ITEMID: 001-95259
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF VALERIU AND NICOLAE ROSCA v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 5. The applicants, Mr Valeriu Roşca (V.R.) and Mr Nicolae Roşca (N.R.), are Moldovan nationals who were born in 1960 and 1978 respectively and live in Cotiujenii-Mari.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. On 1 August 2000 I.C. complained to the Ialoveni police that he had been abducted and robbed by unidentified assailants.
8. On 11 May 2001 both applicants were arrested by officers from the Centru District Police Station in Chişinău. According to the applicants, no reasons were given for their arrest, during which they both were beaten by the arresting officers.
9. The applicants claim that at the police station they again received blows and kicks over a period of several hours. They were later taken to the General Police Directorate in Chişinău, where they were pressured to confess to crimes they had not committed. Following their refusal, they were each beaten, then handcuffed on the floor, where they received truncheon blows to the soles of their feet and electric shocks.
10. As a result of the ill-treatment, N.R. wrote a self-incriminatory statement, but did not sign it, as a form of protest. The applicants were subsequently moved back to the Centru District Police Station, where the investigator offered them documents to sign under threat of further ill-treatment.
11. On 13 June 2001 the applicants were taken to Ialoveni Police Station. As was later explained by the Ialoveni police officers, this was necessary in order to verify the applicants' possible involvement in the crime against I.C. described above. On the same day the CPT delegation visited the police station. N.R. informed the CPT about ill-treatment at the Centru District Police Station and the General Police Directorate.
12. The applicants state that after the departure of the CPT delegation, they were taken to an office and ill-treated for hours on end, with truncheon blows to the soles of their feet and to their heads, in order to make them confess to crimes they had not committed.
13. On 14 June 2001 the CPT delegation returned to Ialoveni Police Station and saw N.R., who had complained of ill-treatment the day before.
14. On 15 June 2001 three officers from the Ministry of Internal Affairs visited N.R., who repeated his complaints of ill-treatment at the Centru District Police Station, the General Police Directorate, and Ialoveni Police Station. Both applicants were then taken to the Centru District Police Station and later to the General Police Directorate.
15. The applicants claim that as a result of their ill-treatment they partly lost their hearing and have frequent headaches and pain.
16. The applicants complained of ill-treatment in all three establishments in which they had been detained, but the prosecution refused to initiate criminal investigations in respect of all but one of the complaints, that relating to ill-treatment at Ialoveni Police Station. None of the police officers was suspended and some allegedly put pressure on the applicants and their families to withdraw their complaints.
17. On 15 June 2001 a police inspector, Colonel P.D., submitted a report to the Minister of Internal Affairs, describing the visit of the CPT to Ialoveni Police Station and the findings made on 14 June 2001, namely that the conditions of detention and medical care there were inadequate and that a person detained there, identified as Mr Roşca, had been found to have suffered serious bodily harm. P.D. proposed that the person concerned be transferred as a matter of urgency to a secure location and offered access to a lawyer and that a report be drawn up in compliance with the recommendations.
18. On 18 June 2001 the applicants were taken, in the absence of their lawyers, to a doctor to determine the degree of damage to their health. The doctor found injuries to various parts of their bodies, including haematomas ranging from 6 cm x 2 cm to 12 cm x 3 cm, which were characterised by the doctor as “slight injuries”.
19. Also on 18 June 2001 P.D. reported to the Minister of Internal Affairs on “the results of examining information regarding the torture of detainees at [Ialoveni Police Station]”. The report stated that the applicants had complained to the CPT of ill-treatment by officers from Ialoveni Police Station. The preliminary investigation established the names of three police officers who had dealt with the applicants' case there and those of another six officers involved in the case at the Centru District Police Station in Chişinău. On questioning, all the officers had denied ill-treating the applicants. Since medical reports showed slight injuries to both applicants and since the inconsistencies between the various pieces of evidence could only be explained after a full investigation, P.D. recommended the initiation of criminal proceedings against all nine police officers and investigators involved.
20. On 20 June 2001 the Deputy Minister of Internal Affairs asked the Prosecutor General's Office to initiate a criminal investigation into the case.
21. In a report to the Minister of Internal Affairs on an unknown date, the commanding officer at Ialoveni Police Station denied any ill-treatment of the applicants. He mentioned that they had made no request for access to a lawyer.
22. On 20 July 2001 the Prosecutor General's Office initiated a criminal investigation into the applicants' alleged ill-treatment. On the same day another investigation was initiated into the alleged negligence of the commanding officer at Ialoveni Police Station. The cases were later joined. On 23 October 2001 the investigation into the applicants' ill-treatment on 11 May 2001 in the Centru District Police Station was discontinued for lack of evidence. In response to the applicants' complaint, on 24 March 2002 the Prosecutor General's Office reiterated the decision of 23 October 2001. It appears that the applicants did not challenge either decision in court.
23. On 20 August 2001 a further medical report was issued after a fresh examination of N.R. The expert was asked whether the injuries which N.R. had sustained could have been caused by falling, or hitting objects in the cell. The report did not exclude this as an alternative explanation for the injuries.
24. On 2 November 2001 the prosecution submitted the case against the police officers from Ialoveni police station for examination by the trial court.
25. A certificate issued on 3 December 2002 by the governor of Prison no. 13 in Chişinău, where V.R. was detained, confirmed that V.R. was being treated for the consequences of brain damage and asthenic-depressive syndrome and mentioned an injury he had allegedly received to his head in 1999.
26. On 23 June 2003 the Centru District Court acquitted three officers accused of abuse of power for unlawfully beating the applicants. The court noted the CPT report, which stated that the delegates had examined the applicants and “found certain bodily injuries”. However, it found that it could not rely on the CPT report because, under procedural rules, only medical reports by specialist doctors could serve as a basis for a criminal conviction. Since the CPT report had not been made during the criminal investigation but was annexed to the file by the victims, it could not be relied on. The same could be said of the reports by P.D. (see above). The court did not comment on the medical reports dated 18 June 2001.
27. Two of the officers were convicted of negligence for failing properly to register I.C.'s complaint in 2000 and attempting to solve the alleged offence beyond the ambit of a proper criminal investigation. The applicants' claims for compensation for pecuniary and non-pecuniary damage sustained as a result of ill-treatment were rejected as unfounded.
28. In his appeal of 18 July 2003 N.R. complained, inter alia, of the court's failure to convict the officers of torture. He also pointed out that both he and V.R. had identified the police officers at an identity parade as the persons who had tortured them and that none of the officers could explain the origin of the injuries they had sustained while in detention. He referred to the statements of several fellow detainees in Ialoveni Police Station who confirmed that they had seen V.R. being taken in good health out of the cell only to return later with clear signs of ill-treatment. These witnesses denied seeing anybody in the cell hurt themselves. N.R. referred to the absence, in the criminal file against both applicants, of any reference to the applicants' participation in procedural steps at Ialoveni Police Station. This confirmed, in his view, that they had not been taken to that station for any lawful purpose. He finally referred to the civil action lodged by him and V.R. within the criminal proceedings. He questioned the application of the amnesty law to accused persons who had not compensated the victims of their crime, a state of affairs which he submitted was contrary to the law. V.R. lodged a similar appeal. In the prosecutor's appeal it was mentioned that each applicant had been offered photographs of the entire staff of Ialoveni Police Station for identification purposes and both had identified the police officers who had ill-treated them.
29. On 15 January 2004 the Chişinău Court of Appeal partly quashed the judgment given at first instance. It acquitted the two officers who had been convicted of negligence by the lower court, finding that it had not been their duty to register I.C.'s complaint. The court upheld the remainder of the lower court's judgment, finding in particular that it had been right to reject the applicants' complaint of ill-treatment. It considered that the statements made by the applicants were untrue because the description of their injuries in the medical reports did not coincide with their own description of the manner in which they had sustained the injuries and because “they could use their statements as a means of defence in the criminal proceedings in which they were accused of serious crimes”. Moreover, the CPT report and other related documents did not prove that the applicants had been ill-treated specifically by the officers accused in the case and thus could not be used as a basis for a conviction.
30. The applicants' lawyer lodged an appeal on points of law, relying on the various documents in the file and seeking the conviction of the accused for exceeding their authority through ill-treatment.
31. On 29 June 2004 the Supreme Court of Justice rejected the applicants' appeal on points of law, but allowed an appeal by the prosecutor, in which the latter sought the conviction of the two accused. It ordered the rehearing of the case by the Chişinău Court of Appeal.
32. On 26 January 2005 the Chişinău Court of Appeal quashed the district court's judgment in so far as it had acquitted the three officers of ill-treatment. It adopted a new judgment convicting all three officers of manifest abuse of authority (Article 185 (2) of the Criminal Code – see “Relevant domestic law” below). Each officer was sentenced to three years' imprisonment and disqualification from working in a law-enforcement agency for two years. The court also decided to suspend the enforcement of the judgment, with one year's probation, finding that the officers were relatively young, had families, had not been previously convicted and were viewed positively in society.
33. On 27 April 2005 the Supreme Court of Justice upheld that judgment. It found that the material in the file, including the CPT report, the witness statements and the medical reports proved beyond doubt that the three officers had ill-treated the applicants.
34. The applicants submitted copies of newspaper interviews with members of the Moldovan branch of Amnesty International and the President of the Moldovan Bar Association asserting that ill-treatment was routinely used in certain law-enforcement agencies, especially the police and investigators, in order to obtain self-incriminating statements and the conviction of innocent persons.
