Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant, Mr Kujtim Spahiu, is an Albanian national, who was born in 1955 and lives in Bologna. He was represented before the Court by Mr M. Salmon, a lawyer practising in Bologna.

The Albanian Government (“the Government”) were represented by their then Agent, Ms S. Ms S. Mëneri of the Foreign Affairs Ministry and, subsequently, by Ms L. Mandia of the State Advocate’s Office.

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

On 9 November 1939 the applicant’s father and uncle (A.) jointly bought a plot of land measuring 91,000 sq. m from the Durrës Municipality. On unspecified dates between 1939 and 1941 the applicant’s father and A. sold 8,878.59 sq. m to third parties.

On 18 June 1969 the Durrës District Court recognised the joint ownership of a house erected on that plot of land: since the two brothers had jointly erected the frame structure of the house, they owned it in equal shares. It further rejected A.’s argument that he was the sole owner of the plot of land as no relevant notary deed had been submitted to the court. On 1 December 1969 the Supreme Court upheld the decision.

By a note of 7 March 1969 the mortgage office certified that the property had been jointly purchased in 1939 by the applicant’s father and A. and that it was registered as co-owned.

On an unspecified date the plot of land was nationalised.

On 13 January 1994 the Durrës Commission on Restitution and Compensation of Properties (“the Commission”) recognised A.’s heirs property rights to the plot of land measuring 91,000: 5,000 sq. m were to be restored; compensation was to be provided for the remaining 77,120 sq. m and the remaining plot had been previously sold to third parties. The applicant’s father’s name did not appear on the decision.

On an unspecified date in 1995 the applicant challenged the Commission decision before the Durrës District Court (“the District Court”) arguing that A. and his father were co-owners in equal shares of the relevant plot of land.

On 12 December 1996 the head of the State Committee on Property Restitution and Compensation, in a letter addressed to the applicant, stated, inter alia, that the Commission had wrongly taken its decision given that the applicant’s father and A. were co-owners.

On 17 February 1997 the Durrës District Court, following the remittal of the case, dismissed the applicant’s civil action. Even though the plot of land had been jointly purchased by the applicant’s father and A. in 1939, two cadastre documents of 1994 showed that the applicant’s father and A. each owned a plot of land, so that A. was the sole owner of the relevant plot of land following the division of the property. Both A. and the applicant’s father had paid taxes separately and had registered their titles in the civil registrar’s office separately. As to the decision of 18 June 1969 as upheld by the Supreme Court on 1 December 1969 (see paragraph 4 above), the District Court found that it did not change the status of separate property titles that A. and the applicant’s father had.

On 19 November 1997 and 6 May 1998 the Court of Appeal and the Supreme Court, respectively, upheld the decision and rejected the applicant’s appeals.

On 1 October 1999 the applicant filed a supervisory review request with the Supreme Court.

On 26 December 2000 the Supreme Court decided to refer the case to its Joint Benches.

On 18 January 2002 the Supreme Court Joint Benches quashed the decisions on the ground that they had been taken contrary to the law. The courts had not given reasons as to how the property had been voluntarily divided up between the applicant’s father and A. No notary deed or other act, as required by law, had been submitted by A.’s heirs to the courts. The fact that the applicant’s father and A. had been registered separately in the civil registrar’s office and that they were economically independent was not sufficient to conclude that the property had been divided or that its coownership had ceased to exist. Having regard to the fact that the property certificates submitted by the parties originated from different offices, the Supreme Court directed that only documents originating from the mortgage office (zyrat e hipotekës) were to be relied upon. The courts had not taken into account the findings of the decision of 18 June 1969 as upheld by the Supreme Court on 1 December 1969, which not only recognised the coownership to the house but also ruled that “the siblings had jointly erected the frame structure of the house on the plot of land”. It finally ordered the remittal of the case to the Court of Appeal for a fresh consideration.

On 17 October 2002 the Court of Appeal upheld the applicant’s action. It ruled that co-ownership could exist irrespective of the civil status of households. No document had been submitted to the effect that the relevant property had been divided between the parties. While the cadastre documents of 1994 indicated that the applicant’s father and A. owned each a separate plot of land, this did not constitute evidence of the transfer of the property title. The lower courts had incorrectly disregarded the court decisions of 1969 which recognised the co-ownership of the house and the plot of land.

On 12 February 2004 the Supreme Court quashed the Court of Appeal decision of 17 October 2002 and upheld the findings of the District Court’s decision of 17 February 1997. No arguments had been advanced about the continuation of co-ownership after 1944. Following the conduct of the agrarian reform, A.’s heirs had proved that the co-ownership had terminated: the brothers had registered as separate owners of two different plots of land, they had paid taxes and dues separately and their family status had been registered separately. According to the law in force, the division of property was made by oral accord and registered with the competent authority.

The applicant lodged a constitutional appeal arguing that the Supreme Court’s decisions of 2004 and 2002 were contradictory. He further complained that the Supreme Court’s bench had overstepped its powers by reassessing the evidence and re-examining the merits of his case.

On 2 December 2005 the Constitutional Court, sitting in full bench, dismissed the applicant’s appeal. It reasoned that the appeal concerned the interpretation of domestic law, which was outside its competence.

Article 141 § 2 of the Constitution states that a Supreme Court’s bench may relinquish jurisdiction to the Supreme Court Joint Benches to harmonise or change the legal practice (case-law).

Article 35, as in force at the material time, provided that the Supreme Court sat in benches (kolegje) of five judges and in Joint Benches (kolegje të bashkuara) of all judges. At the material time, the Supreme Court was composed of seventeen judges.

According to Article 481, the President of the Supreme Court may decide that the court sit in Joint Benches as regards appeals submitted by the parties, in so far as there exist conflicting decisions given by the ordinary bench of five judges.

Under Article 485, following the examination of the case, the Supreme Court, sitting as a bench of five judges or as Joint Benches, may decide: to uphold the decision, to quash the Court of Appeal’s decision and uphold the District Court’s decision, to quash the Court of Appeal’s decision and remit the case to that court for fresh examination by a different bench, to quash the Court of Appeal’s and the District Court’s decisions and remit the case to the District Court for fresh examination by a different bench, to amend the Court of Appeal’s and the District Court’s decisions, or to quash the decisions and dismiss the case (pushimin e gjykimit të çështjes).

The proceedings concerning supervisory review were described in Vrioni and Others v. Albania, no. 2141/03, 24 March 2009.

“37. According to the provisions in force at the material time, supervisory review was an extraordinary remedy which enabled courts to reopen proceedings following a final judgment (rekurs në interes të ligjit). Between 1996 and its repeal in 2001 by Law no. 8812 of 17 May 2001, the supervisory review procedure was the subject of several legislative changes.

Article 473 – Review in the interests of the law (Law no. 8431 of 14 December 1998)

‘Final judgments, decisions and rulings of the divisions of the Supreme Court shall be amenable to supervisory review in the interests of the law for the reasons set forth in section 472(a), (b) and (c) on an application lodged by the parties to the proceedings within three years from the date on which the decision becomes binding.

The application for supervisory review will first be examined by a preliminary review panel of five judges and then by the full Supreme Court (Joint Benches). ... Judges of the Supreme Court who sat as members of the division that delivered the judgment, decision or ruling or as members of the preliminary review panel shall not sit on the panel that conducts the supervisory review of the final judgment...’”


Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life) (Romania);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life) (Romania);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life) (Bulgaria)

András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano;Yonko Grozev

The applicant was born in 1981 and lives in Hotarele, Vâlcea County.

On 12 November 2004, in Spain, the applicant gave birth to a girl. The father was R.E.N., a Bulgarian national. In 2008 the couple split up.

The child lived with her parents in Spain until January 2007, when she was sent to her paternal grandparents in Bulgaria. She remained there until March 2008. From March until June 2008 the couple again lived together with their daughter in Spain; then, with the father’s consent, the applicant returned with her daughter to Romania for what was meant to be a short stay with the child’s maternal grandmother. The applicant remained with her daughter in Romania until September 2008 and subsequently returned to Spain to work, leaving the child in Romania with her maternal grandmother.

