The applicant , PERSON , is a NORP national , born in DATE . He is represented before the ORG by PERSON GPE , a lawyer practising in PERSON . The respondent Government are represented by Ambassador PERSON , Head of ORG of ORG .

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

On DATE the applicant was arrested in GPE and taken into detention with a view to his extradition ( PERSON ) . DATE he was transferred to GPE and remanded in custody by ORG ( PERSON ) on suspicion of murder and aggravated robbery .

On DATE the ORG sitting as an assize court ( Geschwornengericht ) acquitted the applicant of all the charges against him . Upon the pronouncement of the acquittal , the applicant was released . The judgment was served on the applicant on DATE and became final on DATE .

Immediately after the pronouncement of the acquittal , at the same hearing , the applicant requested compensation for his detention on remand .

ORG , with the same composition as above , dismissed the applicant ’s claim . It found that the suspicion against the applicant had not been dispelled and that , thus , the requirements of section CARDINAL ( CARDINAL ) of the Compensation ( Criminal Proceedings ) Act DATE ( ORG DATE - “ the DATE LAW ) were not met . The court ’s decision was served on the applicant after his acquittal had become final .

The applicant lodged an appeal with ORG ( Oberlandesgericht ) . He complained , in particular , that ORG decision violated the presumption of innocence .

On DATE ORG dismissed the applicant ’s appeal . Its decision was served on the applicant ’s counsel on DATE .

On DATE ORG , upon ORG request , ordered the re - opening of the criminal proceedings against the applicant , having regard to new statements by CARDINAL witnesses . Consequently , it quashed the acquittal of DATE . According to section CARDINAL § CARDINAL of LAW , the proceedings were resumed at the stage of preliminary investigations .

On DATE ORG filed the indictment , charging the applicant again with murder and aggravated robbery .

On DATE an international arrest warrant was issued . Currently , the applicant ’s whereabouts are unknown and the criminal proceedings against him are still pending .


CASE OF IURCU v. THE REPUBLIC OF MOLDOVA

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

The applicant was born in DATE and lives in PERSON .

On DATE general elections took place in GPE . The preliminary results of the election were announced on DATE . According to those results , the ruling ORG had narrowly won the elections .

On DATE there was growing discontent , notably in various online forums , with the results of the elections and with alleged electoral fraud . At TIME CARDINAL people , mostly young , gathered in front of the monument to PERSON ( Ştefan cel Mare ) in the centre of PERSON . TIME there were already CARDINAL people assembled , and they began to protest against the alleged electoral fraud , doing so in front of ORG and ORG buildings and then returning to ORG . A bigger demonstration was then announced for CARDINAL a.m. DATE .

On DATE the protest resumed , with the participation of CARDINAL people . Although the demonstration was peaceful at the beginning , CARDINAL of the participants gradually became violent . It was established by the subsequently created parliamentary inquiry commission tasked with the elucidation of the causes and consequences of the events following the general elections held on DATE in GPE ( “ the Commission ” ) , that CARDINAL incidents of poorly planned intervention by a fire truck and riot police had brought the crowd to a point beyond which mass acts of violence could no longer be prevented . Following violent attacks and stone throwing , which met with very weak police resistance , CARDINAL violent protesters were eventually able to take over the lower floors of ORG and ORG buildings . They looted those floors and set the canteen in FAC alight . During TIME , several fires broke out in the ORG building , some of them after full control over the building was recovered by the authorities at CARDINAL p.m.

At TIME on DATE , various police and special forces units began a massive operation aimed at re - establishing public order . However , according to the Commission , excessive force was used and all those still present in the main square were arrested , regardless of whether or not they had acted violently . The arrests continued for DATE . The media reported cases , and showed video footage of young people being arrested and/or beaten by both uniformed police and plain - clothes officers in the city centre on DATE and thereafter , long after the protests had ended on TIME DATE .

According to the applicant , who was DATE at the time , during TIME DATE he was returning home from a birthday party and was walking along the main boulevard in PERSON . At TIME he was stopped by a group of persons wearing military uniforms and was ordered to lie on the ground and put his hands on his head . The applicant complied and received numerous kicks and baton blows to his body and head . He screamed with pain and shouted that he was DATE . He was then released and ordered to go home . He began to run but after QUANTITY was stopped again by a group of persons wearing black clothes and balaclavas and was again ordered to lie down . He was again kicked and beaten with batons and received , inter alia , a kick to the area of his right eye . He was then forced into a pickup truck together with other young persons and taken to a police station .

At the police station he and many other persons were placed in the basement and forced to kneel with their hands on their heads for TIME . He was approached once by a police officer , who punched him in the back and ordered him to straighten up .

The Government accepted the facts relating to the applicant ’s arrest and detention . They did not , however , endorse the applicant ’s allegations concerning the ill - treatment , submitting that they only accepted the version of the facts established in the criminal proceedings at the domestic level .

On DATE , at CARDINAL a.m. , the applicant was taken to an office for questioning . The questioning lasted for TIME , during which he was asked about his involvement in DATE demonstrations .

At TIME , the applicant was taken by car to a centre for the temporary detention of minors , where he was placed , together with numerous other youths , in a small room with CARDINAL beds . He and many of the others slept on the floor . DATE , the applicant felt unwell because of the injury to his face and received medical assistance from a doctor . According to a medical report issued by that doctor at DATE , the applicant had bruises on his back , and bruising to the soft tissues around his right eye . At TIME the applicant was taken to an office , where he explained to a woman the reason why he had had to spend TIME at the centre . At TIME his mother took him home . It appears that she had been informed of his whereabouts at TIME on DATE .

On DATE national television presented a news item concerning the events of DATE . The applicant and the group of youths with whom he had been detained at the centre for the temporary detention of minors were presented as being the persons responsible for the disorder and the devastation to the ORG building and FAC .

After his release , the applicant often felt pain in the region of his kidneys and had headaches . On DATE he sought medical assistance at the “ LOC ORG , a non - governmental organisation financed by ORG and a member of ORG of ORG ( ORG ) . He appears to have undergone detailed medical tests and examinations by various medical specialists . ORG issued a report which stated , inter alia , that the applicant had suffered cranial trauma and experienced psychological problems typical of victims of torture .

On DATE the applicant lodged a criminal complaint with ORG , complaining about his ill - treatment on DATE .

On DATE the ORG dismissed the applicant ’s criminal complaint as ill - founded , without formally initiating a criminal investigation . After a preliminary examination of the facts of the case , it found that the applicant had been taken to the police station on TIME DATE for being a vagrant minor and not because of his involvement in the violent demonstrations of DATE . He was later taken to the centre for the temporary detention of minors . A police officer present at the police station that TIME stated that the applicant had not been ill - treated . Therefore , ORG found that the applicant ’s account of his alleged ill - treatment was not credible . Moreover , according to the prosecutor ’s office , he would have had more bruises on his body if he had indeed been ill - treated in the manner in which he claimed .

The applicant appealed against the prosecutor ’s decision to ORG , which , on DATE , quashed the prosecutor ’s decision . The court found , inter alia , that ORG had not explained how the injuries found on the applicant ’s body after his arrest and detention had been caused , and that the preliminary investigation had been incomplete .

On DATE a criminal investigation was formally initiated for the first time and on DATE the applicant was recognised as having victim status in the criminal proceedings .

On DATE a police officer from the police station where the applicant was taken on TIME DATE was questioned . It does not appear from the materials submitted by the parties that any other measures have been taken in the criminal proceedings to date .

The relevant non - Convention material was summarised in GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) .


Remainder inadmissible;Violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Manifest religion or belief);Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Mihai Poalelungi

The applicant was born in DATE and lives in GPE .

The applicant is a GPE ’s Witness . From DATE he attended various GPE ’s Witnesses religious services .

On DATE the applicant was registered as a person liable for military service with ORG . Because the applicant was studying at the university , his military service was postponed .

On DATE the applicant received notice to appear at the military commissariat to report for military service .

On DATE the applicant wrote a letter to the Malatia - Sebastia District Military Commissariat , stating that he would not report for military service and requesting that his case be sent to ORG . The applicant also informed ORG in writing that he refused to perform military service because of his religious beliefs but was willing to perform alternative civilian service .

On DATE the Shahumyan Military Commissar wrote to the relevant police station about the applicant ’s refusal to report for military service , asking that he be forcibly brought to the military commissariat .

