Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention;Trial within a reasonable time);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1954 and prior to his arrest lived in the town of Makhachkala, Dagestan Republic. He is currently being detained in a temporary detention facility in Rostov-on-Don.

In 1993 the applicant, at the material time the deputy Prime Minister of the Dagestan Republic, survived an assassination attempt. However, his spine was badly wounded and he became paralysed. He cannot walk and is confined to a wheelchair. He also lost his ability to urinate or defecate without special medical procedures, such as catheters and enemas.

Since 1998 the applicant has been mayor of Makhachkala, the Dagestan Republic.

Сriminal proceedings were instituted against the applicant on suspicion of organised aggravated murder and attempted murder of State officials, including several prosecutors, investigators, a member of the town council and the head of the investigative committee in the Dagestan Republic. The investigation was assigned to a group of senior investigators and criminologists from the investigative committees of various regions of the Russian Federation and led by the deputy head of the Russian Federal Investigative Committee, a major-general. The applicant was arrested on 1 June 2013.

On the following day the Basmanniy District Court of Moscow ordered the applicant’s detention pending trial, citing the gravity of the charges against him and the risk that he might abscond, interfere with the investigation, in particular influence witnesses, and reoffend. The District Court’s decision was based on the applicant’s official powers and his significant contacts with various persons involved in the investigation, as well as his consequent ability to influence the investigation. The court referred to the case-file materials, according to which a number of defendants arrested on suspicion of participating in the murders were also public officials and law-enforcement agents, investigators or police officers. They had identified the applicant as the “master-mind” of the murders, had provided details of the murders and had argued that certain victims had been murdered in retaliation for their failure to obey the applicant’s orders.

At the same time, the District Court dismissed the applicant’s arguments pertaining to his poor state of health, his stable family situation, his age and his standing in the community, having considered that they did not outweigh the reasons warranting his detention. The District Court was also not convinced by the description given by the head of the Makhachkala police department portraying the applicant as “an example of compliance with the law and public order”.

The decision of 2 June 2013 was upheld on appeal on 3 July 2013 when the Moscow City Court found the District Court’s finding reasonable and convincing. The City Court also noted that no alternative measure, such as house arrest or a written undertaking, could ensure the proper course of the criminal proceedings.

On 26 July 2013 the Basmannyy District Court extended the applicant’s detention until 11 November 2013, having again linked the gravity and nature of the charges against him, as well as his standing in society, to the likelihood that he would obstruct the course of justice, reoffend or abscond. The District Court once again relied on the applicant’s connections to support the conclusion that if released he would tamper with the evidence. At the same time, the District Court took into account a medical opinion issued on 17 July 2013 (cited in detail below), according to which the applicant’s state of health did not preclude his detention in the conditions of an ordinary detention facility. It also noted that there was no evidence that the authorities had delayed the pre-trial investigation. The District Court concluded by stressing that the case was particularly complex, involved a large number of defendants and required a series of investigative steps to be taken.

On 20 September 2013 new charges were brought against the applicant. He was charged with firearms trafficking and attempting to organise a terrorist attack on a public official, his political rival. According to the investigation, the applicant and his accomplices had intended to shoot down, with a portable anti-aircraft rocket launcher, a civilian aircraft in which the public official was to travel from Makhachkala to Moscow with other passengers.

On 7 November 2013 the Basmannyy District Court accepted the investigators’ request to extend the applicant’s detention again until 28 February 2014. The District Court noted the gravity of the charges, including the new ones, and the fact that the applicant was facing a sentence of up to life imprisonment. It once again cited the risks of the applicant absconding, reoffending and obstructing the course of justice, and expressed concern for the safety of the witnesses and victims. The District Court noted that the investigation of certain criminal offences with which the applicant was charged was at an active stage and that the risk of his interfering with the investigation, if he were released, was well-founded. More than eleven defendants had been arrested and certain suspects were yet to be apprehended. The District Court placed particular weight on the complexity of the case and the progress that the investigators were making with it.

The District Court also examined in detail the arguments put forward by the defence in favour of the applicant’s release and the application of a more lenient measure of restraint. It concluded that neither his family ties nor his state of health outweighed the reasons for his continued detention. In particular, the District Court relied on the medical opinions of 17 July and 7 August 2013, which had found that the applicant’s illness was not among those listed in Governmental Decree no. 3 of 14 January 2011 preventing the detention of a suspect. It further stressed that on a daily basis at least three medical specialists from municipal and State medical facilities (“generalists, surgeons, neurologists, urologists, endocrinologists, proctologists, an infectious diseases specialist, and a rehabilitation specialist”) had examined the applicant and that he had received the prescribed drug treatment in full. Moreover, he had undergone all the necessary laboratory testing and clinical examinations in certified civilian laboratories in Moscow and on 5 November 2013 he was to undergo yet another expert examination to determine whether he was suffering from any illness warranting his release. Having cited a long list of the applicant’s illnesses, the District Court noted that there was no evidence that his condition had deteriorated or that he required treatment in a specialised medical facility. The District Court dismissed as unreliable various expert opinions and medical records prepared by specialists, including foreign ones, in various related fields of medicine and produced by the defence in support of their argument that the applicant’s life was being put at risk by his prolonged detention in the conditions of an ordinary detention facility and in the absence of adequate medical assistance.

On 25 February 2014 the Basmannyy District Court extended the applicant’s detention until 1 June 2014. Having again assessed the materials presented to it by the investigation and the defence, the District Court concluded that the risks of the applicant influencing witnesses, reoffending, obstructing the investigation by other means and absconding were still present. In particular, the criminal proceedings against the applicant were at a crucial stage of collecting evidence and there was a risk that, using his connections in the criminal underworld, the applicant might try to influence witnesses and victims who feared him. The District Court also cited the medical reports of 17 July, 7 August and 8 November 2013, which supported its conclusion that the applicant’s state of health did not preclude his further detention.

It appears that the applicant’s detention was further extended. However, neither party provided the Court with an update.

On 9 July 2014 the North-Caucasian Military Court found the applicant guilty of conspiring to organise a terrorist attack and sentenced him to ten years’ imprisonment. The applicant was stripped of all State awards and commendations. It appears that the criminal proceedings on the remaining charges against the applicant are still pending.

Numerous medical certificates and expert opinions submitted by the parties show that the applicant is suffering from a spinal cord injury, paraplegia, chronic urinary tract infection, chronic pyelonephritis (kidney infection), chronic urinary retention, rectal prolapse (a condition in which the rectum protrudes out of the anus), paraproctitis (an inflammation of the cellular tissues surrounding the rectum), ischemic heart disease, chronic heart failure, hypertension, a thyroid gland disease, hepatitis C and non-insulin-dependent diabetes.

At the request of the applicant’s representatives a panel comprising experts in neurology, urology and general medicine examined the applicant’s medical records dating from the period between 2001 and 2008. Their report dated 2 July 2013 found that, due to his inability to satisfy his most basic needs (such as moving, urinating or defecating) without help and to his very serious diseases, the applicant required constant medical supervision, treatment and assistance and that he should therefore be placed in a specialised medical facility. His detention in a temporary detention facility could aggravate his condition and, in the absence of a swift reaction to such an aggravation, could result in his death. The report also found that the applicant was suffering from diseases which, according to Governmental Decree no. 3 of 14 January 2011, were incompatible with detention.

On 17 July 2013 a panel of three doctors from State hospital no. 20 in Moscow examined the applicant at the investigator’s request. Having studied the applicant’s medical history, the results of his recent clinical blood and urine analyses, as well as the results of his ultrasound scan and MRT examinations, the doctors confirmed the diagnoses and found that the applicant “was not suffering from any of the serious diseases included in the list of serious illnesses precluding detention of a suspect or an accused”. The report did not indicate the field of medicine in which the doctors specialised.

In response to a request by the investigator, on 25 July 2013 the director of the medical unit of temporary detention facility (SIZO-2) in Moscow, where the applicant was detained, prepared a certificate describing the applicant’s state of health. Citing extracts from the medical records, the director reported that the applicant was examined by him almost every day and also by various specialist doctors, including a urologist, a neurologist, a surgeon, a cardiologist and an endocrinologist. Blood and urine tests were regularly performed. He was prescribed and administered various medications. The applicant used disposable catheters to urinate. He performed that procedure himself, as he had done before his arrest, up to ten times a day without the facility administration having the possibility of ensuring the requisite level of asepsis. An enema was carried out by a doctor two or three times a week to make the applicant defecate. The applicant’s condition was stable and no deterioration in his health had been noted, although he had continued to raise various health complaints.

At the same time, the director of the medical unit also noted that, because the applicant was confined to a wheelchair, he could not be transported to the medical unit of the detention facility. He was therefore held in an ordinary cell where he was visited by the doctors and where all the necessary medical procedures were performed. In particular, the neighbouring cell which was used to perform the enemas was not suitable for that medical procedure as it was difficult to ensure the requisite sterility. The director stressed that lack of sterility could result in a serious complication.

