FIRST SECTION
DECISION
Application no. 21108/16
Biljana BARUCA
against San Marino
The European Court of Human Rights (First Section), sitting on 16 January 2018 as a Committee composed of:
Aleš Pejchal, President,
Krzysztof Wojtyczek,
Armen Harutyunyan, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 12 April 2016,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Biljana Baruca, is a San Marinese and Slovenian national, who was born in 1970 and lives in Serravalle. She was represented before the Court by Mr S. Pagliai, a lawyer practising in Florence, Italy.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case
3. The applicant was the subject of an investigation related to two sets of criminal proceedings (nos. 769/12 and 184/14) which were eventually joined, in connection with various acts of money laundering.
4. By a decision of 25 October 2012, relying on Articles 4 and 5 of Law no. 93 of 2008, the Commissario della Legge, in his capacity as inquiring judge, ordered that investigation file no. 769/12 be classified because the existing representation of facts required further investigative steps, including urgent measures which could be prejudiced if the documents were not kept secret.
5. By a decision of 23 June 2014 the inquiring judge, described the circumstances resulting from the investigations and charged the applicant with various instances of money laundering in participation with others (Articles 50, 73 and 199 bis of the Criminal Code) for the movement, inter alia, of 2,500,000 euros (EUR) between B. (a Swiss company) and C. (a company based in San Marino).
6. It appeared from the investigations that the accused persons had illegally acquired large sums of money which they had transferred into certain named accounts, sometimes in cash or by cheque and sometimes through fictitious intermediary companies, in order to hide the money’s criminal origins. The sums were then withdrawn and distributed to other entities, all traceable to the co-accused. Furthermore, in order to hide the illicit origins of the money, other sums were transferred, hidden and replaced through other named companies, only to eventually be transferred to the applicant (and others) personally. In particular, the factual circumstances, inter alia, suggested that there existed a criminal organisation made up of politicians, civil servants, entrepreneurs and bankers. The applicant’s partner (C.P.) appeared to have had a key role as a politician who had served in various posts and in the inquiring judge’s view he was particularly well placed to accumulate money which he then concealed behind various companies located in San Marino and abroad.
7. The inquiring judge ordered that the applicant be arrested and detained on remand (misura cautelare personale) owing to a risk of her reoffending and tampering with evidence. The judge noted the substantial flow of money managed by C.P., which was not compatible with his income. In view of the various evidentiary elements he concluded that it could be held with reasonable certainty that the financial transfers had been made in connection with the relations C.P. had with the co-accused, as a result of and during the time he had been a State representative. The evidence suggested that he had the ability to organise and benefit from adequate support to facilitate a further dispersion of funds, as a result of a mutual covering up with other associates, by means of the direct or indirect acquisition of the management of economic activities and of positions in public office in order to obtain unjust profit and advantage. The seriousness of C.P.’s particular conduct indicated his specific role in the organised criminal group. In addition, the speed with which certain transfers of millions of euros had taken place demonstrated the network of mutual assistance from which C.P. and the criminal organisation benefited and continued to benefit within the institutional and economic system in San Marino. According to the inquiring judge, the danger presented by C.P. had not diminished simply because he had quit public office. Indeed, in 2013 C.P. had sold an apartment, which had already been subject to leasing and payment for which had been made (accreditati) from Foundation funds, which showed that his contacts with the relevant entities remained in place. Furthermore, the inquiring judge considered that the systematic concealment of funds through fictitious payment descriptions (causali fittizie), the use of frontmen (prestanome) and of shell companies (societa schermo) rendered the risk of tampering with evidence a real one. According to the inquiring judge, that risk persisted, given the evidence existing both in San Marino and abroad, because of the wide support network. That meant that less restrictive measures could not be considered as appropriate when trying to make sure that the applicant (and her co‑accused) did not commit further acts of money laundering. According to the judge, the same reasons for C.P.’s detention existed also in connection with the applicant, since the latter had shared relevant business relationships with C.P. and had acted as his frontman both during the period he had been a State representative and afterwards. The business and personal relationships between C.P. and the applicant had determined the concrete risk that the applicant could commit further offences on behalf and in substitution of C.P.
8. On the same day the applicant was taken to prison and placed in detention.
9. She was informed on 24 June 2014 that she would appear for questioning before the inquiring judge on 25 June 2014.
10. On 24 June 2014, after requesting access to the relevant files, the applicant’s legal representatives learnt that file no. 769/12 was partially classified and thus partially subject to non-disclosure. File no. 184/14 was entirely classified and could not be disclosed at all. The applicant noted that the index showed that the classified documents in file no. 769/12 which had been removed included (i) the initial notification by the Agency for Financial Information (hereinafter “the AIF”); (ii) a note by the same agency and explanatory documents; and (iii) pages 7 - 54 of Annex A to the AIF’s initial notification.
11. Following a decision of the same day, the above-mentioned unclassified material in connection with file no. 769/12 was submitted to the applicant’s representatives on the morning of the day of questioning. According to the applicant the information provided did not give sufficient grounds to substantiate the need for her detention.
12. On 25 June 2014 during questioning before the inquiring judge (interrogatorio di garanzia) the applicant availed herself of her right to remain silent. She complained, inter alia, of not being able to examine the investigative material. In addition, she informed the judge that she had a fifteen year-old son, for whom she was the only parental figure since his father was dead and his grandmother lived in Slovenia.
