FIRST SECTION
 
 
 
 
 
 
 
CASE OF PODESCHI v. SAN MARINO
 
(Application no. 66357/14)
 
 
 
 
 
 
 
 
 
 
JUDGMENT
 
 
 
STRASBOURG
 
13 April 2017
 
FINAL
 
18/09/2017
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Podeschi v. San Marino,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Linos-Alexandre Sicilianos, President,
 Kristina Pardalos,
 Ledi Bianku,
 Aleš Pejchal,
 Robert Spano,
 Pauliine Koskelo,
 Tim Eicke, judges,
and Abel Campos, Section Registrar,
Having deliberated in private on 21 March 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 66357/14) against the Republic of San Marino lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a San Marinese national, Mr Claudio Podeschi (“the applicant”), on 29 September 2014. 2. The applicant was represented by Mr A. Annetta, a lawyer practising in Florence, Italy. The San Marinese Government (“the Government”) were represented by their Agent, Mr Lucio L. Daniele and their Co-Agent Mr Guido Bellatti Ceccoli. 3. The applicant alleged that he had suffered a violation of Articles 3 and 5 §§ 3 and 4 of the Convention in connection with his pre-trial detention. 4. On 10 July 2015 the complaints concerning Article 3 and Article 5 §§ 3 (trial within a reasonable time or release pending trial) and 4 (equality of arms) were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case
5. The applicant was born in 1956 and lives in San Marino. He is a politician. 6. The applicant was the subject of an investigation related to two sets of criminal proceedings (nos. 769/12 and 184/14) which were eventually joined, in connection with the crimes of, inter alia, conspiracy and various acts of money laundering. 7. By a decision of 25 October 2012, relying on Articles 4 and 5 of Law no. 93 of 2008, the inquiring judge ordered that investigation file no. 769/12 be classified because that the existing representation of facts required further investigative steps, including urgent measures which could be prejudiced if the documents were not kept secret. 8. By a decision of 23 June 2014 the Commissario della Legge, in his capacity as inquiring judge, described over twenty-five pages the circumstances resulting from the investigations and informed the applicant (along with other suspects) of the charges against him. The charges were, (i) conspiracy (in connection with crimes related to money laundering) under Article 287 of the Criminal Code; (ii) various instances of money laundering in participation with others (Articles 50, 73 and 199 bis of the Criminal Code) for the movement of money through the San Marino Foundation For the Promotion of the Economy and Finances; and (iii) various instances of money laundering in participation with others for the movement of money between B. (a Swiss company) and C. (a company based in San Marino). 9. It appeared from the investigations that the applicant (and others) had illegally acquired large sums of money which they had transferred into certain named accounts, sometimes in cash or by cheque and sometimes through fictitious intermediary companies, in order to hide the money’s criminal origins. The sums were then withdrawn and distributed to other entities, all traceable to the applicant. Furthermore, in order to hide the illicit origins of the money, other sums were transferred, hidden and replaced through other named companies, only to eventually be transferred to the applicant (and others) personally. The inquiring judge noted that those instances formed the basis of the second and third charge of money laundering. In particular, the factual circumstances, inter alia, suggested that there existed a criminal organisation made up of politicians, civil servants, entrepreneurs and bankers. The applicant appeared to have had a key role as a politician who had served in various posts and in the inquiring judge’s view he was particularly well placed to accumulate money which he then concealed behind various companies located in San Marino and abroad. 10. According to the inquiring judge the San Marino Foundation for the Promotion of the Economy and Finances (hereinafter “the Foundation”), which could be traced back to the applicant and was run by a person the applicant trusted, had been created specifically to further the aims of the criminal organisation. More than eleven million euros had been deposited but no trace of it could be found in the accounts. Discretion in the exercise of decision-making by political powers, as well as bureaucracy, gave the opportunity to “investors” to pay millions of euros in bribes to the Foundation in order for it to allow, for example, construction in areas identified by local plans as zones where development was forbidden. The investors knew the money would eventually get to the applicant, who was in a position to influence the approval of such projects, which could only come about by bending the rules. The inquiring judge observed that further investigations were necessary to understand the reasons behind a transfer into the Foundation of three million euros by a certain A.S., one million of which reached the applicant in cash. 11. The inquiring judge ordered that the applicant be arrested and detained on remand (misura cautelare personale) owing to a risk of his reoffending and tampering with evidence. The judge noted the substantial flow of money managed by the applicant, which was not compatible with his income. In view of the various evidentiary elements he concluded that it could be held with reasonable certainty that the financial transfers had been made in connection with the relations the applicant had with the co-accused, as a result of and during the time he had been a State representative. The evidence suggested that he had the ability to organise and benefit from adequate support to facilitate a further dispersion of funds, as a result of a mutual covering up with other associates, by means of the direct or indirect acquisition of the management of economic activities and of positions in public office in order to obtain unjust profit and advantage. The seriousness of the applicant’s particular conduct indicated his specific role in the organised criminal group. In addition, the speed with which certain transfers of millions of euros had taken place demonstrated the network of mutual assistance from which the applicant and the criminal organisation benefited and continued to benefit within the institutional and economic system in San Marino. According to the inquiring judge, the danger presented by the applicant had not diminished simply because he had quit public office. Indeed, in 2013 the applicant had sold an apartment, which had already been subject to leasing and payment for which had been made (accreditati) from Foundation funds, which showed that his contacts with the relevant entities remained in place. Furthermore, the inquiring judge considered that the systematic concealment of funds through fictitious payment descriptions (causali fittizie), the use of frontmen (prestanome) and of shell companies (societa schermo) rendered the risk of tampering with evidence a real one. According to the inquiring judge, that risk persisted, given the evidence existing both in San Marino and abroad, because of the wide support network. That meant that less restrictive measures could not be considered as appropriate when trying to make sure that the applicant (and his co‑accused) did not commit further acts of money laundering. 12. On the same day at 2.50 pm the applicant was taken to prison and placed in detention. 13. The applicant was informed on 24 June 2014 that he would appear for questioning before the inquiring judge on 25 June 2014 at 4 pm and that he could meet his legal representatives on the latter date at 3 pm. 14. On 24 June 2014, after requesting access to the relevant files, the applicant’s legal representatives learnt that file no. 769/12 was partially classified and thus partially subject to non-disclosure. File no. 184/14 was entirely classified and could not be disclosed at all. The applicant noted that the index showed that the classified documents in file no. 769/12 which had been removed included (i) the initial notification by the Agency for Financial Information (hereinafter “the AIF”); (ii) a note by the same agency and explanatory documents; and (iii) pages 7-54 of Annex A to the AIF’s initial notification. 15. Following a decision of the same day, the above-mentioned unclassified material in connection with file no. 769/12 was submitted to the applicant’s representatives on the morning of the day of questioning. According to the applicant the information provided did not give sufficient grounds to substantiate the need for his detention. 16. On 25 June 2014 during questioning before the inquiring judge (interrogatorio di garanzia) the applicant availed himself of his right to remain silent. He complained of not being able to examine the investigative material, the short length of time he had been able to consult with his lawyer and of the delay in appearing before the judge. B. The first set of decisions on the applicant’s challenges