On 4 November 2008 the child’s paternal grandparents visited the child in Romania. With the maternal grandmother’s consent, they took the child to town for ice-cream, accompanied by her aunt (the wife of the applicant’s brother). They stopped the car on the side of the road, expelled the aunt from the car and then returned to Bulgaria, taking the child with them without the knowledge or consent of the applicant or her family. The child has been living in Bulgaria with her paternal grandparents ever since.

On 29 July 2008 the applicant, represented by counsel, lodged a request for full custody of the child with the Râmnicu Vâlcea District Court (“the District Court”). She initially indicated that R.E.N. was living in Romania with her family. However, during the proceedings the applicant told the court that R.E.N. no longer lived in Romania and that she did not know his whereabouts. As a summons could therefore not be served on him, it was posted at the court’s premises and published in a newspaper. Later on the applicant provided an address in Spain, which turned out to be incomplete.

The court postponed four times the examination of the case, mainly on account of attempts made by the applicant and her lawyer to establish R.E.N.’s whereabouts and to secure his presence in court. On 21 November 2008 the District Court heard two witnesses for the applicant. On the same date, the applicant informed the court that her daughter had been kidnapped by the paternal grandparents.

On 30 January 2009 the District Court awarded custody of the child to the applicant, on the basis of the evidence in the case file, including the witness evidence and a report made by the Child Protection Agency following a visit in the applicant’s home. The parties had fifteen days to appeal.

In September 2009 R.E.N. sought leave to appeal outside the time limit (cerere de repunere în termenul de apel), submitting that he had been living in Bulgaria with his parents throughout the period of the proceedings and that the applicant had known of that fact. On 11 December 2009 the Vâlcea County Court (“the County Court”) quashed the decision of 30 January 2009 (see paragraph 11 above) on the ground that R.E.N. had not been legally summoned to appear. It sent the case back to the District Court.

On 12 February 2010 the case file was again registered with the District Court. Eleven hearings were held and the applicant and/or her counsel were present at all of them. The court heard evidence from the two parents and from four witnesses (two for each party – R.E.N. summoned his neighbours from Bulgaria) and ordered the child protection agencies in Romania and Bulgaria to investigate the living conditions both in the applicant’s mother’s home and in the paternal grandparents’ home in Bulgaria. The latter investigation was ordered by the court on 18 March 2010; the court order arrived at R.E.N.’s counsel’s office on 17 May 2010 and the latter added to the case file the final report of that investigation in both Bulgarian and Romanian on 2 September 2010.

In a decision of 11 November 2010 the District Court again awarded custody to the applicant. The court also noted that on 22 December 2008 R.E.N. had instituted similar proceedings in Bulgaria. Given that he had lodged his application for full custody of the child with the Bulgarian courts only after the applicant had lodged her request with the Romanian courts, the District Court considered that it had jurisdiction to deal with the matter. On the merits, the court considered that while the living conditions offered by the father and paternal grandparents were superior to the ones available in the applicant’s home, the father and the paternal grandparents did not set the child a satisfactory moral example. Regarding this point, the court referred to R.E.N.’s criminal past and to the manner in which the paternal grandparents had kidnapped the child.

The father lodged an appeal and the case was heard by the County Court. Five hearings took place before the County Court and both the applicant and her counsel were present at all of them. He (that is to say the father) asked the court to interview the child, who was aged seven at that time. On 10 June 2011 the court granted that request. On 14 June 2011 the applicant gave notarised consent for her daughter to obtain travel documents and to cross the border into Romania. On 29 August 2011 R.E.N. informed the applicant that the said notarised consent was not sufficient for the Bulgarian authorities. The applicant offered to travel to Bulgaria to assist in the formalities necessary to obtain a passport. On 9 September 2011 the County Court acknowledged the situation and ordered the applicant to travel to Bulgaria. It also ordered R.E.N. to allow contact between the mother and the child for the purposes of making travel arrangements. After the applicant’s visit to Bulgaria, the child was brought before the court on 17 October 2011. The child told the court in a private hearing, with the help of a Bulgarian translator, that she would prefer to stay with her father and paternal grandparents in Bulgaria; that she spoke on the phone with her mother occasionally; that she could not remember her maternal grandmother; and that she did not like being in Romania.

On 21 October 2011 the County Court granted custody of the child to the father on the grounds that the child was already integrated into her environment in Bulgaria, where she had lived for the past four years, and that she did not speak Romanian.

The applicant appealed on points of law. The Piteşti Court of Appeal held one hearing, at which the parties and their respective counsel were present. The Court of Appeal re-examined the facts and concluded that the County Court had interpreted the situation erroneously and had disregarded the child’s “best interests”. It therefore quashed the County Court’s decision and upheld the decision rendered by the District Court. The Court of Appeal delivered its final ruling in the case on 9 January 2012.

On 29 June 2011 the applicant, seeking temporary custody of her daughter pending the outcome of the custody proceedings, lodged a request for interim measures. On 26 July 2011 her application was rejected by the District Court on the ground that as at that time the child had already been living with her paternal grandparents in Bulgaria for over three years, it would not be in her interests to temporarily remove her from her usual environment and place her with her mother until the end of the custody proceedings.

The applicant appealed; on 16 September 2011 the County Court dismissed her appeal, upholding the District Court’s decision.

The applicant sought recognition in Bulgaria of the 30 January 2009 judgment of the first-instance Romanian court that had given custody of the child to her (see paragraph 11 above). The Pazardzhik Regional Court granted her request on 14 May 2009, finding that the Romanian judgment had become final in the absence of an appeal within the statutory time-limit (as indicated in paragraph 12, the judgment was appealed later, outside the statutory limits). On 16 April 2010 the Sofia Court of Appeal upheld this decision, which – as it was not appealed against – became final on an unspecified date. The applicant was issued with a writ of enforcement on 20 July 2010.

On 30 August 2010 the applicant applied to a Bulgarian enforcement officer, who brought enforcement proceedings immediately. The authorities unsuccessfully attempted on several occasions to personally serve an invitation for voluntary compliance on R.E.N. Having noted that he was working abroad for an indefinite period, the summons was posted twice – on 13 and 28 October 2010 – on the entrance gate at R.E.N.’s address. On 20 January 2011 the enforcement officer appointed a lawyer to represent R.E.N. as he had not been located.

On 28 January 2011 the enforcement officer scheduled the handover of the child to the applicant for 9 February 2011 and asked the police and the social services to assist him on that day. Notice of the handover was personally served on R.E.N. on 4 February 2011. On 8 February 2011 two lawyers acting on behalf of R.E.N. brought judicial review proceedings in respect of the enforcement officer’s actions; those proceedings were dismissed by the Pazardzhik Regional Court on 22 March 2011.

Following the unsuccessful attempt on 9 February 2011 to locate the child at the address of her paternal grandparents with whom she lived, the enforcement officer fined R.E.N. 200 euros (EUR) for failure to cooperate and scheduled 16 March 2011 as the new date for the child’s transfer to the applicant. The enforcement officer also directed the social services to help to ensure for the child a smooth transition to life with the applicant by, inter alia, arranging a meeting with a psychologist. On 15 March 2011 the social services drew up a report on the child, which concluded that abruptly removing the child from her usual environment – and thus separating her from the adults who provided her with emotional and physical security – would be detrimental to her development. The report noted that the child needed to be assisted in the process of re-establishing a relationship with her mother.

Upon a request of R.E.N., on 2 June 2011 the Supreme Court of Cassation suspended the enforcement proceedings brought by the applicant. It did so following R.E.N.’s request for the reopening of the proceedings for the recognition of the Romanian judgment on custody.

Following the suspension of the enforcement proceedings brought by the applicant in Bulgaria (see the preceding paragraph), on 12 January 2012, within the context of the reopening of the proceedings for recognition of the Romanian judgment, the Supreme Court of Cassation quashed the decision of the Sofia Court Appeal of 16 April 2010 (see paragraph 20 above). The Supreme Court of Cassation found that R.E.N. had not been summoned in accordance with the applicable procedural rules and as a result had been unable to take part in the proceedings for the recognition and enforcement of the Romanian judgment which had determined custody of his daughter. More specifically, he had only learned of those proceedings on 4 February 2011, when he had received notice to hand the child over. In the same decision of 12 January 2012 the Supreme Court of Cassation remitted the case to the Pazardzhik Regional Court for a new examination and decision.

