Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award;Pecuniary damage - claim dismissed

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

The applicant was born in DATE . He is serving a prison sentence in detention facility no . IK-CARDINAL , located in the town of GPE , GPE .

On CARDINAL DATE the applicant was arrested by the police of the town of PERSON on suspicion of having taken part in several robberies and murders .

The applicant was detained pending criminal proceedings and on CARDINAL DATE ORG found the applicant guilty of CARDINAL murders . The judgment was upheld on appeal by ORG of GPE on DATE .

The applicant alleged that on CARDINAL separate occasions during the course of criminal proceedings against him police officers ill - treated him .

According to the applicant , in TIME CARDINAL May CARDINAL police officers PERSON and ORG had taken him to the fourth floor of a police station and put pressure on him to confess . They had put a plastic bag on his head and punched him in the stomach and neck , preventing him from breathing . At TIME he had been taken back to his cell .

The applicant also submitted that at TIME he had passed out in an interview room as a result of those beatings and stress . On regaining consciousness , he had found a wound on his head . Later he had been provided with first aid , administered by ambulance doctors .

On DATE , having examined the applicant , CARDINAL of the ambulance doctors made the following entry in the medical record :

“ ... reason for the call [ of the ambulance ] : epilepsy ... Diagnosis [ of the applicant ] : following a syncope , bruising of the forehead ... measuring around CARDINAL to QUANTITY . The wound is not bleeding ... Complaints [ of the applicant ] : weakness and vertigo . According to the [ applicant ’s ] statements , he lost consciousness and during DATE , injured himself against a doorpost . He connects this to a stuffy room and DATE of insomnia ... ”

On DATE the applicant asked ORG ( “ the prosecutor ’s office ” ) to institute criminal proceedings in respect of the alleged ill - treatment by the police officers .

NORP In response , the prosecutor ’s office questioned police officers PERSON and ORG , who denied the applicant ’s allegations . They referred to the interrogation records in which the applicant had made no complaints of illtreatment .

On DATE the prosecutor ’s office dismissed the applicant ’s request , having found as follows :

“ ... The applicant ’s allegations are not confirmed by the results of the investigation carried out by the prosecutor ’s office ... On DATE [ the applicant ] went to the police voluntarily and submitted statements of confession ... During his interrogation he confessed to the crime in the presence of his defence counsel . He confirmed these statements during a reconstruction performed at the crime scene ... On DATE during a cross - examination with witness PERSON , [ the applicant ] again confirmed his statements of confession in the presence of his defence counsel . No complaints were made by him [ at that time ] .

Police officers ... B. and ORG were also questioned in the context of the investigation carried out by the prosecutor ’s office . They submitted that during the interview with [ the applicant ] they had not put pressure on him and had not applied force against him . [ The applicant ] had confessed to the crime voluntarily . Moreover , in accordance with the interrogation records , [ the applicant ] had no complaints against the police officers or the prosecutor ’s office ... ”

NORP In DATE and DATE the applicant resubmitted his complaint to the prosecutor ’s office . He requested the questioning of CARDINAL of his cellmates , who he said could confirm his submissions .

By decisions of DATE , DATE and CARDINAL DATE the applicant ’s complaints were dismissed . In all CARDINAL decisions the prosecutor ’s office decided not to carry out further investigations , holding that the claims were substantially the same as those which had been previously examined .

The decision of DATE stated that :

“ ... During the check the arguments of the applicant about the use of physical violence by police officers remain without objective confirmation . In such circumstances the complaint ... can not be accepted . ”

The decision of DATE stated that :

“ ... An earlier complaint of this kind about the actions of policemen had been examined by the prosecutor ’s office of the town of PERSON . Upon its results , the decision of DATE refusing to institute criminal proceedings is taken . The allegations of the [ applicant ] remained without substance ... ”

The applicant also raised the complaint about the ill - treatment by police officers before the trial court in his criminal case .

By a first instance judgment of DATE ORG found the applicant guilty of having murdered QUANTITY persons . In respect of his complaint of ill - treatment on DATE , the court noted , among other things , that :

“ ... during the forensic examination of DATE [ the applicant ] did not have any bodily injuries . This expert examination is carried on DATE after the investigation action with the participation of [ the applicant ] during which he confessed to his involvement in the murder ... and confirmed his earlier confessions ...

The medical certificates from the detention ward submitted to the court on request from the defence about the detention of [ the applicant ] and the fact of a call for the emergency doctors does not confirm that any physical violence has been applied to him . [ The applicant ] submitted in this connection that ... these injuries he received as a result of the fall in his cell in the state of the loss of consciousness ...

In such circumstances the court considers the complaint of [ the applicant ] in the trial hearing about the use of violence by policemen ... as a way to try to avoid responsibility for the acts committed [ by him ] ... ”

The judgment was upheld on appeal by ORG of GPE on DATE .

In the meantime , on DATE , the applicant contested the decision of CARDINAL DATE before ORG . He stated that the investigation in respect of his complaint had been seriously deficient .

On DATE ORG disallowed his complaint concerning ill - treatment and the related investigation . It held that the applicant ’s submissions had already been examined in the context of the criminal case against him .

On DATE ORG upheld that decision on appeal .

The applicant also tried to challenge the decision of DATE ( see paragraphs CARDINAL and DATE ) in court , but to no avail . ORG dismissed the applicant ’s complaint by a final decision of CARDINAL DATE . The court noted that :

“ ... The complaint of [ the applicant ] about the use of inadmissible methods of investigation has already been examined by the courts in CARDINAL instances ... [ the relevant decisions being properly reasoned ] . In such circumstances , [ the court ] does not see any grounds for [ accepting the applicant ’s appeal ] ... ”

The applicant submits that on DATE police officers ill - treated him , forcing to acknowledge his involvement in a different criminal episode . He was allegedly hit in the neck and on the head , and later put in a metal cage , where he spent TIME .

The applicant submitted that TIME he was handcuffed in a remote room of the police station , a plastic bag was placed over his head and he was beaten up again . After being punched in the perineum , he fell on the floor and cut his wrists with a razor . He was then provided with medical aid by doctor PERSON

On DATE the applicant was examined by a doctor , who drew up report no . CARDINAL :

“ ... According to [ the applicant ’s ] statements , he has been detained from DATE . [ Allegedly ] the police officers did not beat him up . On DATE he slashed his wrists with a razor . The wounds were bandaged in a detention facility .

Objectively : on the inside of the lower third of the right forearm and around the wrist there are [ CARDINAL ] linear transversal wounds with smooth lips and pointed ends , the base of which are covered with dried blood , measuring respectively CARDINAL , DATE , DATE , DATE , DATE and QUANTITY . On the inside of the lower third of the left forearm there is a linear transversal wound with smooth lips , pointed left end and “ M”-shaped right end , the base of which is covered with dried blood . The depth of the wound is QUANTITY . On the upper abdomen there are [ CARDINAL ] parallel linear transversal scratches , covered with a brown crust at skin level , measuring respectively CARDINAL , DATE , DATE and QUANTITY . On the forehead there are transversal scratches , covered with an emergent brown crust with disrupted ends and desquamation . The scratches on the left side of the forehead measure respectively CARDINAL and QUANTITY . The scratches on the right side of the forehead measure respectively CARDINAL and QUANTITY . There is a similar scratch on the cheekbone measuring QUANTITY . There is an oval transversal violet bruise on the right side of the tip of the nose . The bruise measures CARDINAL to QUANTITY . It has blurred borders . On the lower third of the front - left shoulder there is a round violet bruise with blurred borders measuring CARDINAL by QUANTITY . On the front right shoulder there is an area of dark - red focal haemorrhage measuring CARDINAL by QUANTITY .

Conclusions : ... the wounds to the right wrist and left forearm were inflicted by a sharp object from DATE before the expert examination . The scratches on the stomach were inflicted by being hit with blunt hard objects with a limited rough surface from DATE before the expert examination . The scratches on the head were inflicted by being hit with blunt hard objects with a limited damagecausing surface from DATE before the expert examination . The bruises on the head , left shoulder , and right shoulder were inflicted by being hit with blunt hard objects with a limited damage - causing surface from DATE before the expert examination ... ”

After the above - mentioned events , the applicant lodged a complaint with the prosecutor ’s office alleging that he had beaten up by police officers on DATE .

On DATE the prosecutor ’s office dismissed the complaint , finding no evidence of ill - treatment . The relevant part of the decision read as follows :

“ At TIME on DATE in an office of the detention ward , [ the applicant ] slashed his wrists .

In the course of the investigation it was established that [ the applicant ] had been charged with the murder of PERSON and that he was being detained pending trial .

Y. [ apparently a police officer ] , who was interrogated in connection with these events , stated that no unlawful actions and no physical force or pressure had been used against [ the applicant ] .

F. [ possibly CARDINAL of the doctors ] , who was interrogated in connection with these events , stated that CARDINAL wounds had been found on the wrists of [ the applicant ] .

