Communicated on 10 July 2015
THIRD SECTION
Application no. 66357/14
Claudio PODESCHI
against San Marino
lodged on 29 September 2014
STATEMENT OF FACTS
The applicant, Mr Claudio Podeschi, is a San Marinese national, who was born in 1956 and lives in San Marino. He is represented before the Court by Mr M. Annetta, a lawyer practising in Florence.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case
The applicant, a politician, was the subject of an investigation in relation to two criminal proceedings (no. 769/12 and 184/14) in connection with the crimes of, inter alia, conspiracy and various acts of money laundering.
By a decision of 23 June 2014 of the Commissario della Legge (“CL”) in his competence of inquiring judge, which described in twenty-five pages the circumstances resulting from the investigations, the applicant (with other persons) was informed of the charges against him, namely, i) conspiracy (in connection with crimes related to money laundering) Article 287 of the Criminal Code; ii) various instances of money laundering in participation with others (Articles 50, 73 and 199 bis of the Criminal Code) for movement of money through the San Marino Foundation For the Promotion of Economy and Finances; iii) various instances of money laundering in participation with others for movement of money between Black Sea Pearl (Swiss company) and Clabi (company based in San Marino). It transpired that the applicant (and others) illegally acquired huge sums of money which they transferred into certain named accounts, sometimes in cash or by cheque, and sometimes also through fictitious intermediary companies, in order to hide its criminal origins. Such sums were then withdrawn and distributed to other entities all traceable to the applicant. Further, to hide the illicit origins, others sums where transferred, hidden and replaced through other named companies, only to eventually be transferred to the applicant (and others) personally. These instances clearly amounted to the second and third charge of money laundering. In particular, the factual circumstances, inter alia reflected that there existed a criminal organisation made up of politicians, civil servants, entrepreneurs and bankers. That the applicant had a key role as a politician having served in various posts and was particularly well-placed to accumulate moneys which he then concealed behind various companies located in San Marino and abroad. According to the inquiring judge the San Marino Foundation for the Promotion of Economy and Finances which could be traced back to the applicant and was run by a person in whom the applicant had trust had been created precisely to satisfy the needs of the criminal organisation. More than eleven million euros had been deposited of which no trace could be found in the accounts. The discretion in the exercise of decision-making by political powers, as well as bureaucracy, permitted “investors” to pay millions in bribes to the foundation in order for it to allow, for example, construction in areas identified by local plans as no-development zones. The investors knew the money would eventually get to the applicant who was in a position to influence the approval of such projects, which could only come to be by bending the rules. The inquiring magistrate observed that further investigations were necessary to understand the reasons behind a transfer into the foundation of three million euro by a certain AS, one million of which reached the applicant in cash.
The court ordered that the applicant be arrested and detained in remand (misura cautelare personale) since there was a risk or reiteration of the offences and tampering with evidence. On the same day the applicant was accompanied to the prison and detained at 14.50 hrs.
Following the applicant’s request, on 24 June 2014 the applicant was informed that he would appear for questioning before the inquiring judge on 25 June 2014 at 16.00 hrs, and that he could meet his legal representatives at 15.00 hrs.
Having requested access to the relevant files, the applicant’s legal representatives became aware that file no. 769/12 was partially classified and thus partially subject to non-disclosure and file no. 184/14 was entirely classified and thus subject to non-disclosure. The applicant noted that, as transpired from the index of the file, the classified documents in file no. 769/12 which had been expunged included i) the initial notification of the Agency for Financial Information (AIF) ii) a note by the same agency and its explanatory documents and iii) pages 7-54 of Annex A to the initial notification of the AIF. The remaining non-classified material was submitted to the representatives in the morning of the day of questioning, and according to the applicant not sufficient information had been provided to understand the charges against him.
On 25 June 2014 during questioning before the inquiring judge (interrogatorio di garanzia) the applicant availed himself of his right to remain silent after complaining about the inability to examine the investigative material, as well as the short time he could consult with his lawyer, and about the delay in appearing before the judge.
