Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo

The applicant, Mr Herbert Austin, is a British national, who was born in 1949 and lives in Birmingham.

The complaint made in this application is that the applicant’s trial for money laundering was unfair because the legal framework governing disclosure of prosecution evidence to the defence was inadequate, and the operation of that legal framework had deprived the applicant of a fair trial since neither the trial judge nor the Court of Appeal had reviewed the material which the prosecution claimed was not relevant and therefore not discloseable.

In May 2006 the applicant was convicted after trial of the importation of cocaine. The applicant appealed against his conviction and the appeal centred on whether there had been a failure to disclosure telephone intercept evidence. Special counsel was appointed to represent the applicant (that is, independent counsel appointed in addition to the applicant’s own counsel, but able to see evidence not disclosed to the defence on public interest grounds: see paragraphs 42-43 below). While the appeal was pending, the prosecution decided no longer to resist the appeal. On 15 September 2009 the Court of Appeal quashed the conviction and ordered a re-trial. In doing so, it gave two redacted or “open” judgments (that is, judgments which are public and available to all parties) and two unredacted or “closed” judgments (judgments seen only by the prosecution and special counsel appointed for the applicant).

In reaching its conclusions, the Court of Appeal indicated that further material related to the telephone intercept evidence was prima facie discloseable and it would have to be reviewed in light of Public Interest Immunity (“PII”) considerations. Therefore, before the re-trial, a review of the prosecution’s unused material (that is, evidence that they had not relied on at the first trial) was conducted by independent counsel, Mr Laidlaw (“the Laidlaw review”). Mr Laidlaw concluded that there had been serious and multiple instances of non-disclosure during the cocaine trial attributable to significant and acknowledged failures by the Crown in communicating between its various entities. These failures, which were confined to issues concerning intercept material relating to the drugs offences, potentially affected the provenance, authenticity and reliability of the intercept evidence, but affected no other evidence. The prosecution then gave notice that they would not seek to rely on the intercept evidence because they could not comply with their disclosure obligations. Later, on 3 August 2010, they decided not to proceed with the prosecution. Verdicts of not guilty were accordingly recorded on 3 September 2010. It had been the intention of the defence to make submissions to the trial judge as to lack of disclosure and an abuse of process by the prosecution, but the prosecution’s decision to drop the case meant that those submissions were not, in the event, heard or substantively determined. In addressing the court the defence indicated that based on their experience, they had “no confidence in the integrity of the prosecution in this case”.

The money laundering case arose from the electronic theft in August 2000 of over USD 15,000,000 from C. Bank, Frankfurt. Part of the money was said to have been laundered through a series of transfers from Frankfurt to Amsterdam and then to Australia and, thereafter, to corporate bank accounts in Cyprus and Jersey, which were controlled by the applicant and a co-defendant. The money was then used to purchase property for the benefit of the applicant and his co-defendant through an estate agent firm which they ran. This was done through a series of payments totalling GBP 1.6 million. The transfers were orchestrated by an Australian, R.B. The main evidence against the applicant was a document seized from R.B.’s home which suggested that the applicant was to be one of the beneficiaries of the stolen money. The applicant’s defence was that he was investing the money on behalf of R.B. and did not know it was stolen.

It appears that, before the money laundering trial started, the trial judge sought and received approval to read the unredacted version of the Court of Appeal’s judgments quashing the applicant’s conviction in the cocaine case. Approval was given by, among others, the judge who had presided in the appeal. The trial judge did not, however, inform the defence and prosecution of his intention to obtain and read those unredacted judgments.

Also in advance of trial the defence sought to argue that the proceedings were an abuse of process. The two prosecutions (the cocaine case and the money laundering case) involved the same police officers and prosecution counsel. There were, it was argued, overlaps in the evidence. The applicant thus submitted that the court should examine the prosecution’s failure to disclose evidence in the cocaine case and consider whether he could have a fair trial in the money laundering case. The following hearings considered these questions.

On 9 May 2011 the applicant asked for disclosure of the material which had led to the conviction in the cocaine case being quashed. The prosecution considered that, in so far as the money laundering case was concerned, there was nothing in that material which was discloseable: there was nothing which would undermine the prosecution case or assist the defence submission that the proceedings were an abuse of process. Submissions then took place in respect of the material reviewed by Mr Laidlaw QC (see paragraph 5 above). The trial judge indicated that he did not wish to look at that material but accepted that, if he was called upon to rule on whether there was any impropriety in the prosecution, he would have to do so.

On 10 May 2011 leading counsel for the prosecution reiterated that, in the materials reviewed by Mr Laidlaw, there was nothing capable of supporting any allegation of bad faith and therefore nothing that was discloseable. Counsel for the applicant submitted that it was not an assurance on the propriety of disclosure the defence was asking for, but rather the evidence which had not been disclosed.

On 11 May 2011 the defence applied for the proceedings to be stayed on the ground that there had been an abuse of process arising, inter alia, from the prosecution’s failings in the cocaine case. They also asked the trial judge to consider disclosure to allow proper consideration of the available evidence. In particular, the defence sought details of the documentation which had been seen by the Court of Appeal in the appeal against conviction in the cocaine case and which had led to the appeal being allowed.

The trial judge ruled that the defence were not entitled to disclosure of this documentation. The disclosure system relied on the integrity of prosecution counsel and there was no basis for any allegation in respect of the prosecution’s integrity. Prosecution counsel had told him there was nothing to disclose and there was nothing in the material he had seen to displace his duty to put his trust on issues of disclosure firmly in the hands of prosecution counsel.

On 16 May 2011 the trial judge was invited to reconsider his ruling of 11 May in light of the fact that prosecution counsel had not seen all of the material herself. He declined to do so. He found that prosecution counsel could not expect to look at every item of material and must rely on being part of a team. Prosecution counsel had a system for being kept properly informed. It was her judgment, not anyone else’s, which had led to her declaring that there was no discloseable material.

On 17 May 2011, the trial judge rejected an application that he should recuse himself because he had read the unredacted Court of Appeal judgments. He confirmed, however, that he had relied on those judgments when considering and rejecting the allegations of bad faith and abuse of process made by the defence and also while considering whether the events which led the Court of Appeal to quash the conviction in the cocaine case would affect the fairness of the money laundering trial.

On 19 May 2011 the judge declined to accede to a further application for disclosure on the part of the defence.

On 25 May 2011 the defence again applied for the proceedings to be stayed as an abuse of process on grounds relating to, inter alia, the integrity of the prosecution team and an alleged manipulation of the trial process. The trial judge rejected that application. He found that, even if the prosecution had acted with bad faith in the cocaine case, this would not infect the prosecution in the money laundering case. Having considered the Court of Appeal’s unredacted judgments there was no foundation in them for any allegations of bad faith or other misconduct on the part of those involved in prosecuting the money laundering case. He also declined to appoint special counsel for the purposes of the trial.

At trial one of the men responsible for the initial theft from C. Bank, D.S., gave evidence for the prosecution that R.B. was pivotal to the entire operation and that a third man, R.J., would legitimise the money. They also led evidence from a businessman and a broker tending to show the connections between R.J, R.B., and the applicant. A forensic accountant gave evidence of the routes the money had taken and of correspondence between R.J. and R.B.