2. The first set of decisions on the applicant’s challenges
(a) Proceedings before the Commissario (inquiring judge)
13. On the same day the applicant, inter alia, challenged her detention and complained that the term provided by law (six months which can be extended by another three months) for maintaining the secrecy of the investigation had expired because investigation file no. 769/12 had been classified on 25 October 2012. She asked the court to release her or to, at least, order a less restrictive measure and to declassify the relevant documentation.
14. On 26 June 2014 the inquiring judge rejected the applicant’s requests. He considered that the fact that the applicant had not been allowed to consult some of the material related to the investigation before the end of the period of secrecy had not breached her rights. The expiry of the terms of Article 4 of Law no. 93/2008 could also not result in the nullity of an order for detention on remand which had been duly justified and reasoned on the basis of the object of the proceedings pending against the applicant. Further, the relevant requirements and reasons justifying keeping her in detention remained, in particular the risk that the illegally acquired assets would be dispersed.
15. As to the applicant’s inability to access all the relevant material, the judge noted that the decision ordering her detention had contained all the relevant information justifying the lawfulness of and the need for such detention. The need for secrecy served the interests of justice and had to be balanced against the applicant’s interests. However, the applicant had been informed of the reasons for her detention in a way which enabled her to challenge it through the available means. Furthermore, access to further material was possible through other procedures that were available.
16. On 10 July 2014 the inquiring judge further questioned the applicant. She explained, in particular, the reasons of the transfer of EUR 2,500,000 from company B. to company C. According to the applicant, the latter company had provided company B. with a consultation service aimed at building some hotels in San Marino and Italy. For that purpose, company C. had carried out various negotiations with the Asian tycoon C.P.W. Thus, the above-mentioned sum had been the legitimate payment for such consultation services and a contract existed between the two companies able to justify such disbursement.
(b) Proceedings before the Judge of Criminal Appeals
17. On 27 June 2014 the applicant reiterated her above-mentioned complaints and requests by means of an appeal (reclamo) under Article 56 of the Code of Criminal Procedure. She relied on various Articles of the Convention, and inter alia asked the court to take its decision solely on the basis of the documents which had been made available to her as the accused.
18. By an interim decision of the Judge of Criminal Appeals (Giudice delle Appellazioni Penali) of 30 June 2014, notified to the applicant’s representatives on 1 July 2014, the court upheld the applicant’s complaints in part.
19. It upheld the complaint about the non-disclosure of the documents, the content of which had served to justify her detention on remand given that the time-limit for classification of the file had expired. In connection with both files, in the text of its judgment the court considered that the applicant must be allowed access to such documents with the limited aim of allowing the applicant to be fully aware of the evidence already collected, especially that as a result of which the inquiring magistrate had ordered the applicant’s arrest and detention. The operative part of the judgment did not refer to any limitations. The court set a five-day time-limit from that date for the submission of observations.
20. As to the applicant’s ancillary complaint of a lack of relevant requirements for her detention, namely a reasonable suspicion against her and the cautionary needs (insussistenza degli adeguati indizi di colpevolezza e delle esigenze cautelari), the court shared the opinion of the inquiring judge that a criminal origin for the sums at issue could be presumed owing to the methods used for their transfer. The latter was sufficient fumus delicti to justify the detention order, which was to be kept in place. It dismissed the remainder of the applicant’s complaints and upheld the findings of the first‑instance court.
21. Following the Judge of Criminal Appeal’s decision, on 1 July 2014 the inquiring judge ordered the release to the applicant’s legal representatives of certain specified documents and evidence collected in connection with files nos. 184/14 and 769/12. According to the applicant, on 2 July 2014, upon a request made by her to the court registry, she learnt that despite the appeal judge’s order the file no. 769/12 was still partially classified (file no. 184/14 had been partially declassified before the appeal judge’s decision). Thus, she was still unaware of the evidence and the circumstances on which the judge had relied on to order her detention.
22. On 6 July 2014 the applicant submitted observations by the time‑limit set by the Judge of Criminal Appeals in connection with the above claims. In particular, she reiterated her complaints under Articles 5 and 6 of the Convention in so far as she had not had full disclosure of the documents and evidence collected despite the court’s order of 30 June 2014 (see paragraph 19 above) and argued that there was no reasonable basis to justify her detention on remand.
23. By a decision of 18 July 2014, notified to the applicant’s legal representatives on 22 July 2014, the Judge of Criminal Appeals upheld the order of 30 June 2014 and dismissed any further claims. He found that no new elements had emerged since the interim decision of 30 June 2014. It further noted that the order of 30 June 2014 had not ordered a total declassification but solely the disclosure of documents related to the continued detention, referring to the words with “the limited aim of” “ancorche’ al limitato fine”. It considered that such secrecy could be justified for the purpose of the proper administration of justice and the effectiveness of the investigation, and was subject to the inquiring judge’s discretion which the court of appeal did not want to interfere with - without prejudice to a further appeal against such decision before the third instance judge.
3. Requests for access to specific material
24. In the meantime, on an unspecified date and in connection with the facts emerged during the applicant’s questioning of 10 July 2014 (see paragraph 16 above) the applicant and C.P. lodged an application for the release of hard copies or electronic versions of documents which had been saved on equipment seized from her, or the possibility to make copies of them.
25. By a decision of 17 July 2014 the inquiring judge dismissed that application in part. The court noted that the investigation file had not yet included a detailed list of its contents. In any event such a request could only be accepted if it was specific enough to locate the documents referred to. It ordered that a list of the file’s contents be made and that the applicant have access to documents she could specify in terms of their form, content, date and origin.