1. Proceedings before the Commissario (inquiring judge)
17. On the same day the applicant, inter alia, challenged his detention and complained that the term provided by law (six months which can be extended by another three months) for maintaining the secrecy of the investigation had expired because investigation file no. 769/12 had been classified on 25 October 2012. He asked the court to release him or to, at least, order a less restrictive measure and to declassify the relevant documentation. 18. On 26 June 2014 the inquiring judge rejected the applicant’s requests. He considered that the fact that the applicant had not been allowed to consult some of the material related to the investigation before the end of the period of secrecy had not breached his rights. The expiry of the terms of Article 4 of Law no. 93/2008 (see relevant domestic law at paragraph 75 below) could also not result in the nullity of an order for detention on remand which had been duly justified and reasoned on the basis of the object of the proceedings pending against the applicant. Further, the relevant requirements and reasons justifying keeping him in detention remained, in particular the risk that the illegally acquired assets would be dispersed. 19. As to the applicant’s inability to access all the relevant material, the judge noted that the decision ordering his detention had contained all the relevant information justifying the lawfulness of and the need for such detention. The need for secrecy served the interests of justice and had to be balanced against the applicant’s interests. However, the applicant had been informed of the reasons for his detention in a way which enabled him to challenge it through the available means. Furthermore, access to further material was possible through other procedures that were available. 2. Proceedings before the Judge of Criminal Appeals
20. On 27 June 2014 the applicant reiterated his above-mentioned complaints and requests by means of an appeal (reclamo) under Article 56 of the Code of Criminal Procedure. He relied on various Articles of the Convention, and inter alia asked the court to take its decision solely on the basis of the documents which had been made available to him as the accused. 21. By an interim decision of the Judge of Criminal Appeals (Giudice delle Appellazioni Penali) of 30 June 2014, notified to the applicant’s representatives on 1 July 2014, the court upheld the applicant’s complaints in part. 22. It upheld the complaint about the non-disclosure of the documents, the content of which had served to justify his detention on remand given that the time-limit for classification of the file had expired. In connection with both files, in the text of its judgment the court considered that the applicant must be allowed access to such documents with the limited aim of allowing the applicant to be fully aware of the evidence already collected, especially that as a result of which the inquiring magistrate had ordered the applicant’s arrest and detention. The operative part of the judgment did not refer to any limitations. The court set a five-day time-limit from that date for the submission of observations. 23. As to the applicant’s ancillary complaint of a lack of relevant requirements for his detention, namely a reasonable suspicion against him (insussistenza dei presupposti e delle condizioni richieste per l’applicazione della misura), the court considered that the earlier decision had explained the relevant facts which had shown the applicant’s involvement in the crimes at issue. It also noted that a criminal origin for the sums at issue could be presumed owing to the methods used for their transfer. The latter was sufficient fumus delicti to justify the detention order, which was to be kept in place. It dismissed the remainder of the applicant’s complaints and upheld the findings of the first-instance court. 24. Following the Judge of Criminal Appeal’s decision, on 1 July 2014 the inquiring judge ordered the release to the applicant’s legal representatives of certain specified documents and evidence collected in connection with files nos. 184/14 and 769/12. According to the applicant, on the same day, upon a request made by him to the court registry, he learnt that despite the appeal judge’s order the relevant files had remained classified (file no. 184/14 had been partially declassified before the appeal judge’s decision). According to the applicant none of the publicly available content in file no. 184/14 could in any way demonstrate the crime of conspiracy under Article 287, with which he had been charged. The Government submitted that it had been the legal representatives who had failed to find the relevant documents in the case file. 25. On 6 July 2014 the applicant submitted observations by the time‑limit set by the Judge of Criminal Appeals in connection with the above claims. In particular, he reiterated his complaints under Articles 5 and 6 of the Convention in so far as he had not had full disclosure of the documents and evidence collected despite the court’s order of 30 June 2014 (see paragraph 22 above) and argued that there was no reasonable basis to justify his detention on remand. 26. By a decision of 18 July 2014, notified to the applicant’s legal representatives on 22 July 2014, the Judge of Criminal Appeals upheld the order of 30 June 2014 and dismissed any further claims. He found that no new elements had emerged since the interim decision of 30 June 2014. It further noted that the order of 30 June 2014 had not ordered a total declassification but solely the disclosure of documents related to the continued detention, referring to the words with “the limited aim of” “ancorche al limitato fine”. It considered that such secrecy could be justified for the purpose of the proper administration of justice and the effectiveness of the investigation, and was subject to the inquiring judge’s discretion which the court of appeal did not want to interfere with - without prejudice to a further appeal against such decision before the third instance judge. 3. Proceeding before the Third Instance Judge
27. On 23 July 2014 the applicant appealed to the Third Instance Judge in Criminal Matters (Terza Istanza Penale) (hereinafter “the third-instance judge”), focusing on the inability to access various documents and the lack of a justification for his detention based on a lack of the relevant requirements. He also complained of procedural irregularities. 28. After a hearing, where oral and written submissions were made by the applicant and the Attorney General, the third-instance judge on 8 September 2014 dismissed the applicant’s complaints. The judge also upheld the lawfulness of the orders of 23 and 30 June 2014 and the lawfulness of the inquiry and the detention order. The court noted that its competence at third instance concerning detention on remand extended to confirming the existence of reasonable suspicion and other factors making detention necessary. Thus, it was for the judge to examine the stage of the investigation, as well as the correctness of the facts established and the lawfulness of the procedural steps undertaken, and the persistence of the charges against the accused, falling short of making any findings on the criminal responsibility of the accused. 