Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Dmitry Dedov;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1983 and lives in Tula.

On 9 March 2009 the applicant was arrested on suspicion of a flagrant breach of public peace and order, committed in concert by an organised group. The events in question took place in December 2008.

On 10 March 2009 the Taganskiy District Court of Moscow remanded the applicant in custody during the investigation. In particular, the court noted as follows:

“When deciding whether a preventive measure should be imposed, the court takes into consideration whether [the applicant] has been charged with a serious offence which entails a custodial sentence of up to seven years’ imprisonment. [The offence in question] was committed against public peace and public order.

Further, the court takes into consideration the fact that, at the time of the arrest, [the applicant] did not reside in Moscow, did not reside at his registered address and, according to him, was staying at his friend’s place in the Moscow Region; and that he had applied for two years’ leave of absence from his studies at university. During that period he did not have a permanent place of residence and did not reside at his registered address. [The applicant] is not employed. The source of his income or means of subsistence for his family are not known. Earlier [the applicant] was found liable for administrative offences against public order and public safety.

The court also takes into consideration the motive for and the specific circumstances of the offence with which [the applicant] has been charged. The perpetrators used improvised weapons and acted in an organised group during the late hours of the day.

Regard being had to the circumstances described above, the court concludes that, if at large, [the applicant] may abscond or otherwise interfere with the administration of justice by, inter alia, putting pressure on [witnesses].”

On an unspecified date the applicant lodged an appeal against the decision of 10 March 2009. He argued that the District Court had failed to justify its decision to remand him in custody and had not considered the possibility of using a less restrictive preventive measure in his case. He further noted that there was no evidence that he had ever tried to put pressure on witnesses, to interfere with the administration of justice or to abscond. Lastly, he pointed out that he was residing at the address known to the authorities together with his wife, who was pregnant.

On 30 March 2009 the Moscow City Court found the decision of 10 March 2009 justified and upheld it on appeal.

On 27 April 2009 the District Court extended the applicant’s pre-trial detention until 15 June 2009. The court reasoned as follows:

“As can be seen from the materials submitted to the court, [the applicant] is charged with a serious offence which carries a custodial sentence of up to seven years. The crime was committed in concert with other persons. Some of them have not been identified by the investigating authorities to date. The others have been arrested. [The applicant] was not residing at his registered address. He does not have a registered address in the Moscow Region. He is unemployed.

Under Article 97 of the Code of Criminal Procedure, a preventive measure can be imposed if there is evidence that a defendant might abscond or interfere with the administration of justice in his case. Neither [the applicant] nor his lawyer presented evidence to show that the existence of such a risk could not be justified. Furthermore, it can be seen from the documents submitted to the court that there is a risk that [the applicant] might engage in unlawful acts as defined in the above-mentioned provision of the law, regard being had to the nature and seriousness of the offence with which he is charged, to and to his character

Accordingly, the court concludes that the circumstances justifying the [applicant’s] remand in custody have not changed. There is no reason to change or lift the preventive measure imposed earlier. The statements of guarantee submitted by the [applicant’s] lawyer cannot be taken into consideration by the court because they were not submitted to the investigator or presented by the signatories in person. ... Some of the statements are not duly authorised and the court has doubts as to their authenticity.”

On 18 May 2009 the City Court upheld the decision of 27 April 2009 on appeal.

On 29 May 2009 the Zamoskvoretskiy District Court of Moscow scheduled the trial for 10 June 2009. The applicant argued against the extension of his pre-trial detention. He submitted that he was a student, that he was married and that his wife was pregnant. He further pointed out that the investigation in the case had already been completed and that he could not interfere with the administration of justice or put pressure on witnesses. He had no intention of doing so or of absconding. The court ruled that the applicant should remain in custody pending trial. In particular, the court stated as follows:

“Having examined the prosecutor’s request to detain [the applicant and two other defendants] pending trial, the court grants it. It discerns no grounds on which to change the preventive measure imposed on the defendants, regard being had to the seriousness of the charges, the factual circumstances and the defendants’ character. In particular, G. and [the applicant] do not have a registered address in Moscow or the Moscow Region. They were not living at their registered address. They are unemployed. The circumstances underlying their remand in custody have not ceased to exist or changed. The fact that the investigation in the criminal case has been completed has no effect to the contrary.