35. In a letter to the Court dated 15 September 2003, the applicants submitted that they had been detained in inhuman and degrading conditions both in the General Police Department situated at no. 6 Tighina St. and, from 28 June 2001, in Prison no. 3 in Chişinău (also known as Prison no. 13). In respect of the latter place of detention, they referred, in particular, to severe overcrowding (twenty prisoners in a 25 sq. m cell and up to ten prisoners detained for hours in closed 12 sq. m. boxes in courthouses while awaiting court hearings, without food, water or access to a toilet); thick cigarette smoke and strong odours from the open-plan toilet, coupled with a lack of ventilation; a lack of fresh water during most of the day; very limited access to daylight owing to the thick netting on the window; damp; inedible food; and inadequate medical assistance.
36. The applicants also alleged that their correspondence had been censored and their contact with the outside world severely limited while they were in the detention centre at no. 6 Tighina St. in Chişinău.
37. The relevant provisions of the Criminal Code, applicable at the relevant time, read as follows:
“The court shall pass sentence in strict compliance with the provisions of the General Part of the present Code and within the limits of the Article in the Special Part of the present Code which lays down the penalty for the offence committed. In passing sentence, the court shall rely on its legal consciousness and shall take into account the nature and degree of social danger caused by the offence, the defendant'
“When passing sentence the following shall be considered mitigating circumstances:
1. the fact that the offender averted the harmful effects of the crime, provided voluntary compensation for the harm or remedied the damage;
2. the offence resulted from a combination of difficulties of a personal or family order;
3. the offence was committed under threat or coercion, or as a result of economic or work-related difficulties or other forms of dependence;
4. the offence was committed under the influence of a strong emotional reaction provoked by an unlawful act on the part of the victim;
5. the offence was committed in order to fend off a socially dangerous attack, even if the limits of legitimate defence were exceeded;
6. the offence was committed by a minor;
7. the offence was committed by a pregnant woman;
8. sincere repentance or voluntary surrender;
9. active contribution to the solving of the crime.
In passing sentence the court may also consider other circumstances to be mitigating circumstances.”
“In passing sentence, the following shall be considered aggravating circumstances:
1. the offender has previous convictions.
Depending on the nature of the previous offence [or offences], the court shall have the power not to consider it an aggravating circumstance;
2. the offence was committed by an organised group;
3. the offence was committed for financial or other base motives;
3/1. the offence was committed on account of [the victim's] national identity, or racial hatred or contempt;
4. the offence had serious consequences;
5. the offence was committed against a minor, or an elderly or vulnerable person;
6. the offence was committed by a person responsible for protecting public order;
7. the instigation of minors to commit or involvement of minors in the commission of an offence;
8. the offence involved particular cruelty or the debasement of the victim;
9. the offence was committed during a natural disaster;
10. the offence caused a generalised danger;
11. the offence was committed through the abuse of another person's financial, work-related or other position of dependence;
12. the offence was committed under the influence of alcohol. The court shall have the power not to consider this an aggravating circumstance, depending on the nature of the offence;
13. the offence was committed by a person who had been released pending trial under a personal guarantee during the period of the guarantee or within a year after its expiry.”
“
The probation period shall be for between one and five years. ...”
“Actions which intentionally cause pain or severe physical or moral suffering to a person, especially with the aim of obtaining from that person or from a third party information or confessions, punishing an act which that person or a third party has committed or is suspected of having committed, or intimidating or putting pressure on such a person or on a third party, or for any other reason based on a form of discrimination, regardless of the ground, when such pain or suffering is caused by an agent of a public authority or by any other person acting in an official capacity or is, expressly or implicitly provoked or condoned by such an agent, with the exception of pain or suffering which results exclusively from lawful sanctions and is inherent in such sanctions or is caused thereby,
shall be punished with deprivation of liberty for a period of between three and seven years.”
“Abuse of authority or ultra vires acts, that is, acts by a public official which manifestly exceed the limits of the rights and powers given by law, shall, if they cause substantial damage to a public interest or to the rights and lawful interests of natural and legal persons,
be punished with either deprivation of liberty for a period of up to three years, or a fine of between 30 and 100 times the minimum salary, or with removal from office, in all cases accompanied by disqualification from occupying certain functions or engaging in certain activities for a period of up to five years.
Abuse of authority or ultra vires acts, accompanied by acts of violence or the use of a weapon or by acts of torture and which harm the victim's personal dignity,
shall be punished with deprivation of liberty for a period of three to ten years, and disqualification from occupying certain functions or engaging in certain activities for a period of up to five years.”
38. The Code of Ethics and Deontology for the Police was adopted on 10 May 2006 (Law no. 481, in force since 18 May 2006). According to that Code, it is prohibited to ill-treat and to tolerate or encourage ill-treatment and inhuman or degrading treatment or punishment “regardless of the circumstances”.
39. The relevant provisions of Law no. 1545 (1998) on compensation for damage caused by the illegal acts of the criminal investigation organs, prosecution and courts have been set out in Sarban v. Moldova (no. 3456/05, § 54, 4 October 2005).
40. In the case of Belicevecen v. the Ministry of Finance (no. 2ra-1171/07, 4 July 2007) the Supreme Court of Justice found that a person could claim damages on the basis of Law no. 1545 (1998) only if he or she had been fully acquitted on all the charges against him or her. Since Mr Belicevecen had been found guilty in respect of one of the charges brought against him, he could not claim any damages.
41. The relevant parts of the CPT report concerning its visit to Moldova from 10 to 22 June 2001 read as follows:
“24. Particular attention should be paid to the case of a detained person met at Ialoveni EDP. During the first interview, this man did not exhibit any lesions or marks. When he was seen at a further interview the following day, a medical examination by one of the delegation's doctors revealed in the left temple area, a 1 cm long wound covered with crusts, and in the left kidney region a 8 x 3 cm bluish red haematoma. Both soles of the feet were very painful on palpation and hard, especially in the heel area. These lesions and signs are consistent with his allegations that in the evening of the previous day, after the delegation's departure, he had been struck several times on the head with a piece of hard rubber by police officers in an EDP office, and that after being forced to kneel on a chair with his wrists handcuffed in front of him, he had been beaten on the soles of his feet and the left kidney region during questioning.
Since the person expressed fears that he would suffer further ill-treatment after the delegation's departure, the latter asked the Interior Ministry's liaison officer for immediate steps to be taken to secure his protection and for an inquiry to be undertaken into the treatment of persons in custody in this EDP. The individual concerned was transferred to the EDP of the capital and received a forensic medical examination in the presence of his lawyer. The internal investigation carried out during the visit by the Ministry of Internal Affairs also showed that another person held in the same EDP had made allegations of physical ill-treatment before the persons in charge of the investigation. This person also underwent a forensic medical examination. By letter dated 5 November 2001, the Moldovan authorities have indicated that legal proceedings have been initiated by the Prosecution Service under Article 182, paragraph 5 of the Penal Code (abuse of power/abuse of office). An investigation has been opened and the file will shortly be transferred to court.
The CPT has taken note of this information with interest and would like to be informed in due course of the decision of the court.
25. As indicated in paragraph 13 above, in response to the deterioration in the situation, the delegation invoked Article 8, paragraph 5 of the Convention to request the Moldovan authorities to carry out, without further delay, a thorough and independent inquiry into the methods used by operational police units throughout the country during the questioning of detained persons. In their letter dated 5 November 2001, the Moldovan authorities simply indicate that 'the Ministry of Interior declares that it is not aware of concrete cases of recourse to inhuman methods of interrogation of persons detained by the police' and recalls the procedures in force in case of complaints of ill-treatment. Such a position is, in the view of the Committee, clearly untenable, considering all the information gathered during the 2001 visit.
With reference to Article 3 of the Convention, the CPT urges the Moldovan authorities to carry out without delay the aforementioned investigation and to inform the Committee, within three months of transmission of the report on the 2001 visit, of the results thereof.”
42. The relevant parts of the response submitted on 26 June 2002 by the Moldovan Government to the 2001 CPT report read as follows:
“24. The CPT would like to be informed of the court's decision, following the prosecutor's request, concerning the case mentioned in the relevant paragraph.
We inform you that the criminal case (mentioned in paragraph 24 of the 2001 Report), based on Article 185 § 2 of the Criminal Code 'Abuse of authority or ultra vires acts' is still at an investigatory stage.
...
28. The CPT would like comments from the Moldovan authorities concerning the development of modern methods of investigation.
In this respect, regretfully, no progress has been achieved.
29. The CPT would like to obtain information on the progress achieved in drafting a Code of Deontology for the police.
To our great regret, no progress was achieved in this respect.”
43. The Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol) was submitted to the United Nations High Commissioner for Human Rights on 9 August 1999. The “Istanbul Principles” subsequently received the support of the United Nations through resolutions of the United Nations Commission on Human Rights and the General Assembly. It is the first set of guidelines to have been produced for the investigation of torture. The Protocol contains full practical instructions for assessing persons who claim to have been the victims of torture or ill-treatment, for investigating suspected cases of torture and for reporting the investigation's findings to the relevant authorities.