2. Proceedings before the Commissario della Legge
On the same date the applicant filed a complaint concerning a breach of Article 125 of the Criminal Code in so far as he was questioned more than twenty-four hours after his detention commenced, contrary to that provided by law. He further complained that the term provided by law (six months) for maintaining the investigation secret had elapsed, since investigation file no. 769/12 had been declared secret on 25 October 2012. He thus requested the court to declare the nullity of the questioning, and release the applicant, or in any event to order a less restrictive measure.
On 26 June 2014 the CL rejected the applicant’s requests, it considered those relevant requirements and the reasons justifying detention persisted, in particular that of the dispersion of the patrimony illicitly accumulated.
The CL considered that the applicant’s detention could not be considered unlawful and the relevant order declared null, on the basis that the applicant was brought before a judge within forty-eight hours. Indeed the Convention provided for an individual to be brought before a judge promptly, and its case-law provided that such promptness depended on the circumstances of the case, as long as it did not exceed four days. It followed that Article 5 did not render the term established in Article 125 of the Code of Criminal Prosecute peremptory.
It further considered that the fact that the applicant was allowed to consult some materials related to investigation, before the end of the period of secrecy of the investigation had not breached his rights. Neither could the expiry of the terms of Article 4 of Law no. 93/2008 result in the nullity of an order of detention on remand, which was duly justified and reasoned on the basis of the object of the proceedings pending against the applicant. As to the inability of the applicant to access all the relevant materials, it noted that the decision ordering detention had contained all the relevant information justifying the lawfulness and the need for such detention. The need for such secrecy served the interests of justice and had to be balanced out against the applicant’s interests; however the applicant had been informed of the reasons for his detention, in a way which would enable him to challenge it through the available means. Furthermore, access to further materials was possible through other available procedures.
Lastly, it noted that the applicant had had access to his lawyer before appearing before the judge. It considered that the detention order should not be lifted because the reasons adduced originally, remained valid.
3. Proceedings before the Judge of Criminal Appeals
On 27 June 2014 the applicant reiterated his above-mentioned complaints and requests by means of an appeal (reclamo) in terms of Article 56 of the Code of Criminal Procedure. He relied on various Articles of the Convention.
By a 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.
It upheld the claim concerning the non-disclosure of documents, the content of which had served to justify his detention on remand, given that the applicable time-limit for maintaining the file classified had elapsed. The court ordered the disclosure of the materials and gave a five day time-limit from such date for the submission of observations.
It rejected the remainder of the applicant’s pleas and reiterated the first‑court’s findings. Further to that held by the CL, the judge of criminal appeals, having examined the text of other legal provisions concerning arrests made by the police, concluded that the term of twenty-four hours stipulated in Article 125 of the Code of Criminal Procedure was not peremptory, there in fact would be no reason for a judicial arrest to be bound by such a strict term, when a police arrest would not. It followed that the non-respect of such a time-limit could not result in the order being null, order which in any event could be sanctioned.
As to the applicant’s ancillary complaint of lack of the relevant requirements (insussistenza dei presupposti e delle condizioni rishieste per l’applicazione della misura), the court considered that the decision at issue had explained the relevant facts indicating the applicant’s involvement in the crimes at issue and noting that the criminal origins of the sums at issue could be presumed by the methods used for their transfer. The latter was sufficient fumus delicti justifying the order of detention, which should thus be maintained.
On 2 July 2014, upon the applicant’s request with the court registry, the applicant became aware that despite the appeal judge’s order, the relevant files remained classified (file no. 184/14 had become only partly classified prior to the appeal judge decision, nevertheless none of its public content could in any way indicate the basis of the crime of conspiracy under Article 287 with which the applicant was charged).
On 6 July 2014 the applicant submitted observations by the set time-limit, in connection with the above claims, and in particular claiming the lack of any reasonable basis justifying his detention on remand.
By a decision of 18 July 2014 notified to the applicant’s legal representatives on 22 July 2014 the Judge of Criminal Appeals confirmed the order of 30 June 2014 and rejected any further claims, on the basis that no new elements had transpired since its interim decision of 30 June 2014.
