5.  The applicant was born in 1967 and is presently serving a prison term in Šibenik Prison. 6.  Following a series of criminal convictions for drug abuse, the applicant was sent to serve the sentence in Lepoglava State Prison (Kazneni zavod Lepoglava) on 11 November 2002. On 29 July 2004 he was transferred to Gospić Prison. 7.  While the applicant was serving a prison term in Lepoglava State Prison, the prison authorities instituted disciplinary proceedings against him on an unspecified date. The hearings were held on 10 and 13 October 2003. Both the applicant and his counsel were present at the hearings. The applicant and four witnesses gave evidence in person. In the Head of the Disciplinary Proceedings' decision of 14 October 2003 it was established that on 19 July 2003 the applicant had held closed the door of cell no. 9 and had thus prevented a member of the prison staff from entering the cell and performing his duties. The applicant's conduct was found to be in breach of section 145 § 3(10) of the Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora) and he was sentenced to seven days' solitary confinement suspended for three months. The decision was served on the applicant on 17 October 2003 at 2.45 p.m. It was also served on his counsel on an unspecified date. The applicant's counsel lodged an appeal against the decision on Monday, 20 October 2003. 8.  In a decision of 27 October 2003 the Varaždin County Court judge responsible for the execution of sentences declared the appeal inadmissible as being out of time. The judge held that the time-limit for an appeal was forty-eight hours and that the time-limit had expired on 19 October 2003 at 2.45 p.m. despite the fact that this day had been a Sunday. The time-limit could not be extended to the first working day, since it had been fixed in hours. 9.  During his stay in Gospić Prison the prison authorities opened disciplinary proceedings against the applicant. The prison authorities found that on 16 August 2004 the applicant had attempted to smuggle illegal drugs into the prison via a letter sent to him by his girlfriend, which constituted a disciplinary offence under section 145 (3)(11) of the Enforcement of Prison Sentences Act. In his decision of 2 November 2004 the Head of Disciplinary Proceedings imposed on the applicant a disciplinary measure consisting of a restriction on his movement inside the prison and frequent contacts with the outside world for a period of three months, including a ban on receiving postal parcels, starting from 2 November 2004. 10.  In an appeal of 16 November 2004 the applicant, inter alia, alleged that he had not attended the final hearing before the prison disciplinary authorities because his lawyer had not been present. The applicant also alleged that the notes of that hearing had not been served on him. He further stated that his counsel would elaborate on these issues in a separate appeal. On 16 November 2004 counsel lodged a separate appeal whereby he contested the findings of the applicant's guilt and the severity of the disciplinary measure imposed. On 18 November 2004 the Gospić County Court judge responsible for the execution of sentences dismissed the appeal. The decision analysed in some detail the evidence presented in the disciplinary proceedings but made no mention of the procedural defects complained of by the applicant. 11.  The applicant submitted that he had firstly been put in cell no. 5 in Unit 1. However, later on he had been moved to Unit 2. He alleged that the room had been very damp, and the mattresses old and torn so that bare wire stuck out. The bed sheets and pillowcases had been dirty and the blankets old and foul smelling. No daylight entered the cell and the electric light had to be switched on all day. He had been locked in his cell for twenty-one hours per day, with no contact with other prisoners or the outside world. He had been allowed two one-hour walks and one hour of exercise in a gym per day, both without the presence of any other prisoner. The rest of the time he had had to spend locked alone in his cell. He had not had regular access to a bathroom or running water and his access to sanitary facilities had been left to the discretion of the prison guards. The heating had been inadequate and the food of low quality. No toiletries had been provided to the applicant and no permanent doctor had been on duty in the prison. Only one doctor (a paediatrician) had come once in a while for an hour at a time.
(b)  The Government's submissions 12.  According to the Government, the main building of the Gospić Prison was built in 1878 and renovated in 1995. It comprised two units. The first (“Unit 1”) consisted of five-bed cells and the other (“Unit 2”) of two-bed cells, each equipped with a toilet. Inmates shared a communal bathroom. Unit 1 had a communal living-room. Disinfection and rat extermination were performed regularly. Inmates' clothes and bed sheets could be washed in the prison laundry every day. The bed sheets were changed once a week. 13.  On 29 July 2004 the applicant had arrived at Gospić Prison. He had been put in Unit 1, under the “semi-open” prison regime until 24 September 2004 when he had been moved to Unit 2, under a higher security regime, to a cell measuring 3.75 x 3.5 metres and sanitary facilities measuring 2 x 1.6 metres, which he had shared with another inmate. In November 2005 he had been moved back to Unit 1 to a cell measuring 7.15 x 3.7 metres with sanitary facilities measuring 1.6 x 1.5 metres, which he had shared with three to four inmates at times. He had stayed there until 17 March 2006 when he had been moved back to Unit 2 due to an incident involving a fight with another inmate. He had stayed there until May 2006 when he had been transferred to Pula Prison. During his stay in Unit 2 the applicant had been locked in his cell save for one hour in the mornings when he had been allowed to go out in the courtyard and for two hours between 8 and 10 p.m. when he had been allowed to watch television, read or play games in a common room. During his stay in Unit 1 the applicant worked for four hours per day. 14.  According to the applicant, on 17 March 2005 he had been injured by another prisoner who had struck him twice on the head. He had been taken to a doctor to whom he had complained of general sickness, dizziness and heavy thirst. However, the doctor had only prescribed painkillers and had not made any further examinations. The applicant had asked that an X-ray examination be carried out at his own expense, but this had been refused. He further alleged that he had a bruise under his left eye.
