No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

Carlo Ranzoni;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicants were born in 1963, 1976 and 1961 respectively and at the time the applications were lodged were detained in the Corradino Correctional Facility, Paola.

The first applicant is serving a sentence of thirteen years’ imprisonment in the Corradino Correctional Facility. The sentence was imposed on him by the Criminal Court on 24 May 2010 for drugrelated offences. The Criminal Court also ordered the applicant to pay a fine of 30,000 euros (EUR) as well as EUR 1,898.21 in fees payable to the court experts, which were to be converted into a further eighteen months’ imprisonment if not paid. Pending proceedings before this Court, the first applicant − having served his sentence − was released from detention in September 2016.

The applicant alleged that he had been detained in Division 6, a highsecurity division, from 12 September 2006 until 23 August 2008. He claimed that during this period he had been unable to use any electronic equipment, to work, study or go to church, and that he had been subjected to psychological torture and inhuman and degrading treatment. He argued that he was neither aggressive nor an addict and there was no reason why he should have been placed in Division 6, which was intended to house very dangerous, problematic, aggressive and addicted prisoners. The Government submitted that the first applicant had been placed in Division 6 following an order from the head of security at the prison, and that, according to documents submitted to the Court, on 1 August 2007 the applicant had been given the option to move to a less secure Division, but had refused. In Division 6 he had had access to the main library of the prison. English lessons and mass were also provided in the Division. He could make phone calls and had had access to the communal TV and DVD player, and TV sets were also allowed in the cells. During that time he had also carried out paid work assembling plastic toys.

Since 23 August 2008 the first applicant has been detained in Division 3, specifically in cell 139 since 19 August 2013.

He complained that the cell windows were very small and that there was inadequate ventilation and no natural light. The water supply was inadequate and he had to use a bucket to flush the toilet.

He claimed to be suffering from symptoms that were the aftereffects of physical and psychological stress. In this regard, the first applicant stated that he had been examined by the prison psychologist, who had prescribed medicine to help him sleep in addition to painkillers. According to the applicant the psychologist had also suggested that he be referred to the psychiatric hospital, but no such transfer had taken place.

The Government submitted that the cells in which the first applicant had been housed in both Division 6 and 3 had measured 365cm x 265cm. They noted that the first applicant had been asked (on an unspecified date) whether he wanted to be transferred from Division 3 but he had replied in the negative. He had also been asked, following communication of the complaint to the respondent Government, whether he had a problem with the window in his cell and the reply had been in the negative. They submitted that the applicant had chosen to paint over the glass shade covering the ceiling light in his cell, and when asked about this, he had stated that he had no need for a ceiling light and for that reason had painted over it. According to the Government, the first applicant had a secondary light that he used and he had stated that it provided plenty of light for him. Moreover, the cell had two vents on opposite sides and the cell door had an aperture which was always left open for ventilation purposes. Relying on an indistinct photo submitted to the Court, the Government submitted that the applicant had covered the ventilation grilles on the wall with masking tape, thereby restricting the ventilation.

The Government submitted that the cell was equipped with a washbasin with running water and an additional wall-mounted tap. According to the Government, when the applicant was asked whether he had an issue with the provision of water, he stated that he no longer had any issues. As far as the use of the toilet was concerned, the Government admitted that Division 3 did not have a combined flushing and WC system and that the inmates had to flush the toilets manually using buckets that were provided in all cells and could be filled from the wall-mounted taps.

The Government submitted that the prison psychologist was not in a position to prescribe medicine or to refer inmates to the psychiatric hospital. They stated that when the first applicant was interviewed by the prison psychologist on 18 October 2006, he had stated that he was sleeping three to four hours per night but that he did not want to take medication. According to the medical records kept by the prison medical unit, none of the doctors who had examined the applicant had found it necessary to refer him to a psychiatrist. The in-house doctor at the prison confirmed that the first applicant was never referred for psychiatric treatment as he was not mentally unstable and had not expressed a desire to be referred. The doctor also confirmed that he could not see that there had ever been such a referral by any doctor in the past. The applicant had met the doctor on four occasions and the latter had treated him for his medical needs but no psychiatric concerns had been observed or reported or expressed. On 1 May 2016 the applicant had refused all treatment, which is the right of any patient and must be respected. The Government submitted that the doctor had also confirmed that the medical notes showed that, whilst in Division 6, the first applicant had also been examined by medical doctors and treatment had been provided as needed.

The second applicant is currently serving a term of imprisonment of eleven years for drug-related offences in the Corradino Correctional Facility. The Criminal Court, which sentenced him on 26 September 2012, had also imposed a fine of EUR 30,000, which the applicant was to pay within two months and which would be converted to a further term of one year’s imprisonment if not paid. The Criminal Court also ordered the second applicant to pay EUR 1,032.71 in respect of costs arising from the appointment of experts. Likewise, if not paid within fifteen days, this sum would be converted into a term of imprisonment. The judgment was confirmed on appeal on 12 December 2013. The applicant has been held in cell 102 in Division 3 since 9 February 2012.

The applicant claimed that he was forced to buy bottled drinking water, as the available water was undrinkable. Since there is no laundry service in prison, he was dependent on donated clothes − which did not always fit him – in order to have access to clean clothing.

The applicant alleged that his cell was old and that he was living in squalor. The cell walls contained asbestos and the old paint was peeling off the walls and the ceiling. Moreover, according to the applicant, the building was infested by rats and cockroaches.

During summer, the cell was too hot and since the cell window was too small, the ventilation was inadequate. On the other hand, during winter the cell was freezing cold. No heating was provided in the cells and the blankets were not adequate. The applicant stated that he had to wear his jacket in order to be able to sleep in winter.

The applicant, a non-smoker, complained that he was not separated from inmates who smoke. He was thus a victim of passive smoking every hour of the day.

According to the applicant he was frequently not given any breakfast and more than 95% of the food served in prison consisted of bread and pasta. He also stated that, although tobacco was easily accessible, fresh fruit was mostly restricted. Occasionally, apples that were past their sell-by date and could not be sold in local supermarkets were brought to the inmates.

The Government submitted that, when specifically asked by the prison authorities whether he had ever lodged a request to be transferred to a newer part of the prison, the second applicant replied that he had never made such a request and that he did not want to be transferred.

They further submitted that the tap water in the cell was fit for human consumption. The water in all parts of the prison facility had been certified by the Public Health Laboratory as being potable (certification submitted to the Court is dated 2015). The water is tested and certified approximately every six months. Division 3 had access to water directly from the mains, that is to say, drinking water. In addition to the availability of the running tap water supply, the inmates had the right to obtain bottled water from the residents’ tuck-shop.

In 2015 the second applicant received EUR 40.79 every four weeks in so-called “Work & Pay” remuneration and gratuity money, as well as EUR 169.49 every four weeks for work he carried out assembling plastic dolls. They stated that at the tuck-shop a six-pack of water cost EUR 2.24 and an individual bottle EUR 0.38.

The Government submitted that inmates were provided with washing powder − at no cost – so that they could wash their clothes. All cells were equipped with a wall-mounted tap and a sink with running water in which to wash their clothes. It was the duty of the inmates to wash their clothing and to be clean at all times.

The Government submitted that the walls did not contain asbestos but were built from Maltese limestone. They stated that the applicant had never painted his cell, nor had he ever requested any materials to do so, even though such material was free of charge. The Government claimed that the applicant had stated that he would never paint his cell himself because he felt that this was the responsibility of the prison officials.

The Government denied that the building was infested by rats and cockroaches, pointing out that pest control treatment had been carried out sixteen times at the prison since 2013 (certificates confirming the application of pest control in specific areas of the prison, including Division 3, were submitted to the Court).

The Government also submitted that, apart from the window, there were also three vents in the cell, along with an aperture in the cell door which was always left open. However, the applicant had fixed a sheet over the window and had covered one of the ventilation grilles on the wall with a piece of paper, thereby restricting the amount of ventilation.

The Government submitted that the second applicant had asked for an extra blanket in January 2012 (while in Division 12) but had then rejected the extra blanket he was given, saying that it was too old. Since the applicant had been in Division 3, he had not asked for any additional blankets.

As to the second applicant’s claim concerning passive smoking, the Government submitted that the second applicant resided in a single cell and had access to fresh air in the adjoining yard for most of the day. The learning zones were all smoke-free.

The Government contested the applicant’s allegation concerning breakfast and the quality of food, stating that breakfast was served as follows: on weekdays all inmates were served with a ham or cheese sandwich and at weekends and on public holidays sandwiches were served with boiled eggs. The inmates had access to unlimited tea and coffee. The Government submitted to the Court the 15 daily menus constituting the lunch and dinner choices over a six month period – the menus showed a variety of meat and fish dishes, as well as pasta dishes and pies. Apart from the menu of the day, inmates could opt for tuna salad, eggs and chips with corned beef, eggs and chips with ham or cheese, omelette with ham or cheese and soup, or both. According to the Government, in cases where an inmate had been ordered to go on a diet by the doctor, pasta with ricotta or steamed fish would be provided at lunchtime and steamed chicken for dinner. Should a special diet be prescribed by the medical doctor, the food thereby indicated would be provided by the prison authorities. According to the Government, fresh fruit was delivered to the prison every Monday and Thursday − approximately eleven boxes of bananas and fourteen boxes of oranges were delivered to the prison and distributed to the inmates weekly.