4. Proceeding before the Third Instance Judge
On 23 July 2014 the applicant appealed to the Third Instance Judge in Criminal Matters, focusing on the elapsed time-limit of twenty four hours to be brought before a judge, the inability to access certain documentation and the lack of justification for the detention based on a lack of the relevant requirements and procedural irregularities.
After having held a hearing on 14 July 2014 and having taken into account the relevant oral and written submissions, by a decision of 8 September 2014 the Third Instance Judge in Criminal Matters rejected the applicant’s claims and confirmed the lawfulness of the orders of 20 June 2014 and 23 June 2014, as well as the lawfulness of the inquiry and the detention. It recalled that its competence at third instance was limited to reviewing the admissibility of factual evidence obtained and the coherence of the legal reasoning applied in the previous decisions ordering detention.
As to the fact that the applicant was brought before a judge within forty‑eight hours, the court confirmed that the twenty-four hour stipulated in law was not a peremptory time-limit which if not observed would render the interrogation and the detention unlawful and it reiterated the reasoning of the Court of Appeal in the light of other comparable legal provisions. It also reiterated the CL’s finding in connection with Article 5 of the Convention, and further noted that according to the San Marino constitutional law international norms on human rights prevailed over domestic law when these were in contrast, it followed that time-limits established by the Convention (or its case-law) to which San Marino was a party superseded domestic law.
As to the non-disclosure of certain materials, the court recalled that while under San Marino law an accused is granted a right to access and copy all the elements of the investigation file and imposes on the judge the duty to inform the accused of the factual and legal circumstances surrounding his charges, the same procedural law also limited these rights in the light of the good administration of justice but bearing in mind the procedural safeguards emanating from the right to a fair trial. Even ECHR case-law provided for exceptions to the rule of disclosure, and in the present case the secrecy imposed on certain, but not all, documents was in view of a search for the truth and to avoid any risk of tampering with evidence.
It further noted that the applicant had had access to a lawyer before his interrogation, and that the order of 23 June 2014 had been detailed and clearly identified the elements justifying the detention. It could thus not be said that the applicant was not aware of the reasons for his arrest, the charges contested, and the nature and content of the evidence adduced. Indeed more information than that strictly required had been communicated to the applicant and the judicial communication at issue was exemplary both in respect of quantity and clarity of the information provided.
In relation to requirements justifying the detention, the court examined the matter in connection with each of the charges proffered and noted that the appeal court had adequately replied to such claims. The third instance court nevertheless extensively referred to the report of the inquiring magistrate and considered that there existed an adequate collection of evidence which reflected a meticulous reconstruction of the money transfers, the personal enrichments, the company arrangements and the dissimulated and simulated purchases “negozi”, as for example in connection with the Foundation, where most of the money it received was eventually used to open savings accounts on the applicant’s instructions. It further referred to other instances reported in detail by the inquiring magistrate, and considered that even from a few of the instances recounted according to the evidence it was evident to everyone that the information was reliable and that the crimes were serious, it was therefore necessary to keep the applicant in detention.
In the third instance court’s view, the detention order was based on relevant factual evidence which had been corroborated, as well as the relevant legal considerations indicating that the applicant could reasonably be considering guilty of the charges held against him. Further, given the necessity of further investigations (as also mentioned by the inquiring judge) it was necessary to ensure the effectiveness of such investigation by avoiding any risk of tampering with evidence. Indeed the international and national network involved in the crimes could easily have helped the applicant to interfere with evidence which had not yet come to light. It was moreover evident that crimes such as money laundering where characterised by the need of investigations which were carried out in urgency and in secrecy (even in order to enable the collection of evidence vis-à-vis others not yet charged third parties). Thus, there had been nothing contrary to the relevant law and procedure in those decisions, it was still up to the courts, at a later stage of the investigation, to examine the matter and consider an eventual release on bail.
5. Further proceedings
At the time of the introduction of the application on 29 September 2014, the applicant’s lawyers still had not had access to the totality of the relevant files, despite the fact that the relevant time-limits provided by Article 4 of Law no. 93/2008 had elapsed.