[ The applicant ] , who was interrogated in connection with these events , stated that on DATE , during his interrogation in an interview room , he had found a paperclip [ the applicant previously mentioned a razor ] which he had used to slash his wrists as he had not wanted to talk with the police officers . He had made no complaints to anybody .

During the expert examination of DATE [ the applicant ] explained that the police officers had not beaten him and that on DATE he slashed his veins with a razor . The wounds were bandaged .

According to the results of the medical examination of the applicant of DATE , no . CARDINAL ... the injuries ... did not damage his health .

Taking into account the aforementioned circumstances , there are no grounds for instituting criminal proceeding ... ”

It appears that the same allegations were rejected by the prosecutor ’s office also in its decision of CARDINAL DATE , holding that essentially the same complaint had already been dealt with . That decision was upheld by ORG on DATE and it does not appear that the applicant brought appeal proceedings against the decision of CARDINAL DATE .

On DATE the decision of DATE was upheld by ORG . The decision stated as follows :

“ ... There was a check into [ the applicant ’s ] allegations ... at the same time eyewitnesses were questioned , including [ the applicant himself ] , who did not make any complaints ... The decision itself is reasoned ... based on objective data and on the merits is correct ... ”

This decision was later upheld on appeal by ORG on DATE . The court noted that :

“ ... As could be seen from the case file materials , the decision ... is reasoned and ... well - justified in view of the collected objective data ... ”

In his observations of DATE , the applicant stated that on CARDINAL DATE he had been ill - treated by prison officers in the detention ward .

On DATE the applicant lodged a complaint about that incident with the prosecutor ’s office .

The prosecutor ’s office refused to institute criminal proceedings in respect of the applicant ’s allegations . On DATE the refusal was upheld by a final decision of ORG .

Since his arrest on DATE the applicant has remained in detention . He was initially held in the temporary detention ward of ORG in the town of GPE , Republic of Tatarstan ( “ the detention ward ” ) .

The parties agree that the applicant was held in the detention ward on the following dates :

It appears from the case file that in the intervals between the abovementioned periods of detention , the applicant took part in various investigative measures carried out in the context of his criminal case .

On DATE the applicant was transported to another prison facility .

The parties presented different accounts of the conditions in the detention ward .

The applicant provided the following information concerning the conditions of his detention :

The applicant alleged that the conditions of his detention in the cells had not varied . Inmates had taken turns to sleep owing to the shortage of sleeping places . No bedding had been provided . The cells had been infested with insects . There had only been cold water in the showers . It had been difficult to breathe in the cells owing to the smoke and high humidity . Inmates had been provided with food once a day on plastic plates , sent by their relatives . He had had no access to fresh air and exercise .

The applicant maintained that each cell had had a window measuring QUANTITY by QUANTITY , protected by an iron grill . The cell had been lit by a small bulb , which was constantly switched on . In several cells the toilet area had not been partitioned from the living area and had been close to sleeping places and a table . The ventilation had been poor . There had been no heating in DATE . In DATE it had been very hot in the cells . Furthermore , some of the applicant ’s inmates had been infected by HIV , tuberculosis and hepatitis C.

The Government did not dispute that during the relevant time the detention ward , which was designed for CARDINAL detainees , had contained CARDINAL detainees who had had no possibility of taking walks . The Government did not submit information about the cells in which the applicant had been detained and the number of inmates in each of those cells . According to the Government , cell no . CARDINAL had CARDINAL sleeping places , and cells no . CARDINAL , DATE , and CARDINAL had CARDINAL sleeping places . They submitted that at all times the applicant had had an individual sleeping place and bedding . Each cell had had CARDINAL window measuring QUANTITY wide by QUANTITY high , and had been equipped with CARDINAL lamp . The toilets in the cells had been separated from the living area by a CARDINAL high wall . All cells in the detention ward had been equipped with mandatory ventilation in good working order . The heating system had functioned properly . The temperature in the cells had been between CARDINALºC and CARDINALºC in the DATE and CARDINAL in DATE . The cells had been disinfected DATE . The applicant had had access to hot water , a laundry and a regular bath service . He had been provided with nutrition and tableware in line with the requirements of the domestic law .

In his letters of CARDINAL and CARDINAL DATE the applicant complained to the ORG ’s office about the conditions in which he had been held in the detention ward .

On DATE and DATE respectively the prosecutor ’s office rejected the complaints , having acknowledged the problem of overcrowding , lack of sleeping places and poor sanitation . The decision of CARDINAL DATE stated :

“ ... The inquiry established that during DATE ... the cells were overcrowded from CARDINAL to CARDINAL times . The full capacity [ of the facility ] is CARDINAL persons , whilst in reality during the inquiry there were CARDINAL persons [ in it ] . The inmates do not have access to information – there are no means of radio broadcasting . The disinfection of the cells ... does not allow to attend the established norms of hygiene and sanitary norms ... ”

The decision of DATE gave a similar description of the situation in the facility in question and also stated that :

“ ... the prison administration is [ objectively ] unable to provide each inmate with a sleeping place , as specified in [ the relevant rules ] ...

It follows that there were no breaches of the law in the actions of the [ relevant prison officials ] and there are no grounds to take any measures [ by the prosecutor ’s office ] in this connection ... ”

In both decisions the prosecutor drew the attention of the prison authorities to those issues , without taking any other measure in connection with the problem .

On DATE the applicant and several of his fellow inmates lodged a collective complaint concerning the same grievances .

In its reply of DATE , the prosecutor ’s office held that there was no need to intervene , despite the overcrowding of the detention ward . The decision stated :

“ ... in order to bring [ the prison ] in line with the federal legislation , a complete overhaul of it is required . The maximum capacity is CARDINAL , but due to [ various reasons it is not rare for it to contain ] CARDINAL persons ... for these reasons the prison administration is unable to provide each inmate with a separate sleeping place ... ”

In his letter of DATE addressed to the prosecutor ’s office , the applicant repeated his complaints about the conditions in which he had been held in the detention ward .

The prosecutor ’s office dismissed his claim on DATE .

On DATE the applicant resubmitted the same complaints to the prosecutor ’s office .

By a decision of DATE the claim was again dismissed . The prosecutor ’s office noted that the authorities were planning to renovate the detention ward and also stated that :

“ ... The inquiry carried out showed that there were no socio - medical counterindications in respect of the continued detention of inmates in [ that facility ] . The conditions of detention ... are incompliance with the respective standards , set out for this category of establishments ... ”

Article CARDINAL § CARDINAL of LAW of GPE of DATE provides that the application to another person of physical force which has caused physical pain but has not resulted in any health damage is punishable by a fine , compulsory or correctional labour or arrest for a period of DATE .

Article CARDINAL § CARDINAL ( a ) of MONEY provides that actions of a public official which clearly exceed his authority and entail a substantial violation of the rights and lawful interests of citizens , committed with violence or the threat of violence , are punishable by DATE imprisonment , with a prohibition on occupying certain posts or engaging in certain activities for DATE .

Under the Detention of Suspects Act DATE , detainees should be kept in conditions that satisfy health and hygiene requirements . They should be provided with an individual sleeping place and be given bedding , tableware and toiletries . Each inmate should have QUANTITY of personal space in his or her cell ( Section CARDINAL ) . Detainees should be given sufficient free food to keep them in good health , in line with the standards established by ORG of GPE ( Section CARDINAL ) .

Article CARDINAL of the Code of Criminal Procedure of GPE ( “ the ORG ” ) provides that prosecutors , investigators and inquiry bodies must consider applications and information about any crime committed or being prepared , and take a decision on that information within DATE . In exceptional cases , that time - limit can be extended to DATE . The decision should be one of the following : ( a ) to institute criminal proceedings ; ( b ) to refuse to institute criminal proceedings ; or ( c ) to transmit the information to another competent authority ( Article CARDINAL of the ORG ) .

Article CARDINAL of the ORG provides that the decision of an investigator or a prosecutor to dispense with or terminate criminal proceedings , and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede ORG access to justice , may be appealed against to a ORG , which is empowered to check the lawfulness and grounds of the impugned decisions .

Article CARDINAL of the ORG provides that , in order to terminate the proceedings , the investigator should adopt a reasoned decision with a statement of the substance of the case and the reasons for its termination . A copy of the decision to terminate the proceedings should be forwarded by the investigator to the prosecutor ’s office . The investigator should also notify the victim and the complainant in writing of the termination of the proceedings .

Under LAW ORG , the prosecutor ’s office is responsible for general supervision of the investigation . In particular , the prosecutor ’s office may order that specific investigative measures be carried out , transfer the case from CARDINAL investigator to another , or reverse unlawful and unsubstantiated decisions taken by investigators and inquiry bodies .

The Standard Minimum Rules for the Treatment of Prisoners , adopted by ORG on ORG and the Treatment of Offenders , held at GPE in DATE , and approved by ORG by its resolution CARDINAL C ( XXIV ) of DATE and CARDINAL ( LXII ) of CARDINAL DATE , provide , in particular , as follows :

“ CARDINAL . All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health , due regard being paid to climatic conditions and particularly to cubic content of air , minimum floor space , lighting , heating and ventilation ...