Regard being had to the foregoing, the court discerns no grounds on which to change the preventive measure imposed earlier on the defendants and apply a less restrictive measure, including the [applicant’s] release upon a statement of guarantee signed by a surety.”

On 24 June 2009 the applicant asked the District Court for release. He submitted that on 16 June 2009 his wife had given birth to their child. He also relied on the statements of guarantee submitted by his sureties. The court dismissed the applicant’s request noting as follows:

“... the court considers that the request cannot be granted. The court discerns no circumstances that would allow it to change the preventive measure imposed on [the applicant], regard being had to the seriousness of the charges, the factual circumstances and his character. In particular, [the applicant] does not have a registered address in Moscow or the Moscow Region. He is unemployed. Nor was [he] residing at his registered address. The reasons justifying the [applicant’s] remand in custody have not ceased to exist or changed. ... the birth of his child has no effect to the contrary and cannot justify the decision to replace [pre-trial detention] with a less restrictive measure, including the [applicant’s] release upon a statement of guarantee signed by a surety.”

On 22 July 2009 the City Court upheld the decision of 29 May 2009 on appeal.

On 28 October 2009 the District Court found the applicant guilty as charged and sentenced him to four years’ imprisonment.

On 22 December 2009 the City Court upheld, in substance, the applicant’s conviction on appeal.


Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

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 inadequate conditions of their detention. They also argued that they did not have an effective domestic remedy to complain about the poor detention conditions.


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

Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in 1959 and lives in Balakan.

On 16 March 2005 an operation was planned for the applicant’s arrest following allegations made by N.V. and H.M. to the police that he was a drug dealer and had tried to sell them narcotic substances.

At around 4 p.m. on 17 March 2005 the applicant stopped for petrol at a petrol station in Balakan. At that moment he was approached by several plain-clothes police officers. According to the applicant, they dragged him out of his car and began beating, punching and kicking him, and hitting him with a truncheon. He then fainted.

When he regained consciousness, he found himself in the back seat of a moving car with the abovementioned police officers. According to the applicant, one of the two officers sitting on either side of him in the back seat slipped something into his right side trouser pocket. The applicant tried to stop him, but was punched and hit in the head with the butt of a handgun and fainted again. He was taken to the Zagatala District Police Station.

According to the applicant, he was repeatedly beaten after his arrival at the Zagatala District Police Station.

A search of the applicant and his car was conducted at the police station. According to the search record, the search was carried out at 4.30 p.m. on 17 March 2005 in the presence of the applicant, police officers and two attesting witnesses. It appears from the record that the applicant was not represented by a lawyer. During the search, narcotic (cannabis-based) substances were found both on his person and in his car. The applicant claimed that the drugs did not belong to him and had been planted. He refused to sign the search record. According to him, the search had been filmed and the recording would have shown signs of ill-treatment on his body.

At 7 p.m. on 18 March 2005 a police investigator drew up a record of the applicant’s arrest (tutma protokolu). It indicated that the applicant was arrested on 18 March 2005, not 17 March 2005. The applicant refused to sign the record.

At an unspecified time on 18 March 2005 the investigator gave the applicant details of four defence lawyers registered with the Zagatala Bar Association who could represent him. The applicant did not choose any of them, and stated that he would be defending himself. However, he refused to sign a waiver of legal assistance.

On 20 March 2005 the Zagatala District Court ordered the applicant’s detention for three months, calculating the period of detention from 18 March 2005.

On the same day the applicant was examined by a forensic expert from the Zagatala District Forensic Medicine and Pathological Anatomy Department. According to the forensic report, the applicant complained of having been ill-treated by the police on 17 March 2005. The expert noticed an oval-shaped bruise on his neck. The conclusion of the expert reads as follows:

"The oval-shaped bruise on Layijov’s neck, caused by a hard blunt object, its time of infliction corresponds to 17 March 2005, the time initially indicated. The degree of the injury was not determined because it was not an injury causing harm to health. The injury found would not have caused Layijov to lose consciousness.”

On an unspecified date during his interrogation, the applicant informed the investigator that there was a knife in his car. In this connection, he submitted that the police had not carried out a “real” search of his car on 17 March 2005, and had only found narcotic substances they had planted there themselves, otherwise they would have found the knife. Following the applicant’s questioning, on 25 March 2005 a new search of the car was conducted and a knife was recovered.