The applicant gave evidence setting out his business dealings with, among others, R.J. and R.B., but denied that he knew the money was stolen.

Since it was accepted that the C. Bank money had been stolen, and the money had taken the route it did, the only issue for the jury was whether the applicant knew the money was stolen.

The applicant was convicted on 21 October 2011 of one count of conspiracy to conceal the proceeds of criminal conduct and one count of conspiracy to convert the proceeds of criminal conduct. He was acquitted of one count of conspiracy to transfer the proceeds of criminal conduct, and a similar count was ordered to lie on the file (meaning that no verdict was returned on it and the prosecution could only subsequently revive and proceed on that count in exceptional circumstances).

On 12 December 2011 the applicant was sentenced to eight years’ imprisonment.

The applicant appealed to the Court of Appeal against his conviction on a single ground, namely that his conviction was unsafe because the judge had acted incompatibly with his Article 6 rights in resolving the abuse of process application in the money laundering case without appointing special counsel to advance the applicant’s interests despite his having read and been influenced by the two unredacted Court of Appeal judgments in the cocaine case.

In the course of the appeal the same special counsel who had been appointed in the appeal in the cocaine case was re-appointed and, as the Court of Appeal later noted, he was given “the fullest possible access to potentially relevant material”. In particular, he read and considered the unredacted judgments of the Court of Appeal, the opinion of Mr Laidlaw on disclosure failures in the cocaine trial together with the supporting documentation (see paragraph 5 above), and the undisclosed material in the money laundering case. The special counsel made critical submissions on the applicant’s behalf, noting that there had been serious failings in the cocaine trial. However, he noted that “although there were repeated errors, and bad judgment [on the part of the prosecution in the cocaine trial], there was no evidence of deliberate non-disclosure, or attempts to hide material, or of deliberate misleading”. Moreover, he considered that there was no evidence from which it could be argued that the money laundering trial had been tainted. Accordingly, he considered that no issue arose as to whether any of this material should be the subject of an application by the prosecution to withold disclosure in the money laundering proceedings.

Nevertheless, special counsel invited the Court of Appeal to consider whether the following matters were compatible with Article 6:

- the trial judge relying on the unredacted/closed judgments of the Court of Appeal;

- the trial judge not ordering the prosecution to make available further material said by the defence to be relevant to their application on abuse of process;

- special counsel not having been appointed at trial; and

- the failure of the trial judge to recuse himself having read the Court of Appeal judgments.

The Court of Appeal dismissed the appeal on 27 June 2013. It began by emphasising the difference between issues of disclosure and abuse of process. It observed (at paragraphs 47–49 of its judgment):

“Disclosure is concerned with the question of what material should be disclosed to the defence with a view to its being deployed before the tribunal of fact, whether that is the jury dealing with the issue of guilt or innocence, or the judge dealing with an issue such as whether proceedings should be stayed for abuse of process. It is the everyday experience in criminal proceedings that a judge may be required to examine material which is prima facie disclosable in order to rule on whether disclosure to the defence should be withheld, for example on grounds of public interest immunity, and it may (although only exceptionally) be appropriate for this purpose for a special counsel to be appointed. If the judge does so rule, that material will play no further part in the trial, and the judge will put it out of his mind for the purpose of any subsequent rulings in the case, including any ruling on abuse of process. All this is well established.

Abuse of process is different, because it involves a substantive determination of the case. For a judge to determine an abuse argument by reference to material which he had seen, but which the defence has not seen, undoubtedly creates a difficulty.

Although we shall have to consider the procedure adopted in the court below, it is well established that the question of breach of Article 6 must be determined by reference to the proceedings as a whole, including any appeal. [Counsel for the applicant] accepted, rightly in our view, that if it can now be said as a result of the proceedings in this court that there was nothing further which required to be disclosed, and nothing in the unredacted judgments seen by the judge which would have been capable of assisting the defence in their abuse of process arguments, the appeal must be dismissed. Whatever criticisms might have been made of the procedure below, there would then be no breach of Article 6, and no reason to doubt the safety of the appellant’s conviction.”

The Court of Appeal then considered the proper role of a trial judge in such a situation. It noted that all of the parties to the appeal accepted that the trial judge had erred in reading the unredacted judgments without disclosing his intention to do so to the defence and prosecution.

The Court of Appeal considered that it would have been better if the judge had made clearer the distinction between the application for disclosure and the application to stay the proceedings for abuse of process. In relation to the application for disclosure, he could have accepted the assurance given by prosecution counsel at the pre-trial hearings on 911 May 2011. It would not then have been necessary to read the unredacted judgments of the Court of Appeal.

However, he might also have informed the parties that, because of the history of the case, he wished himself to review the relevant material from the earlier case in order to satisfy himself that proper disclosure had been made in the latter case. If he had indicated that to all parties, he would have been entitled to proceed to read the unredacted judgments from the Court of Appeal. Logically, if he was to consider those judgments, he should also have reviewed the relevant material relating to the discontinuance of the drugs prosecution.

Nevertheless, it was clear from his rulings that the trial judge had considered disclosure first and then abuse of process. He had concluded that the unredacted judgments were not discloseable as they contained nothing to support the defence or undermine the case for the prosecution. The trial judge was also correct to refuse to recuse himself: he had not been shown any material in private which was damning of the applicant.

The Court then considered whether the applicant’s trial was unfair because the trial judge had failed to appoint special counsel before addressing the issue of disclosure or resolving the abuse of process application. Given the history of the case it would have been permissible for the trial judge to have appointed special counsel to help address the question of disclosure. However, there was no obligation on him to do so. It was open to the judge to conclude without special counsel that the prosecution’s disclosure obligation had been properly discharged. It may be that the appointment of special counsel to consider disclosure would have been a reassurance to the applicant, but this was a question of judgment for the judge which he could exercise properly either way.

As regards abuse of process and the appointment of special counsel, the applicant had submitted that it was wrong in principle for a substantive issue in criminal proceedings to be decided on the basis of information which was not communicated to the defendant. The appointment of special counsel could cure such a defect. However, having reviewed the leading authorities on the appointment of special counsel, including the judgment of the Grand Chamber in Edwards and Lewis and that of the House of Lords in H and C, the Court of Appeal declined to reach a conclusion on whether special counsel could be appointed for a purpose other than disclosure, such as consideration of a substantive issue like abuse of process.

Next, the Court of Appeal considered the role of special counsel on appeal. It recalled that, when an appeal was brought in connection with an issue of disclosure (or non-disclosure on public interest grounds), the Court of Appeal would review all of the material before the trial judge. Nevertheless, there would also be cases where the court would request the appointment of special counsel, including for the consideration of issues other than disclosure.

The court then addressed the submissions made on behalf of the applicant by special counsel. In addressing the submission that the applicant had been “traduced” by the trial judge considering the unredacted Court of Appeal judgment which he, the applicant, could not see, the Court of Appeal observed:

“86. The position is rather simpler than that suggested. The defence raised a suggestion of abuse of process. The judge looked at material which, if it had undermined the prosecution position on the claim of abuse or was capable of lending support to the suggestion of abuse, would have been disclosable, subject to [public interest immunity] considerations. The judge found there was no such material. That is not a finding which ‘traduces’ the appellant. It was simply a finding that the closed judgments of the Court of Appeal were not capable of supporting the claim of abuse. This was not a case where the defendant was making specific factual allegations amounting to abuse which were then contradicted by detail contained in undisclosed material. We would add that our reading of the Judge’s ruling on the abuse argument is that the unredacted judgments were not central to his reasoning. Rather they fortified the conclusion he would have reached in any event.”