On 10 May 2012, in response to the applicant’s request for the recognition and enforcement of the Romanian judgment of 11 November 2010 granting custody to her (see paragraph 14 above), which had become final and enforceable on 9 January 2012 (see paragraph 17 above), the Pazardzhik Regional Court recognised that judgment and authorised its execution in Bulgaria. Upon an appeal by R.E.N., the Sofia Court of Appeal upheld that decision on 10 April 2013. On 15 May 2014 the Supreme Court of Cassation rejected R.E.N.’s cassation appeal; the decision therefore became final on that date.

Thereafter, on an unspecified date, the applicant brought new enforcement proceedings in Bulgaria seeking implementation of the final Romanian judgment granting custody to her.

On 9 July 2014, upon R.E.N.’s request (see paragraph 43 below), the Pazardzhik District Court suspended the enforcement. The court observed that R.E.N. had in the meantime brought proceedings in Bulgaria for a change of custody in respect of the child. It then noted that the child had settled well in Bulgaria, both in terms of emotional and material comfort, having been living there uninterruptedly since November 2008. The child only spoke Bulgarian, had adapted to and quite enjoyed her schooling environment, and showed interest in the extra-curricular activities she attended. Also, she enjoyed a particularly close and warm relationship with her paternal grandparents, who were caring remarkably well for her. The court found that, in view of the above and the fact that proceedings for a change of custody were pending before the Bulgarian courts, a sudden change in the child’s environment would not be in her interests. The court then granted R.E.N.’s request and suspended the enforcement.

Following a telephone conversation between the applicant and an employee of the Romanian Ministry of Justice, the applicant was invited to lodge a request for the return of her daughter under the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”; see paragraph 43 below). Accordingly, on 1 July 2011 the applicant lodged a request for the return of the child with the Romanian Ministry of Justice, the Central Authority for the purpose of the Hague Convention.

On 12 July 2011 the Romanian Ministry of Justice requested further clarification from the applicant, in particular asking her to explain why she had waited for such a long time before lodging her request. They informed her that any application lodged more than one year after the abduction could be rejected. On 26 July the Ministry of Justice further informed the applicant that she could request the return of her child either under the terms of the Hague Convention or under the terms of the Brussels II bis Regulation (see paragraph 46 below). They advised her to lodge her request either directly with the competent Bulgarian authority or through the Romanian Ministry of Justice.

On 17 August 2011 the applicant’s initial request was transmitted by the Romanian Ministry of Justice to the Bulgarian Ministry of Justice, the Central Authority for the purpose of the Hague Convention.

On 24 August 2011 the Bulgarian Ministry of Justice informed the applicant that the request had been refused as the Hague Convention had not entered into force between Romania and Bulgaria (see paragraph 43 below).

On 26 October 2011 the Romanian Ministry of Justice also informed the applicant and her counsel about the outcome of the proceedings before the Bulgarian Central Authority. They advised the applicant to apply directly to the Bulgarian courts (under Article 29 of the Hague Convention) or to the Bulgarian Ministry of Justice (either directly or through the Romanian Ministry of Justice, under the provisions of the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children – “the Luxembourg Convention” – see paragraph 45 below).

On 12 December 2011 the Romanian Ministry of Justice transmitted to the Bulgarian Ministry of Justice a request lodged by the applicant under the Brussels II bis Regulation, which in its view took precedence over the Hague Convention. In the absence of any response to that request, on 9 February 2012 the Romanian Ministry of Justice repeated the request to the Bulgarian Ministry of Justice.

On 7 February 2012 the Bulgarian Ministry of Justice informed its Romanian counterpart that it had refused the request. In its view the Hague Convention did not apply, as the child had entered Bulgarian territory before the entry into force of that Convention between Romania and Bulgaria. Consequently, the Brussels II bis Regulation did not apply either, as it was not meant to be applicable outside the scope of the Hague Convention.

On 22 December 2008 R.E.N. unsuccessfully brought proceedings in Bulgaria seeking custody of the child. Those proceedings were terminated on 25 October 2010 by the Pazardzhik District Court; the decision became final on 11 November 2010.

At the beginning of 2011 R.E.N. brought a second set of proceedings in Bulgaria before the Pazardzhik District Court in which he sought custody of the child. His request for interim measures, namely for the child to live with his parents in Bulgaria and for him to have custody of her, as well as for the suspension of the enforcement proceedings brought in 2010 in Bulgaria by the applicant, was refused by the same court in April 2011. The court suspended the proceedings on 2 December 2011 as it had determined that another set of proceedings – between the same parties concerning the same issue – was pending in Romania (see paragraphs 9 to 17 above).

Following the 9 January 2012 final judgment of the Romanian courts granting custody of the child to the applicant (see paragraph 17 above), on 23 October 2012 R.E.N. brought a third set of proceedings before the Pazardzhik District Court, seeking a change of custody due to a change in circumstances. The Pazardzhik District Court terminated these proceedings on 22 November 2012 as it found that the second set of proceedings R.E.N. had brought before it (see the preceding paragraph) concerning the same issue and involving the same parties was still pending, as those proceedings had only been suspended on 2 December 2011 and not terminated.

Subsequently R.E.N. asked the court to terminate the second set of proceedings he had brought, and the court did so on 28 November 2012. On 10 December 2012 R.E.N. appealed against the termination of the third set of proceedings he had brought. In a final decision of 25 March 2013 the Pazardzhik Regional Court granted his request, quashed the termination of those proceedings and remitted the case to the first-instance court for examination. Within the context of those proceedings, in 2014 R.E.N. sought as a protective measure (обезпечителна мярка) the suspension of the enforcement proceedings of the Romanian judgment granting custody to the applicant. His request was granted on 9 July 2014 (see paragraph 28 above). No information is available regarding developments in those proceedings.


No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Obtain attendance of witnesses)

Aleš Pejchal;Armen Harutyunyan;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano

The present case concerns the applicant’s trial and conviction before a judge and jury at the Central Criminal Court for the murder of a Mr Jon Bartlett. A co-defendant, Mr Lee Osborne, was tried and acquitted of assisting an offender.

The facts of the case may be summarised as follows.

Mr Bartlett was shot dead at about 7.40 pm on 31 March 2006. According to witnesses the gunman was wearing a baseball cap and drove off in a silver Vauxhall Vectra. In the early hours of 1 April 2006 a silver Vauxhall Vectra was set alight a short distance from the scene of the shooting.

Shortly after the murder the applicant fled to the Netherlands. He was subsequently extradited from the Netherlands to the United Kingdom to stand trial for Mr Bartlett’s murder.

On 1 April 2008 the applicant formally served a Defence Statement in which he alleged that Mr Bartlett had been murdered by Mr Pearman, a man who had previously been convicted of serious drug and firearms offences and who was at that time serving a prison sentence for murder.

The applicant’s case was that he had been involved in a drug deal with Mr Pearman and Mr Bartlett. On the morning of 31 March 2006 Mr Pearman and Mr Bartlett had asked him to provide a car so they could collect a shipment of drugs. Later that day he purchased the Vectra in the presence of Mr Osborne and Mr Pearman, but Mr Pearman had driven off in it.

The applicant met Mr Pearman again at 7.30 p.m. to give him his share of money for the drugs. Mr Pearman was driving the Vectra. The applicant left the meeting with Mr Osborne, who was driving a white van.

After this meeting the applicant went to his parents’ home. During the night he went to a petrol station and while he was there he called a friend whose mother lived near the road where the burning Vectra was discovered.

On 4 July 2008 the police interviewed Mr Pearman about the applicant’s allegations. He answered “no comment” to the questions asked. That evening he telephoned his son and told him he had never heard of the applicant and knew nothing of the murder. On 17 July 2008 he telephoned his wife and again denied any involvement in the murder. Both of these conversations were recorded as Mr Pearman, a category A prisoner, would have known.

The applicant’s trial for the murder of Mr Bartlett started on 11 August 2008. At the trial it was accepted by the applicant that the real issue for the jury was whether he or Mr Pearman was the murderer. Mr Pearman was asked to make a statement or give evidence at the trial but refused to do so. This was made known to the court through a statement from an officer at the prison where he was being detained.

To disprove the applicant’s defence the prosecution sought to adduce the recordings of Mr Pearman’s telephone calls pursuant to section 114(1)(d) of the Criminal Justice Act 2003 (see paragraph 40 below). The defence objected to their admission in evidence but the judge ruled that they should be admitted. In his ruling, the judge stated that Mr Pearman had indicated, in the clearest terms, that he was not prepared to make a statement to the police or give evidence at the trial.