26. On 21 July 2014 the applicant had also applied for access to information held by the court concerning P.W.S. (San Marino’s ambassador to Montenegro) which she considered relevant to disprove the alleged fictitious nature of the operations linked to company B. and thus that there had been money laundering in that connection.
27. On 22 July 2014 the applicant lodged a new application with the inquiring judge. She challenged again her detention and submitted a copy of the consultancy and brokerage contract between company C. and company B.
28. By a decision of 25 July 2014, the inquiring judge dismissed the application of 21 July 2014 on the grounds that the reasons put forward by the applicant to access the documents were not deemed convincing by the court. According to the inquiring judge such a request could be accepted, at the relevant time, if it was made in connection with specific facts that were subject to debate, that had not yet been established, and which were pertinent to the ongoing investigation.
29. According to the applicant a further request to examine witnesses remained unheeded.
4. The second set of decisions on the applicant’s challenges
30. On 15 September 2014 the applicant asked the inquiring judge to revoke the detention order or impose a less strict measure.
31. On 18 September 2014 the inquiring judge dismissed the application. He considered that the original detention order and its continuation were reasoned in fact and in law. The basis for such a detention order did not need to be any more detailed, particularly given the continued risk of tampering with evidence if the applicant was put on a less strict regime. Contrary to the applicant’s assertions, the existence of this risk remained. The inquiring judge considered that the results of the investigation as well as the behaviour of the applicant, both during the interviews and while in detention, confirmed that view. He noted that the applicant had tried to make contact with other people, namely, a private doctor, on the pretext of being ill, even though state doctors had not found any signs of illness. Furthermore, both the applicant and C.P. had attempted to involve relatives in interfering with and altering documents. Such tampering would be a repeat of the acts with which the applicant had been charged, which included manipulating the truth and the artificial reconstruction of economic and commercial dealings to hide their real aims.
32. The applicant appealed. She requested release from detention or at least the application of a less restrictive measure. She further asked the court to annul the decision appealed against, and if not, she asked the court to exhibit the evidence in connection with the facts and circumstances on which the decision of 18 September 2014 (to keep her in detention) had been based.
33. By a decision of 13 October 2014, the Judge of Criminal Appeals upheld the applicant’s appeal in part.
It ordered that the two investigation files be declassified in part, as to allow the applicant to have access to the files and evidence collected in the further investigations on which the inquiring judge had based his decision to dismiss the applicant’s bail application in favour of keeping her on remand. The court ordered the disclosure of the material and set a five-day time-limit from that date for the submission of observations.
It further considered that the first-instance court had been correct in maintaining the detention order on the basis of the applicant’s behaviour. It was evident that the applicant’s mistrust of state doctors was a pretext to consult her private doctors, which had been part of a predetermined plan agreed on between the applicant and C.P. That had been shown through recordings of their conversation (intercepted by a third party) over walkie‑talkies provided to them by a policeman (M.) to enable them to agree on the same line of defence and to tamper with evidence. Similarly, the first-instance court’s finding on the attempt to involve third parties in tampering with evidence had been based on the fact that the C.P. had transferred property into his daughter’s name and the apparent complicity of M. (against whom proceedings had been instituted) who owed allegiance to C.P. in exchange for favours he had received. Such matters would be better explained once the documents had been declassified, as ordered above. The fact that the applicant had been able to plan the above‑mentioned acts while in detention showed that her intention and possibility to tamper with evidence would be greater if she was released.
34. In consequence, by a decision of the inquiring judge of 16 October 2014 filed in the relevant registry on 20 October 2014, further documents were released.
35. After viewing them, the applicant considered that the copious documentation that had been made available to her (accounts of companies traceable to him and a series of bank transfers) only concerned the charges against her and not the alleged behaviour which had led the inquiring judge to decide to dismiss his application for bail. On 24 October 2014 the applicant therefore lodged a new appeal, arguing that despite the court’s order she had again not had access to the relevant documentation to challenge her detention as the declassified information did not include any evidence to substantiate the alleged behaviour that had led to her application for release to be denied, namely the alleged falsification of documents, the alleged collusion with family members, the alleged simulation of her illness, and most importantly the alleged walkie-talkie conversations. Moreover, despite the relevant time-limits having expired both files remained classified, and the applicant could not have knowledge of the further evidence collected and whether it supported suspicions against her, or the contrary.
36. By a decision of 6 November 2014 the Judge of Criminal Appeals upheld the detention order, considering that evidence had already been presented to support the decision to keep the applicant in detention. Dismissing the applicant’s arguments, the court found that it was therefore not necessary to repeat the earlier factual basis for the order or to give new reasons, as requested by the applicant, because the previous reasons were still valid, as also confirmed at various levels of jurisdiction. Furthermore, in so far as the applicant had claimed that the decision of 18 September 2014 had been based on elements (concerning her behaviour) that had not been found in the file, the court noted that a judge could ex officio take factors into consideration which had occurred after the issuance of the detention order. Indeed, in the present case, to make sure that there were no reasons to warrant a change in the applicant’s pre-trial conditions, the judge had used information which, although having come to his knowledge by other means, was also found in the public domain (in the press and in publicly available judicial documents concerning the proceedings against M.). He further noted that the requirements of adversarial proceedings at the pre-trial stage, such as the non-disclosure and publication of documents, were different from those in a trial since pre-trial proceedings required a level of secrecy that enabled further investigations if necessary, including international assistance. While equality of arms had to be respected in connection with the debate concerning the measure imposed, the applicant could not obtain the declassification of documents by reiterating the same arguments. That was all the more so when the detention order had to a large extent been based on the fact that there was a risk of tampering with evidence. The applicant’s request had to be seen in the light of the need to preserve the evidence as well as the proper administration of justice. The necessity to maintain the classification of certain information was all the more important when that information concerned crimes for which charges had not yet been brought. It followed that the applicant’s detention could not be revoked nor could further information be declassified. The court also noted that in 2009 Article 5 of Law no. 93/2008 had been amended to include a suspension of the time-limit in the case of requests for letters rogatory. In the case at hand requests for judicial assistance had been made, thus in view of the applicable suspension the time-limits had not yet expired.
