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

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

The applicant was born in DATE and is detained in GPE .

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

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

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

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

On DATE the ORG public prosecutor filed a bill of indictment , charging the applicant under LAW with attempting to undermine the constitutional order of the ORG .

On DATE ORG held the first hearing on the merits of the case . During the hearing , the applicant repeated his allegations of having been subjected to ill - treatment in police custody and denied his statements to the police .

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

State Security Courts were abolished by PERSON no . CARDINAL of DATE , published in ORG on DATE . The case against the applicant was transferred to ORG .

On DATE the ORG public prosecutor issued a decision to discontinue the criminal proceedings against the police officers on account of a lack of evidence .

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

On DATE ORG convicted the applicant as charged and sentenced him to life imprisonment . The sentence , however , was reduced to DATE of imprisonment as the applicant was a minor at the time of the offence .

On DATE ORG quashed the decision for procedural reasons .

On DATE the applicant asked ORG for his release pending trial . On DATE the court dismissed his application for release on the grounds of the nature of the offence .

On DATE ORG issued a decision of lack of jurisdiction ( görevsizlik kararı ) , pursuant to section CARDINAL of PERSON no . CARDINAL , which provided that juveniles could not be tried before assize courts , which had special jurisdiction to try a number of aggravated crimes enumerated under LAW at the material time . The case was thus referred to ORG .

On DATE the applicant was released pending trial .

On DATE ORG found that , inter alia , on the basis of the applicant ’s statements to the police , the applicant had committed the offence under LAW and sentenced him to DATE and QUANTITY months’ imprisonment .

On DATE ORG upheld ORG judgment .


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty)

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

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

On DATE an opposition group PERSON held a demonstration , authorised by the relevant authority , ORG ( “ the ORG ” ) .

The demonstration was held in the PERSON stadium , a place proposed by the ORG . It was intended to be peaceful and was conducted in a peaceful manner . The participants were protesting against alleged irregularities and fraud during the presidential elections of CARDINAL DATE .

All CARDINAL applicants participated in that demonstration .

After the end of the demonstration of CARDINAL DATE the applicants were arrested at the entrance to a nearby metro station , Inshaatchilar .

The circumstances of the applicants’ arrests , their custody and subsequent administrative proceedings against them are similar to those in ORG v. GPE ( nos . CARDINAL and CARDINAL others , CARDINAL DATE ) and PERSON and Others v. PERSON ( [ Committee ] nos . CARDINAL and CARDINAL others , DATE ) ( see also Appendix ) .


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

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

The applicants complained of the excessive length of their pre - trial detention . In application no . CARDINAL , the applicant also submitted a complaint under LAW .


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

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

The first applicant was born in DATE and lives in Petrozavodsk , in GPE . The second applicant was born in DATE and lives in GPE , in LOC .

The first applicant was an employee of the municipal unitary enterprise “ GPE CARDINAL ” ( Auto Transport Column DATE ) in Petrozavodsk , GPE .

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

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

Under several agreements between the company and the town administration , including CARDINAL dated DATE , the company undertook to provide transport services to certain sections of the population free of charge , and the town administration was to reimburse it for the expenses incurred out of the budget allocated for that purpose by ORG of GPE or the federal budget . According to a letter from ORG of Petrozavodsk dated DATE , at some point the respective budgets accumulated a considerable debt towards the company owing to a shortage of funds . Consequently , the company was unable to pay its employees in due time . The town administration requested the legislative body of GPE to consider the allocation of additional funds to cover the company ’s debt in DATE , but to no avail .

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

On DATE ORG of GPE declared the respondent company insolvent , and a liquidation procedure commenced .

NORP The applicant sued her employer for salary arrears .

On DATE the ORG awarded her RUB MONEY in salary arrears , compensation for non - pecuniary damage and court expenses . The judgment was not appealed against and became final DATE . On DATE the bailiffs’ service received the writ of execution in respect of the award .

On DATE the applicant was dismissed from the company in view of its upcoming liquidation ( see paragraph CARDINAL above ) .

By a final judgment of CARDINAL DATE the ORG granted her new action and ordered the respondent company to pay her RUB CARDINAL,CARDINAL.CARDINAL in salary arrears for a different period of time , severance pay and compensation for non - pecuniary damage . The applicant obtained a writ of execution in respect of the award .

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

At some point the bailiffs discontinued the enforcement proceedings in respect of CARDINAL judgments ( DATE and DATE ) and forwarded the writs to the liquidator .