On DATE the applicant made a statement at the police station , explaining that he refused to perform military service because of his religious beliefs but was willing to perform alternative civilian service .

By a letter of CARDINAL DATE ORG of GPE informed the applicant that he would face criminal charges if he failed to report for military service .

On DATE criminal proceedings were instituted under LAW of LAW on account of the applicant ’s draft evasion .

On DATE the applicant was questioned at ORG of GPE . He once again submitted that he was refusing to serve in the army for religious reasons but was prepared to perform alternative civilian service .

On DATE LOC of GPE ordered that the applicant be detained on remand .

On DATE ORG of GPE found the applicant guilty of draft evasion and sentenced him to DATE in prison .

On an unspecified date the applicant lodged an appeal .

On DATE ORG upheld the judgment of ORG .

On DATE the applicant lodged an appeal , arguing , inter alia , that his conviction violated his rights guaranteed by LAW .

On DATE ORG upheld the applicant ’s conviction .

On DATE the applicant was released on parole after having served DATE and DATE of his sentence .

For a summary of the relevant domestic provisions see the judgment in the case of PERSON v. GPE ( [ ORG ] , no . CARDINAL , § § DATE , DATE ) .


Preliminary objection dismissed (estoppel);No violation of Art. 5-5

Gaukur Jörundsson;Luzius Wildhaber;Paul Mahoney

The applicant was born in DATE and lives in PERSON ( PERSON ) . He was formerly the technical director , technical and economic adviser and special representative and agent of a company , X.

On an unspecified date a preliminary investigation was opened in respect of the applicant on the suspicion of abuse of official authority and corruption , offences which he had allegedly committed in the performance of his duties in DATE .

On DATE the public prosecutor attached to ORG applied for the applicant to be placed either in pre - trial detention or under house arrest , or prevented from discharging his duties as a director of ORG , on the ground that CARDINAL witness statements and an opinion prepared by an expert , Z , in the course of the preliminary investigation provided substantial evidence of his guilt . The content of the statements and of the expert opinion had been corroborated by other documents . The applicant appeared to have commissioned Y , the head of ORG town - planning department , as chief engineer for the construction of a road ( “ Strada dei Pittachi ” ) and as assistant project manager for the construction of a new detention centre in GPE . The appointments were alleged to have been a “ payment ” from the X company to Y for having issued false declarations in the approval procedure relating to the plans submitted by the X company for the road project .

The public prosecutor further explained that , as the applicant had kept his post in the X company , there was a danger that he might commit other similar offences .

On DATE the Brindisi investigating judge ( giudice per le indagini preliminari ) issued a warrant for the applicant 's arrest on the ground that there was substantial evidence of his guilt ( gravi indizi di colpevolezza ) , as referred to in the public prosecutor 's application of CARDINAL DATE .

Regarding the grounds for imposing this precautionary measure , the judge noted that the applicant had kept his post as technical director of the X company , as the public prosecutor had mentioned in his application . The judge considered , inter alia , that in order to decide which precautionary measure was most suitable in the applicant 's case , he had to take into account the nature of the conduct under examination . The worst aspects of the applicant 's conduct were that he had failed to observe the rules of administrative procedure , had wasted public funds and had infringed the provisions governing public tendering . The result had been a project that showed no respect for the environment – a very serious failing , as the judge explained :

“ ... the chaotic and unliveable character of southern NORP cities is not caused solely by the spread of petty crime but stems primarily from the pattern of urban growth ( the absence of any effective regulation , resulting in a lack of adequate public areas for parking , gardens and relief roads ; this unease is tangibly felt in all parts of GPE ) . Abuses relating to the management and spending of public funds , such as those committed in FAC , must be regarded as being just as serious as possession of a firearm with its serial number removed or the conduct of a drug addict who robs a tobacconist of MONEY at gunpoint or with the help of accomplices , as often happens in GPE . In view of the legislature 's intention to counter the risk to society in such cases by the most stringent precautionary measure – detention DATE that measure is all the more justified in the far more serious case under investigation and must be considered appropriate and necessary , even if it is not expressly required by LAW [ ' the ORG ' ] in circumstances of this kind . Otherwise , the difference in treatment would be unjustifiable , and therefore unjust . ”

The judge concluded that in cases such as the present one , “ where each act , firstly , is intended to serve reprehensible private interests and , secondly , is committed by persons who enjoy or should enjoy an excellent reputation because of the powers and/or responsibilities which they exercise , recourse must be had to the measure of detention ( and not that of house arrest , which is very convenient – especially for someone like the suspect who is used to living indoors DATE and not sufficiently deterrent ) . ”

The applicant was arrested on DATE .

On DATE the applicant applied to ORG to be released or , failing that , placed under house arrest , arguing that there was not “ substantial evidence of [ his ] guilt ” within the meaning of Article CARDINAL of the ORG and that there were no grounds whatsoever for imposing precautionary measures .

CARDINAL

Lastly , the applicant drew the court 's attention , in particular , to the settled NORP case - law to the effect that , where a precautionary measure was being considered a long time after the offence had been committed , the suspect 's conduct in DATE had to be taken into account . In his case , he had not been accused of or charged with any similar or different offence in DATE following the acts of which he was suspected .

Following a hearing on DATE , the court held in a decision of CARDINAL DATE that there was undoubtedly “ substantial evidence ” of the applicant 's guilt . It further held : “ There is undeniably a danger that the suspect might commit further offences within the meaning of LAW ( c ) of the ORG , seeing how he succeeded in unlawfully attaining the economic ends in question . ” It therefore refused the applicant 's application for release . However , since he had no criminal record , the court allowed his alternative request and placed him under house arrest .

On DATE the applicant appealed on points of law against the refusal to release him , arguing that his detention pending trial was in breach of Articles CARDINAL and CARDINAL ( c ) of the ORG . He submitted , in particular , that ORG had not given any reasons for its decision to apply precautionary measures for the purposes of LAW ( c ) of the ORG .

On DATE the applicant applied to the Brindisi investigating judge to have the order placing him under house arrest revoked , as he had resigned from his post as technical director of the X company .

The judge refused that application on DATE . His decision was based , inter alia , on the fact that that measure had been taken only a short time ago and had , moreover , replaced a more stringent CARDINAL , and on the serious nature of the accusation . He explained that the applicant might still be able to use his experience and professional skills either for his own ends or on behalf of another company .

On DATE the applicant appealed to ORG against that decision . He submitted that the previous decisions had been taken with a view to preventing the commission of criminal offences and , in particular , because he had kept his post in FAC . Now that he had resigned , such preventive action was no longer necessary .

In a decision of DATE the court noted that all the previous decisions concerning the applicant 's deprivation of liberty had been based on LAW ORG . It held that , in view of the applicant 's resignation , the time that had elapsed since the measure had been imposed and the suspect 's character , there were no longer any grounds for keeping him under house arrest . Accordingly , it ordered his immediate release .

On DATE the applicant withdrew his appeal on points of law of DATE , a fact that was acknowledged on DATE .

In a judgment of DATE ORG acquitted the applicant on the ground that the alleged facts had never occurred ( perché il fatto non sussiste ) . That judgment became final on DATE .

The court observed , in particular , that the public prosecutor 's submissions had been based mainly on an expert opinion prepared by Z in the course of the preliminary investigation . Z had been examined at the trial , but the conclusions he had reached had been successfully challenged by the defence . In particular , an expert appointed by the defence , W , had put together a different version of events , which had been submitted to the court at hearings on DATE and DATE . His version was corroborated by certain documents and witness statements . In particular , it appeared that the expert witness Z had failed to distinguish properly between CARDINAL separate administrative procedures and had not taken into account a number of factors that might have explained why the X company had been chosen to carry out certain portions of the Strada dei Pittachi project . In the light of that , and even supposing that the internal administrative regulations had been contravened , it had not been established that ORG had made unjustified profits . Furthermore , at a hearing on DATE , a witness had clarified the relations between the X company and the applicant . In particular , the latter had suspended his contract of employment with the company when he had become a university lecturer ; his role had subsequently been limited to that of an outside consultant . In that capacity , the applicant could not have been in charge of the operational management of a particular project , since that had been the responsibility of the manager of a subsidiary company , who had also been responsible for payments . Lastly , statements made at the hearings by other witnesses had shown that ORG 's appointment as chief engineer for FAC and as assistant project manager for the construction of the new detention centre in GPE had been based on technical considerations and grounds of suitability , and had been consistent with previous practice .