In determining whether the recordings should be admitted, the judge considered the matters listed in section 114(2) of the Criminal Justice Act 2003 (see paragraph 40 below).

First, he stated that he was satisfied the evidence had extremely strong probative value as Mr Pearman “appeared to be expressing genuine outrage at being implicated in a murder in which he was in no way involved”.

Secondly, he indicated that Mr Pearman could not be called because he refused to give evidence, but noted that all the enquiries carried out by the police to date had confirmed his lack of involvement in the killing.

Thirdly, he said that he was satisfied the evidence in question was “extremely important”.

Fourthly, the judge referred to the submissions of counsel for the applicant and for his co-defendant, who submitted that Mr Pearman would have known that his calls were being recorded by the prison authorities, and argued that his statements were self-serving. The judge said that these were all valid comments which the jury should consider in assessing the weight to be attached to Mr Pearman’s denials, but were not, in his view, grounds for excluding evidence.

Fifthly, he pointed out that as the conversations were taped the evidence was clearly reliable.

Sixthly, the trial judge said that the defence had already crossexamined the officer in the case as to Mr Pearman’s previous convictions and the details of the murder for which he was serving his sentence of life imprisonment. Moreover, he had already noted that the jury should consider the fact that Mr Pearman’s comments were self-serving and that he would have known that his telephone conversations were being recorded.

Finally, he said that he did not consider that there would be any real prejudice to the applicant from the tapes being played.

At trial, in addition to playing the tapes, the prosecution led evidence that the applicant and victim were known to each other and were both involved in drug dealing on a substantial scale. Items connected to drug dealing were recovered from Mr Bartlett’s home, one of which was a list of debts. The applicant’s name appeared on this list and he was shown as owing the victim GBP 24,000.

The prosecution also relied on the applicant’s previous arrest when he was found to be in possession of a firearm. In his evidence the applicant admitted that when arrested on that occasion he had been dealing in drugs, but denied possession of the firearm.

Mr Bartlett’s mobile telephone records were also introduced to show that he had been in contact with the applicant on the day of the murder. The last telephone call between them was recorded at 7.22 p.m., shortly before the murder. There had also been significant telephone contact between the applicant and Mr Bartlett in the ten days prior to the murder.

The seller of the silver Vectra gave evidence that on the afternoon of the murder he had been contacted by the applicant, who had arranged to meet at his house at 6 p.m. The seller’s mother testified that one of the two men who collected the car was named John and was wearing a baseball cap. The men came for the car in a white van that had been hired by the father of Mr Osborne that day from AVA, a hire company, and passed to Mr Osborne at 6 p.m. that evening. The van had distinctive orange writing on the side.

Witnesses also saw a white van in the vicinity of the shooting at the relevant time. The van had orange writing on the side, and was similar, if not identical, to the van that had been hired from AVA on the same date.

Mobile telephone cell site evidence was led by the prosecution with the intention of showing that the applicant’s mobile telephone was in the vicinity of the murder at the relevant time, although it was switched off between 7.28 p.m. and 7.50 p.m. Cell site evidence also demonstrated that the applicant and his co-accused were in the vicinity of the road where the Vectra was found between 8.01 p.m. and 8.17 p.m.

Residents of the streets near the shooting gave evidence. One stated that she had heard two bangs and a man running to a car and driving off very quickly. Another, Ms Rita Willott, gave a description of the gunman as being between twenty and thirty years’ old, of average build and height and wearing a baseball cap. She saw a car matching the Vectra’s description leaving the scene. Ms Willott’s evidence was not challenged and was read to the jury. A third eye-witness, a ten-year old boy, also gave evidence that the gunman had been in his mid-thirties and had been wearing a baseball cap. A fourth eye-witness, Mr Gordon Raggett, also gave a description matching the applicant. A fifth witness, Ms Kate Botwright, gave evidence that she had seen both the car and the van near the shooting. The driver of the car was in his late teens or early twenties, had short brown hair and wore a baseball cap. Several other witnesses gave descriptions to the effect that the man driving the Vectra was white and was wearing a baseball cap.

CCTV footage from a petrol station showed the applicant arriving in the white AVA van, wearing a baseball cap and making telephone calls to an associate at 1.47 a.m. The number dialled by the applicant was in the vicinity of the cell site covering the road where the Vectra was found and the inference sought by the prosecution was that the applicant was in discussions about the destruction of the car.

A police superintendent also gave evidence of the enquiries into Mr Pearman. The police had found no connection between Mr Pearman and either Mr Bartlett or the applicant (there was, for instance, no reference to Mr Pearman in Mr Bartlett’s telephones) and it was the superintendent’s conclusion that there was absolutely no evidence that he had been involved in Mr Bartlett’s murder.

A photograph of Mr Pearman was also adduced in evidence. The prosecution’s case was that Mr Pearman, a man in his fifties, did not match the description of the gunman given by the eye-witnesses.

Mr Pearman’s previous convictions for drug offences, firearm offences, and murder committed on 2 May 2006 were also adduced.

On Mr Pearman’s telephone calls, the trial judge directed the jury as follows:

“It is for you to decide what weight, if any, you attach to this evidence; but it does have certain limitations which I must draw to your attention: (a) you had not had the opportunity of seeing and hearing the witnesses in the witness box and sometimes when you do see and hear a witness you get a much clearer idea of whether his evidence is honest and accurate; (b) their evidence has not been tested under crossexamination and you have not had the opportunity of seeing how their evidence survived this form of challenge; (c) in the case of Pearman these were self-serving statements, that is he was saying he was not involved in the murder of Jon Bartlett. In addition calls made by high risk category A prisoners, such as Pearman, from prison would be known by him to be recorded and he was speaking in those calls to members of his own family.”

On Mr Pearman’s previous convictions, the trial judge directed the jury:

“You have heard this evidence because it may help you to resolve two issues in the case, namely: (a) whether the convictions show that on 31st May 2006 he had a tendency to be a drug dealer, carry a firearm and commit murder, and whether this makes it more likely that he was the gunman in this case; and (b) whether he was being truthful and reliable in denying his involvement in the present case in his telephone calls to his son and wife. A person of bad character may be less likely to tell the truth, but it does not follow that he is incapable of doing so.

You may use the evidence of his bad character for the particular purposes I have just indicated, if you find it helpful to do so. It is for you to decide the extent to which the evidence of bad character helps you, if at all. The prosecution submit that the only reason Seton chose to name Pearman as the murderer in his defence statement on 1st April 2008 was because he knew he had an extremely bad character for drugs offences, firearm offences and murder, and therefore was an ideal person for him to blame for the murder in this case. The defendant Seton says he named him because he believed Pearman killed Jon Bartlett.”

In the course of their deliberations, the jury asked and were allowed to hear the tapes of Mr Pearman’s telephone calls again. On 26 August 2008, by a majority, the jury convicted the applicant of murder. He was sentenced to life imprisonment with a minimum term of thirty years. He appealed against conviction to the Court of Appeal.

The application for leave to appeal was initially considered and rejected by a single judge in February 2009. The application was renewed before the full court on 14 November 2009 and leave to appeal was granted. In doing so, the court found it to be arguable that the trial judge did not make sufficient investigations with regard to the production of Mr Pearman. The court also observed:

“It seems to us that it is a long standing principle that unless there are compelling reasons to the contrary, the best available evidence should be put before the jury. In this instance, rather than the jury hearing from Mr Pearman himself, they heard the recording of his two conversations. It is also of note that shortly after the jury had retired they asked if they might hear the recordings again and, after some discussion, the recordings were played to them. It is perhaps pertinent to observe that had Pearman himself given evidence, what would have happened if there had been a request by the jury to be reminded of his evidence is that the judge would have summarised it to them from his notebook. Playing the recordings a second time to the jury, that, submits Miss Wass [counsel for the applicant], is something that elevates the importance of the hearsay evidence there contained. There is no doubt that the recordings were important evidence in the context of the case as a whole (at least so far as we are thus persuaded) and we have come to the conclusion that permission to appeal should be granted on all grounds advanced and the hearing will proceed in due course accordingly.”

