Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

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

The applicant was born in DATE and lives in ORG .

On DATE an operation was planned for the applicant ’s arrest following allegations made by GPE and GPE to the police that he was a drug dealer and had tried to sell them narcotic substances .

At TIME on CARDINAL DATE the applicant stopped for petrol at a petrol station in ORG . At that moment he was approached by several plain - clothes police officers . According to the applicant , they dragged him out of his car and began beating , punching and kicking him , and hitting him with a truncheon . He then fainted .

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

According to the applicant , he was repeatedly beaten after his arrival at FAC .

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

At TIME on DATE a police investigator drew up a record of the applicant ’s arrest ( tutma protokolu ) . It indicated that the applicant was arrested on DATE , not CARDINAL DATE . The applicant refused to sign the record .

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

On DATE ORG ordered the applicant ’s detention for DATE , calculating the period of detention from DATE .

On DATE the applicant was examined by a forensic expert from ORG and ORG . According to the forensic report , the applicant complained of having been ill - treated by the police on DATE . The expert noticed an oval - shaped bruise on his neck . The conclusion of the expert reads as follows :

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

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

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

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

According to the indictment issued on DATE , the applicant was charged with offences under ORG CARDINAL ( illegal possession of narcotic substances in an amount exceeding that necessary for personal use , without intention to sell ) , CARDINAL ( illegal sale or illegal possession of narcotic substances with intention to sell ) , and CARDINAL ( illegal possession of a cold steel weapon ) of LAW .

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

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

In total QUANTITY of cannabis - based narcotic substances , QUANTITY of opium , CARDINAL hunting knife and CARDINAL “ ORG ” mobile phone taken within the framework of the case had been recognised as real evidence ...

Therefore , the fact that the accused ORG committed the criminal offences provided for by Articles CARDINAL , CARDINAL and CARDINAL of LAW was again proved in the court investigation by witness testimonies , expert opinions , records of face - to - face questioning and other official information in the case file .

The preliminary investigating authority had rightly qualified the criminal offences of the accused ORG under ORG , CARDINAL and CARDINAL of LAW . He should be found guilty under these ORG and be punished . ”

According to the judgment , the period of imprisonment was to be calculated from DATE .

On DATE ORG upheld ORG judgment of DATE . In the course of the proceedings , the applicant reiterated his complaints , but ORG did not consider them .

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

“ According to forensic report no . CARDINAL of DATE , the injuries on ORG body are characteristic of a beating .

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

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

Under LAW , evidence and facts , if there are doubts as to their source or the circumstances in which they were obtained , can not be used in order to determine the charge correctly . All the documents and statements on which the court relied as evidence in the present case are contradictory , and do not disprove ORG allegations .

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

On DATE ORG quashed ORG judgment of DATE in the part relating to the charges under ORG CARDINAL and CARDINAL of LAW and terminated the corresponding part of the criminal proceedings . The court held that the evidence concerning the charge under LAW had been obtained in breach of the relevant procedural requirements and failed to prove the applicant ’s guilt . In particular , GPE and GPE ’s statements were inconsistent and had been drafted by the investigator . The court also noted that the testimony of GPE and GPE at the hearings before ORG had differed from their statements . The court further noted that the evidence in connection with the charge under LAW , namely the knife found in the applicant ’s car , did not qualify as a weapon for the purposes of that provision . The court also found that the applicant had actually been arrested on DATE and for a day had been unlawfully detained in police custody . As to his allegation of ill - treatment , the court noted that he had been ill - treated by the police during his arrest and in police custody , as certified by the forensic report of CARDINAL DATE . The relevant part of the judgment reads as follows :

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

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

NORP However , ORG upheld the applicant ’s conviction under LAW . The relevant part of the judgment reads as follows :

“ ... The panel of the court considers that the accused ORG had committed the crime under LAW and that he had been correctly found guilty and convicted by the first - instance court . ”

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

The Court of Appeal reduced the applicant ’s sentence to CARDINAL years’ imprisonment and decided to calculate the beginning of the corresponding sentence from DATE .

On DATE the applicant was released after having served his sentence .


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

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

The applicant was born in DATE and lives in ORG .

At the time of the events in question the applicant was occasionally working for ORG and also providing information on the latter ’s business activities to FAC , an operative officer of ORG ( “ the GPE ” ) .

In TIME of DATE PERSON paid a visit to PERSON at the latter ’s business headquarters in ORG and asked him to return MONEY ( ORG ) which PERSON had allegedly lent him to help him start his activity . PERSON had previously refused to pay the money back . TIME , an argument broke out among them . PERSON and CARDINAL other individuals kidnapped PERSON and beat him severely to induce him to give up the debt demand . TIME PERSON called the applicant and asked him to come by car to the headquarters to transport someone to PERSON .

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

On DATE the applicant contacted ORG , who was away on holiday , to tell him what had happened . They met DATE , upon ORG return , and on DATE FAC transmitted the information to the police via his superiors .

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

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

On DATE the applicant and the others involved in the events of DATE were committed for trial on charges of illegal deprivation of liberty and extremely aggravated murder .

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

On DATE he was convicted by ORG of aiding and abetting illegal deprivation of liberty and extremely aggravated murder . He was sentenced to DATE imprisonment and removal of certain rights .

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

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

ORG considered the Prevention and Combat of Organised Crime Act ( see paragraph CARDINAL below ) and decided that the applicant could not benefit from any status as an GPE informant , for the following reasons :

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

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

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

The judgment was upheld by ORG on DATE .

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

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

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

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

ORG concluded that the applicant had taken on his own initiative the role of an GPE informant :

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

However , the GPE informed the court , by address no . CARDINAL of DATE ... that the information presented by [ the applicant ] to ORG was not the outcome of any collaboration between that ORG and [ the applicant ] .

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

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

The decision by ORG was upheld by ORG and ORG on DATE . The High Court increased the sentence to DATE in prison . This decision was final .

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

On DATE the request was granted in principle by ORG . It considered that the information could constitute relevant evidence which had not been available to the ordinary courts .

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

On DATE the GPE informed ORG that it declassified partially the report drafted by ORG based on the information given by the applicant concerning the crimes ( the report , which contained a description of the facts as presented by the applicant , was adduced to the criminal file ) . It further explained that the document drafted by the applicant himself for ORG had been destroyed after verification of the information contained and communication of that information to the police . It lastly reiterated that the information concerning collaboration with the PERSON was classified under PERSON no . PERSON , “ ORG ” , and , if revealed , could “ severely affect national security ” .

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

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

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

Consequently , on DATE , ORG quashed the previous decisions in part and acquitted the applicant on both counts .

On DATE , acting upon an appeal lodged by the prosecutor ’s office , ORG quashed that judgment and dismissed the request for revision . It considered that that remedy could not be used solely to adduce new evidence , and that the ordinary courts had already examined the theory according to which the applicant had been a GPE informant who had infiltrated PERSON ’s group :

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

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

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

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

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

On DATE ORG and ORG dismissed the appeal on points of law lodged by the applicant and upheld the decisions rendered by ORG , on similar grounds to those given by the lower court .