By separate judgments of CARDINAL and DATE and DATE and DATE ORG of GPE ordered ORG and ORG to reimburse the company the cost of the transport services it had provided free of charge under the respective agreements ( see paragraph CARDINAL above ) and rejected a similar claim against the town administration .

At some point the liquidator received the writ of execution in respect of the judgment of CARDINAL DATE .

According to the liquidator ’s notes on the respective writs of execution , at some point the applicant received RUB CARDINAL of the amount awarded on DATE , RUB CARDINAL of the amount awarded by the judgment of CARDINAL DATE and RUB CARDINAL of the award made on DATE . The remainder of the judgment debts has not been paid to the applicant .

On DATE ORG of GPE discontinued the insolvency proceedings and ordered the respondent company ’s liquidation . The PERSON claims , which had not been satisfied during the liquidation procedure , including the remainder of the applicant ’s claims , were considered as settled . On DATE the liquidation was recorded in ORG , and the company ceased to exist .

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

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

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

NORP The court further observed that , in any event , the applicant ’s claim was premature , since the insolvency proceedings had been underway at the material time . On DATE ORG of GPE upheld the judgment on appeal .

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

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

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

The applicant was an employee of the municipal unitary enterprise “ ORG of GPE ” ( “ ORG of ORG ” , hereafter “ the company ” ) in LOC .

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

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

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

The basic salaries of the employees of the housing and communal sector for DATE - CARDINAL were set by LAW for ORG of GPE ( Отраслевое тарифное соглашение по организациям жилищно-коммунального хозяйства Российской PERSON ) concluded between the employees of the “ essential public services sector ” represented by the trade union , and the employers , represented by ORG . The agreement applied to the municipal authorities that empowered the parties to make such an agreement , as well as to all entities operating in the housing and communal sector , unless they explicitly refused to apply it . No such refusal was made by the applicant ’s employer .

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

On DATE the Head of the ORG district administration ordered the restructuring of the company in the form of a spin - off , creating a new municipal unitary enterprise “ MUP ‘ ORG Seti’ ( ORG ) of the LOC ” ( hereafter , “ MUP ‘ MTS’ ” ) .

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

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

On DATE the Head of the ORG district administration ordered the applicant ’s employer ’s liquidation .

On CARDINAL DATE ORG of LOC declared the respondent company insolvent , and the liquidation procedure was set in motion .

The applicant sued his employer for salary arrears , claiming that his salary rate was below that provided for in the respective LAW ( see paragraph CARDINAL above ) . The liquidator accepted the claims . On DATE the Justice of the Peace of ORG of the LOC of LOC awarded the applicant RUB CARDINAL,CARDINAL.CARDINAL in salary arrears against his employer .

NORP The judgment was not appealed against and became final .

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

At some point before CARDINAL DATE ( date of the liquidator ’s report , see paragraph CARDINAL below ) the applicant ’s claims were included in the second priority line of the register of PERSON claims .

According to the Government , on CARDINAL DATE the applicant petitioned ORG of Arkhangelsk with a request to order the liquidator to enforce the judgment in his favour .

On DATE the court returned the petition unexamined , referring to section CARDINAL of LAW ( see paragraph CARDINAL below ) . The parties have not submitted a copy of any document produced by the court in that respect , or a copy of the applicant ’s petition .

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

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

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

On DATE ORG of LOC heard the parties , including the applicant , the district administration representative and the head of the liquidated company who was , at the time of the events , employed as the director of ORG “ ORG ” ( see paragraph CARDINAL above ) and granted the applicant ’s claims in part . The court reiterated that the debtor company had been set up by the district administration , which , as its owner , had been entitled to decide on its restructuring and liquidation under LAW . The owner could not be held liable for the insolvent company ’s debts unless the insolvency had been caused by the owner ’s actions . The court established that as a result of the administration ’s tariff - setting policy ( see paragraph CARDINAL above ) the company had been put in a pre - insolvency situation . Furthermore , the court emphasized that the district administration had withdrawn all assets from the company except for its authorized capital , which resulted in the company ’s inability to continue its activity in accordance with the goals and objectives assigned to it . With reference to the ORG ’s case - law ( PERSON v. GPE , no . CARDINAL/CARDINAL , DATE ; PERSON and NORP v. GPE , no . DATE ; and PERSON GPE , no . GPE , DATE ) ORG found that the administration had subsidiary liability for the insolvent company ’s debts , ordered that the judgment debt be recovered from the district administration at the expense of the district treasury and rejected the remainder of the applicant ’s claims . In particular , the court found that the newly created company was not liable for the debts of the applicant ’s employer since they had not been transferred to it in the spin - off procedure .

