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

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

The facts of the case may be summarised as follows .

Mr PERSON was shot dead at CARDINAL pm on DATE . According to witnesses the gunman was wearing a baseball cap and drove off in a silver ORG . In TIME of DATE a silver ORG was set alight a short distance from the scene of the shooting .

Shortly after the murder the applicant fled to the GPE . He was subsequently extradited from the GPE to GPE to stand trial for PERSON murder .

On DATE the applicant formally served a Defence Statement in which he alleged that Mr PERSON had been murdered by PERSON , 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 PERSON and Mr PERSON . On TIME Mr PERSON and Mr PERSON had asked him to provide a car so they could collect a shipment of drugs . DATE he purchased the ORG in the presence of PERSON and PERSON , but Mr PERSON had driven off in it .

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

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

On DATE the police interviewed Mr PERSON 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 DATE he telephoned his wife and again denied any involvement in the murder . Both of these conversations were recorded as PERSON , a category A prisoner , would have known .

NORP The applicant ’s trial for the murder of PERSON started on DATE . At the trial it was accepted by the applicant that the real issue for the jury was whether he or PERSON was the murderer . Mr PERSON 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 PERSON telephone calls pursuant to section MONEY ) of MONEY DATE ( see paragraph CARDINAL 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 PERSON 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 CARDINAL(CARDINAL ) of LAW DATE ( see paragraph CARDINAL below ) .

First , he stated that he was satisfied the evidence had extremely strong probative value as Mr PERSON “ 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 PERSON 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 PERSON 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 PERSON ’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 PERSON ’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 PERSON ’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 PERSON ’s home , CARDINAL of which was a list of debts . The applicant ’s name appeared on this list and he was shown as owing the victim GBP CARDINAL .

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 PERSON ’s mobile telephone records were also introduced to show that he had been in contact with the applicant on DATE of the murder . The last telephone call between them was recorded at TIME , shortly before the murder . There had also been significant telephone contact between the applicant and PERSON in DATE prior to the murder .

The seller of the silver ORG gave evidence that on TIME of the murder he had been contacted by the applicant , who had arranged to meet at his house at TIME The seller ’s mother testified that CARDINAL of the CARDINAL men who collected the car was named PERSON and was wearing a baseball cap . The men came for the car in a white van that had been hired by the father of PERSON that day from PERSON , a hire company , and passed to PERSON at TIME . 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 PERSON on the same date .

GPE 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 QUANTITY and TIME Cell site evidence also demonstrated that the applicant and his co - accused were in the vicinity of the road where the ORG was found TIME and TIME

Residents of the streets near the shooting gave evidence . CARDINAL stated that she had heard CARDINAL 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 DATE , of average build and height and wearing a baseball cap . She saw a car matching the ORG ’s description leaving the scene . PERSON evidence was not challenged and was read to the jury . A third eye - witness , a DATE boy , also gave evidence that the gunman had been in DATE and had been wearing a baseball cap . A fourth eye - witness , Mr PERSON , also gave a description matching the applicant . A fifth witness , PERSON , 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 DATE , had short brown hair and wore a baseball cap . Several other witnesses gave descriptions to the effect that the man driving the ORG was white and was wearing a baseball cap .

NORP CCTV footage from a petrol station showed the applicant arriving in the white PERSON , wearing a baseball cap and making telephone calls to an associate at TIME The number dialled by the applicant was in the vicinity of the cell site covering the road where the ORG 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 PERSON . The police had found no connection between Mr PERSON and either Mr PERSON or the applicant ( there was , for instance , no reference to PERSON PERSON in Mr PERSON ’s telephones ) and it was the superintendent ’s conclusion that there was absolutely no evidence that he had been involved in Mr PERSON ’s murder .

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

Mr PERSON ’s previous convictions for drug offences , firearm offences , and murder committed on CARDINAL May CARDINAL were also adduced .

On Mr PERSON ’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 PERSON these were self - serving statements , that is he was saying he was not involved in the murder of PERSON . In addition calls made by high risk category A prisoners , such as PERSON , 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 PERSON ’s previous convictions , the trial judge directed the jury :

“ You have heard this evidence because it may help you to resolve CARDINAL issues in the case , namely : ( a ) whether the convictions show that on CARDINALst May CARDINAL 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 PERSON chose to name PERSON as the murderer in his defence statement on DATE 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 ORG says he named him because he believed PERSON killed PERSON . ”

In the course of their deliberations , the jury asked and were allowed to hear the tapes of Mr PERSON ’s telephone calls again . On DATE , by a majority , the jury convicted the applicant of murder . He was sentenced to life imprisonment with a minimum term of DATE . He appealed against conviction to ORG .

The application for leave to appeal was initially considered and rejected by a single judge in DATE . The application was renewed before the full court on DATE 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 PERSON . 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 PERSON himself , they heard the recording of his CARDINAL 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 PERSON 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 PERSON [ 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 DATE the full court heard the case and dismissed the appeal , reserving its judgment . The judgment was delivered on CARDINAL DATE . In relation to the tapes of PERSON 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 , PERSON to give evidence .