On 15 September 2014 the applicant requested the court to revoke or in any event to impose a measure less strict than detention on remand.
On 18 September 2014 the CL in his function of inquiring judge rejected the request. The court considered that the original detention and its continuation were motivated in fact and law. Nevertheless, the basis of such detention needed not be any more detailed than it had been, also given the continued risk of tampering with evidence if the applicant were put on a less strict regime. The existence of this risk transpired to date. Contrary to that argued by the applicant, the CL considered that the results of the investigation as well as the behaviour of the applicant (and his co-accused who had tried to make contact with other persons – a personal doctor on the pretext of being ill, despite the fact that state doctors did not establish any illness, and both accused’s attempt to involve relatives in the meddling and alteration of documents) could not lead the court to exclude any attempts to temper with evidence. Indeed such tampering would amount to a reiteration of the acts with which the applicant was charged, which included the manipulation of the truth and an artificial reconstruction of economic and commercial dealings with an aim to dissimilate reality.
The applicant appealed.
By a decision of 13 October 2014, the Judge of Criminal Appeals upheld the applicant’s appeal in part. It ordered that the applicant be given access to the files and the evidence collected in the further investigations, upon which the CL had based his decision to reject the applicant’s request for bail in favour of prolonging his detention on remand. The court ordered the disclosure of the materials and gave a five day time-limit from such date for the submission of observations. It further considered that the first court was correct in maintaining the detention on the basis of the behaviour of the two co-accused - it was evident that the applicant’s co accused’s mistrust towards state doctors, was an excuse to consult her personal doctors, which was a predetermined plan, agreed on by the applicants, as shown through recordings of their conversation, to enable them to adjust the same line of defence and temper with evidence. Similarly the first-court’s finding as to the attempt to involve third parties in the tampering with evidence, was based on the fact that the applicant had transferred property in his daughter’s name, and the apparent complicity of a certain policeman who owed allegiance to the applicant in exchange for favours received – matters which could be better explained once the documents were unclassified as ordered above. Given that the applicant was able to concoct the above while being in detention, it was evident that his intention and possibilities of tampering with evidence were greater if released.
Subsequent to his decision, having viewed some documentation, the applicant considered that the documents made available to him only concerned the charges held against him, but had not concerned the alleged behaviour which had induced the CL to reject his request for bail. Thus, on 24 October 2014 the applicant lodged a new appeal claiming that despite its order, he again had not had access to the relevant documentation to challenge his detention.
By a decision of 6 October 2014 the Judge of Criminal Appeals considered that the applicant’s detention had been based on criteria which had been largely examined and confirmed in previous proceedings (see paragraphs above) which had also defined the limits of what had to remain non-disclosed to the applicant. It followed that it was not necessary to have new proof to maintain the order in place. In any event any further evidence could be assessed by the judge if it was necessary, as happened in the present case with the judge taking note of proceedings against the said policeman to verify whether new probative elements had arisen. That matter could not however impinge on the legality of the detention. It further noted that proceedings concerning precautionary measures were not comparable to the trial itself, and thus not all fair trial guarantees applied to the same extent, in particular concerning access to documents and their publicity, given the needs of the investigation. In the present case all the relevant precautions had been taken, ample information to understand the charges and the reasons for his detention was given to the applicant but only to the extent where it would not jeopardise the ongoing investigation particularly in relation to charges not yet brought forward. In the present case an appropriate balance had been reached.
6. The applicant’s detention
The applicant was detained as from 23 June 2014 in the San Marino prison known as the “Carcere dei Cappucini”. As from 8 August 2014 he was detained under a regime which provides for isolation for twenty-two hours a day. This regime had not been ordered by a judge and it had persisted beyond the time allowed by law (10 days). The applicant alleged that he did not have access to other departments of the prison which could allow for some form of activity and he could only shower once a week. Further, for certain periods he could not have access to sanitary facilities, and had to answer nature’s calls in his own cell in a container provided.
The applicant was still in detention at the time of the last communication by the applicant on 2 December 2014. The Court has not been informed of the applicant’s release, if at all.