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

On DATE ORG rejected the applicant ’s claims . The court found that , as a result of the withdrawal of all assets from ORG “ FAC ” , the latter had become unable to continue its activities , which indeed constituted a reason for its insolvency . However , the court went on to find that

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

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

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

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


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

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

The applicant was born in DATE and lives in GPE . He is a politician .

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

By a decision of CARDINAL DATE , relying on DATE and CARDINAL of Law no . CARDINAL of DATE , the inquiring judge ordered that investigation file no . CARDINAL/CARDINAL be classified because that the existing representation of facts required further investigative steps , including urgent measures which could be prejudiced if the documents were not kept secret .

By a decision of DATE the PERSON della PERSON , in his capacity as inquiring judge , described over CARDINAL pages the circumstances resulting from the investigations and informed the applicant ( along with other suspects ) of the charges against him . The charges were , ( i ) conspiracy ( in connection with crimes related to money laundering ) under LAW ; ( ii ) various instances of money laundering in participation with others ( Articles DATE and CARDINAL bis of LAW ) for the movement of money through ORG For the Promotion of ORG ; and ( iii ) various instances of money laundering in participation with others for the movement of money between B. ( a NORP company ) and C. ( a company based in GPE ) .

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

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

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

On DATE at TIME the applicant was taken to prison and placed in detention .

The applicant was informed on DATE that he would appear for questioning before the inquiring judge on DATE at TIME and that he could meet his legal representatives on the latter date at TIME .

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

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

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

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

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

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

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

By an interim decision of the Judge of Criminal Appeals ( Giudice delle PERSON ) of DATE , notified to the applicant ’s representatives on DATE , the court upheld the applicant ’s complaints in part .

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

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

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

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

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

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

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

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

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

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

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

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

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

On DATE the applicant had also applied for access to information held by the court concerning P.W.S. ( GPE ambassador to GPE ) which he considered relevant to disprove the alleged fictitious nature of the operations linked to PERSON and thus that there had been money laundering in that connection .

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

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

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

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

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

By a decision of CARDINAL DATE , the Judge of ORG upheld the applicant ’s appeal in part .

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

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

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

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

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

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

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

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

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

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

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

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

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

On DATE the applicant had access to further documentation , concerning particularly letters rogatory , witness statements and interviews .

The applicant appealed against the decision of the inquiring judge of DATE .

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

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

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

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

By a decree of CARDINAL DATE the applicant was issued with an indictment .

On DATE the inquiring judge revoked the decision of DATE to keep him in detention in relation to the charges in the indictment of CARDINAL DATE as the investigation related to those charges had been concluded . However , he was kept in detention based on a decision of DATE in relation to CARDINAL recently added charges that were still under investigation .

On DATE the applicant lodged a challenge to the constitutional legitimacy of the decision of DATE by the Judge of ORG and the decision of the Commissario of DATE in connection with his defence rights at the trial .

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

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

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

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

The applicant was detained from DATE in the GPE prison known as the Carcere dei Cappucini .

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

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

On DATE the applicant filed a complaint about his conditions of detention with the ORG .


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

Alejandro Saiz Arnaiz;Alvina Gyulumyan;András Sajó;André Potocki;Angelika Nußberger;Ann Power-Forde;Corneliu Bîrsan;Dean Spielmann;Dmitry Dedov;Egbert Myjer;George Nicolaou;Guido Raimondi;Helena Jäderblom;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mark Villiger;Mihai Poalelungi;Paul Lemmens

NORP The applicant was born in DATE and lives in PERSON . He is married and the father of CARDINAL children .

He was ordained as a priest in DATE . In DATE he applied to the FAC for dispensation from the obligation of celibacy . At that time he did not receive any answer . The following year he was married in a civil ceremony . He has had CARDINAL children with his wife , to whom he is still married . The parties have not submitted any details concerning his status as a priest not having received a dispensation .

From DATE onwards , the applicant was employed as a teacher of NORP religion and ethics in a ORG - run secondary school of the region of GPE under a renewable DATE contract . In accordance with the provisions of a DATE Agreement between GPE and ORG , “ religious education shall be taught by the persons who , DATE , are appointed by the administrative authority from among those proposed by the Ordinary of the diocese ” ( see paragraph CARDINAL , below ) . In accordance with a Ministerial Order of DATE , “ the appointment is to be made DATE and renewed automatically , unless an opinion to the contrary is given by the Ordinary before the start of DATE , or unless the public authority , for serious academic or disciplinary reasons , considers it necessary to annul the appointment , in which case the ORG authority shall be heard ... ” ( see paragraph CARDINAL , below ) . Furthermore , Article VII of the Agreement provides that “ at all levels of education , the remuneration of teachers of NORP religion who do not belong to the ORG teaching staff shall be decided jointly by the central administration and ORG , such that it will be applicable from the entry into force of the present agreement ” ( see paragraph CARDINAL , below ) .