(b)  The Government's submissions 15.  According to the Government the applicant had been seen by the prison doctor the very same day and the following day. The doctor had prescribed painkillers. Following the applicant's further complaints of backache, he had been taken to the Gospić General Hospital and seen by a specialist. An X-ray examination had been carried out but no fractures had been identified. The applicant had been prescribed further painkillers to be taken orally and a soothing gel. The Government submitted a copy of the medical report from the Gospić General Hospital to confirm their submissions. 16.  On 14 September 2004 the applicant petitioned the Gospić County Court judge responsible for the execution of sentences, complaining about the prison conditions and also alleging that a postal parcel sent to him by his parents on 30 August 2004, containing three cartons of cigarettes, two magazines on motor cars and one notebook, had never been delivered but had instead been returned to his parents, who had informed the applicant about it. 17.  On 21 September 2004 the judge requested the Gospić Prison authorities to comment on the complaint concerning the alleged non-delivery of the parcel. In his letter to the prison authorities of 24 September 2004, the judge noted that a prison governor was allowed to temporarily prohibit a prisoner from receiving parcels for health and security reasons and that the prisoner in question should be informed about such a decision and the reasons for it. The applicant received a copy of the letter. 18.  The applicant again petitioned the Gospić County Court judge responsible for the execution of sentences on 21 October 2004, repeating his complaints about the prison conditions and further asserting that six to eight letters he had sent to various persons had never been delivered. The judge replied to the applicant's allegations by letter of 8 November 2004 stating that the Gospić Prison authorities had informed him that all his letters had been properly forwarded and instructed the applicant to send future letters via registered mail only. As to the applicant's complaints concerning the prison conditions, the judge expressly stated that he had no jurisdiction to supervise the running of prisons. 19.  Following the incident of 17 March 2006, the applicant was moved back to Unit 2, and the Prison Governor ordered that disciplinary proceedings be instituted against him. On an unspecified date the applicant appealed against that decision, alleging that he had been attacked by another inmate who had struck him twice on the head. The applicant further complained that the medical assistance provided to him had been insufficient since the doctor had only prescribed him painkillers and had not made any further examinations. His request that an X-ray examination be carried out at his own expense had been refused. On 23 March 2006 the Gospić County Court judge responsible for the execution of sentences dismissed the applicant's appeal on the ground that the decision to place the applicant under the “closed prison regime” had been based in law and was a consequence of his conduct, which had endangered the order and security in the prison. No comment was made about the applicant's allegations concerning the lack of adequate medical assistance. 20.  The applicant appealed against the judge's decision on 27 March 2006 to a three-judge panel of the Gospić County Court. In his appeal he complained about the conditions in Unit 2 (see paragraph 11 above). The panel dismissed the applicant's appeal on 28 March 2006 on the ground that the only way to prevent further unacceptable behaviour on his part had been his isolation. They made no remarks concerning the applicant's complaint about the conditions in Unit 2.


5.  The applicant was born in 1931 and lives in Bratislava. 6.  On 24 March 1992 the applicant claimed restitution of real property before the Považská Bystrica District Court. He relied on the Extra-Judicial Rehabilitations Act. 7.  The District Court held a number of hearings and took extensive evidence. In a judgment of 11 August 1995 it ordered the defendant to restore the property to the applicant. 8.  On 6 November 1996 the Regional Court in Banská Bystrica quashed the first-instance judgment. 9.  After several hearings the District Court delivered its second judgment on 13 January 2000. It granted the applicant’s claim. The defendant appealed. On 30 November 2001 the court of appeal quashed that judgment. 10.  In a third judgment, delivered on 26 February 2004, the District Court ordered the defendant to restore the property to the applicant. The Regional Court quashed the judgment on 10 May 2005. 11.  In a fourth judgment delivered on 21 November 2005 the District Court partly granted the applicant’s claim. On 10 February 2006 one defendant appealed. The file was transferred to the court of appeal on 16 February 2006. 12.  On 26 September 2006 the Regional Court in Trenčín upheld the relevant part of the first-instance judgment. The decision to grant the applicant’s claim in part became final on 16 November 2006. 13.  On 25 January 2007 the applicant petitioned an executions officer for execution of the District Court’s judgment of 21 November 2005 in conjunction with the Regional Court’s judgment of 26 September 2006. 14.  On 17 May 2007 the District Court in Žilina authorised the officer to execute the judgments. 15.  On 8 June 2007 the debtor objected to the notification of the execution as being unclear. The executions officer submitted the objection to the District Court in Žilina. The execution proceedings are pending. 16.  On 8 December 2005 the Constitutional Court found that the District Court in Považská Bystrica had violated the applicant’s right to a hearing without unjustified delay. The Constitutional Court admitted that the case was complex from both a factual and legal point of view. 17.  The applicant by his conduct had significantly contributed to the length of the proceedings. In particular, he had been asked three times to specify his claim and to submit relevant documents. Between 8 December 1994 and 19 April 1995 the parties had attempted to reach an agreement. The applicant had failed to appear before the court on 15 September 1992, 15 December 1997, 10 and 25 May 1999 and 10 January 2000. On 16 October 2002 the applicant had requested that a third party be allowed to join the proceedings; on 3 February 2003 he had extended his claim. 18.  Finally, the Constitutional Court found that the District Court had not dealt with the case in an effective manner. The District Court had remained inactive between 17 December 1992 and 25 June 1993 as well as from 11 August 1995 to 1 July 1996. It had delivered three judgments on the merits which the court of appeal had quashed on the ground that the District Court had not sufficiently established the relevant facts and had made procedural mistakes. The overall length of the proceedings was unacceptable in the circumstances. 19.  The Constitutional Court granted SKK 80,000 (the equivalent of EUR 2,115 at that time) as just satisfaction to the applicant. It ordered the District Court in Považská Bystrica to proceed with the case without further delay and to reimburse the applicant’s costs.