On 28 April 2015 the second applicant instituted proceedings complaining about his conditions of detention. In particular he noted that, cumulatively, he had been held in the correctional facility since 13 July 2009 and, since that date, had been forced to live in a cell subject to the following hardships: without adequate drinking water; without clothing to keep him warm throughout winter; being dependent on charitable institutions to obtain clothing; the cell contained a significant quantity of asbestos that was causing him physical harm; the cell was infested with rats and cockroaches; the Corradino Correctional Facility lacked adequate sanitary facilities; the cell only had one small window which could not be opened as it was too high up; during winter he was only given one thin blanket although the facility was cold and it was therefore difficult to sleep; all detainees were allowed to smoke wherever and whenever they wanted and, as a consequence, inmates who, like the applicant, are non-smokers, were being subjected to passive smoking; these conditions amounted to a breach of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 36 of the Constitution of Malta.

On 10 November 2015 the second applicant gave oral testimony and submitted that in prison he generally felt hot and had been advised by a prison guard to buy a fan; after asking for water he had been advised to either buy it or drink the water supplied by the correctional facility. Nothing further was submitted in his oral testimony.

The respondent denied the above allegations. According to the medical doctor there were no mental or physical issues, nor had the applicant ever sought medical assistance. As regards the structural complaints submitted by the second applicant, the maintenance official submitted the following evidence in summarised form:

The Division in which the complainant was held consists of sixty cells, one of which is not currently in use; complainant is housed in a cell on his own; his particular cell is a normal one with a standard window and adequate light – being built the way it is for security reasons – and the lighting in the cell is appropriate; when the cells are open, inmates may freely walk in and out of them whenever they want, except when “under report” (that is to say confined to quarters); the complainant had access to open spaces from 2.00 p.m. to 5.00 p.m. just like all other inmates and when so authorised; the Correctional Facility conducts a yearly analysis of the water supply to check that it is fit for human consumption, and the most recent report (that of 2015), conducted by a private laboratory, concluded that the water supply is good for drinking and meets the standard for human consumption; the Facility provides potable water from the mains for the inmates and that water is supplied free of charge; inmates are allowed to buy bottled water; when inmates enter the Facility they are given blankets, sheets, pillows and a mattress; upon request, they are also given extra blankets, however, the complainant had never registered any such request; as regards any infestation of rats and cockroaches, the maintenance official presented a report submitted by a private company on these issues (such inspection is carried out yearly) stating that three rodent control visits were carried out in 2014 and the last visit showed that “everything was under control”. As regards smoking: inmates are allowed to smoke in cells; if some inmates within a particular cell are nonsmokers, then the other inmates are not allowed to smoke in that particular cell; the complainant does not smoke, although the prison doctor affirms that he stated upon admission into the Correctional Facility that he was a smoker.

By a judgment of 28 June 2016 the Civil Court (First Hall) in its constitutional competence dismissed the second applicant’s complaint. It considered that he had failed to submit the evidence that was deemed legally necessary to prove his case − the complainant had merely alleged the existence of the various shortcomings referred to above, but had failed to submit the relevant evidence to substantiate his allegations. By contrast, the evidence submitted in the proceedings by the doctor and the maintenance official satisfactorily showed that the allegations were unfounded.

On the specific issues raised, the court found as follows:

Water supply: the Water Services Corporation submitted adequate proof that the water supply used in the Correctional Facility was potable, fit for human consumption and conformed to the Legal Notice on Water intended for Human Consumption Regulation, 2009, after being microbiologically analysed to this end. However, reference is made to the Chemistry (PHL) Water Analysis Test Report, which stated that the “chloride content exceeds the indicator parameter value in LN 17 of 2009”. Even given the above breach of the statutory limit, the complainant’s allegation is not substantiated as he could make use of viable alternatives to overcome the issue, either consuming warm potable water or buying bottled water from the gratuity money given to him by the facility’s authorities;

Blankets and clothing: it sufficiently results that, upon entering the Correctional Facility, inmates are issued with a residential kit consisting of blankets, sheets, pillows and a mattress; if required, inmates may ask their Division officer for more blankets. As regards clothing, the Facility is supported by charities which are allowed to distribute suitable clothing as required. It is apparent that the complainant never submitted a complaint on these issues.

Asbestos: The complaint submitted by the complainant alleging that there is asbestos in his cell is not borne out by fact; There is therefore no such danger to the complainant’s health and in fact, no such complaint has been submitted by the complainant at any time during his stay in the facility since 2009.

Rodents and cockroaches: pest control by a private company that specialises in this particular activity is constantly and periodically (yearly) undertaken by the Facility’s authorities. According to the treatment report released by the private company involved (dated 4 July 2014) the situation was certified as being under control.

Smoking: the complainant is housed in a cell on his own. However, inmates are allowed to smoke in particular areas and at particular times. In the particular division where the complainant is housed, there is no area where smoking is prohibited, and the complainant is therefore being subjected to passive smoking. Ideally, non-smokers should be segregated from smokers in order to avoid unnecessary hardship but, despite this resulting in an unsavoury situation, it is understood that because of the particular circumstances such obvious segregation might not be practically possible. As a result it cannot be held that this situation reaches the level of severity and intensity required by Article 3 of the Convention or Article 36 of the local Constitution. Furthermore, upon examining the medical records presented in the case file of the proceedings, no medical or physical deterioration was recorded in the health of the complainant as a result of the passive smoking analysed herein

Cell window and consequent availability of adequate light: the cell at issue is a normal Division cell furnished with a standard window and occupied only by the complainant. The window provides enough light in the cell to serve its purpose. The complainant is allowed to leave his cell at the appointed times, and on the basis of the medical reports that were accumulated throughout the years of confinement, no medical conditions have been reported as arising as a result thereof.

No appeal appears to have been lodged against this judgment.

The third applicant is currently detained in the Corradino Correctional Facility. By a judgment of the Criminal Court of 22 June 2010 he was found guilty and sentenced to ten years’ imprisonment and a fine of EUR 30,000, which was to be converted into a term of eighteen months’ imprisonment if not paid, along with EUR 1,289.50 in respect of expert fees. The applicant has been detained in Division 3 since 2010; for the first two and a half years he was held in cell 120, which was a little worse than cell 147 in which he has been housed ever since.

He stated that his cell window was positioned at a height of more than two metres; he therefore had to climb onto something to open it. It had three metal bars which hampered the entry of natural light.

According to the third applicant, the temperature in his cell may be as low as 10 oC during winter, and yet he is not allowed to have a heater in his cell. In winter, the applicant allegedly suffers from arthritis, which causes him unbearable pain. However, he is not able to use Voltaren (which is the only medicine provided by the prison authorities) because he suffers from Hepatitis C.

The applicant alleged that during the summer the cells were infested with cockroaches. Furthermore, his cell became very hot and there was inadequate ventilation. However, prison regulations restricted the number of fans per cell to one. Although the applicant had two fans in his cell, he stated that in summer they merely circulated the hot air and the steel door of the cell prevented any fresh air circulation. By contrast, he noted that the offices of the prison personnel (who were exposed to the same temperatures) were equipped with air conditioning and heating facilities.

The applicant claimed that in winter the hot water supply was not sufficient to cater for the approximately sixty inmates in his Division. Furthermore, the water was not drinkable and he therefore had to purchase bottled water, which was only possible when he had money. He claimed that when he did not have any money, he was obliged to drink the undrinkable water, which caused him skin blemishes. He stated that drinking water was only distributed to the prison personnel, but did not reach the detainees.

The applicant also claimed that inmates did not have access to a laundry and foreign inmates were not given detergents with which to wash their clothes and clean their cells and toilets.

According to the applicant, the building was a hundred years old and its condition was inadequate. Dust fell from the applicant’s cell’s ceiling and walls, which he then breathed in.

The applicant also stated that since the prison did not provide him with tablets for his migraine, he had been obliged to buy such tablets for six years.

According to the Government, the applicant has resided in cell 147 in Division 3 since 8 January 2015, and when asked by the prison authorities if he would like to be transferred to another part of the prison, he declined.

In reply to the second and third applicants’ claims, the Government submitted that the window in the cell could be opened using a tool provided by the authorities or by standing on the bed or on a chair or stool. Moreover, the metal bars at the window were a security feature and did not prevent natural light from entering the cell.

As to the claim concerning heaters, the Government referred to their submissions below (see paragraph 100). They further noted that – due to the climate in the Maltese islands – such requests were not frequent; however, they submitted that due consideration would be given to the matter if a medical reason was found to be at the root of such request.

The Government submitted that the applicant had been diagnosed with right dupuytrens contracture, which is a hand deformity affecting the fingers, so that they cannot be straightened completely. The applicant underwent surgery on the 27 August 2014 which did not result in any complications. The applicant was discharged and prescribed paracetamol and diclofenac. Although the applicant alleged that he suffered from arthritis, he did not visit the medical unit complaining of pain in the joints.

The Government also referred to the submissions made in paragraphs 26 and 29 above). They noted that the window in cell 147 could be opened and closed by the occupant. There were also two vents as well as the aperture in the cell door which was always left open. According to the Government the third applicant had covered one of the wall vents with a sheet of paper, thereby restricting the amount of ventilation, and the aperture in the cell door had been covered with a piece of cardboard from inside the cell. Furthermore, the Government submitted that it was permissible for inmates to have more than one fan in their cell. In fact, most of the inmates had two fans, as did the third applicant.

As to the quality and provision of water, the Government referred to their submissions in paragraph 86 below. They noted that in 2015, the [third] applicant received EUR 36.45 every four weeks in “Work & Pay” remuneration and gratuity money, as well as EUR 207.50 every four weeks for work he carried out assembling plastic dolls, thereby enabling him to buy bottled water at tuck-shop prices.

According to the Government there are no medical records referring to skin blemishes at the Medical Unit. They acknowledged that Division 3 was located within the older part of the facility however they stated that all cells were equipped with the necessary facilities and paint was provided on request so that the inmates could keep their cells in good condition. Relying on photos submitted, the Government considered that the ceiling and walls appeared to be in good condition and there was no flaking.