The conditions for the application of a precautionary measure ( misura cautelare ) in criminal proceedings are set out in Articles CARDINAL et seq . of the ORG .

By Article CARDINAL § CARDINAL of the ORG , “ no one shall be subjected to a precautionary measure unless there is substantial evidence of his guilt [ gravi indizi di colpevolezza ] ” . The evidence must concern an offence punishable by life imprisonment or by a prison sentence of DATE .

ORG has held that “ substantial evidence of guilt ” means any evidence against the suspect which , without being capable of proving beyond reasonable doubt that he was responsible , nonetheless suggests that it will possible at a later stage to establish his responsibility , thereby creating a heightened probability of his guilt at the investigation stage ( see the plenary Court of Cassation 's judgment of DATE ( GPE ) , published in Giust . pen . DATE , III , CARDINAL , and ORG judgment of DATE ( Capriati ) , published in PERSON . , no . DATE ; see also ORG judgment of DATE ( Derzsiova ) , published in Riv . pen . DATE , CARDINAL , which refers to a “ strong probability that the suspect will be held responsible for the offence ” , and ORG judgment of DATE ( PERSON ) , published in Arch . n. proc . pen . DATE , CARDINAL , according to which the evidence must create a strong indication of guilt ( consistente fumus di colpevolezza ) , which is not rebutted by the existence of a possible alternative explanation that will have to be verified in the course of the trial ) .

Article CARDINAL of the ORG lists the circumstances warranting the adoption of a precautionary measure . The existence of CARDINAL of these circumstances , in addition to the “ substantial evidence of guilt ” referred to in LAW ORG , is a prerequisite for the adoption of a measure depriving a person of his liberty .

Article CARDINAL provides , in particular , that precautionary measures may be ordered to prevent interference with the course of justice ( Article CARDINAL ( a ) ) , if there is a danger of absconding ( Article CARDINAL ( b ) ) and to prevent the commission of criminal offences ( Article CARDINAL ( c ) ) .

Article CARDINAL ( c ) , which was applied in the applicant 's case , provides that precautionary measures are to be ordered

“ where , given the specific nature and circumstances of the offence and having regard to the character of the suspect or the accused as shown by his conduct , acts or criminal record , there is a genuine danger that he will commit a serious offence involving the use of weapons or other violent means against the person or an offence against the constitutional order or an offence relating to organised crime or a further offence of the same kind as that of which he is suspected or accused ” .

ORG has held that the requirements concerning the protection of the community must be considered in relation to a genuine danger that offences will be committed ; since this requires a forecast amounting to a presumption , the judge must give a concrete and precise explanation of the criteria adopted , and , if several persons are suspected , may not merely base his decision on considerations of a general nature ( see ORG judgment of DATE ( ORG ) , published in PERSON . , no . DATE ) . The judge may not take into account the seriousness of the offence in abstracto , but must address the specific circumstances in issue in the case before him that highlight the danger posed by the suspect ; in giving reasons for his decision , he must refer to specific facts and not to general and/or automatic criteria ( see ORG judgment of DATE ( GPE ) , published in PERSON . , no . DATE ) .

On the other hand , the fact that a person has no criminal record does not necessarily mean that he or she does not pose a danger to society , seeing that that condition may be satisfied , as LAW ORG expressly provides , on the basis of the suspect 's conduct or acts ( see ORG judgment of DATE ( GPE ) , published in GPE . pen . DATE , CARDINAL ) .

Lastly , ORG has held that the danger of reoffending is not ruled out by the fact that the suspect has resigned or has in any other way ceased to perform the duties in the context of which he is alleged to have abused his authority ; the law merely requires there to be a likelihood of committing an offence of the same kind as that in respect of which an investigation has been opened , and does not require the commission of the same offence ( see ORG judgments of DATE ( Gazner ) , published in GPE . pen . DATE , no . CARDINAL , and of CARDINAL DATE ( ORG ) , published in GPE . pen . DATE , CARDINAL ) .

Article CARDINAL of the ORG provides that decisions ordering a precautionary measure must contain reasons and must , in particular , indicate the grounds on which the measure has been imposed and the evidence of the suspect 's guilt , including the facts on which that evidence is based and the reasons why it is relevant . Such decisions must also take into account the time that has elapsed since the offence was committed .

ORG has held that statements of reasons can not be worded using standard formulae ; instead , they must set out the particular grounds taken into consideration by the judge in the case before him ( see , in particular , ORG judgment of CARDINAL DATE ( PERSON ) , published in Arch . n. proc . pen . DATE , CARDINAL , quashing a decision in which the requirement of danger had been based solely on the seriousness of the alleged offence and on the suspect 's character as shown by his criminal record ) .

Article CARDINAL of the ORG provides for the right to compensation for so - called “ unjust ” pre - trial detention in CARDINAL distinct cases : where an accused is acquitted following proceedings on the merits of a criminal charge , or where it is established that a suspect was placed or kept in pre - trial detention in breach of Articles CARDINAL and CARDINAL of the ORG . The latter provision states that a precautionary measure may be taken only if the maximum penalty for the alleged offence is DATE imprisonment . However , no compensation may be awarded if the detention was ordered or prolonged in breach of LAW ORG ( for example , if there was no danger of reoffending ; see , amongst other authorities , the plenary ORG judgment of DATE ( PERSON ) ) . Article CARDINAL provides :

“ Anyone who has been acquitted in a judgment that has become final – on the grounds that the alleged facts never occurred , he did not commit the offence , no criminal offence has been committed or the facts alleged do not amount to an offence in law – shall be entitled to compensation for any period he has spent in detention pending trial , provided that the detention was not wholly or partly the result of a deliberate act or gross negligence on his part .

The same right shall be secured to anyone who , having been detained pending trial , has been acquitted on any grounds whatsoever or convicted , where the detention is found , in a final decision , to have been ordered or prolonged in breach of the applicability criteria set out in Articles CARDINAL and CARDINAL . ”

Article CARDINAL of the ORG provides that claims for compensation must be made within DATE after the acquittal or conviction becomes final , failing which they will be inadmissible . Following the entry into force of PERSON no . CARDINAL of DATE , the maximum award is CARDINAL,CARDINAL.CARDINAL MONEY .


Angelika Nußberger;Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva

The applicant in application no . CARDINAL ( “ the first application ” ) , PERSON PERSON GPE , is a NORP national who was born in DATE and lives in GPE . At the relevant time he was a sole trader , registered under the name ET EKIP-CARDINAL-STEFAN FAC . Under NORP law , sole traders do not have a distinct legal personality separate from the natural persons in whose name they are registered . The applicant was represented before the ORG by Mr PERSON and PERSON , lawyers practising in GPE .

The applicants in application no . CARDINAL ( “ the second application ” ) are PERSON , a NORP sole - ownership limited liability company established in DATE with its registered office in GPE , and PERSON PERSON PERSON , a NORP national who was born in DATE and lives in GPE . PERSON complains both in a private capacity and as managing director and sole owner of the capital of the applicant company , which under NORP law has a distinct legal personality .

The applicant in application no . CARDINAL ( “ the third application ” ) , Ms Petya Borisova Hasardzhieva , is a NORP national who was born in DATE and lives in GPE . At the relevant time she was a sole trader , registered under the name ORG - PETYA LOC . She was represented before the Court by Mr PERSON and Ms GPE GPE , lawyers practising in GPE .

The applicant in application no . ORG ( “ the fourth application ” ) is ORG , a NORP sole - ownership limited liability company established in DATE and with its registered office in GPE . It is represented before the ORG by ORG , a law firm with its registered office in GPE .

s , may be summarised as follows .

On DATE the applicant obtained a value - added tax ( “ VAT ” ) registration .

In DATE ORG of ORG conducted a VAT audit of the applicant for the period from DATE . The audit ended on DATE with a Findings of Fact , which identified a number of irregularities in the NORP compliance of the applicant and proposed that a tax assessment be issued to him . A tax assessment was , however , never issued .

On DATE the applicant 's accounting records for DATE were stolen . On DATE he notified the police and ORG of ORG of the theft .

In DATE ORG conducted another VAT audit of the applicant in respect of the period from DATE to DATE .