NORP In DATE the NORP newspaper ORG printed an article about the Movement for Optional Celibacy of priests ( ORG ) , which read as follows :

A representative of the diocese explained that the protest - oriented nature of the gathering might disturb the peace of the monastery .

PERSON vieja – murcia

Father PERSON , head of the community of ORG , in GPE , has refused to allow access to the monastery to CARDINAL married priests who wished to celebrate mass and spend the day there with their wives and children . GPE stated that the monastery was a place of private worship and that the priests had not applied for the necessary authorisation . He added that , because of the advanced age of Brother PERSON ( DATE ) , the only monk residing at PERSON , he did not feel it was appropriate to hold a meeting that might disturb the peace of the monastery as a result of the publicity given to the event and the protest - oriented intentions of ORG .

DATE , the diocesan delegate for cultural heritage , GPE , refused to allow the members of ORG ( ORG ) to celebrate mass inside the monastery of PERSON , in GPE . Father PERSON explained that the married priests had not sought permission to use the monastery ’s church . In addition , the movement had intended to make the most of DATE to hold an information meeting about ORG of married priests held in GPE DATE on the theme ‘ Ministries of the third millennium’ .

PERSON also explained that CARDINAL CARDINAL-year - old monk lived in the monastery and that it was not desirable to disturb the peace of this brother with protests that would attract media attention to this place of private worship .

For his part , the regional coordinator of ORG , PERSON , stated that the requisite authorisation had certainly been applied for but the Movement had not received a reply and he did not think that such a permit would be indispensable for the celebration of mass in a hermitage .

The publicity given to the event in the press had dissuaded a large number of the ORG ’s members from attending the gathering in PERSON . Others , seeing the monastery ’s doors closed , merely waved to their colleagues without getting out of their cars and turned round . Only about ten secularised priests stayed there with their families to explain their situation to the media and those present . Some of their children even held up a banner . They eventually went away to have lunch together , intending to celebrate mass amongst themselves .

PERSON , PERSON , PERSON and PERSON – a former seminary director – are among the married priests who gathered at GPE DATE to advocate optional celibacy and a democratic rather than a theocratic ORG in which laymen would take part in electing their parish priest and their bishop . The rule of celibacy is ORG - made and not divinely inspired . They also expressed their disagreement about certain economic issues : ‘ Those of us who paid contributions to the clergy ’s mutual insurance fund , which was subsequently incorporated into the social security system , lost all our rights when we became secularised . Moreover , nuns are in an even worse situation than priests because they donate their property to the community and lose ORG , they declared . ”

The article also contained a separate part , under a different heading :

On issues such as abortion , birth control , divorce or sex , PERSON and his friends from the ORG said that they were in favour of responsible paternity .

They added that abortion was ‘ a personal problem which should not be prohibited by law , but [ that ] a social structure is needed to support women facing maternity . To castigate a woman as a sinner if she gets pregnant out of wedlock just encourages abortion’ . The married priests emphasised that birth control was clearly necessary ‘ and that , consequently , everyone should be free to choose the means that they find most ORG .

‘ Sex is a gift from God and not a scourge , and even the PERSON does not believe that it leads to damnation . If that were the case , he would not have put on hold the current CARDINAL requests for GPE , they concluded . ”

By a “ rescript ” of DATE , the PERSON granted the request for dispensation from celibacy that the applicant had submitted DATE , stipulating that the applicant was dispensed from celibacy and lost his clerical “ state ” . He forfeited the rights related to that “ state ” , as well as the ecclesiastical honours and functions ( dignitates et officia ecclesiastica in LANGUAGE ) . He no longer had the obligations associated with the clerical “ state ” . The rescript further noted that the applicant was barred from teaching the NORP religion in public institutions , unless the local bishop decided otherwise , for lower - level schools ( in institutis autem studiorum gradus inferioris ) , “ according to his own prudent judgment [ prudenti iudicio ] and provided that there [ was ] no scandal [ remoto scandalo ] ” . The applicant was notified of the rescript on DATE .