Lastly, the Government acknowledged that the applicant had had to buy migraine tablets, namely Zolmiles 2.5mg. Purchasing these tablets was standard policy for all inmates who suffer from migraine since inmates are eligible for medicine which is supplied by the Government to all citizens for free, but Zolmiles is not on the free medication list. Nevertheless, as can be seen from documentation submitted to the Court, the Secretary of the Malta Community Chest Fund (MCCF) informed the applicant that the MCCF Board had decided to grant him the full cost of treatment upon presentation of the original receipts. They noted that the third applicant had been referred to the State hospital in December 2011 for a common migraine and medication was prescribed as stated above. On 27 August 2014 he was admitted to the Day care unit at the State hospital, where he underwent surgery, and he was discharged the same day, with a follow-up appointment being scheduled for 11 September 2014.


Remainder inadmissible;No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award

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

The applicant was born in 1938 and lived in Kharachoy. She was the mother of Raisa Kosumova, born in 1967, and the widow of Alikhazhi Kosumov, born in 1932.

On 7 June 2003 at about 5 p.m. an operational investigative group composed of officers of the Vedenskiy District Prosecutor’s Office (“the District Prosecutor’s Office”), the Vedenskiy District Department of the Interior (“ROVD”), the Criminal Police of the Provisional Task Force of the Russian Ministry of the Interior and the Directorate of the Federal Security Bureau for the Vedenskiy District (“UFSB”), were driving several vehicles along the Dyshne-Vedeno-Kharachoy road, returning from Kharachoy to the village of Vedeno. One of the vehicles of the convoy was blown up and thrown down a steep slope by the explosion into the nearby River KhulKhulau. Several officers in the vehicle were wounded and two were killed instantly.

After the explosion, the police officers called for reinforcements. In the following hour and fifteen minutes an armoured unit, a reconnaissance unit of the Vedenskiy District military command and a special operations unit of the FSB arrived at the scene. After the reinforcements arrived, unidentified forces started firing mortars at the forested slopes. Shells were exploding on the roadside less than 100 metres from the explosion scene.

Meanwhile, the applicant’s daughter was driving her GAZ-66 truck from Vedeno to Kharachoy. As she passed the scene of the explosion, mortar shells started exploding on the roadside. She received a wound to the head and died instantly. Two FSB officers were also wounded and hospitalised.

On 16 January 2004 the civil registration office of the Vedenskiy District issued a death certificate (no. 13), certifying that Raisa Kosumova, aged 35, had died on 7 June 2003 in Kharachoy in the Vedenskiy District, from a shell wound to the head.

Around the time the applicant’s daughter died, the applicant’s seventy-year-old husband was ill. Concerned for her husband’s health, the applicant hesitated about telling him about their daughter’s death.

The applicant’s husband found out about their daughter’s death on 1 July 2003. He could not cope with her loss and died two days later, on 3 July 2003.

On 7 June 2003 the District Prosecutor’s Office instituted criminal proceedings into the death of the applicant’s daughter under Article 109 § 1 of the Russian Criminal Code (negligent homicide). An on-site inspection and an inspection of the applicant’s daughter’s body were carried out.

On 10 June 2003 the chief assistant of the District Prosecutor’s Office sent an order to the Vedenskiy District Temporary Department of the Interior (“VOVD”), the Vedenskiy District ROVD and the UFSB requesting them to carry out without delay the necessary operational-search measures for establishing who had been involved in the death of the applicant’s daughter.

On the same day two officers of the Vedenskiy ROVD were questioned about the circumstances of the events of 7 June 2003.

On 17 June 2003 a post-mortem examination of the applicant’s daughter’s body was completed. It was established that she had died from a vast penetrating head wound resulting in brain damage.

On 29 June 2003 the Vedenskiy District UFSB replied to the request of 10 June 2003, stating that it had appeared impossible to identify the individuals involved in the death of the applicant’s daughter.

On 25 July 2003 the applicant was granted victim status in the proceedings. She was questioned on the same day.

On 7 August 2003 the criminal proceedings were suspended. The heads of the Vedenskiy District VOVD, ROVD and UFSB were instructed to carry out the necessary operational-search activities with a view to identifying the possible suspects. The applicant was not informed of this decision.

For the next two and a half years, the applicant attempted, in vain, to find out how the investigation was progressing, and made various enquiries to the competent domestic authorities.

On 20 January 2006, with the help of a lawyer provided to her by the NGO Committee Against Torture, the applicant obtained a reply from the District Prosecutor’s Office and copies of the decisions of 7 June 2003 (instituting criminal case no. 24041), 25 July 2003 (acknowledging her victim status in the proceedings and setting out her procedural rights), and 7 August 2003 (suspending the preliminary investigation for failure to identify those responsible for the events in question).

On 16 December 2006 the proceedings were resumed. The decision of 7 August 2003 was found to be unlawful and the investigation incomplete and superficial. A copy of the decision was sent to the applicant.

On 19 December 2006 the District Prosecutor’s Office requested the head of central archives at the Ministry of Defence to provide copies of extracts from the military action logbook of the Vedenskiy District Military Commandant’s Office for 7 June 2003.

On the same day the investigator of the District Prosecutor’s Office questioned I. P., head of the artillery armament service of military unit no. 6780 based in Vedeno, who stated as follows:

“The following procedure is in place for deploying mortar batteries. Once the command has been received, the mortar battery’s officer-on-duty is given an order which includes [such information as]: the number of shells, target coordinates, the time of firing, and the time of ceasefire. The battery’s officer-on-duty transmits the command to the officer-on-duty, who alerts the crew-on-duty and issues an order in accordance with the command received. As soon as the firing has been ceased, the battery’s officer-on-duty reports to the initiator of the firing, then the latter reports to the Command of the United Group Alignment (“UGA”) ... Within twenty-four hours the battery commander files a report in order to write off the ammunitions used, indicating the initiator of the firing, the time, target coordinates, and the number of shells used. The report is then approved by the military unit commander ... and agreed with the local department of the FSB. I then receive the report, and prepare an ammunitions expenditure account. Next, the account and the report are attached to a secret file that I keep. The file is kept for five years and is then destroyed ... I don’t know if the military units of the Ministry of Defence previously deployed on the territory of Vedeno and Dyshne-Vedeno had the same procedures in place.”

On 27 December 2006 the District Prosecutor’s Office sent requests to the Vedenskiy District ROVD to establish the whereabouts of officers D. G., V. N., V. K., O. L., M. K. and A. A., who had served there on a contract basis in June 2003. On the same day the District Prosecutor’s Office requested the Igrinskiy District ROVD of the Republic of Udmurtiya to question O. Sh., who had served at the Vedenskiy District ROVD in June 2003 as an expert criminologist.

On 28 December 2006 the District Prosecutor’s Office requested the head of the Vedenskiy District ROVD to guarantee the attendance of its officers L. Sh., A. I., Kh. Kh., R. M. and Yus. Sh., for questioning as witnesses to the events of 7 June 2003.

On 3 January 2007 the investigator of the District Prosecutor’s Office questioned police officer Kh. Kh., who stated that on 7 June 2003 he had been wounded in the explosion and taken to hospital in Grozny and could not therefore provide any information about the subsequent mortar attack.

On 4 January 2007 the investigator questioned police officer A. T., who claimed to have left the scene of the explosion to provide help to the wounded and could not therefore clarify the circumstances of the mortar attack.

On 8 January 2007 the District Prosecutor’s Office sought the assistance of the UFSB for the Chechen Republic in establishing the whereabouts of Captain A. K. and Ensign S. Zh., wounded during the mortar attack on 7 June 2003, in order to question them as victims of the attack. On the same day the District Prosecutor’s Office requested the Prosecutor’s Office of the Chechen Republic to provide them with personal data and contact information for two former officers of the Vedenskiy District Prosecutor’s Office, A. P. and A. An., in order to guarantee their attendance for questioning as witnesses to the events of 7 June 2003.

On 15 January 2007 the investigator of the investigations department of the Vedenskiy District VOVD questioned witness S.-Kh. M., who stated that on 7 June 2003 the operational investigative group had arrived in Kharachoy to investigate an attack by members of an illegal armed group on civilians (murder and arson). After the investigative group had left, he, I. D. and A. T. went to the cemetery to bury the victims. From the cemetery they heard an explosion and then saw that a district police vehicle had been blown up. As they approached, they saw that several police officers had been wounded and killed. They started helping by providing first aid and evacuating the wounded. On their way from the gorge to the road leading to Dyshne-Vedeno, he heard detonations. A GAZ-66 truck driving on its way to Kharachoy passed them by. He knew that the driver of the truck was a woman from Kharachoy. Later he knew from the officers who had remained at the scene of the explosion that the detonations he had heard had been mortars. He did not know whether the scene of the explosion had been subjected to shelling by members of an illegal armed group or the federal forces.

On 16 January 2007 the criminal proceedings were suspended for failure to identify those responsible for committing the crime. On 16 February 2007 the investigation was subsequently resumed, but suspended again on 16 April 2007.

In the meantime, on 17 January 2007 the UFSB for the Chechen Republic informed the District Prosecutor’s Office that in 2003 Captain A. K. and Ensign S. Zh. had served in the UFSB as undercover agents, which was why their whereabouts could not be revealed.

On 29 January 2007 witness I. D. was questioned. His statements were consistent with the statement by S.-Kh. M. (see paragraph 31 above).

On 30 January 2007 the acting prosecutor of the District Prosecutor’s Office approached the military prosecutor of military unit no. 20102 for assistance in obtaining information from the UGA as to whether the mortar batteries used on 7 June 2003 had belonged to the military units and divisions deployed in the Vedenskiy District, with an indication of the time of firing, target coordinates and the number of shots.