5. A further set of decisions
37. On 4 March 2015 the applicant asked to be released on the basis that the testimony of a certain P. had been retracted in the proceedings against M. It had been P. who had previously stated that he had seen M. give the applicant a walkie-talkie to communicate with C.P. She argued that this meant that the evidence of the alleged misbehaviour on which the prolongation of her detention had been based no longer existed.
38. On 6 March 2015 the inquiring judge dismissed the application. He held that there had been various grounds for the applicant’s detention, not just the attempts to communicate with others inside and outside the prison. The matters that had been brought to light could not alter the grounds listed and explained in detail in previous decisions.
39. On 16 March 2015 the applicant challenged that decision, arguing that if the decision to keep her in detention had been based on testimony given in proceedings against M., then such a decision had to be altered once that testimony had been withdrawn.
40. By a decision of 20 March 2015 the Judge of Criminal Appeals dismissed the applicant’s appeal. The court noted that the detention order of 23 June 2014 had stated that the reasons for considering detention necessary had been the fear of the applicant’s reoffending and tampering with evidence, which had been justified by her role as frontman of C.P. thus by the business and personal relations between her and C.P. and by the complex and effective network she could benefit from. The order of 18 September 2014, apart from relying on the evidence in the proceedings against M., had been based on other, more significant and relevant reasons. The impugned decision of 6 March 2015 had stated that the reasons to deny his application “also” included her attempts to communicate with others. The decision of 13 October 2014 had also stated that the measure had been justified by much more important reasons. Lastly, the decision of 6 November 2014 had also referred to other grounds for her detention. It followed that none of the decisions in question had been based solely on the supposed collaboration of M. Thus, the retraction of P.’s testimony did not render nugatory the fear of the applicant’s tampering with evidence, based on the fact that there had been various, more relevant considerations given in the previous decisions on the matter, and reiterated in a decision of 9 March 2015 (below).
6. The criminal investigation no. 289/2015 and the prolongation of the applicant’s detention
(a) The Commissario (inquiring judge)
41. By a decision of 9 March 2015, the inquiring judge brought further charges of money laundering against the applicant and on this basis prolonged her detention. In particular, according to the prosecution the applicant had i) laundered a further EUR 1,045,000 together with C.P. and two other persons; ii) laundered, together with C.P., a further EUR 740,000 which had been acquired through bank transfers from Montenegro by company R.C.P. (which had been directed by the applicant); iii) laundered, together with C.P. a further EUR 200,000 through a series of bank transfers operated by a company M.S. of Vienna. The judge noted that the proceedings were based on the results of the investigation by the anti-fraud unit and on the analysis of financial operations by C.P. and other people involved in politics (directly or through the use of a plurality of individuals and legal persons). Added to those factors were other elements collected through investigations of suspicious financial operations, as well as witness testimony resulting from questioning and the large amount of documents that had been seized. The investigation as a whole concentrated on the overlap between political and economic activity and criminal activity. Referring to various evidentiary conclusions the court considered that in relation to the further charges of money laundering against the applicant, the evidentiary scenario was robust and exhaustive. It amply demonstrated that the applicant (with others) had participated in the transfer and concealment of funds generated from crimes committed in San Marino or elsewhere.
42. The risk of reoffending could be presumed given the ease with which huge amounts of money had already been transferred, and the strong support network of which both co-accused could benefit. That meant that less severe measures would not prevent the applicant and her co-accused from re-establishing contact with other people who had facilitated the illegal acts. The fear of flight was all the more realistic given that, following the incident in question, the link between the applicant and San Marino had been severed. It was therefore feared that the applicant would seek refuge in jurisdictions with which San Marino had no extradition treaties. It had already been established that one of the foreign accomplices (P.W.S.) had made use of a diplomatic passport to avoid precautionary measures issued against him. It was noted that the contacts between C.P., the applicant and their multiple foreign accomplices had continued right up to their detention.
43. Moreover, video surveillance images showed that the accused had received favourable treatment while in detention, with the director of the prison providing the applicant and C.P. with company, support and information, and even arranging meetings between the co-accused. That further went to show the status the accused continued to benefit from, which indicated the impossibility of envisaging more lenient measures. The applicant’s behaviour during her pre-trial detention had also to be taken into account. According to the judge, she had ruthlessly pretended to be suffering from a disease of the genital tract and had simulated the relative symptoms (she knew how to simulate those symptoms since she had actually suffered from such a condition in the past). She had managed to obtain hospitalisation and she had stopped her sham only when physicians wanted to carry out medical examinations.
44. The seriousness of the elements on which the suspicion against the applicant was based (quadro indiziario), the facts and the means by which the crimes had taken place, as well as the dense network of personal relations, the involvement of family members, professionals, State representatives and government personnel who were still in service, led to the conclusion that there was a real risk that evidence, namely documentary evidence, would be tampered with and that pressure would be put on people who had knowledge of the events at issue. Moreover, the accused could still continue to hide the illicit origins of funds through the very complex and ingenious methods already applied.