The difficulty with this submission is the judge ’s finding of fact that PERSON 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 CARDINAL(CARDINAL ) [ of LAW DATE ] . The allegation against PERSON had been made late , and given that on the Appellant ’s case he had known of PERSON ’s responsibility for the murder within DATE of its being committed , it is to be inferred that it was deliberately made late so as to make it more difficult for the ORG to investigate it . As it was , because of the lateness of the allegation , the telephone records for telephones used in the murder for which PERSON had been convicted only went back to DATE .

In ORG said :

‘ CARDINAL . ORG will not readily interfere with a trial judge ’s decision to admit evidence under section CARDINAL(CARDINAL)(d ) [ of MONEY DATE ] . 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 . ”

ORG 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 PERSON ’s involvement was that of the Appellant .

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

( iii ) There was no good reason for the allegation of PERSON ’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 PERSON and either the Appellant or PERSON , despite exhaustive enquiries . Miss PERSON 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 PERSON ; contact was , he said , made via PERSON . If all CARDINAL were involved in a drugs deal , it is curious indeed that the Appellant did not have PERSON ’s telephone number and could not and did not telephone him direct .

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

( viii ) PERSON was born in DATE . He was DATE at the date of PERSON ’s murder . The evidence of PERSON ( 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 DATE , of average build and height , and he was wearing a baseball cap . PERSON , a boy aged DATE , said that the gunman was wearing a baseball cap and was in his DATE . PERSON described the gunman as white , in his CARDINALs , athletic and QUANTITY , of slim build . All these descriptions fitted the Appellant and not Pearman . Against these , CARDINAL witness described the gunman as not appearing to be young . Miss PERSON 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 PERSON . If the Appellant seriously wished to challenge Miss PERSON ’s evidence , she should have been required to give evidence orally and should have been cross examined .

( ix ) Similarly , PERSON described the driver of the Vectra car , seen by her together with the PERSON , as in his late teens or DATE , 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 ORG and the hire of the PERSON on DATE of the murder supports the prosecution case .

( xi ) The cell phone evidence showed PERSON to be in the vicinity of the murder when it was committed ; the timing of his last telephone connection with PERSON , 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 ORG was set on fire , all powerfully supported his guilt .

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

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

On DATE the applicant was informed that ORG had refused to certify questions of general public importance for the consideration of ORG .


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 DATE and lives in GPE , in GPE .

On DATE the Bila ORG ( “ the PERSON Tserkva Court ” ) found the applicant guilty of inflicting grievous bodily injuries on a certain Mr N. on DATE . Although this type of crime was punishable with DATE 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 DATE and CARDINAL months’ imprisonment . It also decided to include in the served part of the applicant ’s sentence the period from DATE to CARDINAL DATE ( DATE and DATE ) , 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 DATE 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 , ORG also ruled that during his pre - trial detention the applicant should remain in a pre - trial detention centre ( GPE ) as a preventive measure until the judgment became final . It further noted that the judgment was amenable to appeal within DATE of the date of its delivery .

On DATE the term of the applicant ’s sentence expired , and he asked the PERSON administration to release him . His request was rejected . On DATE the PERSON administration , however , applied to ORG 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 DATE the applicant ’s lawyer applied once again to the PERSON 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 ORG .

On DATE the DATE time - limit for lodging an appeal against the judgment of DATE expired and , in the absence of an appeal , it became final .

On DATE the PERSON 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 ORG to authorise the applicant ’s release .

NORP On DATE the GPE received the court ’s order to enforce the final judgment and the applicant was released .

On DATE ORG 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 LAW .


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 DATE and lives in GPE .

On DATE the ORG association , founded by the applicant and CARDINAL other associates , opened proceedings before ORG to seek registration in ORG 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 LAW its articles of association ( statutul asociației ) , was that of promoting the principles of sustainable development at the public policy level in GPE ( promovarea principiilor dezvoltării durabile la nivelul politicilor publice din GPE ) . The association ’s objectives , as declared in LAW articles of association , were : to increase expertise in the development of sustainable public policies in GPE ( creşterea expertizei ȋn elaborarea politicilor publice durabile din GPE ) ; 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 ORG ’s environmental initiatives in a NORP 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 DATE of its articles of association , were : research and analysis ; public debates and conferences ; monitoring the implementation of ORG directives ; public communication campaigns ; opinion polls ; reviewing the development and implementation of public policies in the environmental field ; training ; raising ORG 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 DATE 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 DATE , delivered in private , ORG granted the association legal personality and ordered its registration in ORG . 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 . CARDINAL . Moreover , the goal set by the association complied with the provisions of ORG CARDINAL and CARDINAL of that GPE .

ORG lodged an appeal on points of law ( recurs ) against the interlocutory judgment of DATE . 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 DATE and CARDINAL of the articles of association . However , a political party could not be registered under the provisions of Government Ordinance no . CARDINAL .