On 6 February 2007 the central archives of the Ministry of Defence provided a document stating as follows:

“[On] 7 June 2003 [at] 17.10 on the ROVD officers’ return trip in the UAZ-452 truck from the village of Kharachoy a landmine exploded on the 4.5 metre-high slope near the road, one kilometre south-east of the village of Dyshne-Vedeno. Losses: “200” – 2, “300” – 10 pers.”

On 13 February 2007 witness V. N., a former officer of the Vedenskiy District ROVD, was questioned. He stated as follows:

“From 17 January 2003 to 8 January 2006 I served under contract as chief of police at the Vedenskiy District ROVD. [I] participated in counterterrorism operations in accordance with the assignments of [the ROVD].

Indeed, on 7 June 2003 at about 8 a.m. the Vedenskiy District ROVD received information that a group of [approximately] eighty rebel fighters had entered the village of Kharachoy and murdered two women, ... set four houses on fire and committed other crimes.

At about 2 p.m. as part of a militarised convoy of the operational investigative group, I went to the village to carry out urgent investigative measures. The convoy consisted of six vehicles. After completing the investigative measures, as the convoy was returning back to Vedeno near the gorge three kilometres from Kharachoy, a UAZ vehicle was blown up by an explosive device hidden by the road and fell down the abyss from a height of 20 metres ...

The incident was reported to the ROVD and Military Commandant’s Office, and a call for reinforcements was made.

The officers of the operational investigative group participated in the evacuation of those killed and wounded [by the explosion].

After the reconnaissance unit arrived, the road was blocked by an armoured personnel carrier (APC). At the same time, at about 5.30 p.m. mortar shelling of the nearby area began. I don’t know who opened fire. The explosions hit the forested area on the mountain slopes; there were about fifteen explosions altogether. Judging by the sound characteristic of a flying shell, I concluded that the firing was from mortars. I don’t know which direction the firing came from, [since] it is impossible to establish the direction of mortar fire. It is difficult to say whether the shelling was carried out by officers of the federal forces or members of the illegal armed group. After the road was blocked by the APC, a civilian GAZ-66 truck stopped not far from the APC. A woman was at the wheel. During the shelling she remained in the truck. The shelling lasted about fifteen minutes. Approximately halfway through one of the shells exploded between the APC and the GAZ-66 truck. After the shelling stopped it was discovered that the woman driver of the GAZ-66 truck had received a shell wound to the head and died on the spot. Two FSB officers were also wounded; I don’t know their names or the nature of their injuries ...”

On 14 February and 15 February 2007 respectively witnesses A. An., former chief assistant to the Vedenskiy District prosecutor, and A. A., a former officer of the Vedenskiy District ROVD, were questioned.

On 20 February 2007 witness O. L., a former officer of the Vedenskiy District ROVD, was questioned. He stated as follows:

“Since 2002 I had served at the Vedenskiy District ROVD on a contract basis. ...

On 7 June 2003 information was received that during the night a group of rebel fighters (sixty to eighty individuals) had entered the village of Kharachoy and killed two women, burned down several houses and all the motor vehicles ... At about 13.30 the operational investigative group comprising about fifty officers of the police, prosecutor’s office and FSB [in four vehicles] headed to Kharachoy.

At about 14.00 the operational investigative group arrived in Kharachoy. Having split up into several groups, [we] inspected the scene of the incident and gathered the required material.

At about 18.00 we decided to head in the direction of Vedeno. The head of the Vedenskiy District ROVD decided to proceed in groups, with two to three minute intervals, since it was suspected that the rebel fighters might be nearby and could attack the convoy ...

Having driven about 800 metres from Kharachoy, an unarmoured UAZ truck carrying the head of the ROVD and eleven other individuals was blown up behind us. We stopped, as I understood that one of our vehicles had been blown up. Everybody left the truck and dispersed onto the road ... At that moment we were subjected to shelling from automatic firearms coming from the forested area on the other side of the abyss. The abyss was about 100 metres wide. I think that at least two people were firing at us. FSB officers called for reinforcements and artillery support.

Several of our officers started going down the abyss [to provide help to those who were in the UAZ vehicle]. Me and other officers were covering them, firing at the forested area with automatic firearms. The firefight lasted for about twenty minutes and ended after FSB officers launched two grenades in the direction of the forested area with an RPG-7 handheld grenade launcher.

The officers of the prosecutor’s office inspected the scene of the attack; the police officers were helping to take the wounded onto the road. We put the wounded into a GAZEL van, and took them to Vedeno. From the direction of Dyshne-Vedeno a GAZ-66 truck was driving towards us ... At that moment a mortar attack began. About three shells hit the forested area and two landed on the road where we were. We immediately hid from the shells under a URAL truck. The interval between strikes was about a minute. The GAZ-66 truck was already approximately 50 metres from us, when a shell exploded next to it. The truck stopped. At that moment the FSB officers got in touch with the military and asked them to cease fire. We got out from under the [URAL] truck and saw that the woman driver of GAZ-66 truck was dead ... Two of our officers were also wounded; I don’t remember who exactly.

The firing was from mortars, as a characteristic roar was clearly heard before each explosion. I cannot say where the firing was conducted from, since we were in a gorge, and the echo could be heard from everywhere ...”

On 21 March 2007 witness D. G., a former officer of the Vedenskiy District ROVD, was questioned. He stated as follows:

“From 19 June 2002 to 19 June 2003 I served under contract at the Vedenskiy District ROVD ... On 7 June 2003 [as part of the operational investigative group] I went to the village of Kharachoy, where during the night of 7 June 2003 about eighty unidentified [members of an illegal armed group] had killed several women and burned down several houses and cars. On the return trip from the scene of the incident, [on the road running through forested mountain slopes] between the villages of Kharachoy and Dyshne-Vedeno, a landmine exploded, as a result of which a UAZ truck carrying officers of the Vedenskiy District ROVD was thrown down the abyss. Thereupon, [the convoy] was subjected to shelling. The shelling was carried out with automatic firearms coming from the forested mountain area by members of the illegal armed group. Later, there was an artillery attack. [This was clear judging by] the characteristic sound and the presence of characteristic “funnels” on the ground. It is difficult to say which direction the artillery attack was conducted from as the events date back to more than three years ago ...”

On 25 April 2007 the military prosecutor of military unit no. 20102 informed the acting prosecutor of the Vedenskiy District that pursuant to their request of 30 January 2007, an enquiry had been sent to the commander of the UGA and upon receipt of the reply the requested information would be sent separately.

On 16 May 2007 witness V. K., a former officer of Vedenskiy District ROVD, was questioned. With regard to the circumstances of the mortar fire, he claimed to have been unable to say whether the firing was from mortars or artillery equipment, or to say who had conducted it. However, he stated that he had seen shell bursts and estimated that there had been about twenty of them. It was difficult in the circumstances to determine which direction the firing was conducted from.

On 20 September 2007 the applicant’s lawyer challenged the decision of 16 April 2007 suspending the investigation of the case before the Shalinskiy Inter-District Investigation Department (Шалинский межрайонный следственный отдел следственного управления Следственного комитета при прокуратуре Российской Федерации по Чеченской Республике).

On 20 December 2007 its head found that there were no grounds for quashing the decision.

On 21 March 2008 the applicant’s lawyer challenged the above decision before the Vedenskiy District Court (“the District Court”).

On 14 April 2008 the District Court held that the decision of 20 December 2007 had been unlawful, unjustified and premature, and instructed the District Prosecutor’s Office to resume the investigation. In particular, the court pointed out the need to identify the person who had given the order to use heavy weapons without precisely calculating the target area or ensuring that the relevant area had been cordoned off beforehand. Furthermore, it considered it necessary to obtain relevant information from the central archives of the Ministry of Defence, the Ministry of the Interior and the FSB with respect to the mortar fire executed on 7 June 2003.

On 10 July and 28 July 2008 the applicant’s lawyer enquired with the head of the Shalinskiy Inter-District Investigation Department whether the judgment of 14 April 2008 had been complied with. On 20 July and 9 August 2008 respectively he was informed that the investigation of the criminal case had never been resumed.

The applicant challenged the idleness of the Shalinskiy Inter-District Investigation Department before the District Court, which on 19 August 2008 found its inactivity unlawful.

On 7 September 2008 the investigation of the case was transferred from the District Prosecutor’s Office to the Shalinskiy Inter-District Investigation Department.

On 27 February 2009 the investigation was resumed. The following instructions were given to the investigator of the Shalinskiy Inter-District Investigation Department:

“- to join to the material of criminal case no. 24041 as evidence copies of all necessary documents from the criminal case opened into the causing of bodily harm to officers of the Vedenskiy District ROVD and FSB as a result of the explosion of a UAZ-452 vehicle by an unidentified explosive device on 7 June 2003;

- to question as witnesses all the officers of the Vedenskiy District ROVD and FSB driving in the convoy ... at the moment of the mortar attack, including regarding the issue of who in particular had been contacted [to give the order] to use mortar fire;

- to establish the owner of the GAZ-66 truck ...;

- to obtain from the central archives of the Ministry of Defence copies of extracts from the military action logbook of the Vedenskiy District Military Commandant’s Office for 7 June 2003 and join them to the case material;

- obtain from the headquarters of the UGA information on whether the mortar batteries used on 7 June 2003 belonged to military units and military divisions deployed in the Vedenskiy District of the Chechen Republic, with an indication of the time of firing, the target area and the number of shots;

- to carry out other necessary investigative measures; and

- to take a lawful and justified decision on the criminal case based on the results of the investigative measures conducted.”

On 6 March 2009 the investigator of the Shalinskiy Inter-District Investigation Department requested the head of central archives at the Ministry of Defence to provide copies of extracts from the military action logbook of the Vedenskiy District Military Commandant’s Office for 7 June 2003. On the same day the investigator requested the temporary district police (ОГ ВОГО и П МВД России по Веденскому району Чеченской Республики) to obtain information from the UGA headquarters about the mortar batteries used on 7 June 2003 by the military units and divisions deployed in the Vedenskiy District, with an indication of the time of firing, the target area and the number of shots.