(b) The Judge of Criminal Appeals
45. On 11 and 12 March 2015 the applicant had access to further documentation, concerning particularly letters rogatory, witness statements and interviews.
46. On 19 March 2015 the applicant appealed against the decision of the inquiring judge of 9 March 2015.
47. By a decision of 23 April 2015 filed in the relevant registry on 29 April 2015 the Judge of Criminal Appeals upheld the first-instance decision. The judge noted that San Marino law did not impose a time-limit on the duration of pre-trial detention, and considered that the subsequent charges against the applicant had been brought as a result of further investigations. They had shown further money transfers between clearly identified people (including the applicant), as well as the origin of the funds and were connected to the facts behind the first set of accusations. In so far as the applicant had claimed that there had been no proof of the illicit origin of the funds, and thus that there had been no substantiation of the charge of money laundering, the court held that the original decision of 23 June 2014 had highlighted the existence of a general agreement with permanent effects (constituting the pactum sceleris) between representatives of the State and the business world, as well as the details of its aims and functionalities. It further noted that final judgments confirming that a crime had generated certain funds were not needed to establish money laundering, but that it was enough to have a number of factual elements indicating the supposed crime which generated those funds. In other words the burden of proof to be satisfied was one where the illicit origin of the funds emerged from a logical and coherent interpretation of the evidence. The first-instance decision, based on the transfer of huge amounts of money, through the creation of ad hoc offshore companies and the dispersion of such sums in parcelled and undetectable amounts had therefore been reasonable. In any event, on the basis of some information provided by the Swiss judicial authorities after the decision of the inquiring judge of 9 March 2015, it could be reasonably suspected that the funds deposited in company B.’s bank account had derived from some laundering operations which had been carried out in Macao. Thus, according to the judge, the explanation the applicant had attempted to give in order to justify the bank transfer of EUR 2,500,000 from company B. to company C. (see paragraph 16 above) had not been persuasive.
48. The appeal judge considered that house arrest would not be appropriate given the seriousness of the crimes at issue, the enormous sums laundered, as well as the conduct of the accused persons during the interrogation and detention period. He noted that the reasons for the applicant’s detention on remand, namely her contacts with other accused persons and the networks C.P. had access to, which could facilitate further money laundering and the dispersal of funds, remained relevant. In the judge’s view the same reasons for C.P.’s detention existed also in connection with the applicant, since the latter had shared relevant business relationships with C.P. and on various occasions had acted as his frontman. The business and personal relationships between the two accused had determined the concrete risk that the applicant could commit further crimes on behalf and in substitution of C.P.
49. The judge also dismissed a further application by the applicant for the declassification of the case files on the basis that the only things still classified related to the letters rogatory, which were still ongoing, and other material which was still subject to ongoing investigations.
7. Most recent decisions before the applicant’s release
50. By a decree of 11 May 2015 the applicant was issued with an indictment.
51. On the same day, in connection with two instances of laundering with which the applicant was already charged by a decision of 9 March 2015, further investigative steps were taken as it was still necessary to investigate and acquire new evidence.
52. On 14 May 2015 the inquiring judge revoked the decision of 23 June 2014 to keep the applicant in detention in relation to the charges in the indictment of 11 May 2015 as the investigation related to those charges had been concluded. However, she was kept in detention based on the decision of 9 March 2015 in relation to the two above-mentioned recently added charges that were still under investigation.
53. On 28 May 2015 the applicant lodged a third-instance challenge against the decision of 23 April 2015 of the Judge of Criminal Appeals and the decision of the Commissario of 9 March 2015, in connection with her defence rights at the trial.
54. By an interlocutory decision of 2 July 2015, the third-instance judge suspended the order for the applicant’s detention on remand and ordered that she be put under house arrest until a decision on the merits of the challenge had been issued.
55. On 3 July 2015 the inquiring judge ordered the applicant to be put under house arrest under the following conditions: the applicant could not leave her house, have visits from or communicate with anyone (including by telephone) except for family members living in the house, descendants and ascendants (as well as their spouses or partners), siblings and legal counsel. Medical visits were allowed subject to notification. The applicant was ordered not to communicate with her co-accused (C.P.) and had to submit her travel documents to the authorities, in line with a travel ban which was being imposed concurrently.
56. By a judgment of 15 October 2015 the third-instance judge confirmed the validity of the decisions of 23 April 2015 filed in the relevant registry on 29 April 2015 by the Judge of Criminal Appeals and the decision of the inquiring judge of 9 March 2015. It reiterated its previous findings as to the various and detailed evidence which had been presented and concluded that the same applied in respect of the last two charges against the applicant, which had been the basis for the impugned decision of 9 March 2015. It noted that there existed a huge amount of data, some of which was convincing evidence (dati probanti), some highly indicative (fortemente indizianti), and some merely illustrative yet useful, which together formed an adequate framework of relevant and sufficient evidence on which to base precautionary measures. It followed that the decision to place the applicant in pre-trial detention had at the time been appropriate in view of the material available. It also confirmed its interlocutory decree of 2 July 2015 that detention should cease and that the applicant be put under house arrest for the purposes of ensuring her defence rights in all the proceedings against her, without prejudice to any decision by the inquiring judge on an eventual release.
57. By an order of 16 October 2015, the inquiring judge revoked the order for the applicant’s house arrest and imposed a travel ban on her, considering that that measure would suffice. It further maintained the classified status of certain acts in the interests of the investigation and the ongoing international judicial assistance.
