Communicated on 13 September 2018
FIRST SECTION
Applications nos. 20319/17 and 21414/17
Valentina BALSAMO against San Marino
and Angela BALSAMO against San Marino
lodged on 8 March 2017 and 10 March 2017 respectively
STATEMENT OF FACTS
The applicant in application no. 20319/17, Ms Valentina Balsamo, is an Italian national, who was born in 1986 and lives in Roncadelle (Brescia). The applicant in application no. 21414/17, Ms Angela Balsamo, is an Italian national, who was born in 1985 and lives in Travagliato (Brescia). The applicants are sisters. They are both represented before the Court by Mr A. Pagliano, a lawyer practising in Naples.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The criminal investigation No. 477/2011
On an unspecified date a criminal investigation was instituted against a certain B. and his two daughters (the applicants) for ongoing money laundering under Articles 50, 73 and 199 bis of the Criminal Code. According to the prosecution the accused persons had laundered assets which had been obtained by B., in Italy, through the commission of multiple [unnamed] offences. The total value of the allegedly laundered assets amounted to 2,150,000 euros (EUR).
On 28 July 2011 the investigating judge (Commissario della Legge Inquirente) seized a current account, a bonds account (dossier titoli) and the content of a safe deposit box, all registered in the first applicant’s name and in respect of which B. and, subsequently, the second applicant had a mandate. The mentioned assets together amounted to a total of EUR 1,920,785.50. It transpired that the first applicant had opened the account on 30 December 2004 at the age of eighteen and on that day she had deposited EUR 500,000 in cash. On 1 August 2005 and 2 March 2006 she had deposited EUR 150,000 and EUR 400,000 respectively, in cash. On 20 April 2006 B. deposited EUR 950,000 in cash and on 1 July 2008 the second applicant deposited EUR 150,000 in cash.
On 10 January 2012, in execution of a letter of request - which had been sent on 6 September 2011 by the investigating judge to the Brescia Court of Appeal ‑ the Italian judicial authorities submitted relevant documents and information concerning the alleged criminal origin of the above‑mentioned assets. It transpires from the documents in the case‑file that, included with the above-mentioned documents was a copy of a judgment of the Court of Appeal of Brescia of 6 November 2008 which found B. guilty of theft and receiving stolen goods (ricettazione). It further transpires that according to that judgment the proceeds deriving from such offences amounted to EUR 750,000.
By a decision of 12 February 2014 the investigating judge archived the proceedings against B. (the documents in the case-files do not provide reasons for this decision[1]) and indicted the first and the second applicants for money laundering.
2. The first-instance proceedings
By a judgment no. 139 of 4 November 2014, filed with the registry on 7 August 2015, the first-instance criminal judge (Commissario della Legge Decidente) found the first and the second applicant guilty of the offence charged. He sentenced the first applicant to two years and six months’ imprisonment, and the second applicant to one year imprisonment. They were both fined EUR 5,000 and given a one year and four months prohibition from holding public office and exercising political rights. The judge, relying on Article 147 § 3 of the Criminal Code, confiscated the sums which had been seized (EUR 1,920,785.50). In addition, the judge issued, in respect of the first applicant, a confiscation by equivalent means of EUR 499,000 given that, before the execution of the seizure she had withdrawn the latter sum from her bank account.
The first‑instance criminal judge found that the applicants had laundered assets which had been obtained by B., in Italy, through the commission of multiple offences. As to the criminal origin of the assets, the judge held that previous domestic case-law had established that in order to find someone guilty of money laundering it was not necessary to have a previous conviction for the predicate offence, or to know its perpetrator. It sufficed instead to have reasonable evidence (prove logiche) of the criminal origin of the money in question. The criminal origin of the money was an objective prerequisite to be autonomously ascertained by the judge in the money laundering case. It was thus not important to ascertain a specific predicate offence if a plurality of elements showed the illicit origin of the money. In the case at hand, the criminal origin of the assets had been shown by the above-mentioned Italian criminal judgment against B. together with other relevant clues. In particular, the judge quoted a part of the Italian judgment which described the criminal career of B. and his previous convictions for desertion, fighting, causing personal injury, carrying of weapons and, after 1975, handling and receiving stolen goods, multiple instances of theft, owning unjustified assets and drug dealing. The judge acknowledged that the proceeds (EUR 750,000) of the predicate offence - of which B. had been found guilty in Italy by the above mentioned judgment - were much lower than the sum object of the laundering (EUR 2,150,000). This fact, however, could not lead to exclude the criminal origin of all the sum at issue since, inter alia, (i) B.’s criminal record from 1975 included multiple offences each of which was able to produce a relevant criminal profit; (ii) a disproportion existed between the legitimate income of the applicants (and their family) and the assets in their possession; (iii) the applicants had tried to demonstrate the licit origin of the assets (such as from their family business and the sale of immovable property) but their explanation had not relied on any evidence and there had been some contradictions between the statements made by each applicant’s legal counsel in this respect; (iv) it was unreasonable that the applicants had decided to deposit the money in a foreign bank far from the center of interest of their family’s businesses and this was a further indication of their attempt to hide the criminal origin of the assets. The court was also convinced that despite their young age both applicants were well aware of the origin of the money and the objectives behind the transfers of money to San Marino, particularly given that they were well aware of their father’s problems with the justice system.