By a final judgment of CARDINAL DATE ORG allowed the appeal on points of law by ORG 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 GPE . Also , according to LAW , CARDINAL of the association ’s objectives was to increase expertise in the development of sustainable public policies in GPE . 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 . CARDINAL 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 DATE the applicants were criminally prosecuted for and convicted of various offences under the NORP 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 PERSON ( application no . CARDINAL/CARDINAL ) the firstinstance court ordered him to pay the legal fees incurred in respect of his representation in the criminal proceedings against him . On DATE ORG 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 LOC and Mr Dubrovskiy ( applications nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL ) .

Following the communication of the other CARDINAL applications ( nos . CARDINAL , DATE , CARDINAL/CARDINAL and CARDINAL/CARDINAL ) , 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 CARDINAL applicants’ right to legal assistance in the appeal proceedings in respect of their cases had been breached . The LOC cases were remitted for re - examination by the same appeal courts . The ORG requested additional observations from the Government in respect of these CARDINAL cases regarding the conformity of the second set of appeal proceedings with the requirements of LAW and CARDINAL ( c ) of the LAW . When the ORG 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 male . She always felt that she was a female in a male body but decided to cope with the situation . In DATE she married a woman and in DATE they had a child .

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

On DATE 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 DATE 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 CARDINAL as it no longer corresponded to the actual reality .

On DATE the local registry office refused the applicant ’s request . It found that , under sections CARDINAL and CARDINAL 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 CARDINAL 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 DATE the applicant instituted proceedings in ORG ( 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 DATE ORG dismissed the applicant ’s complaint on the same grounds as the local registry office . Moreover , it found , inter alia , that the impugned decision of DATE was not contrary to LAW 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 CARDINAL and CARDINAL of the Transsexuals ( Confirmation of Gender ) Act did not violate the constitutional rights of the applicant ’s child .

On DATE the applicant appealed to ORG ( korkein hallinto - oikeus , högsta förvaltnings - domstolen ) , reiterating the grounds submitted before the local registry office and ORG . She also asked the court to make a request for a preliminary ruling to ORG of ORG , in particular on the interpretation of LAW . Referring to Articles CARDINAL and CARDINAL of the LAW , the applicant claimed that the ORG 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 ORG 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 CARDINAL mothers .

On DATE ORG 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 . ORG had found , under LAW , 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 NORP 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 ORG . The current state of the law was within the margin of appreciation given to the ORG by ORG .

On DATE the applicant lodged an extraordinary appeal with ORG , requesting it to overturn its previous decision of DATE . She stated that she had undergone gender reassignment surgery on DATE 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 DATE ORG dismissed the extraordinary appeal .

On an unspecified date the applicant also lodged a complaint with ORG ( NORP - arvovaltuutettu , PERSON ) , complaining , inter alia , that she had the wrong identity number .

On DATE the Ombudsman for ORG stated that she could not take a stand on the identity number issue as the matter had already been dealt with by ORG and the ORG was not competent to supervise the courts . Moreover , the matter was pending before ORG .


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 , CARDINAL brothers , were born in DATE and DATE respectively and live in Tautii Magheraus .

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

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

It was established by the prosecutor and domestic courts that some time in DATE the first applicant brought a batch of drugs into the country and sold CARDINAL tablets to the undercover agent on DATE and CARDINAL tablets on DATE . According to the transcripts of the conversations intercepted between the first applicant and the police agent , on DATE the latter called the first applicant , asked him if he had “ any left ” and at the applicant ’s confirmation that CARDINAL remained , the undercover agent calculated their price at CARDINAL , and advised the applicant on where and how to meet DATE for him to buy them all .

On DATE 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 DATE before he had been offered a batch of “ CARDINAL pieces ” ( CARDINAL de bucăţi ) which would be available DATE , 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 CARDINAL 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 CARDINAL more tablets . The first applicant called someone on his mobile phone and discussed in LANGUAGE getting CARDINAL 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 DATE in GPE . DATE 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 NORP seller . TIME 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 CARDINAL applicants and later recovered a bag containing CARDINAL 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 DATE the organised crime and terrorism division of the prosecutor ’s office attached to ORG ( “ the prosecutor ” ) identified the first applicant as being apparently involved with trafficking in drugs and drug consumption , the merchandise being brought from the GPE .

On DATE 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 CARDINAL 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 DATE high - risk drugs from the GPE , namely ecstasy tablets ( MDMA ) , which he is selling in GPE and ORG . ”

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

On DATE and CARDINAL and DATE ORG authorised for a period of DATE , at the prosecutor ’s request , the tapping of the first applicant ’s telephone and that of the undercover police agent . On DATE and DATE the authorisation was extended by DATE on each occasion . CARDINAL CDs were recorded in the process .

NORP 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 DATE , DATE , and DATE the police laboratory submitted its reports on the CARDINAL 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 CARDINAL taxi drivers who transported the police agents to the crime scene were interviewed by the prosecutor .