The applicant’s lawyers submitted the medical report of 17 July 2013 for assessment by two medical specialists: a deputy president of the Russian Scientific Society of Medical Experts, academician and honorary doctor of the Russian Federation, Mr K.; and a member of the Russian and International Neurosurgeons’ Association, academician and highly respected professor-neurosurgeon, Mr S. On 25 July 2013 the two experts issued their review of the report. Having noticed the lack of information on the medical qualifications and specialisation of the three doctors who had issued the report, the two experts considered that the report contained a number of “significant and important contradictions”. In particular:

- a urologist had not examined the applicant or participated in the preparation of the report of 17 July 2013, even though the applicant was suffering from a serious urological disorder;

- although the three doctors had been provided with a complete set of medical records comprising the applicant’s medical history, including those related to his injuries and complications, the report was only based on “fragments of that information”; major complications arising from the applicant’s condition, such as chronic cystitis and pyelonephritis, remained unassessed;

- Governmental Decree no. 3 of 14 January 2011 listed, among the serious illnesses precluding the detention of a suspect, “serious progressive forms of atrophic and degenerative illnesses of the nervous system accompanied by a stable disorder of the motor, sensory and vegeto-trophic functions”, which fully corresponded to the applicant’s diagnosis. However, that medical condition had not been taken into account by the three doctors who had prepared the report of 17 July 2013;

- the applicant was also suffering from a life-threatening post-traumatic pathology of the kidneys and urinary tracts. However, despite the fact that a similar condition was also listed by the Governmental decree among the illnesses precluding detention, the three doctors had paid no attention to it.

The two experts concluded that the report of 17 July 2013 was incomplete and was not objective, as it did not fully reflect the “true picture of [the applicant’s] pathology, which undoubtedly fell within the serious illnesses precluding detention pending trial, as determined by Governmental Decree no. 3 of 14 January 2011”.

On 7 August 2013 the three doctors from hospital no. 20 issued another report confirming the findings in their previous report of 17 July 2013. The doctors again concluded that the applicant’s condition did not warrant his release as he was not suffering from any illness listed in Governmental Decree no. 3. The findings of the two reports were similar, the only difference being that part of the second report was based on more recent clinical tests and examinations of the applicant.

On 13 August 2013 the applicant asked the Court to apply Rule 39 of the Rules of Court and to authorise his transfer to a specialised medical facility as an interim measure.

The applicant claimed that the medical assistance he was receiving in the temporary detention facility was insufficient in view of his very serious diseases, which required constant medical supervision by specialised medical staff. The facility’s medical staff were not competent to deal with such serious conditions. The treatment he was receiving there did not correspond to the treatment he had received before his arrest. Moreover, he was unable to satisfy his most basic needs without help. In particular, when he wanted to defecate, he had to wait, suffering, until an external specialist was called, as the facility staff were not qualified to carry out an enema. According to the applicant, such inadequate medical assistance could result in a brutal aggravation of his condition and ultimate death.

On 16 August 2013 the Court decided to indicate to the Russian Government, under Rule 39 of the Rules of Court, that it was desirable in the interests of the proper conduct of the proceedings that the applicant be immediately examined by medical experts independent from the prison system with a view to determining: (1) whether the treatment he was receiving in the detention facility was adequate for his condition; (2) whether his current state of health was compatible with detention in the conditions of a detention facility; and (3) whether his current condition required his placement in a hospital.

On 26 August 2013 the Government responded to the Court’s letter of 16 August 2013, having submitted a handwritten copy of the report prepared when the applicant was examined on admission to the detention facility SIZO-2 in Moscow; documents showing that the detention facility was licensed to provide medical services to inmates; certificates issued jointly by the head of the detention facility and the director of its medical unit describing the state of the applicant’s health and listing the medical procedures to which he had been subjected; extracts from the applicant’s medical history dating back to 2007; a certificate issued by the same two officials informing the Court that there was no risk to the applicant’s life and limb and that his condition was considered stable; a handwritten copy of the applicant’s medical record drawn up in the detention facility in which the most recent entry had been made on 21 August 2013 by a prison doctor; a record drawn up during the applicant’s stay in hospital no. 20 in Moscow from 11 to 17 July 2013, noting the applicant’s diagnosis and assessing his condition as moderately serious; a medical record from a psychiatric prison hospital where he had stayed from 12 to 17 June 2013 and where he had been treated for an “adaptation disorder affecting emotions and behaviour”; copies of the two medical reports issued on 17 July and 7 August 2013, respectively, by a medical commission of three doctors from hospital no. 20 who, having cited the applicant’s medical history and the results of his examinations by various specialists and clinical tests performed in the hospital in July 2013 and the beginning of August 2013, concluded that the applicant was “not suffering from an illness included in the list of serious illnesses precluding detention of suspected or accused persons”.

The Government also answered the three questions which, in its letter of 16 August 2013, the Court had asked them to address to independent medical experts. In particular, having provided an answer to the first question related to the adequacy of the applicant’s treatment, the Government stressed that the applicant had been placed under dynamic medical supervision by the medical personnel of the detention facility in relation to illnesses of the musculoskeletal, endocrine, hepatobiliary and urinary systems. They acknowledged that the applicant, as a wheelchair- bound inmate, required systematic care and permanent medical attention, which were being provided to him in a special cell. He was performing the remaining hygiene procedures himself. The Government submitted that the applicant received the necessary medical attention and that no additional medical procedures were required.

In their response to the second question about the compatibility of the applicant’s state of health with the conditions of the detention facility, the Government stressed that the applicant was under the medical supervision of the personnel of the detention facility and was also being seen by various civilian medical specialists. The prison doctors were fully complying with the treatment plan developed by the civilian specialists.

In replying to the third question as to whether the applicant needed to be transferred to a hospital, the Government relied on the two reports issued by the three doctors from hospital no. 20 on 17 July and 7 August 2013, according to which the applicant was not suffering from any condition included in the list of serious illnesses precluding the detention of suspected and accused persons in detention facilities, as provided for by in Decree no. 3 of the Government of the Russian Federation of 14 January 2011.

On 29 August 2013 the Court reminded the Russian Government that on 16 August 2013 an interim measure had been imposed under Rule 39 of the Rules of Court, in accordance with which independent medical experts were to examine the applicant and provide their expert opinion on the three questions, assessing the quality of the applicant’s treatment, the compatibility of his state of health with the conditions of the detention facility and the need to transfer him to a hospital. The Government’s attention was also drawn to the fact that the failure of a Contracting State to comply with a measure indicated under Rule 39 may entail a breach of Article 34 of the Convention.

On 13 September 2013 the Government submitted an English translation of their submissions of 26 August 2013.

The applicant submitted a large number of medical reports and opinions issued by various Russian and foreign experts. In particular, he provided the Court with a copy of an opinion issued by Dr P. of the Nurnberg Centre of Gastroenterology in Germany, where he had undergone treatment on a number of occasions since 2004. The doctor who had attended to the applicant on those occasions stressed that he was in need of permanent medical supervision by qualified specialists. The lack of such assistance, in the doctor’s opinion, was life-threatening. He also noted that the conditions of a detention facility were not suitable for a person in the applicant’s state of health.

The applicant also provided the Court with an assessment report issued on 15 August 2013 by a deputy president of the Russian Scientific Society of Medical Experts, academician and honorary doctor of the Russian Federation, Dr K., in response to the medical opinion prepared on 7 August 2013 by the three doctors from hospital no. 20. Dr K. again criticised the opinion for the same defects as those identified in the previous report of 17 July 2013.

According to another report prepared on 2 August 2013 by Professor B., a surgeon from the Caspari Clinic in Munich, Germany, the applicant required complex daily medical examinations and procedures to control his diabetes, hepatitis C and urological problems. The doctor, who had treated the applicant in December 2012 and January 2013, insisted that the lack of such care would be critically dangerous for the applicant’s life.

Another medical expert from Germany, a urologist from a hospital in Dillenburg, in his opinion of 5 August 2013, described the complexity of the applicant’s health condition and listed the treatment which he should receive on a daily basis. He concluded that the applicant’s detention in the absence of such treatment posed a threat to his life.

Two more specialist reports were issued in November 2013: the first, by a professor of urology/andrology from Salzburg, Dr J.; and the second by a professor of surgery and intensive surgical medicine from the Paracelsus Private Medical University of Salzburg, Dr W. The reports were based on the applicant’s medical record and answers to their questions prepared by the applicant’s defence team. Having noted the poor sanitary conditions in which the applicant had to undergo necessary procedures and his “reduced immune system”, their prognosis for him was “very bad”, with the likelihood that “over time he would suffer from antibiotic-resistant urinary tract infection that [could] cause urosepsis with a very high risk of [death]”. Dr J. concluded that from the medical evidence before him, the applicant already had a permanent urinary tract infection which would probably soon develop into urosepsis. There was a 60% to 90% chance of developing septic shock and death in such a case, even in optimal clinical conditions. That chance became far more probable in a prison environment. The risk was even higher than for otherwise healthy paraplegic men given that the applicant was suffering from diabetes. Having listed various medical procedures and recommendations for treatment, Dr J. concluded that the applicant’s life “was in acute danger” and that “high-quality medical management of [the applicant’s] problems [was] mandatory”.