On 13 March 2009 the investigator questioned witness R. M., an officer of the Vedenskiy District ROVD, whose statements were similar to the statement by Kh. Kh. (see paragraph 28 above).

On 19 March and 27 March 2009 respectively the investigator questioned the applicant’s sons, A. Kasumov (Kosumov) and A.-K. Kasumov (Kosumov), who stated that their sister had been transporting freight with their family’s GAZ-66 truck, and on 7 June 2003 had been on her way back from the village of Argun where she had been taking some construction stone.

On 4 April 2009 the temporary district police replied to the investigator’s request of 6 March 2009, stating that it did not have the information requested and advising the investigator to apply to the Vedenskiy District Military Commandant’s Office.

On the same day the investigator of the Shalinskiy Inter-District Investigation Department granted victim status to the applicant’s daughter’s sister-in-law, the owner of the GAZ-66 truck.

Between 5 April 2009 and 18 June 2010 the proceedings were suspended and reopened five times.

In the meantime, on 22 April 2009 the head of central archives at the Ministry of Defence replied that the military action logbook of the Vedenskiy District Military Commandant’s Office were classified, so in order for the documents to be sent to the investigator the latter had to provide the head of central archives with a classified postal address.

On 18 June and 30 June 2009 the investigator of the Shalinskiy Inter-District Investigation Department made further requests to the head of central archives at the Ministry of Defence for copies of extracts from the military action logbook of the Vedenskiy District Military Commandant’s Office for 7 June 2003, indicating the address where the requested documents could be sent.

Meanwhile, on 22 June 2009 the investigator questioned witness S. M., chief detective of the criminal investigation department of the Vedenskiy District Department of the Interior (“OVD”), who stated as follows:

“We [undertook steps] to identify those involved in the blowing up of the [UAZ vehicle] and the mortar fire which had caused [the applicant’s daughter’s] death ... Based on the results of the measures taken, [we] identified the individuals who had blown up the UAZ vehicle ..., but the involvement of [those individuals] in the mortar fire was not proved. In this connection we repeatedly submitted requests to the Vedenskiy District military commandant in order to establish the involvement of mortar batteries of the Russian Ministry of Defence deployed in the Vedenskiy District of the Chechen Republic [in the events of 7 June 2003]; however, we have never received any reply.”

On 30 June, 6 July and 14 July 2009 the investigator questioned witnesses A. S., A. Tl. and A. G., detectives of the criminal investigation department of the Vedenskiy District OVD, who gave statements similar to that given by witness S. M.

On the resumption of the proceedings, on 18 June 2010 the acting head of the Shalinskiy Inter-District Investigation Department instructed the investigator to, inter alia, request from the Vedenskiy District Military Commandant’s Office and join to the case file pertinent information on the divisions of the Russian Ministry of Defence deployed in the vicinity of the scene of the events of 7 June 2003 which were armed with mortars, as well as information on the flying range of 82mm and 120mm mortar shells.

On the same date, in compliance with the above instructions, the investigator sent relevant requests to the head of the Vedenskiy District OVD, the Vedenskiy District military commandant, the head of the Vedenskiy District UFSB and the commander of the UGA.

On 21 June 2010 the investigation was suspended. It was resumed on 7 July 2010. It appears that the investigation was suspended and reopened again several times thereafter.

On 4 July 2011 the head of forensics at the Investigative Committee of the Russian Federation Prosecutor’s Office for the Chechen Republic stated that the case material in criminal case no. 24041 had revealed significant shortcomings in the way the preliminary investigative measures had been carried out. Instructions for further investigation were given to the investigator. It was requested, in particular, that all the FSB officers who had been involved in the events of 7 June 2003 be questioned, since it appeared from a number of witness statements that it had been FSB officers who had asked unidentified individuals for mortar fire support, and it had subsequently been at their request that the mortar shelling had been stopped.

On 17 July 2011 the investigation was suspended yet again. It was later resumed on 24 August 2011.


CASE OF STANDARD VERLAGSGESELLSCHAFT MBH v. AUSTRIA

No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)

Erik Møse;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant company, a limited liability company based in Vienna, owns and publishes the daily newspaper Der Standard and the online news portal derstandard.at.

The Carinthian Regional Hospital Operating Company (Landeskrankenanstalten-Betriebsgesellschaft – hereinafter “the KABEG”) is a public-law institution (Anstalt öffentlichen Rechts) which operates five hospitals in Carinthia previously owned by the Region of Carinthia (Land Kärnten).

The KABEG is governed and represented by the board of management (Vorstand) which consists of at least one person and is appointed and supervised by the supervisory board (Aufsichtsrat). The supervisory board consists of three members of the Regional Government, one person who is appointed by the Regional Government and two representatives of the employees of the KABEG. The chairperson of the supervisory board is appointed by the Regional Government.

In 2011 I.M. was the member of the board of management in charge of human resources. K.S. was the chairperson of the supervisory board and leader of the parliamentary group (Fraktionsführer) of the Freedom Party of Carinthia (Freiheitliche Partei in Kärnten) in the Carinthian Regional Parliament (Landtag). His brother, U.S., was Deputy Governor of the Region of Carinthia.

Because of financial problems, rehiring (Wiedereinstellung) of highlevel managers and accusations of tortious interference on the part of politicians in the recruitment process, management errors and corruption within the KABEG, a public debate arose in 2010. On 28 October 2010 the medical director of Klagenfurt Regional Hospital (Landeskrankenhaus), who was in charge at that time, criticised I.M. in a confidential employees’ meeting of the medical doctors of the hospital. Only a few hours later the medical director was dismissed without notice.

On 25 November 2011 on the internet news portal derstandard.at and on 26 November 2011 in the daily newspaper Der Standard the following article was published:

“Spying accusation against KABEG board of management

The [KABEG] board of management ..., [I.M.], is under heavy pressure. According to the minutes of a meeting disclosed on Friday, she is supposed to have ordered the spying on a confidential employees’ meeting [Betriebsversammlung] for doctors of Klagenfurt Regional Hospital herself. These minutes were drafted after the employees’ meeting on 28 October 2010 in the course of a subsequent meeting in the office of the board of management and they state: ‘[I.M.] explains that she has, as a precaution, sent an informant, who wrote up a transcript [Wortprotokoll].’

‘Stasi methods’

Prominent victim of this informant was the medical director, [M.A.], who had accused the KABEG management of using ‘Stasi methods’ against insubordinate doctors. M.A. was dismissed without notice immediately after the employees’ meeting. The informant was a trainee lawyer under [I.M.]’s lawyer. [I.M] always claimed that she had not been aware of this operation, that the KABEG lawyer had acted on his own volition. [He] took the blame and therefore had to explain himself before the bar association. K.S. ([Freedom Party of Carinthia]), chairperson of the supervisory board, who also put pressure on journalists in respect of critical reports on the KABEG, is supposed to be the spiritus rector of the spying operation.

The now disclosed minutes (which are at the disposal of Der Standard) cast doubts on [I.M.]’s version ...”

On 10 January 2012 K.S., referring to the statement, that he was supposed to be the spiritus rector of the spying operation, initiated private prosecution proceedings for defamation under the Media Act (Mediengesetz) against the applicant company. He claimed compensation and demanded publication of the judgment, arguing that the statement had been a statement of fact, lacked any factual basis and was untrue.

The applicant company argued that the statement was a critical but permissible value judgment and had had a factual basis: K.S. had cultivated a friendship with I.M. and had supported her in the ongoing public debate; moreover, he had been associated with other spying accusations and had even announced in public that he would investigate and spy on politically unpopular individuals in order to get information to discredit them in public. The article did not allege that K.S. had personally initiated or ordered that a spy be sent to the employees’ meeting; however, by regularly applying and publicly announcing such practices he had created a climate and environment where such unfair methods were anticipated as “normal” and commonplace.

On 21 March 2012 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) rejected K.S.’s claims under the Media Act as inadmissible, reasoning that the term spiritus rector was neither defamatory nor mocking, nor did it allege specific conduct. Being called a spiritus rector meant being seen as a spiritual or ideological guide (geistiger oder weltanschaulicher Führer), which, especially for politicians, could not be seen as a negative quality and only suggested that others felt inspired by this person.

On 18 April 2012, following a prior complaint lodged by K.S., the Vienna Court of Appeal (Oberlandesgericht) quashed the Regional Criminal Court’s decision of 21 March 2012 and ordered it to initiate proceedings under the Media Act against the applicant company. It held that, taking into account the contents of the whole article, the statement suggested that K.S. had been the “spin doctor” (Ideengeber) of the spying operation. Based on this interpretation, the article would qualify as defamatory and originate a claim under the Media Act. It was thus required to examine the factual basis of the article.

In the subsequent proceedings before the Regional Criminal Court the applicant company explicitly declared that it would not provide evidence as to the truth (Wahrheitsbeweis) of K.S. having acted as a spin doctor or the like. It maintained its position that the statement was a value judgment.

On 15 May 2012 the Vienna Regional Criminal Court ordered the applicant company, under Section 6 of the Media Act, to pay 3,000 euros (EUR) (EUR 1,500 for each publication of the article) in compensation to K.S. on account of defamation, and to publish the judgment. Assuming that the statement was to be understood in the way set out in the Court of Appeal’s judgment of 18 April 2012, and noting that the applicant company had not provided evidence as to the truth of the allegation, it found that the article and statement qualified as defamation within the meaning of Article 111 § 1 and 2 of the Criminal Code (Strafgesetzbuch).

