“Neither the case prosecutor nor the hearing prosecutor was aware (at the time of the investigation of the case, criminal investigation/trial) of the existence of a friendly relationship between Judge Bogdan Tudoran and another person involved in the trial. Also, the [DNA] did not have information about a possible hiding, by the judge, of such a relationship. Even if it proves the existence of a friendly relationship between the mentioned persons at this procedural moment, such aspect would not constitute a reason to review a final decision, according to the Romanian legislation in force.”
“…77. Dumitrescu, Pirvu's nephew, had a close relationship with Judge Tudoran. He stated that Judge Tudoran, Pirvu and Becali had been very good friends since at latest 2002, and had met regularly, dined and gambled together. He stated that at the gambling sessions, in which huge sums were staked, Judge Tudoran's presence intimidated others and prevented them from trying to cheat Pirvu.”
“…80. In addition, Opris made a statement to the SIIJ in February 2020 in connection with file 477/2020 (his own criminal complaint against Judge Tudoran). Opris became an associate of Pirvu in 1996, and met Judge Tudoran who was providing legal advice to Pirvu's companies and ‘protection within the judicial bodies’. He alleged that Judge Tudoran and Pirvu had ‘an indissoluble bond’ because the former had assisted the latter in relation to the investigation into the death of Pirvu's girlfriend. Opris gave a dramatic account of the circumstances. He alleged that from then on, Judge Tudoran frequently blackmailed Pirvu by reminding him that he would have faced a prison sentence if not for him. 81. Opris stated that a large part of Pirvu's fortune came from gambling, mainly with Becali. He asserted that Pirvu and Bucur Costel secretly agreed to cheat Becali of€4 million and share the proceeds. Pirvu did not pay Bucur his share, but Bucur was unable to complain because Judge Tudoran was supporting him in various legal issues. Pirvu also had interests in real estate, and Opris alleged that Judge Tudoran assisted by drafting legal documents, and by influencing judges of the Bucharest Court of Appeal, so that Pirvu could succeed in a dispute over a plot of land. In return, Opris stated, Judge Tudoran received a parcel of the disputed land, which he fictitiously transferred to Cornel Pirvu so that his role would not become known. He alleged that Becali was also involved in this matter. 82. Opris further alleged that Judge Tudoran had bragged to him about his power and influence and said that he had helped Becali to win an appeal against an order for pre-trial detention in criminal proceedings, in return for a payment of€200,000 which Pirvu guaranteed.”
“162. I have nonetheless come to the conclusion that Dojana, Dumitrescu and Opris provide credible evidence of at least the following allegations against Judge Tudoran: he had a longstanding relationship with Pirvu, in the course of which he had improperly and corruptly assisted Pirvu in legal matters; he also had a relationship over a number of years with Pirvu's friend Becali, in the course of which he had again provided improper and corrupt assistance with legal matters; he had participated in illegal gambling sessions with both those men; and he had received one bribe and solicited another. I cannot conclude on the balance of probabilities that these allegations are true; but in all the circumstances of this very unusual case, I accept that they may well be. In written submissions, the [respondent] had emphasised the evidence of Dojana as to his witnessing a meeting between Judge Tudoran and Becali whilst the [respondent's] trial was taking place. That particular point has been taken away from the [respondent] by Dojana's change of evidence as to the date of this alleged meeting; but the more general point remains, that there is said to have been at least recent contact between the complainant and the trial judge, which was never disclosed to the [respondent]. 163. The [appellant] has plainly failed to put forward any evidence or information which dispels these concerns. There is no basis on which I could reject the response of the [appellant] to a formal request for information about the relationship between Judge Tudoran and Becali; but I agree with Mr Fitzgerald that it was very unsatisfactory. I would have expected the [appellant], in addition to denying any knowledge of such a relationship at the time of the trial, to investigate whether such a relationship did in fact exist. I also agree with Mr Fitzgerald that it is a surprising aspect of the Romanian criminal justice system if the late discovery of an undisclosed friendly relationship between a trial judge and an important prosecution witness ‘would not constitute a reason to review a final decision’. 164. It is important to note that it is a particular, and unusual, feature of this case that the evidence does not show merely a relationship of friendship between judge and witness. It provides substantial grounds for believing that the relationship was also one which involved improper, corrupt and criminal conduct by a serving judge. The evidence shows a real risk that the [respondent] suffered an extreme example of a lack of judicial impartiality, such that there can be no question as to consequences for the fairness of the trial. If there was such a relationship, Judge Tudoran clearly should not have presided over a trial in which Becali was the complainant and an important prosecution witness; but he did not recuse himself, and there was no disclosure to the parties even of the fact that the two men knew one another. 165. Moreover, whether the appeal hearing before the HCCJ is properly characterised as one confined to points of law, or as one which considered issues both of law and of fact, it was conducted in ignorance of the evidence now available about Judge Tudoran's relationship with Becali. The HCCJ was not asked to review the case on the basis that the trial judge had for many years had a close and corrupt relationship with a key prosecution witness. Thus its conclusion that the evidence of the [respondent’s] guilt was clear failed to take into account important matters affecting the reliability of the prosecution evidence and the impartiality of Judge Tudoran's assessment of that evidence. 166. I would add that I accept the [respondent’s] submissions as to why the fresh evidence has only been put forward at a very late stage. 167. In those circumstances, and for those fact-specific reasons, I accept that the oral evidence of Dojana, and the written statements of Dumitrescu and Opris, satisfy the Fenyvesi criteria and should be admitted as fresh evidence. On the basis of that fresh evidence, I am satisfied that there are now substantial grounds for believing that there is a real risk that the [respondent] was convicted by a judge who could not be impartial because of his undisclosed relationship with a key prosecution witness, and who therefore should not have tried the case, and that the [respondent] thereby suffered a complete denial of his art 6 rights at trial. There are therefore substantial grounds for believing that he faces, if returned to Romania, a real risk that he will suffer a complete denial of his art 5 rights, because his imprisonment will be arbitrary. The conditions in section 27(4) of the Act are accordingly satisfied.”
