Information Note on the Court’s case-law 206

April 2017

Podeschi v. San Marino - 66357/14

Judgment 13.4.2017 [Section I]

Article 5

Article 5-4

Review of lawfulness of detention

Alleged inability to challenge lawfulness of pre-trial detention owing to application of temporary secrecy regime in money laundering investigation: no violation

Facts – The applicant, a politician, was arrested and detained on rema nd for a year and four months on suspicion of money laundering. Before the European Court, he complained, inter alia , that contrary to Article 5 § 4 of the Convention he had repeatedly been denied access to documentation he needed to see to be able to chal lenge his detention, but which had been classified under the temporary secrecy regime applicable in certain investigations.*

Law – Article 5 § 4: Certain materials had been classified because of the need to further the investigation and to avoid compromisi ng measures planned by the investigators in connection with a suspected money laundering racket.

There was no doubt that money laundering directly threatened the rule of law, so there was a strong public interest in keeping certain police methods secret an d conducting criminal investigations efficiently. That by itself constituted sufficient justification for the imposition of some restrictions on the adversarial nature of proceedings in connection with Article 5 § 4.

The applicant or his legal advisers had been able effectively to participate in court proceedings concerning his continued detention and had repeatedly made submissions at different levels of jurisdiction.

The law concerning the temporary secrecy regime was circumscribed as reasons of an “excep tional nature” were required and the regime could usually only last for the time strictly necessary and was subject to maximum time-limits. In the light of the strong countervailing public interest in combatting money laundering, the safeguards in place co uld not, a priori , be considered insufficient.

Turning to the facts of the applicant’s case, the domestic courts did not appear to have based themselves in their decisions on essential documentation which had been not available to the applicant. Nor did it emerge from the facts that any of the elements not disclosed to the applicant had formed the basis of the domestic courts’ decisions in relation to their reasonable suspicion or were specifically referred to in those decisions. It followed that the applicant could still have challenged the existence o f reasonable suspicion against him, in particular the grounds and elements on which the charges were based, on the basis of the information in his possession, as he had done on various occasions.

As to the fear that the applicant would tamper with evidence or reoffend, the facts mentioned by the domestic court in its decision had been sufficiently detailed to enable the applicant to contest them as being a basis for his detention. Furthermore, the fear of tampering with evidence was not solely based on the applicant’s behaviour while in detention, but also on his prior behaviour and his capacity to manipulate the truth. In the complex and serious sphere of money laundering, which implied an ability to conceal funds of illegal origin and subsequently to surre ptitiously reintroduce them into the legal financial system, a general risk of tampering with evidence, or reoffending, flowing from the very nature of organised crime, could exist. Further, a reference that had been made to the applicant’s behaviour while in detention, without the evidence being disclosed to the applicant, was only a supplementary argument to a corollary ground of detention, unrelated to the unabated reasonable suspicion. In view of the foregoing, the fact that in a decision of September 2 014 the authorities had partly relied on elements which were not included in the applicant’s case-file did not suffice in itself to find a breach of Article 5 § 4.

Conclusion : no violation (unanimously).

The Court also found unanimously no violation of Art icle 3 in respect of conditions of the applicant’s detention and no violation of Article 5 § 3 concerning the length of the applicant’s pre-trial detention.

* Article 5 of Law no. 93/2008 concerning criminal procedural rules and the confidentiality of criminal investigations enabled an inquiring judge to apply the temporary secrecy regime where for specific reasons of an exceptional nature the investigation coul d not be carried out successfully otherwise.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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