On 4 March 2010 the full court heard the case and dismissed the appeal, reserving its judgment. The judgment was delivered on 12 March 2010. In relation to the tapes of Mr Pearman’s telephone calls, the court observed:

“It is contended on behalf of the Appellant [the present applicant] that the tapes of the calls should not have been admitted without calling, or trying to call, Pearman to give evidence.

The difficulty with this submission is the judge’s finding of fact that Pearman would not give evidence. It is true that he could have been compelled to come to Court. However, on the basis of the judge’s finding, the grounds for which have not been impugned, that would have been a fruitless exercise. Moreover, he would have had to be warned of the right to exercise the privilege against self-incrimination. The prospect of any sensible evidence being given by him was, on any realistic view, nil. All that the defence could have obtained was the advantage of having him brought up before the jury, who would presumably have seen his obduracy.

The judge considered this evidence to be important and to have strong probative value. We do not know whether the jury shared this view. The defence were able to say, as they did, that the statements were self-serving, made by a serious criminal who knew that they were being recorded. What is central to this appeal is that the judge addressed the matters required to be addressed by section 114(2) [of the Criminal Justice Act 2003]. The allegation against Pearman had been made late, and given that on the Appellant’s case he had known of Pearman’s responsibility for the murder within days of its being committed, it is to be inferred that it was deliberately made late so as to make it more difficult for the Crown to investigate it. As it was, because of the lateness of the allegation, the telephone records for telephones used in the murder for which Pearman had been convicted only went back to 23 April 2006.

In Z this Court said:

‘25. The Court of Appeal will not readily interfere with a trial judge’s decision to admit evidence under section 114(1)(d) [of the Criminal Justice Act 2003]. It will do so, in general, only if his decision is marred by legal error, or by a failure to take relevant matters into account or it is such that the judge could not sensibly have made.’

The judge’s decision was not marred by legal error; he took all relevant matters into account; and the decision to admit the recordings in evidence was not one that no judge could sensibly have made.

For these reasons, we reject this ground of appeal.”

The Court of Appeal then added:

“The safety of the conviction

However, we would in any event have upheld the safety of the conviction. The evidence against the Appellant may have been circumstantial, but it was overwhelming. In summary:

(i) The only evidence of Pearman’s involvement was that of the Appellant.

(ii) Seton and Bartlett were involved in drugs together; there was evidence that Seton was in debt to Bartlett and that Bartlett was pressing for payment. Seton had a motive to kill Bartlett.

(iii) There was no good reason for the allegation of Pearman’s involvement to have been made so late.

(iv) It is difficult to see why the Appellant fled the country if he was innocent.

(v) The police uncovered no evidence of any link between Pearman and either the Appellant or Bartlett, despite exhaustive enquiries. Miss Wass contends that those enquiries were imperfect. The fact remains that there was no such evidence.

(vi) The Appellant himself accepted that he made no direct calls to Pearman; contact was, he said, made via Bartlett. If all three were involved in a drugs deal, it is curious indeed that the Appellant did not have Pearman’s telephone number and could not and did not telephone him direct.

(vii) There was no evidence of Bartlett’s telephones having been used to telephone any telephone number associated with Pearman.

(viii) Pearman was born in 1952. He was 54 at the date of Bartlett’s murder. The evidence of Rita Willott (described by the judge as an extremely important witness) was not challenged and was read at the trial. She said that the man who fired the gun was aged between 20 and 30, of average build and height, and he was wearing a baseball cap. Jack Doyle, a boy aged 10, said that the gunman was wearing a baseball cap and was in his mid-30s. Gordon Raggett described the gunman as white, in his 20s, athletic and about 5 feet 10 inches, of slim build. All these descriptions fitted the Appellant and not Pearman. Against these, one witness described the gunman as not appearing to be young. Miss Wass suggested that the evidence of the age of the gunman should be discounted because of the uncertainties of ascribing an age to a man wearing a baseball cap. However, the weight of the evidence points clearly to a young man such as the Appellant rather than Pearman. If the Appellant seriously wished to challenge Miss Willott’s evidence, she should have been required to give evidence orally and should have been cross examined.

(ix) Similarly, Kate Botwright described the driver of the Vectra car, seen by her together with the AVA van, as in his late teens or early 20s, with short brown hair and wearing a baseball cap. Her account of what she saw was inconsistent with the Appellant’s.

(x) The evidence relating to the purchase of the Vectra and the hire of the AVA van on the day of the murder supports the prosecution case.

(xi) The cell phone evidence showed Seton to be in the vicinity of the murder when it was committed; the timing of his last telephone connection with Bartlett, just before the murder, and the switching off of his telephone at the time of the murder, and his call to a telephone in the vicinity of the location where the Vectra was set on fire, all powerfully supported his guilt.

(xii) Lastly, evidence was given that on a previous occasion Seton had had a connection with a firearm.

Thus, quite apart from the evidence of Pearman’s telephone calls, we had no doubt as to the safety of the conviction of the Appellant.”

On 6 March 2010 the applicant was informed that the Court of Appeal had refused to certify questions of general public importance for the consideration of the Supreme Court.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction);Violation of Article 2 of Protocol No. 7 - Right of appeal in criminal matters (Article 2 of Protocol No. 7 - Review of conviction;Review of sentence);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1979 and lives in Korolivka, in the Kyiv Region.

On 12 July 2010 the Bila Tserkva Town Court (“the Bila Tserkva Court”) found the applicant guilty of inflicting grievous bodily injuries on a certain Mr N. on 12 May 2006. Although this type of crime was punishable with five to eight years’ imprisonment, the court considered it possible to apply a more lenient sanction to the applicant. It had regard, in particular, to the fact that he had pleaded guilty and had shown remorse. Accordingly, the court sentenced the applicant to four years and seven months’ imprisonment. It also decided to include in the served part of the applicant’s sentence the period from 20 October 2005 to 3 May 2006 (six months and fourteen days), during which he had been detained in the context of another criminal case. Lastly, in fixing the applicant’s sentence the court had regard to the fact that he “had spent more than four years in [pre-trial] detention facilities in which the detention conditions were considerably harsher than in a post-conviction prison, and the previous judgments in respect of him had been quashed”. No further information is available about the earlier detention of the applicant, the other criminal cases involving him, or the judgments that had been quashed.

In the operative part of its judgment, the Bila Tserkva Court also ruled that during his pre-trial detention the applicant should remain in a pre-trial detention centre (SIZO) as a preventive measure until the judgment became final. It further noted that the judgment was amenable to appeal within fifteen days of the date of its delivery.

On 15 July 2010 the term of the applicant’s sentence expired, and he asked the SIZO administration to release him. His request was rejected. On the same day the SIZO administration, however, applied to the Bila Tserkva Court for permission to release the applicant subject to an undertaking not to abscond, given that he had served his prison sentence in full. No reply was received.

On 19 July 2010 the applicant’s lawyer applied once again to the SIZO administration for the applicant’s immediate release. He submitted, in particular, that there were no grounds for his client’s continued detention. A copy of that letter was also sent to the Kyiv Region Prosecutor’s Office.

On 27 July 2010 the fifteen-day time-limit for lodging an appeal against the judgment of 12 July 2010 expired and, in the absence of an appeal, it became final.

On the same day the SIZO administration wrote to the applicant’s lawyer stating that it could not release the applicant until either the preventive measure in respect of him was changed or the judgment became final. It was noted in the letter that, in any event, it was for the Bila Tserkva Court to authorise the applicant’s release.

On 29 July 2010 the SIZO received the court’s order to enforce the final judgment and the applicant was released.

On 5 August 2010 the State Prisons Department wrote to the applicant’s lawyer in reply to his complaints about the delayed release of the applicant, stating that there had been no violation of the Code of Criminal Procedure.


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Gabriele Kucsko-Stadlmayer

The applicant was born in 1977 and lives in Bucharest.

On 11 October 2009 the EcoPolis association, founded by the applicant and four other associates, opened proceedings before the Bucharest District Court to seek registration in the Register of Associations and Foundations kept by that court. It also asked the court to grant it legal personality.