29. As to the non-disclosure of some of the material, it noted that while under San Marino law an accused was granted the right to access and copy all the material in the investigation file and imposed on the judge a duty to inform the accused of the factual and legal circumstances surrounding the charges against him, the same procedural law also limited those rights for the sake of the proper administration of justice, while bearing in mind the procedural safeguards emanating from the right to a fair trial. Even the case‑law of the European Court of Human Rights provided for exceptions to the rule of disclosure. In the present case the secrecy imposed on certain of the documents, although not all of them had been necessary in view of a search for the truth and to avoid any risk of tampering with evidence. 30. It further noted that the applicant had had access to a lawyer before his questioning and that the order of 23 June 2014 had been detailed and had clearly identified the elements justifying the detention. It could thus not be said that the applicant had not been aware of the reasons for his arrest, the charges, or the nature and content of the evidence adduced. Indeed, more information than that strictly required had been communicated to the applicant and the judicial communication at issue had been exemplary, both in respect of the quantity and the clarity of the information provided. 31. In relation to the requirements justifying the applicant’s detention, the third-instance judge examined the matter in connection with each of the charges and noted that the appeal court had adequately replied to the applicant’s complaints. Referring extensively to the report of the inquiring judge, the third-instance judge found that it was necessary to keep the applicant in detention. 32. In the third-instance judge’s view, the factual evidence and relevant legal considerations indicated that the applicant could reasonably be considered as guilty of the charges against him. Furthermore, it was necessary to ensure the effectiveness of further investigations by avoiding any risk of tampering with evidence. C. Requests for access to specific material
33. In the meantime, on an unspecified date the applicant lodged an application for the release of hard copies or electronic versions of documents which had been saved on equipment seized from him, or the possibility to make copies of them. 34. By a decision of 17 July 2014 the inquiring judge dismissed that application in part. The court noted that the investigation file had not yet included a detailed list of its contents. In any event such a request could only be accepted if it was specific enough to locate the documents referred to. It ordered that a list of the file’s contents be made and that the applicant have access to documents he could specify in terms of their form, content, date and origin. 35. On 15 July 2014 the applicant had also applied for access to information held by the court concerning P.W.S. (San Marino’s ambassador to Montenegro) which he considered relevant to disprove the alleged fictitious nature of the operations linked to Company B. and thus that there had been money laundering in that connection. 36. By a decision of 25 July 2014, the inquiring judge dismissed that application on the grounds that the reasons put forward by the applicant to access the documents were not deemed convincing by the court. According to the inquiring judge such a request could be accepted, at the relevant time, if it was made in connection with specific facts that were subject to debate, that had not yet been established, and which were pertinent to the ongoing investigation. 37. According to the applicant a further request to examine witnesses remained unheeded. D. The second set of decisions on the applicant’s challenges
38. On 15 September 2014 the applicant asked the inquiring judge to revoke the detention order or impose a less strict measure. 39. On 18 September 2014 the inquiring judge dismissed the application. He considered that the original detention order and its continuation were reasoned in fact and in law. The basis for such a detention order did not need to be any more detailed, particularly given the continued risk of tampering with evidence if the applicant was put on a less strict regime. Contrary to the applicant’s assertions, the existence of this risk remained. The inquiring judge considered that the results of the investigation as well as the behaviour of the applicant, both during the interviews and while in detention, confirmed that view. He noted that the applicant’s co-accused had tried to make contact with other people, namely, a private doctor, on the pretext of being ill, even though state doctors had not found any signs of illness. Furthermore, both of the accused had attempted to involve relatives in interfering with and altering documents. The inquiring judge referred to the applicant’s ability to create ad hoc documents which looked real, with the intention of having them admitted as evidence. He also highlighted the applicant’s participation in the manipulation of the truth and the artificial reconstruction of facts and the dissimulation of the real functions of the accused. According to the inquiring judge, such factors meant that the court could not exclude that there would be attempts to tamper with evidence. Indeed, such tampering would be a repeat of the acts with which the applicant had been charged, which included manipulating the truth and the artificial reconstruction of economic and commercial dealings to hide their real aims. 40. The applicant appealed. He requested release from detention or at least the application of a less restrictive measure. He further asked the court to annul the decision appealed against, and if not, he asked the court to exhibit the evidence in connection with the facts and circumstances on which the decision of 18 September 2014 (to keep him in detention) had been based. 41. By a decision of 13 October 2014, the Judge of Criminal Appeals upheld the applicant’s appeal in part. It ordered that the two investigations files be declassified in part, as to allow the applicant to have access to the files and evidence collected in the further investigations on which the inquiring judge had based his decision to dismiss the applicant’s bail application in favour of keeping him on remand. The court ordered the disclosure of the material and set a five-day time-limit from that date for the submission of observations. It further considered that the first-instance court had been correct in maintaining the detention order on the basis of the behaviour of the co‑accused. It was evident that the co-accused’s mistrust of state doctors was a pretext to consult her private doctors, which had been part of a predetermined plan agreed on between the two co-accused. That had been shown through recordings of their conversation (intercepted by a third party) over walkie-talkies provided to them by a policeman (M.) to enable them to agree on the same line of defence and to tamper with evidence. Similarly, the first-instance court’s finding on the attempt to involve third parties in tampering with evidence had been based on the fact that the applicant had transferred property into his daughter’s name and the apparent complicity of M. (against whom proceedings had been instituted) who owed allegiance to the applicant in exchange for favours he had received. Such matters would be better explained once the documents had been declassified, as ordered above. The fact that the applicant had been able to plan the above-mentioned acts while in detention showed that his intention and possibility to tamper with evidence would be greater if he was released. 42. In consequence, by a decision of the inquiring judge of 16 October filed in the relevant registry on 20 October 2014, further documents were released. 43. After viewing them, the applicant considered that the copious documentation that had been made available to him (accounts of companies traceable to him and a series of bank transfers) only concerned the charges against him and not the alleged behaviour which had led the inquiring judge to decide to dismiss his application for bail. On 24 October 2014 the applicant therefore lodged a new appeal, arguing that despite the court’s order he had again not had access to the relevant documentation to challenge his detention as the declassified information did not include any evidence to substantiate the alleged behaviour that had led to his application for release to be denied, namely the alleged falsification of documents, the alleged collusion with family members, the alleged simulation of his co‑accused’s illness, and most importantly the alleged walkie‑talkie conversations. Moreover, despite the relevant time-limits having expired both files remained classified, and the applicant could not have knowledge of the further evidence collected and whether it supported suspicions against him, or the contrary. 