The Court of Appeal then summarised the conclusions of special counsel, who had reviewed the material originally reviewed by Mr Laidlaw. In respect of that material, special counsel had concluded that, although there were repeated errors, and bad judgment, there was no evidence of deliberate non-disclosure, or attempts to hide material, or of deliberate misleading. On that issue, the Court of Appeal concluded:

“On the basis of our review of that material, we unhesitatingly concur with that conclusion. Taken as a body, the closed judgments of the Court of Appeal in 2009 and the opinion of Mr Laidlaw QC with its supporting material, which has been made available in full to us, revealed nothing which would be disclosable as undermining the prosecution case in the money laundering proceedings or supporting defence allegations of abuse of process in the money laundering proceedings. All of the failings identified are wholly discrete from the investigation into the money laundering or the evidence presented at the trial before [the trial judge]. Even within the four corners of the drugs case, we emphasise that there is nothing to support allegations of bad faith.

Finally, in considering the role and submissions of Special Counsel in this appeal, it is appropriate to address the unused material that was in the possession of the prosecution at the time of the money laundering trial. [The trial judge] paid no regard to any prosecution material withheld in the course of the money laundering case. However, out of an abundance of caution, on 28 February 2013 we requested Special Counsel to examine the unused material from the money laundering investigation, and Mr Keith has done so. He concluded that all of the items appeared to be sensitive and/or confidential, and were properly withheld. Mr Keith paid particular attention to the possibility of documents appearing to relate to the course, direction or conduct of the investigation. He found none. He also paid special attention to any item that appeared to relate to any of the personnel who had been concerned in the material non-disclosure during the drugs case. He found no such documents.”

Finally, in respect of Article 6, the Court of Appeal found:

“95. It is axiomatic that we should consider this question by reference to the criminal proceedings as a whole, including the appeal process. At one point, [counsel for the applicant] submitted that the consideration by the trial judge of undisclosed material both as to disclosure and as to the substance of the issue on abuse of process represented an irredeemable breach of Article 6. However as we have already indicated, he moderated that position in the course of the hearing, and accepted that if there was nothing further which required to be disclosed, and nothing in the unredacted judgments capable of assisting the defence in their abuse arguments, the appeal must be dismissed.

The Crown throughout took a directly contrary view to the [applicant’s] original submission. As we have already observed, [counsel for the prosecution] submits that the judge should have accepted the assurances of counsel as to the propriety of the decisions on disclosure taken by the prosecution. There was no need for the judge to look at any of the material: the Crown had performed their duty properly. [Counsel for the prosecution] criticises the judge’s unilateral decision to look at the closed judgments, but submits this is neither here nor there. All he did was to reassure himself the Crown had taken the correct decision. There was no material that would tend to undermine the prosecution or assist the defence. Since the only way in which the relevant material might even hypothetically undermine the prosecution or support the defence, was in relation to the abuse of process claim, it was unsurprising that the judge’s view on disclosure should find its echo in his decision on abuse of process.

We have already indicated our view of the submission from Special Counsel that the use of the closed judgments ‘traduced’ the appellant [see the quotation from paragraph 86 of the court’s judgment set out at paragraph 33 above]. Our view of this submission may bear a little expansion in the context of considering a potential breach of Article 6. As we have already stated, the two potential issues of relevance here were inadequacy of disclosure in the money laundering case or abuse of process of the Bennett/Mullen type [on the basis that there has been unconscionable behavior by the executive – see paragraph 46 below]. The decision as to the adequacy of disclosure in the money laundering proceedings is clearly not a ‘substantive’ issue in the criminal trial. This question is almost always decided without the defence having knowledge of the material sought to be withheld. As to the second issue... while, at least theoretically, wrongful withholding of evidence capable of sustaining such a claim could represent a breach of Article 6, it could not even then be said to ‘traduce’ the defendant. We do not consider that what took place here represented a breach of Article 6 at all.”

The Court of Appeal thus dismissed the appeal.

The applicant applied to the Court of Appeal to certify a point of law of general public importance concerning the compliance of the disclosure regime with Article 6 of the Convention. On 16 October 2013 the Court of Appeal refused the application.

Pursuant to section 3 of the Criminal Procedure and Investigation Act 1996 (“the 1996 Act”), the prosecutor must disclose to the accused any prosecution material which has not previously been disclosed to him and which might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused. However, material must not be disclosed where the court, on an application by the prosecutor, concludes it is not in the public interest to disclose it.

The duty of the prosecutor to disclose is a continuing one which, according to section 7A of the 1996 Act, applies at all times after the prosecutor has complied with his section 3 duty up until the point where the accused is acquitted, convicted, or the prosecutor decides not to proceed with the case.

Section 8 of the 1996 Act permits the accused to apply to the court for an order requiring the prosecutor to disclose relevant material which he has reasonable cause to believe is in his possession.

In R v H and C [2004] 2 AC 134 Lord Bingham emphasised, at paragraph 35, that the prosecution should only seek a judicial ruling on the disclosability of material in its hands in truly borderline cases.

In R v H and C, decided after the Chamber judgment in Edwards and Lewis v. the United Kingdom, nos. 39647/98 and 40461/98, 22 July 2003, the Judicial Committee of the House of Lords held, inter alia:

“The years since the decision in R. v. Davis and the enactment of [the Criminal Procedure and Investigation Act 1996] have witnessed the introduction in some areas of the law of a novel procedure designed to protect the interests of a party against whom an adverse order may be made and who cannot (either personally or through his legal representative), for security reasons, be fully informed of all the material relied on against him. The procedure is to appoint a person, usually called a ‘special advocate’, who may not disclose to the subject of the proceedings the secret material disclosed to him, and is not in the ordinary sense professionally responsible to that party but who, subject to those constraints, is charged to represent that party’s interests. ...

There is as yet little express sanction in domestic legislation or domestic legal authority for the appointment of a special advocate or special counsel to represent, as an advocate in PII [public interest immunity from disclosure] matters, a defendant in an ordinary criminal trial ... But novelty is not of itself an objection, and cases will arise in which the appointment of an approved advocate as special counsel is necessary, in the interests of justice, to secure protection of a criminal defendant’s right to a fair trial. Such an appointment does however raise ethical problems, since a lawyer who cannot take full instructions from his client, nor report to his client, who is not responsible to his client and whose relationship with the client lacks the quality of confidence inherent in any ordinary lawyer-client relationship, is acting in a way hitherto unknown to the legal profession. While not insuperable, these problems should not be ignored, since neither the defendant nor the public will be fully aware of what is being done. The appointment is also likely to cause practical problems: of delay, while the special counsel familiarises himself with the detail of what is likely to be a complex case; of expense, since the introduction of an additional, high-quality advocate must add significantly to the cost of the case; and of continuing review, since it will not be easy for a special counsel to assist the court in its continuing duty to review disclosure, unless the special counsel is present throughout or is instructed from time to time when need arises. Defendants facing serious charges frequently have little inclination to cooperate in a process likely to culminate in their conviction, and any new procedure can offer opportunities capable of exploitation to obstruct and delay. None of these problems should deter the court from appointing special counsel where the interests of justice are shown to require it. But the need must be shown. Such an appointment will always be exceptional, never automatic; a course of last and never first resort. It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant. ...”