The applicant considers that the conditions of the detention facility are inhumane and refers to the reports of the Committee for the Prevention of Torture (CPT) of 2005 on the matter, in particular noting that the CPT had since 1992 reiterated the need to refurbish and upgrade the facility and yet nearly no steps had been taken to this effect.
On 30 June 2014 the applicant filed a request complaining about his conditions of detention with the CPT.
B. Relevant domestic law
1. The Criminal Code
Articles 199 bis and 287 of the Criminal Code, in so far as relevant read as follows:
Article 199 bis (money laundering)
“(1) A person is guilty of money laundering, where, except in cases of aiding and abetting, he or she conceals, substitutes, transfers or co-operates with others to so do, money which is known or its should be known was obtained as a result of crimes not resulting from negligence or contraventions, and with the aim of hiding its origins.
(2) or whosoever uses, or cooperates or interferes with the intention of using, in the ambit of economic or financial activities, money which is known or it should be known has been obtained as a result of crimes not resulting from negligence or contraventions.”
Article 287 (Conspiracy)
“The association of three or more persons, with the intention of executing a planned criminal activity, constitutes a crime punishable with imprisonment.”
2. Law no. 93/2008
Article 4 and 5 of Law no. 93/2008 concerning criminal procedural rules and the confidentiality of criminal investigations, in so far as relevant read as follows:
Article 3 (right to defence)
“The accused, assisted by his legal representative, as well as the Attorney General, have a right to present their defences, by means of submissions and pleas. They may also examine, and make copies of all the acts in the proceedings, including the report of the crime.”
Article 4 (judicial notice)
“(1) Within thirty days of the crime report ..., save for the exceptions mentioned in Article 5 below, the inquiring judge must personally inform the accused and the Attorney General of the legal and factual elements of the crime in respect of which proceedings are being carried out ...”
Article 5 (investigation and acts and results of inquiry in connection with the temporary secrecy/classification regime or the urgency regime)
“Where there are specific reasons of an exceptional nature which may lead one to consider that the entirety of the investigation may only be carried out successfully if carried out under a regime of secrecy/classification, the inquiring judge may order by means of a reasoned decision that the regime of temporary secrecy be applied, thus derogating from the provisions of Article 3 and 4 above.”
The same procedure applies when only some of the acts should be subject to a temporary secrecy regime, or when the necessity of such regime emerges subsequently.
The temporary secrecy regime applied to the investigation and the acts of inquiry ... may extend only to the time strictly necessary for the performance of the relevant acts; and in any event may not exceed six months from the registration of the crime report, which may be extended only once, to a period of another three months maximum, if there exist serious reasons for so doing.
3. Law no .44/97
Article 23 of the prison regulations Law no. 44/97 reads as follows:
“The regime of continuous isolation within the prison facility shall be allowed:
i) When it is necessary for sanitary reasons
ii) Where according to the judicial authority, a person charged with an offence should be detained during the compilation of evidence stage (istruttoria).
iii) For serious disciplinary reasons indicated by the judge responsible for execution.
A period of judicial isolation shall not exceed ten days”
C. Relevant Council of Europe material
The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) published on 11 December 2014 its report on the January/February 2013 visit to San Marino, together with the response of the San Marino authorities.
During the visit, the CPT delegation paid particular attention to conditions of detention at the San Marino Prison “Carcere dei Cappucini”. The Committee wished to be informed of the legislative work envisaged to amend the Code of Criminal Procedure in order to recognise the right to inform a relative or a third party of one’s detention and the right of access to a lawyer and to a doctor. It also recommended that persons apprehended by law enforcement agencies be systematically informed of their rights orally and subsequently in writing. In their response, the authorities of San Marino stated that a form had been produced in several languages to inform apprehended persons of their rights.