The principles applicable to the effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment are to be found in Annex 1 of the Manual, the relevant parts of which read as follows:
“The purposes of effective investigation and documentation of torture and other cruel, inhuman or degrading treatment (hereafter referred to as torture or other ill-treatment) include the following: clarification of the facts and establishment and acknowledgment of individual and State responsibility for victims and their families, identification of measures needed to prevent recurrence and facilitation of prosecution or, as appropriate, disciplinary sanctions for those indicated by the investigation as being responsible and demonstration of the need for full reparation and redress from the State, including fair and adequate financial compensation and provision of the means for medical care and rehabilitation.
States shall ensure that complaints and reports of torture or ill-treatment shall be promptly and effectively investigated. Even in the absence of an express complaint, an investigation should be undertaken if there are other indications that torture or ill-treatment might have occurred. The investigators, who shall be independent of the suspected perpetrators and the agency they serve, shall be competent and impartial. They shall have access to, or be empowered to commission, investigations by impartial medical or other experts. ...
The investigative authority shall have the power and obligation to obtain all the information necessary to the inquiry. ... Those potentially implicated in torture or ill-treatment shall be removed from any position of control or power, whether direct or indirect, over complainants, witnesses and their families, as well as those conducting the investigation.
Alleged victims of torture or ill-treatment and their legal representatives shall be informed of, and have access to, any hearing as well as to all information relevant to the investigation and shall be entitled to present other evidence.
...
A written report, made within a reasonable time, shall include the scope of the inquiry, procedures and methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law. On completion, this report shall be made public. It shall also describe in detail specific events that were found to have occurred and the evidence upon which such findings were based, and list the names of witnesses who testified with the exception of those whose identities have been withheld for their own protection. The State shall, within a reasonable period of time, reply to the report of the investigation, and, as appropriate, indicate steps to be taken in response.
Medical experts involved in the investigation of torture or ill-treatment should behave at all times in conformity with the highest ethical standards and in particular shall obtain informed consent before any examination is undertaken. The examination must follow established standards of medical practice. In particular, examinations shall be conducted in private under the control of the medical expert and outside the presence of security agents and other government officials.
The medical expert should promptly prepare an accurate written report. This report should include at least the following:
(a) The name of the subject and the name and affiliation of those present at the examination; the exact time and date, location, nature and address of the institution (including, where appropriate, the room) where the examination is being conducted (e.g. detention centre, clinic, house); and the circumstances of the subject at the time of the examination (e.g. nature of any restraints on arrival or during the examination, presence of security forces during the examination, demeanour of those accompanying the prisoner, threatening statements to the examiner) and any other relevant factors;
(b) A detailed record of the subject's story as given during the interview, including alleged methods of torture or ill-treatment, the time when torture or ill-treatment is alleged to have occurred and all complaints of physical and psychological symptoms;
(c) A record of all physical and psychological findings on clinical examination, including appropriate diagnostic tests and, where possible, colour photographs of all injuries;
(d) An interpretation as to the probable relationship of the physical and psychological findings to possible torture or ill-treatment. A recommendation for any necessary medical and psychological treatment and further examination should be given;
(e) The report should clearly identify those carrying out the examination and should be signed.
...”
VIOLATED_ARTICLES: 3


ITEMID: 001-107712
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF RAFIG ALIYEV v. AZERBAIJAN
IMPORTANCE: 3
CONCLUSION: Remainder inadmisible;Violation of Art. 5-3;Violation of Art. 5-4;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The applicant was born in 1967 and lives in Baku. He was the chief executive officer of various Azerbaijani subsidiaries of Azpetrol International Holdings B.V. (hereafter “Azpetrol”, including its various subsidiaries and subdivisions), one of the largest private companies operating in Azerbaijan.
6. At approximately 7 a.m. on 19 October 2005 the applicant arrived at Baku International Airport for a business trip to Chişinău, Moldova. When passing through customs and border controls, the applicant reported that he was carrying 900 US dollars (USD) in foreign currency, which was below the minimum threshold of USD 1,000 required at the material time for a customs declaration.
7. Having passed through customs, the applicant waited for his flight in the VIP area for 25-30 minutes. His luggage was with the VIP staff who were responsible for taking it to the aircraft. After the flight was announced, the passengers from the VIP area were taken to the aircraft in a minibus. However, when boarding the aircraft the applicant was stopped by officers of the State Customs Committee, taken back to the airport customs office and informed that he was suspected of carrying a large amount of foreign currency in his carry-on luggage.
8. During the inspection of the carry-on luggage, three packs of banknotes for a total amount of USD 30,000 were found in the outer compartment of the bag. The applicant protested, claiming that it was not his money and that it must have been “planted” in his bag when the bag was with the VIP staff.
9. From 7 a.m. to 4 p.m. the applicant was detained at the airport by the State Customs Committee. During this time, he was not allowed to contact his family or a lawyer of his choosing. At around 4 p.m. the applicant was taken to the Investigation Department of the State Border Service. At 9 p.m. he was allowed to contact one of his brothers, Alipanah Aliyev, to inform him of his whereabouts.
10. The investigator in charge of the applicant’s case informed him that a criminal case had been instituted against him under Article 206.1 of the Criminal Code (contraband; illegal transfer of large quantities of goods or other valuables through customs without a declaration).
11. At around 11.55 p.m. the investigator attempted to interrogate the applicant in the presence of a State-appointed lawyer, but the applicant refused to be represented by that lawyer. An entry was made in the investigator’s records concerning this refusal.
12. At about 7 a.m. on 19 October 2005 the applicant arrived at the airport. When the applicant passed through the customs control area, the X-ray monitor revealed some paper packets in the applicant’s bag. A customs official asked the applicant whether he had anything undeclared with him. The applicant replied in the negative. After the applicant entered the VIP lounge, the customs official reported his suspicions to his superior. At about 7:30 a.m. a representative of the airport’s customs office, together with the representative of the State Border Service and two witnesses, searched the applicant’s baggage and found USD 30,000 that had not been declared.
13. The customs officials conducted an initial inquiry, made records of the applicant’s explanation and witness statements and took an inventory of each bank note. These procedures took several hours and lasted until around 5.50 p.m. The customs officials then sent the relevant material to the Prosecutor General’s Office.
14. At around 9.30 p.m. the applicant made a telephone call to one of his brothers, requesting a lawyer. The lawyer of the applicant’s choosing did not appear and the investigator of the Investigation Department of the State Border Service called a lawyer at the State’s expense. However, the applicant refused the lawyer’s assistance and stated, in writing, that he would conduct his own defence until the moment the lawyer of his own choosing arrived.
15. At 10.30 p.m. the investigator drew up a record of the applicant’s arrest as a person suspected of committing a criminal offence (tutma protokolu). He was informed of his rights and questioned from 10.50 p.m. to 11.15 p.m.
16. On 20 October 2005 two lawyers secured by the applicant’s family arrived. The applicant was subsequently charged and questioned in the presence of his lawyers.
17. On the same day, one of the applicant’s brothers, Farhad Aliyev, the then Minister of Economic Development, was arrested by the Ministry of National Security on suspicion of organising a coup d’état (see Farhad Aliyev v. Azerbaijan, no. 37138/06, 9 November 2010, for more details concerning that case).
18. According to the applicant, his other brothers were either dismissed from their jobs or arrested. Alipanah Aliyev, the Head of the Environment Committee of the Baku City Executive Authority, was dismissed from his job. Ashad Aliyev, a CEO of a private company, was prosecuted on charges of tax evasion but was later released after agreeing to pay what was alleged to be due. Sudeef Aliyev, a manager of a small carpet factory, was also accused of tax evasion. Alovsat Aliyev, who intended to stand as a candidate for the forthcoming parliamentary elections, had his candidature revoked by a court decision. According to the applicant, a number of his colleagues were also dismissed from their positions.
19. According to the applicant, on the day of his arrest, officials of the Ministry of Taxes carried out an inspection in the offices of Azpetrol in Baku and seized large amounts of cash from the company’s cash register after finding some irregularities in the company’s bookkeeping.
20. At the same time, officials of the Ministry of National Security (hereinafter “MNS”) carried out searches in the applicant’s apartment as well as two office buildings of Azpetrol. According to the applicant, MNS officials seized a number of personal and household items from the applicant’s apartment, including his children’s computers, phonebooks, two videotapes, and a number of valuable items including expensive watches and jewellery belonging to the applicant and his wife. From the Azpetrol offices, they also seized certain documents and officially registered firearms used by the company’s security personnel. Although several months later, in March 2006, the applicant lodged a petition with the prosecution authorities asking for the return of personal items seized from him, this petition was rejected on 27 March 2006 on the ground that under Article 129.4 of the Code of Criminal Procedure (“the CCrP”) the prosecution could retain physical evidence until the trial.
21. On 20 and 21 October 2005 the official newspapers and other mass media published two press releases with the headline “Special Statement of the Prosecutor General’s Office, the Ministry of National Security and the Ministry of Internal Affairs of the Republic of Azerbaijan”. These press releases officially informed the public about the arrest and indictment of a number of well-known current and former State officials and provided a summary of the evidence gathered in respect of their alleged plans for the “forcible capture of power” during the election period, “under the guise of an appeal for democratic changes in the political situation in the country”. The evidence mainly consisted of the testimony of one of the arrested persons concerning secret meetings between them and their sources of financing, as well as large amounts of cash and other valuables found in the homes of some of them. Additionally, some of the arrested persons were suspected of embezzlement of public funds and abuse of authority. Specifically, the press releases mentioned the names of the applicant’s brother Farhad Aliyev, the former Parliament Speaker Rasul Guliyev, the former Minister of Finance Fikret Yusifov, the Minister for Health Care Ali Insanov, as well as other, less prominent names. It appears that all of the mentioned persons (except Rasul Guliyev, who was not physically present in Azerbaijan) had been arrested prior to the publication of the press releases.
