lawyers practising in GPE and GPE .

The first CARDINAL applicants are the heirs of a certain PERSON

The amount of main and complementary taxes to be paid on PERSON estate of inheritance was fixed respectively at CARDINAL ORG ( CARDINAL ORG ) and CARDINAL ( CARDINAL ORG ) .

On DATE the first applicant requested the ORG revenue to recalculate the taxes . She observed that in accordance with Rule CARDINAL of Presidential Decree no . CARDINAL of DATE , tax rates had been assessed on the estate of inheritance considered as a whole , and not on the heirs’ individual assets , a fact which provoked a difference of treatment between sole heirs and persons being heirs pro quota of substantial estates . The first applicant noted in particular that under the above system , assuming that the estate amounted to CARDINAL ORG , the sole heir should pay CARDINAL ORG , while CARDINAL heirs sharing pro quota an estate of CARDINAL ORG should pay CARDINAL ORG each .

The Revenue rejected the first applicant ’s request .

On DATE the first CARDINAL applicants and a certain PERSON introduced a claim before ORG . They alleged , inter alia , that Rule CARDINAL of Presidential Decree no . CARDINAL of DATE was contrary to Articles CARDINAL and CARDINAL of LAW , guaranteeing the principle of equality of treatment and providing that everybody should contribute to public expenses in relation to his or her taxable capacity .

In a decision of DATE , ORG , observing that on DATE ORG had declared manifestly ill - founded an exception similar to the CARDINAL raised by the applicants , rejected the claim .

Invoking , inter alia , LAW , taken in conjunction with LAW , the first CARDINAL applicants and PERSON appealed to ORG .

In an order of DATE , ORG confirmed the first - instance decision .

On DATE the first CARDINAL applicants and PERSON introduced a claim before ORG , seeking the withdrawal of ORG decision . They relied on Articles CARDINAL and CARDINAL of LAW as well as on LAW , taken in conjunction with LAW .

In a judgment of DATE , ORG rejected the ORG claim . It raised doubts as to the binding character of the LAW and noted that , in any case , its provisions could be modified by subsequent ordinary laws . ORG moreover observed that , as ORG had held on a number of occasions , taxes had to be assessed on the basis of the estate of inheritance as a whole , without taking into account the heirs’ individual assets . Therefore , higher tax rates on more substantial estates were a mere consequence of the principle of progressiveness of taxation .

The applicants appealed on points of law , the last CARDINAL applicants acting in their capacity of heirs of PERSON

In a judgment of DATE , filed with the registry on DATE , ORG rejected the ORG appeal . It acknowledged that the LAW provisions were incorporated into NORP law and could not be modified by ordinary laws . ORG moreover accepted that taxation could interfere with the ORG right of property and raise issues under LAW . However , it found no appearance of violation of this provision , given the fact that LAW no . CARDINAL was aimed to ensure an higher fiscal pressure on more substantial estates , thus applying the principle of progressiveness of taxation .


Violation of Article 6 - Right to a fair trial

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

The applicants were both born in DATE and live in GPE .

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

In DATE the applicants and their neighbour filed a request with the PERSON administrative authorities ( “ the administration ” ) seeking permission to cut down their neighbour ’s tree which , according to an expert opinion obtained by the applicants , was causing damage to their house .

On DATE the administration rejected this request . On DATE , on the ORG administrative appeal , the administration granted permission to cut down the tree on the ground that they could not exclude the possibility that the damage to the house had been caused by the tree .

Subsequently , the applicants’ neighbour refused to cut down the tree .

In DATE the applicants requested ORG to order their neighbour to cut down the tree .

On DATE , following submissions by the defendant , who also presented an expert report , the court decided to obtain an expert opinion from a PERSON . On DATE PERSON . submitted his report .

On DATE , following a hearing , ORG decided that the applicants’ neighbour had to cut down the tree or take other measures to prevent the LOC from drying out .

On DATE the applicants’ neighbour appealed . She also submitted another expert opinion .

On DATE the GPE / ORG , on provision of a security by the neighbour , stayed the proceedings for enforcement of the first - instance judgment . Subsequently , the case was transferred to a single judge .

On DATE the court scheduled a hearing for DATE . DATE it decided to obtain an expert opinion . On DATE it commissioned Professor PERSON , an expert on construction matters .

On DATE the applicants lodged a subsequent appeal ( Anschlussberufung ) .

On DATE the court amended its decision regarding the taking of evidence . Subsequently , it also requested a further advance . On DATE the applicants paid the requisite advance . DATE they questioned the expert ’s qualification . On DATE the court sent the files to the expert .

On DATE , following comments made by the expert about the applicants’ objections against him , the court mandated Professor PERSON to proceed with the report . On DATE Professor PERSON informed the court about the cost of his services ( which amounted to QUANTITY ( ORG ) ) .

In DATE the court requested the files from the expert and on DATE , on appeal by the defendant , it quashed a decision of ORG concerning the enforcement proceedings .

On DATE the court proposed to the applicants that , in view of the exceptionally high costs claimed by Professor PERSON , evidence should be taken by other means and proposed a Dr S. , a landscaping expert .

On DATE the applicants opposed the proposal since , in their view , Professor PERSON ’s report was indispensable . They also opposed the choice of PERSON on the grounds that he had been proposed by the defendant , knew the defendant ’s son and it could be assumed that he had been talking with him about the case .

At the subsequent hearing on DATE the applicants requested PERSON to declare that he did not have any personal ties with the defendant or her son and had not dealt with the case before . On DATE , following this declaration by PERSON , the court commissioned PERSON to provide an expert opinion .

On DATE the court asked the applicants to comment on a statement by PERSON dated DATE . In DATE the expert requested a further advance . On DATE he submitted his report . He came to the conclusion that the tree had not caused the damage to the house .

On DATE , following the applicants’ submissions , the court asked PERSON and the first - instance expert , on condition of the payment of a further advance , to explain and supplement their reports . In DATE it amended its decision ; in DATE it requested a further advance . On DATE it transferred the files to Dr S.