On 26 September 2012 the Vienna Court of Appeal dismissed the applicant company’s appeal against this decision. It held that describing someone as the spiritus rector of a negatively connoted spying operation had left no doubt for the readers addressed that the suggestion had been that this person had been the initiator and spin doctor of this operation. The statement implied a “specific and sufficiently concrete” (spezifisch und hinreichend konkretisiert) accusation of conduct and thus qualified as a statement of fact, as to the truth of which the applicant company had failed to provide evidence. As regards the applicant company’s complaint about the amount of compensation granted, the Court of Appeal held that it did not even amount to 10% of the maximum compensation permitted by law, and was not excessive in relation to the circulation of the newspaper and the online news portal.

That decision was served on the applicant company’s counsel on 24 October 2012.

The applicant company subsequently lodged an application for renewal of the criminal proceedings (Erneuerung des Strafverfahrens) under Article 363a of the Code of Criminal Procedure (Strafprozeßordnung) with the Supreme Court (Oberster Gerichtshof), complaining under Article 10 of the Convention of a violation of its right to freedom of expression.

On 26 June 2013 the Supreme Court rejected the application. It stated that the Court of Appeal’s considerations as to the qualification of the statement as a statement of fact did not raise concerns, and held that such statements of fact, which had not been proven to be true and were thus defamatory, were not protected by Article 10. It concluded that the interference with the applicant company’s right to freedom of expression had been prescribed by law, had pursued the legitimate aim of protecting the reputation of others and had been necessary in the circumstances of the case, in particular taking into account the low amount of compensation granted.

On 10 January 2012 K.S. also lodged an injunction suit under Article 1330 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) against the applicant company, requesting that the latter be ordered to refrain from alleging or disseminating that K.S. had been or was supposed to have been the spiritus rector of a spying operation on a confidential employees’ meeting for doctors of Klagenfurt Regional Hospital.

On 5 March 2012 the applicant company requested that the proceedings be suspended until the termination of the proceedings under the Media Act (see paragraphs 12 et seq. above), arguing that the assessment of the factual elements in those proceedings, which would presumably lead to a rejection of K.S.’s application, would have a binding effect on the civil proceedings.

On 19 March 2012, during a hearing, the Vienna Commercial Court (Handelsgericht) suspended the proceedings until the termination of the proceedings under the Media Act, holding that they should only be continued at one party’s request.

At K.S.’s request of 1 October 2012, the Commercial Court resumed the proceedings on an unspecified date.

On 19 November 2012 the Commercial Court granted the injunction, finding that the criminal conviction in the proceedings under the Media Act had binding effect on the injunction proceedings.

On 29 June 2013 the Court of Appeal dismissed the applicant company’s appeal against that decision. It confirmed that, in line with the Supreme Court’s case-law, the conviction in the proceedings under the Media Act was binding, both in relation to the established elements of facts and the legal assessment. In particular, a final conviction under section 6 of the Media Act establishing that a particular media content fulfilled the objective elements of defamation would determine – in a way that was binding and not revisable in the civil proceedings – that the audience understood the media content as defamatory. Referring to the Supreme Court’s case-law on the issue, the Court of Appeal did not grant leave to lodge an ordinary appeal on points of law (ordentliche Revision) with the Supreme Court.

The applicant company did not lodge an extraordinary appeal on points of law (außerordentliche Revision) with the Supreme Court.


Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra

The applicant was born in 1986 and lives in Krasnodar.

On 4 November 2003 the applicant, who was 16 years old at the time, and his brother were stopped by Krasnogvardeyskiy district police officers Ch. and Kh. at a petrol station in the village of Bolshesidorovskoye in the Adygeya Republic. The applicant submitted that the events had taken place in the context of tense relations between his family and those police officers.

He described the events as follows. He and his brother were pushing their broken motorcycle to take it to a friend for repairs. They were verbally insulted by Ch. and Kh. Ch. then sat on the motorcycle and asked them to push it. Following their refusal, the brothers were subjected to physical violence. Kh. seized the applicant by his neck, knocked him down and started strangling him. He hit the applicant’s head against the ground several times, dragged the applicant to a police car without releasing his grasp around his neck, hit his head against the car, punched him in the face and pushed him into the car. The applicant’s and his brother’s requests that their parents be informed or that they be taken home because the applicant felt unwell were disregarded by the police officers. The officers drove to the garage of a local collective farm and then to the Krasnogvardeyskiy district administration, where the applicant’s father found the applicant and his brother and took them home.

According to an administrative-offence record drawn up by Officer Kh., at 2 p.m. on 4 November 2003 the applicant’s brother was apprehended for driving a motorcycle without a driving licence. The applicant’s brother noted his disagreement, stating in the record that he had not been driving the motorcycle but had been pushing it.

According to an administrative-offence record drawn up by Officer Ch., at 3 p.m. on 4 November 2003 the applicant used obscene language in a public place, namely the petrol station in Bolshesidorovskoye. Therefore, the applicant’s father committed an administrative offence by failing to properly bring up the applicant. Relying on the police officer’s record, the Committee on Minors at the Krasnogvardeyskiy district administration subsequently found the applicant’s father guilty of that administrative offence. The Krasnogvardeyskiy District Court, however, granted the applicant’s father’s appeal against that decision, finding that the decision, the administrative-offence record and other material lacked any evidence of the applicant’s father’s failure to properly raise the applicant, and that, on the contrary, all his children had been well cared for, had studied hard at school, and the family was well thought of. The applicant was heard by the court and denied having used obscene language. The court quashed the decision and terminated the administrative proceedings against the applicant’s father (judgment of 5 January 2004).

At 5.45 p.m. on 4 November 2003 the applicant was examined by a surgeon at the Krasnogvardeyskiy District Hospital, who recorded three abrasions on his neck which were 3 to 10 cm long, and a contusion to his right elbow.

On the same day the applicant’s mother complained to the Krasnogvardeyskiy district prosecutor’s office that the applicant had been subjected to ill-treatment by the police officers.

On 5 November 2003 a forensic medical expert from the Adygeya Republic Forensic Medical Bureau examined the applicant at the request of an investigator of the prosecutor’s office. The expert recorded abrasions on the applicant’s neck which were 7 and 12 cm long, a bruise on his right elbow measuring 5 by 4 cm, and a bruise on his lip. The expert concluded that the injuries could have been inflicted on the previous day, by fingernails as regards the abrasions on the neck, and by a hard blunt object as regards the bruises.

On 6 November 2003 the applicant was examined by doctors at the Krasnogvardeyskiy District Polyclinic. He complained of a headache, dizziness, pain in his throat and pain when swallowing, pain in his neck area, lips, left eyebrow and right elbow. The doctors recorded oedema of both lips with bruises, oedema in the area of the left eyebrow and right elbow, and oedema, abrasions and bruises in the area of the neck. They diagnosed him with multiple contusions of the face, neck, larynx and laryngeal cartilages. Following an X-ray examination he was further diagnosed with a fracture of both branches of the hyoid bone.

In an additional opinion of 2 December 2003 the forensic medical expert stated that the fracture of the branches of the hyoid bone, the oedema and the abrasions on the neck could have been caused on 4 November 2003 by pressure from fingers, and had resulted in harm to the applicant’s health lasting up to twenty-one days, that is, minor harm to his health.

Investigators of the Krasnogvardeyskiy district prosecutor’s office refused to institute criminal proceedings against the police officers for lack of the elements of a crime in their actions. The investigators’ refusals (dated 13 November 2003, 21 November 2003, 28 December 2003, 7 February 2004, 27 April 2004, 6 June 2005, and 3 November 2005) were annulled by their superiors at the prosecutor’s office, because the pre-investigation inquiry, on which the refusals were based, was considered incomplete.

In the refusal of 7 February 2004 O., an investigator, found that the applicant’s injuries had been the result of the use of physical force by Officers Ch. and Kh. in order to apprehend the applicant, who had “disobeyed their commands and attempted to escape”. The investigator held that no criminal proceedings should be brought against the police officers for lack of the elements of a crime in their actions under Article 115 of the Criminal Code (minor harm to health), intent – which was lacking in their actions – being one of those elements. Nor did the investigator consider that there was sufficient information indicating the elements of a crime in the police officers’ actions under Article 286 § 1 of the Criminal Code (abuse of authority).

In a decision of 27 February 2004, setting aside the refusal of 7 February 2004, a senior prosecutor from the Adygeya Republic prosecutor’s office held that, in the course of an additional inquiry, the investigator should establish exactly what each of the police officers had done when restraining the applicant and placing him in their car, in particular if the injury had been inflicted by seizing the applicant by his neck. The prosecutor also held that it was necessary to give a legal assessment of the question whether there had been any need to apprehend the applicant, who was minor, on account of his swearing. The prosecutor noted that the relevant administrative proceedings had been brought against the applicant’s father, and no statements concerning those events had been taken from the applicant.

In the most recent refusal of 29 November 2005 the defects identified by the prosecutor were not rectified. O., the investigator, maintained his findings made in the decision of 7 February 2004, stating that the applicant’s allegations had not been confirmed by the results of the preinvestigation inquiry.

The investigator relied on the police officers’ explanations that at 2 p.m. on 4 November 2003 the applicant’s brother had disobeyed their command to stop a motorcycle without a registration plate which he had been driving. The applicant had been sitting on the passenger’s seat. After the police officers had finally managed to stop the motorcycle at the petrol station, the applicant’s brother had refused to produce his driving licence. The police officers had been drawing up an administrative-offence record when the applicant had started walking away, swearing at them. They had “restrained him in order to prevent his escape”.

The investigator referred to explanations by Sh. that he had seen the police stopping the motorcycle at the petrol station, that he had been invited to act as an attesting witness and sign a record of the motorcycle’s seizure which the police had drawn up on the spot, and that the applicant’s brother had refused to sign the record and receive a copy of it.