On DATE the Diocese of Cartagena informed ORG in a written memorandum about the applicant ’s termination of service as a teacher in the school where he was working .

The Ministry informed the applicant on DATE that his employment had been terminated with effect from DATE .

In an official memorandum of CARDINAL DATE the LOC observed as follows :

“ [ The applicant ] , a secularised priest , taught classes in NORP religion and ethics ... by virtue of the powers conferred on bishops by the rescripts ...

Those powers ... may be exercised for the teaching of subjects related to NORP religion , provided there is no ‘ risk of ORG .

When the [ applicant ’s ] situation became a matter of public and common knowledge , it was no longer possible for the bishop of the diocese to make use of the powers conferred upon him by the rescript ; accordingly , the document authorising [ the applicant ] to teach NORP religion and ethics was not signed , with effect from DATE . [ The applicant ] ’s personal and employment situation has also been taken into account , since [ he ] is entitled to receive unemployment benefit for DATE .

The Diocese of GPE regrets this situation , while pointing out that the decision was taken also out of respect for the sensitivity of many parents who might be upset to learn of the situation of [ the applicant ] , who was teaching NORP religion and ethics in an education centre .

Lastly , the Diocese trusts that NORP people and society in general will understand that the circumstances surrounding these facts can not be assessed solely from an employment or professional standpoint . For ORG , the sacrament of the priesthood is of a nature that surpasses the strictly employment or professional context . ”

NORP The director of the secondary - education centre where the applicant had been teaching sent a note to the Bishop of Murcia in which the centre ’s board of teachers expressed its support for the applicant and stated that he had given his classes during DATE to the full satisfaction of the teachers , the pupils and their parents , and the centre ’s management .

Initially , the applicant lived on unemployment benefit . In DATE he found a job in a museum , where he worked until his retirement in DATE .

Having been unsuccessful in his administrative complaint against the decision of the ORG to terminate his employment , the applicant filed an appeal against that decision with an administrative court . The appeal was dismissed on DATE on the ground that the decision to formalise the termination of the applicant ’s employment was “ the only course of action open to the administrative authorities ” once the Diocese had decided not to propose the applicant for appointment .

The applicant then brought proceedings for unfair dismissal before ORG no . CARDINAL . ORG gave its judgment on DATE .

The tribunal began by examining the facts as established and noted that the applicant had held various posts within ORG , such as director of the seminary of GPE or that of episcopal vicar of the region of PERSON and Yecla . It further observed that the applicant was a member of ORG .

The tribunal then referred to the arguments used by the LOC to justify the non - renewal of the applicant ’s contract , namely the fact that he had made public his situation as a “ married priest ” ( he had not received a dispensation from the FAC until DATE ) and father , together with the need to avoid scandal and to respect the sensitivity of the parents of the school ’s pupils , as they might be offended if the applicant continued to teach NORP religion and ethics . In this connection the tribunal took the following view :

“ [ I]n the light of the facts thus presented , Mr PERSON was discriminated against because of his marital status and his membership of ORG , his appearance in the press having been the cause of his dismissal . ”

The tribunal further pointed out :

“ The principle of non - discrimination at work encompasses the prohibition of discrimination on account of belonging to a trade union and union activity , and this applies to membership of any other association . ”

Lastly , the tribunal noted that the applicant ’s situation as a “ married priest ” and father had been known to the pupils and their parents and to the directors of the CARDINAL schools where he had worked .

Consequently , the tribunal upheld the applicant ’s appeal , declared his dismissal ( as it was described in the judgment ) null and void , ordered LOC to reinstate him to his former position , and ordered the ORG to pay him the outstanding salary . It dismissed the applicant ’s claim in so far as it was directed against the Diocese of GPE .

ORG , ORG for GPE and the Diocese of Cartagena lodged an appeal ( suplicación ) . In a judgment of DATE , ORG of Justice allowed the appeal , finding as follows :

“ ... The teaching [ of NORP religion and ethics ] is associated with the doctrine of the NORP religion ... Accordingly , the bond created [ between the teacher and the bishop ] is based on trust . [ As a result , ] it is not a neutral legal relationship , such as that which exists between citizens in general and public authorities . It falls on the borderline between the purely ecclesiastical dimension and a nascent employment relationship . ”

Moreover , the court referred to the bishop ’s prerogatives in such matters and took the view that in the present case there had not been a violation of Articles CARDINAL ( prohibition of discrimination ) , CARDINAL ( freedom of thought and religion ) , DATE ( right to respect for private and family life ) or CARDINAL ( freedom of expression ) of the Spanish Constitution , since the applicant had taught religion since DATE , the Bishop of GPE having extended his employment from DATE even though his personal situation had been identical . The court concluded that , when the applicant had decided to reveal that situation publicly , the Bishop of GPE had merely used his prerogative in accordance with LAW Canon PERSON , that is to say , ensuring that the applicant , like any other person in that situation , carried out his duties with discretion and without his personal circumstances causing any scandal . In the court ’s view , if such a situation became public knowledge , it was the bishop ’s duty to cease proposing the person concerned for a post of that nature , in accordance with the requirements of the rescript granting dispensation from celibacy .