44. By a decision of 6 November 2014 the Judge of Criminal Appeals upheld the detention order, considering that evidence had already been presented to support the decision to keep the applicant in detention. Dismissing the applicant’s arguments, the court found that it was therefore not necessary to repeat the earlier factual basis for the order or to give new reasons, as requested by the applicant, because the previous reasons were still valid, as also confirmed at various levels of jurisdiction. Furthermore, in so far as the applicant had claimed that the decision of 18 September 2014 had been based on elements (concerning his behaviour) that had not been found in the file, the court noted that a judge could ex officio take factors into consideration which had occurred after the issuance of the detention order. Indeed, in the present case, to make sure that there were no reasons to warrant a change in the applicant’s pre-trial conditions, the judge had used information which, although having come to his knowledge by other means, was also found in the public domain (in the press and in publicly available judicial documents concerning the proceedings against M.). He further noted that the requirements of adversarial proceedings at the pre-trial stage, such as the non-disclosure and publication of documents, were different from those in a trial since pre-trial proceedings required a level of secrecy that enabled further investigations if necessary, including international assistance. While equality of arms had to be respected in connection with the debate concerning the measure imposed, the applicant could not obtain the declassification of documents by reiterating the same arguments. That was all the more so when the detention order had to a large extent been based on the fact that there was a risk of tampering with evidence. The applicant’s request had to be seen in the light of the need to preserve the evidence as well as the proper administration of justice. The necessity to maintain the classification of certain information was all the more important when that information concerned crimes for which charges had not yet been brought. It followed that the applicant’s detention could not be revoked nor could further information be declassified. The court also noted that in 2009 Article 5 of law no. 93/2008 had been amended to include a suspension of the time-limit in the case of requests for letters rogatory. In the case at hand requests for judicial assistance had been made, thus in view of the applicable suspension the time-limits had not yet expired. E. A further set of decisions
45. On 4 March 2015 the applicant asked to be released on the basis that the testimony of a certain P. had been retracted in the proceedings against M. It had been P. who had previously stated that he had seen M. give the applicant a walkie-talkie to communicate with his co-accused. He argued that this meant that the evidence of the alleged misbehaviour on which the prolongation of his detention had been based no longer existed. 46. On 6 March 2015 the inquiring judge dismissed the application. He held that there had been various grounds for the applicant’s detention, not just the attempts to communicate with others inside and outside the prison. The matters that had been brought to light could not alter the grounds listed and explained in detail in previous decisions. 47. On 16 March 2015 the applicant challenged that decision, arguing that if the decision to keep him in detention had been based on testimony given in proceedings against M., then such a decision had to be altered once that testimony had been withdrawn. 48. By a decision of 20 March 2015 the Judge of Criminal Appeals dismissed the applicant’s appeal. The court noted that the detention order of 23 June 2014 had stated that the reasons for considering detention necessary had been the fear of the applicant’s reoffending and tampering with evidence, which had been justified by the role played by the applicant in the organisation and by the complex and effective network he could benefit from. The order of 18 September 2014, apart from relying on the evidence in the proceedings against M., had been based on other, more significant and relevant reasons. The impugned decision of 6 March 2015 had stated that the reasons to deny his application “also” included his attempts to communicate with others. The decision of 13 October 2014 had also stated that the measure had been justified by much more important reasons. Lastly, the decision of 6 November 2014 had also referred to other grounds for his detention. It followed that none of the decisions in question had been based solely on the supposed collaboration of M. Thus, the retraction of P.’s testimony did not render nugatory the fear of the applicant’s tampering with evidence, based on the fact that there had been various, more relevant considerations given in the previous decisions on the matter, and reiterated in a decision of 9 March 2015 (below). F. Prolongation of the applicant’s detention
1. The Commissario (inquiring judge)
49. By a decision of 9 March 2015, by which time further charges of money laundering had been brought against the applicant, the inquiring judge prolonged the applicant’s detention. He noted that the proceedings were based on the results of the investigation by the anti-fraud unit and on the analysis of financial operations by the applicant and other people involved in politics (directly or through the use of a plurality of individuals and legal persons). Added to those factors were other elements collected through investigations of suspicious financial operations, as well as witness testimony resulting from questioning and the large amount of documents that had been seized. The investigation as a whole concentrated on the overlap between political and economic activity and criminal activity. Referring to various evidentiary conclusions the court considered that in relation to the further charges of money laundering against the applicant, the evidentiary scenario was robust and exhaustive. It amply demonstrated that the applicant (with others) had participated in the transfer and concealment of funds generated from crimes committed in San Marino or elsewhere. 50. The risk of reoffending could be presumed given the ease with which huge amounts of money had already been transferred, and the strong support network of which both co-accused could benefit. That meant that less severe measures would not prevent the applicant and his co-accused from re-establishing contact with other people who had facilitated the illegal acts. The fear of flight was all the more realistic given the weakening link between the applicant and San Marino following the incident in question. It was therefore feared that the applicant would seek refuge in jurisdictions with which San Marino had no extradition treaties. It had already been established that one of the foreign accomplices (P.W.S.) had made use of a diplomatic passport to avoid precautionary measures issued against him. 51. Moreover, video surveillance images showed that the accused had received favourable treatment while in detention, with the director of the prison providing him with company, support and information, and even arranging meetings between the co-accused. That further went to show the status the accused continued to benefit from, which indicated the impossibility of envisaging more lenient measures. 52. The seriousness of the elements on which the suspicion against the applicant was based (quadro indiziario), the facts and the means by which the crimes had taken place, as well as the dense network of personal relations, the involvement of family members, professionals, State representatives and government personnel who were still in service, led to the conclusion that there was a real risk that evidence, namely documentary evidence, would be tampered with and that pressure would be put on people who had knowledge of the events at issue. Moreover, the accused could still continue to hide the illicit origins of funds through the very complex and ingenious methods already applied. 2. The Judge of Criminal Appeals