9.  The applicant is a Bulgarian national who was born in 1980. 10.  She alleged that she had been raped by two men on 31 July and 1 August 1995, when she was 14 years and 10 months old. The ensuing investigation came to the conclusion that there was insufficient proof of the applicant having been compelled to have sex. 11.  On 31 July 1995 the applicant and a friend of hers had been waiting to enter a disco bar in the town of K., when three men, P. (21 years old at the time), A. (20 years old at the time) and V.A. (age not specified), arrived in a car owned by P. The applicant knew P. and A. She had met P. in the same disco bar and had danced with him once. A. was the older brother of a classmate of hers. 12.  A. invited the applicant to go with him and his friends to a disco bar in a small town 17 km away. According to the applicant, she agreed on condition that she would be back home before 11 p.m. 13.  In the bar, one or two of the group had drinks. The applicant saw some friends, with whom she had a short chat. According to the applicant, she repeatedly told the others it was time to leave, as it was getting late. 14.  At some time late in the evening, the group left and headed back to K. On the way, they were briefly stopped and checked by traffic police. 15.  A. then suggested stopping for a swim at a nearby reservoir. According to the applicant, they went there despite her objections. She submitted that she had not suspected the men's intentions. 16.  At the reservoir, the applicant remained in the car, in the front passenger seat, saying that she was not interested in swimming. The three men headed towards the water. Soon afterwards, P. came back and sat in the front seat next to the applicant. 17.  In her statements to the investigating authorities, the applicant submitted that P. had then pressed his body against hers, proposed that they “become friends” and started kissing her. The applicant had refused his advances and had asked him to leave. P. had persisted in kissing her while she had tried to push him back. He had then moved the car seat back to a horizontal position, grabbed her hands and pressed them against her back. The applicant had been scared and at the same time embarrassed by the fact that she had put herself in such a situation. She had not had the strength to resist violently or scream. Her efforts to push P. back had been unsuccessful, as he had been far stronger. P. had undressed her partially and had forced her to have sexual intercourse with him. 18.  In her testimony, the applicant stated: “It was my first time and it hurt a lot. I felt sick and I wanted to throw up. I started crying.” 19.  According to P.'s statements, he had had sex with the applicant in the car with her full consent. He had started kissing her, she had responded, and he had tried unsuccessfully to unbutton her jeans or loosen her belt, whereupon she had done so herself and had taken off her pants. 20.  After P. had finished, he left the car and walked towards A. and V.A. In his submissions to the police, A. said that P. had told them that he had “shagged” the applicant. Shortly afterwards, the three men returned to the car and the group drove off. 21.  In her submissions to the investigator, the applicant stated that she had later come to suspect that the three men had planned to have sex with her and had invented the pretext of swimming to drive to a deserted area. In particular, she did not remember A. and V.A. being wet when they had come back to the car, although they had insisted on going to the reservoir for a swim. 22.  The applicant later testified that after the first rape she had been very disturbed and had cried most of the time. According to the version of events given by P. and A. when later questioned, the applicant had been in an excellent mood, had started caressing A., which had irritated P., and had asked to go to a bar or a restaurant. The group had gone to a restaurant, where the applicant had briefly talked with a Ms T., the singer performing there. Ms T. had been sitting at a table there with one Mr M. 23.  Ms T., the singer, stated that on 1 August 1995 she had been in the restaurant with Mr M. Shortly after midnight the applicant, whom she knew vaguely, had approached her and asked whether her group would be performing in the next few days. Ms T. recalled having seen at that moment a man waiting at the door. Having heard the answer to her question, the applicant had left. Ms T. stated that the applicant had appeared cheerful and that there had been nothing unusual in her behaviour. 24.  Mr M. was also questioned by the police. He stated that he knew the applicant very well and that he did not remember having seen her that night. 25.  The applicant disputed the statements of P., A., V.A. and Ms T., maintaining that there had been no visit to a restaurant and that she did not know Ms T. The applicant and her mother later accused Ms T. of perjury (see paragraphs 66-68 below). 26.  Instead of returning to K., at around 3 a.m. the group went to a neighbouring town, where V.A.'s relatives had a house. A., V.A. and the applicant got out of the car. P., who was the owner of the car, drove off. 27.  The three men and a baker, Mr S., called by them as a witness, later maintained that in the meantime there had been a short stop at Mr S.'s bakery. Mr S. allegedly had the key to the house. Mr S., when interrogated, stated that at about 2 a.m. he had given the key to V.A. and had seen the applicant waiting in the car, apparently in a good mood. Loud music had been coming from the car. The applicant disputed that there had been any visit to a baker's shop and accused the baker of perjury. P., A. and V.A. submitted in their statements that they had decided to go to the house as the applicant had told them that she had quarrelled with her mother and did not want to go back home. 28.  The applicant stated to the police that she had felt helpless and in need of protection. As A. was the brother of a classmate of hers, she had expected such protection from him and had followed him and V.A. into a room on the ground floor of the house. 29.  There was one bed in the room and the applicant sat on it. The two men smoked and talked for a while. V.A. then left the room. 30.  The applicant maintained that at that point A. had sat next to her, pushed her down onto the bed, undressed her and forced her to have sex with him. The applicant had not had the strength to resist violently. She had only begged the man to stop. She later related in her statement:
“I started crying and asked him to stop ... He started caressing my breasts and sucking my neck ... At some point he took my jeans and my pants off with his feet. Then he spread my legs apart with his legs and forced his way into me ... [After he finished] I started crying and I continued crying until some time in the morning, when I fell asleep ... [V.A.] woke me up telling me that [A.] had gone to find a car to drive me back to K. I sat on the bed and started crying.” 31.  A.'s position before the police was that he had had sex with the applicant with her full consent. 32.  On the following morning at around 7 a.m., the applicant's mother found her daughter in the house of V.A.'s relatives. The applicant's mother stated that, having learned from neighbours that her daughter had been seen the previous evening with A., she had been on her way to A.'s house when she had met V.A. in the street. V.A. had allegedly tried to mislead the applicant's mother in an effort to gain time and warn A. However, she had insisted. 33.  The applicant and her mother maintained in their submissions during the investigation that the applicant had told her mother right away that she had been raped. A. had also been there. He had told the applicant's mother that “a truck driver” had had sex with her daughter the previous night. 34.  According to A.'s version of events, the applicant and her mother had quarrelled, the applicant allegedly refusing to go with her and telling her to go away. A neighbour, apparently named as a witness by A. or V.A., stated that he had heard the quarrel and, in particular, the refusal of the applicant to leave with her mother and her saying that nothing had happened to her. The applicant accused the witness of perjury. 35.  The applicant and her mother went directly to the local hospital, where they were directed to see a forensic medical examiner. The applicant was examined at about 4 p.m. 36.  The medical examiner found that the hymen had been freshly torn. He also noted grazing on the applicant's neck, measuring 35 mm by 4 mm, and four small oval-shaped bruises. As noted in the medical certificate, the applicant had reported only one rape, stating that it had occurred between 10.30 and 11 p.m. the previous day at the reservoir. 37.  The applicant submitted that during the next few days she had refused to talk to her mother about the incident. She had given no details and had not mentioned the second rape at all. She explained that she lived in a conservative small-town environment where virginity was considered to be an asset for marriage. She felt ashamed of the fact that she had “failed to protect her virginity” and of “what people would say about it”. 38.  On the first evening after the events, on 1 August 1995, P. visited the applicant's family. The applicant and her mother stated that that evening P. had begged for forgiveness and had claimed that he would marry the applicant when she came of age. The applicant's mother had considered that accepting the offer would be reasonable in the circumstances. This had influenced the initial behaviour of the applicant, who had accepted her mother's idea of minimising the damage. 