On 14 June 2005 the investigator at the Zagatala District Police Station delivered a decision on assessment of the evidence. It appears from the decision that the applicant was also examined by a forensic narcotics expert who established that he had not been using narcotic substances and was not a drug user. By the same decision, the investigator also refused to launch a criminal inquiry in respect of the applicant’s allegation of ill-treatment. The relevant part of the decision reads as follows:

“T. Layijov alleged in his testimony that he had been beaten up by police officers and had even fainted. It appears from the case file that T. Layijov tried to escape when he was being taken to the district police station and that police officers dragged him upstairs. In that case, there should have been contusions and bruises on his body. It was established in the forensic report that there was an oval-shaped bruise on Layijov’s neck, but no injuries were found on other parts of his body. The degree of the injury was not determined because it was not an injury causing harm to health and it was established that the injury [found] would not have caused [him] to lose consciousness. Nevertheless, the procedural legislation allows causing harm to a person who has committed a crime, if he tries to escape during arrest. As the extent of T. Layijov’s injuries was much less serious than the crime he had committed, a criminal inquiry in respect of the fact that he sustained injuries should be rejected.”

According to the indictment issued on 25 June 2005, the applicant was charged with offences under Articles 234.1 (illegal possession of narcotic substances in an amount exceeding that necessary for personal use, without intention to sell), 234.2 (illegal sale or illegal possession of narcotic substances with intention to sell), and 228.4 (illegal possession of a cold steel weapon) of the Criminal Code.

On 22 July 2005 the Zagatala District Court convicted the applicant of all the offences as charged and sentenced him to six years’ imprisonment. The applicant complained in the course of the proceedings that he had been illtreated by the police during his arrest and in police custody. He also complained that the criminal case against him had been fabricated by the police because of a pre-existing dispute he had with some officers from the Zagatala District Police Station. In this connection, he claimed that the drugs had been planted by the police officers and that despite his request, the search of his person and car had not been carried out immediately after his arrest. However, his complaints were not addressed in the judgment. The part of the judgment concerning the applicant’s conviction reads as follows:

“The criminal offence committed by the accused T. Layijov was not only proved by witness testimonies, but also other materials in the case file...

In total 181.62 grams of cannabis-based narcotic substances, 19.75 grams of opium, one hunting knife and one “Nokia” mobile phone taken within the framework of the case had been recognised as real evidence...

Therefore, the fact that the accused T. Layijov committed the criminal offences provided for by Articles 234.1, 234.2 and 228.4 of the Criminal Code was again proved in the court investigation by witness testimonies, expert opinions, records of face-to-face questioning and other official information in the case file.

The preliminary investigating authority had rightly qualified the criminal offences of the accused T. Layijov under Articles 234.1, 234.2 and 228.4 of the Criminal Code. He should be found guilty under these Articles and be punished.”

According to the judgment, the period of imprisonment was to be calculated from 18 March 2005.

On 7 March 2006 the Court of Appeal upheld the Zagatala District Court’s judgment of 22 July 2005. In the course of the proceedings, the applicant reiterated his complaints, but the Court of Appeal did not consider them.

On 10 August 2006 the Supreme Court quashed that judgment and remitted the case for fresh examination. The Supreme Court found that there had been flaws in the assessment of the admissibility and probative value of evidence serving as a basis for the applicant’s convictions, and that the lower courts had failed to properly determine the date of the applicant’s arrest and to examine the issue of the applicant’s alleged illtreatment in police custody and the compliance with procedural requirements of the search of the applicant and his car. The Supreme Court also noted that the lower courts had not examined why a search of the applicant and his car had not been carried out immediately at the place of his arrest. The relevant part of the decision reads as follows:

“According to forensic report no. 53 of 20 March 2005, the injuries on T. Layijov’s body are characteristic of a beating.

The documents and statements signed by police officers were drafted by G. I. at the same time, using the same pen. The content of the attesting witnesses’ statements, as well as those of N.V. and H.M., was dictated by a professional police officer and they say the same thing.

During the investigation and in the proceedings before the courts, these facts were not examined and no action was taken in this respect.

Under Article 125 of the Code of Criminal Procedure of the Republic of Azerbaijan, evidence and facts, if there are doubts as to their source or the circumstances in which they were obtained, cannot be used in order to determine the charge correctly. All the documents and statements on which the court relied as evidence in the present case are contradictory, and do not disprove T. Layijov’s allegations.