Dr W. concluded his analysis of the applicant’s health and the treatment to which he was being subjected with the following assessment:

“In my 40 years of professional experience as a surgeon, I have never encountered such inhuman, demoralizing and humiliating treatment of [a disabled person] bound to a wheelchair. A paraplegic patient has the same life expectancy as a [non-disabled] person, provided the measures described above are followed. Based on the documents presented to me, I have no reason to assume that this is the case.

Given the circumstances described here, one may expect the patient to experience severe and agonizing pain. Due to the non-existent medical care, one may anticipate severe complications or his demise.”

On 17 December 2013 Dr W. amended his expert opinion. Having again listed all the illnesses with which the applicant had been diagnosed by the Russian prison authorities, Dr W. stated as follows:

“From the medical view it is absolutely insignificant if one or more of those diseases are not in the list of serious diseases preventing the holding in custody of suspects or accused of the commission of crimes.

On the other hand, it is proved in international medical literature that the combination of all these serious diseases causes an enormous life threatening situation for [the applicant]. The patient is really very critically ill.”.

In the meantime, relying on the Court’s letter of 16 August 2013, on 27 September 2013 the applicant’s lawyers asked the investigators in the case to provide the applicant with an opportunity to be examined in person by a number of medical experts from various civilian hospitals, including those who had prepared the reports assessing the doctors’ opinions of 17 July and 7 August 2013. The lawyers insisted that the named specialists had agreed to provide their expert opinion in response to the three questions put by the Court before the Russian Government under Rule 39 of the Rules of Court.

On 3 October 2013 the lawyers received a letter from the senior investigator “fully refusing” their request. Having pointed out that the applicant had already been examined twice by doctors from hospital no. 20, a civilian hospital, and that the doctors had concluded that the applicant was not suffering from an illness included in the list of serious illnesses precluding detention pending trial, the senior investigator dismissed the request.

The lawyers sent a similar request to the director of the applicant’s detention facility. The director responded that he did not “in principle” object to such an examination by medical experts, but that the decision authorising the examination could only be taken by the investigator.

The applicant was again sent for an examination to hospital no. 20, where the three doctors confirmed their previous findings of 17 July and 7 August 2013. The new report issued on 5 November 2013 was very similar.

The lawyers also submitted to the Court a large number of certificates issued by the administration of the detention facility showing that the applicant’s daily needs in terms of medicines and medical materials, including catheters, were covered by his relatives. The director of the detention facility also confirmed that fact in his letter of 23 October 2013.

On 1 April 2014 the applicant was transferred to temporary detention facility no. 4 in Rostov-on-Don. A prison doctor attending on the applicant in that facility issued a record listing a number of visits to the applicant by various medical specialists and registering the applicant’s mounting complaints. In the same record she stated that while the applicant remained under permanent medical supervision and was subjected to regular clinical examinations, with his condition, due to those procedures, being satisfactory, any of his illnesses at any time could lead to a significant deterioration in his health and become acute or chronic, with an unpredictable prognosis for his life expectancy.


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

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in 1979 and is detained in Diyarbakır.

On 23 December 2001 the applicant was arrested and taken into police custody on suspicion of being a member of Hizbullah, an illegal organisation. During his detention in police custody, the applicant was allegedly subjected to ill-treatment by police officers. In particular, electric shocks were administered to his testicles.

On 25 December 2001 the applicant was interrogated by the police in the absence of a lawyer. During his interrogation, he confessed in detail to his involvement in the activities of the illegal organisation and gave detailed information about the organisation and its members.

On 26 December 2001 the applicant gave a statement to the public prosecutor in the absence of a lawyer in which he denied the statements he had given to the police.

On the same day the applicant was brought before the investigating judge at the Diyarbakır State Security Court, who questioned him in the absence of a lawyer. The applicant again denied his statements to the police. During his questioning, the applicant alleged to the investigating judge that he had been subjected to ill-treatment while in police custody and that his statements had been taken under duress. However, a medical report issued by Bağlar Health Clinic dated the same day stated that there was no sign that he had been subjected to violence. At the end of the hearing, the court ordered that the applicant be placed in pre-trial detention.

On 9 January 2002 the Diyarbakır public prosecutor filed a bill of indictment, charging the applicant under Article 146 of the former Turkish Criminal Code with attempting to undermine the constitutional order of the State.

On 19 March 2002 the Diyarbakır State Security Court held the first hearing on the merits of the case. During the hearing, the applicant repeated his allegations of having been subjected to ill-treatment in police custody and denied his statements to the police.

On 27 January 2004 the applicant lodged a criminal complaint with the Diyarbakır public prosecutor’s office against the police officers who had allegedly ill-treated him. He stated that electric shocks had been administered to his body through his testicles and that his testicles had been squeezed, which had caused serious harm. He attached a medical report dated 20 September 2002 from Fırat University on the state of his testicles. The report stated that the applicant had a dilation of the veins in his left testicle of up to 2.6 mm, which had resulted in a varicocele.

State Security Courts were abolished by Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004. The case against the applicant was transferred to the Diyarbakır Assize Court.

On 25 June 2004 the Diyarbakır public prosecutor issued a decision to discontinue the criminal proceedings against the police officers on account of a lack of evidence.

During the criminal proceedings against the applicant, the first-instance courts examined the applicant’s continued detention at the end of the hearings, either on their own motion or at the applicant’s request. The courts ordered that he be kept in detention owing to the nature of the offence, the state of the evidence and the contents of the file.

On 12 June 2008 the Diyarbakır Assize Court convicted the applicant as charged and sentenced him to life imprisonment. The sentence, however, was reduced to twenty years of imprisonment as the applicant was a minor at the time of the offence.

On 18 January 2010 the Court of Cassation quashed the decision for procedural reasons.

On 2 April 2010 the applicant asked the Diyarbakır Assize Court for his release pending trial. On 9 April 2010 the court dismissed his application for release on the grounds of the nature of the offence.

On 30 September 2010 the Diyarbakır Assize Court issued a decision of lack of jurisdiction (görevsizlik kararı), pursuant to section 8 of Law no. 6008, which provided that juveniles could not be tried before assize courts, which had special jurisdiction to try a number of aggravated crimes enumerated under Article 250 § 1 of the Code of Criminal Procedure at the material time. The case was thus referred to the Diyarbakır Juvenile Court.

On 2 November 2010 the applicant was released pending trial.

On 5 June 2012 the Diyarbakır Juvenile Court found that, inter alia, on the basis of the applicant’s statements to the police, the applicant had committed the offence under Article 146 of the former Turkish Criminal Code and sentenced him to sixteen years and eight months’ imprisonment.

On 17 June 2014 the Court of Cassation upheld the Diyarbakır Juvenile Court’s judgment.


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);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);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty)

The applicants’ dates of birth and places of residence are given in the Appendix.

The applicants were opposition-oriented activists. At the material time the first applicant was a member of one of the opposition parties, the Popular Front Party of Azerbaijan. He participated in a number of peaceful demonstrations organised by the opposition and on several occasions was arrested and convicted for that.

On 12 October 2013 an opposition group İctimai Palata held a demonstration, authorised by the relevant authority, the Baku City Executive Authority (“the BCEA”).

The demonstration was held in the Mahsul stadium, a place proposed by the BCEA. It was intended to be peaceful and was conducted in a peaceful manner. The participants were protesting against alleged irregularities and fraud during the presidential elections of 9 October 2013.

All three applicants participated in that demonstration.

After the end of the demonstration of 12 October 2013 the applicants were arrested at the entrance to a nearby metro station, Inshaatchilar.

The circumstances of the applicants’ arrests, their custody and subsequent administrative proceedings against them are similar to those in Huseynli and Others v. Azerbaijan (nos. 67360/11 and 2 others, 11 February 2016) and Huseynov and Others v. Azerbaijan ([Committee] nos. 34262/14 and 5 others, 24 November 2016) (see also Appendix).


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the excessive length of their pre-trial detention. In application no. 65302/16, the applicant also submitted a complaint under Article 5 § 4 of the Convention.


Preliminary objection dismissed (Article 35-3 - Ratione personae);Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione personae);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary and non-pecuniary damage - award

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The first applicant was born in 1953 and lives in Petrozavodsk, in the Republic of Kareliya. The second applicant was born in 1956 and lives in Mezen, in the Arkhangelsk Region.

The first applicant was an employee of the municipal unitary enterprise “Avtokolonna 1126” (Auto Transport Column 1126) in Petrozavodsk, the Republic of Kareliya.