The association’s goal, as declared in its memorandum of association (act constitutiv) and in Article 2 of its articles of association (statutul asociației), was that of promoting the principles of sustainable development at the public policy level in Romania (promovarea principiilor dezvoltării durabile la nivelul politicilor publice din România). The association’s objectives, as declared in Article 7 of its articles of association, were: to increase expertise in the development of sustainable public policies in Romania (creşterea expertizei ȋn elaborarea politicilor publice durabile din România); to improve the process of the development of sustainable public policies by facilitating public participation in and access to relevant information about the environment; to increase the accountability of the relevant official bodies by scrutinising the implementation of public policies with an impact on the environment; to facilitate the access of official bodies to best practices by examining the Government’s environmental initiatives in a European context; to ensure transparency in the work of public institutions and increase their responsibility for their actions in relation to other citizens; to review whether public institutions worked on the basis of principles of sustainability; and to defend the right to a clean environment, as provided by international treaties. The activities envisaged by the association in order to achieve its objectives, as declared in Article 8 of its articles of association, were: research and analysis; public debates and conferences; monitoring the implementation of European Union directives; public communication campaigns; opinion polls; reviewing the development and implementation of public policies in the environmental field; training; raising citizens’ awareness; informing people of matters of public concern; raising the awareness of the community and of public authorities about the need to protect the environment; organising meetings between citizens and representatives of public authorities; organising debates and opinion polls on issues impacting the environment; developing programmes in partnership with public authorities; active involvement of citizens in the development of public policies and the decision-making process; improving the legal framework; setting up annual prizes for environmental activities; awarding scholarships for promoting sustainable development; networking with similar national and international organisations; supporting and defending the association’s members and volunteers; and other lawful activities.

By an interlocutory judgment of 24 October 2009, delivered in private, the Bucharest District Court granted the association legal personality and ordered its registration in the Register of Associations and Foundations. The court held that the organisation had attached all the lawfully required documents to the application for registration and that the documents had complied both in form and content with the requirements set out by Government Ordinance no. 26/2000. Moreover, the goal set by the association complied with the provisions of Articles 1 and 4 of that Ordinance.

The Bucharest Public Prosecutor’s Office lodged an appeal on points of law (recurs) against the interlocutory judgment of 24 October 2009. It argued that it interpreted the association’s declared goal as belonging to the field of activities of a political party. That interpretation was supported by the association’s objectives and by the activities it planned, as set out in Articles 7 and 8 of the articles of association. However, a political party could not be registered under the provisions of Government Ordinance no. 26/2000.

By a final judgment of 10 February 2010 the Bucharest County Court allowed the appeal on points of law by the Public Prosecutor’s Office and rejected the organisation’s request for registration. It held that the goal of the association, as declared in its memorandum and articles of association, was that of promoting the principles of sustainable development at the public policy level in Romania. Also, according to Article 7 of its articles of association, one of the association’s objectives was to increase expertise in the development of sustainable public policies in Romania. The court considered that the concepts used by the organisation had been very general and had run the risk of being understood as belonging to the field of activities of political parties. The association’s objectives could likewise have been interpreted as belonging to the realm of activity of a political party, although Government Ordinance no. 26/2000 expressly prohibited the use of the ordinance for the registration of political parties.


CASE OF ICHETOVKINA AND OTHERS v. RUSSIA

Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The facts of the cases, as submitted by the applicants, may be summarised as follows.

On various dates between 2004 and 2008 the applicants were criminally prosecuted for and convicted of various offences under the Russian legislation then in force. All of the applicants appealed, but their cases were examined by the appeal courts in the absence of their respective counsel. The appeal courts upheld their convictions.

In the case of Mr Chernenko (application no. 51264/07) the firstinstance court ordered him to pay the legal fees incurred in respect of his representation in the criminal proceedings against him. On 6 November 2012 the Supreme Court of the Russian Federation quashed the order of the first-instance court and waived the legal fees that Mr Chernenko had been ordered to reimburse.

Following the communication of the applications, the prosecutor lodged requests for supervisory review of the criminal cases of Ms Ichetovkina and Mr Dubrovskiy (applications nos. 12584/05 and 45690/05).

Following the communication of the other four applications (nos. 45075/05, 11343/06, 51264/07 and 59378/08), the prosecutor lodged a request for supervisory review of the judgment of the appeal courts. The domestic courts examined his request and expressly acknowledged that these four applicants’ right to legal assistance in the appeal proceedings in respect of their cases had been breached. The applicants’ cases were remitted for re-examination by the same appeal courts. The Court requested additional observations from the Government in respect of these four cases regarding the conformity of the second set of appeal proceedings with the requirements of Article 6 §§ 1 and 3 (c) of the Convention. When the applicants’ cases were heard and re-examined by the appeal courts, they were represented by lawyers, and they participated in the respective proceedings via video link.

The details of the applicants’ cases are set out in the appendix.


No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8-1 - Respect for family life;Respect for private life;Article 8 - Right to respect for private and family life);No violation of Article 14+12 - Prohibition of discrimination (Article 14 - Discrimination) (Article 12 - Men and women;Right to marry)

András Sajó;André Potocki;Dean Spielmann;Erik Møse;George Nicolaou;Guido Raimondi;Helen Keller;Ineta Ziemele;Isabelle Berro-Lefèvre;Josep Casadevall;Khanlar Hajiyev;Lech Garlicki;Ledi Bianku;Linos-Alexandre Sicilianos;Luzius Wildhaber;Mark Villiger;Nebojša Vučinić;Päivi Hirvelä;Paul Lemmens;Paul Martens;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in 1963 and lives in Helsinki.

The applicant was born male. She always felt that she was a female in a male body but decided to cope with the situation. In 1996 she married a woman and in 2002 they had a child.

The applicant started feeling worse in 2004, and decided in 2005 to seek medical help. In April 2006 she was diagnosed as a transsexual. Since that time, she has lived as a woman. On 29 September 2009 she underwent gender reassignment surgery.

On 7 June 2006 the applicant changed her first names and renewed her passport and driver’s licence but she could not have her identity number changed. The identity number still indicates that she is male, as does her passport.

On 12 June 2007 the applicant requested the local registry office (maistraatti, magistraten) to confirm her status as female and to change her male identity number to a female one as it no longer corresponded to the actual reality.

On 19 June 2007 the local registry office refused the applicant’s request. It found that, under sections 1 and 2 of the Transsexuals (Confirmation of Gender) Act (laki transseksuaalin sukupuolen vahvistamisesta, lagen om fastställande av transsexuella personers könstillhörighet), confirmation of such status required that the person was not married or that the spouse gave his or her consent (see paragraph 29 below). As the applicant’s wife had not given her consent to the transformation of their marriage into a registered partnership (rekisteröity parisuhde, registrerat partnerskap), the applicant’s new gender could not be recorded in the population register.

On 6 July 2007 the applicant instituted proceedings in the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen) complaining, inter alia, that her wife’s decision not to give her consent, which she was perfectly entitled to withhold as they both preferred to remain married, meant that the applicant could not be registered as female. A divorce would be against their religious convictions. A registered partnership did not provide the same security as marriage and would mean, among other things, that their child would be placed in a different situation from children born within wedlock.

On 5 May 2008 the Helsinki Administrative Court dismissed the applicant’s complaint on the same grounds as the local registry office. Moreover, it found, inter alia, that the impugned decision of 19 June 2007 was not contrary to Article 6 of the Constitution as same-sex partners had the possibility, by registering their relationship, to benefit from family-law protection in a manner partially comparable to marriage. Similarly, sections 1 and 2 of the Transsexuals (Confirmation of Gender) Act did not violate the constitutional rights of the applicant’s child.

On 8 May 2008 the applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltnings-domstolen), reiterating the grounds submitted before the local registry office and the Administrative Court. She also asked the court to make a request for a preliminary ruling to the Court of Justice of the European Communities, in particular on the interpretation of Article 8 of the European Convention on Human Rights. Referring to Articles 8 and 14 of the Convention, the applicant claimed that the State should not tell her that a registered partnership was appropriate for her, especially when this required that her wife become a lesbian. Their sexual identity was a private matter which could not be a condition for confirmation of gender. Transgenderism was a medical condition falling within the scope of private life. The State was violating her right to privacy every time the male identity number revealed that she was a transsexual. Moreover, she claimed that if her marriage were turned into a registered partnership, it would mean that she could no longer be a legal father to her child and could not be her mother either, as a child could not have two mothers.