It follows that, when the case is re-examined at appellate court level, it should be considered whether N.V. and H.M. cooperated with the police and participated in the procedural measures in other cases and were for this reason interested in the outcome of the case, the reason why the first operation aimed at arresting T. Layijov on 16 March was not carried out, the reason why a search of T. Layijov and his car was not immediately conducted when he was arrested at the petrol station in Balakan as required by the operational search and criminal procedural legislation, the cause and perpetrators of T. Layijov’s injuries, as well as the reason why the knife, which was considered to be a cold steel weapon, was not found in the car during the first search on 17 March, but was found eight days later. As it appears from T. Layijov’s statements, his allegation, that the narcotic substances were not taken from his car otherwise the knife would also have been found during the search, must be assessed from a logical point of view.”

On 22 December 2006 the Court of Appeal quashed the Zagatala District Court’s judgment of 22 July 2005 in the part relating to the charges under Articles 234.2 and 228.4 of the Criminal Code and terminated the corresponding part of the criminal proceedings. The court held that the evidence concerning the charge under Article 234.2 of the Criminal Code had been obtained in breach of the relevant procedural requirements and failed to prove the applicant’s guilt. In particular, N.V. and H.M.’s statements were inconsistent and had been drafted by the investigator. The court also noted that the testimony of N.V. and H.M. at the hearings before the Court of Appeal had differed from their statements. The court further noted that the evidence in connection with the charge under Article 228.4 of the Criminal Code, namely the knife found in the applicant’s car, did not qualify as a weapon for the purposes of that provision. The court also found that the applicant had actually been arrested on 17 March 2005 and for a day had been unlawfully detained in police custody. As to his allegation of ill-treatment, the court noted that he had been ill-treated by the police during his arrest and in police custody, as certified by the forensic report of 20 March 2005. The relevant part of the judgment reads as follows:

“It was established following the investigation carried out by the panel of the court that during T. Layijov’s arrest the requirements of criminal procedural law were violated by the investigating authorities; his arrest was not immediately documented, he was not provided with a lawyer, he was not informed of his rights and obligations and he was unlawfully detained at the Zagatala District Police Station for a day...

Taking into consideration the fact that the video-recording of the investigative steps taken during the preliminary investigation was not added to the case file as evidence, and the fact that T. Layijov’s allegation of being beaten by police officers was not rebutted by any plausible evidence by the party defending the charge, the court considers that the injuries on T. Layijov’s body were inflicted by the police during the preliminary investigation.”

However, the Court of Appeal upheld the applicant’s conviction under Article 234.1. The relevant part of the judgment reads as follows:

“... The panel of the court considers that the accused T. Layijov had committed the crime under Article 234.1 of the Criminal Code and that he had been correctly found guilty and convicted by the first-instance court.”

The Court of Appeal was silent as to the applicant’s particular complaints concerning the drugs being planted on him by the police, the conditions in which the search had been carried out, and the lawfulness of the use of the evidence obtained in those circumstances against him.

The Court of Appeal reduced the applicant’s sentence to two years’ imprisonment and decided to calculate the beginning of the corresponding sentence from 17 March 2005.

On 17 March 2007 the applicant was released after having served his sentence.

On 19 June 2007 the Supreme Court upheld the Court of Appeal’s judgment of 22 December 2006.


No violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

Branko Lubarda;Johannes Silvis;Kristina Pardalos;Luis López Guerra;Mārtiņš Mits

The applicant was born in 1968 and lives in Braşov.

At the time of the events in question the applicant was occasionally working for M.V. and also providing information on the latter’s business activities to S.S., an operative officer of the Romanian Intelligence Service (“the SRI”).

In the evening of 25 September 2002 E. paid a visit to M.V. at the latter’s business headquarters in Braşov and asked him to return 50,000 United States dollars (USD) which E. had allegedly lent him to help him start his activity. M.V. had previously refused to pay the money back. That evening, an argument broke out among them. M.V. and four other individuals kidnapped E. and beat him severely to induce him to give up the debt demand. Later that night M.V. called the applicant and asked him to come by car to the headquarters to transport someone to Bacău.

The applicant arrived later in the evening, and found E. severely beaten and begging M.V. to spare him. The attackers tied the victim up and put him in the boot of his own car. They drove away, murdered E. and staged a road accident as cover-up. The applicant arrived at the scene by car and drove the attackers back to their homes.