3. The appeal proceedings
By a judgment of 10 October 2016, published on 12 October 2016, the Judge of Criminal Appeals (Giudice d’Appello Penale) acquitted both applicants for lack of evidence capable of demonstrating the mens rea (subjective element of a crime). In particular it had not been ascertained, beyond a reasonable doubt, that the applicants had been aware of the criminal origin of the assets in the light, inter alia, of their young age. Nevertheless, the court noted that the sum deposited in the bank account had had a criminal origin in the absence of any explanation as to the origin of the money (which lead to the purchase of properties, the sale of which resulted in the sums at issue). Indeed the fact that relevant fiscal controls did not exist at the time did not suffice to prove the licit origin of the funds. Further, the transfer of such money into banks in San Marino showed the attempt to make such money untraceable precisely to hide their initial origin. The judge upheld the confiscation of the items which had been seized.
B. Relevant domestic law
1. The Criminal Code
Article 199 bis of the Criminal Code, as amended by Chapter 2, Article no. 7 of Law no. 28 of 26 February 2004, and by Article 77, Paragraph 2 of Law no. 92 of 17 June 2008, read, in so far as relevant, as follows:
Article 199 bis (money laundering)
“(1) A person is guilty of money laundering, where, except in cases of aiding and abetting, he conceals, substitutes, transfers or co-operates with others to so do, money which he knows was obtained as a result of crimes not resulting from negligence or contraventions (misfatto), with the aim of hiding its origins;
(2) Or whosoever uses, or cooperates or intervenes with the intention of using, in the area of economic or financial activities, money which he knows was obtained as a result of crimes not resulting from negligence or contraventions (misfatto).
(3) If the crime at the origin of the laundered money has been committed in a foreign country, such a crime has also to constitute a prosecutable criminal offence in San Marino (deve essere penalmente perseguibile e procedibile anche per l’ordinamento Sammarinese).
...
(5) Whosoever commits the offences provided for by the present article is punished by imprisonment of the fourth degree, by a daily fine of the second degree and by a third degree prohibition from holding public office and exercising political rights
(6) The punishments can be diminished by one degree on account of the quantity of the money or the assets and the type of the operations which had been carried out (indole delle operazioni effettuate)...
(7) The judge applies the penalty provided for the predicate offence if it is less heavy.”
Title 6 of the Criminal Code, which has the title “Civil obligations and other effects resulting from offences”, includes Article 147 of the Criminal Code, which, as amended by Article 42 of the Decree No. 181 of 11 November 2010, and as applicable at the time of the facts of the present case, read, in so far as relevant, as follows:
Article 147 (confiscation)
“...
(2) Confiscation ensues in the case of any fabrication, use, possession, transfer or commerce, of items, where such act constitutes an offence, even if the items do not belong to the perpetrator of the act in issue (agente).
(3) In a judgment of conviction, the judge must always order (e’ sempre obbligatoria) the confiscation of items which were used or which were intended to be used to commit the offences ex Articles 167, 168, 168 bis, 169, 177 bis, 177 ter, 194, 195, 195 bis, 195 ter, 196, 199, 199 bis, 204 (3-1), 204 bis, 207, 212, 305 bis, 337 bis, 337 ter, 371, 372, 373, 374, 374 ter (1), 388, 389, or offences connected to terrorism, or offences with the purpose of subverting the constitutional order, or the crime ex Article 1 of Law no. 139 of 26 November 1997, as well as ordering the confiscation of the price, product and profit of the crime. If confiscation is not possible the judge shall order (impone l’obbligo di) the payment of an amount of money equivalent to the value of the above-mentioned items.”