The investigator’s decision also referred to statements by other third parties, in particular B., who worked at the petrol station and stated that he had seen the applicant falling onto the tarmac himself, resisting the police officers taking him to their car and trying to escape. B. stated that the police officers had not beaten up or strangled the applicant, but had “restrained him”. The applicant’s mother’s complaint that B. had given false statements was dismissed by an investigator of the Krasnogvardeyskiy district prosecutor’s office on the grounds that false explanations given in the framework of a pre-investigation inquiry, as opposed to false statements given in the course of a criminal investigation, were not punishable as a criminal offence (decision of 10 January 2004).

On 23 September 2005 the applicant’s mother lodged an application (жалоба) with the Krasnogvardeyskiy District Court (“the District Court”). She complained that on 27 April 2004 the Krasnogvardeyskiy district prosecutor’s office had refused to institute criminal proceedings against Officers Ch. and Kh. Its decision had been unfounded and on 3 May 2005 it had been set aside by the Prosecutor General’s Office. Since then she had not been informed of any new decision. She argued that the police officers’ actions, as a result of which the applicant had sustained serious bodily injuries, had been unlawful, and that criminal proceedings should be instituted against them.

On 26 September 2005 the District Court decided that the application fell to be examined under the rules of civil procedure, and gave the applicant’s mother a time-limit for complying with those rules, in particular in relation to paying a court fee. The applicant’s mother requested that her application be examined under the rules of criminal procedure, notably Article 125 of the Code of Criminal Procedure (“the CCrP”). On 7 December 2005 the District Court discontinued the civil proceedings and decided to examine the application under Article 125 of the CCrP.

In its decision of 16 December 2005 the District Court examined the investigator’s decision of 29 November 2005 and endorsed the investigator’s conclusions that the police officers had acted lawfully. It also noted that the applicant, no longer a minor, should have applied to court himself. For those reasons, it rejected the application.

The applicant’s mother appealed against the decision, seeking, inter alia, to declare the refusal to institute criminal proceedings of 29 November 2005 unlawful and unfounded. On 31 January 2006 the Adygeya Republic Supreme Court quashed the decision, noting that the District Court should not have examined the application, as the applicant’s mother had lacked authority to act on the applicant’s behalf, and should not have examined the lawfulness of the police officers’ actions in its review under Article 125 of the CCrP (which concerned the lawfulness of investigators’ decisions). Since the District Court had not examined whether the refusal to institute criminal proceedings of 29 November 2005 was lawful and well-founded, the Adygeya Republic Supreme Court could not deal with that issue on appeal.

On 8 February 2006 the District Court held that the application did not fall to be examined under Article 125 of the CCrP and discontinued the proceedings. On 21 March 2006 the Adygeya Republic Supreme Court upheld that decision upon an appeal by the applicant’s mother, reiterating that she had lacked authority to act on the applicant’s behalf and that the lawfulness of the police officers’ actions could not be reviewed under Article 125 of the CCrP. It further stated that in her application she had not formulated a complaint that the refusal to institute criminal proceedings was unlawful or unfounded.


Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

The applicant, Mr Rosario Sofia, is an Italian national who was born in 1966 and lives in Catania. He was represented before the Court by Mr C. Cali, a lawyer practising in Catania, Italy.

On 1 December 2008 the applicant and G.S., his brother, arrived at a San Marinese bank (Banca di San Marino) where G.S. held a current account (hereinafter “the current account”), which he had opened on 30 October 2006.

G.S. on that day withdrew 850,000 euros (EUR), which had been deposited in the current account earlier. At the same time, the applicant asked the bank employee dealing with them to issue sixty-eight bearer savings books (libretti al portatore) in his name. The two brothers asked the bank employee to then deposit the money G.S. had just withdrawn into the sixty-eight bearer savings books (in particular, they requested that each savings book have an equal amount of EUR 12,500).

Asked by the bank employee for the reason for such operations, the applicant and his brother explained that they feared that ongoing criminal proceedings against G.S. in Italy could lead the Italian judicial authorities “to request information” (potrebbe determinare una richiesta di informazioni).

Despite the suspicious nature of the operations and the explanation provided by the applicant and his brother, the director of the bank branch gave his consent to carry out the requested transactions, despite his duty under anti-money laundering laws not to engage in operations that appear suspicious. However, he later reported them to the Financial Intelligence Agency (Agenzia di Informazione Finanziaria, hereinafter “the AIF”), the national authority responsible for combatting money laundering, among other tasks.

In a report of 17 February 2009, received by the San Marinese courts the day after, the AIF informed the investigating judge (Commissario della Legge, hereinafter the Commissario) of the above-mentioned facts, which in the AIF’s opinion possibly constituted money laundering. In particular, the agency emphasised that G.S. had deposited the money in the current account by paying in several cheques which could not be considered “compatible” with the professional and commercial activities he had declared to the bank. In fact, the information provided to the bank in 2006 had stated that his job consisted of trading in clocks, silver and items made from gold. The trading had originally been done in his own name, as a natural person, and subsequently through a company called S., which had been liquidated in 1996. After that, it had continued through a company called S.P., in which he had never held any administrative position or share capital (the company had in formal terms been administered by his wife). That company had ceased business in 2008. Since most of the cheques which had made up the above-mentioned sum had been deposited in or after 2008, the AIF considered that the transactions had not been justified by or been in line with the above-mentioned facts.

On 19 February 2009 the authorities in San Marino instituted criminal proceedings no. 204/2009 against the applicant for money laundering.

On 9 March 2009 the Commissario, relying on Article 29 of the 1939 bilateral Convention on Friendship and Good Neighbourhood between San Marino and Italy (Convenzione bilaterale di Amicizia e Buon Vicinato tra San Marino e Italia), reported the suspected operations to the Italian National Prosecutor against the Mafia (Procura Nazionale Antimafia) and requested information concerning the applicant and his brother.

On 13 October 2009 the requested judicial authority in Italy informed the Commissario that there were ongoing proceedings for usury against the applicant’s brother, as well as V. and T, following a criminal complaint submitted by B., a jewellery trader. The applicant was also considered by the Italian financial police (Guardia di Finanza) to be very close to various members of a local Mafia group in Catania.

On the basis of that information, the Commissario sent a formal letter of request on 23 October 2009 to the public prosecutor in Catania for assistance in finding out if the money deposited in the current account in the San Marinese bank could possibly have been related to the offence of usury or to any other crimes in any way related to G.S.

By a note of 21 November 2009 the Catania public prosecutor replied to the Commissario. He stated that after examining the San Marinese bank documents attached to the letter of request and comparing those documents with information at his disposal, the money deposited in the San Marinese current account had to be considered as proceeds of the offence of usury or related to it.

On 21 December 2009, following a request by the Commissario, the AIF provided the judicial authority with further information regarding the bank operations carried out by the applicant and his brother.

By a decision of 4 February 2010 the Commissario informed the applicant (judicial notice), that he was under investigation for money laundering under Article 199 bis of the Criminal Code for the actions taken in San Marino on “1 January 2008” (the first page of the same decision gave the correct date of 1 December 2008). According to the prosecution, the opening of the bearer savings books and the deposit of the money from the current account, held by the applicant’s brother, into the bearer savings books in equal shares of EUR 12,500 each for an overall sum of EUR 850,000 had constituted acts of concealment, transfer and substitution of money, aimed at hiding the criminal origin of the funds, which were the proceeds of the offence of usury.

By the same decision, the Commissario also ordered the seizure of the EUR 850,000 deposited in the sixty-eight bearer savings books as well as the physical seizure of the savings books themselves, if they were in the possession of the bank, considering the money to be the corpus delicti of the offence of money laundering. Moreover, the Commissario ordered the bank to transfer to it within fifteen days a copy of all the documents relating to the savings books and to provide any other useful information (including the precise final balance of each book).

On the same day the Commissario also asked the AIF and the judicial police to carry out further investigations.

The results of those investigations were eventually reported by the AIF on 21 April 2010. It stated, inter alia, that G.S. had opened a first bearer savings book (no. 1) on 4 February 2002 and had deposited EUR 579,352.36 through three deposits of cash. Following a series of other operations the bearer savings book (no. 1) had been closed on 30 October 2006. On the same day, G.S. had opened a current account, in which he had deposited the money left in bearer savings book (no. 1) and had over time deposited 683 cheques worth a total EUR 1,817,406.14.

According to the AIF, B. had written or been the beneficiary of seven of the above-mentioned cheques for an overall sum of EUR 37,890, V. had written or been the beneficiary of thirty-six cheques (EUR 99,373), T. of twenty-six (EUR 78,375) and S.S. of one (EUR 1,500).

On an unspecified date the applicant lodged a complaint with the Judge of Criminal Appeals (Giudice d’Appello Penale) against the Commissario’s decision of 4 February 2010. He applied, firstly, to have the whole decision annulled on the ground that it had not complied with the time-limit provided by law. Secondly, he sought the annulment of the seizure since it lacked the requisite fumus delicti (presumption of a sufficient legal basis) and because the Commissario had seized all the money in the applicant’s bank accounts and not just that directly linked with the alleged “predicate offence” (usury). In the applicant’s opinion the Commissario should have seized only EUR 37,890 and not the entire EUR 850,000 given that in the report submitted by the AIF on 21 April 2009 only EUR 37,890 had definitely been considered as the proceeds of usury against B.

By a decision of 21 September 2010 a Judge of Civil Appeals in his capacity as Judge of Criminal Appeals dismissed the complaint. The judge held that the seizure decision had been delivered within the time-limit. He further held that the two prerequisites for the application of the disputed seizure, namely fumus delicti and periculum in mora (a danger in delay), had been in place.