On 5 October 2002 the applicant contacted S.S., who was away on holiday, to tell him what had happened. They met a few days later, upon S.S.’s return, and on 23 October 2002 S.S. transmitted the information to the police via his superiors.

There was no criminal investigation of the events until a year later, when one of the participants confessed to the police.

On 27 October 2003 the applicant was informed that accusations had been brought against him, and made a statement to the prosecutor’s office. A lawyer of his choice was present at that meeting.

On 18 January 2004 the applicant and the others involved in the events of 25 September 2002 were committed for trial on charges of illegal deprivation of liberty and extremely aggravated murder.

Throughout the proceedings the applicant argued that he had infiltrated M.V.’s group as an informant on the behalf of the SRI. He also stated that M.V. had forced him to participate in the events by threatening him and his family.

On 10 November 2004 he was convicted by the Braşov County Court of aiding and abetting illegal deprivation of liberty and extremely aggravated murder. He was sentenced to seven years’ imprisonment and removal of certain rights.

The court based the conviction on a whole body of evidence, consisting of witness testimony, the statements made by the accused persons during the proceedings, expert examinations and police reports. Based on the evidence in the file, the County Court established that the fact for the applicant to come to the M.V.’s business headquarters at M.V.’s request and to drive alongside the car where the victim was transported and to drive the culprits back with his car constituted the crimes he was accused of; the court considered that he had helped the other culprits to commit their crimes.

As for the applicant’s connection with the SRI, the County Court acknowledged that he was transmitting information on M.V.’s group to officer S.S. It also took note that the SRI denied that the information about the murder provided by the applicant had been the result of collaboration with the Service. The County Court heard testimony from F.B., who confirmed that both he and the applicant had infiltrated M.V.’s group on behalf of the SRI. F.B. had been informed by S.S. that after September 2002 it had become too dangerous for the applicant to stay in direct contact with M.V., because of certain information in the applicant’s possession.

The County Court considered the Prevention and Combat of Organised Crime Act (see paragraph 37 below) and decided that the applicant could not benefit from any status as an SRI informant, for the following reasons:

“Under Article 21 of the Prevention and Combat of Organised Crime Act, in exceptional situations, when there are indications that a crime has been committed or is being planned by members of an organised criminal group, and neither the crime nor its perpetrators can be identified by other methods, informants may be used in order to gather data concerning the commission of crimes and the identification of the perpetrators. No such indication ... existed in the present case and [the applicant] was not an informant used for gathering data concerning the crimes of illegal deprivation of liberty and extremely aggravated murder.”

The court also examined and discarded as unfounded the applicant’s allegations of coercion and considered that the applicant could have refused to help or informed the authorities about what was happening. It maintained as follows:

“[The applicant] had the option to leave when, after arriving at the [scene], he realised what was going on, but at no point during the events had he expressed the intention to leave the group. Even assuming that he had only remained in order to collect data for the SRI, he had had an obligation to inform immediately the police or the SRI about what was happening. From the statements given by the participants, including the applicant himself, it appears that on several occasion [during that night, the applicant] remained alone and could have used his mobile phone to call the police but he did not do it, claiming that the mobile phone keyboard was blocked. However, the court cannot accept this explanation, as it is notorious that calling the police phone number is free of charge.”

The judgment was upheld by the Braşov Court of Appeal on 26 January 2006.

S.S. gave testimony in the appeal proceedings, and confirmed that he had been informed about the murder by the applicant. He reiterated in detail the events described by the applicant. As for the nature of the collaboration between him and the applicant, S.S. explained as follows:

“My collaboration with [the applicant] was based on friendship and I confirm that he is an exceptional man. Our friendship goes back some twenty years. I knew that [the applicant] had relations with a certain group, but the members of the group and its activity was of no interest for the SRI, as it did not concern threats to the national security.

I expressly declare that I cannot give any information about specifically infiltrating [the applicant] in [M.V.]’s group, because at that point, the group was not of interest for the national security.”

S.S. refused to give details about where he had met with the applicant, asserting that the information requested by the court was classified.

The Court of Appeal concluded that the applicant had taken on his own initiative the role of an SRI informant:

“[The applicant] claimed that he had been infiltrated in M.V.’s criminal group by the SRI, in order to gather data about its activities.

However, the SRI informed the court, by address no. 49,538 of 15 April 2004 ... that the information presented by [the applicant] to S.S. was not the outcome of any collaboration between that Service and [the applicant].