53. On 11 and 12 March 2015 the applicant had access to further documentation, concerning particularly letters rogatory, witness statements and interviews. 54. The applicant appealed against the decision of the inquiring judge of 9 March 2015. 55. By a decision of 23 April 2015 filed in the relevant registry on 29 April 2015 the Judge of Criminal Appeals upheld the first-instance decision. The judge noted that San Marino law did not impose a time-limit on the duration of pre-trial detention, and considered that the subsequent charges against the applicant had been brought as a result of further investigations. They had shown further money transfers between clearly identified people (including the applicant), as well as the origin of the funds and were connected to the facts behind the first set of accusations. In so far as the applicant had claimed that there had been no proof of conspiracy or of the illicit origin of the funds, and thus that there had been no substantiation of the charge of money laundering, the court held that the original decision of 23 June 2014 had highlighted the existence of a general agreement with permanent effects (constituting the pactum sceleris) between representatives of the State and the business world, as well as the details of its aims and functionalities. It further noted that final judgments confirming that a crime had generated certain funds were not needed to establish money laundering, but that it was enough to have a number of factual elements indicating the supposed crime which generated those funds. In other words the burden of proof to be satisfied was one where the illicit origin of the funds emerged from a logical and coherent interpretation of the evidence. The first-instance decision, based on the transfer of huge amounts of money, through the creation of ad hoc offshore companies and the dispersion of such sums in parcelled and undetectable amounts had therefore been reasonable. 56. The appeal judge considered that house arrest would not be appropriate given the seriousness of the crimes at issue, the enormous sums laundered, as well as the conduct of the accused during the interrogation and detention period. He noted that the reasons for the applicant’s detention on remand, namely his contacts with other accused persons and the networks he had access to which could facilitate further money laundering and the dispersal of funds, remained relevant. 57. He dismissed a further application by the applicant for the declassification of the case files on the basis that the only things still classified related to the letters rogatory, which were still ongoing, and other material which was still subject to ongoing investigations. G. Most recent decisions before the applicant’s release
58. Following a further request by the applicant, by a decision of 4 May 2015 the inquiring judge released further documentation in light of the fact that the needs of the investigation had diminished. The secrecy regime was however maintained, in part, in connection with certain documents concerning both proceedings at issue as well as other documents and evidence yet to be collected following this decision. 59. By a decree of 11 May 2015 the applicant was issued with an indictment. 60. On 14 May 2015 the inquiring judge revoked the decision of 23 June 2014 to keep him in detention in relation to the charges in the indictment of 11 May 2015 as the investigation related to those charges had been concluded. However, he was kept in detention based on a decision of 9 March 2015 in relation to two recently added charges that were still under investigation. 61. On 28 May 2015 the applicant lodged a challenge to the constitutional legitimacy of the decision of 23 April 2015 by the Judge of Criminal Appeals and the decision of the Commissario of 9 March 2015 in connection with his defence rights at the trial. 62. By an interlocutory decision of 2 July 2015, the third-instance judge suspended the order for the applicant’s detention on remand and ordered that he be put under house arrest until a decision on the merits of the constitutional challenge had been issued. In the judge’s view such a decision was necessary in order to respect the rights of the defence, particularly the principle of equality of arms, which was to prevail during the trial. He ordered the inquiring judge to set bail and other relevant conditions, as well as the penalties in the event of a breach of such conditions. 63. On 3 July 2015 the inquiring judge ordered the applicant to be put under house arrest under the following conditions: the applicant could not leave his house, have visits from or communicate with anyone (including by telephone) except for family members living in the house, descendants and ascendants (as well as their spouses or partners), siblings and legal counsel. Medical visits were allowed subject to notification. The applicant was ordered not to communicate with his co-accused (Mrs B.) and had to submit his travel documents to the authorities, in line with a travel ban which was being imposed concurrently. 64. By a judgment of 15 October 2015 the third-instance judge confirmed the validity of the decisions of 23 April 2015 filed in the relevant registry on 29 April 2015 by the Judge of Criminal Appeals and the decision of the inquiring judge of 9 March 2015. It reiterated its previous findings as to the various and detailed evidence which had been presented and concluded that the same applied in respect of the last two charges against the applicant, which had been the basis for the impugned decision of 9 March 2015. It noted that there existed a huge amount of data, some of which was convincing evidence (dati probanti), some highly indicative (fortemente indizianti), and some merely illustrative yet useful, which together formed an adequate framework of relevant and sufficient evidence on which to base precautionary measures. It followed that the decision to place the applicant in pre-trial detention had at the time been appropriate in view of the material available. It also confirmed its interlocutory decree of 2 July 2015 that detention should cease and that the applicant be put under house arrest for the purposes of ensuring his defence rights in all the proceedings against him, without prejudice to any decision by the inquiring judge on an eventual release. 65. By an order of 16 October 2015, the inquiring judge revoked the order for the applicant’s house arrest and imposed a travel ban on him, considering that that measure would suffice. It further maintained the classified status of certain acts in the interests of the investigation and the ongoing international judicial assistance. H. The applicant’s detention
66. The applicant was detained from 23 June 2014 in the San Marino prison known as the Carcere dei Cappucini. 67. According to the applicant, from 8 August 2014 he was detained under a regime in which he was kept isolated for twenty-two hours a day. The applicant alleged that he had not had access to other parts of the prison which would have allowed him to have some form of activity and that he could only shower once a week. Furthermore, for certain periods he had had no access to sanitary facilities and had had to relieve himself in his cell in a container. 68. The applicant stated that the conditions at the detention facility were inhumane and referred to the reports of the Committee for the Prevention of Torture (“the CPT”) of 2005 on the matter. He noted in particular that the CPT had since 1992 reiterated the need to refurbish and upgrade the facility but that virtually no steps had been taken to that effect. 69. On 30 June 2014 the applicant filed a complaint about his conditions of detention with the CPT. II. RELEVANT DOMESTIC LAW
A. The Constitutional law
70. Article 2 of the Constitutional law no. 144/2003, provides that the Attorney General (Procuratore del Fisco) is a Magistrato requirente. The latter term is understood in legal theory as referring to an inquiring magistrate, whose role is to put forward questions to a judge (be it inquiring or on the merits) in order to safeguard and guarantee the rights of the public as well as those of all the parties to the proceedings. B. Criminal Code
71. Articles 2, 20 and 21 of the Criminal Code, read as follow:
Article 2