22. The applicant’s name was also mentioned in the press releases, as quoted below, together with the names of other persons suspected of an attempted coup d’état. However, none of these statements disclosed the fact that, as of the time of publication of these statements, the applicant had actually been arrested on suspicion of, and charged with, an unrelated offence.
23. The press release of 20 October 2005 stated, inter alia:
“It was established that former Minister of Finance Fikret Yusifov was the contact responsible for obtaining large amounts of funding for the forcible capture of State power... He was arrested as a suspect on 16 October. ... 100,000 euros and 60,000 US dollars were seized from Fikret Yusifov’s flat during a search conducted in the context of the investigation...
On 18 October 2005 Fikret Yusifov wrote to the Prosecutor General... and indicated his willingness to voluntarily provide information about the preparatory actions by Rasul Guliyev and his supporters aimed at usurping State power...
Fikret Yusifov stated in his testimony that, during his visit to St Petersburg in the Russian Federation in July 2005, Rasul Guliyev ... had contacted him on his mobile phone and instructed him to pass on his directions concerning the financing of the process of the capture of State power to the Minister for Economic Development, Farhad Aliyev, and his other supporters who had the necessary financial means.
In this connection, in August of the current year Fikret Yusifov met Farhad Aliyev in the office of the latter’s brother Rafig Aliyev and informed him about Rasul Guliyev’s directions. Farhad Aliyev promised to provide any kind of assistance in this matter and to take additional measures via his contacts. At the end of August Fikret Yusifov went to St Petersburg and notified Rasul Guliyev by phone about Farhad Aliyev’s agreement.
Pursuant to another instruction by Rasul Guliyev, [Fikret Yusifov] returned to Baku on 23 September and again met Farhad Aliyev in the same office ... [Farhad Aliyev] again gave assurances that he would provide any kind of assistance and that he was ready to provide funding in the amount of 3,000,000 US dollars and to organise anything within his capability.
On 3 October 2005 Fikret Yusifov met Rasul Guliyev in Berlin. During the meeting, Rasul Guliyev stated that he was planning to return to Baku in the middle of October and stressed that it was important that he be met by a large group of people, which would prevent his arrest, and that State power be forcibly seized by creating public disorder. Rasul Guliyev also gave a specific instruction that Farhad Aliyev should provide substantial financial assistance for implementing these plans.
Having returned to Baku, Fikret Yusifov met Farhad Aliyev and notified him about this instruction. On 15 October Farhad Aliyev personally gave cash in the amount of 100,000 US dollars to Fikret Yusifov for the purposes of financing the usurpation of State power. This money was found during the search of Fikret Yusifov’s flat on 16 October 2005 and was seized as physical evidence.
During the searches conducted in the course of the investigation in houses, dachas and other properties belonging to Farhad Aliyev, [the authorities] seized large amounts of foreign currency, jewellery, works of art and other valuable items obtained in a criminal manner.
As a result of operational measures, it was also established that Farhad Aliyev, having abused his official authority and committed serious breaches of the law during the process of privatisation of State property, had procured documents of title to State property at negligible prices and formally registered the property in the name of his relatives and acquaintances, and thus de facto transferred it into his ownership.
An investigation into breaches of the law is currently under way in numerous commercial companies linked to Farhad Aliyev, including Azpetrol. Rafig Aliyev, the owner of Azpetrol, was arrested at the airport while attempting to leave the country.
Based on the material gathered, the Prosecutor General instituted criminal proceedings under Articles 179.3 (embezzlement), 308.2 (abuse of official authority), 28/220 (preparation to organise public disorder) and 278 (usurpation or forcible retention of State power) of the Criminal Code and on 19 October 2005 Farhad Aliyev was arrested as a suspect in connection with these criminal proceedings.”
24. The press release of 21 October 2005 stated, inter alia:
“As has been notified earlier, during the searches conducted in the course of the investigation in houses, dachas and other properties belonging to the former Minister for Economic Development Farhad Aliyev, arrested as a suspect in connection with the criminal proceedings under Articles 179.3, 308.2, 28/220 and 278 of the Criminal Code, [the authorities] have seized large amounts of foreign currency, jewellery, works of art and other valuable items obtained in a criminal manner.
In particular, [the following were seized during the searches:] 50,500 US dollars, 6,000 euros and 860 UK pounds sterling from Farhad Aliyev’s personal office in the administrative building of the Ministry of Economic Development; 30,000 euros and 6,500 US dollars from his flat...; 34 valuable works of art and 500 privatisation vouchers from his dacha; 565,000 US dollars and 5,609,000,000 [old] Azerbaijani manats, which had not been entered in accounting books, from his brother Rafig Aliyev’s office at Azpetrol. In addition, jewellery in large amounts, seven firearms of various models, other valuable items, and documents of title to numerous items of real property have been discovered at the mentioned addresses. The investigation continues into offences of corruption and other breaches of the law within numerous commercial companies belonging de facto to Farhad Aliyev. ...”
25. On 20 October 2005 the investigator of the State Border Service opened a criminal case against the applicant (case no. 76587) and formally charged the applicant under Article 206.1 of the Criminal Code with an attempt to transfer a large amount of undeclared foreign currency through customs.
26. At 6 p.m. on the same day, the applicant was taken to the Sabail District Court. The hearing lasted about ten to fifteen minutes. Based on the official charges brought against the applicant and the prosecutor’s request for applying the preventive measure of remand in custody, the judge ordered the applicant’s remand in custody (həbs qətimkan tədbiri) for a period of two months. The judge substantiated the necessity of this measure by the gravity of the alleged criminal action of the applicant and by the possibility of his absconding. This was the only court hearing at which the applicant was present himself. He was represented by his lawyers in the subsequent court hearings, but was not permitted to attend them in person.
27. It appears that, following the Sabail District Court’s detention order, the applicant was taken to Detention Facility No. 1.
28. The applicant appealed against the Sabail District Court’s order of 20 October 2005, complaining about a lack of evidence and the absence of any relevant and sufficient reasons for his pre-trial detention. On 27 October 2007 the Court of Appeal dismissed his appeal, repeating the lower court’s reasoning and finding that it was correct. The Court of Appeal’s decision did not address any of the applicant’s specific complaints.
29. On 22 October 2005 the applicant was transferred to the MNS Detention Facility. His lawyer was not informed about this. He made enquiries with the Deputy Head of the Department of Investigation of Serious Crimes at the Prosecutor General’s Office, requesting information as to the applicant’s whereabouts.
30. On 10 November 2005 the lawyer was officially informed that on 22 October 2005 the applicant’s criminal case no. 76587 had been transferred to the Prosecutor General’s Office and joined with Farhad Aliyev’s criminal case no. 76586. The applicant’s lawyer requested a copy of the decision on the joinder of the criminal cases. On 25 November this request was rejected on the ground that the CCrP did not require such decisions to be made available to the applicant’s lawyer.
31. On 2 December 2005 the applicant lodged a complaint with the Prosecutor General, claiming that there were no legal grounds for joining the applicant’s case to Farhad Aliyev’s case because they had each been charged with totally unrelated offences. On 8 December 2005 the Prosecutor General rejected this complaint.
32. On 25 November 2005 the applicant applied to the Sabail District Court with a request to substitute house arrest for the preventive measure of remand in custody. He argued that, owing to the questionable nature of the evidence, there could be no reasonable suspicion that he had committed a criminal offence, and that in any event the detention order was not justified in his personal circumstances. On 6 December 2005 the Sabail District Court rejected this request, finding that there were “no circumstances excluding the possibility of the applicant’s absconding, creating danger for society, and failing to appear before the investigating authorities without good reason”.
33. On 13 December 2005 the Nasimi District Court (which supervised criminal case no. 76586, to which the applicant’s original case was now joined) extended the period of the applicant’s remand in custody by two months (until 19 February 2006). The judge substantiated the necessity of this measure as follows:
“... It is not possible to complete all the [required] investigative steps before [the expiry of the applicant’s initially authorised detention period].
Taking into account the gravity of the actions imputed to [the applicant], the circumstances in which the criminal offence was committed, and the possibility of the accused absconding from the authority conducting the criminal proceedings, the preventive measure of remand in custody chosen in his case should be extended.”
34. On 20 December 2005 the Court of Appeal upheld this decision.
35. By a decision of 10 February 2006, the Nasimi District Court extended the period of the applicant’s detention by another two months (until 19 April 2006). On 16 February 2006 the Court of Appeal upheld this decision.
36. On 13 April 2006 the Nasimi District Court extended the period of the applicant’s detention by another three months (until 19 July 2006). On 21 April 2006 the Court of Appeal upheld this decision.
37. Prior to each of the extension orders, the applicant lodged a series of applications with the Prosecutor General’s Office, asking the prosecuting authorities not to lodge an extension request with the court, owing to the applicant’s personal circumstances, which made it unlikely that he would flee from investigation. All of these applications were rejected.
38. In all of the hearings concerning the extension of his detention and the related appeal hearings, the applicant was represented by his lawyer (or lawyers). The applicant himself was absent.