NORP In DATE the court requested a further advance of ORG CARDINAL from both parties . On DATE , at the request of the applicants , it further amended the order regarding the taking of evidence . On CARDINAL DATE the defendant paid the advance . The court then requested the expert to continue with his report .

NORP In DATE Dr S. submitted his supplementary report . The court then transferred the files to the parties for further submissions .

On DATE the applicants requested the court to transfer the case from the single judge to a bench .

On DATE the court scheduled a hearing for DATE . It later had to be postponed to CARDINAL DATE owing to the absence of the parties’ legal counsels . At the hearing , the court ( again composed of CARDINAL judges ) established that a report by a construction expert was necessary in order to reach a decision . It also encouraged the parties to reach a friendly settlement in view of the high costs claimed by Professor PERSON of the experts were summoned .

On DATE the court decided that , in view of the additional submissions , further evidence should be obtained by PERSON as regards the position of the roots of the tree . It also requested an advance of LAW .

In DATE the applicants asked the court to amend this decision . This however was rejected in DATE and again later on a renewed request . In DATE the court confirmed that the applicants had already paid the advance ( requested again in DATE ) on DATE .

On DATE a local inspection took place .

By a letter dated DATE the applicants lodged a constitutional complaint on account of the length of the proceedings . On DATE ORG refused to accept the constitutional complaint for adjudication . It found that there was no indication of a violation of the applicants’ rights .

On DATE ORG requested another advance of ORG CARDINAL . In DATE it again refused to amend its decision regarding the taking of evidence ; also in DATE the applicants paid the advance .

On DATE the expert informed the parties that the local inspection ( which required free access to the applicants’ cellar ) should take place on DATE . At the ORG request , it was postponed to DATE .

On DATE the expert submitted an interim report ; on DATE he submitted his final report .

On DATE the court scheduled the hearing . On DATE the GPE / ORG ordered the neighbour to cut down the tree .


CASE OF STANDARD VERLAGS GMBH v. AUSTRIA (No. 2)

Remainder inadmissible;No violation of Art. 10

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant , a limited liability company with its seat in GPE , is the owner of the DATE newspaper ORG .

In its issue of CARDINAL DATE Der Standard published an article in the domestic politics section under the heading “ Gossip mongering ” ( “ PERSON ) . The article , which was entitled “ A society rumour ” ( “ PERSON bürgerliches Gerücht ” ) commented on certain rumours relating to the marriage of PERSON , the then Federal President . The article also appeared on the website of PERSON . It read as follows :

“ If the stories circulating between the outlying district of PERSON and the city centre are to be believed , there is CARDINAL topic of conversation at the moment among the socalled upper crust of NORP society : the marriage of the departing presidential couple PERSON and PERSON [ bold print in the original ] . Rumour has it that not only is he about to leave office , but she is about to leave him . The latter claim has of course set tongues wagging furiously in bourgeois DATE and not - so - bourgeois – circles . People here like nothing better than to be able to express outrage about one of their own .

In addition to the allegedly less - than - blissful domestic situation on the PERSON Warte [ the Federal President ’s residence ] , there has been persistent gossip recently about the supposedly close ties between the First Lady , who is her husband ’s junior by DATE , and other political figures . Head of the ORG parliamentary group PERSON [ bold print in the original ] , for instance , is reported to be close to her ( Scheibner has accompanied the presidential couple on a number of foreign trips ) . PERSON is also said to be well acquainted with the husband of the NORP ambassador ( unsurprisingly , given her post as head of the NORP department of ORG ) .

The fact that the President ’s wife took DATE off recently to organise the move from the official residence to the couple ’s newly renovated home in GPE fuelled further speculation . So much so , in fact , that PERSON DATE never squeamish about putting his emotions on display – had the following pre - emptive statement published in his information bulletin , News [ an NORP DATE ] : ‘ Rumours of a separation are nothing but idle gossip’ he said . He added : As of DATE we will be embarking on a new phase of our life together . Any assertions to the contrary are untrue .

Be that as it may , the people are concerned for the well - being of their President . Apparently , the public information desk of ORG has recently had more callers than ever before enquiring about the state of the President ’s marriage . And more than a few of the callers made their enquiries in the ultra - refined tones of GPE . ”

The article was accompanied by a picture of PERSON and PERSON Klestil - Löffler , looking in different directions .

On CARDINAL DATE Mr PERSON and PERSON brought proceedings under sections CARDINAL and CARDINAL of LAW ( Mediengesetz ) against the applicant company , claiming that the article published in PERSON of CARDINAL DATE reported on their marriage and family life and thus interfered with the strictly personal sphere of their lives .

By judgment of DATE ORG ( PERSON für PERSON ) ordered the applicant company to pay compensation of MONEY ( ORG ) to the first claimant , PERSON , and ORG CARDINAL,CARDINAL to the second claimant , PERSON . Furthermore , the court ordered the applicant company to publish its judgment and to reimburse the claimants’ costs .

ORG , referring to section CARDINAL of LAW , held that the applicant company had reported on the strictly personal sphere of the claimants’ lives in a manner that was likely to undermine them in public . It analysed the contents of the impugned article as alleging , on the one hand , that PERSON intended to divorce and , on the other hand , that she had close contacts with CARDINAL men , thus describing her as a double adulteress and Mr PERSON as a deceived husband . In reply to the applicant company ’s defence that the article merely reported on a rumour , ORG noted that even the dissemination of a rumour could breach section CARDINAL of LAW , if it conveyed the impression that there was some truth in it .

As to the applicant company ’s request to take evidence in order to show that the rumour had actually been spread at the time , the court noted that in cases concerning an infringement of the strictly personal sphere of a person ’s life , section QUANTITY of LAW excluded the proof of truth ( GPE ) , unless the statement at issue was directly related to public life . Such a direct link would exist , for instance , where a publication reported on the state of health of the Federal President which might prevent him from exercising his functions . However , the state of his marriage did not have any bearing on his capacity to exercise his functions nor did it have any other link with public life .