On DATE and DATE the first applicant stated that he had visited the GPE in DATE and met PERSON , who had afterwards visited GPE and spent DATE at the applicant ’s home . P. found out that ecstasy sold very well in GPE , and offered to obtain some for the first applicant . The applicant brought a first batch of CARDINAL tablets and sold some of them to the undercover police agent ; the remaining tablets he either consumed himself or gave away to others . During TIME the applicant returned from the GPE with a batch of CARDINAL 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 DATE . He declared that before DATE he had not known of any dealings in drugs that his brother might have had , that during TIME he had returned with his brother from the GPE but had not been aware until DATE 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 DATE the prosecutor presented the transcripts of some of the recorded conversations , along with CARDINAL CDs , to ORG . He sought confirmation from the court that the evidence produced before it was relevant to the case ( procedure under LAW and QUANTITY of the ORG ) . The hearing took place on DATE . 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 DATE the applicants , in the presence of their counsel , acquainted themselves with the prosecution file .

On DATE the prosecutor committed the applicants to trial for trafficking in drugs , under PERSON no . CARDINAL/CARDINAL on the fight against drug trafficking and illegal drug use ( “ PERSON no . CARDINAL ” ) . 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 DATE . 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 ORG . The applicants’ detention pending trial was extended at regular intervals by the court .

On DATE 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 .

NORP 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 ORG and not by experts from ORG , as the latter institution was attached to the police . The prosecutor advised that ORG was normally responsible for such analyses . On DATE ORG 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 DATE 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 DATE , at the court ’s request , ORG re - examined the drugs and in a comprehensive report confirmed that the tablets contained MDMA .

On DATE 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 DATE , 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 DATE when the last transaction had taken place , and that by telephoning his brother DATE he had in fact prevented the crime from being committed .

ORG rendered its judgment on DATE , based on the evidence in the file , namely the police reports from the undercover operation , witness statements ( the CARDINAL 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 DATE and CARDINAL months’ imprisonment and the second applicant to DATE and QUANTITY 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 DATE the Mina Minovici National Forensic Institute examined the first applicant and his medical record . On DATE it rendered its medical report , which was examined at the court hearing held on DATE . 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 .

ORG delivered its decision on DATE . Concerning the defence ’s arguments about lack of access to the transcripts of the intercepted telephone calls the court reiterated that on DATE 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 ORG 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 DATE by ORG and ORG .

The second applicant described his detention as follows . He was arrested on DATE and remained imprisoned until DATE . He spent DATE of detention in police detention facilities , the following DATE in FAC , then DATE in FAC ; he spent the remaining time in FAC .

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 LOC the ratio was of CARDINAL bunk beds , placed on CARDINAL levels , for CARDINAL inmates . When in FAC the applicant went on hunger strike from CARDINAL to DATE 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 ORG , he complained about being placed with smokers and about overcrowding in prison , notably that he did not have QUANTITY m of personal living space in the cell . On DATE his complaint was dismissed by the judge delegated by the court to supervise the observance of the ORG rights , under PERSON no . CARDINAL/CARDINAL on the execution of sentences ( “ the post - sentencing judge ” ) . The post - sentencing judge noted that there was no obligation in NORP 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 CARDINAL cells in CARDINAL prisons ( GPE , GPE , and PERSON ) , sharing with CARDINAL others ; his personal living space was on average QUANTITY . m at all times . In addition he spent DATE in a cell alone in GPE when he was on hunger strike , and DATE alone in FAC infirmary ; on those CARDINAL occasions his living space was QUANTITY 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 DATE the prosecutor decided not to prosecute .

He tried on CARDINAL occasions to commit suicide by hanging himself ( DATE and DATE ) . As a consequence of his attempted suicide of DATE , the second applicant was handcuffed to his bed for DATE , according to his statements . The prison service explained that on DATE 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 DATE 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 .

NORP On DATE the second applicant complained before ORG , 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 QUANTITY height on DATE , 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 DATE . The applicant made full statements about his attempted suicide on DATE , and described how he had been handcuffed to his bed and left without medical care .

He received no answer to these complaints .


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (the United States of America);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings);Non-pecuniary damage - award

Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE a federal grand jury sitting in GPE for LOC of GPE indicted the applicant on CARDINAL counts of conspiracy to violate the criminal laws of GPE . He was charged with conspiracy to commit bank fraud , with a maximum prison sentence of DATE ; wire fraud , with a maximum prison sentence of DATE ; access device fraud , with a maximum prison sentence of DATE ; computer intrusion , under several subsections , with maximum prison sentences of DATE ; and aggravated identity theft , with a mandatory prison sentence of DATE , which must run consecutive to the sentence for any other offence .

NORP The charges were based on allegations that the applicant and his co - conspirators , as members of a criminal enterprise , had created and distributed malicious software known as the “ FAC ” , which had infected computers worldwide , including in GPE . It was suspected that the Gozi Virus had been designed to steal login credentials , such as usernames and passwords , for online bank accounts and other internet - based accounts . The data had then been used to withdraw funds from ORG accounts in GPE and LOC . It was alleged that the applicant specialised in creating software to work in conjunction with the Gozi Virus and other malicious software to deceive an account holder into divulging personal information .

Following the issuance of the indictment , on DATE GPE for LOC of GPE issued a warrant for the applicant ’s arrest in relation to the offences listed in the indictment .

On DATE , pursuant to the DATE US - Latvia Extradition Treaty , ORG submitted to the NORP authorities a request for the applicant ’s extradition from GPE to GPE , which was delivered to ORG on DATE .