39.  On one of the following evenings, the applicant went out with P. and some of his friends. 40.  P. and V.A., the latter claiming that he had been with P. during the visit to the applicant's house on the evening of 1 August 1995, stated that the applicant's mother had told them that “all pleasure must be paid for” and had tried to extort money from them. 41.  P.'s grandmother also made a statement to the police. She asserted that on an unspecified date the applicant's mother had visited her, trying to extort money. 42.  With regard to that visit and other relevant events, Mrs D., a neighbour and friend of the applicant's mother, stated that the applicant's mother had been very upset about the events and had agreed to her daughter going out with P. as he had maintained that he loved the applicant. The applicant's mother had nevertheless decided to talk to P.'s parents. On an unspecified date Mrs D. and another neighbour had approached the house of P.'s family, but his grandmother had told them to go away, stating that the applicant had slept not only with P. but also with A. At that moment A. had arrived. Mrs D. had asked him whether it was true that he had slept with the applicant. He had confirmed that it was true, adding that he had the money and power to do as he pleased. Until then, the applicant's mother had not known about the second rape. 43.  The applicant submitted that a visit by A.'s father on 8 August 1995 had caused her to break down. She had then confided to her mother about the second rape. On 10 August 1995 the applicant's father returned home, after being absent for several days. The family discussed the matter and decided to file a complaint. The applicant's mother did so on 11 August 1995. 44.  On 11 August 1995 the applicant made a written statement about the events of 31 July and 1 August. On the same day P. and A. were arrested and made written statements. They claimed that the applicant had had sexual intercourse with them of her own free will. The two men were released. Written statements were also made by V.A. and a person who lived next to the house where the second alleged rape had taken place. On 25 August 1995 a police officer drew up a report and forwarded the file to the competent prosecutor. 45.  On 14 November 1995 the district prosecutor opened a criminal investigation into the alleged rape and referred the case to an investigator. No charges were brought. 46.  No action was taken on the case between November 1995 and November 1996. 47.  On 24 August 1995 P. and A. filed complaints with the district prosecutor's office, stating that the applicant and her mother had been harassing them by making false public accusations. 48.  On the basis of these complaints, on 28 August 1995, the district prosecutor ordered a police inquiry. In September and October 1995 several persons were heard and made written statements. 49.  On 25 October 1995 a police officer drew up a report apparently accrediting the allegations of P. and A. and disbelieving the version of the facts as submitted by the applicant and her mother. 50.  On 27 October 1995 the file was transmitted to the district prosecutor's office with jurisdiction to decide whether or not to institute criminal proceedings against the applicant and her mother. It appears that the matter was left hanging and no decision was taken. 51.  Between 2 November and 9 December 1996 the investigator questioned the applicant, her mother and other witnesses. P. and A. were heard as witnesses. 52.  The applicant gave a detailed account of the facts, repeating that P. had overcome her resistance by pressing her against the car seat and twisting her hands, and that thereafter she had been in a state of shock and unable to resist A. 53.  In his evidence, P. claimed that the applicant had actively responded to his advances. He also asserted that the applicant had spoken with Mr M. at the restaurant they had allegedly gone to after having sex. 54.  Both A. and P. stated, inter alia, that shortly after having sex with P. at the reservoir, the applicant had started caressing A. in the car. 55.  On 18 December 1996 the investigator completed his work on the case. He drew up a report stating that there was no evidence that P. and A. had used threats or violence, and proposed that the prosecutor close the case. 56.  On 7 January 1997 the district prosecutor ordered an additional investigation. The order stated that the initial investigation had not been objective, thorough or complete. 57.  On 16 January 1997 the investigator to whom the case had been referred appointed a psychiatrist and a psychologist to answer several questions. The experts were asked, inter alia, whether it was likely that the applicant would have spoken calmly with Ms T., the singer at the restaurant, and then listened to music in the car, if she had just been raped and whether it was likely that several days after the alleged rape the applicant would have gone out with the person who had raped her. 58.  The experts considered that, owing to her naivety and inexperience, the applicant had apparently not considered the possibility that she might be sexually assaulted. There was no indication that she had been threatened or hurt, or that she had been in a state of shock during the events, as she had demonstrated a clear recollection of them. The experts considered that during the events she must have been suddenly overwhelmed by an internal conflict between a natural sexual interest and a sense that the act was reprehensible, which had “reduced her ability to resist and defend herself”. They further found that the applicant was psychologically sound and that she had understood the meaning of the events. In view of her age at the time, however, she “could not assert a stable set of convictions”. 59.  The experts also found that, if there had indeed been a meeting between Ms T. and the applicant after the events at the reservoir – and this was disputed – it was still possible that the applicant could have had a short exchange with Ms T. after being raped. As to the applicant going out with P. several days after the events, this could be easily explained by her family's desire to lend a socially acceptable meaning to the incident. 60.  On 28 February 1997 the investigator concluded his work on the case and drew up a report, again proposing that the case should be closed. He considered that the experts' opinion did not affect his earlier finding that there was no evidence demonstrating the use of force or threats. 61.  On 17 March 1997 the district prosecutor ordered the closure of the criminal investigation. He found, inter alia, that the use of force or threats had not been established beyond reasonable doubt. In particular, no resistance on the applicant's part or attempts to seek help from others had been established. 62.  The applicant lodged consecutive appeals with the regional prosecutor's office and the Chief Public Prosecutor's Office. The appeals were dismissed in decisions of 13 May and 24 June 1997 respectively. 63.  The prosecutors relied, inter alia, on the statements of the alleged perpetrators and V.A. that the applicant had not shown any signs of distress after having sex with P. at the reservoir, and the evidence of the three men and Ms T. that the latter had met the applicant and had spoken with her that night. As regards the applicant's objections that those statements should be rejected as being untrue, the decision of 13 May 1997 stated that “prosecutors' decisions cannot be based on suppositions, and witnesses' statements cannot be rejected only on the basis of doubts, without other evidence ...”. 64.  The decision of 13 May 1997 also stated:
“It is true that, as can be seen from the report of the forensic psychiatric experts, the young age of the applicant and her lack of experience in life meant that she was unable to assert a stable set of convictions, namely to demonstrate firmly her unwillingness to engage in sexual contact. There can be no criminal act under Article 152 §§ 1 (2) and 3 of the Criminal Code, however, unless the applicant was coerced into having sexual intercourse by means of physical force or threats. This presupposes resistance, but there is no evidence of resistance in this particular case. P. and A. could be held criminally responsible only if they understood that they were having sexual intercourse without the applicant's consent and if they used force or made threats precisely with the aim of having sexual intercourse against the applicant's will. There is insufficient evidence to establish that the applicant demonstrated unwillingness to have sexual intercourse and that P. and A. used threats or force.”
It was further noted that the applicant had explained that the bruises on her neck had been caused by sucking. 65.  The decision of 24 June 1997 reiterated those findings, while noting that the statements of Ms T., the singer at the restaurant, were not decisive. It also stated:
“What is decisive in the present case is that it has not been established beyond reasonable doubt that physical or psychological force was used against the applicant and that sexual intercourse took place against her will and despite her resistance. There are no traces of physical force such as bruises, torn clothing, etc. ...