“Avtokolonna 1126” was set up by a decision of the administration of the Town of Petrozavodsk (“the town administration”). It provided public transport services in the town on a commercial basis. The company had “the right of economic control” (право хозяйственного ведения) over the assets allocated to it by the town administration in order to carry out its statutory activities. Legal provisions on the status of municipal unitary enterprises and the right of economic control are summarised in paragraphs 5575 below.

At the request of the company, on 29 December 2001 the town administration withdrew unspecified assets of an aggregate value in excess of 25,000,000 Russian roubles (RUB) from the company’s economic control and immediately allocated them to the same company for temporary use free of charge under a loan agreement.

Under several agreements between the company and the town administration, including one dated 21 January 2002, the company undertook to provide transport services to certain sections of the population free of charge, and the town administration was to reimburse it for the expenses incurred out of the budget allocated for that purpose by the Ministry of Finance of the Republic of Kareliya or the federal budget. According to a letter from the Committee of Housing and Communal Services of Petrozavodsk dated 19 March 2003, at some point the respective budgets accumulated a considerable debt towards the company owing to a shortage of funds. Consequently, the company was unable to pay its employees in due time. The town administration requested the legislative body of the Republic of Kareliya to consider the allocation of additional funds to cover the company’s debt in 2004, but to no avail.

On an unspecified date the administration ordered the restructuring of the company in the form of a spin-off and transferred the assets mentioned in paragraph 8 above to the newly created municipal unitary enterprise “Avtokolonna 1126 Plus”. The debt accumulated in respect of the unpaid salaries was not transferred and remained with the applicant’s employer.

On 6 July 2003 the Commercial Court of the Republic of Kareliya declared the respondent company insolvent, and a liquidation procedure commenced.

The applicant sued her employer for salary arrears.

On 20 June 2003 the Petrozavodsk Town Court awarded her RUB 5,421.89 in salary arrears, compensation for non-pecuniary damage and court expenses. The judgment was not appealed against and became final ten days later. On 4 July 2003 the bailiffs’ service received the writ of execution in respect of the award.

On 22 June 2003 the applicant was dismissed from the company in view of its upcoming liquidation (see paragraph 10 above).

By a final judgment of 25 November 2003 the Petrozavodsk Town Court granted her new action and ordered the respondent company to pay her RUB 19,445.53 in salary arrears for a different period of time, severance pay and compensation for non-pecuniary damage. The applicant obtained a writ of execution in respect of the award.

By a final judgment of 16 April 2004 the same court, in separate proceedings, awarded the applicant RUB 4904.95 in compensation for loss of salary, based on the average wage, and compensation for nonenforcement of the above-mentioned two judgments as well as nonpecuniary damage. On 17 May 2005 the writ of execution was forwarded to the bailiffs’ service.

At some point the bailiffs discontinued the enforcement proceedings in respect of at least two judgments (22 June 2003 and 16 April 2004) and forwarded the writs to the liquidator.

By separate judgments of 21 and 24 June 2004 and 12 and 13 August 2004 the Commercial Court of the Republic of Kareliya ordered the Federal Treasury and the Republican Treasury to reimburse the company the cost of the transport services it had provided free of charge under the respective agreements (see paragraph 9 above) and rejected a similar claim against the town administration.

At some point the liquidator received the writ of execution in respect of the judgment of 25 November 2003.

According to the liquidator’s notes on the respective writs of execution, at some point the applicant received RUB 4,358.98 of the amount awarded on 20 June 2003, RUB 8,782.78 of the amount awarded by the judgment of 25 November 2003 and RUB 4,604.95 of the award made on 16 April 2004. The remainder of the judgment debts has not been paid to the applicant.

On 4 October 2006 the Commercial Court of the Republic of Kareliya discontinued the insolvency proceedings and ordered the respondent company’s liquidation. The creditors’ claims, which had not been satisfied during the liquidation procedure, including the remainder of the applicant’s claims, were considered as settled. On 15 October 2006 the liquidation was recorded in the Register of Legal Entities, and the company ceased to exist.

In 2005 the applicant lodged an action against the town administration, claiming that it was liable to repay her the remaining judgment debt plus compensation for the delayed enforcement of the court orders and non-pecuniary damage. She argued that the insolvency of the debtor company had been caused by the actions of the town administration. First, it had failed to reimburse the expenses the company had incurred for providing transport services, as stipulated by the respective agreements (see paragraph 9 above). Second, the company’s inability to meet the creditors’ claims had been caused by the transfer of the assets to a different company carrying out the same functions. As a result, the debtor company had become unable to continue to carry out its activities as defined in its articles of association.

On 21 January 2005 the Petrozavodsk Town Court dismissed the action. The court established that the federal and republican authorities owed the applicant’s former employer RUB 1,883,370 for services provided at a reduced price. However, with reference to the Commercial Court’s findings (see paragraph 18 above) the court concluded that the debt had been accumulated as a result of the federal and republican authorities’ inaction and therefore it could not be attributed to the town administration. As regards the transfer of the assets, the court found as follows:

“The restructuring («реорганизация») of the municipal unitary enterprise ‘Avtokolonna 1126’ in the form of a spin-off and the creation of a separate unitary enterprise, ‘Avtokolonna 1126 Plus’, was within the property owner’s rights. [The applicant] failed to prove the existence of a causal link between the restructuring ... and the enterprise’s insolvency”.

The court further observed that, in any event, the applicant’s claim was premature, since the insolvency proceedings had been underway at the material time. On 22 March 2005 the Supreme Court of the Kareliya Republic upheld the judgment on appeal.

Once the debtor enterprise was liquidated, the applicant lodged a similar claim with the Justice of the Peace of the 10th Court Circuit of Petrozavodsk. In addition to her earlier submissions (see paragraph 22 above) she reiterated that the debtor company had reported to the owner and the latter had been fully aware of its financial difficulties. However, no measures had been taken to remedy the situation.

On 21 May 2007 the Justice of the Peace rejected her claims, largely referring to the findings of the Petrozavodsk Town Court of 21 January 2005 (see paragraph 23 above). She found that even though the liquidation proceedings had been terminated, the applicant had failed to adduce any additional evidence to demonstrate that the owner had caused the company’s insolvency. The Justice of the Peace noted that the company had been a separate legal entity liable for its debts with all its assets, and therefore rejected the applicant’s argument about the town administration’s inaction as irrelevant.

On 12 September 2007 the Petrozavodsk Town Court endorsed those findings as regards both the failure of the authorities to compensate the cost of the transport services and the restructuring of the company. The court noted, in addition, that the withdrawal of the assets on 29 December 2001 had taken place pursuant to the company’s own request and that, moreover, those assets had been returned to it for free temporary use, which had permitted it to continue its activities. The court further found the applicant’s arguments about the authorities’ inaction ill-founded and emphasised that the applicant had failed to submit evidence in support of her claims.

The applicant was an employee of the municipal unitary enterprise “Zhilishchno-Kommunalnoye Khozyaystvo of Mezen” (“Housing and Communal Service of the Town of Mezen”, hereafter “the company”) in the Arkhangelsk Region.

The company was set up by decision of the administration of the Mezen District. It had the right of economic control over the assets allocated to it by the district in order to meet its statutory objectives. In accordance with the company’s articles of association, it was a commercial organisation performing the following activities, among others: renovation and maintenance of the municipal housing stock; heating and water supply; maintenance of the sewage systems in Mezen; cartage and passenger transport; funeral services; maintenance of municipal boiler plants, artesian wells and related infrastructure, as well as heating supply systems; production of fast-moving consumer goods; and disposal of dry waste and household waste,

According to its articles, the assets of the company consisted of the profit generated by its activities, capital investments, and grants from the federal, regional and local budgets and other sources. The company’s financial resources were made up of profits, amortisation charges, loans and other revenues, as well as “grants from the local budget to cover any losses incurred through the provision of housing and communal services”.

The company planned its activities and development itself. It proposed prices and the tariffs for its products and services in accordance with the domestic legislation and submitted them to the district administration for approval. The plans were based on contracts with consumers, including State bodies and suppliers, “concluded on a commercial basis”.

The basic salaries of the employees of the housing and communal sector for 2005-07 were set by the Sectoral Tariff Agreement for the Housing and Communal Sector of the Russian Federation (Отраслевое тарифное соглашение по организациям жилищно-коммунального хозяйства Российской Федерации) concluded between the employees of the “essential public services sector” represented by the trade union, and the employers, represented by the Communal Enterprises Union. The agreement applied to the municipal authorities that empowered the parties to make such an agreement, as well as to all entities operating in the housing and communal sector, unless they explicitly refused to apply it. No such refusal was made by the applicant’s employer.

