CASE OF BERARDI AND MULARONI v. SAN MARINO

FIRST SECTION

CASE OF BERARDI AND MULARONI v. SAN MARINO

(Applications nos. 24705/16 and 24818/16)

JUDGMENT

STRASBOURG

10 January 2019

FINAL

10/04/2019

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Berardi and Mularoni v. San Marino,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Linos-Alexandre Sicilianos, President,
Aleš Pejchal,
Krzysztof Wojtyczek,
Armen Harutyunyan,
Tim Eicke,
Jovan Ilievski,
Gilberto Felici, judges,
and Abel Campos, Section Registrar,

Having deliberated in private on 4 December 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in two applications (nos. 24705/16 and 24818/16) against the Republic of San Marino lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two nationals of San Marino, Mr Paolo Berardi and Mr Davide Mularoni (“the applicants”), on 26 April 2016 and 27 April 2016 respectively.

2.  The applicants were represented by Mr A.F. Petrillo, a lawyer practising in Rimini. The Government of San Marino (“the Government”) were represented by their Agent, Mr L. Daniele.

3.  The applicants alleged that the law had been applied retroactively to their disadvantage, as they had been found guilty of bribery in accordance with the wording of a criminal provision that had not yet been in force at the time of the facts.

4.  By a decision of 1 June 2017 the Chamber decided to join the applications, to give notice of the complaint under Article 7 of the Convention to the respondent Government and to declare inadmissible the remainder of the applications.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The first applicant was born in 1963 and the second applicant was born in 1965. They live in Dogana and Faetano, respectively.

6.  When the applicants lodged their applications they were serving their prison sentences in San Marino. At the time of the facts the first and the second applicant were officials responsible for the supervision of safety on construction sites (Sicurezza Antinfortunistica).

A.  Background of the case

Parliamentary commission on organised crime

7.  By Law No. 107 of 22 July 2011, the parliament of San Marino (Consiglio Grande e Generale) established a commission of inquiry (“the commission”) to investigate organised crime in the country (Commissione consigliare sul fenomeno delle infiltrazioni della criminalità organizzata). On 27 September 2011 Parliament gave the commission the specific task of investigating the existence of any collusion between politicians and company F., a fiduciary company which had been traced back to B. (a notary and lawyer by profession).

8.  The commission produced a report, chapter two of which was devoted entirely to criminal collusion between company F. and various officials. It highlighted the existence of a well‑established corrupt practice of representatives or employees of certain named construction companies which bribed public officials responsible for overseeing construction site safety (Sicurezza Antinfortunistica) to omit to carry out compulsory safety checks on companies allegedly connected with the above‑mentioned company F.

9.  Further details about the commission’s work and the relevant investigation and trial are set out in Berardi and Others v. San Marino ((dec.), no. 24705/16, ECHR, 1 June 2017).

B.  Criminal proceedings

1.  First-instance proceedings

10.  On 12 December 2012 the applicants (and other persons) were charged with the continuing offence of bribery pursuant to Articles 50, 73 and 373 of the Criminal Code (see Relevant domestic law below). In particular, they were charged with periodically receiving sums of money in cash in order to omit to carry out their duties by failing to inspect the construction sites of the companies controlled by B. and abstaining from sanctioning violations and irregularities found in such companies. The first and second applicants were charged in respect of events up to 1 January 2010.

11.  On 19 September 2014 the first‑instance judge found all the accused, including the applicants, guilty of the continuing offence of bribery. The applicants were sentenced to five years and six months’ imprisonment, a four‑year prohibition on holding public office and exercising political rights, and a fine of 25,000 euros (EUR).

12.  In particular, the judge considered B. as being the de facto dominus of the companies under investigation and found that he had been responsible for giving orders and instructions to the various formal directors of the companies to bribe the first and the second applicant in order to avoid safety checks at his companies’ construction sites. The court found that witness statements had been corroborated by the bank accounts showing disbursements, the sums of money deposited by the applicants in their bank accounts in the relevant years (2005‑12), and the testimony of another person, who had stated that she had often seen the officials come to the office to meet M. (the formal administrator of a company which was owned and actually controlled by B.) for very brief periods.

13.  The judge held that the offence had to be classified as direct bribery (corruzione propria) under Article 373 § 1 of the Criminal Code as the applicants had been exercising discretionary powers arising from their office while carrying out the criminal acts. In particular, the exercise of discretion while consciously violating the rules pertaining to its exercise had to be considered as acts that were contrary to the duties arising from the applicants’ office. The fact therefore that the applicants had agreed to refrain from exercising their discretionary powers or to do so in an aberrant way in exchange for money constituted direct bribery.