On 3 February 2009 the Supreme Administrative Court refused the applicant’s request to apply for a preliminary ruling and dismissed her appeal. It found that by enacting the Transsexuals (Confirmation of Gender) Act the legislature had not intended to change the fact that only a man and a woman could marry and that same-sex partners could have their relationship judicially confirmed by registering it. The European Court of Human Rights had found, under Article 12 of the Convention, that there were no acceptable grounds for denying transsexuals the right to marry but that the margin of appreciation in this respect was wide. It was not possible under Finnish law for persons of the same sex to marry, but in such a case they could enter into a registered partnership. As to its legal and economic consequences, a registered partnership was essentially comparable to marriage. The question of transforming the institution of marriage into a gender-neutral one brought significant ethical and religious values into play and required the enactment of an Act of Parliament. The current state of the law was within the margin of appreciation given to the State by the European Convention.

On 29 October 2009 the applicant lodged an extraordinary appeal with the Supreme Administrative Court, requesting it to overturn its previous decision of 3 February 2009. She stated that she had undergone gender reassignment surgery on 29 September 2009 and that she could no longer prove that she had been male as indicated by her identity number and passport. Even though, for marriage purposes, she would still be considered as male, the fact remained that she should not be discriminated against on account of her gender.

On 18 August 2010 the Supreme Administrative Court dismissed the extraordinary appeal.

On an unspecified date the applicant also lodged a complaint with the Ombudsman for Equality (Tasa-arvovaltuutettu, Jämställdhets-ombudsmannen), complaining, inter alia, that she had the wrong identity number.

On 30 September 2008 the Ombudsman for Equality stated that she could not take a stand on the identity number issue as the matter had already been dealt with by the Administrative Court and the Ombudsman was not competent to supervise the courts. Moreover, the matter was pending before the Supreme Administrative Court.


CASE OF CIPRIAN VLĂDUȚ AND IOAN FLORIN POP v. ROMANIA

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicants, two brothers, were born in 1982 and 1974 respectively and live in Tautii Magheraus.

According to the first applicant, in the summer of 2004 he was contacted on several occasions by an undercover police agent who wanted to buy ecstasy from him, brought into the country from the Netherlands.

According to the prosecutor’s report, the police gained knowledge of the first applicant’s alleged involvement in drug trafficking at the beginning of September 2004.

It was established by the prosecutor and domestic courts that some time in September the first applicant brought a batch of drugs into the country and sold ten tablets to the undercover agent on 26 October 2004 and 115 tablets on 29 October 2004. According to the transcripts of the conversations intercepted between the first applicant and the police agent, on 28 October the latter called the first applicant, asked him if he had “any left” and at the applicant’s confirmation that some 150 remained, the undercover agent calculated their price at 1,000 euros, and advised the applicant on where and how to meet the next day for him to buy them all.

On 29 October 2004 the police intercepted a conversation between the undercover agent and the first applicant when they met for the drug transaction. The police agent told the applicant that the day before he had been offered a batch of “1,000 pieces” (1,000 de bucăţi) which would be available the next week, and that he would not want to miss such an opportunity. The applicant offered to bring the same amount for him. The police agent agreed, and asked how much more he could bring. They settled for 5,000 pieces. The undercover agent warned the first applicant repeatedly during their conversation that if he did not receive his supply from the applicant he would go to the other provider. During the conversation it appeared that the applicant had meanwhile sold some twenty more tablets. The first applicant called someone on his mobile phone and discussed in English getting 5,000 or 10,000 tablets. He then reported to the agent that he could get him some stronger tablets, and described the sensations he had had when he had used them himself. The agent proposed the place and arrangements for their next transaction.

The new transaction was postponed for various reasons and was finally planned to take place on 23 December 2004 in Baia Mare. That day the first applicant informed his brother for the first time that he had brought drugs into the country and about the deal. After having initially refused and argued extensively about it with his brother, the second applicant agreed to help, in order to save the family from potential retaliation by the Dutch seller. That evening he took the drugs to an agreed location while the first applicant negotiated the terms of the transaction with the undercover agent.

The first applicant and the undercover agent then joined the second applicant; the agent was offered an ecstasy tablet for testing and then left with the first applicant in order to set out the details of the transaction. The second applicant was to wait at the same location for the buyer to return with the money to pay for the drugs. Meanwhile, the second applicant saw police agents approaching in a taxi. He threw the bag containing the drugs into a nearby bush and phoned his brother to warn him. The first applicant told the undercover agent that the transaction was cancelled.

Police agents apprehended the two applicants and later recovered a bag containing 4,409 ecstasy tablets from the bushes.

The applicants were taken to the police station for further questioning. After consultation with their counsel they refused to make any statements. They were arrested.

On 25 October 2004 the organised crime and terrorism division of the prosecutor’s office attached to the Cluj Court of Appeal (“the prosecutor”) identified the first applicant as being apparently involved with trafficking in drugs and drug consumption, the merchandise being brought from the Netherlands.

On 26 October 2004 the prosecutor authorised the use of an undercover police agent to infiltrate the applicants’ circle in order to obtain information and evidence about the drug trafficking. It also authorised the undercover agent to purchase 150 ecstasy tablets. After each transaction the undercover agent wrote a report on the meeting with the first applicant. The prosecutor noted as follows:

“there are strong indications that the crime of drug trafficking has occurred/is about to occur ... as Ciprian Vlăduț Pop bought in 2004 high-risk drugs from the Netherlands, namely ecstasy tablets (MDMA), which he is selling in Baia Mare and Cluj-Napoca.”

On 29 October 2004 the prosecutor started criminal prosecutions against the first applicant on suspicion that he had both consumed and sold drugs. On 23 December 2004 the prosecution was extended to the second applicant.

On 27 October and 11 and 18 November 2004 the Cluj County Court authorised for a period of thirty days, at the prosecutor’s request, the tapping of the first applicant’s telephone and that of the undercover police agent. On 24 November and 22 December the authorisation was extended by thirty days on each occasion. Some 100 CDs were recorded in the process.

The prosecutor asked for the tablets purchased by the undercover agent to be tested by the police laboratory for physical and chemical analysis (“the police laboratory”). On 28 October, 2 November, and 27 December 2004 the police laboratory submitted its reports on the three batches of tablets, concluding that they contained methylenedioxymethamphetamine (MDMA). The tablets remaining after the laboratory test were sealed and stored in a special police depository.

The applicants and two taxi drivers who transported the police agents to the crime scene were interviewed by the prosecutor.

On 11 January and 10 March 2005 the first applicant stated that he had visited the Netherlands in the summer of 2004 and met P., who had afterwards visited Romania and spent a few weeks at the applicant’s home. P. found out that ecstasy sold very well in Romania, and offered to obtain some for the first applicant. The applicant brought a first batch of 250 tablets and sold some of them to the undercover police agent; the remaining tablets he either consumed himself or gave away to others. During the night of 22/23 December 2004 the applicant returned from the Netherlands with a batch of 5,000 ecstasy tablets from P. He contacted several individuals to offer to sell them tablets, but the undercover police agent offered to buy them all.

The second applicant gave statements on 11 January 2005. He declared that before 23 December 2004 he had not known of any dealings in drugs that his brother might have had, that during the night of 22/23 December he had returned with his brother from the Netherlands but had not been aware until later that day that his brother, who had crossed the border on his own on foot, had brought drugs into the country. He further explained that he had agreed to help his brother because he feared his brother was in danger of being attacked and killed by the drug dealers, given the large amount of money involved in the transaction. He further explained that it was morally impossible for him, at the time of the crime, to denounce his brother to the authorities. He also explained that he had never taken drugs himself.

On 2 March 2005 the prosecutor presented the transcripts of some of the recorded conversations, along with forty CDs, to the Maramureş County Court. He sought confirmation from the court that the evidence produced before it was relevant to the case (procedure under Articles 913 and 915 of the CCP). The hearing took place on 9 March 2005. Defence counsel asked for an adjournment to allow her to study the evidence and form an opinion on the relevance of the CDs. She also expressed the wish to examine the remaining recordings which had not been produced before the court by the prosecutor. The court dismissed the requests and accepted the evidence in the file, as proposed by the prosecutor. It agreed with the prosecutor’s opinion and ruled that the remaining CDs were not relevant to the case.

On 10 March 2005 the applicants, in the presence of their counsel, acquainted themselves with the prosecution file.