It is true that it is unusual for a girl who is under age and a virgin to have sexual intercourse twice within a short space of time with two different people, but this fact alone is not sufficient to establish that a criminal act took place, in the absence of other evidence and in view of the impossibility of collecting further evidence.” 66.  In June or July 1997 the applicant and her mother requested the institution of criminal proceedings against Ms T. and other witnesses, including V.A., alleging that they had committed perjury in that their statements in connection with the investigation into the rape of the applicant had been false. 67.  On 14 July 1997 the same prosecutor from the district prosecutor's office who had ordered the closure of the rape investigation refused the request, stating that it was unfounded and even abusive, as all the facts had been clarified in previous proceedings. 68.  An ensuing appeal by the applicant was dismissed on 6 February 1998 by the regional prosecutor's office. 69.  In June 2001 the applicant submitted a written opinion by two Bulgarian experts, Dr Svetlozar Vasilev, a psychiatrist, and Mr Valeri Ivanov, a psychologist, who had been asked by the applicant's lawyer to comment on the case. 70.  The experts stated, with reference to scientific publications in several countries, that two patterns of response by rape victims to their attacker were known: violent physical resistance and “frozen fright” (also known as “traumatic psychological infantilism syndrome”). The latter was explained by the fact that any experience-based model of behaviour was inadequate when the victim was faced with the inevitability of rape. As a result the victim, terrorised, often adopted a passive-response model of submission, characteristic of childhood, or sought a psychological dissociation from the event, as if it were not happening to her. 71.  The experts stated that all the scientific publications they had studied indicated that the “frozen-fright pattern” prevailed. Further, they had conducted their own research for the purposes of their written opinion in the present case. They had analysed all the cases of young women aged 14 to 20 who had contacted two specialised treatment programmes for victims of violence in Bulgaria during the period from 1996 to 2001, declaring that they had been raped. Cases that were too different from that of the applicant had been excluded. As a result, twenty-five cases had been identified, in twenty-four of which the victim had not resisted violently, but had reacted with passive submission.


5.  The applicant was born in 1959. He is currently serving a prison sentence for aiding and abetting murder and extortion of a ransom. 6.  The murder was committed by a certain R.N. on 19 May 2001. 7.  The applicant and R.N. were apprehended on 6 June 2001. R.N. had a loaded gun on him. 8.  R.N. was questioned four times: twice on 7 June 2001 (at 14:20 and 19:55 hours), and then on 8 June and 25 July 2001. 9.  On 7 June 2001 R.N. broke down. He confessed to the murder of E.U. and stated that he had received the gun from the applicant in order to commit the murder and that he and the applicant had been planning to split the victim’s money. R.N. confirmed those facts in his statements of 8 June and 25 July 2001. He mentioned twice the exact place where he had received the gun from the applicant (in Kobyłka, near the Zepter warehouse). 10.  When heard for the fourth time on 25 July 2001, R.N. changed his statements slightly. This time he stated that one unnamed man had also been present at the moment of the killing of the victim and that he himself had also been kidnapped and that the kidnappers had ordered him to dig a grave for himself. At some point, R.N. broke off his statement, explaining that he had to think everything through and that he would write everything down and send a letter to the prosecutor. 11.  On 31 August 2001 R.N. committed suicide by hanging himself in his prison cell. 12.  On 23 May 2002 the prosecution filed with the Warsaw Regional Court a bill of indictment against the applicant. He was charged with (I) aiding and abetting the murder of E.U. committed by R.N. by means of providing the gun in full knowledge that it would be used to kill E.U. (Article 18 § 3 in conjunction with Article 148 § 2 (4) of the Criminal Code) and with (II) illegally possessing the gun with a silencer. The applicant and a certain P.D. were also charged with (III) attempted extortion of ransom from E.U.’s family. 13.  The applicant denied any involvement in the crime. He stated that he had not possessed any gun and had not provided it to anyone. P.D. also denied any involvement in extortion. 14.  The Regional Court reclassified the first charge to aiding and abetting armed robbery. 15.  On 27 May 2003 the Warsaw Regional Court found the applicant guilty of aiding and abetting armed robbery by means of providing the gun to R.N. and of illegal possession of the gun. It also convicted the applicant of aiding and abetting extortion. The court sentenced the applicant to a cumulative penalty of eight years’ imprisonment. In respect of the first charge, the trial court held that there had been no irrefutable evidence that the applicant had known that the gun would be used to kill E.U. 16.  The court relied on the statements made by R.N. in the course of the investigation which it considered credible. R.N. had pointed to the spot where the body was buried and described his preparations for the murder. He stated that about a week before the murder, he had asked the applicant for a gun, explaining that he needed it to obtain some money. Apparently he had said that he was planning on killing somebody but had not said whom. R.N. also stated that he had informed the applicant that he had committed a murder using the applicant’s gun. Apparently the applicant had told him to get rid of the gun; however R.N. had failed to do so. R.N. also stated that since the victim had had no money on him, the applicant had come up with the idea of trying to extort a ransom from the family. 17.  The court found that R.N.’s statements concerning the applicant and P.D. as well as their respective roles in the impugned offences were reliable. The court reasoned that R.N. had had no reason to lie about the applicant’s participation in the crime. The court stated that it would have been useful to hear R.N. in court but that it had been impossible owing to his death. 18.  On 25 August 2003 the applicant appealed. He pointed out that the court had relied only on some parts of R.N.’s testimony, ignoring the parts which were inconsistent with the presumed version of events. The applicant also pointed out that the court had ignored testimonies made by R.N.’s friends and ex-wife, who had testified that R.N. had possessed a gun a long time before the murder. In addition, some other witnesses stated that R.N. had never told the truth. Another witness testified that R.N. had been taking drugs. Therefore, the applicant’s lawyer maintained that the statements made by R.N. could not serve as the proof of the applicant’s guilt. 19.  The prosecutor also filed an appeal. He submitted that the evidence in the case was sufficient to convict the applicant of aiding and abetting murder. 20.  On 9 December 2003 the Warsaw Court of Appeal quashed the trial court’s judgment. 21.  The appellate court found that the proceedings before the first-instance court had been flawed. The trial court had failed to examine all the evidence gathered and the assessment of evidence had lacked consistency. It noted that while the trial court had been entitled to rely on the statements of R.N., it had been required to carry out a particularly thorough assessment of it since it had not been possible to hear this witness before the court. In its assessment of evidence the trial court had failed to address the evidence of a number of witnesses (D.I., M.A., J.G., M.F., A.K.-N., M.