With regard to the role of special counsel at the appeal stage, in R. v. Chisholm [2010] EWCA Crim 258 Lord Justice Touslon made the following “tentative observations”:

“46. At the appellate stage, it is obviously not the case that whenever the single judge or the full court is considering an application for leave to appeal against conviction on grounds relating to an anonymity order, it will request the appointment of special counsel. In many cases, the court, on reading the closed material, will be able to reach a view about the propriety of what happened and the safety of the conviction without any need for special counsel. However, there may be cases where, before deciding whether to grant leave, or on granting leave, the court may consider it necessary in the interests of justice to request that special counsel be appointed. This might be for a number of possible reasons: the court may consider that help is needed from special counsel to ensure that it has all the material which it ought to have; the court might want to know whether special counsel, having read the grounds of appeal and supporting advice, would wish to present argument in support of any of the grounds of appeal on the basis of material not known to the applicant or appellant’s ordinary counsel. The court might also wish to know whether special counsel would want to raise some other point unknown to the appellant’s ordinary counsel relating to what happened in the closed proceedings. Or there might be questions on which the court feels that it needs the assistance of special counsel to do justice. These matters would call for individual consideration in the individual case.”

In R. v Horseferry Road Magistrates’ Court, ex Parte Bennett (No 1) [1993] UKHL 10 the House of Lords confirmed that an abuse of process justifying the stay of a prosecution could arise where it would be impossible to give the accused a fair trial; or where it would amount to a misuse/manipulation of process because it offends the court’s sense of justice and propriety to be asked to try the accused in the circumstances of the particular case.

The prosecution’s failure to disclose material may lead the courts to stay proceedings on grounds of abuse of process: R v Birmingham and Others [1992] Crim LR 117. However, a stay should not be imposed unless the defendant can show that he or she would suffer such prejudice that a fair trial would not be possible.

A court (the High Court or above) may also stay proceedings where there has been unconscionable behavior by the executive (see Bennett v Horseferry Road Magistrates’ Court and R v Mullen [1999] 2 Cr. App. R. 143.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Yonko Grozev

The applicant was born in 1979 and is currently in detention in Zhytomyr, Ukraine.

In October 2001 Ms K. was found murdered in her flat. In December 2001 Ms S., a minor, was kidnapped and murdered.

On 10 December 2001 the applicant was arrested on suspicion of kidnapping S. in order to extort money from her parents and of S.’s murder. On 17 December 2001 the applicant was provided with a lawyer in connection with those charges.

On 25 December 2001 Mr K., the deceased Ms K.’s son, was questioned as a witness and confessed to the murder of his mother. The next day he retracted his confession.

On 15 February 2002, purportedly at his own request, the applicant, was questioned as a witness about the circumstances of K.’s death. During the questioning, which took place without a lawyer, the applicant confessed to K.’s murder. The applicant said that he had read an advertisement in a local newspaper that K. wanted to buy a flat in Zhytomyr. He had decided to rob her, on the assumption that she had savings at home for the purchase of a flat. The victim had allowed him to enter her flat. During their conversation, the victim had told the applicant that she had a conflict with a neighbour about a sausage business the neighbour was running from the building. She also had tense relations with her daughter-in-law. When the applicant had threatened her and demanded money she had told him that she had none because she had placed the advertisement at the request of a friend who lived in another town and wanted to buy a flat in Zhytomyr. To conceal his attempted robbery the applicant had then murdered the victim.

The transcript of the applicant’s questioning recorded that he was told about his duty to state everything he knew about the case, that he could face criminal liability for refusal to testify and for giving false statements and about the constitutional provision guaranteeing the privilege against self-incrimination.

On 16 February 2002 the applicant, still acting as a witness, participated without a lawyer in an on-site reconstruction of the attack on K. On 18 and 22 February 2002 he was again questioned, without a lawyer, about the attack.

On 22 February 2002 the investigator in the case requested an opinion from psychiatrists on a number of questions, namely:

(i) whether the applicant was suffering from a psychiatric condition;

(ii) whether the applicant was sane at the time of the commission of the acts he was accused of and at the time of the assessment;

(iii) if the experts established that the applicant had been suffering from a psychiatric condition or a temporary disruption of his mental capacities at the time of commission of the act, whether he had been conscious of the meaning of his actions and whether he could control them; and

(iv) whether the applicant was in need of compulsory psychiatric treatment.

On 25 February 2002 the investigating prosecutor instituted criminal proceedings against the applicant for the murder of K. and joined them with the criminal case concerning the kidnapping and murder of S. It appears from the applicant’s submissions that on the same day he was given the procedural status of an accused and was allowed for the first time to consult a lawyer in connection with the charges related to the attack on K. Article 142 of the Code of Criminal Procedure required that procedural rights had to be explained to a person who acquired the status of an accused, including the right to remain silent and to have a lawyer.

On 5 March 2002 a panel of psychiatric experts examined the applicant and produced a report on his mental state, concluding that he had been sane at the time of the alleged crimes and was sane at the time of the assessment. According to the report, in the course of the interview with the experts the applicant gave a description of K.’s murder that was identical to the one he had given to the investigator (“обстоятельства его подготовки и убийства... излагает так, как излагал в ходе следствия”). The experts added that in doing so the applicant had been speaking as if reciting a text memorised by heart and had remained silent when interrupted and asked for details or clarifications. The experts concluded that the applicant was sane.

The applicant stood trial at the Zhytomyr Regional Court of Appeal, which was competent to act as a trial court (“the trial court”) because the applicant was accused of aggravated murder, a crime carrying a potential life sentence. In the course of the trial the applicant stated that he was innocent of both murders but pleaded guilty to kidnapping S. He stated that on the day of K.’s murder he had met an old childhood acquaintance, M., in the street. M. had told him that he had killed K. To check M.’s story the applicant had gone to K.’s flat and had seen her dead body there. He had had nothing to do with the robbery and murder.

On 11 July 2002 the trial court convicted the applicant of kidnapping, extortion and the murder of S. He was also convicted of the robbery and murder of K. The court sentenced him to life imprisonment. In convicting the applicant of K.’s robbery and murder the trial court relied in particular on:

(i) the applicant’s initial confessions;

(ii) the crime scene report, which showed that the layout of the victim’s flat, the placement of furniture and the position of her body matched the applicant’s confessions;

(iii) medical evidence that the victim’s clothing and injuries matched the applicant’s confessions;

(iv) the statement of Ms O.K., the victim’s friend, who said she had asked the victim to place an advertisement for the purchase of a flat on her behalf;

(v) the testimony of Ms V.S., the victim’s neighbour, who stated at the trial that she had run a sausage business from the victim’s block of flats and that she had had a conflict with the victim over that matter;

(vi) the testimony of the victim’s son and daughter-in-law that relations between the victim and the daughter-in-law had been tense;

(vii) evidence from an expert to the effect that it could not be ruled out that the victim’s injuries had been caused by a knife found at the applicant’s home.