NORP In assessing the amount of compensation , ORG had regard to the fact that PERSON was a widely read newspaper and to the considerable degree of insult suffered by the claimants . In addition it noted that it was highly uncommon in GPE to report on ( true or untrue ) details of the private lives of politicians . Having regard to the above considerations and the need to deter other media from making similar publications , a relatively large amount of compensation appeared justified . The difference in the sums awarded was to the fact that the second claimant was described as a double adulteress , while the first claimant was “ merely ” depicted as a deceived husband .

The applicant company appealed . As a point of law it submitted that ORG had wrongly refused its request for the taking of evidence . In its view the publication was directly related to public life within the meaning of section CARDINAL § CARDINAL of LAW . The claimants , being public figures , had made their private life part of their “ marketing strategy ” . Like no other presidential couple before , they had kept the public informed about their marriage , starting with the first claimant ’s divorce from his former wife and his remarriage , to the second claimant . Moreover , the first claimant had relied heavily on family values during his first electoral campaign . He therefore had to accept that the public had an interest in being informed about his private life .

As regards points of fact , the applicant company argued that ORG had wrongly assessed the contents of the article at issue . Read in its proper context , the article did not state that PERSON actually intended to divorce and even less that she was an adulteress . On the contrary the article rather aimed at exposing the idle gossip propagated in certain upper - class circles . It clearly pointed to the absurdity of the rumour by explaining that the allegedly close ties of the second claimant with Mr Scheibner and with the husband of the NORP ambassador had perfectly unsuspicious reasons . Seen in that light , the article did not even relate to the strictly personal sphere of the presidential couple but made fun of the gossip in bourgeois society .

As regards the sentence the applicant company claimed that the compensation awards were excessive .

While the appeal proceedings were pending , Mr PERSON died . By decision of DATE ORG discontinued the proceedings as regards PERSON . On DATE ORG ( Oberlandesgericht ) , on an appeal brought by PERSON ORG ’s estate , quashed ORG decision .

By a judgment of DATE ORG upheld ORG judgment of DATE .

It confirmed that in the present case , the proof of truth was excluded by section CARDINAL § CARDINAL of LAW . The applicant company ’s argument that the claimants were public figures and had exposed their private and marital life to the public eye like no other presidential couple before was not convincing . While the first claimant had relied on his family life and on his then marriage in his first campaign DATE , his marriage with PERSON had not played a role in his second campaign nor otherwise during his second period in office . Moreover , his second and last period in office had been drawing to a close at the time of the publication . In sum , ORG had rightly found that the publication at issue was not directly related to public life . Consequently , it had rightly refused to take the evidence proposed by the applicant company .

There was no basis for the applicant company ’s assertion that the article was aimed at unveiling the hypocrisy of the so called upper crust of NORP society or that it described the rumours about the PERSON marriage as absurd . ORG had rightly understood the article ’s contents as conveying rumours about the Federal President ’s marriage as if there was some truth in them .

Finally , as regards the amounts granted in compensation , ORG found that deterring other media from similar publications was not a relevant criterion . Nevertheless the other considerations relied on by ORG justified the compensation awards .

On DATE Mr Scheibner brought proceedings under sections CARDINAL and CARDINAL of LAW against the applicant company in respect of the electronic version of the article , which had been published on the website of PERSON and in respect of the print version . He alleged that the passage referring to him contained an untrue statement amounting to defamation .

By judgment of DATE ORG ordered the applicant company to pay ORG CARDINAL,CARDINAL to PERSON as compensation for the publication in the printed version of PERSON and LAW as compensation for the publication on the website . Furthermore , the court ordered the applicant company to publish its judgment and to reimburse the claimant ’s costs .

The court , arguing along the same lines as in its judgment of DATE ( see paragraphs CARDINAL above ) , held that the applicant company had reported on the strictly personal sphere of the claimant ’s life in a manner that was likely to undermine him in public . It analysed the contents of the impugned article as alleging that the claimant , PERSON , who was a married man , had a close relationship with PERSON and therefore described him as an adulterer . Thus , his strictly personal sphere was affected . However , it found that the publication did not amount to defamation within the meaning of LAW ) .

As to the amount of compensation it considered that the insult as regards PERSON weighed less heavily than as regards the claimants in the first set of proceedings . In sum , compensation awards of ORG CARDINAL,CARDINAL as regards the publication in the paper version of PERSON and LAW for the publication on the website , which was less widely read , appeared appropriate .

The applicant company and PERSON appealed , whereby the applicant company relied on the same grounds as in its appeal in the previous set of proceedings .

On DATE ORG dismissed the applicant company ’s appeal but partly granted PERSON appeal . It held that the impugned statement also breached LAW , since it fulfilled the objective elements of defamation as defined in LAW . The claimant was accused of adultery , which even in a liberal society was still considered an unlawful and dishonourable act . It considered however , that this had no influence on the amount of compensation to be paid , which was therefore upheld .

As to the applicant company ’s appeal , ORG again confirmed ORG reading of the contents of the article . It added that the placement of the article in the domestic politics section and its presentation including the picture of the presidential couple supported this assessment . Furthermore , the appellate court noted that the applicant company had not argued before ORG that the publication was directly related to public life within the meaning of LAW of LAW .

In any case , PERSON , though a public figure , had a right to respect for the strictly personal sphere of his life . Rumours about an alleged relationship between him and the wife of the Federal President had no link with his public functions and responsibilities and did therefore not justify the reporting at issue .

Once the judgment of ORG had become final , Mr Scheibner brought proceedings under LAW ( ORG ) requesting an injunction ordering the applicant company to refrain from publishing any statement alleging that he had a relationship with PERSON .

At the hearing of DATE before ORG ( ORG ) , the applicant company entered into a settlement with PERSON undertaking to refrain from publishing any such statement . ORG noted that according to constant case - law , a judgment under LAW had binding effect in subsequent civil proceedings relating to the same facts . It ordered the applicant company to pay PERSON procedural costs .