“The Criminal action is public and brought about ex officio although in certain cases it might require the complaint of the injured party for it to commence. The action is brought by the Commissario della Legge of his own motion, by means of an inquisitorial procedure the aim of which is the search for the truth.”
Article 20
“The inquiry is the diligent and conscientious search for the author of a crime, held by the inquiring judge, as soon as he is notified of a criminal report.”
Article 21
“The inquiry can be instituted on request of the injured party, who becomes the complainant or on a report lodged by any citizen, or on the report of the Police, or by any other means through which the inquiring judge becomes aware of the crime committed.”
72. Articles 199 bis and 287 of the Criminal Code, in so far as relevant read as follows:
Article 199 bis (money laundering)
“(1) A person is guilty of money laundering, where, except in cases of aiding and abetting, he or she conceals, substitutes, transfers or co-operates with others to do so, money which is known or should be known was obtained as a result of crimes not resulting from negligence or contraventions, and 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 is known or should be known was obtained as a result of crimes not resulting from negligence or contraventions.”
Article 287 (Conspiracy)
“An association of three or more persons, with the intention of executing a planned criminal activity, constitutes a crime punishable with imprisonment.”
C. The Code of Criminal Procedure
73. Article 56 of the Code of Criminal Procedure reads as follows:
“The decisions concerning personal or patrimonial coercive measures or seizures and their subsequent validation, may be challenged, before the Court of Criminal Appeal, by the accused or by the Attorney General within ten days from the notification or the enforcement of the measure...”
D. Law no. 55/2003
74. Law no. 55 of 25 April 2003 provides for the procedure related to challenges to the legitimacy of precautionary measures such as pre‑trail detention. According to its Article 24 (in the light of Article 3 of Constitutional Law no. 144 of 2003), the third-instance judge is competent to decide such challenges and such a challenge does not suspend the enforcement of the measure. According to its Article 25 such a challenge may be lodged by the detained person or the Attorney General within thirty days from when the decision to detain has been notified to both parties. Following that, the request is sent to the relevant body, who will allow both parties to make submissions within ten days. E. Law no. 93/2008
75. Law no. 93/2008 concerning criminal procedural rules and the confidentiality of criminal investigations, in so far as relevant read as follows:
Article 3 (right to defence)
“Except in the cases mentioned in Article 5 below, the inquiring judge carries out all the inquiring activity in general, as well as that related to the collection of evidence and particularly its acquisition (formazione), while safeguarding the rights of the accused and the prerogatives of the Attorney General (Procuratore del Fisco) as well as the rights of private parties as protected by criminal law. The accused, assisted by a legal representative, as well as the Attorney General, have the right to present their defence, by means of submissions and pleas. They may also examine, and make copies of all the acts in the proceedings, including the report of the crime. The inquiring judge must ensure that the parties can participate or be represented at each stage of the investigation proceedings.”
Article 4 (judicial notice)
“(1) Within thirty days of the crime report ..., save for the exceptions mentioned in Article 5 below, the inquiring judge must personally inform the accused and the Attorney General of the legal and factual elements of the crime in respect of which proceedings are being carried out ...”
Article 5 (investigation and acts and results of inquiry in connection with the temporary secrecy/classification regime or the urgency regime)
“(1) Where there are specific reasons of an exceptional nature which may lead one to consider that the whole investigation may only be carried out successfully if carried out under a regime of secrecy/classification, the inquiring judge may order by means of a reasoned decision that the regime of temporary secrecy be applied, thus derogating from the provisions of Article 3 and 4 above. (2) The same procedure applies when only some of the acts should be subject to a temporary secrecy regime, or when the necessity of such a regime emerges subsequently. (3) The temporary secrecy regime applied to the investigation and the acts of inquiry ... may extend only to the time strictly necessary for the performance of the relevant acts; it in any event may not exceed six months from the registration of the crime report, which may be extended only once, by a period of another three months maximum, if there exist serious reasons for so doing. (4) In cases where the secrecy regime is applied to the investigation, the time limits for the judicial notice re-start to run after the cessation of such regime. (5) When the secrecy regime applies only in part, the judge, through the registrar, provides for the reserved custody of such documents as well as the order providing for such regime in a separate file, until they are completed (completamento degli atti). (6) In the event of acquisition of evidence in urgency, to which the secrecy regime does not apply, and in respect of which notification of the parties is mandatory, the inquiring judge must notify the judicial notice to the accused and the Attorney General in the event that this has not already been done ... (7) In the event of a secrecy regime being applied to the investigation, wherein the inquiring judge has called for judicial assistance from foreign authorities, the time limit for a regime of the kind mentioned in paragraph 3, is suspended from the day the letter rogatory is sent, until the reply has been received.”[1]
F. Law no. 44/97
76. Article 23 of the prison regulations Law no. 44/97 reads as follows:
“The regime of continuous isolation within the prison facility shall be allowed:
(i) When it is necessary for sanitary reasons. (ii) Where according to the judicial authority, a person charged with an offence should be detained during the stage of the compilation of evidence (istruttoria). (iii) For serious disciplinary reasons indicated by the judge responsible for execution. A period of judicial isolation shall not exceed ten days.”
III. RELEVANT INTERNATIONAL MATERIAL
A. United Nations Instruments
77. The UN Convention against Transnational Organized Crime (also known as the Palermo Convention) was adopted by resolution A/RES/55/25 of 15 November 2000 at the fifty-fifth session of the General Assembly of the United Nations. It was ratified by San Marino on 20 July 2010. B. Council of Europe Conventions
78. The Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (CETS No. 141) entered into force in 1993. It has been ratified by all Council of Europe member states. The Convention asks State parties to:
-  adopt the necessary legislative and other measures to identify, trace and confiscate illicit property of any kind prevent any dealing in, transfer or disposal of such property
-  empower its authorities to order that – where criminal activity is suspected – bank, financial or commercial records be made available without regard to bank secrecy
-  legalise the use of special investigative techniques like monitoring, observation, interception of telecommunications, access to computer systems and orders to produce specific documents when criminal activity is suspected
Furthermore, the State parties are asked to make punishable under their domestic law laundering offences such as concealing or disguising the true nature, origin, location, disposition, movement, or ownership of illicit property; the acquisition, possession or use of such property; assisting any person who is involved in any of these illegal actions to evade the legal consequences. All Parties to the Convention are obliged to co-operate with each other and to afford each other, upon request, the widest possible measure of assistance in the identification, tracing and confiscating of illicit property. 79. On 16 May 2005 the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (CETS No.198) opened for signature. On 1 November 2010 it was ratified by San Marino. This new Convention is the first international treaty covering both the prevention and the control of money laundering and the financing of terrorism. State parties to the Convention are asked to adopt legislative and other measures in order to assure that they are able to search, trace, identify, freeze, seize and confiscate property, of a licit or illicit origin, used or allocated to be used for the financing of terrorism; and to provide co-operation as well as investigative assistance to each other. C. CPT Reports