On 10 October 2002 the Supreme Court, sitting as a court of cassation, upheld the applicant’s conviction.

On 2 April 2003 the applicant lodged an application with the Court (no. 16404/03), alleging that his conviction for the murder of K. had been based on incriminating evidence that had been obtained in violation of his right to remain silent and the privilege against self-incrimination and that he had been hindered in the effective exercise of his right to defence when questioned at the pre-trial stage of the proceedings.

On 19 February 2009 the Court declared the application partly admissible and found a violation of Article 6 §§ 1 and 3 of the Convention. The Court found in particular that:

“58. The Court reiterates that in particular where a deprivation of liberty is at stake, the interests of justice in principle call for legal representation (see Benham v. the United Kingdom, no. 19380/92, § 61, 10 June 1996). Furthermore, the Court notes that Ukrainian legislation provides for obligatory legal representation of persons who could expect life imprisonment if convicted. This was the applicant’s situation, in that he was already charged with a murder and being accused of the second murder made a sentence of life imprisonment a possibility... The Court considers that the legal representation of the applicant during the period in question was required in the interests of justice.

Furthermore, ...t, if not solely, on these selfincriminating statements. The statements did not in fact contain any information which was not already known to the investigators (in contrast to the case of the kidnapping and murder of S., in which the applicant showed the police where the corpse had been hidden) and had been received in unclear circumstances and in clear violation of the applicant’s right to defence.” (Shabelnik, cited above)

The Shabelnik judgment (cited above) became final on 19 May 2009.

The applicant’s lawyer (Mr Bushchenko), lodged an application with the Supreme Court for a review of the applicant’s criminal case in view of the first Shabelnik judgment (cited above). He asked the Supreme Court to quash the trial court’s judgment and its own 2002 decision upholding the original conviction. He asked that he and the applicant be present during the examination of the request.

The prosecutor’s office also applied to the Supreme Court for a review. They asked the court to amend the trial court’s judgment and the Supreme Court’s 2002 decision by striking out references to the records of the questioning of the applicant as a witness about K.’s murder and the result of the on-site reconstruction of that murder.

On 30 April 2010 the Supreme Court, sitting in a formation composed of all the judges of the criminal and military chambers of the court, allowed the above applications in part, quashed its own 2002 decision and remitted the case for fresh examination in cassation proceedings by a panel of three judges of the Supreme Court.

Hearings before the Supreme Court panel were scheduled and rescheduled several times and the applicant was informed of this accordingly. The case was finally scheduled for hearing on 9 September 2010 and the applicant and Mr Bushchenko were informed of this by letter on 30 July 2010. Neither the applicant nor Mr Bushchenko requested that the applicant be escorted from his prison to the hearing before the Supreme Court panel.

On 9 September 2010 the Supreme Court examined the case in the absence of the applicant but in the presence of his lawyer and a prosecutor. The lawyer made submissions to the court and a written summary of his remarks was submitted to the Supreme Court.

According to the summary, after reiterating that the applicant’s confessions and the reconstruction reports should be ruled inadmissible, the lawyer presented his analysis of the remaining evidence in the file. He dealt with the question of the evidence of the applicant’s involvement in the attack on K., seeking to show that it was either inadmissible or unreliable. In particular, he made the following arguments:

(i) the psychiatric report, in so far as it provided a record of the applicant’s alleged statements about K.’s murder, was unspecific and constituted a judgment by the experts about the applicant’s statements which the experts had been unqualified to make, as opposed to an accurate record of those statements. In any case, it was improper to use that report since the psychiatrists had never been examined by the defence. Moreover, the applicant’s supposed statements to the experts were inadmissible because they were marred by the same problems as the confessions that had been obtained in breach of his Convention rights;

(ii) as to the other evidence, in particular the crime scene examination report and the witness evidence, it only had evidentiary value as corroboration for the applicant’s statements, but as those statements had to be ruled inadmissible to give effect to the first Shabelnik judgment (cited above), the other witness evidence could also not be used to support a finding of the applicant’s guilt;

(iii) certain circumstances, such as the fact that no traces of the applicant’s presence had been found in K.’s flat, pointed to the applicant being innocent of the murder.

On the same day the Supreme Court delivered its decision. It excluded the applicant’s original confessions from the body of evidence. However, it found that the rest of the evidence in the case file was sufficient to support the trial court’s finding that the applicant had murdered K. while trying to cover up an attempted robbery.

In particular, the Supreme Court approved of the trial court’s reliance on: (i) evidence from the expert that it could not be ruled out that the victim’s injuries had been caused by the knife found at the applicant’s home, and (ii) the statements of the witnesses O.K., V.S. and “others” concerning the applicant’s supposed motive for the murder (see paragraph 16 above).

In support of its findings the Supreme Court also referred to material and circumstances on which the trial court had not explicitly relied: (i) the fact that “in the course of psychiatric assessment [the applicant], told the experts about [K.’s murder] under the circumstances established by the [trial] court”; (ii) the applicant’s admission in court that he had visited the victim’s flat; and (iii) the testimony of Ms G., the victim’s neighbour, that she had seen the applicant in the victim’s block of flats.

The Supreme Court concluded that, other than the breaches which led to the exclusion of the applicant’s original confessions’s conclusions were based on admissible and sufficient evidence.


No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life;Respect for private life)

Alena Poláčková;Branko Lubarda;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1955 and lives in Pozuelo de Alarcón (Madrid).

The applicant cohabited with another man in a homosexual relationship from 1990 until the latter’s death on 2 July 2002. During that period they lived together in an apartment belonging to the applicant’s partner. When his partner died, the sister and only heir of the applicant’s partner gave the applicant, because of the relationship he had had with her brother, an apartment that had belonged to the applicant’s late partner and in which the couple had spent their holidays together since 1990.

On 19 September 2003 the applicant claimed social security allowances as a surviving spouse, under section 174 (1) of the General Social Security Act, arguing that he had cohabited with his deceased partner for many years.

On 22 September 2003 the National Institute of Social Security (Instituto Nacional de la Seguridad Social, hereafter referred to as “INSS”) refused to grant the applicant a survivor’s pension on the ground that since he had not been married to the deceased person, he could not legally be considered as his surviving spouse for the purposes of section 174 (1) of the General Social Security Act. That decision was formally served on 13 June 2005.

On 1 July 2005 Law no. 13/2005 amending the provisions of the Civil Code with respect to the right to enter into marriage was passed. Two days later it entered into force. This law legalised same-sex marriage in Spain. In accordance with its first additional provision all legal and regulatory provisions making reference to marriage should be understood thereafter as applicable to all marriages irrespective of the sex of its members (see paragraph 35 below).

On 5 July 2005 the applicant filed an administrative complaint against the decision of 22 September 2003. This complaint was dismissed by the INSS on 11 August 2005. The INSS noted that there was no provision in the legislation in force that allowed, for the purposes of social security rights, the person who had been cohabiting with the deceased to gain the status of a widower.

On 26 September 2005 the applicant challenged that decision before the Madrid Social Tribunal no. 33 (“the Social Tribunal”).