In all places where prisoners are required to live or work ,

( a ) The windows shall be large enough to enable the prisoners to read or work by natural light , and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation ;

( b ) PERSON light shall be provided sufficient for the prisoners to read or work without injury to eyesight .

The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner .

Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower , at a temperature suitable to the climate , as frequently as necessary for general hygiene according to DATE and geographical region , but at least once a week in a temperate climate .

All pans of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all time .

Prisoners shall be required to keep their persons clean , and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness ...

Every prisoner shall , in accordance with local or national standards , be provided with a separate bed , and with separate and sufficient bedding which shall be clean when issued , kept in good order and changed often enough to ensure its cleanliness .

CARDINAL ) Every prisoner shall be provided by the administration at the usual TIME with food of nutritional value adequate for health and strength , of wholesome quality and well prepared and served .

( CARDINAL ) Drinking water shall be available to every prisoner whenever he needs it .

CARDINAL ) Every prisoner who is not employed in outdoor work shall have TIME of suitable exercise in the open air DATE if the weather permits .

CARDINAL ... ( CARDINAL ) The transport of prisoners in conveyances with inadequate ventilation or light , or in any way which would subject them to unnecessary physical hardship , shall be prohibited ... ”

The relevant extracts from the General Reports prepared by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) read as follows :

“ CARDINAL . Overcrowding is an issue of direct relevance to the ORG ’s mandate . All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate ; the overall quality of life in the establishment will be lowered , perhaps significantly . Moreover , the level of overcrowding in a prison , or in a particular part of it , might be such as to be in itself inhuman or degrading from a physical standpoint .

A satisfactory programme of activities ( work , education , sport , etc . ) is of crucial importance for the well - being of prisoners ... [ P]risoners can not simply be left to languish for DATE , possibly DATE , locked up in their cells , and this regardless of how good material conditions might be within the cells . The ORG considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of DATE ( TIME or more ) outside their cells , engaged in purposeful activity of a varied nature ...

Specific mention should be made of outdoor exercise . The requirement that prisoners be allowed TIME of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious and whenever possible offer shelter from inclement weather ...

Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ...

The ORG would add that it is particularly concerned when it finds a combination of overcrowding , poor regime activities and inadequate access to toilet / washing facilities in the same establishment . The cumulative effect of such conditions can prove extremely detrimental to prisoners .

It is also very important for prisoners to maintain reasonably good contact with the outside world . Above all , a prisoner must be given the means of safeguarding his relationships with his family and close friends . The guiding principle should be the promotion of contact with the outside world ; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations ... ”

“ CARDINAL . As the ORG pointed out in DATE ORG , prison overcrowding is an issue of direct relevance to the ORG ’s mandate ( cf . ORG ( CARDINAL ) CARDINAL , paragraph CARDINAL ) . An overcrowded prison entails cramped and unhygienic accommodation ; a constant lack of privacy ( even when performing such basic tasks as using a sanitary facility ) ; reduced out - of - cell activities , due to demand outstripping the staff and facilities available ; overburdened health - care services ; increased tension and hence more violence between prisoners and between prisoners and staff . This list is far from exhaustive .

The ORG has been led to conclude on CARDINAL occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ... ”

“ CARDINAL . The phenomenon of prison overcrowding continues to blight penitentiary systems across LOC and seriously undermines attempts to improve conditions of detention . The negative effects of prison overcrowding have already been highlighted in previous ORG ...

In a number of countries visited by the ORG , particularly in central and eastern LOC , inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a DATE basis , such as sleeping and living areas as well as sanitary facilities . The ORG has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when , as is frequently the case , the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large - capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level ; further , in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions .

The ORG frequently encounters devices , such as metal shutters , slats , or plates fitted to cell windows , which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation . They are a particularly common feature of establishments holding pre - trial prisoners . The ORG fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [ E]ven when such measures are required , they should never involve depriving the prisoners concerned of natural light and fresh air . The latter are basic elements of life which every prisoner is entitled to enjoy ; moreover , the absence of these elements generates conditions favourable to the spread of diseases and in particular tuberculosis ... ”

On DATE ORG Recommendation No . R ( CARDINAL ) CARDINAL concerning prison overcrowding and prison population inflation , which provides in particular as follows :

“ Considering that prison overcrowding and prison population growth represent a major challenge to prison administrations and the criminal justice system as a whole , both in terms of human rights and of the efficient management of penal institutions ;

Considering that the efficient management of the prison population is contingent on such matters as the overall crime situation , priorities in crime control , the range of penalties available on the law books , the severity of the sentences imposed , the frequency of use of community sanctions and measures , the use of pre - trial detention , the effectiveness and efficiency of criminal justice agencies and not least public attitudes towards crime and punishment ...

Recommends that governments of member states :

- take all appropriate measures , when reviewing their legislation and practice in relation to prison overcrowding and prison population inflation , to apply the principles set out in the appendix to this recommendation ...

I. Basic principles

Deprivation of liberty should be regarded as a sanction or measure of last resort and should therefore be provided for only , where the seriousness of the offence would make any other sanction or measure clearly inadequate .

NORP The extension of the prison estate should rather be an exceptional measure , as it is generally unlikely to offer a lasting solution to the problem of overcrowding . Countries whose prison capacity may be sufficient in overall terms but poorly adapted to local needs should try to achieve a more rational distribution of prison capacity ...

II . Coping with a shortage of prison places

NORP In order to avoid excessive levels of overcrowding a maximum capacity for penal institutions should be set .

Where conditions of overcrowding occur , special emphasis should be placed on the precepts of human dignity , the commitment of prison administrations to apply humane and positive treatment , the full recognition of staff roles and effective modem management approaches . In conformity with ORG , particular attention should be paid to the amount of space available to prisoners , to hygiene and sanitation , to the provision of sufficient and suitably prepared and presented food , to prisoners’ health care and to the opportunity for outdoor exercise .

NORP In order to counteract some of the negative consequences of prison overcrowding , contacts of inmates with their families should be facilitated to the extent possible and maximum use of support from the community should be made ...

III . Measures relating to the pre - trial stage

Avoiding criminal proceedings - Reducing recourse to pre - trial detention

Appropriate measures should be taken with a view to fully implementing the principles laid down in Recommendation No R ( CARDINAL ) CARDINAL concerning the simplification of criminal justice , this would involve in particular that member states , while taking into account their own constitutional principles or legal tradition , resort to the principle of discretionary prosecution ( or measures having the same purpose ) and make use of simplified procedures and out - of court settlements as alternatives to prosecution in suitable cases , in order to avoid full criminal proceedings .

The application of pre - trial detention and its length should be reduced to the minimum compatible with the interests of justice . To this effect , member states should ensure that their law and practice are in conformity with the relevant provisions of LAW and the case - law of its control organs , and be guided by the principles set out in Recommendation No R ( CARDINAL ) CARDINAL concerning custody pending trial , in particular as regards the grounds on which pre - trial detention can be ordered .

The widest possible use should be made of alternatives to pre - trial detention , such as the requirement of the suspected offender to reside at a specified address , a restriction on leaving or entering a specified place without authorisation , the provision of bail or supervision and assistance by an agency specified by the judicial authority . In this connection attention should be paid to the possibilities tor supervising a requirement to remain in a specified place through electronic surveillance devices .

In order to assist the efficient and humane use of pre - trial detention , adequate financial and human resources should be made available and appropriate procedural means and managerial techniques be developed , as necessary . ”

On DATE ORG Recommendation Rec(CARDINAL)CARDINAL to member GPE on ORG , which replaced Recommendation No . R ( CARDINAL ) CARDINAL on ORG accounting for the developments which had occurred in penal policy , sentencing practice and the overall management of prisons in LOC . The amended NORP Prison Rules lay down the following guidelines :

“ CARDINAL . All persons deprived of their liberty shall be treated with respect for their human rights .

Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody .

Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed .

Prison conditions that infringe ORG human rights are not justified by lack of resources .

ORG apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction . ”

“ CARDINAL . The accommodation provided for prisoners , and in particular all sleeping accommodation , shall respect human dignity and , as far as possible , privacy , and meet the requirements of health and hygiene , due regard being paid to climatic conditions and especially to floor space , cubic content of air , lighting , heating and ventilation .

In all buildings where prisoners are required to live , work or congregate :

a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system ;

b. artificial light shall satisfy recognised technical standards ; and

c. there shall be an alarm system that enables prisoners to contact the staff without delay .

National law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons .

Prisoners shall normally be accommodated during TIME in individual cells except where it is preferable for them to share sleeping accommodation .

Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy .

Adequate facilities shall be provided so that every prisoner may have a bath or shower , at a temperature suitable to the climate , if possible DATE but at least twice DATE ( or more frequently if necessary ) in the interest of general hygiene .

Prisoners shall be provided with a nutritious diet that takes into account their age , health , physical condition , religion , culture and the nature of their work .

There shall be CARDINAL meals a day with reasonable intervals between them .

Clean drinking water shall be available to prisoners at all times .