Ł., H.D., D.T., D.C. and R.M.). The appellate court instructed the trial court to (I) establish whether the gun used for murder had been provided by the applicant or had been in the possession of R.N., (II) consider admitting evidence with regard to establishing or excluding the presence of the applicant’s fingerprints on the gun, and (III) establish whether the applicant had possessed a gun permit. 22.  The case was remitted to the trial court. 23.  The Warsaw Regional Court held 19 hearings. It gave judgment on 27 November 2007. The applicant was convicted of aiding and abetting murder, illegal possession of a gun and aiding and abetting extortion of a ransom. The court sentenced the applicant to a cumulative penalty of 15 years’ imprisonment. P.D. was convicted of dealing in stolen goods and attempted extortion of a ransom and sentenced to 4 years’ imprisonment. The judgment ran to 135 pages. 24.  The trial court established the facts of the case on the basis of statements of the two accused: the applicant and P.D., the statements of R.N. as well as evidence of some 40 witnesses, including members of the victim’s family, police officers who had questioned R.N., the wife of R.N. as well as creditors and friends of R.N. It further relied on documentary evidence, including inter alia, the notice of disappearance, the protocol of autopsy, the protocol of inspection of the site and the expert opinions. 25.  The applicant pleaded not guilty and refused to testify. The second defendant, P.D. pleaded not guilty and refused to testify. 26.  The trial court found the following in its judgment of 27 November 2007. 27.  The applicant ran a car repair business. He cooperated with R.N. who supplied damaged cars to the applicant. They were close friends and business partners. In 2000 the applicant and R.N. began experiencing financial difficulties. Both promised to deliver cars to their customers and took advance payments, but subsequently failed to respect the agreements and delayed in repaying the money (evidence of witnesses H.D. and D.T.). Both the applicant and R.N. had considerable debts. At one point the applicant’s wife proposed to sell the house of her parents in order to pay the applicant’s debts. The trial court established that the applicant had had financial difficulties which he could not normally resolve. He therefore had a motive to obtain money illegally. 28.  R.N. had also been experiencing serious financial difficulties (evidence of witnesses D.I., R.T. and M.R.). He was unable to pay his debts and his behaviour indicated that he would seek to obtain money by any means. According to one witness (W.S.), R.N. fell into a “debt paranoia”. For this reason, at the end of April 2001, R.N. moved out of his house and began hiding from his creditors. R.N. decided to pretend that he had a car for sale and kill the person interested in purchasing it. R.N. informed the applicant about his plan, obtained the promise of his support and carried out the murder. 29.  R.N. was hiding from his creditors in Motel Europa, Motel Max, Motel Komorek and a worker’s hostel in Warsaw consecutively. At the same time he met the second defendant P.D. The applicant had regular telephone contact with R.N. as indicated by the evidence of mobile telephone traffic. The applicant also visited R.N. in the Europa and Max motels at least three times. In the middle of May 2001 the applicant brought R.N. a coat, trousers and a pair of shoes. Later, on about 17 or 18 May 2001 he supplied R.N. with hygiene products. The applicant, knowing the reason for R.N.’s hiding, did not break off contact with him but instead helped him. There was no conflict between them. The applicant, however, had attempted to demonstrate that he had had no contact with R.N. before 19 May 2001 and had had nothing to do with the crime. Nonetheless, this assertion did not stand up in the light of the evidence. 30.  The applicant’s explanation as to the alleged debt owed by R.N. to him was illogical and contradictory. At first he did not claim that R.N. had owed him any money. Subsequently, he alleged that R.N.’s debt had amounted to 20,000-21,000 PLN; and later he quoted the amount of 150,000-200,000 PLN. The applicant could not explain these inconsistencies. The evidence obtained in the case also demonstrated that R.N. had owed money to third parties but not to the applicant. 31.  The circumstances of the murder of E.U. were clear in the light of the evidence. However, it was necessary to examine what was the role of the applicant in the crime. The applicant pleaded not guilty. He claimed that he had learnt about the fact that R.N. had possessed the gun at the time of their arrest on 6 June 2001. In the trial court’s assessment, the explanation of the applicant was untrue as it contradicted the other evidence. 32.  The applicant had possessed a Reck Miami 92 gas gun for which he held a relevant permit until the end of 1993. He returned it to the police in June 2000. A witness H.D. (a friend and customer) noticed a silver gun in the applicant’s garage (Reck Miami). The witness D.T. (police officer) was informed by the applicant that he had been in possession of a gun without specifying its type or presenting the relevant permit. The court noted that the applicant had been very careful in not showing the gun for which the permit expired to the police officer. On the basis of the evidence the trial court established that the applicant had been interested in firearms and had possessed a gun. For this reason, he was the right person to be approached by R.N. to obtain a gun. 33.  In the trial court’s assessment the applicant had provided the gun to R.N. with a view to using it against E.U. Such conclusion was supported first of all by the statements of R.N. who had clearly stated that the applicant had provided him the Walther gun. Already in his first statements made directly after his arrest, namely on 7 June 2001 at 14:20 hours, R.N. stated that in the middle of May 2001 the applicant had provided him the gun during their meeting in Kobyłka near the Zepter warehouse. The trial court considered the statements of R.N. credible since he had revealed this fact at the very beginning of his questioning and had no time to think the story over. He had further precisely indicated the place of the meeting with the applicant which was in the vicinity of the applicant’s home. The gun had been handed over in a plastic bag and the expert did not disclose the applicant’s fingerprints on it. This circumstance further supported the credibility of R.N.’s statements. 34.  R.N. confirmed the fact of receiving the gun from the applicant during his second questioning on 7 June 2001 at 19:55 hours and during the questioning on 8 June 2001 at 14:00 hours. It transpired from his statements that the applicant had asked him to get rid of the gun after the murder, but the applicant had failed to do so. According to the trial court, the applicant had been surprised by the fact that R.N. still possessed the gun. The applicant stated at the hearing that “he did not know that he [R.N.] had the gun”. One of the police officers (D.C.) had noted that the applicant had been surprised by the discovery of the gun on R.N. during the arrest. 35.  According to the trial court, there was no doubt as to the purpose of providing the gun to R.N. Being in a difficult financial situation, R.N. had decided to obtain money by pretending that he had a car for sale. He had needed a gun to frighten the potential buyer (E.U.), and if this did not work he intended to use it. The applicant’s role was to provide help in hiding the corpse. He was to receive half of the amount robbed from the victim. R.N. shared his plan with the applicant who decided to take part in it and to provide a gun to R.N. There was no doubt that the eventual intention of R.N. was to kill the chosen victim and the applicant had been aware of this. 36.  