In a judgment of 14 November 2005 the Social Tribunal ruled for the applicant. The Social Tribunal firstly outlined that the facts of the case had to be assessed in the light of the newly enacted Law no. 13/2005, which was already in force and deemed constitutional by the tribunal. As to the merits, the Social Tribunal observed that the issue at stake was whether the applicant, as the surviving partner of a same-sex relationship that ended (following his partner’s death) before the entry into force of Law no. 13/2005, had the right to a survivor’s pension. The Social Tribunal then reiterated that, according to the well-established domestic case-law, surviving partners of unmarried couples were not entitled to a survivor’s pension under section 174 of the General Social Security Act, marriage being a constitutive element to access any such social-security benefit; that the applicant had been prevented from marrying his partner because same-sex marriage had not been recognised in domestic law at the time his partner died; that the social security administration had relied on the fact that the couple had not married to refuse the applicant a survivor’s pension; and that it was evident that after the entry into force of Law no. 13/2005, surviving spouses of same-sex marriages were entitled to survivors’ pensions on the same footing as survivors of different-sex marriages.

The Social Tribunal was of the view that the solution to the legal issue raised by the applicant’s case depended on whether it could be inferred from Law no. 13/2005 that Parliament’s intention had been that surviving partners of same-sex couples who had been prevented from marrying under the former legislation could access a survivor’s pension on a similar footing to same-sex couples who could marry after the entering into force of that Act. The Social Tribunal drew attention in this regard to the provisions and the explanatory memorandum of Law no. 13/2005 to contend that this new legislation had a very strong egalitarian purpose, and that from the date it entered into force, that is to say 3 July 2005, all legal provisions concerning marriage should be interpreted on the basis of the first additional provision of Law no. 13/2005 as applying fully to same-sex marriage (see paragraph 35 below). The Social Tribunal held in this regard that:

“This is a wide-ranging provision which affects all the other provisions of the legal system making reference to marriage. From now onwards all references to marriage established in the law shall be understood as applying also to marriage celebrated between two persons of the same sex. Accordingly, whoever shall be called to interpret or apply any marriage-related provision should do so in egalitarian terms without taking into consideration whether the spouses are of the same or different sex”.

The Social Tribunal further recalled that additional provision no. 10 (2) of Law no. 30/1981 of 7 July 1981 amending the provisions of the Civil Code pertaining to marriage and the procedure to be followed for cases of annulment, judicial separation and divorce, recognised the right to obtain a survivor’s pension for individuals who had been prevented from marrying a person who later died by the legislation in force until then, provided that he or she had cohabited in a relationship similar to marriage with the deceased person and that the deceased had died before Law no. 30/1981 entered into force.

The Social Tribunal stressed that such a provision was included in order to provide a solution for those cohabiting couples consisting of a man and a woman who could not have married under the legislation in force until that time, and thus did not qualify for a survivor’s pension, because one or even both of them had still been married to another person whom they had been prevented from divorcing, divorce having been legally impossible in Spain until the passing of Law no. 30/1981. The Social Tribunal considered that the applicant’s circumstances were “fully comparable” to those outlined in additional provision no. 10 (2) of Law no. 30/1981 in so far as:

“- the claimant could not marry his partner because the legislation then in force prevented him from doing so;

- the claimant had shared a marital life with his partner until the latter’s death;

- the latter’s death had taken place before the entry into force of Law no. 13/2005”

The Social Tribunal acknowledged, however, that whereas Law no. 30/1981 was aimed at protecting the rights of those cohabiting heterosexual couples who were prevented from marrying because divorce was prohibited at the time, Law no. 13/2005 was aimed at protecting the rights of those who could not marry on account of their sexual orientation, and that this distinction was the main impediment to the recognition of the applicant’s right to a survivor’s pension.

The Social Tribunal considered nonetheless that treating these two groups differently would not be in harmony with the strong egalitarian intention expressed by Parliament with the passing of Law no. 13/2005 and that, accordingly, additional provision no. 10 (2) of Law no. 30/1981 was applicable to the applicant by force of additional provision no. 1 of Law no. 13/2005. The Social Tribunal stated as follows:

“Therefore, the interpretation that in my opinion better fits the legislature’s intention is the following:

- If the first additional provision of Law no. 13/2005 sets out that provisions making reference to marriage shall apply irrespective of the sex of the spouses,

- And one of [these provisions], currently in force to provide access to a survivor’s pension, is additional provision no. 10 (2) of Law no. 30/1981.

- The only method to apply it in a way which is consistent with the egalitarian intention of the legislature is to do so irrespective of the sexual orientation of the members of the cohabiting couple.

- In order to ensure that sexual orientation does not constitute discriminatory grounds in the application of additional provision no. 10 (2) of Law no. 30/1981, the right thereby recognised shall currently be interpreted as providing a solution to factual situations such as the one in the instant case in which the impediment to access to a survivor’s pension is no other than the sexual orientation [of the claimant].”

As regards the administration’s submission that in the area of social security benefits the governing principle was that of non-retroactivity of laws and that according to the law in force at the time the applicant’s partner died the former did not qualify for a survivor’s pension because they were not married, the Social Tribunal was of the view that this general principle was not absolute and that it did not apply where there was a specific rule giving retroactive effect to laws more favourable to the citizens, as is true of the instant case. Thus, additional provision no. 10 (2) of Law no. 30/1981 should be read in the light of the first additional provision of Law no. 13/2005.

As to the degree of retroactivity that should be given to additional provision 10 (2) of Law no. 30/1981 in the applicant’s case, the Social Tribunal relied on the constitutive effects of Law no. 13/2005 which created new rights and was effective only from the date it entered into force. Accordingly, the Social Tribunal recognised the applicant’s right to be awarded a survivor’s pension with effect from 3 July 2005.

The INSS and the Treasury General of Social Security appealed (recurso de suplicación) against that judgment to the Madrid High Court of Justice (Tribunal Superior de Justicia).

On 18 September 2006 the Madrid High Court of Justice upheld the appeal and reversed the first-instance judgment. The court found that the legislature had not intended Law no. 13/2005 to cover same-sex partnerships which had been ended by the death of one of the partners before said law had entered into force and that the lack of protection of these unions could not be considered discriminatory in the light of Article 14 of the Spanish Constitution.

For the court, it was only as from the entry into force of Law no. 13/2005 that marriage between same-sex couples was recognised and that this law affected other rights for those persons who would wish to marry thereafter. Hence, the court was of the view that Law no. 13/2005 had no retroactive effects, except as otherwise expressly provided, which was not the case at hand.

The court further stated that even though Law no. 13/2005 had been inspired by the constitutional principle of equality, prior legislation preventing same-sex marriage could not be deemed unconstitutional as contrary to either any constitutional principle or to the right not to be discriminated against. The court referred to constitutional case-law dating from 1994 according to which the requisite of heterosexuality for the purposes of marriage was fully constitutional and that it was within the margin of appreciation of the public authorities to treat heterosexual marriages more favourably than homosexual partnerships. In this connection, the court maintained that despite the reference in the preamble of Law no. 13/2005 (see paragraph 35 below) to the discriminatory treatment to which homosexuals had traditionally been subjected on account of their sexual orientation, the aim of Parliament in passing that law was merely to respond to a new social reality and award homosexuals the right to marry, but not to protect same-sex partnerships which had already ended before its enactment.