The district administration was responsible for setting the tariffs of the company’s services and was also a major consumer of its services. The tariffs in place until 2005 were based on 5 per cent profitability. According to the submissions of the director of the company which employed the applicant in the subsidiary liability proceedings brought by the applicant (see paragraph 48 below), as a result of the application of those tariffs the enterprise had become unprofitable; the loss in profits amounted to RUB 300,000 and was not reimbursed by the administration. The administration failed to pay RUB 2,500,000 for the company’s services. According to its director, the company was put in a difficult financial situation as a result of the actions of the owner.

On 23 December 2005 the Head of the Mezen district administration ordered the restructuring of the company in the form of a spin-off, creating a new municipal unitary enterprise “MUP ‘Mezenskiye Teplovyye Seti’ (Mezen Heating Supply Systems) of the Mezenskiy District” (hereafter, “MUP ‘MTS’”).

On the spin-off balance sheet approved by the Head of the Mezen district administration on 20 April 2006, the unpaid salary debt was not transferred to the newly created company.

On 24 May 2006 the Head of the Mezen district administration ordered the withdrawal of coal and all other assets, except for the company’s authorized capital, from the company’s economic control and their allocation to MUP “MTS”. The director of the company which employed the applicant became director of MUP “MTS”.

On 13 July 2006 the Head of the Mezen district administration ordered the applicant’s employer’s liquidation.

On 29 May 2007 the Commercial Court of the Arkhangelsk Region declared the respondent company insolvent, and the liquidation procedure was set in motion.

The applicant sued his employer for salary arrears, claiming that his salary rate was below that provided for in the respective Sectoral Tariff Agreement (see paragraph 32 above). The liquidator accepted the claims. On 19 June 2007 the Justice of the Peace of the Court Circuit of the Mezen District of the Arkhangelsk Region awarded the applicant RUB 80,892.63 in salary arrears against his employer.

The judgment was not appealed against and became final.

On 16 July 2007 the bailiffs’ service initiated the enforcement proceedings in respect of the judgment. On 19 July 2007 the bailiffs terminated the enforcement proceedings and forwarded the writs of execution to the liquidator.

At some point before 1 February 2009 (date of the liquidator’s report, see paragraph 45 below) the applicant’s claims were included in the second priority line of the register of creditors’ claims.

According to the Government, on 1 October 2007 the applicant petitioned the Commercial Court of Arkhangelsk with a request to order the liquidator to enforce the judgment in his favour.

On 4 October 2007 the court returned the petition unexamined, referring to section 60 of the Insolvency Act (see paragraph 120 below). The parties have not submitted a copy of any document produced by the court in that respect, or a copy of the applicant’s petition.

On 1 February 2009 the liquidator produced a report stating, inter alia, that the assets of the debtor company had not been found and the receivables had not been established, “for lack of financial records”.

On 24 February 2009 the Commercial Court of Arkhangelsk terminated the insolvency proceedings and ordered the respondent company’s liquidation. The creditors’ claims which had not been satisfied during the liquidation procedure due to the debtor’s shortage of funds, including the applicant’s claims, were considered as settled. The court further ordered that the enforcement proceedings in respect of that debt be terminated.

The applicant lodged a court action against various respondents claiming, inter alia, that the town administration was liable to repay him the unpaid judgment debt, as well as compensation for non-pecuniary and pecuniary damage resulting from the non-enforcement. He argued that the insolvency of the debtor company had been caused by the actions of the district administration.

On 16 September 2009 the Mezenskiy District Court of the Arkhangelsk Region heard the parties, including the applicant, the district administration representative and the head of the liquidated company who was, at the time of the events, employed as the director of MUP “MTS” (see paragraph 34 above) and granted the applicant’s claims in part. The court reiterated that the debtor company had been set up by the district administration, which, as its owner, had been entitled to decide on its restructuring and liquidation under Article 295 § 1 of the Civil Code. The owner could not be held liable for the insolvent company’s debts unless the insolvency had been caused by the owner’s actions. The court established that as a result of the administration’s tariff-setting policy (see paragraph 33 above) the company had been put in a pre-insolvency situation. Furthermore, the court emphasized that the district administration had withdrawn all assets from the company except for its authorized capital, which resulted in the company’s inability to continue its activity in accordance with the goals and objectives assigned to it. With reference to the Court’s case-law (Shlepkin v. Russia, no. 3046/03, 1 February 2007; Grigoryev and Kakaurova v. Russia, no. 13820/04, 12 April 2007; and Aleksandrova v. Russia, no. 28965/02, 6 December 2007) the District Court found that the administration had subsidiary liability for the insolvent company’s debts, ordered that the judgment debt be recovered from the district administration at the expense of the district treasury and rejected the remainder of the applicant’s claims. In particular, the court found that the newly created company was not liable for the debts of the applicant’s employer since they had not been transferred to it in the spin-off procedure.

On 17 December 2009 the Arkhangelsk Regional Court quashed the judgment on appeal and remitted the case for a fresh examination. The regional court found that it was for the applicant to demonstrate that the insolvency had actually been caused by the owner’s actions. However, he had failed to do so. Turning to the tariff-setting issue (see paragraph 33 above), the regional court noted that under the domestic law the owner was not obliged to finance the company directly. The regional court further considered that the assets had not actually been withdrawn from the company which employed the applicant, but that the company itself had transferred them to the newly created company on the spin-off balance sheet after the restructuring. There was nothing in the case to suggest that the lawfulness of the transfer of the assets had at any point been challenged in court. Furthermore, Russian employment law had not contained any provisions on the subsidiary liability of owners for the debts of municipal unitary enterprises. On the other hand, the first-instance court had failed to examine the issue of MUP “MTS”‘s liability for the debts of the restructured company.

On 19 February 2010 the Mezenskiy District Court rejected the applicant’s claims. The court found that, as a result of the withdrawal of all assets from MUP “MTS”, the latter had become unable to continue its activities, which indeed constituted a reason for its insolvency. However, the court went on to find that

“... the insolvency occurred through no fault of the owner, since they [sic] had been bound by the federal law. Therefore, one of the criteria for the application of subsidiary liability, namely, fault on the part of the owner, is missing.”

In so far as the applicant’s claims for compensation for delayed enforcement were concerned, the court noted, in addition, that he had failed to raise that issue before the main debtor, that is, the employer company, and was therefore prevented from making such claims in the subsidiary liability proceedings. Lastly, the claims lodged against the newly created company could not be granted since the debt in respect of the salary arrears had not been transferred to it.

The applicant appealed, arguing, inter alia, that the liquidator had not been heard by the first-instance court and the documents on the debtor company’s remaining assets had not been available to him.

By a final judgment of 6 May 2010 the Arkhangelsk Regional Court upheld the lower court’s findings of 19 February 2010 on appeal. The regional court rejected the applicant’s argument regarding the unavailability of the company’s documents as irrelevant, having noted that the claimant had to demonstrate that the insolvency had been caused by the owner’s actions and not by the company’s own management “and, in any event, not vice versa”. The court endorsed the remainder of the lower court’s findings.


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment);No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);No violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention)

Aleš Pejchal;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Pauliine Koskelo;Robert Spano

The applicant was born in 1956 and lives in San Marino. He is a politician.

The applicant was the subject of an investigation related to two sets of criminal proceedings (nos. 769/12 and 184/14) which were eventually joined, in connection with the crimes of, inter alia, conspiracy and various acts of money laundering.

By a decision of 25 October 2012, relying on Articles 4 and 5 of Law no. 93 of 2008, the inquiring judge ordered that investigation file no. 769/12 be classified because that the existing representation of facts required further investigative steps, including urgent measures which could be prejudiced if the documents were not kept secret.

By a decision of 23 June 2014 the Commissario della Legge, in his capacity as inquiring judge, described over twenty-five pages the circumstances resulting from the investigations and informed the applicant (along with other suspects) of the charges against him. The charges were, (i) conspiracy (in connection with crimes related to money laundering) under Article 287 of the Criminal Code; (ii) various instances of money laundering in participation with others (Articles 50, 73 and 199 bis of the Criminal Code) for the movement of money through the San Marino Foundation For the Promotion of the Economy and Finances; and (iii) various instances of money laundering in participation with others for the movement of money between B. (a Swiss company) and C. (a company based in San Marino).

It appeared from the investigations that the applicant (and others) had illegally acquired large sums of money which they had transferred into certain named accounts, sometimes in cash or by cheque and sometimes through fictitious intermediary companies, in order to hide the money’s criminal origins. The sums were then withdrawn and distributed to other entities, all traceable to the applicant. Furthermore, in order to hide the illicit origins of the money, other sums were transferred, hidden and replaced through other named companies, only to eventually be transferred to the applicant (and others) personally. The inquiring judge noted that those instances formed the basis of the second and third charge of money laundering. In particular, the factual circumstances, inter alia, suggested that there existed a criminal organisation made up of politicians, civil servants, entrepreneurs and bankers. The applicant appeared to have had a key role as a politician who had served in various posts and in the inquiring judge’s view he was particularly well placed to accumulate money which he then concealed behind various companies located in San Marino and abroad.