On DATE ORG issued the applicant with a tax assessment ( “ the DATE tax assessment ” ) whereby it refused him the right to deduct the ORG he had paid to a number of suppliers ( “ the input NORP ” ) in DATE , CARDINAL and DATE . The input VAT whose deduction was refused totalled CARDINAL new NORP levs ( ORG , MONEY ( ORG ) ) , on which interest for late payment was also charged in the amount of ORG CARDINAL ( EUR CARDINAL ) .

On DATE the applicant appealed against the DATE tax assessment .

On DATE ORG upheld the DATE tax assessment in its entirety . It also noted that in so far as the DATE VAT audit had not ended with a tax assessment , there was no formal restriction on conducting a second audit in respect of the same period .

On DATE the applicant appealed to the courts . In the course of the proceedings the tax authorities failed to present the trial court with the original of the Findings of Fact of CARDINAL DATE , because they could not find it in their archives . An uncertified copy of the said document was nevertheless presented to the trial court .

In a judgment of DATE the ORG found partly in favour of the applicant , quashed the DATE tax assessment in respect of the deductibility of input ORG in the amount of ORG ( ORG CARDINAL ) and upheld the remainder .

On an unspecified date , ORG filed a cassation appeal against the judgment of ORG to partly quash the DATE tax assessment in respect of the deductibility of input ORG in the amount of ORG ( EUR CARDINAL,CARDINAL ) . In respect of the remainder , the judgment of ORG became final .

In a final judgment of DATE ORG reversed the judgment of ORG , upheld the part of the DATE tax assessment that had been quashed by ORG and dismissed the applicant 's appeal .

After the theft in DATE the applicant did not reconstitute his accounting records for DATE by contacting and obtaining from his suppliers copies of the stolen invoices and receipts . As a result , when ORG conducted the second NORP audit in DATE they applied LAW ( CARDINAL ) to ( CARDINAL ) of LAW to assess the tax position of the applicant ( see Relevant domestic law and practice below ) . In the course of the said tax audit the authorities examined the records that the applicant did present and also performed cross - checks of most of the suppliers from which he claimed to have received supplies .

In the DATE tax assessment the ORG refused the applicant the right to deduct input ORG on the grounds that ( a ) some of his suppliers did not have a valid NORP registration or ( b ) he had failed to present them with ORG invoices or copies thereof , evidencing that he had received VAT chargeable supplies .

In finding partly in favour of the applicant , ORG in its judgment of DATE considered that the tax authorities had correctly applied the procedure for assessing the applicant 's tax position in view of the missing accounting records . However , it considered that the information contained in the Findings of CARDINAL of DATE should be considered as evidence of the applicant 's NORP compliance status for DATE in respect of those suppliers that the tax authorities had not cross - checked . ORG therefore quashed the DATE tax assessment as it related to such suppliers and in respect of the supplies that the applicant had received from CARDINAL suppliers which it considered had valid ORG registrations .

In its final judgment of DATE ORG found that the Findings of Fact of DATE can not be considered as evidence of the applicant 's NORP compliance status for DATE , and also found that the tax authorities had correctly applied the procedure for assessing the applicant 's tax position in view of the missing accounting records , which the latter had failed to reconstitute . It therefore upheld the part of the DATE tax assessment that had been quashed by ORG and dismissed the applicant 's appeal .

On DATE the applicant company executed a notary deed with another company ( “ the seller ” ) for the purchase of land and an unfinished QUANTITY building situated on it . The purchase price was ORG CARDINAL ( EUR CARDINAL ) of which ORG CARDINAL ( EUR CARDINAL ) was for the land and ORG CARDINAL ( EUR CARDINAL ) for the unfinished building . The applicant company paid the price of the land on DATE of the notary deed and agreed to pay the remainder before DATE .

On DATE the applicant company executed a notary deed with a third party for the sale of a CARDINAL share of part of the unfinished QUANTITY building – a café situated on the ground floor – together with the corresponding share of the land on which the building was situated .

On DATE the applicant company obtained a VAT registration .

On CARDINAL and DATE the seller issued CARDINAL ORG invoices to the applicant company for the unfinished QUANTITY building for a total of ORG CARDINAL ( ORG CARDINAL ) , plus ORG in the amount of ORG CARDINAL ( ORG CARDINAL ) . The seller and the applicant company reported the transfer of the unfinished CARDINAL - storey building in the DATE VAT reporting period and the latter claimed a deduction of the input NORP of ORG CARDINAL ( ORG CARDINAL,CARDINAL ) it had paid on the transaction .

On DATE ORG of ORG issued the applicant company with a tax assessment ( “ the DATE tax assessment ” ) whereby it refused the right to deduct the input LAW CARDINAL ( ORG CARDINAL,CARDINAL ) that the applicant company had paid under the CARDINAL invoices from CARDINAL and DATE for the purchase of the unfinished QUANTITY building .

On DATE the applicant company appealed against the DATE tax assessment .

On DATE ORG upheld the DATE tax assessment .

On DATE the applicant company appealed to the courts .

In a judgment of DATE ORG dismissed the appeal of the applicant company and upheld the DATE tax assessment .

On an unspecified date the applicant company lodged a cassation appeal against the judgment of ORG .

In a final judgment of DATE ORG dismissed the applicant company 's appeal , but on slightly different grounds from those relied on by GPE ( see following section ) .

In its decision of DATE ORG considered that the VAT - chargeable supply for the transfer of the unfinished QUANTITY building had been effected , for the purposes of NORP taxation , on DATE when the transaction had been registered with a notary . Thus , the ORG invoice in respect of the transaction had had to be issued within DATE of that event and the ORG had had to be charged , reported and paid to the ORG budget in respect of the DATE VAT reporting period . In so far as that had been done belatedly in the DATE VAT reporting period , it found that no right to deduct the input NORP arose for the applicant company .

In its appeal of DATE the applicant company argued that although the notary deed had been executed on DATE it included CARDINAL separate transactions – CARDINAL for the purchase of the land and CARDINAL for the unfinished QUANTITY building . While the first had been fully settled on DATE of the notary deed , the second had only been concluded when the purchase price of the unfinished QUANTITY building had been paid in DATE . In so far as the sale of land did not amount to a VAT chargeable supply , no ORG invoices had been issued nor reported in the DATE VAT reporting period . As the parties had contracted that payment of the price of the unfinished QUANTITY building would be made on DATE , the seller had issued ORG invoices in respect of it on CARDINAL and DATE which the applicant company had duly paid . Thus , the applicant company considered that the NORP chargeable supply in respect of the unfinished QUANTITY building had not arisen on DATE , but on CARDINAL and DATE when the seller had issued the ORG invoices .

In its judgment of DATE ORG concluded that the execution of the notary deed on DATE amounted to a NORP chargeable supply in respect of the unfinished QUANTITY building , that ORG invoices in respect of it should have been issued within DATE and that the transaction should have been reported in the DATE VAT reporting period . ORG relied on LAW ( CARDINAL ) of LAW , which stated that a GPE - chargeable event arises on DATE of the ( a ) the date on which a property right is transferred or ( b ) the date on which full or partial payment is made . It therefore concluded that in so far as the property rights to the unfinished QUANTITY building had been transferred on DATE the parties ' undertaking to pay the purchase price at DATE did not postpone the date of the VAT - chargeable event , and the transaction should have been reported in the DATE VAT reporting period rather than in the DATE reporting period . Accordingly , as the transaction had been erroneously reported by both the seller and the applicant company , no right to deduct the input NORP arose for the latter .

In its final judgment of DATE ORG dismissed the applicant company 's cassation appeal on slightly different grounds from those relied on by GPE . It also found that the GPE - chargeable event was the transfer of the property rights to the unfinished QUANTITY building on DATE , but noted that the applicant company did not have a VAT registration at the time so , in any event , it would not have had the right to deduct the input ORG in that reporting period . However , at the time of its VAT registration in DATE the applicant company could have requested that the tax authorities recognise its right to deduct the input NORP on the transaction under a special procedure applicable to LOC transactions effected prior to obtaining a VAT registration . In so far as the applicant company had failed to make such a request , no right to deduct the input ORG on the supply in question prior to its GPE registration arose .

On DATE ORG issued the applicant with a tax assessment ( “ the DATE tax assessment ” ) . It refused the applicant 's right to deduct input ORG she had paid on , inter alia , CARDINAL supplies dating from DATE which totalled ORG CARDINAL ( ORG CARDINAL,CARDINAL ) , on which interest for late payment was also charged in the amount of ORG MONEY ( ORG CARDINAL,CARDINAL ) .