On DATE PERSON , Prosecutor of the International Cooperation Division , ordered the police to arrest the applicant in accordance with section CARDINAL of LAW GPE likums ) ( arrest for the purpose of extradition ) . The prosecutor referred to the GPE request of CARDINAL DATE for the applicant ’s extradition .

At TIME on DATE the applicant was arrested at his place of residence under section ORG ) of LAW . A search of his residence was carried out , which lasted until TIME

The record of the applicant ’s arrest indicated that he had been informed of his rights under section CARDINAL of LAW , including the right to invite a lawyer . The Government stressed that the applicant had not requested a list of lawyers or an opportunity to use a telephone . He had asked to call his mother . The record was signed by the applicant and an investigator . The text of LAW ( paragraph CARDINAL below ) in CARDINAL languages , NORP , LANGUAGE and LANGUAGE , was attached to the record . The applicant had signed under that text , having written “ [ the applicant ] has read [ and ] familiarised [ himself ] ” .

According to the applicant , however , he was deprived of an opportunity to contact a lawyer for legal assistance until TIME on DATE . In his submission , the above - mentioned record confirmed only that he had not expressed such a request . It had been impossible to call for any legal assistance because during the arrest he had been laid face down on the floor , with his head covered and his arms tied behind his back . When the search had continued in a car park at QUANTITY , he had been permitted to use the phone .

The Government drew attention to the fact that later the same day a lawyer , ORG , and his assistant , PERSON , had been appointed to represent the applicant , based on agreement no . CARDINAL .

The Government submitted , and the applicant affirmed , that on DATE a prosecutor had informed the applicant ’s lawyer , ORG , that DATE the applicant would be brought before FAC ( PERSON pilsētas ORG rajona tiesa ) for a detention hearing . According to the Government , they agreed that the applicant would be given an opportunity to acquaint himself with the extradition request prior to the detention hearing .

TIME prior to the hearing on DATE at ORG , the applicant and ORG were provided with a complete case file . The Government referred to a record of DATE indicating that the applicant had disagreed to his extradition in a simplified procedure . The record was signed by the applicant and his lawyer .

The hearing commenced at TIME on DATE . TIME , furnished by the Government , indicated that the hearing had been held in camera and that no requests had been made to the court at the start of the hearing . According to TIME , the applicant and his lawyer , ORG , contested the contents of the extradition request and asked that a more lenient measure than detention be imposed on the applicant .

In the applicant ’s submission , the following statement by ORG , recorded in TIME , reflected the untimely service of the documents at issue :

“ [ ORG ] – My client is currently legally unprepared , therefore [ ORG ] shall speak first ... ”

The minutes showed that after ORG had made his argument , to which ORG had not wished to add anything , the applicant , having stated that he “ had read all the documents in NORP ” , continued to dispute the allegations against him and the measure of detention proposed .

Following the hearing , at TIME the investigating judge ruled that the applicant be detained under section CARDINAL of LAW ( “ pre - extradition detention ” ) .

The investigating judge ’s written ruling stated that the hearing had been closed to the public .

The ruling further noted the prosecutor ’s submission in support of the applicant ’s detention as follows :

“ ... a request for [ the applicant ’s ] extradition to GPE for criminal prosecution has been received ...

The extradition request has been sent under LAW [ DATE GPE - Latvia Extradition Treaty ] and it contains all the information and documents as required by LAW CARDINAL(CARDINAL ) and ( CARDINAL ) of the said LAW , as well as by section CARDINAL(CARDINAL ) of LAW ... ”

The ruling also indicated the applicant ’s submission that the accusation against him was vague .

NORP The relevant part of the investigating judge ’s reasoning for granting the prosecutor ’s request for the applicant ’s detention read as follows :

“ ... [ the investigating judge ] agrees with the prosecutor ’s proposal [ to impose on the applicant pre - extradition detention ] .

Section CARDINAL(CARDINAL ) of [ LAW ] prescribes that pre - extradition detention be applied after receipt of a request for a person ’s extradition along with [ the documents listed under LAW ] .

The documents prescribed under section CARDINAL(CARDINAL ) of [ LAW ] , including [ an arrest warrant issued against the applicant in GPE ] have been attached to the prosecutor ’s request ... no reasons to exclude the possibility of extradition are known .

The proposal has been submitted in compliance with section CARDINAL of [ LAW ] ; [ an arrest warrant has been issued in GPE ] in respect of [ the applicant ] , therefore a competent institution has assessed the necessity of [ the applicant ’s ] detention ; and therefore ... a legal basis exists for the application of pre - extradition detention with respect to [ the applicant ] . Also , the grounds for deprivation of liberty set out in LAW ) of [ the LAW the application of pre - extradition detention – the necessity to bring him before the competent legal authority on reasonable suspicion of having committed an offence .

In view of the foregoing and based on LAW DATE GPE - Latvia Extradition Treaty ] and sections ... CARDINAL [ and ] CARDINAL of [ FAC ] , Article CARDINAL(CARDINAL ) of LAW and LAW ( c ) of [ the LAW ] , the investigating judge has decided to impose on [ the applicant ] the pre - extradition detention . ”

The ruling was not subject to appeal .