On 15 March 2005 the prosecutor committed the applicants to trial for trafficking in drugs, under Law no. 143/2000 on the fight against drug trafficking and illegal drug use (“Law no. 143/2000”). The prosecutor noted that the first applicant was also a drug user, whereas his brother, the second applicant, was not and had had no knowledge of his brother’s dealing before 23 December 2004. The prosecutor also noted that the first applicant had a prior conviction for theft and breach of firearms regulations (nerespectarea regimului armelor).

The case was heard by the Maramureş County Court. The applicants’ detention pending trial was extended at regular intervals by the court.

On 5 April 2005 the applicants gave statements before the court, reiterating their declarations from the prosecution phase. It appears that at that time the first applicant was suffering from withdrawal symptoms and was under sedatives prescribed by the prison doctors to alleviate his symptoms.

The applicants’ counsel asked for an expert evaluation of the tablets to establish whether they contained MDMA or a lighter drug. Relying on the principle of equality of arms, defence counsel requested that the expert examination be performed by experts from the Ministry of Justice and not by experts from the Forensic Institute, as the latter institution was attached to the police. The prosecutor advised that the Police Forensic Institute was normally responsible for such analyses. On 11 July 2005 the Ministry of Justice informed the court that it would not be possible for their experts to perform the requested tests.

The second applicant also asked the court to hear evidence from the undercover police agent. His request remained unanswered.

On 26 July 2005 the first applicant, who was suffering from withdrawal symptoms, became ill in the court building and had to be taken to hospital. Defence counsel asked for a medical assessment of his client. Despite repeated requests by the court, the prison authorities later failed to take the first applicant to hospital so he could receive the expert examination ordered by the court.

On 10 August 2005, at the court’s request, the Police Forensic Institute re-examined the drugs and in a comprehensive report confirmed that the tablets contained MDMA.

On 8 November 2005 the court heard pleadings from counsel for the prosecution and the defence. The applicants did not deny the substance of the charges. The first applicant admitted that the police operation respected the domestic legislation, but doubted its morality; in particular, he argued that if it had not been for the undercover police agent’s insistence he would not have bought ecstasy in the first place. In his view the undercover police agent asked on purpose for a high-risk drug to attract a heavier penalty for the applicants, whereas if he had requested a milder drug the sentencing would have been consequently lighter. The prosecutor replied that as it was known that the first applicant had brought ecstasy into the country in the summer of 2004, the undercover agent had done no more than follow that lead; it would have made no sense for him to ask for another drug so long as there was no indication that the applicant had dealt in any other type of drugs.

The second applicant pointed out that he had only been informed about the drug dealing on the very day when the last transaction had taken place, and that by telephoning his brother that day he had in fact prevented the crime from being committed.

The County Court rendered its judgment on 25 November 2005, based on the evidence in the file, namely the police reports from the undercover operation, witness statements (the two taxi drivers who had brought the police officers to the scene of the transaction and who had seen the applicants handcuffed and the police retrieving the bag containing the drugs from the bushes), the transcripts of the intercepted telephone calls and the expert reports concerning the content of the tablets. It reiterated the history as it had been established in the bill of indictment, and concluded that the applicants were guilty of the offences they had been accused of. The court gave no further answers to the arguments raised by the defence. It convicted both applicants and sentenced the first applicant to seven years and six months’ imprisonment and the second applicant to three years and six months’ imprisonment.

The applicants reiterated their complaints concerning breach of the principle of equality of arms, in that the tablets had been analysed in police laboratories and not by an independent expert. Finally they renewed their request to have all the transcripts of the intercepted conversations produced before the court, and complained that they could not have access to them as the remaining recordings had been destroyed. Before the court, they also argued that the unlawfully obtained evidence should be removed from the file and reiterated that the police operation had started only from a suspicion that the first applicant was a drug user.

Throughout the proceedings, the second applicant made repeated requests to be allowed to study his file, but received no answer from the court.

On 5 October 2006 the Mina Minovici National Forensic Institute examined the first applicant and his medical record. On 19 January 2007 it rendered its medical report, which was examined at the court hearing held on 31 January 2007. The experts concluded that the applicant’s drug addiction could be treated in the prison hospitals and that the medication he had received so far had been adequate; as he was not experiencing withdrawal symptoms, he did not need to be placed in a special drug withdrawal programme; they also considered that his medical condition was compatible with detention.

The Cluj Napoca Court of Appeal delivered its decision on 7 February 2007. Concerning the defence’s arguments about lack of access to the transcripts of the intercepted telephone calls the court reiterated that on 9 March 2005 it had decided which transcripts were useful to the case. The court dismissed their complaints concerning the secret police operation; in doing so, it relied on the report drafted by the undercover agent and by the prosecutor, and observed that the applicants’ own statements to the police and before the courts corroborated those reports.

The court of appeal substantially maintained the conclusions of the firstinstance court.

The applicants appealed on points of law and reiterated their main defence arguments. However, their appeal was dismissed in a final decision rendered on 29 March 2007 by the High Court of Cassation and Justice.

The second applicant described his detention as follows. He was arrested on 23 December 2004 and remained imprisoned until 1 May 2007. He spent the first three months of detention in police detention facilities, the following eight to nine months in Baia Mare Prison, then thirteen months in Gherla Prison; he spent the remaining time in Jilava Prison.

He had to share cells with smokers, although he was a non-smoker himself. He repeatedly asked the prison administration to place him in a cell with non-smokers. No such arrangements could be made for him, as the pretrial detention facilities were already overcrowded and there were no places available in the nonsmoking cells; according to the applicant, in Baia Mare Prison the ratio was of thirty-nine bunk beds, placed on three levels, for sixty inmates. When in Baia Mare Prison the applicant went on hunger strike from 13 to 16 April 2007 because he was placed in smoking cells despite being a non-smoker; he ended his protest when a nonsmoking cell became available after refurbishment.

When he was detained in Gherla Prison, he complained about being placed with smokers and about overcrowding in prison, notably that he did not have 4 sq. m of personal living space in the cell. On 5 February 2007 his complaint was dismissed by the judge delegated by the court to supervise the observance of the prisoners’ rights, under Law no. 275/2006 on the execution of sentences (“the post-sentencing judge”). The post-sentencing judge noted that there was no obligation in Romanian law to place a detainee in a non-smoking cell or to provide him with a certain amount of living space. According to the applicant, the cells were all dirty and infested with bugs.

According to information provided by the prison service, during his detention the applicant occupied altogether eleven cells in three prisons (Baia Mare, Gherla, and Jilava), sharing with between five and forty-three others; his personal living space was on average 1.91 sq. m at all times. In addition he spent three days in a cell alone in Baia Mare when he was on hunger strike, and two days alone in Gherla Prison infirmary; on those two occasions his living space was 16 sq. m.

The second applicant also described an episode where he was hit by a prison guard; he explained that he had got scared and become agitated because he had seen his brother suffering from withdrawal and was sure that his brother was about to die without anybody willing to come to his rescue. He pressed charges against the guard, and on 31 March 2006 the prosecutor decided not to prosecute.

He tried on two occasions to commit suicide by hanging himself (13 September 2005 and 2 December 2005). As a consequence of his attempted suicide of 2 December 2005, the second applicant was handcuffed to his bed for a month, according to his statements. The prison service explained that on 2 December 2005 he had been handcuffed to his bed as a means of preventing him from repeating his suicide attempt; he had been kept thus handcuffed while he remained “agitated and psychologically vulnerable”. On 2 December 2005 he was seen by the prison doctor, who noted his agitation, lack of cooperation and headache, and concluded that he could be treated in the medical infirmary. He was not known to have a mental disorder, and no recurrence of the suicidal behaviour was recorded while he was in detention.

On 9 March 2006 the second applicant complained before the Cluj Court of Appeal, within the appeal proceedings on the merits of the accusations against him, about the conditions of his detention, in particular the fact that he shared a large dormitory with smokers. He requested to be medically examined in order to demonstrate the negative consequences of the passive smoking on his health. He also complained of lingering pain in his right leg on which he had fallen from a three-metre height on 2 December 2005, when he had tried to hang himself from a suspended bar; he had sought medical examination, which he alleged had been refused by the prison doctors until 23 December 2005. The applicant made full statements about his attempted suicide on 2 December 2005, and described how he had been handcuffed to his bed and left without medical care.

He received no answer to these complaints.