80. In February 2005 the CPT visited the Carcere dei Cappucini and on 26 February 2008 published a report, drawn up only in French, which in so far as relevant reads as follows:
« 2. Conditions matérielles
25. La situation, s’agissant des conditions matérielles de détention, n’a pratiquement pas changé depuis la dernière visite en 1999. Les travaux envisagés, tant pour la salle polyvalente que pour les cellules du premier étage, n’ont toujours pas été réalisés, alors qu’une décision de commencer ces travaux avait été adoptée en septembre 2004. Il est clair qu’un très faible taux de détentions, ces dernières toujours pour de courtes périodes, peut expliquer le manque d’intérêt des autorités politiques pour ce dossier. Cela dit, en l’état de la législation pénale actuelle, il n’est pas exclu que des détentions de longue durée soient effectuées à la Prison des Capucins. Le CPT recommande que des mesures soient prises, sans autre délai, afin de mettre en oeuvre le programme de restructuration de la prison, annoncé depuis 1992. 3. Régime
26. Aucun progrès n’est également intervenu s’agissant du régime d’activités proposé aux détenus, qu’ils soient prévenus ou condamnés. Il convient de rappeler à cet égard que le rapport établi à la suite de la visite du CPT en 1999 soulignait déjà le décalage, d’une part, entre le riche éventail d’activités prévu par la Loi pénitentiaire et, d’autre part, le régime d’activités effectivement proposé aux détenus et qu’un manque d’activités motivantes est préjudiciable à tout détenu (a fortiori s’il s’agit d’un mineur). Le CPT recommande que les mesures nécessaires soient prises afin que tout détenu puisse passer un temps raisonnable hors de sa cellule, occupé à des activités motivantes ; en cas de détention de longue durée, ces activités devraient être variées. La mise en œuvre du programme de restructuration dont question au paragraphe précédent et, en particulier, la création de la salle polyvalente, devrait représenter un pas important dans ce sens. »
81. On 11 December 2014 the CPT published a report on its January/February 2013 visit to San Marino, together with the response of the San Marino authorities. During the visit, the CPT delegation paid particular attention to conditions of detention at Carcere dei Cappucini. The delegation noted the good general condition of the prison, but also its small size. The report recommended that the necessary measures be taken to enable a greater number of inmates to participate in activities. On the subject of health care in the prison, the authorities had to, amongst other things, organise nursing care and ensure that medical confidentiality was respected. The relevant parts of the report, which exists only in French, read as follows:
« 2. Conditions de détention
23. Lors de la visite, la délégation a pu constater le bon état général de la prison et des conditions matérielles de détention offertes mais aussi l’exigüité de l’établissement. La prison dispose, au rez-de-chaussée, d’une cellule, d’environ 8 m², séparée par une porte d’une pièce/cellule plus grande - 16 m² - qui donne directement sur une salle de bain séparée. Une autre cellule sert d’entrepôt. Au premier étage, se trouvent six cellules individuelles ainsi que des installations sanitaires au milieu du couloir pouvant servir à tous les détenus de cet étage. Au rez-de-chaussée, se trouve également la salle « multi-usages » qui sert à la fois pour les visites (des avocats comme des familles / proches), de bibliothèque et de salle de sport. En 2010, des travaux de rénovation ont été réalisés pour mettre en conformité le système électrique des cellules et y installer de nouveaux équipements de sécurité. Un système de vidéosurveillance a été également installé aux abords de la prison ainsi que dans les couloirs, la salle de visite et une cellule d’observation du premier étage. Ces travaux ont permis de réhabiliter les cellules et les installations sanitaires de la prison. 3. Régime
24. Comme indiqué au paragraphe 20, un seul prisonnier était détenu à la prison au moment de la visite. Dès lors, le détenu concerné était de facto soumis à un régime similaire à l’isolement. Dans un tel contexte, il est essentiel d’offrir à ce prisonnier un programme d’activités ainsi que des contacts humains appropriés. Le détenu était placé dans la cellule du rez-de-chaussée où il pouvait librement utiliser la salle attenante à sa cellule, qui lui servait d’atelier et de salle de télévision. Il bénéficiait d’un travail rémunéré (empaquetage de différents objets). Pendant six heures trente par jour, il pouvait également accéder librement à une des deux aires de promenade. De plus, il avait l’opportunité d’échanger quotidiennement avec le personnel pénitentiaire et recevait la visite de l’éducatrice judiciaire jusqu’à trois fois par semaine. Il bénéficiait d’une visite hebdomadaire de sa famille et pouvait recevoir sans contraintes des appels téléphoniques et en passer au moyen d’une carte rechargeable. Le CPT se félicite des mesures entreprises par la direction et le personnel de la prison à l’égard de ce détenu. 25. D’une manière plus générale, il est d’importance pour le CPT que tout détenu puisse passer un temps raisonnable hors de sa cellule, occupé à des activités motivantes. La réglementation pénitentiaire de Saint-Marin prévoit un large éventail d’activités (culturelles, sportives et récréatives, études y compris universitaires) et favorise le travail. La délégation a été informée que, sauf demande explicite pour les besoins de l’enquête, les portes des cellules sont ouvertes jour et nuit afin de faciliter l’association entre les détenus (et permettre un libre accès aux installations sanitaires au premier étage). Le CPT s’en félicite. Toutefois, la structure actuelle de la prison ne permettrait pas l’organisation d’un programme d’activités motivantes si plusieurs personnes venaient à être détenues en même temps et pour des durées prolongées. D’ailleurs la détention depuis le mois de février 2013 de deux détenus condamnés à plusieurs années d’emprisonnement risque d’engendrer des difficultés dans l’organisation de la prison et l’exercice des droits des détenus. En effet, une seule pièce sert à la fois de salle de visite, de sport et de bibliothèque et il n’existe pas d’espace adapté pour accueillir un atelier où travailleraient plusieurs personnes. Dans leur réponse de 2005, les autorités avaient indiqué au Comité leur intention de construire dans la plus grande aire de promenade un bureau pour la direction ainsi qu’une nouvelle salle polyvalente pouvant servir pour le travail et le sport. Huit ans après, ces travaux n’ont toujours pas commencé. La délégation a été informée qu’un budget avait été alloué pour ceux-ci mais qu’ils n’auraient pu être mis en oeuvre à la suite du classement de la ville au patrimoine mondial de l’UNESCO en 2008. Par une décision du 15 janvier 2013, le Gouvernement de Saint- Marin a créé un nouveau groupe de travail concernant la prison qui doit notamment évaluer la faisabilité du projet de transformation. Ce groupe de travail devrait remettre son rapport le 30 juin 2013. Le CPT recommande aux autorités de Saint-Marin de mettre en oeuvre les travaux prévus de longue date ou de trouver une solution alternative (par exemple, en construisant un établissement pénitentiaire en dehors de la ville historique). Dans ce contexte, le Comité souhaiterait recevoir le rapport du groupe de travail ainsi que les décisions prises pour permettre à un plus grand nombre de détenus de participer à des activités. »
5. Autres questions relevant du mandat du CPT