8. The applicant’s detention and house-arrest
58. The applicant was detained from 23 June 2014 in the San Marino prison known as the Carcere dei Cappucini.
59. According to the applicant she was detained under a regime in which she was kept isolated for twenty-two hours a day. The applicant alleged that she had not had access to other parts of the prison which would have allowed her to have some form of activity.
60. The applicant stated that the conditions at the detention facility were inhumane and referred to the reports of the Committee for the Prevention of Torture (“the CPT”) of 2005 and 2013 on the matter. Moreover, the prison lacked a women’s section. All the above conditions had caused the applicant relevant health problems, nevertheless the judicial authorities had denied her the possibility of being examined by a physician of her choice. The applicant also stated that her son (who was underage and whose father had died) could visit her only at certain hours (orari prescritti) and always in the presence of a prison guard. As to the visits of the applicant’s mother (a Slovenian citizen resident in Slovenia, to whom the child had been given in custody while the applicant was in detention), she could communicate with the applicant in Italian only, since the prison guards could not understand Slovenian. The latter caused huge problems of comprehension for the two women. Moreover, the applicant could not even chat with the prison guards, since they had been ordered not to communicate with her. The applicant had been allowed to communicate separately with her lawyers, but had never had the possibility to have a joint meeting with all her three lawyers.
61. On 30 June 2014 the applicant filed a criminal complaint about her conditions of detention.
62. According to the applicant, the conditions of her house arrest had also been degrading. In particular, the police had carried out at least three or four daily controls during the night from 6 July 2015 to 17 October 2015, thus compromising, her physical and psychological well-being.
B. Relevant domestic law
63. The relevant law pertinent to this case is set out in Podeschi v. San Marino (no. 66357/14, §§ 70-76, 13 April 2017).
C. Relevant international material
64. The relevant international material pertinent to this case is set out in Podeschi (cited above, §§ 77-78).
COMPLAINTS
65. Relying on Article 5 § 3 of the Convention the applicant complained that she had been detained and put under house arrest without relevant and sufficient reasons able to justify such measures. The duration of her detention and of the house arrest had been unreasonable. The evidence which had emerged during the applicant’s detention had contradicted the prosecution’s case, nevertheless the investigating judge had intentionally overlooked the evidence on behalf of the accused.
66. The applicant complained under Article 5 § 4 of the Convention that she did not have the possibility to know the basis of the charges against her and did not have access to the relevant documentation to challenge her detention, particularly concerning the alleged illicit origin of the funds she had allegedly laundered. In addition, the defence did not have the possibility to call witnesses on the applicant’s behalf as well as to examine the documents which had been seized.
67. The applicant complained under Article 3 of the Convention that the conditions of her pre-trial detention, as well as those of her house arrest had been inhumane and degrading.
68. The applicant complained under Article 5 § 3 and 6 § 1 of the Convention that the judge ordering her detention on remand and the house‑arrest had not been independent and impartial.
THE LAW
A. Article 5 § 3 of the Convention
69. The applicant complained that she had been detained (from 23 June 2014 to 6 July 2015) and put under house arrest (until 7 October 2015) without relevant and sufficient reasons able to justify such measures. The duration of her detention and of the house arrest had been unreasonable. She had remained in detention for an unlimited period of time, given that the law did not provide for a time-limit, and that pending her detention, proceedings were taking an unreasonably long time, during which she had not been released. The evidence which had emerged during the applicant’s detention had contradicted the prosecution’s case, nevertheless the investigating judge had intentionally overlooked the evidence on behalf of the accused. She relied on Article 5 § 3 of the Convention which reads as follows:
“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial”
70. The Court refers to the general principles concerning Article 5 § 3 as set out in Podeschi (no. 66357/14, §§ 135-140, and 142-144, 13 April 2017).
71. The Court notes that while further charges were brought against the applicant at a later stage, those fresh charges, as noted by the domestic court, were connected to the original ones (see paragraph 47 above). Thus, the Court sees no reasons to examine the periods separately (see Podeschi, cited above, § 141). Given the conditions of the house arrest in the present case (see paragraph 55 above), the Court considers that the period the applicant spent in house arrest constituted a deprivation of liberty. It follows that in the present case the period to be considered under Article 5 § 3 lasted from 23 June 2014 to 16 October 2015 i.e. one year three months and twenty-three days.
72. As to the persistence of reasonable suspicion, the Court has no doubt that in view of all the material referred to by the domestic courts in their decisions, there existed a reasonable suspicion that the applicant had committed the alleged offences, and that such a suspicion persisted throughout her entire detention (see, mutatis mutandis, Podeschi, cited above, § 145). In particular, the Court notes that the alleged evidence which, according to the applicant, had contradicted the prosecution’s case (see paragraph 65 above) concerned the criminal origin of the assets allegedly laundered. In this connection the Court notes, however, that the applicant was charged with money laundering and not with the offences at the origin of the assets (see, in connection with a complaint under Article 6, Sofia v. San Marino (dec.), no. 38977/15, § 50, 2 May 2017). As the domestic courts explained, it was not necessary to have confirmation of the illicit origins of the funds in order to suspect money laundering, but that it was enough to have a number of factual elements indicating the supposed crime which generated those funds, such as in the present case, the information relating to the entire scenario (compare, Podeschi, cited above, § 189). Furthermore, the domestic courts had not overlooked the evidence adduced by the applicant, on the contrary, the Judge of Criminal Appeals had examined it and found it to be unpersuasive (see paragraph 47 above). That decision was also confirmed by the third-instance judge (see paragraph 56 above).