“…In a conviction extradition case, is it sufficient for the requested person to show substantial grounds for believing that there is a real risk that his trial was so flagrantly unfair as to deprive him of the essence of his article 6 rights, and therefore a real risk that his imprisonment in the requesting state will violate his article 5 rights?...”
“In sum, the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requestion country.”
“The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards.”
“For my part I think it only leads to confusion to speak of ‘balance of probabilities’ in the context of what the court has to decide under section 4(1)(c) of the Act. It is a convenient Page 18 and trite phrase to indicate the degree of certitude which the evidence must have induced in the mind of the court as to the existence of facts, so as to entitle the court to treat them as data capable of giving rise to legal consequences. But the phrase is inappropriate when applied not to ascertaining what has already happened but of prophesying what, if it happens at all, can only happen in the future.”
“If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and one. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of zero is returned and the fact is treated as not having happened. If he does discharge it, a value of one is returned and the fact is treated as having happened.”
“In executing this test [of a flagrant denial of justice], the Court considers that the same standard and burden of proof should apply as in the examination of extraditions and expulsions under art. 3. Accordingly, it is for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if removed from a Contracting State, he would be exposed to a real risk of being subjected to a flagrant denial of justice. Where such evidence is adduced, it is for the Government to dispel any doubts about it.”
“311. The first aspect of that approach, first set out in Ireland v UK (cited above, paras 160–161) and more recently confirmed in Cyprus v Turkey (cited above, paras 112–113 and 115) and in Georgia v Russia (cited above, paras 93 and 95), is that, as a general rule, the burden of proof is not borne by one or the other party because the Court examines all material before it irrespective of its origin, and because it can, if necessary, obtain material of its own motion. As early as in Artico v Italy (App no 6694/74)(1980) 3 EHRR 1 , [1980] ECHR 6694/74, para 30, the Court stated that that was the general position not only in inter-State cases but also in cases deriving from individual applications. It has since then relied on the concept of burden of proof in certain particular contexts. On a number of occasions, it has recognised that a strict application of the principle affirmanti incumbit probatio, that is that the burden of proof in relation to an allegation lies on the party which makes it, is not possible, notably in instances when this has been justified by the specific evidentiary difficulties faced by the applicants (see, for example, Akdivar, cited above, para 68, in relation to the exhaustion of domestic remedies; Baka, cited above, paras 143 in fine and 149, and the examples cited therein, in relation to various substantive articles of the Convention; JK v Sweden (App no 59166/12)(2016) 64 EHRR 797 ,[2016] ECHR 59166 /12, paras 91–98, in relation to the risk of ill-treatment in the destination country in removal cases underart 3 of the Convention ). 312. Indeed, although it relies on the evidence which the parties adduce spontaneously, the Court routinely of its own motion asks applicants or respondent Governments to provide material which can corroborate or refute the allegations made before it. If the respondent Governments in question do not heed such a request, the Court cannot force them to comply with it, but can—if they do not duly account for their failure or refusal—draw inferences (see Janowiec v Russia (App nos 55508/07 and 29520/09)[2013] ECHR 55508 /07, para 202, with further references). It can also combine such inferences with contextual factors. Rule 44C(1) of the Rules of Court gives it considerable leeway on that point. 313. The possibility for the Court to draw inferences from the respondent Government’s conduct in the proceedings before it is especially pertinent in situations—for instance those concerning people in the custody of the authorities—in which the respondent State alone has access to information capable of corroborating or refuting the applicant’s allegations (see, among other authorities, Timurtas, cited above, para 66; Aktas v Turkey (App no 24351/94)(2003) 38 EHRR 333 ,[2003] ECHR 24351 /94, para 272; and El-Masri v Former Yugoslav Republic of Macedonia (App no 39630/09)(2012) 34 BHRC 313 , para 152). That possibility is likely to be of particular relevance in relation to allegations of ulterior purpose. 314. The second aspect of the Court’s approach is that the standard of proof before it is ‘beyond reasonable doubt’. That standard, however, is not co-extensive with that of the national legal systems which employ it. First, such proof can follow from the coexistence of sufficiently strong, clear and concordant inferences or similar unrebutted presumptions of fact. Secondly, the level of persuasion required to reach a conclusion is intrinsically linked to the specificity of the facts, the nature of the allegation made, and the Convention right at stake. The Court has consistently reiterated those points (see, among other authorities, Nachova v Bulgaria (App nos 43577/98 and 43579/98)(2005) 19 BHRC 1 ,(2005) 42 EHRR 933 , para 147; El-Masri, cited above, para 151; and Hassan, cited above, para 48). 315. The third aspect of the Court’s approach, also set out as early as in Ireland v UK (cited above, para 210), is that the Court is free to assess not only the admissibility and relevance but also the probative value of each item of evidence before it. In Nachova (cited above, para 147), the Court further clarified that point, saying that when assessing evidence it is not bound by formulae and adopts the conclusions supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. It has also stated that it is sensitive to any potential evidentiary difficulties encountered by a party. The Court has consistently adhered to that position, applying it to complaints under various articles of the Convention (see Baka, cited above, para 143, with further references).”