According to the inquiring judge the San Marino Foundation for the Promotion of the Economy and Finances (hereinafter “the Foundation”), which could be traced back to the applicant and was run by a person the applicant trusted, had been created specifically to further the aims of the criminal organisation. More than eleven million euros had been deposited but no trace of it could be found in the accounts. Discretion in the exercise of decision-making by political powers, as well as bureaucracy, gave the opportunity to “investors” to pay millions of euros in bribes to the Foundation in order for it to allow, for example, construction in areas identified by local plans as zones where development was forbidden. The investors knew the money would eventually get to the applicant, who was in a position to influence the approval of such projects, which could only come about by bending the rules. The inquiring judge observed that further investigations were necessary to understand the reasons behind a transfer into the Foundation of three million euros by a certain A.S., one million of which reached the applicant in cash.

The inquiring judge ordered that the applicant be arrested and detained on remand (misura cautelare personale) owing to a risk of his reoffending and tampering with evidence. The judge noted the substantial flow of money managed by the applicant, which was not compatible with his income. In view of the various evidentiary elements he concluded that it could be held with reasonable certainty that the financial transfers had been made in connection with the relations the applicant had with the co-accused, as a result of and during the time he had been a State representative. The evidence suggested that he had the ability to organise and benefit from adequate support to facilitate a further dispersion of funds, as a result of a mutual covering up with other associates, by means of the direct or indirect acquisition of the management of economic activities and of positions in public office in order to obtain unjust profit and advantage. The seriousness of the applicant’s particular conduct indicated his specific role in the organised criminal group. In addition, the speed with which certain transfers of millions of euros had taken place demonstrated the network of mutual assistance from which the applicant and the criminal organisation benefited and continued to benefit within the institutional and economic system in San Marino. According to the inquiring judge, the danger presented by the applicant had not diminished simply because he had quit public office. Indeed, in 2013 the applicant had sold an apartment, which had already been subject to leasing and payment for which had been made (accreditati) from Foundation funds, which showed that his contacts with the relevant entities remained in place. Furthermore, the inquiring judge considered that the systematic concealment of funds through fictitious payment descriptions (causali fittizie), the use of frontmen (prestanome) and of shell companies (societa schermo) rendered the risk of tampering with evidence a real one. According to the inquiring judge, that risk persisted, given the evidence existing both in San Marino and abroad, because of the wide support network. That meant that less restrictive measures could not be considered as appropriate when trying to make sure that the applicant (and his coaccused) did not commit further acts of money laundering.

On the same day at 2.50 pm the applicant was taken to prison and placed in detention.

The applicant was informed on 24 June 2014 that he would appear for questioning before the inquiring judge on 25 June 2014 at 4 pm and that he could meet his legal representatives on the latter date at 3 pm.

On 24 June 2014, after requesting access to the relevant files, the applicant’s legal representatives learnt that file no. 769/12 was partially classified and thus partially subject to non-disclosure. File no. 184/14 was entirely classified and could not be disclosed at all. The applicant noted that the index showed that the classified documents in file no. 769/12 which had been removed included (i) the initial notification by the Agency for Financial Information (hereinafter “the AIF”); (ii) a note by the same agency and explanatory documents; and (iii) pages 7-54 of Annex A to the AIF’s initial notification.

Following a decision of the same day, the above-mentioned unclassified material in connection with file no. 769/12 was submitted to the applicant’s representatives on the morning of the day of questioning. According to the applicant the information provided did not give sufficient grounds to substantiate the need for his detention.

On 25 June 2014 during questioning before the inquiring judge (interrogatorio di garanzia) the applicant availed himself of his right to remain silent. He complained of not being able to examine the investigative material, the short length of time he had been able to consult with his lawyer and of the delay in appearing before the judge.

On the same day the applicant, inter alia, challenged his detention and complained that the term provided by law (six months which can be extended by another three months) for maintaining the secrecy of the investigation had expired because investigation file no. 769/12 had been classified on 25 October 2012. He asked the court to release him or to, at least, order a less restrictive measure and to declassify the relevant documentation.

On 26 June 2014 the inquiring judge rejected the applicant’s requests. He considered that the fact that the applicant had not been allowed to consult some of the material related to the investigation before the end of the period of secrecy had not breached his rights. The expiry of the terms of Article 4 of Law no. 93/2008 (see relevant domestic law at paragraph 75 below) could also not result in the nullity of an order for detention on remand which had been duly justified and reasoned on the basis of the object of the proceedings pending against the applicant. Further, the relevant requirements and reasons justifying keeping him in detention remained, in particular the risk that the illegally acquired assets would be dispersed.

As to the applicant’s inability to access all the relevant material, the judge noted that the decision ordering his detention had contained all the relevant information justifying the lawfulness of and the need for such detention. The need for secrecy served the interests of justice and had to be balanced against the applicant’s interests. However, the applicant had been informed of the reasons for his detention in a way which enabled him to challenge it through the available means. Furthermore, access to further material was possible through other procedures that were available.

On 27 June 2014 the applicant reiterated his above-mentioned complaints and requests by means of an appeal (reclamo) under Article 56 of the Code of Criminal Procedure. He relied on various Articles of the Convention, and inter alia asked the court to take its decision solely on the basis of the documents which had been made available to him as the accused.

By an interim decision of the Judge of Criminal Appeals (Giudice delle Appellazioni Penali) of 30 June 2014, notified to the applicant’s representatives on 1 July 2014, the court upheld the applicant’s complaints in part.

It upheld the complaint about the non-disclosure of the documents, the content of which had served to justify his detention on remand given that the time-limit for classification of the file had expired. In connection with both files, in the text of its judgment the court considered that the applicant must be allowed access to such documents with the limited aim of allowing the applicant to be fully aware of the evidence already collected, especially that as a result of which the inquiring magistrate had ordered the applicant’s arrest and detention. The operative part of the judgment did not refer to any limitations. The court set a five-day time-limit from that date for the submission of observations.

As to the applicant’s ancillary complaint of a lack of relevant requirements for his detention, namely a reasonable suspicion against him (insussistenza dei presupposti e delle condizioni richieste per l’applicazione della misura), the court considered that the earlier decision had explained the relevant facts which had shown the applicant’s involvement in the crimes at issue. It also noted that a criminal origin for the sums at issue could be presumed owing to the methods used for their transfer. The latter was sufficient fumus delicti to justify the detention order, which was to be kept in place. It dismissed the remainder of the applicant’s complaints and upheld the findings of the first-instance court.

Following the Judge of Criminal Appeal’s decision, on 1 July 2014 the inquiring judge ordered the release to the applicant’s legal representatives of certain specified documents and evidence collected in connection with files nos. 184/14 and 769/12. According to the applicant, on the same day, upon a request made by him to the court registry, he learnt that despite the appeal judge’s order the relevant files had remained classified (file no. 184/14 had been partially declassified before the appeal judge’s decision). According to the applicant none of the publicly available content in file no. 184/14 could in any way demonstrate the crime of conspiracy under Article 287, with which he had been charged. The Government submitted that it had been the legal representatives who had failed to find the relevant documents in the case file.

On 6 July 2014 the applicant submitted observations by the timelimit set by the Judge of Criminal Appeals in connection with the above claims. In particular, he reiterated his complaints under Articles 5 and 6 of the Convention in so far as he had not had full disclosure of the documents and evidence collected despite the court’s order of 30 June 2014 (see paragraph 22 above) and argued that there was no reasonable basis to justify his detention on remand.

By a decision of 18 July 2014, notified to the applicant’s legal representatives on 22 July 2014, the Judge of Criminal Appeals upheld the order of 30 June 2014 and dismissed any further claims. He found that no new elements had emerged since the interim decision of 30 June 2014. It further noted that the order of 30 June 2014 had not ordered a total declassification but solely the disclosure of documents related to the continued detention, referring to the words with “the limited aim of” “ancorche al limitato fine”. It considered that such secrecy could be justified for the purpose of the proper administration of justice and the effectiveness of the investigation, and was subject to the inquiring judge’s discretion which the court of appeal did not want to interfere with - without prejudice to a further appeal against such decision before the third instance judge.

On 23 July 2014 the applicant appealed to the Third Instance Judge in Criminal Matters (Terza Istanza Penale) (hereinafter “the third-instance judge”), focusing on the inability to access various documents and the lack of a justification for his detention based on a lack of the relevant requirements. He also complained of procedural irregularities.

After a hearing, where oral and written submissions were made by the applicant and the Attorney General, the third-instance judge on 8 September 2014 dismissed the applicant’s complaints. The judge also upheld the lawfulness of the orders of 23 and 30 June 2014 and the lawfulness of the inquiry and the detention order. The court noted that its competence at third instance concerning detention on remand extended to confirming the existence of reasonable suspicion and other factors making detention necessary. Thus, it was for the judge to examine the stage of the investigation, as well as the correctness of the facts established and the lawfulness of the procedural steps undertaken, and the persistence of the charges against the accused, falling short of making any findings on the criminal responsibility of the accused.