Every prisoner shall be provided with the opportunity of TIME of exercise every day in the open air , if the weather permits .

When the weather is inclement alternative arrangements shall be made to allow prisoners to exercise . ”


The applicant is a NORP national born in DATE . He is currently detained in LOC prison .

On an unspecified date in DATE , the applicant was convicted of burglary and sentenced to imprisonment .

DATE and DATE , the applicant stayed at FAC . He was admitted to that facility after he had been diagnosed as suffering from anaemia and from an infection on the inside of his left cheek . The applicant underwent a histopathological examination which showed that the condition of his cheek was not cancerous but rather caused by a self - inflicted injury . In addition , a haematologic examination led to the conclusion that the applicant ’s anaemia resulted from a heavy loss of blood caused by self - inflicted injuries as well . The applicant was treated with ferric preparations . When his condition improved , he was discharged from the hospital and transferred to a nearby residential facility of FAC . However , an examination of the applicant conducted DATE showed a low level of haemoglobin and a loss of tissue on the inside of his left cheek . He was brought back to the hospital , where he was given a blood transfusion which led to an improvement of his condition . On DATE , the applicant was discharged from the hospital and transferred to PERSON prison .

On DATE , the applicant was admitted to ORG , where he was diagnosed as suffering from anaemia , an infection of his left cheek and suspected self - mutilation . During his hospitalisation in that facility , he underwent the following examinations : blood , urine and stool tests , a chest x - ray , an ultrasound of the abdominal cavity , ORG , histopathological , dental and rectal examinations . He was also examined in the maxillofacial surgery ward . Moreover , the applicant was treated with CARDINAL different medicines and received a transfusion of red blood cells . Subsequently his condition improved and on DATE he was transferred to ORG prison .

On DATE , the applicant lodged a complaint with ORG concerning the allegedly inadequate medical care he had received in ORG . On DATE , his complaint was transmitted to the District Director of ORG in GPE . On DATE , the District Director rejected the complaint as unfounded . He pointed out that during his hospitalisation , the applicant had undergone several examinations and had received pharmaceutical treatment . He further informed the applicant that he agreed with the doctors who had examined him and had found that no other treatment was required by his condition . In addition , the District Director observed that it appeared that the applicant had been mutilating himself by bloodletting and advised him that any further self - mutilation would lead to a deterioration of his state of health .

In a letter of CARDINAL DATE addressed to the District Director of ORG , the applicant contested the conclusions stated in the Director ’s letter of DATE . On DATE , the Director informed that applicant that he saw no reason to change his position and objected to the insults the applicant had used in his letter against prison doctors , in particular to a comparison of FAC with a concentration camp .

On DATE , the Penitentiary Judge dismissed the applicant ’s complaint concerning the allegedly inadequate medical treatment received by him at FAC .

On DATE , ORG informed the applicant that she had requested his medical file to be submitted to her in order to investigate his complaint about inadequate medical care provided by ORG .

On DATE , a physician from PERSON prison provided the applicant , upon his request , with a health certificate which described his state of health as “ average ” .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by PERSON , a lawyer practising in GPE . The respondent Government were represented by their Agent , PERSON , succeeded by PERSON as from DATE .

The facts of the case , as submitted by the parties , may be summarised as follows .

On DATE ORG elected the applicant President of ORG for a DATE period .

On DATE the Government adopted a resolution under which it initiated the revocation of the applicant ’s appointment . The background for the resolution was a proposal submitted by the Minister of ORG in which the following reasons for the applicant ’s removal from office were invoked .

According to the proposal , the applicant , in his speeches , attitudes and decisions , had taken several steps which cast doubt on the trustworthiness of ORG and of the judiciary as a whole .

Firstly , the applicant had failed to initiate disciplinary proceedings to dismiss GPE from his appointment as a judge . GPE was then the VicePresident of ORG and had forcibly entered premises belonging to ORG and had used force against a high ranking official of that ORG in DATE . According to the Minister ’s proposal , the applicant ’s behaviour in the matter had not been appropriate .

Secondly , the applicant had initiated , in DATE , the amendment of several laws concerning the judiciary . Those proposals clearly exceeded the legitimate interest in ensuring that ORG should have its own chapter in the ORG budget . If they had been approved , the President of ORG would have had the exclusive right to determine the number of judges of ORG and to decide on the assignment or transfer of judges to it . This initiative had been strongly criticised in a declaration adopted by ORG in DATE . According to the declaration , the proposal was against the principle of transparency in staff matters and created the danger of making decision - making on judges’ careers much less objective . The Minister ’s report concluded that the applicant had sought to obtain more power rather than to strengthen the self - administration of judges .

Thirdly , the applicant had taken into account the views expressed by organs of self - administration of judges only in cases where it suited his interests . Thus the applicant had not accepted the transfer of a judge to ORG despite the fact that it had been recommended by ORG of GPE . On the other hand , the applicant had proposed to assign temporarily to ORG judge who clearly failed to meet the professional and moral requirements for holding a post at ORG . The Minister ’s report concluded that the applicant had failed to apply correct professional and ethical criteria when proposing to fill posts at ORG .

Fourthly , the applicant had not acted in a correct manner when presenting his views on a draft amendment to the LAW . In particular , in a letter addressed to a representative of ORG , the applicant had stated that , in the opinion of almost all judges of the ordinary courts , the draft amendment to LAW was contrary to the principle of the separation of powers and permitted interference with the independence of judges . That was contrary to the views expressed by ORG of GPE , by ORG and by ORG , those being organisations which represented a majority of judges . Furthermore , the applicant had incorrectly alleged that the whole judiciary including ORG would be ruled by a member of the Government if ORG were to be established in accordance with the draft amendment to LAW , whereas under the amendment ORG was to be composed of CARDINAL judges elected by judges and of another QUANTITY members , of whom CARDINAL were to be appointed by the ORG , CARDINAL by the President of GPE and CARDINAL by the Government .

The applicant ’s comments on the draft amendment were “ noteworthy ” in that they showed that he did not understand the purpose of an amnesty in a democratic ORG . The report also stated that the applicant ’s comments showed that the real reason for his disagreement with the draft amendment to the LAW was the point concerning the termination of the powers of the President of ORG .

Fifthly , several cases taken up by the media had impaired the trustworthiness of the judiciary . For example , a representative of ORG was suspected of having forged an official document concerning the use of a building in which ORG had its seat . The applicant was not in a position to show that the suspicion was unsubstantiated and had frequently changed his explanation of the relevant facts . Furthermore , the applicant had failed to initiate disciplinary proceedings against a ORG judge who had been treated free of charge in a spa . The applicant had taken an inappropriate initiative in the context of judicial proceedings in that he had informed the media , on his own initiative , about a ORG decision and commented upon it prior to its delivery to the parties .

The Minister ’s report concluded that the applicant ’s actions and behaviour showed that he did not meet the professional and moral requirements for holding the post of President of ORG . In performing his duties , the applicant had laid emphasis on his material status and the strengthening of his powers rather than on professional and ethical problems of the judiciary .

The applicant filed a petition to ORG under Article CARDINAL(CARDINAL ) of the LAW . With reference to the ORG ’s proposal , he alleged a violation of his right to freedom of expression as guaranteed by LAW and also a violation of LAW and CARDINAL of the LAW .

On DATE ORG dismissed the applicant ’s petition as being manifestly ill - founded . The decision stated that the Government ’s proposal to revoke the applicant ’s appointment as President of ORG did not amount to a violation of any of his constitutional rights . ORG pointed out , in particular , that there was no right under LAW to exercise the post to which the applicant had been elected . Furthermore , there was no indication that the applicant ’s right to freedom of expression or his other constitutional rights had been violated as a result of the proposal to remove him from the post since that proposal did not , as such , directly affect the applicant ’s rights or his interests protected by law .

On DATE in ORG the motion that the applicant ’s appointment be revoked was defeated by CARDINAL votes to CARDINAL , with CARDINAL abstentions .

Following the entry into force , on DATE , of a constitutional amendment the post of President of ORG was to be filled in accordance with Article CARDINAL(CARDINAL ) of the LAW . The applicant was a successful candidate for that post in an election held by ORG on DATE . Subsequently ORG invalidated the election on the ground that the other candidate had been at a disadvantage vis - à - vis the applicant . The subsequent elections having not resulted in the appointment of the President of ORG pursuant to LAW , the applicant held the post of President of ORG until DATE when the term for which he had been appointed expired . Since then he has performed the duties of a ORG judge .

The following provisions of the LAW , as in force at the relevant period , are pertinent in the present case .

Article CARDINAL ) guarantees the freedom of expression and the right to information . Paragraph CARDINAL of Article CARDINAL guarantees to everyone the right to express his or her views orally , in writing , through the press , pictures or by other means and to freely seek , receive and impart ideas and information . Paragraph CARDINAL of Article CARDINAL prohibits censorship . Under paragraph CARDINAL of Article CARDINAL , freedom of expression and the right to seek and impart information may be restricted by law where it is necessary in a NORP society for the protection of rights and freedoms of others , in the interest of state security or public order or for the protection of public health and morals .