2. The Code of Criminal Procedure
Article 200 of the Code of Criminal procedure, in so far as relevant, reads as follows:
“The revision of a judgment which either finds guilt or acquits with the application of security measures or confiscation, or of a criminal decree of guilt, which has become res judicata, can occur:
a) If there is new evidence which alone or together with already existing evidence show that the person found guilty must be acquitted;
b) if the decision was delivered as a result of an untruth or another crime;
c) if the facts as established in such a decision are not compatible with those established in another irrevocable decision.
d) If the European Court of Human Rights finds that the judgment at issue had been delivered in breach of the provisions of the European Convention on Human Rights and Fundamental Freedoms or its Protocols, and the serious and negative effects of such a judgment can only be redressed by means of a revision [procedure].”
C. Relevant International Instruments
On 27 July 2010 the Republic of San Marino ratified the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (1990). The Convention aimed to facilitate international co-operation and mutual assistance in investigating crime and tracking down, seizing and confiscating the proceeds thereof. Parties undertake in particular to criminalise the laundering of the proceeds of crime and to confiscate instrumentalities and proceeds (or property the value of which corresponds to such proceeds).
COMPLAINTS
The applicants complain under Articles 6 § 2 of the Convention about a violation of the presumption of innocence since a confiscation had been applied irrespective of their acquittal, thus raising a doubt as to their innocence.
Relying on Article 7 § 1 of the Convention, the applicants complain that, despite their acquittal, they had been punished by means of a confiscation which was moreover not provided by law. Article 147 § 3 not being applicable in cases of acquittal, the Judge of Criminal Appeals’ had implicitly applied Article 147 § 2 to their case by analogy, i.e. comparing money to dangerous things used for the commission of a crime or which constitute a crime.
The applicants also complain under Article 13 in conjunction with Articles 6 and 7, that they did not have an effective remedy in connection with the above‑mentioned complaints, there being no court or authority which could examine a final criminal court judgment which was not Convention compliant.
Lastly, the applicants complain under Article 1 of Protocol No. 1 to the Convention that the interference with their right of property had been unlawful and disproportionate.
QUESTIONS TO THE PARTIES
1. Did the applicants have at their disposal an effective domestic remedy for their complaints under Articles 6 § 2 and 7 of the Convention? If so, have the applicants exhausted domestic remedies in connection with their complaints? If not, could such an absence of a domestic remedy be seen as a violation of Article 13 of the Convention?
2. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case? In particular, did the appeal judgment ordering a confiscation following the applicants’ acquittal reflect the opinion that the applicants were guilty notwithstanding the absence of a formal finding of guilt in their respect (compare Geerings v. the Netherlands, no. 30810/03, 1 March 2007 and Silickienė v. Lithuania, no. 20496/02, 10 April 2012)?
3. Did the confiscation applied to the applicants amount to a penalty within the meaning of Article 7 of the Convention (see G.I.E.M S.R.L. and Others v. Italy [GC], nos. 1828/06 and 2 Others, § 214 et sequi, 28 June 2018)? If so, did the confiscation, applied to the applicants irrespective of their acquittal, amount to a violation of Article 7 of the Convention?
4. Have the applicants suffered an interference with their possessions in compliance with Article 1 of Protocol No. 1? In particular, was the confiscation confirmed by the Criminal Court of Appeals in accordance with the law? More precisely, which legal provision in the domestic system served as a basis for the confiscation by the Criminal Court of Appeals? Was that provision of a sufficient quality ie. was it accessible, precise and foreseeable (see, for example, Beyeler v. Italy [GC], no. 33202/96, § 109, ECHR 2000‑I)? The parties are invited to supplement their replies by means of relevant domestic case‑law concerning the application of any relevant provision.
5. Did that interference impose an excessive individual burden on the applicants (compare Silickienė, cited above, and Gogitidze and Others v. Georgia, no. 36862/05, 12 May 2015)?
[1]. Internal note - An online search shows that the case was not archived because B. passed away, given that B., known as the “Killer of Brecia” only died in 2018, having committed suicide after shooting two persons whom he blamed for having testified against him in the earlier criminal proceedings.
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