As to the non-disclosure of some of the material, it noted that while under San Marino law an accused was granted the right to access and copy all the material in the investigation file and imposed on the judge a duty to inform the accused of the factual and legal circumstances surrounding the charges against him, the same procedural law also limited those rights for the sake of the proper administration of justice, while bearing in mind the procedural safeguards emanating from the right to a fair trial. Even the caselaw of the European Court of Human Rights provided for exceptions to the rule of disclosure. In the present case the secrecy imposed on certain of the documents, although not all of them had been necessary in view of a search for the truth and to avoid any risk of tampering with evidence.

It further noted that the applicant had had access to a lawyer before his questioning and that the order of 23 June 2014 had been detailed and had clearly identified the elements justifying the detention. It could thus not be said that the applicant had not been aware of the reasons for his arrest, the charges, or the nature and content of the evidence adduced. Indeed, more information than that strictly required had been communicated to the applicant and the judicial communication at issue had been exemplary, both in respect of the quantity and the clarity of the information provided.

In relation to the requirements justifying the applicant’s detention, the third-instance judge examined the matter in connection with each of the charges and noted that the appeal court had adequately replied to the applicant’s complaints. Referring extensively to the report of the inquiring judge, the third-instance judge found that it was necessary to keep the applicant in detention.

In the third-instance judge’s view, the factual evidence and relevant legal considerations indicated that the applicant could reasonably be considered as guilty of the charges against him. Furthermore, it was necessary to ensure the effectiveness of further investigations by avoiding any risk of tampering with evidence.

In the meantime, on an unspecified date the applicant lodged an application for the release of hard copies or electronic versions of documents which had been saved on equipment seized from him, or the possibility to make copies of them.

By a decision of 17 July 2014 the inquiring judge dismissed that application in part. The court noted that the investigation file had not yet included a detailed list of its contents. In any event such a request could only be accepted if it was specific enough to locate the documents referred to. It ordered that a list of the file’s contents be made and that the applicant have access to documents he could specify in terms of their form, content, date and origin.

On 15 July 2014 the applicant had also applied for access to information held by the court concerning P.W.S. (San Marino’s ambassador to Montenegro) which he considered relevant to disprove the alleged fictitious nature of the operations linked to Company B. and thus that there had been money laundering in that connection.

By a decision of 25 July 2014, the inquiring judge dismissed that application on the grounds that the reasons put forward by the applicant to access the documents were not deemed convincing by the court. According to the inquiring judge such a request could be accepted, at the relevant time, if it was made in connection with specific facts that were subject to debate, that had not yet been established, and which were pertinent to the ongoing investigation.

According to the applicant a further request to examine witnesses remained unheeded.

On 15 September 2014 the applicant asked the inquiring judge to revoke the detention order or impose a less strict measure.

On 18 September 2014 the inquiring judge dismissed the application. He considered that the original detention order and its continuation were reasoned in fact and in law. The basis for such a detention order did not need to be any more detailed, particularly given the continued risk of tampering with evidence if the applicant was put on a less strict regime. Contrary to the applicant’s assertions, the existence of this risk remained. The inquiring judge considered that the results of the investigation as well as the behaviour of the applicant, both during the interviews and while in detention, confirmed that view. He noted that the applicant’s co-accused had tried to make contact with other people, namely, a private doctor, on the pretext of being ill, even though state doctors had not found any signs of illness. Furthermore, both of the accused had attempted to involve relatives in interfering with and altering documents. The inquiring judge referred to the applicant’s ability to create ad hoc documents which looked real, with the intention of having them admitted as evidence. He also highlighted the applicant’s participation in the manipulation of the truth and the artificial reconstruction of facts and the dissimulation of the real functions of the accused. According to the inquiring judge, such factors meant that the court could not exclude that there would be attempts to tamper with evidence. Indeed, such tampering would be a repeat of the acts with which the applicant had been charged, which included manipulating the truth and the artificial reconstruction of economic and commercial dealings to hide their real aims.

The applicant appealed. He requested release from detention or at least the application of a less restrictive measure. He further asked the court to annul the decision appealed against, and if not, he asked the court to exhibit the evidence in connection with the facts and circumstances on which the decision of 18 September 2014 (to keep him in detention) had been based.

By a decision of 13 October 2014, the Judge of Criminal Appeals upheld the applicant’s appeal in part.

It ordered that the two investigations files be declassified in part, as to allow the applicant to have access to the files and evidence collected in the further investigations on which the inquiring judge had based his decision to dismiss the applicant’s bail application in favour of keeping him on remand. The court ordered the disclosure of the material and set a five-day time-limit from that date for the submission of observations.

It further considered that the first-instance court had been correct in maintaining the detention order on the basis of the behaviour of the coaccused. It was evident that the co-accused’s mistrust of state doctors was a pretext to consult her private doctors, which had been part of a predetermined plan agreed on between the two co-accused. That had been shown through recordings of their conversation (intercepted by a third party) over walkie-talkies provided to them by a policeman (M.) to enable them to agree on the same line of defence and to tamper with evidence. Similarly, the first-instance court’s finding on the attempt to involve third parties in tampering with evidence had been based on the fact that the applicant had transferred property into his daughter’s name and the apparent complicity of M. (against whom proceedings had been instituted) who owed allegiance to the applicant in exchange for favours he had received. Such matters would be better explained once the documents had been declassified, as ordered above. The fact that the applicant had been able to plan the above-mentioned acts while in detention showed that his intention and possibility to tamper with evidence would be greater if he was released.

In consequence, by a decision of the inquiring judge of 16 October filed in the relevant registry on 20 October 2014, further documents were released.

After viewing them, the applicant considered that the copious documentation that had been made available to him (accounts of companies traceable to him and a series of bank transfers) only concerned the charges against him and not the alleged behaviour which had led the inquiring judge to decide to dismiss his application for bail. On 24 October 2014 the applicant therefore lodged a new appeal, arguing that despite the court’s order he had again not had access to the relevant documentation to challenge his detention as the declassified information did not include any evidence to substantiate the alleged behaviour that had led to his application for release to be denied, namely the alleged falsification of documents, the alleged collusion with family members, the alleged simulation of his coaccused’s illness, and most importantly the alleged walkietalkie conversations. Moreover, despite the relevant time-limits having expired both files remained classified, and the applicant could not have knowledge of the further evidence collected and whether it supported suspicions against him, or the contrary.

By a decision of 6 November 2014 the Judge of Criminal Appeals upheld the detention order, considering that evidence had already been presented to support the decision to keep the applicant in detention. Dismissing the applicant’s arguments, the court found that it was therefore not necessary to repeat the earlier factual basis for the order or to give new reasons, as requested by the applicant, because the previous reasons were still valid, as also confirmed at various levels of jurisdiction. Furthermore, in so far as the applicant had claimed that the decision of 18 September 2014 had been based on elements (concerning his behaviour) that had not been found in the file, the court noted that a judge could ex officio take factors into consideration which had occurred after the issuance of the detention order. Indeed, in the present case, to make sure that there were no reasons to warrant a change in the applicant’s pre-trial conditions, the judge had used information which, although having come to his knowledge by other means, was also found in the public domain (in the press and in publicly available judicial documents concerning the proceedings against M.). He further noted that the requirements of adversarial proceedings at the pre-trial stage, such as the non-disclosure and publication of documents, were different from those in a trial since pre-trial proceedings required a level of secrecy that enabled further investigations if necessary, including international assistance. While equality of arms had to be respected in connection with the debate concerning the measure imposed, the applicant could not obtain the declassification of documents by reiterating the same arguments. That was all the more so when the detention order had to a large extent been based on the fact that there was a risk of tampering with evidence. The applicant’s request had to be seen in the light of the need to preserve the evidence as well as the proper administration of justice. The necessity to maintain the classification of certain information was all the more important when that information concerned crimes for which charges had not yet been brought. It followed that the applicant’s detention could not be revoked nor could further information be declassified. The court also noted that in 2009 Article 5 of law no. 93/2008 had been amended to include a suspension of the time-limit in the case of requests for letters rogatory. In the case at hand requests for judicial assistance had been made, thus in view of the applicable suspension the time-limits had not yet expired.

On 4 March 2015 the applicant asked to be released on the basis that the testimony of a certain P. had been retracted in the proceedings against M. It had been P. who had previously stated that he had seen M. give the applicant a walkie-talkie to communicate with his co-accused. He argued that this meant that the evidence of the alleged misbehaviour on which the prolongation of his detention had been based no longer existed.

On 6 March 2015 the inquiring judge dismissed the application. He held that there had been various grounds for the applicant’s detention, not just the attempts to communicate with others inside and outside the prison. The matters that had been brought to light could not alter the grounds listed and explained in detail in previous decisions.