ORG judgment was served on the applicant company ’s counsel on DATE . The applicant company did not appeal .

Section CARDINAL of LAW provides for the strict liability of the publisher in cases of defamation ; the victim can thus claim damages from him . In this context “ defamation ” has been defined in LAW ) , as follows :

“ ( CARDINAL ) Anybody who , in such a way that it may be noticed by a third person , attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding DATE or a fine ...

( CARDINAL ) Anyone who commits this offence in a printed document , by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public , shall be liable to imprisonment not exceeding one year or a fine ...

( CARDINAL ) NORP The person making the statement shall not be punished if it is proved to be true . In the case of the offence defined in paragraph CARDINAL he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true . ”

Section CARDINAL of LAW provides a claim for damages in cases of interference with the strictly personal sphere of an individual ’s life . In the version in force at the material time , it read as follows :

“ ( CARDINAL ) If the strictly personal sphere of an individual ’s life is discussed or portrayed in the media in a way liable to publicly undermine the individual concerned , he or she shall have the right to claim compensation for the damage sustained from the media proprietor ( publisher ) . The amount of compensation may not exceed QUANTITY ; ...

( CARDINAL ) The right referred to in paragraph CARDINAL above shall not apply where :

( i ) the statements comprise an accurate account of a debate held during a public sitting of ORG , ORG , ORG , a regional parliament or a committee of CARDINAL of these general representative bodies ;

( ii ) the statements published are true and are directly related to public life ;

( iii ) it can be assumed from the circumstances that the person concerned had agreed to publication , or

( iv ) the statements were made during a live broadcast , and no employee or representative of the broadcaster failed to exercise proper journalistic care . ”


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms);Non-pecuniary damage - award

Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lives in ORG .

On DATE criminal proceedings were initiated in respect of the applicant , mayor of the rural municipality ( vallavanem ) of GPE at the material time . He was suspected of demanding bribes ( pistise võtmine ) under LAW of LAW ( Karistusseadustik ) . Supposedly , he had invited L. , a representative of PERSON , a private limited company , to participate in a call for tenders for renovation work on port buildings and on the local museum . Allegedly , he had proposed to ensure the success of PERSON bids in return for MONEY of the sum of the transactions being paid to him after the receipt by the company of the municipality ’s pre - payment .

On DATE a prosecutor gave an authorisation ( jälitustoimingu luba ) ( authorisation LÄRP CARDINAL/CARDINAL ) for covert surveillance of the applicant . The authorisation was for DATE surveillance and was valid from CARDINAL DATE .

According to a surveillance report dated DATE , covert surveillance of the applicant had been carried out on DATE . The applicant had met PERSON , who had given him a plastic bag which he had put into his pocket . A video recording of the event was appended to the surveillance report .

On DATE the prosecutor gave another authorisation for the application of surveillance measures in the criminal case , but apparently no measures were applied on the basis of that authorisation .

On DATE the President of ORG authorised wiretapping , covert observation and audio recording of the applicant ’s conversations with PERSON The authorisation was for CARDINAL days’ surveillance and remained valid until DATE .

According to a surveillance report dated DATE , undercover audio recordings of conversations between the applicant and PERSON had been made on DATE and DATE . The audio recordings and extracts of the transcripts of the conversations were attached to the surveillance report .

On DATE the applicant and PERSON were arrested by the police while they were meeting in the applicant ’s car . Their arrest was video recorded . The recording showed that a plastic bag containing CARDINAL kroons ( EEK ) ( MONEY ( ORG ) ) and a bank receipt made out to PERSON were found in the glove compartment of the applicant ’s car .

The applicant denied the charges . He was kept in pre - trial custody until DATE . PERSON , who was charged with paying bribes and PERSON ( the manager of PERSON ) , who was charged as an accessory , pleaded guilty and were not taken into custody .

On DATE the prosecutor refused to give the applicant access to the information collected as a result of the application of the surveillance measures because doing so could prejudice the criminal proceedings or give rise to a criminal offence .

On DATE , after the applicant had been acquainted with the criminal case file , he asked the public prosecutor to have the prosecutor ’s and judge ’s decisions authorising the application of surveillance measures attached to the criminal case file so that the lawfulness of the surveillance activities could be assessed . On DATE the prosecutor replied that the authorisations for the surveillance activities were kept in the surveillance file ( jälitustoimik ) and were not to be included in the criminal case file : only the surveillance reports , together with appendices , were to be included in the latter file .

DATE , the prosecutor drew up an indictment . According to the charges set out therein , the applicant had invited PERSON to participate in a call for tenders for renovation work on port buildings and , on another occasion , on the local museum . The applicant had asked for , and had received , EEK CARDINAL kroons ( EUR CARDINAL ) and EEK CARDINAL ( ORG CARDINAL ) , respectively , for ensuring the success of PERSON ’s company ’s bids .

On DATE the applicant again made a request to the prosecutor concerning the surveillance measures . He emphasised that being able to review the authorisations for the surveillance measures was required in order to assess the lawfulness of the evidence which had been taken from the surveillance file for use in the criminal case file . Furthermore , he inquired whether additional information had been obtained as a result of the application of the surveillance measures , and requested access to it if such information existed , so that , like the prosecution , he could adduce parts of it as evidence .

On DATE the prosecutor dismissed the request , noting that only information of an evidential nature ( tõendamiseseme asjaolud ) had been included in the criminal case file .

On DATE the applicant applied to ORG to have the authorisations for the application of the surveillance measures included in the criminal case file . He also noted that the prosecution had had the opportunity to choose information which they considered relevant from the surveillance file , and claimed that the principle of the equality of arms required that he too be given access to the totality of the information gathered with the use of the surveillance measures . He requested that the court order ORG to grant him such access .

On DATE the applicant , together with L. , NORP and PERSON , was committed for trial by ORG .