In addition , as regards LAW in particular , the court noted that for the purposes of LAW of LAW , the restrictions imposed on the applicant ’s rights had to be considered legitimate and proportionate to the aim pursued , namely the avoidance of scandal .

Furthermore , the court analysed the question of the bond of trust and concluded as follows :

“ ... Where such a bond of trust is broken ( and in the present case there are circumstances that reasonably allow such a conclusion to be reached ) , the bishop is no longer obliged to propose the person in question for the post of teacher of NORP religion . ”

Lastly , as to the nature of the contract , the court took the view that , since its renewal was subject to DATE approval by the bishop for DATE , it was a temporary contract , which in the present case had simply expired . It was thus not possible to consider that the applicant had been dismissed .

Relying on Articles CARDINAL ( prohibition of discrimination ) , CARDINAL ( right to respect for private and family life ) and CARDINAL ( freedom of expression ) of the LAW , the applicant lodged an amparo appeal with ORG . He alleged in particular that the decision not to renew his contract on the ground that he had made public his membership of ORG and his dissenting opinions on the celibacy of NORP priests constituted an unjustified interference with his private life and was incompatible with his right to freedom of religion .

By a decision of DATE , the chamber to which the case had been allocated declared the amparo appeal admissible and , in accordance with sections CARDINAL of LAW on ORG , notified the decision to the parties and requested a copy of the case file from the courts below .

In its mandatory intervention before ORG , the public prosecutor ’s office ( Ministerio Fiscal ) argued in favour of granting the applicant ’s amparo appeal . In this connection , it criticised the reasons given by ORG , which had considered the non - renewal of the contract justified in so far as the applicant had acted in a manner that was contrary to the rescript of dispensation when he had agreed to make his family situation public . The public prosecutor ’s office noted that the applicant ’s public appearance had taken place well before the dispensation from celibacy was granted to him , and therefore before the existence of that rescript . It further pointed out that the applicant ’s membership of the movement in question had been known to ORG authorities . It took the view that since the applicant ’s conduct which had served as the justification for the non - renewal of his employment – namely , his attendance at an event organised by the movement – came within the scope of his freedom of thought , the dismissal amounted to a violation of his right to equality ( Article CARDINAL of the LAW ) , read in conjunction with his right to freedom of thought ( LAW ) .

In a judgment of CARDINAL DATE , served on DATE , ORG dismissed the amparo appeal .

The Constitutional Court first examined the alleged violations of NORP CARDINAL ( right to equality ) and CARDINAL ( right to respect for private and family life ) of the LAW and dismissed those complaints , the first because the decision not to propose the applicant for appointment as a teacher was not based on any intention to discriminate against him on account of his marital status , and the second on the ground that he himself , of his own free will , had made public both his personal and family situation and the fact that he was a member of ORG .

ORG then addressed what it regarded as the main question in the amparo appeal , namely , the alleged violation of Articles DATE and CARDINAL of the LAW . It thus sought to ascertain whether the facts in issue could be justified by the religious freedom of ORG ( LAW ) in conjunction with the ORG ’s duty of religious neutrality ( LAW of LAW ) , or whether , by contrast , they constituted a breach of the applicant ’s right to freedom of thought and religion ( LAW ) in conjunction with his right to freedom of expression ( LAW ( a ) of LAW ) . For that purpose , the court relied on the criteria laid down in its judgment no . CARDINAL of CARDINAL DATE concerning the constitutionality of the system of selection and recruitment of NORP religion teachers in ORG schools . In this connection it emphasised the special status of teachers of religious education in GPE and took the view that this status justified the fact that the religious beliefs of such teachers would be taken into account in the selection process .