14.  As to the penalty, the judge stated, in general terms, that he had calculated it on the basis of parameters such as the number of acts of bribery, the type of acts which had been the subject of the bribery, the role of each accused person and the time‑frame in which they had carried out the criminal act.

2.  Appeal proceedings

15.  On 13 February 2015, the applicants appealed. They complained, inter alia, that before the passing of Law No. 92 of 17 June 2008 there had been no provision for the crime of “bribery inducing omission” (corruzione per omissione), that is, a form of bribery where an official is paid to omit to carry out or to delay a legitimate act arising from his or her office (hereinafter referred to as “bribery inducing omission”). Thus, at most they should have been charged with indirect bribery (corruzione impropria), which carried a lighter penalty (by one degree/punishment bracket). However, they had been accused of bribery inducing omission in relation to facts which had arisen before the law had come into force.

16.  By a judgment filed in the registry on 12 January 2016 the Judge of Criminal Appeals (Giudice d’Appello Penale) upheld the first‑instance judgment in the part relating to the applicants, but reduced the sentence to five years’ imprisonment, a four‑and‑a‑half‑year prohibition on holding public office and exercising political rights, and a fine of EUR 20,000. The judge did not apply the increased penalty provided for by Article 50 of the Criminal Code (for a continuing offence), which had been applied by the first‑instance judge, because the first‑instance judge had not indicated the specific extent of the increased penalty he had applied, solely stating that the penalty had been determined with regard to the several acts of corrupt conduct.

17.  It was noted that the bank account deposits made by the first and second applicants indirectly indicated their guilt. The evidence adduced by the applicants, or that which they had asked to submit but which had not been allowed at first instance, was not sufficient to disprove any inferences based on the apparent situation. Indeed, there was no explanation as to why the applicants had regularly deposited money in their bank accounts when there had been a real‑estate and construction boom or why the deposits had then declined after a crisis in the sector in general, and more specifically after one that had affected the companies concerned. In the light of the clear evidence of payments having been made to the first and second applicants, there was no need to enter into a detailed analysis of their role on the construction sites.

18.  In connection with the applicants’ complaint concerning the principle of nullum crimen sine lege, the Judge of Criminal Appeals noted that the case did not concern multiple crimes. The only crime at issue was bribery resulting from the pact struck (patto corruttivo) between B. and the applicants. That pact had involved, on the one hand, a promise not to create problems for the construction companies in question, that is, favourable treatment for friends, and, on the other hand, it had been done in exchange for the making and receiving of regular payments of money. Such favouritism had had specific corresponding rewards according to comparative tables adjusted for the purpose. Indeed, the duration of the pact had required various amendments to the applicable tariffs, which had also depended on the rotation of the people and companies involved. However, it had consisted of one crime (unicità di reato) perpetrated over time, as each payment resulting from the original pact meant the renewal of the pact. In connection with the date on which the punishable act had been committed (tempus commissi delicti), with all the elements of the offence being present, the court considered that the period in question was the whole time from the initial pact and lasting throughout the execution of each act constituting its renewal. The prolonged nature of the act in question had had various consequences: (i) third persons who had not been involved in the original pact had nevertheless become accomplices in the offence of bribery; (ii) limitation periods had to start running from the date of the last payment involving the accused and (iii) as in the case of continuing offences, an amendment to the relevant law during the period of the crime had to be applied also to the continuing offence of bribery of which the applicants had been accused.

19.  The court noted that if the acts ascribed to the applicants had amounted to bribery inducing omission (that is, a private “corruptor” had paid the public officials to fail to do their duty), then it was true that such acts could have been considered as not constituting a crime at the time, or more precisely, that they had constituted the offence of indirect bribery, covered by paragraph 2 of the old law. However, that was not the case as the applicants had been paid also to carry out acts which were contrary to the duties of their office, which was covered by the “old” Article 373 [§ 1]. According to the Judge of Criminal Appeals, the amended Article 373, which expressly provided for the crime of direct bribery to include the promise of an omission or payment for a past omission, did not create a new crime but amounted solely to a more serious legal classification of acts which already constituted a crime. The change in the law was therefore irrelevant in the applicants’ case.