In his application to the ORG the applicant alleged that during the detention hearing he had been placed in a dock with metal bars . He had been instructed by the police to cover his head with the hood of his jacket . From that time onwards , the mass media had circulated photographs depicting him in the courtroom behind the metal bars and wearing a hood .

According to the ORG , the applicant had not been placed in a dock with metal bars during the hearing concerning his detention .

The Government referred to the applicant ’s placement in a metal cage in a subsequent hearing held on DATE before ORG of ORG ( PERSON tiesas GPE tiesu palāta ) concerning his extradition ( paragraphs CARDINAL and DATE below ) .

Furthermore , the ORG argued that the applicant had never been asked to pull the hood of his jacket over his head . There were LAW requiring such a measure . It was solely the applicant ’s decision to do so . The Government relied on the applicant ’s statement to the mass media , published on DATE , to that effect , the relevant part of which read as follows :

“ As to why he had hidden his face in a hood , [ the applicant ] explained that ‘ ... [ he ] thought that it was a horrible misunderstanding , it could not be happening [ to him ] . If [ he ] showed [ his ] face , [ he ] would not be able to tell that it had not happened to [ him ] . [ The applicant ] was worried about [ his ] family , honour , parents , about [ his ] father ’s health ... ’ ”

In reply to the ORG ’s observations , the applicant responded in relation to his placement in a metal cage during the aforementioned hearing on DATE . At the same time , with respect to the detention hearing on DATE he appeared to maintain that he had been instructed by the police to wear the hood .

On DATE the applicant addressed a hand - written complaint , in the ORG language , to ORG ( PERSON apgabaltiesa ) about the ruling of DATE authorising his pre - extradition detention .

On DATE , the Judge of GPE , GPE , responded to the applicant ’s complaint as follows :

“ ... a decision ... under section CARDINAL(CARDINAL ) of LAW ( provisional detention ) ... is without appeal .

Section CARDINAL(CARDINAL ) of LAW ( pre - extradition detention ) provides that a proposal for pre - extradition detention is decided following the procedure as for a request for provisional detention .

Therefore , in accordance with the provisions of LAW ... a ruling of the judge on pre - extradition detention may not be appealed against ... ”

It appears that on DATE the applicant submitted to GPE a request to lift his pre - extradition detention or to substitute it with a different security measure .

On DATE the Judge of the Riga City Centre District Court , GPE , gave the same response as the CARDINAL given on DATE ( paragraph CARDINAL above ) . He added that under LAW an investigating judge was not competent to examine whether pre - extradition detention should be continued or terminated .

On DATE the applicant ’s lawyer , GPE , requested that an investigating judge of GPE review the applicant ’s detention and order his release .

On DATE , as is apparent from the case file , the Investigating Judge of the Riga City Centre District Court , GPE , refused the request . She reasoned that in accordance with LAW , pre - extradition detention was not subject to review . Furthermore , the maximum term of detention of DATE prescribed in section CARDINAL(CARDINAL ) of the PERSON had not yet been exceeded .

The investigating judge also indicated that section CARDINAL ) of LAW did not apply and no review of the pre - extradition detention could be conducted under that provision .

On DATE GPE lodged a complaint with the President of GPE .

On DATE the complaint was dismissed .

On DATE the applicant submitted a hand - written request , in the ORG language , to the Prosecutor of the International Cooperation Division , ORG The applicant asked the prosecutor to lift his detention on the grounds that the extradition of a NORP citizen was not permissible .

On DATE PERSON refused the applicant ’s request . He explained that in the event of any conflict between the DATE GPE - Latvia Extradition Treaty and LAW , the former would prevail . Under the treaty , extradition could not be refused based on citizenship . That response was subject to appeal to a higher prosecutor .

During DATE and DATE the applicant lodged before the prosecution further requests to lift his detention .

On DATE PERSON ordered the applicant ’s release .

He reasoned as follows :

“ ... there are grounds to believe that the [ applicant ’s ] complaint to the [ ORG ] will not be decided until DATE , i.e. , until the maximum term of pre - extradition detention prescribed under section CARDINAL(CARDINAL ) of LAW DATE –has expired with respect to [ the applicant ] .

As [ the ORG ] has determined a provisional measure ... [ the applicant ’s ] surrender may not be carried out within the maximum term of pre - extradition detention .

Therefore [ the prosecutor ] deems that the purpose of pre - extradition detention – to prevent the person from fleeing and to ensure [ his ] surrender ... to a requesting State – has ceased to exist . ”

On DATE the applicant complained to ORG about the circumstances of his arrest . In particular , he complained that his mother had not learnt about it until after TIME on DATE when she had returned home . She had called him on the phone , and he had been able to speak to her only because he had been allowed to use his phone to contact a lawyer . The applicant also complained that he had been denied the possibility to contact a lawyer . His complaint was forwarded to ORG for examination .

On DATE ORG of ORG ( NORP policijas PERSON drošības birojs ) completed an inquiry .