On DATE the applicant appealed against the DATE tax assessment .

On DATE the GPE section of ORG upheld the DATE tax assessment in its entirety .

On DATE the applicant appealed to the courts .

In a judgment of DATE ORG dismissed the appeal and upheld the DATE tax assessment .

On DATE the applicant lodged a cassation appeal against the judgment of ORG .

In a final judgment of DATE ORG dismissed the applicant 's appeal . It found that the applicant had failed to show , both during the audit conducted by the tax authorities and during the court proceedings , that the supplies in question had ever actually been received by her , which was sufficient ground for refusing the right to deduct the ORG paid under the issued invoices , irrespective of whether they had been properly accounted for by her suppliers .

In the course of the audit conducted by the tax authorities , ORG noted that the supplies in question had been provided for marketing , advertising , agency and intermediary services . They examined the accounting records of the applicant , performed cross - checks of the suppliers in question , and obtained further clarifications and submissions from the parties . As CARDINAL of the suppliers were not found at their registered tax addresses , the authorities instead examined and relied on their tax dossiers , which are held by the tax authorities . Notably , these CARDINAL suppliers were registered at the same address .

In the DATE tax assessment the ORG refused the right to deduct the input NORP on the CARDINAL supplies from DATE because the applicant 's suppliers had failed to present the requisite proof for assessment of their tax liabilities , including evidence that they had actually carried out the supplies in question . In particular , the tax authorities found that the suppliers lacked the necessary know - how as well as the technological and human resources to provide the contracted services , while the applicant could not remember what specific services she had received from each of them . In addition , the applicant failed to provide copies of all the contracts underlying the transactions in question , the marketing reports and the results of the agency and intermediary services allegedly received .

In her appeal to the courts the applicant argued that the cross - checks conducted on her suppliers were not carried out in conformity with the applicable procedure , which allegedly predetermined their lack of success , and that the tax authorities had come to the wrong conclusions on the basis of the records and documents in their possession .

In its judgment of DATE ORG found certain procedural deficiencies in the cross - checks performed by the tax authorities and in some of their assessments concerning the availability of technological and human resources by some of the suppliers , but did not consider them significant enough to negate the overall conclusions that it had not been shown by the parties that the services had in fact been provided . In particular , it noted that irrespective of whether the suppliers had properly recorded and reported the supplies in question , the applicant had failed to provide the requisite proof that the transactions in questions had ever been affected , that all the underlying contracts for the services existed , and that the invoiced services had ever been received by , for example , presenting marketing reports , brochures or advertising materials produced as a result of these transactions . Finally , the court noted that the CARDINAL missing traders were all located at the same address and all purported to provide the same type of advertising and marketing services , proof of which the applicant had failed to present to the tax authorities .

In its final judgment of DATE ORG also found that the applicant had failed to show , both during the audit conducted by the tax authorities and during the court proceedings , that the supplies in question had actually ever been received by her and that there had , therefore , been VAT - chargeable supplies within the meaning of LAW of DATE . It noted that this was sufficient ground to refuse the right to deduct the input ORG paid under the issued invoices , irrespective of whether they had been properly accounted for by her suppliers .

On DATE the GPE Territorial Tax Directorate issued the applicant company with a tax assessment ( “ the DATE tax assessment ” ) . It refused , inter alia , the applicant company 's right to deduct the input ORG it had paid to CARDINAL suppliers of services in DATE in the amount of ORG CARDINAL ( EUR CARDINAL ) , on which interest for late payment was also charged . The supplies in question were for construction works undertaken by the suppliers to complete CARDINAL buildings that the applicant company was constructing .

On an unspecified date the applicant company appealed against the DATE tax assessment .

On DATE ORG upheld the DATE tax assessment in respect of the refusal to authorise deduction of the input ORG .

On an unspecified date the applicant company appealed to the courts , claiming that the tax authorities had applied the relevant tax legislation erroneously and had committed various procedural violations .

In the course of the court proceedings ORG commissioned , at the request of the applicant company , CARDINAL expert reports to assess the findings of the DATE tax assessment .

By a judgment of DATE ORG upheld the DATE tax assessment in respect of the deductibility of the input ORG .

On an unspecified date the applicant company lodged a cassation appeal against the judgment of ORG . It claimed that the first - instance court judgment was wrong and that there had been various procedural violations .

By a final judgment of CARDINAL DATE ORG upheld the judgment of GPE in its entirety .

Under DATE tax assessment , as upheld by ORG and the courts , the applicant company was refused deduction of the input ORG it had paid to the CARDINAL suppliers of services in DATE , because there was no VAT - chargeable supply within the meaning of LAW of DATE .

In the course of the audit carried out of the applicant company , the authorities visited the construction sites to evaluate the type of construction works performed and their level of completion . They also carried out cross - checks on the suppliers . Although initially they were not found at their registered addresses , after further searches and notifications by the authorities representatives of the suppliers came forward and produced some of the records and documentation that had been requested of them . The authorities then evaluated the construction equipment and materials available at the suppliers , their know - how to perform such services and the human resource capabilities at their disposal . In addition , they performed cross - checks of companies from whom construction equipment had allegedly been rented and of individuals who had allegedly carried out the work . A detailed evaluation of the various construction works carried out was also undertaken and an assessment made of whether they could have been carried out by the CARDINAL suppliers . As a result , the authorities concluded that the CARDINAL suppliers lacked the material , technological and human resources capability to provide the services on the dates on which they were allegedly received by the applicant company . In particular , they were found to lack the necessary construction equipment , machines , tools , materials and facilities to deliver the services in question and also lacked qualified workers who could have done the work . Separately , the tax authorities found that the suppliers had invoiced for services which were outside the scope of the construction works allegedly received by the applicant company . In respect of some of the construction works , the tax authorities also established that they had been invoiced DATE after the work had been done . Lastly , the authorities acknowledged that construction services had been received by the applicant company in the course of the completion of its sites , but considered that it had not been proven that they had been carried out by the suppliers in question and that these transactions amounted to GPE - chargeable supplies which gave the applicant company the right to deduct the input ORG .

On the basis of the above findings , the commissioned expert reports and the submissions of the parties , the courts carried out a similar detailed analysis of the services provided and the capabilities of the suppliers to provide them . They reached identical conclusions to those of the tax authorities and found that the CARDINAL suppliers lacked the material , technological and human resources capacity to do the work .

The general principles in LAW DATE regarding the chargeability and reporting of GPE as well as the right to deduct input ORG are similar to those of LAW DATE , as summarised in the ORG v. GPE judgment ( no . CARDINAL , § § CARDINAL , DATE ) .

Under LAW of DATE , the input ORG , known as “ the tax credit ” under domestic legislation , was the amount of ORG which a taxable person had been charged on goods or services received under a chargeable transaction or from import of goods or services ( section CARDINAL ( CARDINAL ) ) .

In addition , section CARDINAL of LAW DATE provided , as relevant , the following :

“ ( CARDINAL ) The right to [ deduct input ORG ] arises when the following conditions are met :

the [ taxable ] person to whom tax is charged is registered under LAW on the date the tax invoice ... is issued ;

NORP the tax on the chargeable transaction is charged by a [ taxable ] person registered under LAW on the date it is performed ... ;

NORP the transaction on which the tax is charged is chargeable on the date it is performed ... ;

the imported goods or the goods or services received under a chargeable transaction were used , are being used or will be used for performing chargeable transactions ... ;

the recipient has a tax invoice ... which has been recorded in his accounting records . ”

Section CARDINAL of LAW DATE further provided , as relevant , the following :

“ ( CARDINAL ) The right to [ deduct input ORG ] arises in respect of the tax period during which the tax invoice ... is received , which [ has ] to have been recorded in the [ taxable ] person 's accounting records , but is exercised after the expiry of that tax period by including it in the [ said period 's tax ] return .

( CARDINAL ) The right to [ deduct input ORG ] does not arise if the tax invoice ... was issued before the date of registration under the LAW . ”

The relevant part of section DATE of the Regulation for Implementing the VAT Act DATE , as in force up to DATE , provided the following :

“ In the event of loss of the original tax invoice the [ taxable ] person may exercise its right to [ deduct the input VAT ] if , instead of the invoice , , it presents the following documents :

a photocopy of the issuer 's copy of the [ original invoice ] , certified by [ the latter ] with a date and seal ;

a certificate from the tax office where the issuer of the lost document is registered , stating that the tax indicated therein has been charged ... ”

In DATE the Regulation for Implementing the VAT Act DATE was replaced by a new LAW DATE .