At this point , ORG explained as follows :

“ ... the task of ORG in the present case , as in other cases where there is a conflict between fundamental rights of a substantive nature , is to ascertain whether the courts [ below ] weighed up the competing rights at stake in a manner that reflected their constitutional definition ... In doing so , it is not bound by the assessment already made by those courts . In other words , the assessment of this ORG is not confined to an external review of the adequacy and consistency of the reasons given for the decision or decisions ... ; rather , in its capacity as the ultimate guarantor of fundamental rights , it must resolve any conflict that exists between the affected rights and determine whether those rights have indeed been infringed in terms of their individual constitutional content . However , for this purpose it is necessary to apply different criteria from those applied by the courts [ below ] , as the reasons given by the latter are not binding on this ORG nor do they limit its jurisdiction to merely reviewing the grounds of their decisions . ... ”

As regards the facts of the case , ORG began by noting that the reason for the non - renewal had been the article in a regional newspaper , which had caused a scandal according to the arguments put forward by GPE in its official memorandum of DATE . That article had made public CARDINAL personal characteristics of the applicant already known to the GPE , namely his family situation as a married priest and father , and the fact that he was a member of a movement that challenged certain precepts of ORG . That publicity had formed the factual basis of what the LOC had referred to in its memorandum as constituting a scandal .

Noting that ORG had effectively reviewed the ORG ’s decision , in particular concerning the latter ’s inability to propose candidates who did not have the requisite professional qualifications for the post and the obligation to respect fundamental rights and civil liberties , ORG found as follows :

“ The extensive passages cited from the judgment appealed against demonstrate that it neither rejects the possibility of judicial review of the ecclesiastical authority ’s decision nor does it shy away from weighing up the fundamental rights competing in this particular case with the right to religious freedom ( LAW ) , which it does in an unequivocal manner . ”

The Constitutional Court then engaged in its own balancing of the competing fundamental rights :

“ Having dealt with the balancing of the rights at stake in the impugned judgment , this ORG must now assess , above and beyond the reasoning of that judgment , the conclusions reached by it after weighing up the conflicting fundamental rights . In doing so the ORG must consider not just the rights contemplated in that judgment , but also the right to freedom of thought and religion , an issue which it submitted , of its own motion , for the consideration of the parties ...

The actions and opinions which resulted in the appellant in the present case not being proposed by the Diocese as a teacher of NORP religion and ethics were his public disclosure , firstly , of his situation as a priest who was married and the father of CARDINAL children and , secondly , of his membership of ORG ( as made clear by the judgments of the courts below and expressly conceded by the amparo appellant himself ) . It is clear that , from the ORG ’s ( secular ) perspective , these actions and opinions must be considered in terms of a possible infringement of the right to freedom of thought and religion ( LAW ) in conjunction with the right to freedom of expression ( LAW ( a ) of LAW ) , relied on in the application for amparo relief .

In order to resolve this issue it must be borne in mind that no rights , not even fundamental rights , are absolute or unlimited . In some instances the provision of the LAW recognising a right expressly limits that right ; in other cases , the limitation stems from the need to preserve other constitutional rights or values which warrant protection . In that connection this ORG has repeatedly held that the fundamental rights recognised by the LAW can yield only to the limitations expressly laid down by LAW itself or those which can be indirectly inferred from LAW as being justified in order to preserve other rights or values protected by the law . In any case , the limitations imposed may not impede the exercise of the fundamental right in question to an unreasonable degree ( see ORG judgments no . CARDINAL of CARDINAL DATE , legal ground CARDINAL ; no . CARDINAL/CARDINAL of CARDINAL DATE , legal ground CARDINAL ; no . CARDINAL of CARDINAL DATE , legal ground CARDINAL ; no . CARDINAL/CARDINAL of DATE , legal ground CARDINAL ; no . CARDINAL of DATE , legal ground CARDINAL ; no . CARDINAL of DATE , legal ground CARDINAL ; and no . CARDINAL of DATE , legal ground CARDINAL ) .

In the present case the interference with the appellant ’s right to freedom of religion , in its individual dimension , and his right to freedom of thought ( LAW ) taken in conjunction with the right to freedom of expression ( LAW ( a ) of LAW ) , as a result of his not being proposed by the NORP for appointment as a teacher of NORP religion and education for the DATE in the context , therefore , of his claim to continue teaching the creed of a particular religious faith in a public educational establishment – was neither disproportionate nor unconstitutional , since it was justified by respect for the lawful exercise of ORG fundamental right to religious freedom in its collective or community dimension ( LAW ) , in conjunction with the right of parents to choose their children ’s religious education ( LAW ) . The reasons determining the decision not to propose the appellant as a teacher of NORP religion and ethics were of an exclusively religious nature , related to the rules of the faith to which he freely adheres and whose beliefs he sought to teach in a public educational establishment . ”

The Constitutional Court referred to its judgment no . CARDINAL of DATE , observing as follows :

“ As this ORG held in judgment no . CARDINAL of CARDINAL DATE , and reiterated in point CARDINAL of the legal grounds of the present judgment , ‘ it would be quite simply unreasonable , as regards the teaching of religion in schools , if the religious beliefs of those who decide of their own free will to apply for such teaching posts were not taken into account in the selection process , on the basis of guaranteeing the right to religious freedom in its external and collective dimension’ ...