It was established that the applicant had answered his mother ’s phone call at the time of the search of the vehicle used by him . When his mother had arrived at the car park , the police officers had told her about the GPE extradition request . They had also provided information on the applicant ’s whereabouts . That had been affirmed by the applicant ’s mother herself in her request of CARDINAL DATE addressed to ORG .

With respect to legal assistance , it was found that the applicant had been provided with a list of lawyers . As he had indicated himself , he had been allowed to use a phone to contact a lawyer . He himself had signed the record of arrest stating that a lawyer ’s presence was not required , and that he had been informed of his rights under section CARDINAL of LAW , including the right to invite a lawyer .

ORG concluded that there were no grounds for disciplinary proceedings against the police employees involved in the operation .

On DATE PERSON issued a ruling finding the United States’ request for the applicant ’s extradition permissible .

The ruling spelled out the allegations against the applicant and their legal classification under LAW . It indicated that on DATE an arrest warrant had been issued against the applicant in GPE . The applicant ’s extradition was held to be permissible based on the following :

“ - the maximum limit of the sentence of deprivation of liberty for the crimes [ the applicant ] is accused of exceeds DATE ;

- no criminal proceedings have been initiated in GPE for the crimes for which ORG has requested [ the applicant ’s ] extradition ;

- no decision has been taken in GPE not to initiate or to terminate the criminal prosecution for the crimes for which [ the applicant ’s ] extradition has been requested ;

- no court decision has entered into force with respect to [ the applicant ] for the crimes for which the extradition has been requested ;

- the crimes of which [ the applicant ] is accused are not of a political or military nature ;

- [ the applicant ] is a citizen of GPE , however , pursuant to LAW of [ the DATE GPE - Latvia Extradition Treaty ] citizenship is not a basis for the refusal of extradition ;

- the statutory limitation periods have not expired either in GPE or in GPE ;

- [ the applicant ] has not been granted a pardon for the same crimes . ”

That ruling was subject to appeal to ORG of ORG .

On DATE the applicant and his lawyer lodged an appeal against the aforementioned ruling before ORG of ORG .

The appeal hearing was scheduled for DATE in courtroom no . CARDINAL , which was not equipped with a dock with metal bars . According to the applicant , he was never taken to that courtroom .

In view of the considerable media attention , ORG decided to relocate the hearing to a larger courtroom , no . CARDINAL . It was the only courtroom equipped with a dock with metal bars . The applicant was placed in that dock .

At the start of the hearing the applicant ’s lawyer , GPE , requested that ORG close the hearing to the public and prohibit filming . ORG refused to exclude the public from the hearing . It reasoned that the proceedings concerned the permissibility of extradition and not the imposition of detention . On the other hand , it prohibited under section CARDINAL of the Criminal Procedure Law the continuation of filming and the use of any material already filmed .

During the hearing interpretation was provided to the applicant .

The applicant ’s lawyer , GPE , submitted that at the start of the proceedings the applicant had not been provided with a lawyer . Also , in the course of the proceedings the ORG authorities had not verified his language knowledge . He had therefore been unable to understand the documents served on him . These had been provided TIME prior to the detention hearing , so neither the applicant nor his lawyer had been able to prepare their argument with respect to the documents presented .

On DATE ORG announced its ruling . In view of the smaller public attendance than DATE , the hearing was held in a smaller court room , no . CARDINAL , without a metal cage .

GPE pointed out that DATE the applicant ’s face had appeared in the media , even though any recording had been prohibited .

ORG upheld the impugned ruling , stating as follows :

“ [ The ORG ] concludes that the prosecutor has verified the extradition request in compliance with the requirements of section CARDINAL of LAW . [ He ] has assessed carefully whether grounds for [ the applicant ’s ] extradition exist , in compliance with section CARDINAL of LAW , and has made justified conclusions as to the permissibility of [ the applicant ’s ] extradition to GPE . ”

The Criminal Cases Chamber further found that there were no grounds for refusing the applicant ’s extradition under section CARDINAL of LAW . It reasoned as follows :

“ ... LAW the DATE US - Latvia Extradition Treaty ] provides that citizenship ... is not grounds for the refusal of extradition .

... [ the DATE GPE - Latvia Extradition Treaty ] has a higher legal force than section CARDINAL(CARDINAL)CARDINAL ) of LAW , which prohibits the extradition of a NORP citizen .

ORG finds declaratory the defence ’s indication that [ the applicant ’s ] human rights would be violated if he were extradited to GPE .

GPE is a democratic [ State ] , which , in concluding the treaty on extradition with GPE , undertook to comply with human rights standards and the rule of law , and to guarantee an accused the right to a fair trial , including the right to a trial in an independent and impartial court .

It follows from the case material that [ the applicant ] mentioned in the record of [ his ] arrest that he understands the NORP language and neither in the course of his arrest , nor when together with his defence he was getting acquainted with the GPE extradition request did [ the applicant ] indicate that the participation of an interpreter was required . Also , in the detention hearing ... without the participation of an interpreter he gave his explanation , noting that the accusation presented had not stated exactly what he had done .