Under LAW ) , citizens have the right to participate in the administration of public affairs either directly or by electing their representatives . LAW CARDINAL entitles citizens to have access to public posts on equal terms .

Under LAW ) , as in force until DATE , judges were elected by ORG upon the ORG ’s proposal for a DATE period . After the expiry of that period ORG elected judges , upon the Government ’s proposal , for an indefinite period .

Paragraph CARDINAL of Article CARDINAL , as in force until DATE , provided that the President and Vice - Presidents of ORG were to be elected by ORG from the judges of ORG for DATE . Such posts could not be held by the same persons for CARDINAL consecutive periods of DATE .

Under LAW as in force until DATE , the appointment of a judge could be revoked by ORG either after his or her final conviction for an intentional criminal offence or when he or she had committed a disciplinary offence which was incompatible with the office of a judge . Paragraph CARDINAL of Article CARDINAL , as in force until DATE , provided that , prior to revoking the appointment of a judge , ORG had to ask the competent disciplinary court for an opinion .

Following an amendment to the LAW , the following relevant provisions entered into force with effect from DATE .

Article PERSON ) provides for establishment of ORG , composed of the President of ORG , CARDINAL judges elected by the judges who may revoke their appointment , and another QUANTITY members , CARDINAL of whom are appointed by the ORG , CARDINAL by the President of GPE and three by the Government . Under paragraph CARDINAL(c ) of Article CARDINALa , ORG has the right to propose to the President of GPE the names of persons to be appointed to the posts of President and Vice - President of ORG and to call for their removal from office .

Pursuant to LAW , the President and Vice - President of ORG are appointed by the President of GPE , upon the proposal of ORG , from among the judges of ORG for a DATE period . Prior to the expiry of that period the President of GPE can revoke the appointments to the posts of President and Vice - President of ORG for any of the reasons laid down in LAW .

Act No . CARDINAL/CARDINAL governs , inter alia , the ORG administration of courts , which consists in setting up necessary conditions for the proper administration of justice without interfering with the independence of the judiciary .

Under LAW ) , the central authority charged with ORG administration of justice is ORG . Paragraph CARDINAL of Section CARDINAL provides that the other authorities in charge of ORG administration of ORG are the President and the Vice - President of ORG and the presidents and vice - presidents of ORG and ORG .

Pursuant to Section CARDINAL(CARDINAL ) , ORG administration of ORG is carried out by ORG through the President of ORG .

Section CARDINAL ) provides that ORG organises , directs and controls the ORG administration of courts by their presidents .

Pursuant to Section CARDINAL(CARDINAL ) , the President of ORG carries out the ORG administration of that court in that he or she ( a ) ensures the functioning of ORG in terms of personnel and organisation , being responsible in particular for filling the expert and other posts with duly qualified staff and for dealing with personnel matters relating to judges and the other staff of the court , ( b ) ensures the functioning of ORG from the economic , material and financial point of view and ( c ) attends to the professional education of judges and other staff members of ORG .

Under paragraph CARDINAL of LAW , the President of ORG also takes care to ensure that the dignity of judicial proceedings is respected , that the rules of judicial ethics are complied with and that proceedings before ORG are conducted without undue delays .

Paragraph CARDINAL of LAW entitles the President of ORG to initiate complaints in the interest of the law in the cases provided for by law .

According to LAW , any natural person has the right to protection of his or her personality , in particular of his or her life and health , civil and human dignity , privacy , name and personal characteristics .

Pursuant to Article PERSON ) , any natural person has the right to request that unjustified infringement of his or her personal rights should be stopped and the consequences of such infringement eliminated , and to obtain appropriate satisfaction .

Article CARDINAL ) provides that in cases where the satisfaction obtained under Article PERSON ) is insufficient , in particular because a person ’s dignity and position in society has been considerably diminished , the injured person is entitled to compensation for non - pecuniary damage . According to paragraph CARDINAL of Article CARDINAL , when determining the amount of such compensation the courts have to take into account the seriousness of the prejudice suffered by the person concerned and also the circumstances under which the violation of that person ’s rights occurred .


David Thór Björgvinsson;Mihai Poalelungi;Päivi Hirvelä

The applicant was born in DATE .

On DATE the applicant was first questioned by the police on suspicion of offences in relation to his business activities . The last questioning of the applicant took place on DATE .

The first pre - trial investigation reports were completed and sent to the public prosecutor on DATE , DATE and DATE . The last pre - trial investigation report was submitted to the prosecutor on DATE .

On DATE the prosecutor , who according to the Government had decided to join the cases concerning the applicant , preferred charges against him at ORG . The court held a preliminary hearing on DATE and later an oral hearing over DATE . The applicant was heard before the court for the first time on DATE .

On DATE ORG issued its judgment with regard to the applicant and CARDINAL other defendants in CARDINAL cases which had been joined . The applicant was convicted of aggravated tax fraud and other economic offences and sentenced to DATE and CARDINAL months’ imprisonment . Jointly with other defendants , he was also ordered to pay some ORG CARDINAL with interest to the tax authorities .

In its reasoning ORG stated that the majority of the criminal acts in respect of all defendants had been committed in DATE and DATE . The bulk of cases had been lodged with the court on DATE . The last application for a summons in the joined cases had been filed with the court on DATE . The court noted that the case concerned particularly wide - ranging economic crimes . The examination of the cases needed to be joined due to the connections between different companies and persons involved . For that reason the court , in sentencing the defendants , took into account only to a lesser degree the time that had elapsed since the commission of the criminal acts and the length of the proceedings as mitigating circumstances . The amount of reduction in the respective sentences was not specified by the court . As regarded the applicant , the court also took into account his previous community service and noted that he had committed the crimes partly while on probation .

On DATE , having held an oral hearing , ORG dismissed the applicant ’s appeal , including his complaint concerning the length of the proceedings .

On DATE ORG refused leave to appeal .


Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by PERSON İ. Gül , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent .

The facts of the case , as submitted by the parties , may be summarised as follows .

On DATE ORG and Highways decided to expropriate the applicant ’s land in GPE , GPE . The applicant brought an action in ORG on DATE , seeking increased compensation .

On DATE ORG awarded the applicant MONEY ( GPE ) by way of additional compensation , plus interest at the statutory rate . Both parties appealed . In the meantime the applicant initiated execution proceedings through ORG on DATE . ORG upheld the first - instance court ’s decision on DATE .

The authorities paid a total of MONEY ( TRY ) to ORG on DATE . The applicant withdrew the payment on DATE .


MAMUDOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in the village of GPE , in the former GPE .

On DATE the Kumanovo Court of First Instance ( “ the trial court ” ) found the applicant , who was put on trial in absentia , PERSON and PERSON guilty of drug trafficking and sentenced them to terms of imprisonment of DATE . The applicant received the longest sentence . The court found that they had acted in concert , namely that Mr ORG and PERSON had loaded QUANTITY of heroin on to a truck in the former GPE in order to offer it for sale in GPE , where the applicant had temporary residence . The applicant 's conviction was based on PERSON statements given in the pre - trial proceedings and at the trial concerning his role in the crime . PERSON knowing the applicant .

The applicant , who was legally represented , successfully requested a reopening of the proceedings after his return to the former GPE .

On DATE the trial court set aside its decision of CARDINAL DATE , convicted the applicant of drug trafficking and imposed the same sentence . It examined the applicant and PERSON It refused his request to hear evidence from PERSON and to confront the latter with PERSON , however .

The applicant appealed on the grounds , inter alia , that the trial court had refused his request for examination of PERSON , even though his conviction had been based solely on the latter 's testimony .

At a public hearing held on DATE , ORG dismissed the applicant 's appeal and upheld the trial court 's decision . It found that Mr PERSON 's testimony had been clear and coherent , and that he had described in detail the sequence of events and the convicts ' roles in the crime .

The applicant 's request for a reopening of the proceedings was finally dismissed by ORG on DATE .

Under section CARDINAL of the LAW a public prosecutor “ may ” ( може ) request the protection of legality ( барање за заштита на законитоста ) against a final court decision .

According to section CARDINAL § CARDINAL of the LAW , the court has to confine itself to reviewing the alleged violations complained of by the complainant .

Section CARDINAL § CARDINAL provides that if the request is well founded , the court is either to overturn the final decision or to quash , entirely or in part , the decisions of the trial court and the appellate court , or the appellate court 's decision alone , and refer the case back for a retrial or to the appellate court , or establish the violation itself .

Section CARDINAL provides that if there is considerable doubt as to the relevant facts established in the judgment against which the request was lodged and accordingly it is not possible to review it on the merits , the court will quash it and order a retrial before the same or another trial court .

Section CARDINAL § § CARDINAL and CARDINAL provides that a person convicted by a final judgment and sentenced to imprisonment may request extraordinary review of the final judgment ( барање за вонредно преиспитување на правосилна пресуда , hereinafter “ extraordinary review request ” ) . The extraordinary review request may be submitted within DATE of the date on which the convicted person was served with the judgment .

Under section CARDINAL , ORG decides extraordinary review requests .