It should certainly be reiterated , as regards the justification and constitutionality of the impact on or modification of the appellant ’s fundamental right to freedom of religion and thought ( LAW ) taken in conjunction with the right to freedom of expression ( LAW ( a ) of LAW ) that , as this Court held in the aforementioned judgment no . CARDINAL of CARDINAL DATE , ‘ the relationship between religious - education teachers and ORG is not entirely the same as that found in organisations which pursue ideological aims , as examined on a number of occasions by this ORG , but represents a specific and distinctive category which , while it presents certain similarities , is also different in some ORG . In that connection the ORG stated in the same judgment , referring to one of the factors which distinguished the relationship between religious - education teachers and the ORG from the relationship within an organisation pursuing ideological aims , and allowed ORG rights to be modified in line with the educational ethos of private educational establishments , that the requirement imposed by the ecclesiastical declaration of suitability ‘ does not merely consist in a duty to refrain from actions contrary to the religious ethos but extends in a more profound manner to a determination of the individual ’s capacity to impart NORP doctrine , understood as a set of faith - based religious convictions . Since the object of religious instruction is the transmission not only of specific knowledge but of the religious faith of the person who teaches it , this will in all probability imply a series of requirements that transcend the limits of an organisation pursuing ideological aims , beginning with the implicit requirement that persons who seek to transmit a religious faith must likewise profess that faith’ ... ”

Finally , ORG turned to an argument made by the appellant , based on the fact that he advocated changing the rules of the NORP faith itself , and concluded as follows :

“ The conclusion reached in the present case as a result of the balancing of the conflicting fundamental rights DATE on the one hand ORG fundamental right to freedom of religion in its collective or community dimension ( LAW ) read in conjunction with the ORG ’s duty of religious neutrality ( LAW of LAW ) , and on the other hand the appellant ’s fundamental right to freedom of thought and religion ( LAW ) read in conjunction with the right to freedom of expression ( LAW ( a ) of LAW ) – is in no way altered by the appellant ’s claim that through his reforming views on celibacy for NORP priests he sought to defend evolutionary change to rules of the NORP faith which he considered to have become outdated with the passage of time . As pointed out in the ORG law officer ’s submissions , the ORG is debarred by its duty of religious neutrality ( LAW of LAW ) from entering into or determining possible disputes within the ORG , in this specific case between proponents and opponents of celibacy for priests . Nor is it for the ORG , in more general terms , to pass judgment on the suitability or compatibility of the actions , opinions and conduct of persons appointed to teach a particular religion vis - à - vis the orthodoxy of the religious faith in question . As a ORG body exercising public authority , the ORG must confine itself in the present amparo appeal , in accordance with its duty of neutrality , to finding established the strictly religious nature of the reasons given by the religious authority for its decision not to propose the appellant as a teacher of NORP religion and ethics . It further finds that the appellant ’s fundamental rights to freedom of thought and religion and freedom of expression , within the ambit of which his actions , opinions and choices in this regard might in principle fall , were affected and modified only to the extent strictly necessary in order to ensure their compatibility with the freedom of religion of ORG . Accordingly , the present amparo appeal must be dismissed . ”

CARDINAL judges appended a dissenting opinion to the majority judgment . They criticised the fact that the balancing of the rights by ORG had been confined to a reference to the religious grounds given in the decision to discontinue the applicant ’s employment . In their view , the publicity given to a form of conduct that was already known beforehand could not justify the non - renewal of the contract .

The applicant subsequently submitted an application requesting that ORG judgment be declared null and void , on the ground that CARDINAL of the judges of the ORG which had given the judgment were known for their affinities with ORG , CARDINAL of them being a member of ORG .

In a decision of DATE , ORG rejected the application on the ground that , under section CARDINAL(CARDINAL ) of LAW on ORG , the only possible remedy against a judgment of that court was a request for clarification .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

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

The applicants complained of the excessive length of criminal proceedings .