39. In all of its decisions extending the applicant’s detention, the Nasimi District Court’s reasoning justifying his continued detention was the same as or similar to that cited in paragraph 33 above. In his appeals against those decisions, the applicant complained that there was no reliable evidence giving rise to a reasonable suspicion that he had committed a criminal offence, that in any event the investigation for the rather simple charge against him was proving unreasonably long and he should already have been committed for trial, that the extension orders were based only on the submissions of the prosecuting authority and without an independent review by the court of the evidentiary material, that there were no reasons to believe that he would abscond or influence the investigation, and that his personal circumstances had not been taken into account when assessing the necessity of his continued detention. The Court of Appeal’s decisions upholding the extension of the applicant’s detention repeated the lower court’s reasoning and did not contain any assessment of the specific arguments raised by the applicant in his appeals.
40. On an unspecified date in June 2006 the Prosecutor General’s Office requested the Nasimi District Court to impose a measure of restraint on some of the applicant’s assets, based on the prosecution’s discovery of evidence that in June and September 2005 the applicant, as the head of some of the companies belonging to him and with the help of a number of accomplices forming an organised criminal group, had smuggled large quantities of petroleum products belonging to the State out of the country across the Azerbaijani-Georgian border, evading customs control by means of forging documentation and misrepresenting the true nature of the transaction. The prosecution also claimed that they had discovered evidence of tax evasion committed by Prestige LLC, a company “actually controlled” by the applicant, as well as of embezzlement of others’ property in large amounts. By the time of this request by the Prosecutor General’s Office, no formal charges had been brought against the applicant in connection with any of the above incidents involving the alleged criminal offences of petroleum smuggling, tax evasion or embezzlement.
41. Following the above-mentioned injunction request by the Prosecutor General’s Office, on 8 June 2006 the Nasimi District Court issued a restraint order (attachment order) in respect of 381,310 shares owned personally by the applicant in the registered capital of the Bank of Baku JSC (11.215% of the registered capital), as well as another 336,430 shares in the same bank (9.895% of the registered capital) owned by Azinvest LLC, a company “de facto owned by the applicant”. The court noted that the illegal activities described in the prosecution’s request for attachment of property constituted criminal offences for which the relevant provisions of the Criminal Code prescribed inter alia a sanction of confiscation of property. The court further noted that the prosecution possessed information that the applicant had acquired the shares in the Bank of Baku using the funds obtained from these illegal activities. Therefore, there was a basis for attaching the applicant’s assets under Articles 248, 249 and 250 of the CCrP in order to guarantee the sanction of confiscation of property that might subsequently be imposed by the trial court.
42. The applicant subsequently lodged a belated appeal against this decision, which was accepted for examination owing to the finding that the applicant had good reasons for having missed the appeal deadline. However, on 10 October 2006 the Court of Appeal dismissed the applicant’s appeal and upheld the Nasimi District Court’s decision of 8 June 2006.
43. On 5 July 2006 the investigator issued a new decision bringing formal criminal charges against the applicant. Under this decision, the applicant was now charged with criminal offences under Articles 206.3.1 (contraband, committed repeatedly), 206.4 (contraband, committed by an organised group) and 313 (forgery in public office) of the Criminal Code. Specifically, these charges related to the alleged smuggling of large quantities of petroleum to Georgia in June and September 2005, as described in paragraph 40 above, and to the original accusation of smuggling the undeclared amount of USD 30,000 through customs on 19 October 2005.
44. Later, on an unspecified date, the investigator lodged a request with the Nasimi District Court for the extension of the period of the applicant’s pre-trial detention. In addition to the new formal charges of 5 July 2006, the request also mentioned that the investigation had evidence of the applicant’s complicity in the attempted coup d’état, an offence with which his brother Farhad Aliyev and other persons had been charged.
45. On 14 July 2006, based on the new criminal charges against the applicant and the investigator’s extension request, the Nasimi District Court extended the period of the applicant’s detention by another three months (until 19 October 2006). The court’s reasoning justifying the applicant’s continued detention was similar to that given in previous extension orders.
46. On 28 September 2006 the investigator issued a new decision bringing formal criminal charges against the applicant. Under this decision, the applicant was now charged with criminal offences under Articles 206.4, 206.3.1, 28/220.1 (preparation to organise public disorder), 278 (actions aimed at usurping State power) and 313 of the Criminal Code. In addition to the criminal offences with which he had already been charged, the applicant was also accused of organising, together with a number of other persons including his brother Farhad Aliyev, massive unrest and a coup d’état after the parliamentary elections of 6 November 2005. More specifically, he had allegedly undertaken to provide necessary funding for preparation of the coup d’état and arranged secret meetings between its organisers in his office.
47. On 2 October 2006 the Nasimi District Court extended the period of the applicant’s detention by another six months (until 19 April 2007). On 10 October 2006 the Court of Appeal upheld that decision.
48. On 1 March 2007 the investigator issued a new decision bringing formal criminal charges against the applicant. By this decision, the applicant was now charged with criminal offences under Articles 179.3.1 (embezzlement by an organised group), 179.3.2 (embezzlement in large amounts), 188 (violation of the right of ownership to land), 192.2.1 (illegal commercial activity resulting in grave pecuniary damage), 192.2.2 (illegal commercial activity yielding a large amount of profit), 206.3.1, 206.4, 213.4 (tax evasion in large amounts), 28/220.1, 278, 259 (illegal damage to forests) and 313 of the Criminal Code.
49. On 5 March 2007 a new criminal case (no. 76961) was severed from criminal case no. 76586. In the context of the new criminal case no. 76961, the applicant was charged under Articles 179.3.1, 179.3.2, 188, 192.2.1, 192.2.2, 206.3.1, 206.4, 213.4, 259 and 313 of the Criminal Code.
50. The investigation in criminal case no. 76961 was completed on 5 March 2007.
51. On 16 April 2007 the investigator issued the final bill of indictment in criminal case no. 76961. On the same day, the bill of indictment was signed by the Prosecutor General and the case was referred to the Assize Court for trial.
52. Thus, criminal case no. 76961 was sent for trial in the Assize Court. There were nineteen co-defendants standing trial in this case, including the applicant and his brother Farhad Aliyev, on charges of complicity in various offences involving embezzlement and corruption. It appears that the original criminal case no. 76586, which still carried the charges against the applicant under Articles 28/220.1 (preparation to organise public disorder) and 278 (actions aimed at usurping State power) of the Criminal Code, was not sent for trial, but was not terminated either.
53. On 15 May 2007 the applicant’s lawyers applied to the Assize Court, seeking his release on the ground that the latest detention order in respect of him, as well as the statutory maximum period for detention during the pre-trial investigation, had expired on 19 April 2007. It appears that at least six other co-defendants also requested release pending trial, relying on various grounds.
54. At its preliminary hearing on 21 May 2007 the Assize Court rejected the requests by the applicant and his co-defendants for release and authorised their continued detention pending trial. In particular, in connection with the applicant’s specific argument that his detention was unlawful following the expiry of the relevant period on 19 April 2007, the Assize Court noted that the criminal case had been referred to the court a few days before 19 April 2007, and that the period of the applicant’s detention “pending investigation” had ended on that day. Therefore, his detention had not exceeded the time-limits specified by law.
55. Furthermore, assessing the situation of all the detained co-defendants collectively, the Assize Court decided that “the preventive measure of remand in custody had been chosen correctly and should remain unchanged”. The court noted that “the accused persons detained on remand” had sufficient financial means, as well as business and other contacts in foreign countries, which could enable them to leave the territory of Azerbaijan and thus abscond from the trial. It further noted that, using those significant financial means, the detained persons could apply illegal pressure on persons participating in the trial.
56. The applicant was tried by the Assize Court together with eighteen other accused persons, including his brother Farhad Aliyev.
57. On 25 October 2007 the Assize Court convicted the applicant of all the criminal offences he was charged with under criminal case no. 76961 and sentenced him to nine years’ imprisonment, with confiscation of property.
58. On 16 July 2008 the Baku Court of Appeal upheld the Assize Court’s judgment. On 6 July 2009 the Supreme Court upheld the lower courts’ judgments in respect of the applicant.
59. Starting from 22 October 2005 and throughout the pre-trial and trial proceedings until his conviction on 25 October 2007, the applicant was detained in the MNS Detention Facility. The applicant was kept in a cell which had sufficient space for only one person, although it might have been designated as a double-occupancy cell. He was detained alone for a period of approximately one year before the authorities offered to place a second inmate in his cell; the applicant refused this offer. The cell was dirty and measured about 8 sq. m. Approximately 4.2 sq. m of the total floor area was occupied by the furniture. The window was 0.7 m high and 1.1 m wide. However, because of the width of the window frames (5 cm), the window pane measured 0.5 m by 1 m. The window was covered, with only its top part open, allowing very little natural light to enter the cell. The ventilation and heating systems did not function properly and, therefore, it was extremely cold in winter and extremely hot in summer. There was a wall lamp which was switched on throughout the day and night, which constantly disturbed the applicant and made it hard for him to sleep.
60. The applicant was allowed one hour of out-of-cell exercise per day. The exercise area was extremely confined. The gym facilities in the MNS Detention Facility were not freely available during the applicant’s exercise time, as their use was dependent on a warder being available to supervise the applicant.
61. There was no proper laundry and the applicant had to send his dirty clothes home for washing. He was allowed to take a shower once a week in a shower area where the temperature of the water was regulated from the outside by warders. The food was of poor quality. The applicant had no television set in his cell and had limited access to radio and literature and was provided only with “pro-Government” newspapers.