At hearings on DATE and CARDINAL DATE the applicant repeated his requests concerning the surveillance authorisations . He also raised concerns that PERSON had acted with the knowledge and under the guidance of the police . At the hearing on DATE a police officer , PERSON , was examined at the request of the applicant ’s counsel , who put a number of questions to him about various procedural acts carried out during the preliminary investigation .

On DATE the court granted the application . It ordered that the applicant ’s counsel be granted access to the surveillance information collected in the criminal case . It further instructed the police to submit to the court the surveillance authorisations ( prosecutor ’s authorisation LÄRP ORG and the authorisation given on DATE by the President of ORG ) .

On DATE the applicant ’s counsel informed ORG that the police department in possession of the surveillance file had refused to give him access , arguing that under applicable legislation the applicant ’s counsel could have access only on the basis of a power of attorney given by the applicant and authenticated by a notary . Counsel asked the court to amend its decision so that both he and the applicant would be granted access .

On DATE ORG again ordered the police to grant the applicant and his lawyer joint access to the material gathered as a result of the application of the surveillance measures . The court also reiterated that the police had been instructed to present the surveillance authorisations to the court .

On DATE a police superintendent decided that the applicant , but not his lawyer , could have access to the materials on which the charges against him were based .

At a court hearing on CARDINAL DATE the applicant ’s lawyer informed the court that the police had refused to comply with the court order and that the applicant considered that his defence had been seriously compromised . The public prosecutor considered that the decision of the police superintendent should be quashed . She quashed it on DATE . At the same hearing , the court announced that it had in the meantime examined the surveillance authorisations . According to the record of the hearing , the judge briefly summarised prosecutor ’s authorisation LÄRP ORG of CARDINAL DATE and the authorisation given on DATE by the President of ORG . The hearing was adjourned so that the applicant and his lawyer could examine the materials gathered by the surveillance measures .

On DATE at the police department ’s premises the applicant and his counsel were given access to the prosecutor ’s authorisation LÄRP CARDINAL/CARDINAL of DATE and the authorisation given on DATE by the President of ORG . The police superintendent in charge informed ORG that the applicant ’s counsel had not wished to examine the other materials collected with the use of the surveillance measures because the materials were the same as those included in the judicial criminal case file .

At a court hearing on CARDINAL DATE the applicant ’s counsel submitted that at the police department ’s premises they had been invited to examine the same materials that were to be examined at court and that no access to other information had been given . He argued that the undercover recordings were not admissible as evidence and reiterated that the prosecutor had had a better opportunity to select and present the evidence collected through surveillance . He reiterated the concern that PERSON had collaborated with the police .

At a court hearing on DATE the prosecutor noted that at the hearing on CARDINAL DATE the court had erred in referring to the number of the surveillance authorisation issued by the prosecutor . In the meantime , the authorisation had again been presented to the court . The court specified that prosecutor ’s authorisation LÄRP CARDINAL/CARDINAL had been issued on DATE . The applicant raised the issue of confusion – not only in respect of the numbers of the surveillance authorisations but also as concerned the dates when they had been issued . He asked that the court order the prosecutor to present the authorisations at the hearing . The prosecutor contended that surveillance authorisations were not normally included in the judicial case file but in the circumstances she considered it appropriate to admit the authorisations to the file . After a short break , the prosecutor procured and presented at the hearing prosecutor ’s authorisation LÄRP CARDINAL/CARDINAL ( issued on DATE ) and authorisation LÄRP CARDINAL/CARDINAL issued by the President of ORG ( issued on DATE ) . These authorisations were admitted to the case file . The prosecutor and the court confirmed that the authorisation of CARDINAL DATE had been presented to the court but no surveillance activities had been carried out on the basis of it . The applicant ’s request for submission and inclusion in the case file of the latter authorisation was dismissed .

On DATE the ORG convicted the applicant as charged and gave him a suspended prison sentence of DATE and DATE . Both PERSON and his company ( PERSON ) were convicted of paying bribes . Proceedings in respect of O. were discontinued , due to the minor nature of her guilt and the lack of public interest in the continuation of the proceedings in her respect . A similar request by the prosecutor in respect of PERSON was rejected by the court .

The court relied on the statements of L. and NORP , both of whom had pleaded guilty to giving the applicant EEK CARDINAL ( EUR CARDINAL,CARDINAL ) in CARDINAL instalments . PERSON ’s statements were corroborated by the statements of ORG , who had withdrawn the money from a cash dispenser and a bank so that PERSON could hand it over to the applicant . The court considered it improbable that PERSON and O. would have each given incriminating statements both in respect of themselves and the applicant without there being some basis for such statements . None of the accused had stated that they held a grudge against any of their co - defendants .

In respect of the first count of paying bribes , the court further relied on a video recording of PERSON meeting the applicant and giving him a plastic bag , which the latter put into his pocket . According to a surveillance report dated DATE , the covert video recording had been authorised by the prosecutor . The court observed that the prosecutor ’s authorisation had been given on DATE ; had been for DATE surveillance ; and had been valid from DATE . The court found no reason to consider the surveillance activity unlawful or untrustworthy : it had been carried out on DATE falling within the authorised period . The court additionally relied on a bank statement , according to which the money in question had been withdrawn shortly after the applicant ’s company had received an advance payment from the municipality . Shortly after the withdrawal , PERSON had given the money to the applicant . The court also examined CARDINAL audio recordings seized from L. The recordings included PERSON ’s conversations with the applicant , from which it could be understood that they had agreed on the payments and that PERSON had given the applicant EEK CARDINAL .

In respect of the second count of paying bribes , the court heard several witnesses DATE officials of the municipality and representatives of companies on behalf of whom PERSON had made fictitious bids so that his own company ’s bid would be the best one . The court also heard undercover audio recordings made on DATE and DATE on the basis of an authorisation given on DATE by the President of ORG . It noted that it had no grounds to doubt that the surveillance authorisation was lawful . The recordings were of conversations between PERSON and the applicant and included references to specific sums of money . Furthermore , a video recording of the applicant ’s and PERSON ’s arrest on DATE was played back at the hearing , showing that a plastic bag containing EEK CARDINAL and a bank receipt made out to PERSON were found in the glove compartment of the applicant ’s car . Several further items of documentary evidence and witness statements were also relied on .