The relevant provisions and the background to LAW DATE have been summarised in the judgment of ORG , cited above , § § CARDINAL ) .

LAW DATE also provided the following in respect of the date of the chargeable event and the chargeability of GPE :

“ ( CARDINAL ) The chargeable event within the meaning of the LAW shall occur on the earlier of the following two dates :

the date of transfer of the right of ownership or other real property right to the goods ... ;

the date of payment ( full or partial advance payment ) . ...

( CARDINAL ) the date of occurrence of the chargeable event :

The tax under the Act shall become due for chargeable transactions and the [ taxable ] person shall be obliged to charge it ;

The right not to charge tax on exempt transactions shall arise . ”

“ In the following cases , the date of the chargeable event shall be assumed to have occurred :

NORP in cases where goods are provided under a contract for transfer of ownership with a deferring condition or term , if there is no preliminary ( full or partial ) payment – the date of fulfilment of the condition or expiry of the term upon which in normal circumstances the right of ownership would be transferred ; ... ”

The relevant part of section CARDINAL of the Regulation for Implementing the VAT Act DATE , as in force from DATE , provided the following :

“ ( CARDINAL ) In the event of loss , destruction or theft of the original tax document the [ taxable ] person may exercise its right to [ deduct the input NORP ] by informing the regional directorate of ORG where it is registered and by obtaining a photocopy of the issuer 's copy of the [ original invoice ] , certified by [ the latter ] with a date and seal , which it must preserve in its accounting records . ”

The relevant part of LAW provides as follows :

“ ( CARDINAL ) The tax authority applies the rate of tax , as stipulated in the applicable law , to the taxable base as determined by the said authority [ in the instances ] where CARDINAL of the following circumstances exists :

a [ tax ] return has not been filed prior to commencing the audit , in the cases where the tax liability is determined according to a [ tax ] return ;

NORP the audit authority establishes facts or circumstances concerning concealed revenue or income ;

NORP accounts are not kept in accordance with LAW , or the accounts kept do not make it possible to ascertain or determine the base for taxation , as well as where the documents have been destroyed other than in accordance with the applicable procedure ;

NORP counterfeit documents or documents containing false statements have been used in the accounts ;

documents have been lost , stolen or damaged to an extent that renders them unusable ;

the taxable person has not been found at the address registered with the tax authorities after a thorough and well - documented search by the tax authorities ;

during the tax audit the taxable person did not present evidence relevant to the determination of its tax liabilities within the deadline set by the audit authority ;

the existence of transfer pricing or tax fraud has been established ;

( CARDINAL ) The tax authority determines the taxable base for levying direct and indirect taxes in the instances under sub - section ( CARDINAL ) after taking into consideration each circumstance of relevance to the taxable person concerned :

NORP the type and nature of the activity actually performed ;

NORP the amounts paid in taxes , customs duties , contributions and other public receivables ;

NORP bank account transactions and balances ;

official documents containing accurate data ;

NORP rental costs for the real estate where the activity is performed , in whole or in part , in rented properties ;

the commercial significance of the place where the activity is performed ;

NORP capital and the market price of acquired properties at the time of acquisition ;

NORP gross revenue / income ( turnover ) ;

the number of people employed to perform the activity , the size of the workforce ;

NORP contracts concluded by the taxable person in connection with the activity ;

the difference between the raw and other materials supplied and those used in production ;

NORP aggregated data on the profit obtained or , respectively , the revenue or income of other persons performing the same or a similar activity under the same or similar conditions ;

NORP pricing and other conditions of the transactions concluded for the purposes of tax evasion , including data about such transactions between parties related ... to the [ audited ] taxable person ;

NORP the usual cost of living , maintenance , education and medical treatment , as well as travel , per diem and accommodation expenses for travel within the country or abroad ;

NORP supplies received and provided , as well as the exercised right to [ deduct input VAT ] ;

NORP other evidence which may serve to determine the tax base .

( CARDINAL ) The circumstances under paragraphs ( CARDINAL ) and ( CARDINAL ) shall be indicated in the tax assessment .

( CARDINAL ) In cases under paragraph ( CARDINAL ) the tax authority shall determine the taxable base for the relevant tax period for which the circumstances have been established , while in the case of paragraph ( CARDINAL)(CARDINAL ) they shall do so for the period determined in the order for the tax audit to be initiated .

( CARDINAL ) Other than in instances under paragraph ( CARDINAL ) , if the assets and the financial state of the taxable person for the appropriate tax period do not correspond to the declared and/or received revenue , income , the sources of forming the proprietary capital or the free financing for the commercial activity , the tax authority , after an analysis under paragraph ( CARDINAL ) , levies [ tax on ] the undeclared profits and income in accordance with the applicable law .

( CARDINAL ) When the tax authority discovers that there are circumstances under paragraphs ( CARDINAL ) or ( CARDINAL ) , it informs the taxable person that it will determine the taxable base in accordance with this section and provides it with a time - limit within which it can present documents or submit an opinion .

( CARDINAL ) The situation outlined in a tax assessment prepared under this section shall be considered true until proven otherwise in the course of appeal proceedings .

( CARDINAL) [ In the process of ] assessing the circumstances under paragraphs ( CARDINAL ) or ( CARDINAL ) , taxable persons are obliged to declare their assets and all their sources of income , including their participation in bodies having a management or supervisory role in respect of juridical persons ...

( CARDINAL ) [ In the process of ] assessing the circumstances under paragraphs ( CARDINAL ) or ( CARDINAL ) the tax authority shall take precautionary measures to secure all claims at the time it makes the notification under paragraph ( CARDINAL ) . The imposed security measures are subject to appeal under the same procedure as for tax assessments .

( CARDINAL ) Disposing of attached or distrained property or receivables can be made with the permission of the tax authority which imposed the measure .

On DATE LAW was replaced by ORG .

On DATE LAW DATE was replaced by an Act of the same name , which transposed into national legislation the then current GPE legislation in the sphere of GPE . Similar to its predecessors , its sections DATE contain detailed provisions outlining the conditions and procedures for deductibility of input ORG , which , as they relate to the circumstances of the present case , are not materially different from the preceding VAT Acts summarised above .

Articles CARDINAL to CARDINAL of the Code provide for a detailed procedure for assessment of the tax and social security contributions due from a taxpayer and envisage , in certain circumstances , the possibility of reassessing the tax position of a taxpayer . In particular , it provides the following :

“ ( CARDINAL ) The revenue authority applies the rate of tax , as stipulated in the applicable law , to the taxable base as determined by the said authority according to the procedure established by Paragraph ( CARDINAL ) where CARDINAL of the following circumstances exists :

a [ tax ] return has not been filed prior to commencing the audit , in the cases where the tax liability is determined according to a [ tax ] return ;

NORP there is reason to believe that revenue or income has been concealed ;

fake documents or documents containing false statements have been used in the accounts ;

NORP accounts are not kept or are not presented according to LAW , or the accounts kept do not make it possible to determine the basis for taxation , as well as where the documents necessary for determination of the basis for levying of taxes or for determination of the compulsory social insurance contributions have been destroyed according to a procedure other than the applicable one ;

the documents necessary for determination of the basis for levying of taxes are missing or are damaged to an extent that renders them unusable ;

NORP the data and information necessary for determination of the basis for the levy of taxes can not be obtained because the auditee has not been found at the registered address referred to in LAW ;

NORP the revenue , income , the sources of proprietary capital or free financing for the commercial activity of the auditee as declared and/or received do not correspond to the property and financial status of the auditee for the audit period .