“ … the admission of torture evidence is manifestly contrary, not just to the provisions of article 6, but to the most basic international standards of a fair trial. It would make the whole trial not only immoral and illegal, but also entirely unreliable in its outcome. It would, therefore, be a flagrant denial of justice if such evidence were admitted in a criminal trial.”
“Thirdly, and most importantly, due regard must be had to the special difficulties in proving allegations of torture. Torture is uniquely evil both for its barbarity and its corrupting effect on the criminal process. It is practised in secret, often by experienced interrogators who are skilled at ensuring that it leaves no visible signs on the victim. All too frequently, those who are charged with ensuring that torture does not occur – courts, prosecutors and medical personnel – are complicit in its concealment. In a criminal justice system where the courts are independent of the executive, where cases are prosecuted impartially, and where allegations of torture are conscientiously investigated, one might conceivably require a defendant to prove to a high standard that the evidence against him had been obtained by torture. However, in a criminal justice system which is complicit in the very practices which it exists to prevent, such a standard of proof is wholly inappropriate.”
“Because the trial and appeal process has already occurred, it constitutes past fact. Thus the question of whether it was ‘flagrantly unfair’ is susceptible of proof. In our view, in a situation such as the present, it is for the appellant to establish, on a balance of probabilities, that the process of which he complains had, in fact, been ‘flagrantly unfair’. This accords with long-established general principle.”
“More fundamentally, no legal system based upon the rule of law can countenance the admission of evidence – however reliable – which has been obtained by such a barbaric practice as torture. The trial process is a cornerstone of the rule of law. Torture evidence damages irreparably that process; it substitutes force for the rule of law and taints the reputation of any court that admits it. Torture evidence is excluded to protect the integrity of the trial process and, ultimately the rule of law itself.”
“Gäfgen reflects the clear, constant and unequivocal position of this Court in respect of torture evidence. It confirms what the Court of Appeal in the present case had already appreciated: in the Convention system, the prohibition against the use of evidence obtained by torture is fundamental. Gäfgen also confirms the Court of Appeal’s view that there is a crucial difference between a breach of art. 6 because of the admission of torture evidence and breaches of art. 6 that are based simply on defects in the trial process or in the composition of the trial court.”
“That statement requires modification as a result of the decision in Othman (Abu Qatada) to the extent that what must be established is not the actual unfairness of the trial process leading to the conviction in the requesting country but rather the establishment of substantial grounds for believing that there is a real risk that the respondent suffered a flagrant denial of justice in the course of that trial process.”
“Subject to an exception in the case of evidence which may have been obtained by torture which is not applicable in this case, in a conviction extradition case it is not sufficient for the requested person to show substantial grounds for believing that there is a real risk that his trial was so flagrantly unfair as to deprive him of the essence of his article 6 rights and therefore a real risk that his imprisonment in the requesting state will violate his article 5 rights. It is necessary for the requested person to prove on the balance of probabilities a flagrant violation of his article 6 rights.”
“25. According to the Court’s case-law, in the case of detention following ‘conviction by a competent court’ within the meaning of Article 5(1)(a), the supervision intended by Article 5(4) is included in the judgement and this provision does not require separated oversight of the lawfulness of the detention (De Wilde, Ooms et Versyp, cited above, para 76). However, if new issues regarding the lawfulness of the detention were to arise after the judgement, Article 5(4) applies again and requires judicial review of the lawfulness of the detention (see Ivan Todorov v Bulgaria, no 71545/11, para 59,19 January 2017 as well as the references cited therein). 26. Thereupon the Court must decide any new issues of lawfulness and if there are any, which ones can arise over the return to prison of the applicant in 2015 and his subsequent detention to enforce his sentence, and if the remedies open to him were in line with Article 5(4) (Weeks v United Kingdom,2 March 1987 , para 56, series A no 114).”