On 16 March 2015 the applicant challenged that decision, arguing that if the decision to keep him in detention had been based on testimony given in proceedings against M., then such a decision had to be altered once that testimony had been withdrawn.

By a decision of 20 March 2015 the Judge of Criminal Appeals dismissed the applicant’s appeal. The court noted that the detention order of 23 June 2014 had stated that the reasons for considering detention necessary had been the fear of the applicant’s reoffending and tampering with evidence, which had been justified by the role played by the applicant in the organisation and by the complex and effective network he could benefit from. The order of 18 September 2014, apart from relying on the evidence in the proceedings against M., had been based on other, more significant and relevant reasons. The impugned decision of 6 March 2015 had stated that the reasons to deny his application “also” included his attempts to communicate with others. The decision of 13 October 2014 had also stated that the measure had been justified by much more important reasons. Lastly, the decision of 6 November 2014 had also referred to other grounds for his detention. It followed that none of the decisions in question had been based solely on the supposed collaboration of M. Thus, the retraction of P.’s testimony did not render nugatory the fear of the applicant’s tampering with evidence, based on the fact that there had been various, more relevant considerations given in the previous decisions on the matter, and reiterated in a decision of 9 March 2015 (below).

By a decision of 9 March 2015, by which time further charges of money laundering had been brought against the applicant, the inquiring judge prolonged the applicant’s detention. He noted that the proceedings were based on the results of the investigation by the anti-fraud unit and on the analysis of financial operations by the applicant and other people involved in politics (directly or through the use of a plurality of individuals and legal persons). Added to those factors were other elements collected through investigations of suspicious financial operations, as well as witness testimony resulting from questioning and the large amount of documents that had been seized. The investigation as a whole concentrated on the overlap between political and economic activity and criminal activity. Referring to various evidentiary conclusions the court considered that in relation to the further charges of money laundering against the applicant, the evidentiary scenario was robust and exhaustive. It amply demonstrated that the applicant (with others) had participated in the transfer and concealment of funds generated from crimes committed in San Marino or elsewhere.

The risk of reoffending could be presumed given the ease with which huge amounts of money had already been transferred, and the strong support network of which both co-accused could benefit. That meant that less severe measures would not prevent the applicant and his co-accused from re-establishing contact with other people who had facilitated the illegal acts. The fear of flight was all the more realistic given the weakening link between the applicant and San Marino following the incident in question. It was therefore feared that the applicant would seek refuge in jurisdictions with which San Marino had no extradition treaties. It had already been established that one of the foreign accomplices (P.W.S.) had made use of a diplomatic passport to avoid precautionary measures issued against him.

Moreover, video surveillance images showed that the accused had received favourable treatment while in detention, with the director of the prison providing him with company, support and information, and even arranging meetings between the co-accused. That further went to show the status the accused continued to benefit from, which indicated the impossibility of envisaging more lenient measures.

The seriousness of the elements on which the suspicion against the applicant was based (quadro indiziario), the facts and the means by which the crimes had taken place, as well as the dense network of personal relations, the involvement of family members, professionals, State representatives and government personnel who were still in service, led to the conclusion that there was a real risk that evidence, namely documentary evidence, would be tampered with and that pressure would be put on people who had knowledge of the events at issue. Moreover, the accused could still continue to hide the illicit origins of funds through the very complex and ingenious methods already applied.

On 11 and 12 March 2015 the applicant had access to further documentation, concerning particularly letters rogatory, witness statements and interviews.

The applicant appealed against the decision of the inquiring judge of 9 March 2015.

By a decision of 23 April 2015 filed in the relevant registry on 29 April 2015 the Judge of Criminal Appeals upheld the first-instance decision. The judge noted that San Marino law did not impose a time-limit on the duration of pre-trial detention, and considered that the subsequent charges against the applicant had been brought as a result of further investigations. They had shown further money transfers between clearly identified people (including the applicant), as well as the origin of the funds and were connected to the facts behind the first set of accusations. In so far as the applicant had claimed that there had been no proof of conspiracy or of the illicit origin of the funds, and thus that there had been no substantiation of the charge of money laundering, the court held that the original decision of 23 June 2014 had highlighted the existence of a general agreement with permanent effects (constituting the pactum sceleris) between representatives of the State and the business world, as well as the details of its aims and functionalities. It further noted that final judgments confirming that a crime had generated certain funds were not needed to establish money laundering, but that it was enough to have a number of factual elements indicating the supposed crime which generated those funds. In other words the burden of proof to be satisfied was one where the illicit origin of the funds emerged from a logical and coherent interpretation of the evidence. The first-instance decision, based on the transfer of huge amounts of money, through the creation of ad hoc offshore companies and the dispersion of such sums in parcelled and undetectable amounts had therefore been reasonable.

The appeal judge considered that house arrest would not be appropriate given the seriousness of the crimes at issue, the enormous sums laundered, as well as the conduct of the accused during the interrogation and detention period. He noted that the reasons for the applicant’s detention on remand, namely his contacts with other accused persons and the networks he had access to which could facilitate further money laundering and the dispersal of funds, remained relevant.

He dismissed a further application by the applicant for the declassification of the case files on the basis that the only things still classified related to the letters rogatory, which were still ongoing, and other material which was still subject to ongoing investigations.

Following a further request by the applicant, by a decision of 4 May 2015 the inquiring judge released further documentation in light of the fact that the needs of the investigation had diminished. The secrecy regime was however maintained, in part, in connection with certain documents concerning both proceedings at issue as well as other documents and evidence yet to be collected following this decision.

By a decree of 11 May 2015 the applicant was issued with an indictment.

On 14 May 2015 the inquiring judge revoked the decision of 23 June 2014 to keep him in detention in relation to the charges in the indictment of 11 May 2015 as the investigation related to those charges had been concluded. However, he was kept in detention based on a decision of 9 March 2015 in relation to two recently added charges that were still under investigation.

On 28 May 2015 the applicant lodged a challenge to the constitutional legitimacy of the decision of 23 April 2015 by the Judge of Criminal Appeals and the decision of the Commissario of 9 March 2015 in connection with his defence rights at the trial.

By an interlocutory decision of 2 July 2015, the third-instance judge suspended the order for the applicant’s detention on remand and ordered that he be put under house arrest until a decision on the merits of the constitutional challenge had been issued. In the judge’s view such a decision was necessary in order to respect the rights of the defence, particularly the principle of equality of arms, which was to prevail during the trial. He ordered the inquiring judge to set bail and other relevant conditions, as well as the penalties in the event of a breach of such conditions.

On 3 July 2015 the inquiring judge ordered the applicant to be put under house arrest under the following conditions: the applicant could not leave his house, have visits from or communicate with anyone (including by telephone) except for family members living in the house, descendants and ascendants (as well as their spouses or partners), siblings and legal counsel. Medical visits were allowed subject to notification. The applicant was ordered not to communicate with his co-accused (Mrs B.) and had to submit his travel documents to the authorities, in line with a travel ban which was being imposed concurrently.

By a judgment of 15 October 2015 the third-instance judge confirmed the validity of the decisions of 23 April 2015 filed in the relevant registry on 29 April 2015 by the Judge of Criminal Appeals and the decision of the inquiring judge of 9 March 2015. It reiterated its previous findings as to the various and detailed evidence which had been presented and concluded that the same applied in respect of the last two charges against the applicant, which had been the basis for the impugned decision of 9 March 2015. It noted that there existed a huge amount of data, some of which was convincing evidence (dati probanti), some highly indicative (fortemente indizianti), and some merely illustrative yet useful, which together formed an adequate framework of relevant and sufficient evidence on which to base precautionary measures. It followed that the decision to place the applicant in pre-trial detention had at the time been appropriate in view of the material available. It also confirmed its interlocutory decree of 2 July 2015 that detention should cease and that the applicant be put under house arrest for the purposes of ensuring his defence rights in all the proceedings against him, without prejudice to any decision by the inquiring judge on an eventual release.

By an order of 16 October 2015, the inquiring judge revoked the order for the applicant’s house arrest and imposed a travel ban on him, considering that that measure would suffice. It further maintained the classified status of certain acts in the interests of the investigation and the ongoing international judicial assistance.

The applicant was detained from 23 June 2014 in the San Marino prison known as the Carcere dei Cappucini.

According to the applicant, from 8 August 2014 he was detained under a regime in which he was kept isolated for twenty-two hours a day. The applicant alleged that he had not had access to other parts of the prison which would have allowed him to have some form of activity and that he could only shower once a week. Furthermore, for certain periods he had had no access to sanitary facilities and had had to relieve himself in his cell in a container.

The applicant stated that the conditions at the detention facility were inhumane and referred to the reports of the Committee for the Prevention of Torture (“the CPT”) of 2005 on the matter. He noted in particular that the CPT had since 1992 reiterated the need to refurbish and upgrade the facility but that virtually no steps had been taken to that effect.

On 30 June 2014 the applicant filed a complaint about his conditions of detention with the CPT.