20.  In conclusion, the judge dismissed the idea that the acts for which the applicants had been found guilty should have been classified merely as bribery inducing omission (formerly indirect bribery, then qualified as direct bribery after the entry into force of the new law). That was because the applicants had not only been found guilty of omission of acts arising from their office, but also of having a general attitude of favouritism towards the companies de facto controlled by B. by sometimes not carrying out the necessary safety checks, doing fewer than necessary or ignoring possible irregularities. In doing so, they had been acting contrary to the duties related to their office in the interests of a private corruptor. It followed therefore that the more limited formulation of Article 373 before 2008 also covered the facts of the applicants’ case.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  San Marino fundamental human rights charter

21.  Article 15 § 4 of Law No. 59 of 8 July 1974, as amended by Law No. 36 of 26 February 2002, the San Marino Charter of Fundamental Human Rights (Dichiarazione dei Diritti dei Cittadini e dei Principi Fondamentali dell’Ordinamento Sammarinese), in so far as relevant, reads as follows:

“Punishments ... may only be handed down by a judge established by law, on the basis of non-retroactive laws. The retroactive application of a law is only provided for when such a law is more favourable.”

B.  Criminal Code

22.  The provisions of the Criminal Code pertinent to the present case, in so far as relevant, read as follows:

General Part - Title one – The criminal law
Article 3 (non-retroactivity of the criminal law)

“Nobody can be punished for a fact which, at the time it was committed, did not constitute an offence, or by a penalty harsher than the one provided for by the law in force at that time ...”

Title three – The crime
Chapter II – The crime, committed, attempted and failed
Article 24 (the committed offence) (reato consumato)

“A crime is committed when the commissive or omissive conduct (condotta commissiva o omissiva) of a perpetrator results in the occurrence of the damage or danger referred to in law in relation to such conduct.

The damage or danger result also from an omissive conduct when the perpetrator has a duty to avoid the occurrence of such damage or danger”

Chapter VI – Concurrent offences (concorso di reati)
Article 49 (concorso formale di reati)

“If with only one action (azione) or omission (omissione), a person found guilty, breaches different provisions of the criminal law or multiple times the same provision, he or she are to be punished...”

Article 50 (continuing offence) (reato continuato)

“Whosoever, through one or more actions (azioni) or omissions (omissioni), commits multiple violations of the same criminal provision, connected by the same criminal plan, shall be punished by the penalty provided for the most serious violation, increased as appropriate, taking into account the number and the entity of the offences, but not exceeding the maximum of the sentencing bracket (grado). However, if the most serious violation is already punishable by the maximum penalty, then the maximum penalty by which it can be increased is that of the maximum of the next sentencing bracket.”

Chapter VII – The cessation of an offence
Article 55 (time of commission of the offence)

“For the purposes of the period of limitation and of the period for the application of amnesty, an offence shall be considered as having been committed at the time the criminal activity ceased or on the day on which ... its continuation ceased, for a continuous or continuing offence (se trattasi di reato permanente o continuato).”

23.  In judgment no. 5 of 4 November 2015 (criminal proceedings no. 25/RNR/2015), the Third‑Instance Criminal Judge stated that the rule under Article 55 on the limitation period also applied for the purposes of the non‑retroactivity of a criminal provision and the retroactivity of more favourable criminal provisions.

Title four – Aiding and Abetting
Article 73 (aiding and abetting)

“Whosoever has aided and abetted, in whatever way, the commission of an offence is liable to the penalty provided for it ...”

Title five – Punishment and other measures
Article 81 (imprisonment)

“Imprisonment has the following degrees:

(3) from two to six years;

(4) from four to ten years.”

Article 82 (prohibitions)

“Prohibitions have the following degrees:

(3) from one to three years;

(4) from two to five years.”

Article 85 (daily fine)

“As to the daily fine (multa a giorni), the sum (of money) to be paid is provided by law with reference to a number of days between a minimum and a maximum. It is up to the judge to determine in the specific case the sum of money corresponding to one day of fine, on the basis of how much the person found guilty can save daily while living frugally and fulfilling the possible burdens for his family’s upkeep.

The daily fine has the following degrees:

(2) from ten to forty days;

(3) from twenty to sixty days.”

Special Part - Title IV – Chapter IV
(Crimes of public officials against the Public Administration)
Article 373 (bribery (corruzione)) (prior to 2008)

“(1) A public official who receives, for his own benefit or that of others, any undue profit or a promise of such in order to carry out an act (atto) contrary to the duties arising from his functions is to be punished by imprisonment and a prohibition on holding public office and exercising political rights of the fourth degree as well as by a fine of the third degree.

(2) The punishment shall be reduced by one degree if the act carried out was one arising from his functions ...

(4) The punishment indicated in the previous paragraphs shall also be applied to those who give or promise undue profit.”