Moreover, the witness S.S. (an SRI officer), declared that M.V.’s criminal group did not constitute threats to national security ..., that being the reason why [the applicant] was not requested to gather intelligence about M.V. group.

It follows that [the applicant] took on his own initiative the role of “informant”, without being officially requested to do so, and without being granted permission to participate in crimes for the purpose of gathering intelligence.”

The decision by the Braşov Court of Appeal was upheld by the High Court of Cassation and Justice on 24 October 2006. The High Court increased the sentence to ten years in prison. This decision was final.

The applicant asked for a revision of the final decision. He reiterated that it was impossible to prove before the ordinary courts that he was an SRI informant, as on the one hand the information was classified at the time, and, on the other S.S. risked losing his job if he divulged such information. He requested that the information be declassified. Furthermore, he pointed out that, as the police had failed to act upon the information he had transmitted through the SRI, he could not even benefit from a more lenient sentence, as had been the case with the other participant who had confessed to the crimes.

On 25 July 2007 the request was granted in principle by Braşov County Court. It considered that the information could constitute relevant evidence which had not been available to the ordinary courts.

The County Court heard a fresh statement from S.S., who reiterated his previous statements. He further explained that he could not reveal whether the applicant had infiltrated M.V.’s group as an informant, nor could he discuss the nature or content of the information which the applicant had given him, as the law considered it classified information. Nor could he clarify whether, as a general rule, an informant who committed an offence would benefit from protection.

On 12 September 2007 the SRI informed the County Court that it declassified partially the report drafted by S.S. based on the information given by the applicant concerning the crimes (the report, which contained a description of the facts as presented by the applicant, was adduced to the criminal file). It further explained that the document drafted by the applicant himself for S.S. had been destroyed after verification of the information contained and communication of that information to the police. It lastly reiterated that the information concerning collaboration with the SRI was classified under Law no. 182/2002, “the Protection of Classified Information Act”, and, if revealed, could “severely affect national security”.

The County Court made an extensive examination of the evidence in the file and the applicable laws. It acknowledged that the applicant had failed to provide it with conclusive evidence of his status as an SRI informant, but also considered that that situation was not imputable either to him or to the courts. It noted that declassification of documents was left to the discretion of the SRI, which, claiming “national security”, refused to reveal relevant information in the case at hand. Moreover, declassification followed a lengthy and cumbersome procedure, which undermined the rights of the defence as guaranteed by Article 6 of the Convention.

For these reasons, the court considered that given the difficulty of obtaining unequivocal evidence as to the applicant’s status, the incomplete information provided by the SRI and by S.S. should be given increased significance in favour of the applicant.

It thus concluded that the applicant had participated in the events solely as an SRI informant, and that the representation of his own role and his feelings of fear, horror, despair and repugnance at the scene of the abuse against E. removed his criminal responsibility.

Consequently, on 20 November 2008, the County Court quashed the previous decisions in part and acquitted the applicant on both counts.

On 22 October 2009, acting upon an appeal lodged by the prosecutor’s office, the Braşov Court of Appeal quashed that judgment and dismissed the request for revision. It considered that that remedy could not be used solely to adduce new evidence, and that the ordinary courts had already examined the theory according to which the applicant had been a SRI informant who had infiltrated M.V.’s group:

“Article 394 (a) of the Code of Criminal Procedure concerning revision does not refer to newly discovered evidence, because if it were so, revision would become another [ordinary] level of jurisdiction ...

The new facts of circumstances [required by Article 394 above as reason for allowing the revision] will be confirmed by new evidence, but it is not the evidence that constitutes the reason for revision ...”

The court also considered that the fact that the status of an SRI informant was not regulated by law made it impossible for the courts to establish the extent of such activities, thus leaving room for abuse of that status. However, reliance of such status could not exonerate from criminal responsibility:

“As there is no legal frame for regulating the status of an informant for an intelligence service, we cannot establish the scope of such a mandate, and thus the opportunity for abusing this status exists.

The fact that [the applicant]’s activity as an informant would have benefitted the SRI does not exonerate [the applicant] from criminal responsibility for criminal acts.”

On 28 October 2010 the High Court of Cassation and Justice dismissed the appeal on points of law lodged by the applicant and upheld the decisions rendered by the Court of Appeal, on similar grounds to those given by the lower court.