73. As to the relevant and sufficient reasons for the duration of the detention, the Court reiterates that in such cases, involving numerous accused, the process of gathering and hearing evidence is often a difficult task (see Raducki v. Poland, no. 10274/08, § 39, 22 February 2011). In those circumstances, the Court considers that the need to obtain voluminous evidence from many sources, including from abroad, and to determine the facts and degree of alleged responsibility of each of the co‑accused, constituted relevant and sufficient grounds for the applicant’s detention during the period necessary to terminate the investigation (see, mutatis mutandis, Podeschi, cited above, § 147). The Court is mindful of the seriousness of the charges brought against the applicant and the difficulties the domestic authorities faced in investigating her case, involving as it did charges against multiple defendants allegedly part of a complex criminal group. In this connection the Court notes that the judicial authorities at multiple levels of jurisdiction gave details of why and to what extent the grounds which justified the initial detention remained unchanged, in particular highlighting the network which persisted, as shown by new facts on different occasions (contrast Qing v. Portugal, no. 69861/11, § 66, 5 November 2015). Moreover, the Court considers that in the present case the risk of tampering with evidence, which was the main risk relied on by the judicial authorities throughout the proceedings, as well as that of pressure being brought to bear on other persons, also relied on by the courts, were also relevant and sufficient.
74. With regard to the extension of the applicant’s detention on the grounds of the risk of reoffending, the Court notes that the domestic courts referred to the dealings the applicant had which showed the continuation of the work of the organisation, and indicated that, according to the information available at the time of their decisions, attempts at further improper dealings were going on even during the pre-trial detention (see paragraphs 31 and 33 above). Thus the domestic courts pointed to aspects of the applicant’s behaviour to justify their conclusion that she presented such a risk (see, a contrario, Šoš v. Croatia, no. 26211/13, § 95, 1 December 2015).
75. With particular regard to the risk of absconding, consideration must be given to the character of the person involved, his or her morals, assets, links with the State in which he or she is being prosecuted and the person’s international contacts (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 90, ECHR 2016 (extracts)). While such a danger usually diminishes with the passing of time (see Chraidi v. Germany, no. 65655/01, § 39, ECHR 2006‑XII), in the present case it was only at a later stage that that reason was invoked by the domestic court. Nevertheless, the Court notes that, in the present case, the reasoning given for the existence of that risk, namely that, following the legal events at hand, the applicant’s link to San Marino had been severed as well as the actions of one of the alleged international accomplices and of the applicant herself during her detention (see paragraph 42 above), cannot be considered unreasonable in the context of money laundering on an international scale given the connections of the applicant, which the courts repeatedly found to have persisted throughout (see paragraph 42 above).
76. Lastly, the Court notes that the domestic courts repeatedly examined the possibility of applying another, less severe measure of restraint but that during the relevant period they were not satisfied that such a step would be appropriate given the above-mentioned risks (see paragraphs 7, 31 and 42 above). Nevertheless, the Court takes note of the fact that shortly after the indictment on the first charges, the relevant domestic court discontinued the applicant’s detention on remand in connection with those charges, and that she remained in detention only in connection with further charges which were still being investigated and for which detention remained necessary for the reasons already invoked (see paragraph 51 above). The Court considers that the reasons in the ensuing decision, namely that of 15 October 2015 (see paragraph 56 above), which reiterated the basis of the decision of 9 March 2015, albeit in relation to the remaining charges, were also relevant and sufficient.
77. The foregoing considerations allow the Court to conclude that the various grounds given for the applicant’s pre-trial detention at the different stages of the proceedings were “relevant” and “sufficient” to justify holding her in custody for the entire period in question, that is one year, three months and twenty-three days (compare Łaszkiewicz v. Poland, no. 28481/03, § 60, 15 January 2008). Further, while certain reasons persisted all throughout the relevant period, it cannot be said that the applicant’s challenges were rejected using the same formula. While the various jurisdictions referred to the previous decisions refusing bail they gave details of the grounds for the decisions in view of the developing situation and whether the original grounds remained valid despite the passage of time (see Podeschi, cited above, § 153, and, a contrario, Mikalauskas v. Malta, no. 4458/10, § 120, 23 July 2013).
78. As to whether the national authorities displayed “special diligence” in the conduct of the proceedings, the Court observes that the investigation was of considerable complexity owing to the number of suspects, the extensive evidentiary proceedings and the implementation of special measures required in cases concerning organised crime. As noted by the authorities, the investigation was additionally complicated by the need to obtain evidence from abroad since the applicant and other accomplices had operated in a number of countries (see paragraphs 6 and 7 above). Despite this complexity, the applicant was brought to trial in connection with some of the charges less than a year and a half after the charges were issued. From the information available, the Court cannot identify any periods of inactivity in the proceedings other than those occasioned by the need to gather evidence by way of letters rogatory. For those reasons, the Court considers that during the relevant period the domestic authorities handled the applicant’s case with relative expedition.
79. Having regard to the foregoing the Court considers that this complaint must be rejected as being manifestly ill-founded pursuant to Article 35 § 3 of the Convention.
B. Article 5 §§ 2 and 4 of the Convention
80. The applicant complained that she did not have the possibility to know the basis of the charges against her and did not have access to the relevant documentation to challenge her detention. In particular, file no. 769/12 had remained partially classified despite the maximum time‑limit of duration of the classification regime provided by the domestic law (nine months) had expired, while on the date of introduction of the application the joined file, no. 289/15, was still (entirely) classified. In addition, the defence did not have the possibility to call witnesses on the applicant’s behalf as well as to examine the material which had been seized. She relied on Article 5 § 4 of the Convention which reads as follows:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
81. In so far as the applicant complained about the charges against her, the Court considers that this complaint is to be examined under Article 5 § 2. That provision contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. Thus, any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4. Whether the content and promptness of the information conveyed are sufficient is to be assessed in each case according to its special features (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 40, Series A no. 182).