Moreover, the judge noted that even if the AIF report had limited the corpus delicti of the usury in question to EUR 37,890, such a limitation did not exclude the possibility that further amounts of money transferred into the savings books could also possibly have been profits from the alleged predicate offence. In the judge’s view, if that were not the case it was difficult to fathom why the applicant had transferred the whole sum into the savings books and not just EUR 37,890.

The applicant appealed to the Third-Instance Criminal Judge (Terza Istanza Penale) against the seizure decision and the decision of the Judge of Criminal Appeals. In particular, he highlighted, inter alia, the lack of proportion between the amount of money seized and the sum considered, in the Italian proceedings and the AIF report, to have been the proceeds of usury.

The Third-Instance Criminal Judge dismissed the appeal on 29 November 2010 after an oral hearing held the same day. He noted that there was no reason to believe that the predicate offence (usury) in the criminal proceedings in Italy against the applicant’s brother was the only offence ascribable to him.

On an unspecified date the applicant was served with a bill of indictment, which read: “...for the offence ex Articles 50 and 199 bis of the Criminal Code ... since with multiple actions connected between them by a common criminal plan, in the Banca di San Marino, in the presence of his brother, [the applicant] opened sixty-eight bearer savings books of EUR 12,500 each, where he transferred the overall sum of EUR 850,000 using money simultaneously (contestualmente) withdrawn by his brother [G.S.] from his current account, in which the latter had deposited sums deriving from usury or having a criminal origin ... acts committed in San Marino, on 1 December 2008”.

On an unspecified date during the applicant’s trial he was questioned at a public hearing by the first-instance judge on the merits (namely, the Commissario della Legge in his capacity as judge on the merits in inquisitorial proceedings). The applicant stated that the money that had been seized was profit from his work and savings and that he had decided to deposit it in a San Marinese bank rather than an Italian one in order to take advantage of the San Marino tax system. The applicant also explained that transferring the money had been the result of his reckless behaviour (“frutto di un comportamento sconsiderato”) after advice from the same bank manager who had later reported the operation to the AIF.

In order to prove that the money did not have a criminal origin, the applicant submitted a report prepared by a financial expert, who also took part in a subsequent hearing and was questioned by the judge. In particular, the expert stated in the report that the money deposited in the San Marinese current account had to be considered as the result of tax evasion (redditi non dichiarati), which at the time of the facts was an administrative rather than a criminal offence in San Marino. The origin of the assets had therefore not been “criminal”, as required by law, to amount to the crime of money laundering.

By a judgment of 10 January 2013 the applicant was found guilty of money laundering and sentenced to five years and six months’ imprisonment. He was also fined EUR 30,000 (multa a giorni) and prohibited from holding public office and exercising political rights for two years. In addition, the judge ordered the confiscation of all the seized money (indicated by the judge as EUR 853,304.80), in accordance with Article 147 of the Criminal Code.

On 11 December 2013 the judgment and its reasoning was filed with the court’s registry.

The first-instance judge held that previous case-law had established that in order to find someone guilty of money laundering it was not necessary to determine the specific legal classification of the predicate offence, perpetrator or victim. It sufficed instead to have evidence (prova logica) of the criminal origin of the proceeds in question. Hence, the acts leading to the predicate offence could be described in the charges and eventually ascertained during the trial, without the details of the manner in which the predicate offence had been committed (anche solo per sommi capi quanto alle modalita’ di commissione).

The first-instance judge considered that the alleged tax evasion argument used by the defence had been an acknowledgment that the assets involved had been the result of the embezzlement of the profits of the two companies through which G.S. had worked and had de facto confirmed the criminal origin of the money.

Moreover, many factors had demonstrated G.S.’s involvement in acts of usury, inter alia, the issuing and cashing of hundreds of cheques, the cashing of cheques with increased amounts as substitutes for ones not paid out, the cashing of cheques in exchange for high-denomination banknotes and the brief period of time in which all such operations had been carried out. All those elements, together with the results of the Italian investigations, had, owing to their relevance and repeated nature, demonstrated usury, regardless of the results of the Italian criminal proceedings.

On an unspecified date the applicant lodged an appeal against the first-instance judgment. He complained, inter alia, about the lack of clarity in the charges, which had not contained any precise description of the predicate offence (apart from a reference to the offence of usury, which had anyway been connected with only a very small part of the confiscated money). In his opinion, that had amounted to a violation of his right of defence, as provided, inter alia, by Article 6 § 3 (a) of the Convention.

The applicant also challenged the first-instance judge’s finding that the confiscated money had had a criminal origin and the fact that no other predicate offence (apart from usury, which in his opinion had to be considered as relating to only a small part of the assets) had been specified and identified by the judgment.

In addition, the applicant argued that the reason given by the first-instance judge on the specific point of the criminal origin of the money had led to a reversal of the burden of proof. In fact, the first-instance judgment had noted that the applicant had not submitted any evidence of the lawful origin of the money. It followed that there had been a violation of the presumption of innocence and of the applicant’s right of property.

The applicant also argued that the wording of Article 147 of the Criminal Code in force at the time of the facts (December 2008) had provided for confiscation of only the price, the product and the profit of the offence. According to the defence, the judge had applied an amendment to that provision which allowed the confiscation of assets whose legitimate origin had not been proven by the person found guilty. That being so, a finding of guilt should have led to the confiscation of only EUR 37,890, namely only those assets whose criminal origin (usury to the detriment of B.) had been shown.

By a judgment of 3 February 2015, filed with the registry on 4 February 2015, the Judge of Criminal Appeals upheld the first-instance judgment, reducing, however, the penalty. The applicant was sentenced to two years’ imprisonment and prohibited from holding public office and exercising political rights for one year. The fine was reduced to EUR 5,000.

The judge also upheld the order to confiscate all the money deposited in the savings books since the criminal origin of those assets had been proven (with reference to usury and embezzlement by the applicant’s brother to the detriment of the Italian companies). Moreover, the laundering had concerned all the money and not just part of it, therefore the applicant could have foreseen that the whole sum could be confiscated.

The judge noted that the law did not require that charges or final judgments refer to a specific legal classification of the predicate offences at the origin of money laundering. Nor was it necessary to specify when an offence had been committed or by whom. The only relevant factor was the determination beyond a reasonable doubt that funds had a criminal origin (provenienza da misfatto). Accordingly, in order to find the applicant guilty of money laundering it had been sufficient for the judge to ascertain that the money allegedly subjected to laundering had not had a lawful origin, that is it had been possible to categorically exclude through evidence and logical deductions that the origin of the proceeds had been anything other than criminal.

Article 199 bis of the Criminal Code, as amended by Chapter 2, Article no. 7 of Law no. 28 of 26 February 2004, and by Article 77, Paragraph 2 of Law no. 92 of 17 June 2008, as applicable at the time of the facts (1 December 2008), read in so far as relevant as follows:

“(1) A person is guilty of money laundering, where, except in cases of aiding and abetting, he conceals, substitutes, transfers or co-operates with others to so do, money which he knows was obtained as a result of crimes not resulting from negligence or contraventions (misfatto), with the aim of hiding its origins.

(2) or whosoever uses, or cooperates or intervenes with the intention of using, in the area of economic or financial activities, money which he knows was obtained as a result of crimes not resulting from negligence or contraventions (misfatto).”

(3) If the crime at the origin of the laundered money has been committed in a foreign country, such a crime has also to constitute a prosecutable criminal offence in San Marino (deve essere penalmente perseguibile e procedibile anche per l’ordinamento Sammarinese).

(7) The judge applies the penalty provided for the predicate offence if it is less heavy.”

Article 147 of the Criminal Code, as amended by Article 5 of Law no. 28 of 26 February 2004, read at the time of the commission of the offence in the present case (December 2008), in so far as relevant, as follows:

“1. In a judgment of conviction, the Judge shall order (il giudice ordina) the confiscation of items belonging to the convicted person which were used or which were intended to be used to commit the crime, as well as the confiscation of the price, the product, and the profit of the crime.

In the judgment of conviction the Judge must always order (e’ sempre obbligatoria) the confiscation of items which were used or which were intended to be used to commit the offence ex Art.199 bis (money laundering), or offences connected to terrorism, or offences with the purpose of subverting the constitutional order, as well as ordering the confiscation of the price, product and profit of the crime....”

Article 147 § 3 of the Criminal Code, as amended by Article 32 of Law no. 126 of 15 July 2010, in so far as relevant, reads as follow:

“(3) In a judgment of conviction, the judge shall always order the confiscation of items which were used or which were intended to be used to commit the offences ex Articles 150, 155 aggravated, 156, 167, 168, 169, 177 bis, 177 ter, 194, 195, 195 bis, 195 ter, 196, 199 § 1, 199 bis, 204 (3-1), 204 bis, 207, 212, 237, 239, 241, 242, 246, 247, 248, 249, 295, 296, 297, 298, 299, 300, 305 bis, 308, 309, 337 bis, 337 ter, 371, 372, 373, 374 comma 1, 374 ter (1), 401, or offences connected to terrorism, or offences with the purpose of subverting the constitutional order, or the crime ex Article 1 of Law no. 139 of 26 November 1997 or the crime ex Article 2 of Law no. 99 of 7 June 2010, as well as ordering the confiscation of the price, product and profit of the crime.

If the items which were used or which were intended to be used to commit the crime, as well as the price, the product and the profit of the crime, have been completely or partially mixed in with assets having a lawful origin, the judge shall order the confiscation of such assets up to the estimated value of the items which were used or which were intended to be used to commit the crime, or the estimated value of the price, product, and profit of the crime.

In all of the above mentioned cases the judge shall also order the confiscation of money or other assets whose lawful origin the convicted person cannot demonstrate.

If (direct) confiscation is not possible the Judge shall order (impone l’obbligo di) the payment of an amount of money equivalent to the value of the items to be confiscated.”