62. The applicant was handcuffed when he was taken to meet with his lawyers and to interrogations. The handcuffs were removed during those meetings and interrogations. The applicant was not allowed to make telephone calls or write to his wife and family, who were not permitted to write to him or visit him either. The applicant’s requests to be allowed to correspond or be visited by his family during the pre-trial investigation were rejected.
63. In the MNS Detention Facility, at his own request, the applicant was detained alone in a cell designed for two inmates. The area of the cell was about 10 sq. m. The cell had a window that was 1.4 m wide and 1.2 m high. The cell was connected to the MNS building’s central heating system and was well lit and ventilated. While the electric lighting was switched on throughout the day and night in accordance with the relevant regulations, the lamp was mounted in a manner that did not disturb inmates’ sleep.
64. The applicant was permitted to walk outside his cell for two hours a day and to use a gym. Food was served three times a day. In addition, like all other detainees, the applicant was allowed to receive from home a food package of up to 5 kg per week. The applicant was provided with clean towels and bedding, which were washed in the detention facility’s laundry. Once a week he received clean clothing from his family, so he was always dressed according to the season. The applicant was never handcuffed during questioning or any other investigative steps.
65. The relevant provisions of the Code of Criminal Procedure (CCrP) concerning police custody, detention on remand and proceedings concerning application and review of detention on remand are summarised in the Farhad Aliyev case (cited above, §§ 83-102).
66. According to Articles 248 and 249 of the CCrP, in order to ensure execution of a judgment in a part pertaining to a civil claim or an eventual confiscation of property in circumstances provided for under criminal law, an investigator or prosecutor can apply to a court for attachment of property of the alleged perpetrator of a criminal offence. Attachment of property prohibits the proprietor or owner from disposing of and, if necessary, using the property. In particular, Article 248 provides as follows:
“248.1. Attachment of property:
248.1.1. shall be carried out with the aim of securing a civil claim or the confiscation of property in circumstances provided for under criminal law;
248.1.2. shall consist of making an inventory of the property and prohibiting the owner or possessor from disposing of this property and, where necessary, making use of the same;
248.1.3. where applied to bank deposits, shall prevent any further transactions on them.
248.2. Property of the accused person or property of persons who may be held materially liable, irrespective of what comprises this property or in whose possession it is, may be subject to attachment.
248.3. Attachment shall apply to the accused person’s share in the joint property of the accused and his or her spouse or in the property owned by the accused persons jointly with other persons. If there is sufficient evidence that the property [was an instrument of a criminal offence or constitutes proceeds of crime], the whole property or the greater part thereof shall be attached.
[If the instrument or proceeds of crime has been used, disposed of or is unavailable for confiscation for other reasons], money or other property belonging to the accused person, which is equivalent in value [to the instrument or proceeds of crime], shall be subject to attachment. ...”
67. Article 249 (grounds for attachment of property) of the CCrP provides that property may be attached if this measure is justified by sufficient evidentiary material and, as a general rule, on the basis of a court order. The investigator may take a decision to attach property without a court order only in exceptional circumstances. Article 250 of the CCrP contains rules for valuation of the attached property.
68. The following are the relevant extracts from The Commentary on the Code of Criminal Procedure of the Republic of Azerbaijan, Volume I (scientific editor: Prof. J. Movsumov, Baku 2003, p. 166) concerning Article 248 of the CCrP:
“6. Attachment of property with a view to guaranteeing confiscation of property can be ordered only in cases where the Criminal Code provides for a possibility of confiscation of property as an additional sanction for the criminal offence with which the accused person is charged ...
7. The factual basis for the attachment of property is ... the existence of a substantiated belief that the property could be hidden, disposed of or destroyed. ...
8. According to the annotated Article 248.2 of the CCrP, attachment can be ordered in respect of property of the following persons: (a) accused persons; (b) persons who could be held materially liable. The latter refers to persons who could be liable with their property for the actions of the accused person. This category of persons includes: (a) the accused person’s employer (Article 1099 of the Civil Code); (b) financial departments of the relevant authorities liable for actions of their officials (Articles 1100 and 1102 of the Civil Code); (c) legal representatives of minors between fourteen to eighteen years of age or of legally incapacitated persons (Articles 1104 and 1105 of the Civil Code); (d) the owner of a source of special danger (Article 1108 of the Civil Code). The above-mentioned persons are designated as civil defendants in the civil claim [lodged in the criminal proceedings].”
According to Article 91.1 of the CCrP, an accused person is an individual charged with a criminal offence by a decision taken by an investigator, prosecutor or court.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-4


ITEMID: 001-79887
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF SIALKOWSKA v. POLAND
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (incompatibility ratione personae, non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 10. The applicant was born in 1950 and lives in Wrocław.
11. After the applicant's husband had died in September 2002, she instituted proceedings in which she claimed her widow pension.
12. By a decision of 3 October 2002, the social insurance authority dismissed her request.
13. On 4 March 2003 the Wroclaw Regional Court dismissed her appeal against this decision. On 2 September 2004 the Wroclaw Court of Appeal dismissed her further appeal.
14. The appellate court observed that the findings of fact made by the social insurance authority were correct. The applicant and her husband had de facto separated in 1994. He had been living since then with another woman. The applicant had not been receiving any maintenance payments from him. When he had fallen ill, she had not been taking care of him and she had been informed of his poor health only in March 2002. The court considered that the lower court had not erred when it assessed the testimony of one witness, who had submitted that the couple had been living together, as not being credible. The appellate court concluded that the legal requirements for granting a widow pension were not complied with.
15. The applicant requested that legal aid for the purposes of lodging a cassation appeal with the Supreme Court be granted to her and her request was allowed. The court requested the local Bar Association to assign a lawyer to the case and advocate Z.W. was so assigned on 17 September 2004.
16. The copy of the judgment of the appellate court was served on Z.W. on 9 November 2004.
17. By a written opinion of one page and a half dated 3 December 2004 Z.W. advised the applicant that, in his view, a cassation appeal against the judgment of the appellate court did not offer reasonable prospect of success. He referred to the written grounds of the judgment of the appellate court by which that court had explained why the applicant had not complied with the requirements of the applicable law, and considered that in the light of the evidence examined by the courts, there were no grounds on which to argue that the second-instance judgment was in breach of the law. Consequently, he did not draw up the cassation appeal.
18. The opinion contained the following paragraph:
“I would like to stress that the judgment of the Wroclaw Court of Appeal of 2 September was served on me on 9 October (sic) 2004 and that the thirty-day time-limit for the lodging of a cassation appeal expires on 9 December 2004.”
19. On 6 December 2004 the applicant had a meeting with the lawyer at his office. He gave her his opinion and informed her that he saw no grounds on which to prepare a cassation appeal in her case. On the same occasion the applicant was served with the copy of the appellate court's judgment with its written grounds.
20. Article 45 of the Constitution, insofar as relevant, reads:
“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court. ...”
21. Article 17 of the Constitution, insofar as relevant, reads:
“By means of a statute, associations may be created within a profession in which the public repose confidence, and such professional associations shall concern themselves with the proper practice of such professions in accordance with, and for the purpose of protecting, public interest.”
22. Pursuant to Article 5 of the Code of Civil Procedure, a court should give all necessary procedural instructions to a party acting without a lawyer and, in particular should indicate the consequences of that party's acts or failures to act.
23. Article 113 § 1 of the Code of Civil Procedure provides that a party to the proceedings may ask the court competent to deal with the case to grant him or her an exemption from court fees provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family's standard of living.
24. Pursuant to Article 117 of the Code, persons exempted from the court fees may request that legal aid be granted to them. The court will then request the relevant District Bar Association or the District Chamber of Legal Advisers to assign an advocate or a legal adviser to the claimant's case.
25. At the material time, a party to civil proceedings could lodge a cassation appeal with the Supreme Court against a judicial decision of a second-instance court which terminated the proceedings.
26. Under Article 393 4 § 1 of the Code of Civil Procedure a cassation appeal had to be lodged with the court that had given the relevant decision within one month from the date on which the decision with its written grounds was served on the party concerned. Cassation appeals which were not lodged by an advocate or a legal adviser would be rejected.
27. Article 393 1 of the Code as applicable at that time listed the grounds on which a cassation appeal could be lodged. It read as follows:
“The cassation appeal may be based on the following grounds:
1) a breach of substantive law by its erroneous interpretation or wrongful application;
2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.”
28. Article 393 3 specified the requirements of a cassation appeal. It read in its relevant part:
“§ 1. A cassation appeal should include:
1) an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only;
2) an indication of the grounds for the cassation appeal;
3) arguments showing that its examination would be justified;
4) a motion to have the decision under appeal quashed or amended, specifying also the scope of the motion.”
29. Article 393 4 read as follows:
“A second-instance court rejects in a hearing held in camera a cassation appeal lodged after a prescribed time-limit or which is inadmissible on other grounds (...).”
30. The reasons justifying the examination of a cassation appeal by the Supreme Court could be inferred a contrario from Article 393 of the Civil Code of Procedure which, as applicable at that time, read, in its relevant part:
“1. The Supreme Court may refuse to entertain the cassation appeal, if:
i) there is no appearance of any significant legal issue in the case,
ii) there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts' case law,
iii) the appeal is manifestly ill-founded.