Under section CARDINAL § CARDINAL ( CARDINAL ) , an extraordinary review request may be submitted in a case of a violation of the defence rights of the convicted person by the trial court or an infringement of the procedural rules in the appeal proceedings , if relevant to the adoption of a just decision .

Section CARDINAL § § CARDINAL and CARDINAL provides that an extraordinary review request may be lodged by the convicted person or his counsel . The trial court or the court which decides upon the extraordinary review request may postpone or stay the execution of the final court decision .

Section CARDINAL stipulates , inter alia , that sections CARDINAL , CARDINAL § CARDINAL and CARDINAL of the LAW apply to extraordinary review requests .

a ) ORG accepted convicts ' extraordinary review requests and ordered retrial on the ground that law had been applied to their significant disadvantage . The court requested reassessment of evidence and reconsideration of the facts ( PERSON of DATE and Kvp.br.CARDINAL/CARDINAL of DATE ) .

b ) A person was convicted , at first and second instance , for having undertaken CARDINAL activities which provoked religious and ethnic hatred . ORG ruled partly in favour of the convict and excluded CARDINAL of the counts for which he was convicted of ( ORG . CARDINAL of DATE ) .


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

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Helen Keller;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and lives in GPE . He is a member of ORG and ORG .

He submitted that ORG had adopted CARDINAL Directives in succession aimed at preventing the use of the financial system for money - laundering . The first ( CARDINAL/CARDINAL/EEC of DATE ) targets credit and financial institutions . It was amended by a Directive of DATE ( CARDINAL ) which , among other things , widened its scope to include professions outside the financial sector , including members of the independent legal professions . The third Directive ( CARDINAL/CARDINAL/EC of DATE ) repealed the Directive of DATE , as amended , and reproduced and added to its content . The laws transposing these Directives – Law no . CARDINAL of DATE in the case of LAW , as amended – and the regulations implementing that law – Decree no . DATE - CARDINAL of DATE have been incorporated into ORG ( for more details see sections III and IV below on relevant ORG and domestic law ) .

These texts place lawyers under an “ obligation to report suspicions ” which the legal profession – who see it as a threat to professional privilege and the confidentiality of exchanges between lawyers and their clients – have constantly criticised , in particular through ORG .

NORP However , on DATE ORG took a “ decision adopting regulations on internal procedures for implementing the obligation to combat money - laundering and terrorist financing , and an internal supervisory mechanism to guarantee compliance with those procedures ” ( published in ORG on DATE ) . In so doing it was effectively applying section CARDINAL of the PERSON of DATE reforming certain legal and judicial professions , which empowered it , with due respect for the laws and regulations in force , to take general measures to unify the rules and practices of the legal profession .

Article CARDINAL of the above - mentioned decision states that “ all lawyers who are members of a NORP Bar ” are bound by these rules of their profession when , in the course of their business activity , they participate for and on behalf of their client in any financial or real - estate transaction or assist their client in the preparation or execution of transactions relating to : ( CARDINAL ) the buying and selling of real estate or businesses ; ( CARDINAL ) the management of funds , securities or other assets belonging to the client ; ( CARDINAL ) the opening of current accounts , savings accounts or securities accounts ; ( CARDINAL ) the organisation of the contributions required to create companies ; ( CARDINAL ) the formation , administration or management of companies ; and ( CARDINAL ) the formation , administration or management of trusts governed by a foreign legal system , or of any other similar structure . They are not bound by these rules “ when acting as legal counsel or in the context of judicial proceedings ” in connection with CARDINAL or other of the above activities ( LAW ) .

The regulations establish in particular that lawyers must always “ show due diligence ” in this context and “ develop internal procedures ” to ensure compliance with , inter alia , the laws and regulations governing the reporting of suspicions ( Article CARDINAL ) , indicating in particular the procedure to be followed when an operation appears to warrant such reporting ( Article CARDINAL ) . More specifically , they must adopt written rules describing the steps to be taken ( Article CARDINAL ) . They must also ensure that the regulations are properly applied in their structure , and that lawyers and staff receive the necessary information and training , tailored to their particular activities ( Article CARDINAL ) , and set up an in - house monitoring system ( Article CARDINAL ) . At the same time , the regulations also specify that “ lawyers must , in all circumstances , ensure that professional confidentiality is respected ” ( Article CARDINAL ) .

Failure to comply with these regulations can entail disciplinary sanctions and even being struck off ( ORG CARDINAL and CARDINAL of Decree no . CARDINAL of CARDINAL DATE organising the legal profession ) .

On DATE , considering that it undermined lawyers’ freedom to exercise their profession and the essential rules regulating that profession , the applicant appealed to the ORG d’Etat to have the decision set aside . He submitted that there was no law or regulation giving the ORG regulatory powers in such matters as money - laundering . Furthermore , pointing out that the decision concerned required lawyers to adopt in - house procedures to ensure compliance with the instructions on the reporting of suspicions , subject to disciplinary sanctions , and that the term “ suspicions ” was not defined , he complained that this was in breach of the requirement of legal certainty inherent in DATE Convention . In addition , referring to the PERSON and PERSON v. GPE judgment ( no . CARDINAL/CARDINAL , DATE ) , he contended that the regulations adopted by ORG were incompatible with LAW , as the “ obligation to report suspicions ” jeopardised legal professional privilege and the confidentiality of exchanges between lawyer and client . Lastly , under LAW , he asked the PERSON d’Etat to refer the matter to ORG of ORG for a preliminary ruling on the conformity of the “ declaration of suspicion of criminal offence ” with LAW and LAW .

By a judgment of DATE , the ORG d’Etat rejected the bulk of the submissions in the application .

Concerning the submission based on LAW , the judgment found that the “ reporting of suspicions ” referred to in the disputed decision was not unclear in so far as it referred to the provisions of LAW ( subsequently amended to become LAW ) . As to the submission based on LAW , the judgment rejected it on the following grounds :

“ ... if , according to the applicant , the provisions of [ Directive CARDINAL/CARDINAL/EEC , as amended ] are incompatible with those of LAW ... which protect the fundamental right to professional confidentiality , among other things , that Article also permits interference by the authorities with that right when necessary in the interests of public safety , for the prevention of disorder or crime ... ; ... regard being had on the one hand to the general interest served by combating money - laundering and , on the other , to the safeguard provided by the exclusion from its scope of information received or obtained by lawyers in the course of activities connected with judicial proceedings , or in their capacity as legal counsel , save , in this latter case , where the lawyer is taking part in money - laundering activities , or the legal advice is provided for money - laundering purposes , or the lawyer knows that the client is seeking legal advice for money - laundering purposes , the obligation under the Directive concerned for lawyers to report their suspicions does not amount to excessive interference with professional confidentiality ; ... accordingly there is no need to refer the matter to ORG of ORG for a preliminary ruling and the submission concerning the breach of the LAW provision concerned must be rejected . ”

The recommendations adopted by the ORG provide , inter alia , for a duty of diligence on the part of financial institutions and require them to report suspicious transactions .

Recommendation no . CARDINAL proposed widening the scope of the professions concerned by the requirement of due diligence to include “ lawyers , notaries , other independent legal professionals and accountants ” when they prepare or carry out transactions for their clients concerning the following activities : buying and selling of real estate ; managing of client money , securities or other assets ; management of bank , savings or securities accounts ; organisation of contributions for the creation , operation or management of companies ; and creation , operation or management of legal persons or arrangements , and buying and selling of business entities . Recommendation no . CARDINAL widened the scope of the obligation to report suspicious transactions to include the same professions when engaging in the above activities , but provided for an exception when the relevant information was obtained in circumstances where they were subject to professional secrecy or legal professional privilege .

ORG of CARDINAL DATE on Laundering , Search , Seizure and Confiscation of the Proceeds from Crime and on ORG ( which came into force on CARDINAL DATE but has not been ratified by GPE ) contains the following provisions concerning the prevention of money - laundering ( LAW and CARDINAL ) .

“ CARDINAL . Each Party shall adopt such legislative and other measures as may be necessary to institute a comprehensive domestic regulatory and supervisory or monitoring regime to prevent money - laundering and shall take due account of applicable international standards , including in particular the recommendations adopted by ORG ( ORG ) .

NORP In that respect , each NORP shall adopt , in particular , such legislative and other measures as may be necessary to :

( a ) NORP require legal and natural persons which engage in activities which are particularly likely to be used for money - laundering purposes , and as far as these activities are concerned , to :

( i ) identify and verify the identity of their customers and , where applicable , their ultimate beneficial owners , and to conduct ongoing due diligence on the business relationship , while taking into account a risk - based approach ;

( ii ) report suspicions on money - laundering subject to safeguards ;

( iii ) take supporting measures , such as record - keeping on customer identification and transactions , training of personnel and the establishment of internal policies and procedures , and if appropriate , adapted to their size and nature of business ;

( b ) prohibit , as appropriate , the persons referred to in sub - paragraph ( a ) from disclosing the fact that a suspicious transaction report or related information has been transmitted or that a money - laundering investigation is being or may be carried out ;

( c ) NORP ensure that the persons referred to in sub - paragraph a are subject to effective systems for monitoring , and where applicable supervision , with a view to [ ensuring ] their compliance with the requirements to combat money - laundering , where appropriate on a risk - sensitive basis . ”

According to the explanatory report , the intention of the drafters of this LAW was that it should also cover the “ non - financial professions ” referred to in FAC no . CARDINAL . Moreover , the expression “ subject to safeguards ” in LAW ( a ) ( ii ) primarily means that it is in respect of the independent legal professions that the restriction “ resulting from professional secrecy or legal professional privilege ” contained in FAC no . CARDINAL ( and its explanatory note ) is relevant .