( CARDINAL ) To determine the base for the levy of taxes , the revenue authority shall take into consideration each circumstance of relevance to the person concerned :

NORP the type and nature of the activity actually performed ;

NORP taxes , customs duties , contributions and other public receivables paid ;

NORP bank transactions and balances on bank accounts ;

official documents and the documents containing accurate data ;

NORP the rental costs for the real estate where the activity is performed in whole or in part ;

the commercial significance of the place where the activity is performed ;

NORP the capital and the market price of acquired properties at the time of acquisition ;

NORP the gross revenue / income ( turnover ) ;

NORP the number of persons employed to perform the activity ;

the contracts concluded by the taxable person in connection with performing the activity ;

the difference between the raw and other materials supplied and those used in production ;

NORP the aggregated data on the profit obtained or , respectively , the revenue or income by other persons performing the same or a similar activity under the same or similar conditions ;

the pricing and the other conditions of the transactions concluded for the purposes of tax evasion , including data about such transactions between parties related to the auditee ;

NORP the usual cost of living , maintenance , education and medical treatment , as well as travel , per diem and accommodation expenses for travel within the country or abroad ;

the supplies received or effected , as well as the right to credit for input tax exercised ;

NORP other evidence which may serve upon determination of the base .

( CARDINAL ) The circumstances covered under LAW and CARDINAL shall be used to justify the audit report .

( CARDINAL ) In the cases under LAW the revenue authority shall determine the base for levying of taxes applicable for the relevant period for which the circumstances have been established . ”

“ ( CARDINAL ) In cases under LAW herein , upon determination of the base according to the procedure established by LAW herein , a taxable profit or income shall be presumed to exist until otherwise proven where :

NORP the value of the property of the person manifestly substantially exceeds the amount of declared revenue , income , sources of owners ' proprietary capital or of free financing , as received thereby ;

NORP the expenses incurred by the person and by the parties related thereto under Item CARDINAL ( a ) of LAW of LAW herein manifestly and substantially exceed the declared received resources .

( CARDINAL ) The property of other persons shall be considered part of the property referred to in LAW if an effective judicial act has established that the said property has been acquired with the funds of the person in respect of whom the circumstances under LAW have been established . ”

Articles CARDINAL of the Code provide in detail for the procedure for appeal against findings of the tax authorities in a tax assessment issued to a taxpayer . The appeal is lodged first with the superior revenue authority , whose decision is in turn subject to judicial appeal before the courts . Moreover , at the request of the taxpayer , the enforcement of a decision taken on the basis of a tax assessment can be suspended pending the appeal proceedings ( LAW ) .


Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award

Bertram Schmitt;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva

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

On DATE the applicants distributed CARDINAL - page folded pamphlets to passers - by in front of a GPE medical centre . The front page contained the following text :

“ ' Killing specialist ' for unborn children Dr. PERSON [ is ] on the premises of the Northern medical centre , GPE ” .

NORP The middle pages contained information on the development of the human foetus and about abortion techniques . It further contained the appeals :

“ Please support our struggle against the unpunished killing of unborn children ”

and

“ Therefore : No to abortion ”

The verso read as follows :

“ Support our protest and our work . Help to ensure that the Fifth Commandment “ Thou shall not kill ” and LAW are in future respected by all doctors in GPE !

Stop the murder of children in their mother 's womb on the premises of the Northern medical centre .

then : Holocaust

DATE : Babycaust

( damals : Holocaust heute : Babycaust )

Whoever remains silent becomes guilty too ! ”

The pamphlet bore the name and address of the second applicant as the person legally responsible for its content .

On behalf of the medical centre and PERSON , GPE brought criminal charges against the applicants for defamation .

On DATE ORG ( ORG ) acquitted the applicants on the grounds that their action was justified under section CARDINAL of LAW ( Strafgesetzbuch , see Relevant domestic law below ) . According to ORG , the dissemination of the pamphlets was covered by the right to freedom of expression as guaranteed by LAW , since the pamphlet , taken as a whole , was not intended to debase PERSON or the medical centre , but to express the applicants ' general rejection of the performance of abortions . ORG noted that the applicants considered the number of abortions performed in GPE to be crimes which were as abhorrent as the Holocaust . It was not up to the court to evaluate this statement , which was covered by the right to freedom of expression .

Following an examination of the statements contained in the pamphlet , ORG considered that the applicant 's right to freedom of expression had to prevail over the doctor 's interest in the protection of his personal honour .

On DATE the Nuremberg - ORG ( Landgericht ) quashed ORG judgment and convicted the applicants of defamation to the detriment of the medical centre and of PERSON considered that the statement “ then : Holocaust / DATE : Babycaust ” , seen in the context of the other statements made in the pamphlet , had to be interpreted as putting the lawful activity performed by PERSON on a level with the Holocaust , a synonym for the most abhorrent and unjustifiable crimes against humanity . According to ORG , this statement was not covered by the applicants ' right to freedom of expression , as it debased the doctor in a way which had not been necessary in order to express the applicants ' opinion . While expressions of opinion which related to questions of public interest enjoyed a higher degree of protection than those relating to purely private interests , it had to be taken into account if and to which extent the person addressed had participated in the public debate . Furthermore , it had to be considered if the person expressing his thoughts could be at least expected to replace his statement by a statement which was less detrimental to the other person 's honour . Applying these principles , ORG considered that the applicants had failed sufficiently to take into account the doctor 's interests . It had to be conceded that the applicants , as anti - abortion activists , had a political aim which they were allowed to pursue even by use of exaggerated and polemic criticism . However , by putting the doctor 's legal actions on one level with the arbitrary killings of human beings performed by a regime of injustice , the applicants literally qualified him as a mass murderer . According to ORG , this statement amounted to unjustifiable abusive insult ( Schmähkritik ) .

ORG further considered that the other statements contained in the pamphlet were covered by the applicants ' right to freedom of expression and had to be accepted . Having regard to all the factors of the case , ORG considered it appropriate to impose CARDINAL DATE fines of MONEY ( ORG ) each on the first applicant and CARDINAL DATE fines of CARDINAL ORG each on the second applicant , as the person having assumed legal responsibility for the pamphlet 's content .

On DATE ORG ( ORG ) rejected the applicants ' appeal on points of law .

On DATE the applicants lodged complaints with ORG .

On DATE ORG , sitting as a panel of CARDINAL judges , quashed ORG judgment insofar as the applicants had been convicted of defamation to the detriment of the medical centre and dismissed the remainder of the applicants ' complaints .

ORG considered , at the outset , that the criminal courts , when interpreting and applying the criminal law , had to respect the limits imposed by the right to freedom of expression as guaranteed by LAW . The court further considered that ORG had respected these principles .

According to ORG , the applicants had not confined themselves generally to criticising the performance of abortions DATE which they remained free to do – but had directed their statements directly against PERSON It was clear from the overall context that the incriminated statement referred to PERSON , who was expressly mentioned on the front page . ORG further noted that the lower courts had assumed that the impugned statement put the doctor 's professional activities on the same level as the Holocaust . It further observed that ORG , in separate proceedings referring to the same pamphlet , assumed that the statement was meant to express the opinion that the abortions performed by the doctor amounted to mass homicide . However , this interpretation of the statement , which also contained the Holocaust reference , also contained a serious interference with the doctor 's personality rights .

The Federal Constitutional Court further considered that the statement seriously infringed the doctor 's personality rights . While the applicants ' statement did not qualify as abusive insult , ORG decision was not objectionable as that court had duly weighed the conflicting interests – that is , the applicants ' right to freedom of expression and the doctor 's personality rights . In particular , ORG had taken into account that the doctor had practised within the framework of the law and had not actively participated in the public debate on abortion . Furthermore , the applicants could have been reasonably expected to express their general criticism without the serious violation of the doctor 's personality rights . This decision was served on the applicants ' counsel on DATE .

On DATE ORG , following remittal , re - assessed the fines imposed as a penalty for defamation to the doctor 's detriment . On DATE ORG quashed this judgment and remitted the case to ORG .

On DATE ORG re - assessed the sentences and imposed CARDINAL DATE fines of CARDINAL ORG each on the first applicant and CARDINAL DATE fines of CARDINAL ORG each on the second applicant , thereby taking into account the second applicant 's previous convictions .

On DATE ORG dismissed the applicants ' appeal on points of law .

DATE of the German Basic PERSON provides :

“ ( CARDINAL ) Every person shall have the right freely to express and disseminate his opinions in speech , writing and pictures and to inform himself without hindrance from generally accessible sources . Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed . There shall be no censorship .