In the trial court’s view, R.N. had logically and objectively explained his and the applicant’s role in the murder during the first interrogation. He had not been in any way pressurised. The police officer R.M. who questioned R.N. testified that the latter’s statements had been spontaneous. R.N. had explained of his own volition the facts concerning the gun, the murder and the hiding. The police officer did not know the case so he could not lead R.N. to provide any particular answers. During the interrogation R.N. enjoyed unrestricted freedom of expression and disclosed facts incriminating both himself and the applicant. The other police officer J.G. confirmed the facts concerning the interrogation of R.N. 37.  According to the trial court, the reliability of R.N.’s deposition was strengthened by the fact that R.N. had clearly and in a detailed manner explained his role in the crime. R.N. had mostly incriminated himself while being aware that he would be liable to a severe penalty. In such a situation it would be difficult to assume that R.N. had also intentionally incriminated the applicant. The applicant could not give any reason why R.N. would incriminate him. In the trial court’s view there was no such reason since the applicant had been helping R.N. in hiding by supplying him, inter alia, with clothes and hygiene products. 38.  Furthermore, the facts stated by R.N. were corroborated by many other items of evidence obtained in the case, which again strengthened their reliability. In respect of R.N.’s making of an appointment with E.U. (the victim), this was confirmed by the evidence of witnesses P.U., E.U. (son and wife of the victim respectively) and J.G. In respect of the presence and behaviour of R.N. in a club following the murder, this was confirmed by the evidence of witnesses J.G., M.F., D.I. and A.U. The facts as stated by R.N. were also confirmed by the search of the site where the victim had been buried, medical documentation, the protocol of autopsy and the opinion of the expert in firearms. The latter concluded that the gun found on R.N. had been used for murder. 39.  These and other items of evidence showed that R.N. had revealed all facts known to him when making his statements. Later, during a site inspection he indicated the location and the manner of hiding the victim’s body. After the murder R.N. disposed of his shoes. It was significant that according to statements of the applicant, R.N. requested him to bring him a pair of shoes to the Europa motel in the middle of May 2001. 40.  The trial court examined the evidence of witnesses D.I. (one of the applicant’s creditors) and M.A. (friend of the applicant) with regard to the fact of possession of the gun by R.N. The witness D.I. stated in the course of the investigation that she had seen a black gun with a silencer in R.N.’s house at the night of 27 to 28 April 2001. She changed her testimony when heard during the trial. In the court’s assessment, her testimony did not permit to establish when exactly she had seen the gun and what sort of gun it had been. The witness was also a fiancée of M.A. who in turn was a close friend of the applicant. 41.  The witness M.A. stated in the course of the investigation that R.N. had told him that he had bought a gun to protect himself against the mafia. When heard at the trial he changed his earlier statements and stated that R.N. had showed him the Walther gun type. The trial court found that the testimony of M.A. had been biased and aimed at exonerating the applicant. He changed his testimony in important respects and included in it contradictory facts. For these reasons, his testimony was not reliable. 42.  The witness A.K.-N., the wife of R.N., repeatedly denied that her husband had kept a gun at home. Her testimony was credible as it transpired from the other items of evidence that R.N. had received the gun only after moving out of the house. 43.  The testimony of the witness M.Ł. concerning the gun and her contacts with R.N. was not credible. Her testimony changed over time and was not corroborated by other items of evidence. In particular, despite her claim that she had met R.N. many times, she was unable to recognise him on photographs showed to her at the hearing. The court considered that M.Ł. had been called to give favourable evidence for the applicant. There was no evidence that R.N. had been taking drugs. 44.  The trial court considered the evidence of mobile telephone traffic between the applicant and R.N. On 18 May 2001 the applicant telephoned R.N. 4 times, on 19 May – 3 times and on 21 May 2001 – 30 times. This evidence showed that the applicant had been in regular telephone contact with R.N. in the period leading to the murder, on the day of the murder (19 May) and after the crime had been committed. The number of calls made to R.N. on 21 May 2001 was not accidental but was related to the murder. There was no other possible explanation for the number of calls. It was logical that the applicant had been interested in the results of R.N.’s actions since he had assisted R.N. in the commission of the crime. The fact that R.N. had not called the applicant on the day of the murder indicated that on that day he had been busy arranging a meeting with the victim (R.N. telephoned the victim 9 times) and after the commission of the crime he had been occupied with disposing of the evidence related to the murder. 45.  The statements of the applicant made in the investigation were incoherent, contradictory with the depositions of R.N. and the evidence of telephone traffic. The applicant and R.N. also met between 19 May and 6 June 2001. Therefore, the applicant’s assertion that R.N. had not taken his calls and that they had been in conflict over R.N.’s debt to him was not sustainable. In particular, the applicant visited R.N. on 24 May 2001 in the Max Motel as confirmed by the Motel employees. 46.  The trial court did not consider credible R.N.’s statement that he had been kidnapped at the beginning of May 2001. These statements were incoherent and contradictory with his earlier statements. The evidence obtained in the case demonstrated that R.N. had been hiding from his creditors in various locations but not that he had been kidnapped. 47.  With regard to the charge of extortion, the trial court found that in the light of R.N.’s statements the applicant had participated in this crime. R.N. clearly and logically described the respective roles in the crime. R.N. chose the person who was to demand the ransom (P.D.) and the manner of communicating with the victim’s family. The applicant proposed the idea of ransom and supervised the operation. P.D. demanded the ransom. Furthermore, the applicant and R.N. decided on the manner of collecting the ransom. R.N.’s statements in respect of the charge of extortion were reliable and logical. R.N. incriminated in equal measure himself and his accomplices. R.N. chose P.D. to demand the ransom because he had been unknown to the victim’s family. The evidence of telephone traffic demonstrated that on 31 May and 1 June 2001 – when the demand had been made – the applicant had telephoned R.N. 10 and 12 times respectively. The frequent telephone contact on these dates were not accidental but were connected with the planned extortion. It was the objective evidence of the truthfulness of R.N.’s statements in respect of the crime of extortion. Furthermore, the expert in voice analysis concluded that the voice recorded during one of the telephone conversations with the victim’s son had most likely belonged to P.D. 48.  R.N. had confessed to murder and had precisely described all circumstances of it in three subsequent questionings. There were many items of evidence which unquestionably supported the reliability of R.N.’s statements. The trial court noted that the case was very difficult because R.N. had died; however, a thorough and comprehensive analysis of the evidence permitted the court to determine that the applicant had been guilty of the impugned offences. 49.  On 20 March 2008 the applicant appealed. He argued that the first‑instance court had wrongly established the facts and had erred in its assessment of evidence. In particular, the applicant alleged that the trial court had relied only on some statements of R.N. and had omitted those statements which had been contradictory with the presumed version of events and as well the applicant’s role in them.