On DATE ORG adopted Directive CARDINAL/CARDINAL/EEC on the prevention of the use of the financial system for the purpose of money - laundering . The aim was to oblige credit and financial institutions to identify their customers and all transactions in excess of QUANTITY ( ORG ) , to “ examine with special attention ” any suspicious transaction they considered likely to be related to money - laundering , and to report any sign of money - laundering to the relevant authorities . It was amended by Directive CARDINAL of DATE , which broadened the definition of laundering and extended the obligation to identify clients and report suspicious transactions to a series of professionals outside the financial sector , and in particular to “ independent legal professionals ” .

Directive CARDINAL/CARDINAL/EEC , as amended , was repealed by Directive CARDINAL of DATE on the prevention of the use of the financial system for the purpose of money - laundering and terrorist financing , which reproduces and adds to the text of the earlier Directive . Recital CARDINAL specifies that “ independent legal professionals ... as defined by the member GPE ... are subject to the provisions of [ the ] Directive when participating in financial or corporate transactions , including providing tax advice , where there is the greatest risk of the services of those legal professionals being misused for the purpose of laundering the proceeds of criminal activity or for the purpose of terrorist financing ” . LAW ( CARDINAL ) ( b ) specifies that the Directive applies to them when , “ acting in the exercise of their professional activities ” , “ they participate , whether by acting on behalf of and for their client in any financial or real - estate transaction , or by assisting in the planning or execution of transactions for their client concerning the : ( i ) buying and selling of real property or business entities ; ( ii ) managing of client money , securities or other assets ; ( iii ) opening or management of bank , savings or securities accounts ; ( iv ) organisation of contributions necessary for the creation , operation or management of companies ; ( v ) creation , operation or management of trusts , companies or similar structures ” .

The Directive calls in certain cases for customer due diligence measures , including identifying and verifying the identity of the customer and the beneficial owner and obtaining information on the purpose and intended nature of the business relationship ( LAW ( a ) , ( b ) and ( c ) ) . Member GPE are in principle obliged to require that , where the institution or person concerned is unable to comply with its obligations , they “ may not carry out a transaction through a bank account , establish a business relationship or carry out the transaction , or shall terminate the business relationship , and shall consider making a report to the financial intelligence unit ( ORG ) in accordance with LAW . This obligation does not apply , however , “ in situations when ... independent legal professionals ... are in the course of ascertaining the legal position for their client or performing their task of defending or representing that client in , or concerning judicial proceedings , including advice on instituting or avoiding proceedings ” ( LAW ) .

It also enshrines the obligation to report suspicions , specifying that “ member GPE shall require the institutions and persons [ concerned ] ... to cooperate fully ” , “ by promptly informing the ORG , on their own initiative , where [ they ] know , suspect or have reasonable grounds to suspect that money - laundering or terrorist financing is being or has been committed or attempted ” and “ by promptly furnishing the ORG , at its request , with all necessary information , in accordance with the procedures established by the applicable legislation ” ( LAW ) .

NORP However , where “ independent legal professionals ” are concerned , “ member GPE may ... designate an appropriate self - regulatory body of the profession concerned as the authority to be informed in the first instance in place of the ORG ” , in which case the designated self - regulatory body must “ forward the information to the ORG promptly and unfiltered ” ( LAW ) .

NORP And member GPE are not obliged to apply the obligations laid down in DATE to ( inter alia ) “ independent legal professionals ... with regard to information they receive from or obtain on one of their clients , in the course of ascertaining the legal position for their client or performing their task of defending or representing that client in , or concerning judicial proceedings , including advice on instituting or avoiding proceedings , whether such information is received or obtained before , during or after such proceedings ” ( LAW ) .

Lastly , according to recital CARDINAL , “ [ n]othing in this Directive should be interpreted or implemented in a manner that is inconsistent with LAW .

In DATE , in connection with an application lodged by various ORG associations to have certain legal provisions transposing Directive CARDINAL annulled , ORG referred the following question to ORG of ORG for a preliminary ruling :

“ Does LAW , [ LAW ] , of Directive CARDINAL/CARDINAL ... breach the right to a fair trial guaranteed by LAW ] ... in so far as the new LAW , [ § CARDINAL ] which it adds to Directive CARDINAL/CARDINAL/EEC imposes the inclusion of independent legal professionals – no exception being made for lawyers DATE in the scope of the said Directive , which , in substance , requires certain people and institutions to inform the authorities responsible for combating money - laundering of any sign that may be an indication of money - laundering ( LAW CARDINAL/CARDINAL/EEC , replaced by LAW , [ LAW ] , of Directive CARDINAL ) ? ”

The Bar associations submitted in particular that in extending to lawyers the obligation to inform the competent authorities of any transactions they knew or suspected were linked to money - laundering , the legislation concerned was in breach of the principles of professional confidentiality and the independence of the lawyer , which are essential aspects of the fundamental right to a fair trial and the rights of the defence .

In its judgment of CARDINAL DATE , ORG disagreed .

Firstly , it pointed out that fundamental rights formed an integral part of the general principles of law which it upheld , drawing on the constitutional traditions shared by the member GPE and the guidance given by the international human rights protection treaties to which the member GPE were party or with which they cooperated , among which ORG was “ particularly significant ” . It concluded that the right to a fair trial enshrined , inter alia , in LAW was a fundamental right which ORG respected as a general principle by virtue of LAW .

ORG , it noted that under the Directive in question the obligations to report and cooperate applied to lawyers only when they were helping their clients to prepare or carry out certain types of transaction , mainly financial or real - estate operations , or when they were acting in the name and on behalf of their clients in such financial transactions or real - estate operations . It pointed out that as a general rule these activities , by their very nature , took place in contexts that were not related to any judicial proceedings and therefore did not concern the right to a fair trial .

ORG further noted that where a lawyer ’s assistance with a transaction was requested in connection with the defence or representation of a client in judicial proceedings , or advice on instituting or avoiding proceedings , the Directive exempted the lawyer from these obligations . It considered that this exemption protected the client ’s right to a fair trial . It also stated that the requirements relating to the right to a fair trial did not preclude the obligations of information and cooperation from being imposed on lawyers acting specifically in the situations listed in the preceding paragraph where those obligations were “ justified by the need ... to combat money - laundering effectively , in view of its evident influence on the rise of organised crime , which itself [ was ] a particular threat to society in the member LAW .

The above - mentioned Directives have been transposed into NORP law and included ( and amended several times ) in the Monetary and Financial Code .

The obligations of customer due diligence are codified in Articles L. CARDINAL - CARDINAL to L. CARDINAL - CARDINAL - CARDINAL , and those concerning reporting in Articles L. CARDINAL - CARDINAL to L. CARDINAL - CARDINAL ( in the present version of the Code ) .

These provisions apply to various organisations and professionals listed in Article L. CARDINAL - CARDINAL of the Code , including lawyers in the ORG d’Etat and ORG , and lawyers and avoués in the courts of appeal when , “ in the context of their business activity ... CARDINAL . They participate for and on behalf of their client in any financial or real - estate transaction or act as a trustee ; CARDINAL . They assist their client in the preparation or execution of transactions relating to : ( a ) the buying and selling of real estate or businesses ; ( b ) the management of funds , securities or other assets belonging to their client ; ( c ) the opening of current accounts , savings accounts or securities accounts , or of insurance policies ; ( d ) the organisation of the contributions required to create companies ; ( e ) the formation , administration or management of companies ; ( f ) the formation , administration or management of trusts governed by Articles DATE to CARDINAL of the Civil Code or by a foreign legal system , or of any other similar structure ; ( g ) the formation or administration of endowment funds ( Article L. CARDINAL - CARDINAL I ) . They do not apply to them , however , when the activity relates to judicial proceedings , whether the information they have was received or obtained before , during or after said proceedings , including any advice given with regard to the manner of initiating or avoiding such proceedings , nor where they give legal advice , unless said information was provided for the purpose of money - laundering or terrorist financing or with the knowledge that the client requested it for the purpose of money - laundering or terrorist financing ” ( Article L. CARDINAL - CARDINAL II ) .

Article R. CARDINAL - CARDINAL provided for internal procedures for implementing the legal obligations to be set in place , as appropriate , by ministerial decree or through professional regulations approved by the Minister .