The delegation noted the good general condition of the prison, but also its small size. The report recommended that the necessary measures be taken to enable a greater number of inmates to participate in activities. On the subject of health care in the prison, the authorities should, amongst other things, organise nursing care and ensure that medical confidentiality is respected. The relevant parts of the report read as follows:
« 2. Conditions de détention
23. Lors de la visite, la délégation a pu constater le bon état général de la prison et des conditions matérielles de détention offertes mais aussi l’exigüité de l’établissement. La prison dispose, au rez-de-chaussée, d’une cellule, d’environ 8 m², séparée par une porte d’une pièce/cellule plus grande - 16 m² - qui donne directement sur une salle de bain séparée. Une autre cellule sert d’entrepôt. Au premier étage, se trouvent six cellules individuelles ainsi que des installations sanitaires au milieu du couloir pouvant servir à tous les détenus de cet étage.
Au rez-de-chaussée, se trouve également la salle « multi-usages » qui sert à la fois pour les visites (des avocats comme des familles / proches), de bibliothèque et de salle de sport.
En 2010, des travaux de rénovation ont été réalisés pour mettre en conformité le système électrique des cellules et y installer de nouveaux équipements de sécurité. Un système de vidéosurveillance a été également installé aux abords de la prison ainsi que dans les couloirs, la salle de visite et une cellule d’observation du premier étage. Ces travaux ont permis de réhabiliter les cellules et les installations sanitaires de la prison.
3. Régime
24. Comme indiqué au paragraphe 20, un seul prisonnier était détenu à la prison au moment de la visite. Dès lors, le détenu concerné était de facto soumis à un régime similaire à l’isolement. Dans un tel contexte, il est essentiel d’offrir à ce prisonnier un programme d’activités ainsi que des contacts humains appropriés.
Le détenu était placé dans la cellule du rez-de-chaussée où il pouvait librement utiliser la salle attenante à sa cellule, qui lui servait d’atelier et de salle de télévision. Il bénéficiait d’un travail rémunéré (empaquetage de différents objets). Pendant six heures trente par jour, il pouvait également accéder librement à une des deux aires de promenade. De plus, il avait l’opportunité d’échanger quotidiennement avec le personnel pénitentiaire et recevait la visite de l’éducatrice judiciaire jusqu’à trois fois par semaine. Il bénéficiait d’une visite hebdomadaire de sa famille et pouvait recevoir sans contraintes des appels téléphoniques et en passer au moyen d’une carte rechargeable.
Le CPT se félicite des mesures entreprises par la direction et le personnel de la prison à l’égard de ce détenu.
25. D’une manière plus générale, il est d’importance pour le CPT que tout détenu puisse passer un temps raisonnable hors de sa cellule, occupé à des activités motivantes. La réglementation pénitentiaire de Saint-Marin prévoit un large éventail d’activités (culturelles, sportives et récréatives, études y compris universitaires) et favorise le travail.
La délégation a été informée que, sauf demande explicite pour les besoins de l’enquête, les portes des cellules sont ouvertes jour et nuit afin de faciliter l’association entre les détenus (et permettre un libre accès aux installations sanitaires au premier étage). Le CPT s’en félicite.
Toutefois, la structure actuelle de la prison ne permettrait pas l’organisation d’un programme d’activités motivantes si plusieurs personnes venaient à être détenues en même temps et pour des durées prolongées. D’ailleurs la détention depuis le mois de février 2013 de deux détenus condamnés à plusieurs années d’emprisonnement risque d’engendrer des difficultés dans l’organisation de la prison et l’exercice des droits des détenus. En effet, une seule pièce sert à la fois de salle de visite, de sport et de bibliothèque et il n’existe pas d’espace adapté pour accueillir un atelier où travailleraient plusieurs personnes.
Dans leur réponse de 2005, les autorités avaient indiqué au Comité leur intention de construire dans la plus grande aire de promenade un bureau pour la direction ainsi qu’une nouvelle salle polyvalente pouvant servir pour le travail et le sport. Huit ans après, ces travaux n’ont toujours pas commencé. La délégation a été informée qu’un budget avait été alloué pour ceux-ci mais qu’ils n’auraient pu être mis en œuvre à la suite du classement de la ville au patrimoine mondial de l’UNESCO en 2008. Par une décision du 15 janvier 2013, le Gouvernement de Saint- Marin a créé un nouveau groupe de travail concernant la prison qui doit notamment évaluer la faisabilité du projet de transformation. Ce groupe de travail devrait remettre son rapport le 30 juin 2013.