The court referred to constitutional case-law according to which a difference in legal treatment of individuals due to subsequent changes in the law does not necessarily entail discrimination, even if those persons could be said to be in similar circumstances. Given the complexity that a change in legislation might involve, it was for Parliament to establish the characteristics of the legal transition, either by introducing retroactivity clauses or by restricting the application of the new legislation to circumstances arising after its entry into force.

The court noted in this regard that Law no. 13/2005 had not included any provision concerning same-sex partnerships which had already ended at the time of its entry into force and that it strictly concerned same-sex couples still in existence at that time and who would be willing to enter into marriage. The court considered that the difference between the situations before and after the passing of Law no. 13/2005 was essentially an expression of the principle of succession of laws without constitutional implications as regards the right not to be discriminated against.

As regards the applicability to the present case of additional provision no. 10 (2) of Law no. 30/1981, the Madrid High Court of Justice found that this provision was not applicable to the applicant’s case for two main reasons. Firstly, that provision could not be considered as among the provisions to which the first additional provision of Law no. 13/2005 referred. Additional provision no. 10 (2) was, as the Constitutional Court had established, of a provisional or transitory nature and had been envisaged for those specific cases in which one of the partners had died before the entry into force of Law no. 30/1981. It had not been intended to govern future situations. Secondly, that provision had been envisaged for a totally different situation from that of the applicant. Additional provision no. 10 (2) of Law no. 30/1981 was aimed at guaranteeing a survivor’s pension to those heterosexuals who had been prevented from marrying their out-of wedlock partner because divorce had not been legal at the time of the latter’s death. The inability to remarry for those affected by additional provision no. 10 (2) of Law no. 30/1981 was based on the fact that divorce was not permitted at the time. The institution of marriage was open to them in their capacity as heterosexuals. On the contrary, same-sex couples were absolutely prevented from marrying before Law no. 13/2005 since the institution of marriage was until then restricted to heterosexual couples.

Furthermore, the court contended that the applicant could never have fulfilled the more uxorio marital cohabitation requirement established by additional provision no. 10 (2) of Law no. 30/ 1981 of, because only those who were in principle eligible for marriage but had been prevented from marrying for whatever reason could qualify for de facto marital cohabitation. The applicant and his partner could have never cohabited “as if married” before the entry into force of Law no. 13/2005, because before then they were ineligible for marriage as they were both male.

The applicant lodged an appeal on points of law seeking harmonisation of the case-law (recurso de casación para la unificación de doctrina). In a decision of 27 June 2007, the Supreme Court (Social Chamber) declared the appeal inadmissible on the ground that the decision produced for purposes of comparison, specifically a judgment of the High Court of Justice of the Canary Islands of 7 November 2003, was not relevant. That decision was served on 26 July 2007.

Relying on Articles 14 (principle of equality and prohibition of discrimination) and 24 § 1 (right to effective judicial protection), the applicant lodged an amparo appeal with the Constitutional Court. In a decision of 11 February 2009, served on 17 February 2009, the Constitutional Court declared the appeal inadmissible on the grounds that the applicant had failed to substantiate the special constitutional relevance of his complaints.


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Yonko Grozev

The first applicant divorced the second applicant’s father on 22 December 2008 by means of a court-approved divorce agreement. According to the agreement, she was to exercise parental rights and the father had contact rights, the use of the family dwelling and was obliged to pay approximately 50 euros (EUR) a month in child support. The child was to live with her mother, and her father could see her on the first and third weekend of every month, for thirty days during the summer, and for a week during the winter or spring. The agreement did not make reference to a specific address, or even a town or a city where the first applicant was supposed to live with the child.

On 25 November 2009, upon a request by the child’s father for a change in the contact regime between him and his daughter, the first instance civil court approved another agreement between the parents, which extended the duration of the father’s weekend contact by a few hours. The parents also agreed that the father would collect the child from her mother’s home in Kazanlak, Bulgaria, and would take her back to the same location; the father could spend his time with the child at one of two specific addresses in Bulgaria, located in Koprivshtitsa and Srednogorovo respectively. If the mother changed her address, she had to inform the father by registered mail within ten days of such a change.

On 18 March 2009 the first applicant brought a claim under Article 72 of the 1985 Family Code before the Varna District Court, seeking the court’s authorisation for the child to leave the country in the absence of her father’s agreement. She submitted that she was in a committed relationship with a Bulgarian man who lived in the United Kingdom, where he worked as a ship engineer. They intended to marry and she wished to settle in the United Kingdom, and live with him and her daughter. Notwithstanding the above, the first applicant specified that, in the event that the court did not grant her application for permission for the child to travel, she would remain in Bulgaria to care for her as a responsible parent.

On 30 October 2009 the Varna District Court rejected the first applicant’s claim for the child’s unrestricted travel abroad with only her mother, finding that it could not be in the child’s interests. More specifically, the reasons given were that the mother could not show that she had a fixed place of residence abroad, or a secure income with which to ensure her daughter’s well-being, and that the child’s absence from Bulgaria would pose an obstacle to the father’s exercise of his contact rights.

The first applicant appealed against the refusal to the Varna Regional Court. She claimed that the father showed no interest in the child and did not pay any child support. His refusal to allow the child to leave the country for any period of time prevented her from taking her on holiday abroad and residing in Montrose in the United Kingdom, where she had a fiancé and could provide her daughter with better material conditions. She and her partner intended to marry that year, but her child’s inability to leave the country with her would make this impossible.

The Varna Regional Court allowed her appeal on 22 February 2010. It held that she had the necessary parenting qualities, including the ability to create an emotionally comforting environment for the child and provide her with financial support. That had been decided at the time she had been granted custody of her daughter, and had not been either challenged or refuted subsequently. The first applicant’s parental abilities and the care she provided to her daughter would not change as a result of her crossing the national border. In view of the strained relationship between the two parents, the court considered that permission for the child to travel abroad with only her mother should be granted for the whole of the child’s infancy, that is, until she reached majority. The court also held that the change in the mother’s circumstances constituted grounds for changing the contact regime between father and child, but did not adjudicate on that matter.

Following a cassation appeal by the father, in June 2010 the Supreme Court of Cassation suspended enforcement of the second-instance court’s judgment while the issue was pending before it. On 1 November 2010, in a final judgment, it refused to allow the second applicant to travel abroad in the absence of her father’s agreement.

The court first observed that there was conflicting domestic jurisprudence on the question of granting unlimited permission for a minor’s travel abroad in the absence of both parents’ agreement. Some courts (including the second instance one in the present case) found that when a parent who had been granted custody (упражняване на родителските права) had the necessary parental skills, such permission could not be refused. Other courts considered that when a parental consensus was missing, granting permission for unlimited travel abroad was only going to cause further disturbance and resentment in the relationship between the parents, which was likely to result in additional disputes between them, and this was not in the interests of the child.

Examining the present case, the court relied in particular on its wellestablished and binding case-law, according to which permission for a child’s unrestricted travel abroad with one parent only could not be granted because, as a matter of principle, that could never be in the best interests of the child. More specifically, there was a risk that a parent applying for such permission could take the child to countries which were in a state of war or where there was a high risk of natural disasters, thus endangering the child’s well-being and depriving the State of the opportunity to ensure his or her protection. Also, if the parent took the child to a country which was not a member of the European Union, or with which Bulgaria had no reciprocal agreement regarding legal assistance, the authorities would not be able to ensure that the contact rights of the other parent were enforced.