2. Paragraph 1 shall not apply if the judicial decision challenged manifestly breached the law or where the proceedings are invalid in law.”
31. In its judgment of 31 March 2005 the Constitutional Court examined a number of constitutional complaints in which the complainants argued essentially about certain provisions of Article 393 of the Code of Civil Procedure, also insofar as they regulated the conditions that cassation appeals had to comply with.
32. The Court observed, inter alia, that certain terms describing the conditions which cassation appeals had to meet under Article 393 et seq. of the Code (“important legal issue”, “provisions raising serious doubts or causing discrepancies in the courts' case law”, “arguments showing that examination of the cassation appeal would be justified”) were drafted in the broadest terms. It noted that the judicial practice regarding their application had given rise to serious interpretational difficulties and discrepancies in the caselaw of the Polish courts.
33. Article 1 of the Bar Act of 1982, as amended, reads, insofar as relevant:
“1. The Bar is established to provide legal assistance, co-operate in protecting a person's rights and freedoms as well as to formulate and apply the law.
2. The Bar is organized as a self-governing association.
3. An advocate whilst executing his/her professional duties is accountable only to the law.”
34. Article 3 of the Act provides as follows:
“The general tasks of the professional Bar Council are as follows:
1) creation of conditions for the performance of the Bar's statutory tasks,
2) representation of the Bar and protection of its rights,
3) supervision over the observance of the rules regulating the practice of the profession,
4) development of professional skills and training of advocates,
5) determination and promotion of professional ethics and ensuring their observance,
6) management (...) of the Bar's assets.”
35. Article 28 of the Act reads:
“1. An advocate may only refuse to provide legal assistance for important reasons of which he must notify the interested party. Any doubts as to whether to provide legal assistance or refuse to do so shall be resolved by the local Bar Council, and in situations where time is of the essence, by the Dean of that Council.
2. In cases where legal assistance is granted on the basis legal regulations concerning legal aid, only the entity appointing the advocate to represent the client may decide to relieve him or her from providing legal assistance.”
36. Under Article 21 § 3 of the Act, an advocate shall provide legal aid services in the jurisdiction of a court where he or she has its office.
37. Lawyers are bound to act in accordance with rules of professional and ethical conduct enacted by the Bar Association. They may be held accountable for professional misconduct or a breach of ethical principles in the proceedings before the bar disciplinary court.
38. Under Article 57 of the Body of Ethical Rules adopted by the National Bar Council on 10 October 1998, when an advocate, either privately hired by the client or appointed under legal aid scheme, considers that submission of an appeal in a case offers no reasonable prospect of success and the client disagrees with his or her view, the lawyer shall give notice of termination of the power of attorney terminate the representation, or notify the refusal to the body which appointed him or her.
39. In 2000 the Supreme Court issued a resolution in reply to a legal question whether a legal aid lawyer could refuse to lodge a cassation appeal. It replied to the question in the positive.
40. The court observed that issues involved in the legal aid concerned not only proper administration of justice, but also touched on human rights, and a right of access to a court in particular. Nevertheless, there was no comprehensive and coherent regulation of legal aid available under Polish law.
41. The mere fact that it was necessary for a cassation appeal to be lodged by a qualified representative was not open to criticism. However, a certain conceptual confusion was to be noted in the provisions governing legal aid as a whole, mostly because the legislator had failed to harmonise the relevant provisions of civil and criminal procedure. In particular, the scope of legal aid lawyers' obligations when legal representation was mandatory was not directly addressed by provisions of civil procedure. This was so partly because the essential body of law concerning civil procedure had been enacted in 1964, while the provisions on mandatory legal representation for the purposes of the cassation appeal had been introduced in 1996, when this new kind of appeal had been created.
42. As a result, the scope of legal aid lawyers' obligations to provide a party to the proceedings with “legal aid” in civil proceedings was unclear. In particular, the provisions on the lawyers' legal aid obligations in connection with cassation proceedings before the Supreme Court lacked clarity. The court noted that the judicial practice regarding the application of relevant provisions had given rise to serious difficulties of interpretation and discrepancies in the case-law of the Polish courts.
43. The court observed that the issue of possible conflict between the opinion of a party granted legal aid and a lawyer assigned to represent him or her for the purpose of cassation proceedings had not been directly addressed by the applicable law. It further noted that the notion of legal assistance could not be identified with a simple obligation of a lawyer to act in accordance with the client's wishes. The role of a legal aid lawyer had rather to be understood as obliging him or her to provide legal advice to the party, including as to the prospects of success offered by a cassation appeal against a given judgment.
44. The constitutional role of the Supreme Court, the highest judicial authority, was also an argument in favour of a conclusion that a legal aid lawyer was not compelled by the will of the party to have a cassation appeal lodged if such an appeal was bound to fail. In case of a disagreement between the party and the lawyer, it was open to the party to complain to the local Bar under Article 28 of the Bar Act. The Bar could then appoint a new lawyer who could lodge a cassation appeal, requesting at the same time to be granted leave to appeal out of time under Article 169 of the Code of Civil Procedure. It was true that the practice of the Supreme Court was not coherent in that in some cases it had been rejecting such requests and in other it accepted them. However, it did not prevent the parties from having recourse to this course of action.
45. Pursuant to Article 169 of the Code of Civil Procedure, a party to the proceedings may ask for retrospective leave to perform a procedural measure outside the prescribed timelimit; this measure shall be performed simultaneously with lodging the request.
46. Article 133 § 3 of the Code of Civil Procedure reads, insofar as relevant:
“3. If a legal representative or a person authorised to receive court correspondence on behalf of a party has been appointed in a case, the court correspondence shall be served on these persons.”
47. Pursuant to the case-law of the Supreme Court, if a party to civil proceedings is represented by a lawyer, the procedural timelimits set by the Code of Civil Procedure start to run on the date of the service of judicial decisions on him or her (III CRN 324/72; I UZ, 65/04).
48. The Council of Bars and Law Societies of Europe has adopted a Code of Conduct in the European Union.
49. Its Article 1 provides that a lawyer must serve the interests of justice as well as those whose rights and liberties he or she is trusted to assert and defend and it is his or her duty not only to plead his or her client's case but also to be his or her adviser.
50. A lawyer's function therefore lays on him or her a variety of legal and moral obligations, sometimes appearing to be in conflict with each other, towards the client, the courts and other authorities before whom the lawyer pleads his or her client's case or acts on his or her behalf; the legal profession in general and each fellow member of it in particular; the public for whom the existence of a free and independent profession, bound together by respect for rules made by the profession itself, is an essential means of safeguarding human rights in face of the power of the state and other interests in society.
51. Pursuant to Article 3.1.2 of the Code, a lawyer shall advise and represent his or her client promptly, conscientiously and diligently.
52. Under Article 3.1.4 a lawyer shall not be entitled to exercise his or her right to withdraw from a case in such a way or in such circumstances that the client may be unable to find other legal assistance in time to prejudice being suffered by the client.
53. This recommendation, insofar as most relevant, reads:
“4. No litigant should be prevented from being assisted by a lawyer. The compulsory recourse of a party to the services of an unnecessary plurality of lawyers for the need of a particular case is to be avoided. Where, having regard to the nature of the matter involved, it would be desirable, in order to facilitate access to justice, for an individual to put his own case before the courts, then representation by a lawyer should not be compulsory.”
54. The Recommendation, in its most relevant parts, provides:
“Recalling that in addition to the right of access to the law and to justice provided for in Article 6 of the European Convention on Human Rights, the other provisions of the Convention and particularly Articles 2, 3 and 8 are equally applicable to the very poor, as are the other legal instruments of the Council of Europe such as the European Social Charter;
Considering that this recommendation is intended to improve, especially with regard to the very poor, existing legal advice and legal aid systems, and therefore to complement existing machinery with regard to the other categories of people for which the systems were designed.
Recommends that the governments of member states:
1. Facilitate access to the law for the very poor (“the right to the protection of the law”) by:
[...]
b. promoting legal advice services for the very poor;
[...]
3. Facilitate effective access to the courts for the very poor, especially by the following means:
[...]
c. recognising the right to be assisted by an appropriate counsel, as far as possible of one's choice, who will receive adequate remuneration;
[...]
e. simplifying the procedure for granting legal aid to the very poor, [...]”
55. The Recommendation provides, inter alia:
“The Committee of Ministers, under the terms of Article 15.b of the Statue of the Council of Europe, [...]
Underlining the fundamental role that lawyers and professional associations of lawyers also play in ensuring the protection of human rights and fundamental freedoms; [...]
Considering that access to justice may require persons in an economically weak position to obtain the services of lawyers,
Recommends the governments of member States to take or reinforce, as the case may be, all measures they consider necessary with a view to the implementation of the principles contained in this Recommendation.
[...]
1. All necessary measures should be taken to respect, protect and promote the freedom of exercise of the profession of lawyer without discrimination and without improper interference from the authorities or the public, in particular in the light of the relevant provisions of the European Convention on Human Rights.
[...]
1. All necessary measures should be taken to ensure that all persons have effective access to legal services provided by independent lawyers,
2. Lawyers should be encouraged to provide legal services to persons in an economically weak position.
3. Governments of member States should, where appropriate to ensure effective access to justice, ensure that effective legal services are available to persons in an economically weak position, in particular to persons deprived of their liberty.