The applicant denied the charges and appealed against ORG judgment . He argued , inter alia , that he had not been given access to all the information gathered as a result of the application of the surveillance measures , and that this had violated the principle of the equality of arms and his defence rights . He further complained about the confusion in the dates and numbers of the authorisations for the application of the surveillance measures . The court had been presented – outside the hearings DATE with CARDINAL prosecutor ’s authorisations dated CARDINAL and DATE which had apparently borne the same number .

In respect of the authorisation given on DATE by the President of ORG , the applicant noted that it had been for CARDINAL days’ surveillance and had remained valid until DATE . He pointed out that audio recordings had been made on the basis of that authorisation on DATE and DATE . As the applicant had not been given access to the totality of the information gathered as a result of the application of the surveillance measures , it had been impossible to establish whether the application of the measures in question had in fact been limited to the authorised DATE . He pointed out that the period between the first ( DATE ) and the last ( DATE ) undercover recording had been DATE . ORG had only noted that it had had no grounds to doubt that the surveillance authorisation had been lawful but it had not given an opinion in its judgment on the lawfulness of the surveillance activities , namely whether the authorised DATE period had been exceeded .

The applicant also reiterated his concern that PERSON had acted in the interests and under the guidance of the police .

The prosecutor argued that the court had examined the lawfulness of the evidence obtained with the use of the surveillance measures by all means at its disposal and pointed out that pursuant to LAW the court had had the ability to examine information obtained through surveillance if it so wished . Therefore , the applicant ’s argument that the judge had examined the surveillance activities outside the hearings was inappropriate : the court had fulfilled its tasks and had demonstrated an appropriate level of interest in the information related to the criminal case .

On DATE ORG upheld ORG judgment . It considered that the applicant ’s conviction was in any event safe , even if the evidence challenged by the defence was set aside .

ORG found that there were no convincing reasons to think that PERSON had co - operated with the police ; the fact that he had been charged with an offence rather confirmed that the police had received information from third parties , in whose interest it was that parts of the surveillance information were kept secret . ORG found that the applicant ’s right to an adversarial trial had not been infringed owing to the fact that the prosecutor – but not the defence – had had access to the totality of the information gathered with the use of surveillance measures . It considered that there was no reason to overload the criminal case file with irrelevant information . The rights of the defence had not been violated in so far as the prosecutor had not adduced the information in question as evidence against the applicant . Nor had ORG relied on evidence that had not been examined at court hearings .

In a situation where ORG had examined the lawfulness of the evidence obtained on the basis of LAW outside the hearings , ORG considered that the worthiness and integrity of ORG had to be presumed . Pursuant to LAW , judges had access to ORG secrets . ORG had not examined the surveillance materials secretly ; rather , it had subsequently recorded its examination in a record of a court hearing .

ORG was satisfied that ORG had examined the surveillance authorisations . For its part , it analysed at length the content of the authorisations and the surveillance activities carried out on their basis and held that there could be no doubt that the surveillance authorisations had been given retroactively . It further found that since no surveillance activities had been carried out on the basis of the authorisation of DATE and since the authorisation had not been used as evidence , there had been no reason to admit that authorisation to the case file .

In his subsequent appeal to ORG the applicant noted , inter alia , that he had been unaware during the proceedings before ORG that , between the public hearings , the court had examined not only the surveillance authorisations but also the other surveillance materials . He argued that if this had been the case ( as asserted by the prosecutor in ORG and stated in ORG judgment ) , the requirements of a public hearing and an adversarial trial had been breached .

In her reply to the applicant ’s appeal , the prosecutor , inter alia , explicitly stated that in the present case the judge of ORG had examined the surveillance authorisations and the surveillance file .

On DATE ORG declined to hear the applicant ’s appeal .

Article CARDINAL of the Code of Criminal Procedure ( ORG seadustik ) provides that information obtained by surveillance activities is admissible evidence if such information has been obtained in compliance with the requirements of law .

Pursuant to LAW , a surveillance authorisation ( jälitustoimingu luba ) may be given by a preliminary investigation judge or a prosecutor , depending on the type of surveillance activity in question .

Article CARDINAL of the Code provides that a surveillance report shall contain , inter alia , information obtained through the application of the surveillance measures . Photographs , films , audio and video recordings are to be annexed to the report if necessary .

Article CARDINAL of the Code concerns covert surveillance and Article CARDINAL deals with wiretapping , covert interception and observation of information . Both ORG stipulate that information obtained through the application of the relevant surveillance measures shall be entered in the surveillance report in so far as necessary for the adjudication of the criminal case ( LAW and LAW , respectively ) .

Article CARDINAL § CARDINAL of the LAW provides that at the request of the person concerned , he or she is to be permitted to examine the materials of the surveillance activities conducted with regard to him or her . Nevertheless , in certain cases such information can be withheld with the permission of the prosecutor . Such cases include , inter alia , instances where : the information concerns the private lives of other persons ; its disclosure may damage the rights and freedoms of other persons ; it concerns ORG secrets ; its disclosure may endanger the life , health , honour , dignity or property of an employee of a surveillance agency , of a person who has been engaged in surveillance activities or who has been recruited for surveillance activities , or the confidentiality of the latter ’s co - operation with a surveillance agency ; or where disclosure may prejudice criminal proceedings or give rise to a criminal offence . Information can also be withheld if it can not be separated or disclosed without the information referred to above becoming evident .

Section CARDINAL(CARDINAL ) of LAW ( NORP seadus ) obliges surveillance agencies to protect persons involved in surveillance activities and , inter alia , ensure the secrecy of their co - operation .