The court held that permission to travel abroad with only one parent could be granted only in respect of fixed destinations and for a limited period of time, and when this was in the interests of the child.

Turning to the specific case, the court held that the first applicant had not presented any guarantees as to where the child would be taken or how the father’s contact rights would be exercised. Importantly, the first applicant had not sought in court a change in the regime for contact between the child and the father with a view to her and the child moving their primary place of residence to the United Kingdom. In any event, the first applicant had presented in the proceedings before the court only her personal assertions in respect of her future in the United Kingdom, but no evidence to demonstrate the facts she claimed. She purported that she would get married; however, this was an uncertain future occurrence which did not depend solely on her will. The situation would have been entirely different, if she had been married and had settled in good material conditions in another country. In such a case, the question of whether it would be in the child’s interest to join her mother abroad would be open for discussion. However, as this was not the case, in view of the young age of the child, the court found that it was not in her interest for her mother to be granted permission to take her abroad at any time, for an unlimited duration and to unknown destinations throughout the period before the child reached majority.

On 18 December 2011, a little over a year after the final judgment of the Supreme Court of Cassation on the issue of the child’s travel, the first applicant and her partner, who was still living in the UK, married in Bulgaria. Several days earlier, on 1 December 2011, the second applicant’s father had explicitly agreed to her leaving the country with her mother. He signed an initial declaration for the period between 5 January 2012 and 15 June 2012, and has apparently been signing such declarations authorising year-long periods ever since. As a result, the applicants have been able to travel to, live and study in the United Kingdom, where they were at the time of their last correspondence with the Court.

Since leaving Bulgaria in January 2012, the child has been in regular contact with her father over the phone and Skype, and has spent time with him every summer.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney

The applicant was born in 1944 and lives in Tirana.

On 10 December 2001 the applicant, who worked as an accountant for the Tirana City Hall, was dismissed. The dismissal took effect on 11 January 2002.

On 6 February 2002, following the applicant’s action against his dismissal, the Civil Service Commission (“CSC”) quashed the dismissal decision and ordered his employer to reinstate him. By final decision of 8 May 2003, the Supreme Court upheld the CSC decision. On 10 March 2006 the applicant was offered employment by the Tirana City Hall (see paragraph 11 below).

On 15 May 2003 the Tirana District Court supplemented the CSC’s decision by ordering the Tirana City Hall to pay the applicant’s salary for the period between 10 December 2001 and the date of reinstatement. The employer’s request for revision was dismissed on 10 October 2003.

On 4 June 2003 an enforcement writ was issued in respect of both decisions.

On 31 March 2006 the Constitutional Court, following a constitutional complaint by the applicant, acknowledged that there had been a breach of the applicant’s right of access to court on account of the non-enforcement of the Supreme Court’s decision. However, it made no award.

On 1 March 2006 the applicant took up employment with the Ministry of Tourism, Culture, Youth and Sports (“the Ministry”).

On 10 March 2006 the Tirana City Hall appointed the applicant to a position in a maintenance company, which was responsible to the Tirana City Hall. The applicant challenged the appointment.

On 15 May 2006 the CSC quashed the appointment decision. The CSC decision became final, none of the parties having appealed against it.

In 2004 and 2006 the applicant successfully sought the payment of accrued interest arising from the delay in the payment of his salary.

On 9 April 2008, following a third action by the applicant, the Tirana District Court found in the applicant’s favour and ordered the Tirana City Hall to pay the applicant ALL 774,076 in salary arrears and ALL 105,258 in accrued interest. The court reasoned that, since the applicant had taken up employment with the Ministry on 1 March 2006, the Tirana City Hall was obliged to pay him salary arrears for the period from 11 January 2002 (see paragraph 5 above) to 28 February 2006. That obligation had ceased to exist ipso lege as of 1 March 2006. Relying on an expert’s report, the court found that the applicant’s salary arrears for the period from 11 January 2002 to 28 February 2006 amounted to ALL 1,720,261, of which ALL 946,185 had been paid by the Tirana City Hall. The accrued interest for the corresponding period amounted to ALL 105,258.

On 11 November 2009 an enforcement writ was issued.

On 12 February 2010 it would appear that the Tirana District Court’s decision became final, the Supreme Court having dismissed the defendant’s appeal.

On 31 March 2010 the Tirana City Hall paid the salary arrears. There is no information in the case file concerning the payment of accrued interest.

On an unspecified date in 2010 the applicant lodged a fourth civil action seeking the payment of accrued interest for the period between 9 April 2008 and 31 March 2010 and the payment of social security contributions by the Tirana City Hall.

On 30 June 2010 the Tirana District Court found in his favour and ordered the Tirana City Hall to pay accrued interest as a result of the delay in payment of the salary arrears from 9 April 2008 to 31 March 2010 and social security contributions on the basis of the applicant’s indexed salary. No quantification of the amount was made.

On 8 July and 23 December 2011 the Court of Appeal and the Supreme Court, respectively, upheld the Tirana District Court’s decision.

The relevant domestic law and practice has been described in the cases of Qufaj Co. Sh.p.k. v. Albania (no. 54268/00, §§ 21-26, 18 November 2004) and Gjyli v. Albania (no. 32907/07, §§ 19-28, 29 September 2009).


No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev

The applicant was born in 1966. At the time she submitted her complaint she lived in Madona Region, Latvia.

On 17 November 2006 the Madona District Court, acting as a firstinstance court, found the applicant guilty of a traffic offence which had caused moderate bodily injury to a victim. The court ordered the applicant to perform 100 hours of community service and suspended her driving licence for a year.

In establishing the applicant’s guilt, the first-instance court relied on incriminating statements by the victim and two witnesses. It also relied on other evidence, including a medical expert opinion on the bodily injuries sustained by the victim.

The applicant appealed against the judgment to the Vidzeme Regional Court. She alleged, inter alia, that the first instance court had failed to order an inspection and a technical examination of her vehicle, and had also not carried out a confrontation of witnesses.

On 13 February 2007 the Vidzeme Regional Court upheld the judgment of the first-instance court but changed in part the punishment by revoking the suspension of the applicant’s driving licence.

On 8 March 2007 the applicant submitted an appeal on points of law to the Senate of the Supreme Court. She alleged that the appellate court had failed to carry out and to order a number of investigating activities. Specifically, according to the applicant, the appellate court has not carried out a confrontation between the witnesses and the victim. It has not ordered an investigative experiment, an inspection and a technical examination of her vehicle.

The applicant maintained that the evidence in the case was not sufficient to establish her guilt, and thus the appeal court had acted contrary to numerous sections of the Criminal Procedure Law.

In a letter dated 11 April 2007 a judge of the Senate of the Supreme Court informed the applicant that on 11 April 2007 her appeal on points of law was not admitted for examination in the cassation proceedings. It relied on section 573 of the Criminal Procedure Law and stated that “[the appeal on points of law] was not substantiated by any fundamental infringement of the Criminal Law or the Law on Criminal Procedure”. It was also stated that it was not within the competence of the cassation court to re-examine or obtain evidence, or to


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the excessive length of their pre-trial detention.