4. Lawyers' duties towards their clients should not be affected by the fact that fees are paid wholly or in part from the public funds.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5461
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: ATTARD v. MALTA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Maltese national, born in 1964 and living in Mellieha (Malta). He is represented before the Court by Mr J. Brincat, a lawyer practising in Marsa (Malta).
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 26 May 1995 the applicant was arrested for aggravated theft. He was brought before the Court of Magistrates and applied for bail, which was the only possibility open to him under domestic law for obtaining his release. As he risked incurring a sentence exceeding three years’ imprisonment, his application had to be communicated to the Attorney General. When the Court of Magistrates obtained the Attorney General’s views some hours later, it ordered the applicant’s release.
On 24 July 1995 the applicant was acquitted.
On 30 October 1995 he instituted proceedings against the police before the Civil Court with a view to obtaining a declaration that his arrest was contrary to Article 5 § 1 of the Convention and compensation.
On 3 February 1997 the Civil Court accepted that the applicant had been arrested although there was “no reasonable suspicion against him” within the meaning of Article 5 § 1 (c) of the Convention. It awarded the applicant MTL 100 by way of compensation. Moreover, the court ordered the police to pay the applicant’s legal expenses.
The police appealed. The applicant entered a cross appeal on the paucity of the amount of compensation. On 31 July 1998 the Constitutional Court rejected both appeals specifying that the applicant was entitled to a “symbolic” sum by way of compensation. It ordered the police to pay the costs of the principal appeal and the applicant the costs of the cross appeal.
B. Relevant domestic law
Section 4 of the European Convention Act allows for applications before the domestic courts by persons who allege that their rights under the Convention have been violated. Section 4 § 8 provides the following:
“Where an application for redress or any reference to the Civil Court, First Hall, made after the 30 April, 1987 is made exclusively either under section 46 of the Constitution or under this section and is still pending before the Civil Court, Fist Hall, or the Constitutional Court, the court may examine whether or not the facts complained of are in violation of the corresponding Human Rights and Fundamental Freedoms, in the first case, or of the corresponding Fundamental Rights and Freedoms of the Individual enforceable under the Constitution, in the second case; and if the court so finds it may order accordingly the redress it may deem appropriate under any of the aforesaid laws.”


ITEMID: 001-90958
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: ZIMMERMANN v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Ms Karin Emma Alma Zimmermann, is a German national who was born in 1941 and lives in Neunkirchen-Seelscheid. She is represented before the Court by Mr T. Gertner, a lawyer practising in Bad Ems.
A summary account of historical events in which the present application originated can be found in the Court’s decision on admissibility in the case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (see Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (dec.), no. 47550/06, 7 October 2008, §§ 4-5, ECHR 2008-...).
On 26 July 1945 the applicant’s family were forced to leave their 40 hectares farm in Morrn (at present Murzynowo in Poland) by the Polish militia. They were given only 10 minutes to pack their barest personal essentials. They marched for days towards the Oder.
This region before and during the Second World War belonged to the German Reich. After the defeat of Germany at the end of the war, when the border between Germany and Poland was drawn along the Oder-Neisse line, it was included in the territory of Poland (see Preussische Treuh and GmbH & CO. Kg A. A., cited above, § 3).
The applicant has still not been allowed to return to her homeland and has been refused restitution of her family property.
A detailed description of the relevant international and domestic law is set out in the above-mentioned case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (ibid. §§ 31-41).


ITEMID: 001-22586
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: ARCURI AND OTHERS v. ITALY
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicants, Rocco Arcuri, Anna Maria Mussurici, Mirko Arcuri and Greta Guarino, are Italian nationals, who were born in 1933, 1951, 1974 and 1970 respectively. They live in Turin. The third applicant is the son of the first two applicants, who are a married couple. The fourth applicant is the daughter of the second applicant. The applicants were represented before the Court by Mr Barone, a lawyer practising in Milan.
As the first applicant was suspected of being a member of a criminal organisation involved in drug trafficking, the Turin public prosecutor’s office instituted proceedings against him on 23 October 1995 for the application of preventive measures available under Act no. 1423 of 27 December 1956 and Act no. 575 of 31 May 1965, as amended by Act no. 646 of 13 September 1982. The public prosecutor’s office also requested the seizure of a number of assets belonging to the first applicant and/or the other applicants.
In an order of 31 October 1995 the President of the division of the Turin District Court specialised in preventive measures ordered the seizure of the assets in question, which included eight vehicles, several plots of land and flats, two private company shares and numerous documents. He noted that the inspections carried out by the national anti-mafia brigade (DIA) showed a discrepancy between the first applicant’s financial means and his legal business activities and declared income.
During the proceedings before the special division the first two applicants and numerous witnesses were questioned. Accountants’ and financial experts’ reports were drawn up and transcripts of certain tapped telephone conversations were filed with the court registry. The court also ordered the production of certain documents relating to other judicial proceedings brought against the first applicant and/or other persons suspected of belonging to mafia-type organisations. All the applicants, represented by a lawyer of their choice, participated in the proceedings for the application of preventive measures.
In an order of 13 June 1997 that was deposited with the registry on 24 July 1997 the division of the Turin Court specialised in preventive measures decided to place the first applicant under police supervision, combined with an order for compulsory residence in the district of Turin for four years. The special division also ordered confiscation, pursuant to section 2(3), third paragraph, of Act no. 575 of 1965, of the applicants’ previously seized assets.
The judges of the special division pointed out first of all that between 1959 and 1980 the first applicant had been convicted on a number of occasions of fraud, incitement to prostitution, assault, duress, false imprisonment, gross indecency in a public place, uttering worthless cheques, illegal possession of firearms, fraudulent bankruptcy and criminal association. It also emerged from a number of documents found at the first applicant’s house that he was in close contact with persons involved in organised crime. Furthermore, proceedings for usury and mafia-type criminal association were pending against the first applicant. Admittedly, in the criminal proceedings for criminal association the applicant’s pre-trial detention had been revoked; however, that fact did not prevent the judges from considering it “reasonably probable” that he was involved in a criminal association, that he lent money at excessive interest rates and that he had made death threats in the event of non-payment. Continued detention of an accused was justified where there was a “very high probability” that they were guilty, whereas the application of preventive measures could be based on a lesser degree of probability.
With regard to the Arcuri family’s financial situation, the special division of the court observed that it was difficult to reconstruct the history of the various economic activities carried out by the first applicant because he had not kept official accounts of all his operations. In any event, it was clear from the evidence produced that at least part of the first applicant’s considerable fortune had been unlawfully acquired, since it was the proceeds from his offences of fraudulent bankruptcy, uttering worthless cheques, illegal trading in diamonds, and usury. Moreover, the applicants had not supplied proof that the seized assets had been lawfully acquired. Admittedly, part of the assets officially belonged to the second, third and fourth applicants; however, the special division found that the Acuri family’s entire fortune had been created by the first applicant, who, being the subject of numerous judicial proceedings, had subsequently considered it preferable to transfer certain assets to the couple’s two children for no consideration and to make his wife a partner in his business activities.
The applicants appealed against the order of 13 June 1997.
In an order of 2 February 1998 the Turin Court of Appeal upheld the district court’s decision. It observed, inter alia, that the special division of the court had found that the first applicant was a danger to society on the basis of statements made in other judicial proceedings by certain pentiti of the Mafia, which had been corroborated by substantial evidence and showed that the first applicant had moved in criminal circles at least until the beginning of the 1990s. The transcription of the tapped telephone conversations showed, furthermore, that the first applicant had severely threatened his debtors. With regard to his submission that his financial means could be explained exclusively by his legal activities as a businessman, the Court of Appeal held that the Acuri family’s fortune had been amassed from the proceeds of criminal activities. Furthermore, the lack of accurate documentation made it impossible to assess the real profits which the first applicant had made from certain business transactions. There was also evidence showing that the Acuri family’s legal activities had been started up, developed and maintained with the proceeds of criminal offences committed by the first applicant.
The Court of Appeal observed lastly that, according to case-law of the Court of Cassation, assets which were the subject of a preventive measure concerning property should not formally belong to the person deemed to be a danger to society, since the latter could simply use them de facto as if he were the owner. In the instant case the first applicant had not maintained that the transfer of certain assets to the third and fourth applicants had made it impossible for him to use them as he wished. With regard to the second applicant, even if it was true that she had been involved in a number of business activities, the first applicant had nonetheless maintained a primordial role in the management and organisation of those activities.
The applicants lodged an appeal on points of law. In a judgment of 3 July 1998 that was deposited with the registry on 12 September 1998 the Court of Cassation dismissed the applicants’ appeal, holding that the Turin Court of Appeal had given logical and proper reasons for all the points in dispute between the parties.
In accordance with section 2(3) of Act no. 575 of 31 May 1965, during the proceedings for the application of preventive measures against a person suspected of belonging to a mafia-type organisation, “the District Court may issue a reasoned decision, even of its own motion, ordering the seizure of property at the direct or indirect disposal of the person against whom the proceedings have been instituted, when there is sufficient circumstantial evidence, such as a considerable discrepancy between his lifestyle and his apparent or declared income, to show that the property concerned forms the proceeds from unlawful activities or their reinvestment. Together with the implementation of the preventive measure the District Court shall order the confiscation of any of the goods seized in respect of which it has not been shown that they were lawfully acquired. ... The District Court shall revoke the seizure order when the application for preventive measures is dismissed or when it has been shown that the property in question was lawfully acquired.”