Section DATE ) of LAW stipulates that information collected in the course of surveillance proceedings shall be stored in a surveillance file ( jälitustoimik ) .

Section CARDINAL(CARDINAL ) of LAW provides that the use of surveillance information as evidence in a criminal case must not bring about disclosure of the secret surveillance information or the identity of persons who have been engaged in surveillance activities or recruited therefore without their consent .

Pursuant to section PERSON ) of LAW a person ’s right to examine the materials concerning the surveillance activities carried out in respect of him or her can be restricted on grounds similar to those provided for in LAW ( see paragraph CARDINAL above ) .

Section CARDINAL of LAW provides that everyone may file a complaint with the head of a surveillance agency or its superior agency or with ORG against the activities of the surveillance agency upon the conduct of surveillance activities . Furthermore , everyone has the right of recourse to a court if his or her rights and freedoms have been violated by surveillance activity .

Section CARDINAL - CARDINAL(CARDINAL ) of LAW ( ORG seadus ) , as in force at the material time , provided that information collected by surveillance agencies on the basis of ORG CARDINAL to CARDINAL of the Code of Criminal Procedure , and the methods , tactics and technical equipment used for collection thereof to the extent to which such information could be used as evidence , were ORG secrets classified as “ restricted ” .

Pursuant to section CARDINAL(CARDINAL)(CARDINAL ) of the State Secrets Act judges had the right of access to ORG secrets .

Section CARDINAL of LAW provided that participants in criminal proceedings had the right of access to ORG secrets classified as “ restricted ” , “ confidential ” or “ secret ” , on the basis of a reasoned order of a preliminary investigator or prosecutor or a court ruling , if access was unavoidably necessary for the adjudication of the criminal case . Access could not be granted if this jeopardised the performance of the duties of protection and secrecy provided for in section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL above ) and to ORG secrets classified as “ top secret ” .

In a judgment of CARDINAL DATE ( case no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL ) ORG noted that it proceeded unequivocally from LAW that any violation in collecting information through surveillance excluded the admissibility of such information as evidence .

In a judgment of DATE ( case no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL ) ORG reiterated that any violation in the process of collecting evidence through the application of surveillance measures automatically resulted in the inadmissibility of such information as evidence . It held that all parties to court proceedings had to be able to verify whether LAW had been complied with . Thus , upon the receipt of a request of a party for the assessment of the legality of a surveillance activity , the court was obliged to verify the existence of an authorisation by a court or ORG , and identify whether the information used as evidence had indeed been obtained in the course of the authorised activity and during the authorised period . ORG noted that when determining the legality of surveillance , the court had to ensure the protection of the ORG secret which served as the reason for the prohibition of disclosure of the materials of the surveillance file at a court hearing . However , the court could disclose its opinion on the lawfulness of the surveillance . The disclosure of the court ’s opinion in this regard to the parties had to be recorded in the record of the hearing and , if necessary , in the judgment .


Violation of Article 5 - Right to liberty and security

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested and placed in the antiterrorist branch of the GPE police headquarters after , during a road check , police officers saw a photograph of PERSON and the slogans “ ORG ” ( “ Long live President Apo ” ) and “ PERSON NORP ” ( “ Long live NORP ” ) on the screen of the applicant ’s mobile telephone .

On DATE , the applicant made statements to the police and , subsequently , to ORG , which ordered his detention on remand , having regard to the state of the evidence , the applicant ’s statements to the police and the nature of the alleged offence , namely , membership of the ORG ( ORG ) , an illegal organisation .

On DATE the applicant lodged an objection to the remand order . No decision has been taken regarding the applicant ’s objection .

On DATE , the GPE public prosecutor issued a decision finding that he lacked jurisdiction . The investigation file was subsequently transferred to the public prosecutor ’s office at ORG .

On DATE the public prosecutor at ORG charged the applicant with membership of an illegal organisation , LAW .

On DATE ORG ordered the applicant ’s continued detention , having regard to the nature of the alleged offence , the state of the evidence and the date of the initial order for the applicant ’s detention .

On DATE ORG held the first hearing in the case . The applicant ’s representative requested the firstinstance court to release the applicant . The court accepted the request and ordered the applicant ’s release pending trial .

On DATE ORG acquitted the applicant .

A description of the domestic law and practice at the relevant time may be found in GPE v. GPE ( no . CARDINAL , § CARDINAL , CARDINAL DATE ) and ORG v. GPE ( no . GPE , § CARDINAL , CARDINAL DATE ) .


Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and lives in GPE . He is a private entrepreneur who has registered as a payer of the single ( unified ) tax in accordance with LAW “ On LAW no . CARDINAL of DATE , with further amendments ( “ the Presidential Decree ” ) .

DATE , when the applicant imported goods into GPE , he was requested by the customs authority to pay value - added tax ( “ NORP ” ) in accordance with the PERSON “ On Value - Added Tax ” of DATE ( “ the GPE ” ) .

NORP The total amount of the LOC imposed by the customs authorities was CARDINAL NORP hryvnias ( ORG ) . The applicant paid the ORG required .

On DATE the applicant instituted proceedings in ORG against the customs authority and a local department of ORG , seeking recovery of the VAT , arguing that he was covered by the simplified tax regime , as provided by LAW . He specified that according to section CARDINAL of the Law “ On State Support for Small Business ” ( “ the Small Business Act ” ) the simplified system of taxation provided for the replacement of taxes and duties by the single ( unified ) tax . He further claimed that according to paragraph CARDINAL of LAW the single ( unified ) taxpayer was exempt from paying ORG . Therefore , no VAT obligations could arise in the course of his business activity .

On DATE the court rejected the applicant ’s claim as unfounded , stating that the principles established in LAW of LAW were not applicable as regards GPE because the relevant amendments had not been made to LAW as required by section CARDINAL of the latter Act . At the same time , the provisions of Sections CARDINAL and CARDINAL of LAW indicated that the applicant ’s operations were subject to GPE . The court therefore concluded that LAW did not make any exemptions for private entrepreneurs covered by the simplified taxation regime . Moreover , having regard to paragraph CARDINAL of LAW , which laid down the criteria for registering under a simplified system of taxation , the court found that that system provided NORP exemption with respect to sales operations only and did not cover import operations .