Furthermore, the fact that the applicant provided the gun to R.N. in the middle of May 2001 had been established on the basis of R.N.’s statements. However, this fact was contradicted by the evidence of witnesses D.I., M.A., J.G., M.Ł. and the wife of R.N., A.K.-N. 50.  On 30 July 2008 the Warsaw Court of Appeal dismissed the appeal and upheld the first-instance judgment. 51.  The Court of Appeal found that the allegation of the erroneous establishment of facts by the trial court could not be sustained. The factual findings made by the trial court were fully supported by the evidence examined at the trial. The court had thoroughly analysed the evidence and convincingly explained which evidence it had considered credible and which it had disregarded. It was not disputed that the statements of R.N. had constituted the basis of factual findings made by the trial court. 52.  The Court of Appeal noted that the statements of a co-suspect, called in practice “incriminating evidence” (pomówienie) were a specific sort of evidence, which required particularly thorough and careful assessment. Owing to the death of R.N. and the lack of possibility to hear him directly before the court the assessment in the present case had to be particularly rigorous. 53.  The Court of Appeal noted that the case-law of the Supreme Court defined the conditions which had to be taken into account in the assessment of this sort of evidence:
1) the nature of an incriminating statement, namely whether it was so-called “simple incrimination” where the culpability was exclusively attributed to a co-accused and the person making the statement wished to clear himself, or “a complex incrimination” where the accused (the suspect), while confessing to a crime indicated at the same time other persons who were also involved in it;
2) the timing of making incriminating testimony, in particular whether the relevant statements were spontaneous, made shortly after the relevant events or after a considerable lapse of time;
3) the motives for making incriminating statements and for retracting them;
4) the reliability of incriminating testimony in the light of other evidence, the logic and experience.
Furthermore, (5) it was necessary to establish that the person making the incriminating testimony had enjoyed unlimited freedom of expression at the relevant time[1]. 54.  The Court of Appeal held, in so far as relevant:
“In the view of the Court of Appeal, when assessing the statements of R.N. the trial court met the above conditions. The trial court is right when noting that R.N., while making incriminating statements that P.B. [the applicant] and P.D. were involved in the crimes committed by him, had no reason to falsely accuse them. The two accused did not contest the fact that until the time of arrest of R.N. they had good friendly relations with him, and this fact is also confirmed by other witnesses heard in the case. P.B. [the applicant] was in contact with R.N. at the time when the latter was in hiding and brought him food, change of clothes and hygiene products (testimony of witness I.W., the receptionist at the Max Motel in Emilianów, ...). Both men were in frequent telephone contact too (table of telephone calls). (...)
The court of first-instance rightly underlines that when incriminating the two accused, R.N. did not attempt to put on them the criminal responsibility for the crimes committed by him; on the contrary he admitted that he was the initiator and executor of crime against E.U., and that the role of P.B. was limited to providing him with a gun and the declaration of assistance in “getting rid of the corpse” if such a need arose. (...)
Assessing the statements of R.N. the trial court correctly points out that R.N. confessed to the murder of E.U. when the police did not know about E.U.’s death, since they were only notified of the disappearance and the demand for ransom, and thus the statements made by R.N. were of spontaneous character and in no manner could the persons interrogating him suggest to R.N. the content of his statements ...” 55.  The Court of Appeal concurred with the trial court that the reliability of R.N.’s incriminating testimony was supported by other evidence. The circumstances of E.U.’s death were confirmed by the inspection of the location where he had been buried, the medical documentation, and the opinion of the firearms expert. Furthermore, witnesses P.U., E.U and J.G. confirmed the facts prior to the murder, that is to say, the reasons for which E.U. had left for a meeting with R.N. and that at the time he had not had on him the amount of money corresponding to the value of the cars offered for sale. 56.  The Court of Appeal further noted:
“... the reliability of R.N.’s testimony incriminating P.B. [the applicant] and P.D. is further supported by the analysis of the mobile telephone traffic between R.N. and P.B. [the applicant] which indicates that directly after the murder of E.U., namely on 20 and 21 May 2001 and at the time when the telephone calls were made to the victim’s family with the ransom demand (31 May and 1 June 2001), there was a significant increase in the number of those connections, and more calls were made by P.B. [the applicant]
The above circumstance indicates that P.B. [the applicant], although not participating directly in the actions undertaken by R.N. and P.D., showed strong interest in the events.” 57.  Furthermore, the opinion of the voice expert and the testimonies of P.U. and E.U. confirmed that, when undertaking action with a view to extorting a ransom from the victim’s family, R.N. had decided to engage a third person, P.D. The latter’s voice, unlike that of either the applicant or R.N., had been unknown to the family of E.U. 58.  The Court of Appeal noted that the trial court had not overlooked the fact that on 25 July 2001 R.N. had changed his statements. The trial court found that the new statements had been illogical, unconvincing and contrary to the evidence obtained in the case, and the Court of Appeal concurred in this analysis. 59.  Next, the Court of Appeal examined the evidence related to the gun used by R.N. It found in this respect as follows:
“Another important issue for the assessment of the reliability of R.N.’s statements (...) was to establish since when R.N. had been in possession of the gun and how he had obtained it.
The first-instance court, complying with the instructions of the appellate court, considered in a very detailed manner the evidence of witnesses D.I. and M.A., that is, persons who were supposed to know about the possession of the gun by R.N. in the period prior to the one indicated by R.N.
Assessing the testimony of D.I., the trial court rightly points out that on the basis of the testimony it is not possible to establish the date on which R.N. supposedly demonstrated the fact of possessing the gun, since in the successive statements of this witness there are significant inconsistencies, and [it is not clear] whether the gun allegedly seen was a firearm or a simple dummy. (...)
The first-instance court rightly notes that D.I. testified that R.N. was in possession of a gun only after the questioning of M.A.; M.A. was a good friend of P.B. and could have been interested in making statements incriminating R.N. and exonerating the accused [P.B.].
The validity of this contention is supported by the fact that in the course of his successive questionings M.A. was changing his testimony, initially stating that R.N. had simply informed him about possessing a gun, and subsequently he added new facts, such as that he had seen the gun, that it was the Walther type of gun and that R.N. had played with the gun in his presence” 60.  With regard to the applicant and P.D., the appellate court noted that their evidence had been thoroughly analysed. The trial court had logically and convincingly explained that it had considered their evidence unreliable since it contradicted the deposition of R.N., and was contrary to the logic and experience. The Court of Appeal noted that changes in the statements of R.N. did not disqualify all of his deposition, but had required the trial court to assess this evidence with particular rigour. 61.  The Court of Appeal concluded:
“In the Court of Appeal’s view, contrary to the assertions of both appellants, the first-instance court analysed in a very thorough manner all statements made by R.N. in connection with the other evidence heard in the case, [and] logically and convincingly explained which of these statements and why, were considered credible, and which of them were disregarded and why. (...)
Having regard to the above, the Court of Appeal found no grounds to question both the assessment of evidence carried out by the Regional Court and the facts established on the basis of the evidence.” 62.  On 6 October 2008 the applicant’s lawyer lodged a cassation appeal. The lawyer argued, inter alia, that the conviction had been based solely on the statements of R.N., who would have been a co-accused if he had not committed suicide. 63.  On 10 December 2008 the Supreme Court dismissed the cassation appeal as manifestly ill-founded.