The obligation of due diligence means that before entering into a business relationship with their client the person or entity concerned must identify the client and , where applicable , the effective beneficiary of the business relationship , and verify proof of identity ( Article L. CARDINAL - CARDINAL I ) . As an exception , where the risk of money - laundering or of terrorist financing appears to be low , the identity of the client and , where applicable , that of the effective beneficiary , may be verified when the business relationship is in the process of being established ( Article PERSON ) . Information relating to the object and nature of the business relationship and any other piece of relevant information concerning the client must also be gathered before the business is transacted . Throughout its duration the persons or entities concerned are required to apply “ constant due diligence ” to the business relationship , within the limits of their rights and obligations , and carry out a “ thorough examination of the transactions executed , taking care to ensure that they are consistent with the latest information they have concerning their client ” ( Article L. CARDINAL - CARDINAL ) .

Where a party is unable to identify its client or to obtain information on the object and nature of the business relationship , it must not execute any transaction , regardless of the particulars , or establish or pursue any business relationship . Where it has been unable to identify its client or to obtain information on the object and nature of the business relationship , and the relationship has nevertheless been established pursuant to LAW , it must terminate it ( Article PERSON ) .

The persons or entities concerned must declare to their country ’s financial intelligence unit ( “ the ORG ” ) the sums entered in their books or the transactions relating to sums which they know , suspect or have good reasons for suspecting are the proceeds of an offence punishable by a custodial sentence of DATE or are destined for terrorist financing ( Article PERSON I ) .

They must also declare the sums or transactions which they know , suspect or have good reasons for suspecting are the proceeds of a tax fraud , where CARDINAL of the following criteria defined by LAW - CARDINAL - CARDINAL II is present ( LAW ) :

“ CARDINAL . The use of a front company , whose activity is inconsistent with its stated object or which has its registered office in a ORG or territory which has not signed a tax agreement with GPE giving it access to bank information , as identified from a list published by the tax authorities , or at the private address of CARDINAL of the beneficiaries of the suspicious operation , or in LOC occupied by several businesses within the meaning of Article L. CARDINAL - CARDINAL of the Commercial Code ;

Financial operations made by a company whose articles of association have undergone frequent changes not justified by the economic situation of the company concerned ;

Recourse to middlemen acting in appearance only for the companies or individuals involved in financial operations ;

Carrying out financial operations inconsistent with the usual activities of the company or suspicious operations in sectors sensitive to carousel - type NORP fraud , such as information technology , telephones , electronic goods , household appliances , hi - fi and video ;

The sudden , unexplained sharp increase over a short period in the amounts credited to newly opened or hitherto inactive accounts , possibly linked to a sharp increase in the number and volume of transactions or the use of previously dormant or inactive companies whose articles of association have recently undergone changes ;

The presence of anomalies in the invoices or order forms presented as justification for financial operations , such as a missing company registration or [ NORP ] SIREN or ORG number , invoice number , address or date ;

The unexplained use of payable - through accounts which register large numbers of debit and credit operations while the balance remains CARDINAL ;

The frequent withdrawal of cash from or deposit of cash in a business account which is not justified by the volume or nature of the economic activity ;

Difficulty in identifying the end beneficiaries and the links between the origin and destination of funds because of the use of intermediate accounts or non - financial business accounts such as payable - through accounts , or the use of complex legal and financial business structures which tend to obscure management and administrative machineries ;

International financial operations with no apparent legal or economic justification , often limited to the simple transit of funds from or to other countries , when the countries concerned are GPE or territories referred to in CARDINAL . above ;

Refusal or inability of the client to supply proof of the origin of funds received or justification of payments made ;

Transfer of funds to a foreign country , followed by repatriation thereof in the form of loans ;

Organisation of insolvency by the rapid sale of assets to persons or legal entities or on terms that reflect a clear and unjustified imbalance in the selling price ;

Regular use by individuals living and having an activity in GPE of accounts held by foreign companies ;

The deposit by a private individual of funds unrelated to his known activity or assets ;

The sale of real estate at a grossly undervalued price . ”

They are also required to declare to the ORG any transaction in respect of which the identity of the principal or of the effective beneficiary or of the grantor of a fiduciary fund or of any other management instrument of a special - purpose trust remains dubious despite the steps taken pursuant to LAW PERSON ) .

A decree of the ORG d’Etat specifies the form this declaration must take .

The persons and entities concerned must refrain from executing any transaction which they suspect may be linked to money - laundering or to terrorist financing until such time as they have made the report referred to above ( Article L. CARDINAL - CARDINAL ) . Where a transaction which should have been the subject of the report referred to in Article L. CARDINAL - CARDINAL has already been executed on account of it being impossible to defer its execution , or because its deferral could have obstructed investigations relating to a suspected money - laundering or terrorist financing transaction , or because it did not appear to be subject to said report until after its execution , the person or entity must inform the ORG thereof without delay .

As an exception , advocates attached to the ORG d’Etat and ORG , and counsel before the court of appeal send their reports not to the ORG but , as applicable , to the President of ORG of the PERSON d’Etat and of ORG , to the Chairman of the Bar to which the advocate belongs or to the Chairman of the professional body of which the counsel is a member . As soon as the conditions set forth in Article L. CARDINAL - CARDINAL are met , the said authorities send the report to the ORG in conformity with the terms set forth in a decree of the PERSON d’Etat ( Article L. CARDINAL - CARDINAL ) .

The report concerned is confidential . It is prohibited to divulge its existence and content and to disclose information regarding its outcome . Disregarding the prohibition on disclosure is punishable by a fine of ORG CARDINAL ( Article L. CARDINAL ; inserted in the Monetary and Financial Code by Order no . DATE ) ; the fact of the advocates concerned endeavouring to dissuade their client from taking part in an illegal activity does not constitute prohibited disclosure ( Article L. CARDINAL - CARDINAL ) .

The ORG ( known as “ GPE ” in GPE ) is an administrative investigation department of ORG , composed of specially selected officials . Its main purpose is to collect , analyse , develop and make use of any information likely to establish the origin or the destination of the sums or the nature of the transactions that have been the subject of a report . Where its investigations reveal acts likely to relate to the laundering of the proceeds of an offence punishable by a custodial sentence in excess of DATE or to terrorist financing , it refers the matter to the public prosecutor via a memorandum ( Article L. CARDINAL ) .

The ORG may directly ask the persons concerned to disclose documents kept in connection with the obligation of due diligence . As an exception to the above , requests for disclosure of documents made to advocates attached to the ORG d’Etat and to ORG and to advocates and counsel attached to the courts of appeal are submitted by the ORG , as applicable , to the President of ORG of the PERSON d’Etat and of ORG , or the Chairman of the Bar or the professional body to which the advocate or counsel belongs . Having ensured that the provisions of Article L. CARDINAL - CARDINAL have been complied with , these persons then forward the documents thus received to the ORG ( LAW CARDINAL - CARDINAL ) .

The persons and entities concerned are required to put systems in place to assess and manage the risks of money - laundering and of terrorist financing , and to provide their staff with regular training and information to ensure compliance with the obligations of due diligence and reporting ( Articles L. CARDINAL - CARDINAL and L. CARDINAL - CARDINAL ) .

Article R. CARDINAL - CARDINAL ( repealed by Decree no . DATE of DATE ) provided for the internal procedures to be defined by order of the relevant ministry , by professional rules and regulations approved by the ministry concerned , or by the general regulations of the financial markets supervisory authorities .

Where , as a result of either a serious lack of due diligence or a failure in the organisation of its internal auditing procedures , an advocate attached to the ORG d’Etat or ORG or an advocate or counsel attached to the courts of appeal has failed to comply with these obligations , the competent supervisory authority will institute disciplinary proceedings founded on the professional or administrative rules and shall notify the public prosecutor attached to ORG or the court of appeal thereof ( Article L. CARDINAL - CARDINAL III ) .

In a judgment of DATE ( no . DATE ) , the PERSON d’Etat found Directive CARDINAL of DATE and the PERSON of DATE transposing it compatible with Articles DATE and CARDINAL of the Convention .

Concerning the Directive , the ORG d’Etat first pointed out that the judgment of ORG of ORG in the case of ORG francophones et germanophone and Others had found that it was not in breach of the requirements of the right to a fair trial guaranteed by LAW in so far as the obligation to cooperate and report excluded information obtained by lawyers in the course of their activities linked to judicial proceedings . The same judgment showed that information obtained by a lawyer evaluating a client ’s legal situation was also excluded from the scope of these obligations , the only exceptions being where the lawyer was taking part in money - laundering activities , or the legal advice was provided for money - laundering purposes , or the lawyer knew that the client was seeking legal advice for money- laundering purposes . That being so , and regard being had to the general interest served by combating money - laundering , the Directive “ did not violate the fundamental right to professional confidentiality protected by LAW ... , which permits interference by the authorities with the right to respect for private and family life when necessary in the interests of public safety , for the prevention of disorder or crime ” .

As to the legislation , the ORG d’Etat found that it was an accurate transposition of the Directive and that , as such , it was not incompatible with the fundamental rights guaranteed by ORG CARDINAL and CARDINAL of the Convention .