82. In the present case the court order of 23 June 2014 pronouncing the applicant’s detention as well as listing the charges, consisted of a detailed recount of the relevant facts over a relevant period and linked to named individuals including the applicant. It contained all the charges and reasons requiring her detention, in a language which she understood. The same must be said of the decision of 9 March 2015. Accordingly, her complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
83. As to the rest of her complaint, the Court refers to its general principles concerning Article 5 § 4 as set out in Podeschi (cited above, §§ 170-176), as well as to its preliminary considerations made in that judgment (ibid §§ 177-178).
84. As to the time limits applicable to the secrecy regime applied to the investigation, the Court notes that it suffices for the Court to establish whether the applicant had access to information which was essential for the assessment of the lawfulness of her detention and whether such information was available in an appropriate manner to her lawyer (see Podeschi, cited above, § 179). If this was not the case, the Court must examine whether the difficulties this caused, were counterbalanced in such a way that the applicant still had the possibility effectively to challenge the allegations against her (ibid. and A. and Others v. the United Kingdom [GC], no. 3455/05, § 218, ECHR 2009).
85. Noting that in the present case certain materials were classified, that some of them were eventually released, and others remained classified to the date of the introduction of the application the Court must examine the counterbalancing factors available in the San Marino system, and whether procedural safeguards sufficed to make up for any difficulties in relation to the applicant’s ability to challenge the lawfulness of her detention.
86. The Court notes, first, the extensive reasoning of the decision of the inquiring judge of 23 June 2014, which explained in relevant detail the transfers of money at issue as well as the applicant’s role (see paragraph 5 et sequi. above). Such detail gave the applicant sufficient knowledge concerning the basis of the prosecution case against her, allowing her to challenge the reasonable suspicion against her, as she in fact did (see paragraph 20 above). Subsequent decisions of the inquiring judge, such as that of 18 September 2014, which focused, inter alia, on the risk of tampering with evidence, and that of 9 March 2015, were also extensive and thorough, giving the applicant sufficient factual elements to challenge the grounds of her detention (see paragraphs 31 and 41-44 above). Furthermore, the inquiring judge himself could declassify material with the passage of time, in light of relevant factors, had he considered it to be appropriate (see, for example, paragraph 21 above).
87. Secondly, the applicant had the possibility (see paragraph 17 above) to challenge each of the decisions of the inquiring judge before the Judge of Appeals who could supplement, amend, or modify the reasons forming the basis of the inquiring judge’s decision. This independent judicial authority could examine all the relevant evidence, both closed and open, and was well placed to ensure that no material was unnecessarily withheld from the detainee (see A. and Others, cited above, § 219). Subsequently, if necessary, such decision could also be appealed before the third-instance judge. Thus, the applicant benefitted from a three‑tier assessment in relation to her challenges concerning disclosure. The applicant in the present case repeatedly took these courses of action, and the respective judicial authorities confirmed the previous decisions and at times ordered the release of further documentation (see, for example, paragraph 21 and 33 above). In this connection the Court cannot but note that documents were declassified with the passage of time, as the interests of protecting the investigation diminished in relation to certain aspects. In consequence, the effectiveness of these appeal procedures was not only one in law but also in practice (see, mutatis mutandis, Podeschi, cited above, § 185).
88. It must be noted that in the present case the applicant or her legal advisers were able effectively to participate in court proceedings concerning the continued detention and repeatedly made submissions at different levels of jurisdiction. Moreover, the law also provided for a regulatory framework intended to prevent any abuse (see Podeschi, cited above, § 187).
89. Accordingly, in the light of strong countervailing public interest in combatting money laundering, the Court cannot find that the safeguards in place where a priori insufficient (ibid. § 188).
90. Most importantly, it does not appear obvious that in their decisions the courts based themselves on essential documentation which was not available to the applicant. While it is possible that the judges in the case made general conclusions based on a wider evidential background than that provided to the applicant, it does not emerge from the facts that any of the elements not disclosed to the applicant formed the basis of the domestic courts’ decisions in relation to their reasonable suspicion or were specifically referred to in those decisions. It follows that the applicant could still challenge the existence of reasonable suspicion against her, in particular the grounds and elements on which the charges were based, on the basis of the information in her possession, as she did on various occasions.
91. As to the alleged impossibility to call witnesses on her behalf it is noted that the applicant has not provided this Court with any useful information concerning the identity of the witnesses in question or why their evidence, prima facie, appeared to have a material bearing on the issue of the continuing lawfulness of her detention (see Ţurcan v. Moldova, no. 39835/05, § 67, 23 October 2007). Nor has she submitted to this Court the alleged application she lodged domestically to hear these witnesses or the refusal of the domestic courts (see paragraph 29 above).
92. Accordingly, the complaint under Article 5 § 4 is also manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
C. Complaints under Articles 3 and 5 § 3 in conjunction with Article 6 § 1 of the Convention
93. The applicant raised further complaints under Article 3 and under Article 5 § 3 in conjunction with Article 6 § 1 of the Convention.
94. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
95. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court,
Declares the application inadmissible.
Done in English and notified in writing on 8 February 2018.
Renata DegenerAleš Pejchal
Deputy RegistrarPresident
Full & Egal Universal Law Academy