Likewise ... [ the applicant ] had himself written applications and requests in the NORP language . ”

The ruling was final .

On DATE and DATE the applicant lodged constitutional complaints before ORG ( PERSON tiesa ) .

The applicant argued , inter alia , that the DATE US - Latvia Extradition Treaty and the national law that ratified it were incompatible with LAW ) ( right to be informed of rights ) and its LAW ( right to a fair trial ) and LAW NORP citizen ) .

The applicant further requested that sections CARDINAL ) and CARDINAL ) of LAW prohibiting an appeal against the judge ’s ruling on provisional detention and the court ’s ruling on the permissibility of extradition , respectively , be declared unconstitutional .

On DATE and DATE ORG refused to open a case . The relevant part of its decision read as follows :

“ The preamble of LAW verbis provides that the parties to the treaty undertake to ‘ have due regard for the rights of individuals and the rule of law’ and are ‘ mindful of the guarantees under their respective legal systems which provide an accused person with the right to a fair trial , including the right to adjudication by an independent and impartial tribunal established pursuant to law’ .

Therefore LAW expressis verbis foresees the same protection as the first and fourth sentences of LAW , as well as the third sentence of LAW , even though [ the applicant ] contests the compatibility of LAW precisely with these provisions .

Likewise , in accordance with LAW , the contracting parties shall ensure that persons under criminal investigation or adjudication do not have less human rights protection and procedural safeguards than those foreseen in LAW . The GPE has ratified ORG , without making reservations with respect to LAW , which has been in force in GPE since DATE . The applicant is accused of committing crimes which correspond to those mentioned in Articles CARDINAL through CARDINAL of ORG .

The Collegium of ORG also indicates that pursuant to the [ Criminal Procedure Law ] and LAW , a court of general jurisdiction has the precise duty to ensure that an individual ’s fundamental rights are observed in a concrete extradition procedure .

Also , in the case - law of ORG it has been found that a person to be extradited must be guaranteed human rights protection specifically in the course of the extradition process ...

At the same time ORG has held that a possibility that a person may receive a severe punishment , for example , a prolonged term of imprisonment , does not always of itself constitute a sufficient basis for a decision to refuse his or her extradition to the GPE ...

ORG will adopt the final decision on [ the applicant ’s ] possible extradition to the GPE , which is also under an obligation to observe the human rights protection guarantees provided for in the LAW , the LAW and LAW .

Therefore ... the legal reasoning on the possible incompatibility of LAW ... is obviously insufficient to grant the claim .

The legislator has a wide margin of appreciation to decide which cases may be considered at several court instances and also the procedure for their adjudication ...

... it has not been substantiated how LAW could impose a mandatory duty on the legislator to foresee the same rights for persons with respect to whom an investigating judge has taken a decision to order provisional detention as for persons for whom detention has been imposed as a security measure . ”

On DATE ORG wrote to ORG . Referring to LAW ( paragraph DATE below ) the Ministry asked ORG to guarantee as follows :

“ CARDINAL ) in case of extradition , during the criminal procedure , [ the applicant ’s ] human rights will not be violated and he will have such rights in criminal procedure as rights to fair trial , including rights to defence ;

CARDINAL ) in case of conviction , human rights prescribed for in the international law will be ensured to [ the applicant ] in his place of imprisonment in GPE ;

CARDINAL ) in case of conviction and after his request for transfer , [ the applicant ] will have the right to serve his sentence in GPE , according to [ LAW from DATE . ”

The request drew attention to the range of sanctions for the crimes at issue under LAW ( PERSON ) , in particular sections CARDINAL ) and CARDINAL(CARDINAL ) ( paragraph CARDINAL below ) and that the maximum term of imprisonment did not exceed DATE .

DATE . On DATE the Embassy of GPE in GPE provided Diplomatic Note No . CARDINAL - CARDINAL , the relevant part of which read as follows :

“ The LAW and laws of GPE , including the treaties to which we are a party , incorporate all fundamental human rights ... The fundamental guarantees apply before conviction , and post conviction if confinement is adjudged . No person extradited to GPE may be subjected to torture or cruel and unusual punishment .

In the case of [ the applicant ] , as previously stated in the extradition request , the death penalty is not an applicable punishment , and he therefore shall not be deprived of life in any event .

Finally , in accordance with LAW between the Government of GPE and ORG , signed on DATE , if convicted , GPE will make best efforts to honor a request from [ the applicant ] to serve his sentence in GPE in accordance with ORG on ORG and the implementing statutes thereto , should he apply for such a transfer . In the event that the application can not be honored , ORG of GPE shall consult with the Government of GPE pursuant to LAW . ”

On DATE the applicant ’s lawyer , ORG , submitted to ORG the matters for consideration when deciding on the applicant ’s extradition . He stated , inter alia , the following :

“ ... the absence of guarantees about [ the applicant ’s ] serving a sentence in GPE ... the service of a sentence QUANTITY away would constitute an identical violation as in the case of [ GPE and GPE v. GPE , nos . CARDINAL and ORG , CARDINAL DATE ] . ”

On DATE the Cabinet of Ministers decided that the applicant would be extradited to GPE .