The applicant appealed , claiming that paragraph CARDINAL of LAW did not make any distinctions between import and sales operations . He argued that neither type of operation was subject to ORG if a person was registered under the simplified taxation regime .

On DATE the ORG of Appeal quashed the judgment of DATE and found for the applicant , noting that the NORP legislation provided for general and simplified systems of taxation . The latter provided for the substitution of ORG and other taxes and duties by a single ( unified ) tax . As the applicant had been registered under the simplified system of taxation , the first - instance court had wrongly referred to LAW in support of the conclusion that the applicant ’s import operations were subject to GPE . The court of appeal further noted that paragraph CARDINAL of LAW set out only the conditions for applying a simplified taxation regime and did not differentiate between business operations exempt from GPE . At the same time , paragraph CARDINAL of the Presidential Decree provided GPE exemption without any reservation as to the type of business operation .

NORP The customs authority appealed on points of law .

On DATE the Higher Commercial Court quashed the judgment of DATE and upheld the judgment of DATE . It referred to LAW , which provided that both sales and import operations were subject to GPE . The court further referred to paragraph CARDINAL of LAW which , in its opinion , had not merely set out criteria for the application of a special taxation regime , but had also indicated that the single ( unified ) tax was targeting income received from business operations . Accordingly , the court concluded that the NORP exemption established by LAW applied only to sales operations , while import operations fell under the general taxation regime . It further referred to the decision of ORG of DATE in which the same approach had been applied in a similar case .

The applicant appealed to ORG on points of law . He reiterated that paragraph CARDINAL of LAW made no distinction between business operations and provided for a general exemption of single ( unified ) tax payers from the NORP obligations . He further referred to the ORG decision of DATE in which the NORP exemption provided by LAW was interpreted as also covering import operations . He also claimed that under section CARDINAL.CARDINAL.CARDINAL of the Law “ On the Procedure for Payment of Taxpayers’ Liabilities to ORG Purpose Funds ” of CARDINAL DATE ( “ LAW ” ) the courts were obliged to accept the interpretation of domestic law which was the more favourable to a taxpayer .

On DATE a panel of ORG refused to open appeal proceedings in the applicant ’s case .

According to paragraph CARDINAL of LAW , for DATE after the LAW came into effect the President of GPE was empowered to adopt decrees on economic issues not covered by the laws of the ORG .

At the material time section CARDINAL of the Act provided , inter alia , that any physical person or legal entity importing goods with the purpose of using or consuming such goods on the customs territory of GPE should be considered to be a payer of GPE , except for those physical persons who were not registered as GPE payers and who imported goods within the non - taxable limits .

On DATE this provision was amended , providing , inter alia , that it applied to import operations regardless of which taxation regime had been chosen by the importer .

According to sections DATE and CARDINAL of FAC was applicable to both sales and import operations .

Section CARDINAL of the Act provided that changes in the VAT charging regime could be introduced only by amendments to this Act .

Section CARDINAL of the LAW provides that the subjects of small businesses are , among others , physical persons who have registered as private entrepreneurs .

According to LAW , the simplified system of taxation , accounting and reporting may be applied to the subjects of small businesses . The system provides for substitution of taxes and duties by a single ( unified ) tax .

Section CARDINAL.CARDINAL.CARDINAL of the LAW provided that if the norm of the law or another normative legal act issued on the basis of the law , or if the norms of different laws or normative legal acts offered ambiguous or multiple interpretations of the rights and obligations of taxpayers and supervising authorities , the decision taken should be in favour of the taxpayer .

Paragraph CARDINAL of the PERSON provides that a simplified system of taxation , accounting and reporting may be applied to , among others , a private entrepreneur who has employed during DATE a maximum of CARDINAL people under labour contracts and whose DATE income from the sale of products , works and services does not exceed UAH CARDINAL,CARDINAL .

Paragraph CARDINAL of the PERSON provides as follows :

“ Small businesses paying the single ( unified ) tax shall not be considered payers of the following taxes and duties :

value - added tax , except for legal entities which have opted to pay single ( unified ) tax at the PERCENT rate ;

corporate income tax ;

personal income tax ;

land tax ;

duty for special use of natural resources ... ”

On DATE ORG adopted a decision in a dispute between a single ( unified ) tax payer and a customs authority concerning the charging of ORG on import operations . ORG noted that the NORP legislation provided for general and simplified systems of taxation which operated separately . The general system of taxation was regulated by the PERSON “ On the System of Taxation ” of CARDINAL DATE and by the laws dealing with particular taxes and duties . The simplified system of taxation was regulated by LAW and LAW . ORG further found that the plaintiff , having been registered under the simplified system of taxation , was not obliged to pay ORG on import operations because the plaintiff ’s NORP obligations had been replaced by the obligation to pay single ( unified ) tax . ORG therefore overturned the finding of the lower court suggesting that the NORP exemption was not applicable to import operations .

According to the information letter of CARDINAL DATE , ORG recommended the lower commercial courts to take that decision into account in the course of consideration of tax disputes . The decision was also published in the specialised legal journal on commercial jurisprudence .

On DATE ORG adopted another decision in a dispute between a single ( unified ) tax payer and a customs authority concerning the charging of VAT on import operations . ORG noted that LAW provided for application of GPE to sales and import operations . At the same time , according to paragraph CARDINAL of LAW , the application of the simplified system of taxation depended on the amount of income earned from sales operations . ORG therefore concluded that the NORP exemption provided by LAW applied only to sales operations and not to import operations .

By the information letter of DATE , ORG , “ complementing [ its ] information letter of CARDINAL DATE ” , notified the lower commercial courts of that decision . The decision was further published in the specialised legal journal on commercial jurisprudence .