( CARDINAL ) These rights shall find their limits in the provisions of general laws , in provisions for the protection of young persons , and in the right to personal honour . ”

The relevant provisions of the NORP criminal code read :

Section CARDINAL

Defamation

“ Defamation shall be punished with imprisonment of not DATE or a fine and , if the defamation is committed by means of an assault , with imprisonment of not DATE or a fine . ”

Section CARDINAL

Safeguarding legitimate interests

“ ... utterances made in order to exercise or protect rights or to safeguard legitimate interests ... shall only entail liability to the extent that the existence of defamation results from the form of the utterance or the circumstances under which it was made . ”

On CARDINAL DATE ORG , in separate proceedings , rejected the GPE clinic 's civil action for an injunction against the applicants to desist from further distributing the pamphlet which forms the subject matter of the proceedings before the ORG . ORG interpreted the statement “ then : Holocaust / DATE : Babycaust ” as expressing the opinion that the performance of abortions constituted a reprehensible mass killing of human life . ORG further considered that , in the context of the public debate on the fundamental question of the protection of unborn life , the clinic had to accept the applicants ' expression of opinion .

On DATE ORG , in different proceedings ( no . CARDINAL/CARDINAL ) , confirmed its previous case - law that , in examining criminal or civil law sanctions for expressions of opinion which were made in the past , the right to freedom of expression was violated if , in case of an ambiguous statement , the courts based their considerations on the meaning leading to a conviction , without having previously ruled out other possible meanings which could not justify the sanction . However , these standards did not apply to the same degree to rights to desist from making future statements .


The applicant , born in DATE , presently resides in GPE , GPE . In his application form , he states that he has NORP nationality .

On DATE the applicant arrived in GPE and requested asylum . He stated that he is an ethnic NORP from PERSON in GPE . DATE and DATE he served in a NORP infantry unit and was involved in many battles in GPE . In DATE he refused to comply with an order for active duty and was put in a military prison for DATE . Upon release , he was ordered to report to his unit but , instead , he fled to GPE where he obtained a passport with which he travelled to GPE . He claimed that , if returned to GPE , he would be put in prison or sent to the front - line .

On DATE ORG ( ORG invandrarverk ) rejected the applicant ’s request and ordered his deportation to GPE . Finding that the applicant held both NORP and NORP citizenship , the ORG referred to a decision concerning asylum seekers with such double nationality taken by ORG on DATE . According to the decision , the prevailing situation in GPE rendered deportations to that country impossible . Consequently , in assessing applications from these asylum seekers , the crucial question was whether they could be afforded protection in GPE . ORG noted that , according to available information , persons in the applicant ’s situation did not risk to be sent from GPE to GPE against their will . Moreover , no acts of warfare had taken place on NORP territory for some time and a cease - fire had been agreed upon by the contending parties . Thus , there was no apparent risk that NORP citizens in general would be forced to take part in armed conflict . Further , the applicant had failed to show that he personally faced such a risk .

The applicant appealed to ORG ( Utlänningsnämnden ) . On DATE ORG , sharing the opinion of ORG , rejected the appeal .

The applicant later requested a temporary residence permit in GPE . By a decision of CARDINAL DATE ORG granted the applicant such a permit until DATE and quashed the deportation order . In so doing , the ORG referred to a Government decision of CARDINAL DATE according to which the worsened situation in GPE constituted an impediment to the deportation of asylum seekers to that country .

On DATE the applicant submitted a new application for a residence permit . He referred to his previous statements . Further , at an oral hearing held by ORG on DATE he claimed that he could not return to GPE , as he would not receive any help and would have great difficulties in supporting himself . Consequently , if returned to that country , he would be forced to go back to PERSON where he would be punished for having evaded military service . Further , as the most extreme NORP lived in his home district in GPE , he would be at risk due to the evasion and the fact that he had applied for asylum in a foreign country . He submitted a document showing that he was wanted for draft evasion by the military authorities of ORG . The applicant referred also to the time he had spent in GPE and claimed that he had adjusted himself to NORP society .

On DATE ORG rejected the applicant ’s new application and ordered his deportation to GPE . ORG had regard to guiding decisions taken by ORG and found that the applicant should not be sent back to PERSON . With regard to the possible deportation to GPE , the ORG noted that no new circumstances had been invoked by the applicant . Consequently , ORG reiterated the conclusions drawn in the previous decisions concerning the applicant . Furthermore , ORG found that there were no reasons of a humanitarian nature to grant the applicant a residence permit .

The applicant ’s appeal against ORG decision is still pending before ORG .

In a medical certificate issued at a psychiatric clinic in GPE on DATE chief physician P.R. stated that the applicant showed signs of depression , powerlessness and insomnia as a result of having spent DATE in refugee camps in GPE . However , the applicant refused to take medication as he did not consider that he was suffering from any serious illness .


Violation of Article 6 - Right to a fair trial

Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE , GPE .

At the material time the applicant worked at ORG ( “ the ORG ” ) , a ORG educational institution . According to the applicant , in DATE her family was provided by the ORG with an apartment . However , she was not provided with any documents certifying her title to this apartment .

In DATE the ORG instituted proceedings in ORG of GPE against the applicant , seeking eviction of her family . In this respect the ORG argued that the premises at issue were for administrative use only and that the applicant was occupying them without permission . The applicant lodged a counterclaim , seeking to acknowledge the habitable status of the disputed LOC and her tenancy title thereto . She also sought to oblige the ORG to conclude a rent contract with her on the disputed LOC .

On DATE the court joined the local city administration to the applicant ’s case as a third party .

From DATE to DATE and from DATE to CARDINAL DATE the proceedings were stayed due to the illness of the applicant .

On DATE the court ordered a forensic examination of the premises at issue . The expert ’s report was completed by DATE .

On DATE the applicant lodged an additional claim , seeking compensation for non - pecuniary damage .

On DATE the court found for the ORG and rejected the applicant ’s counterclaims . Accordingly , it ordered eviction of the applicant ’s family .

NORP On DATE the ORG ( since DATE the ORG ) quashed this judgment on an appeal by the applicant , finding that the lower court had failed to identify the members of the applicant ’s family and to join them to the proceedings as codefendants . Accordingly , it remitted the case for fresh consideration .

On DATE the case was transferred for examination to the GPE ORG of Odessa .

From DATE the court repeatedly requested the head of the military unit , the employer of the applicant ’s husband , to provide documents necessary for the case . A reply was sent to the court only on DATE .

On DATE the applicant ’s husband and son were joined to the proceedings as co - defendants .

From DATE to DATE no hearing was held as the judge in charge was either away on business or ill .

On DATE the court came to the same conclusions as the ORG of Odessa .

On DATE the NORP ORG quashed this judgment on the ground that the lower court had failed to address the statute of limitation issue in the case and the applicant ’s claim for compensation . Accordingly , it remitted the case for fresh consideration .

Of the QUANTITY hearings held DATE and DATE CARDINAL were adjourned due to the applicant ’s or her family PERSON failure to appear before the court , and CARDINAL due to the ORG representative ’s failure to appear before the court . CARDINAL of the hearings , on DATE , was adjourned as none of these persons attended .

NORP In DATE the courts considered the applicant ’s request to have her case examined on the merits by the panel of judges of ORG . This request was ultimately granted and the case transferred back to ORG which took it over on DATE .

DATE and DATE CARDINAL hearings were adjourned due to the ORG representative ’s failure to appear before the court or upon his requests . CARDINAL hearings held DATE and CARDINAL DATE were adjourned due to the applicant ’s failure to attend them . According to the applicant , she had not been duly summoned by the court and therefore those delays were not her fault .

On DATE the ORG of Appeal found that the LOC at issue were not habitable and were for administrative use only . It went on to say that these LOC had been provided to the applicant on a temporary basis conditional upon her employment with the ORG and that the applicant was no longer working at the ORG . Accordingly , the court rejected the applicant ’s claim and ordered the eviction of her family .

Of the CARDINAL hearings held DATE and CARDINAL DATE CARDINAL were adjourned due to the applicant ’s and CARDINAL due to the ORG representative ’s failure to appear before the court , in addition to those mentioned before ( see paragraph CARDINAL ) . CARDINAL hearings were cancelled because the judge in charge was either travelling on business or ill .

On DATE ORG upheld the judgment .

Apparently , the judgment of CARDINAL DATE has still not been enforced .


András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen

A list of the applicants is set out in the Appendix . Additionally , the case and decision numbers of the impugned proceedings appear in the Appendix .

On various dates , the applicants initiated actions before the civil courts or proceedings were brought against them before the civil or criminal courts . The procedures lasted DATE .

A description of the relevant domestic law may be found in Müdür PERSON and Others ( ( dec . ) , no CARDINAL/CARDINAL , § § DATE , DATE ) .