Le CPT recommande aux autorités de Saint-Marin de mettre en œuvre les travaux prévus de longue date ou de trouver une solution alternative (par exemple, en construisant un établissement pénitentiaire en dehors de la ville historique). Dans ce contexte, le Comité souhaiterait recevoir le rapport du groupe de travail ainsi que les décisions prises pour permettre à un plus grand nombre de détenus de participer à des activités. »
A visit by the CPT had also been held in February 2005. The relevant parts of the report published on 26 February 2008 read as follows:
« 2. Conditions matérielles
25. La situation, s’agissant des conditions matérielles de détention, n’a pratiquement pas changé depuis la dernière visite en 1999. Les travaux envisagés, tant pour la salle polyvalente que pour les cellules du premier étage, n’ont toujours pas été réalisés, alors qu’une décision de commencer ces travaux avait été adoptée en septembre 2004.
Il est clair qu’un très faible taux de détentions, ces dernières toujours pour de courtes périodes, peut expliquer le manque d’intérêt des autorités politiques pour ce dossier. Cela dit, en l’état de la législation pénale actuelle, il n’est pas exclu que des détentions de longue durée soient effectuées à la Prison des Capucins.
Le CPT recommande que des mesures soient prises, sans autre délai, afin de mettre en œuvre le programme de restructuration de la prison, annoncé depuis 1992.
3. Régime
26. Aucun progrès n’est également intervenu s’agissant du régime d’activités proposé aux détenus, qu’ils soient prévenus ou condamnés. Il convient de rappeler à cet égard que le rapport établi à la suite de la visite du CPT en 1999 soulignait déjà le décalage, d’une part, entre le riche éventail d’activités prévu par la Loi pénitentiaire et, d’autre part, le régime d’activités effectivement proposé aux détenus et qu’un manque d’activités motivantes est préjudiciable à tout détenu (a fortiori s’il s’agit d’un mineur).
Le CPT recommande que les mesures nécessaires soient prises afin que tout détenu puisse passer un temps raisonnable hors de sa cellule, occupé à des activités motivantes ; en cas de détention de longue durée, ces activités devraient être variées. La mise en œuvre du programme de restructuration dont question au paragraphe précédent et, en particulier, la création de la salle polyvalente, devrait représenter un pas important dans ce sens. »
COMPLAINTS
The applicant complains under Article 3 about the conditions of his detention. Invoking Article 5 § 3 he also complains that he remained detained for an unlimited duration of time, given that the law did not provide for a time-limit, and that pending his detention, proceedings were taking an unreasonably long time, during which he had not been released. He further complains under Article 5 § 4 that he had repeatedly not had access to the relevant documentation to challenge his detention.
QUESTIONS TO THE PARTIES
1. Did the conditions of the detention facility amount (alone or in combination with other conditions) to inhuman and degrading treatment, contrary to Article 3 of the Convention?
2. Was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention? Did the grounds given by the judicial authorities continue to justify the deprivation of liberty? Were such grounds “relevant” and “sufficient”, have the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Ilijkov v. Bulgaria, no. 33977/96, § 77, 26 July 2001; I.A. v. France, 23 September 1998, Reports 1998‑VII, § 102; and Contrada v. Italy, 24 August 1998, Reports 1998-V, § 54)? The parties should submit any further domestic decisions concerning the applicant’s detention which were delivered in 2015.
3. Was the procedure by which the applicant sought to challenge the lawfulness of his pre-trial detention in conformity with Article 5 § 4 of the Convention? In particular, was the principle of “equality of arms” (see Nikolova v. Bulgaria [GC], no. 31195/96, § 58, ECHR 1999‑II) respected, in the light of the fact that, although the applicant repeatedly requested access to the evidence underlying the suspicion against him and his continued detention, he was not allowed to acquaint himself with the entirety of the relevant material of the investigation? Did the information to which the applicant was denied access have any bearing on the lawfulness of his detention?
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