30. Concernant les contacts avec le monde extérieur, la législation permet aux détenus de recevoir des visites d’une heure par semaine de la part des proches. Sauf décision d’une autorité judiciaire, la correspondance n’est pas soumise à des limitations et n’est pas censurée. Les communications téléphoniques sont permises quotidiennement pendant dix minutes, un juge peut décider de prolonger cette durée. Le Comité se félicite de ce qu’en pratique les contacts entre le détenu et le monde extérieur sont plus fréquents (voir paragraphe 23) que ce que prévoit la loi. Si la délégation n’a recueilli aucune plainte concernant les échanges avec le monde extérieur, il apparait qu’une restriction normative demeure. Le Règlement pénitentiaire, tel que modifié par la Délibération gouvernementale du 15 janvier 2013, prévoit qu’une autorisation d’un juge (pour les prévenus) ou du Directeur de la prison (pour les condamnés) est nécessaire pour toute visite, correspondance ou communication téléphonique. Comme indiqué dans les précédents rapports, le CPT considère que, par principe, les détenus devraient pouvoir avoir des contacts avec leurs familles et leurs proches. Des exceptions peuvent être prévues mais elles devraient être strictement limitées aux exigences de la cause et les plus brèves possibles. Le Comité recommande, une nouvelle fois, aux autorités de Saint-Marin de revoir la législation applicable à la lumière de ces remarques. 31. La Loi pénitentiaire 30 de Saint-Marin prévoit l’isolement comme seul type de sanctions disciplinaires. Selon l’article 23, un détenu peut être placé à l’isolement ‑ pour une durée maximale de dix jours - sur la base d’une décision du juge de l’exécution en raison « d’actes disciplinaires graves ». D. Financial Action Task Force Recommendations
82. The Financial Action Task Force (FATF) is an independent inter‑governmental body that develops and promotes policies to protect the global financial system against money laundering, terrorist financing and the financing of proliferation of weapons of mass destruction. The FATF Recommendations set out a framework of measures which countries should put in place in order to combat, inter alia, money laundering. They are considered as an international standard, which countries should implement through measures adapted to their particular circumstances. THE LAW
I. PRELIMINARY ISSUES
83. The Government submitted that the application was abusive as the applicant was attempting to have the merits of his case decided by this Court. They noted that the applicant had given false information to the press in so far as in various interviews and press releases his legal representative had alleged that the application had already been declared admissible by the Court, which was clearly untrue. They considered that the applicant was using the Court to apply pressure and influence and lengthen the domestic proceedings against him – in the latter respect he had also requested that the domestic courts suspend the proceedings pending a judgment by the Court, a request which had been rejected by the domestic courts. Relying on the Court’s case-law the Government noted that completely irresponsible behaviour by applicants or their lawyers was clearly contrary to the true mission of the Court and may lead to the dismissal of the application as being abusive. They thus requested that the Court declare the application inadmissible as being abusive under Article 35 of the Convention. 84. Article 35 § 3 (a) of the Convention reads as follows:
“The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:
(a)  the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of individual application;”
85. The Court reiterates that an application may be rejected as abusive under Article 35 § 3 of the Convention if it was knowingly based on untrue facts (see, among others, Jian v. Romania (dec.), no. 46640/99, and Keretchashvili v. Georgia (dec.), no. 5667/02, 2 May 2006) or if incomplete and therefore misleading information was submitted to the Court (see, among others, Hüttner v. Germany (dec.), no. 23130/04, 9 June 2006, and Basileo v. Italy (dec.), no. 11303/02, 23 August 2011). Similarly, an application can be rejected as abusive if applicants – despite their obligation under Article 47 of the Rules of Court – fail to inform the Court about new, important developments regarding their pending applications given that such conduct prevents the Court from ruling on the matter in full knowledge of the facts (see Bekauri v. Georgia (dec.), no. 14102/02, §§ 21‑23, 10 April 2012). 86. The notion of abuse of the right of application is not limited to the above-described situation and in general any conduct by an applicant that is manifestly contrary to the purpose of the right of individual application as provided for in the Convention and which impedes the proper functioning of the Court or the proper conduct of the proceedings before it constitutes an abuse of the right of application (see Miroļubovs and Others v. Latvia, no. 798/05, §§ 62 and 65, 15 September 2009). 87. Lastly, the Court reiterates that it cannot be its task to deal with manifestly abusive conduct by applicants or their authorised representatives, which creates gratuitous work for the Court, incompatible with its real functions under the Convention (see Petrović v. Serbia (dec.), no. 56551/11 and 10 others, 18 October 2011, and Bekauri, cited above, § 21). 88. The Court notes that while the observations made by the parties went beyond the purpose of the specific questions set at communication it cannot be said that the quality of the observations in itself constituted abusive conduct. As to the fact that the applicant or his legal representatives disseminated false information to the press, while the Court considers this to be highly regrettable, it cannot speculate as to the real reasons for such actions. The Court cannot exclude the possibility that it was the result of a misunderstanding by the applicant or his representatives who might well be inexperienced in the Court’s procedure. The Court notes that by a letter of 7 October 2014 sent by the Registry the applicant’s legal representatives were only informed that a file had been opened and that they would be informed of any decision taken by the Court. At that stage it could only be said that the application had not been rejected on administrative grounds for failing to comply with the requirements set out in Rule 47 of the Rules of Court, which is totally different from the admissibility of an application governed by Article 35 of the Convention. Nevertheless, the Court cannot rule out that the dissemination of false information was a result of an error in good faith. 89. The Court thus dismisses the Government’s objection. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
90. The applicant complained under Article 3 about the conditions of his detention. The provision reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
1. The Government’s preliminary objection
91. The Government submitted that the complaint was inadmissible as under Article 35 § 2 (b) the Court could not deal with an application which was substantially the same as a matter that had already been examined by the Court or which had already been submitted to another procedure of international investigation or settlement and contained no relevant new information. The applicant had in fact complained to the CPT about the conditions of his detention. 92. The applicant submitted that the CPT was a non-judicial body with preventive functions, and his report to them could not be considered as precluding the possibility of complaining before the Court. 2. The Court’s assessment
93. Article 35 § 2 (b) of the Convention reads as follows:
“The Court shall not deal with any application submitted under Article 34 that
(b)  is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.”
94. The Court reiterates that Article 35 § 2 (b) seeks to avoid a plurality of international proceedings relating to the same case (see Calcerrada Fornieles and Cabeza Mato v. Spain, no. 17512/90, Commission decision of 6 July 1992, Decisions and Reports (DR) 73; Folgerø and Others v. Norway (dec.), no. 15472/02, 14 February 2006; and Smirnova v. Russia (dec.), nos. 46133/99 and 48183/99, 3 October 2002). Under the Convention, the Court cannot therefore deal with any application which has already been investigated or is being investigated by such an international procedure (see Celniku v. Greece, no. 21449/04, § 39, 5 July 2007). The term “another procedure” refers to judicial or quasi-judicial proceedings similar to those set up by the Convention (see Lukanov v. Bulgaria, no. 21915/93, Commission decision of 12 January 1995, DR 80‑A, p. 108).

Outcome for Article 5: no_violation