24.  According to domestic legal literature pre‑dating the amendment, bribery inducing omission was covered by the old wording of Article 373 § 1 of the Criminal Code (direct bribery) (see Alvaro Selva, Commento al Codice Penale della Repubblica di San Marino, p. 430, Istituto Giudirico Sammarinese, Studi e Ricerche 3, 2007). According to the same legal literature, both before and after the amendments which have not affected Article 373 § 2 (that is, both 2007 and 2010 editions), a public official is deemed to have carried out an act of “indirect bribery” (Article 373 § 2) when he accepts an undue payment or the promise of an undue payment in order to carry out an act which falls within his official functions and in respect of which he can interfere and exercise influence. Thus, the act must be typical of the functions of the public official, and cannot be a discretionary act (see Alvaro Selva, Commento al Codice Penale della Repubblica di San Marino (revised edition), p. 597, Istituto Giudirico Sammarinese, Studi e Ricerche 3, 2010).

25.  Paragraph 1 of Article 373 of the Criminal Code, as amended by Article 79 § 1 of Law No. 92 of 17 June 2008, reads in so far as relevant as follows:

Article 373 (bribery (corruzione)) (post-2008)

“(1) A public official who receives, for his own benefit or that of others, any undue profit or a promise of such in order to omit or delay or after having omitted or delayed any duty pertaining to his office (function) (un atto del suo ufficio), or (ovvero) to carry out or to have carried out an act contrary to the duties arising from his functions, is to be punished by imprisonment and prohibition on holding public office and exercising political rights of the fourth degree as well as by a fine of the third degree.”

(2) The punishment shall be reduced by one degree if the act carried out was one arising from his functions ...

(4) The punishment indicated in the previous paragraphs shall also be applied to those who give or promise undue profit.”

26.  Article 96 of Law No. 92 of 17 June 2008 reads as follows:

Article 96 (entry into force)

“The present law shall enter into force three months after its official publication.”

C.  Relevant domestic case-law

27.  By a final judgment no. 26 of 2013 (criminal proceedings no. 765/RNR/2010) in a case concerning ongoing money laundering, the Judge of Criminal Appeals stated that a continuing offence had to be considered as a single offence (at least in respect of the effects it had). According to the judge, that opinion had been confirmed by the fact that in San Marino, as distinct from other systems of criminal law which provided for continuing offences (for instance, in Italy), a continuing offence could be constituted only from multiple violations of the same criminal provision (and not by the commission of different offences). Moreover, while the relevant Article of the Italian Criminal Code provided for the existence of the same criminal scheme (medesimo disegno criminoso), in San Marino the acts had to be connected by the same criminal plan (medesimo programma criminoso). Behaviour constituting a continuing offence had to be considered by the accused as the execution of a deliberate, previous plan, while acts which had not been regarded by the accused as being components of the plan should not be covered by the classification of a continuing offence.

28.  In final judgment no. 16 of 1991 the Judge of Criminal Appeals stated:

“In doctrine there is no agreement on the nature of a continuing offence. Some consider it as a legal fiction (fictio iuris) that the legislature has provided for in order to [determine] the punishment (quoad pooenam) and for other effects, for example the determination of the competence of a judge. Others consider it as a legal instrument inspired by the principle of favor rei, with the consequence that it is appropriate to rely on this principle in order to decide when different violations must be considered as a single offence or as multiple offences. The Italian doctrine is inclined to consider a continuing offence as a fictitious legal unit (unità giuridica fittizia), inspired by the principle of favor rei and relevant in order to determine the punishment and for other particular purposes (inter alia, the calculation of the limitation period of a crime and the territorial competence), while, in general terms, single violations retain their autonomy and must be considered as distinct offences ... the legislative unification represented by a continuing offence leaves the structure of each offence intact and completely autonomous, with many different and distinct events being considered as a single offence and as criminal activity over a long period. Consequently, each offence is subject to the limitation period provided for it by law. Such limitation period starts running from the cessation of the criminal activity”.

THE LAW

ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION

29.  The applicants complained that the law had been applied retroactively to their disadvantage, as they had been found guilty of bribery in accordance with the wording of a criminal provision that had not yet been in force at the time of the facts. They pointed out that the present case had been the first criminal proceedings for corruption in the small Republic of San Marino. They invoked Article 7 of the Convention, which reads as follows:

“1.  No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

30.  The Government contested that argument.

A.  Admissibility

31.  The Court notes that the complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

(a)  The applicants

32.  Relying on the Court’s case-law (in particular, Del Río Prada v. Spain [GC], no. 42750/09, ECHR 2013; Coëme and Others v. Belgium, nos. 32492/96 and 4 others, § 145, ECHR 2000‑VII; and Başkaya and Okçuoğlu v. Turkey [GC], nos. 23536/94 and 24408/94, §§ 42‑43, ECHR 1999‑IV), the applicants observed that their conviction had violated Article 7 of the Convention since at the time of the facts, the offence of bribery inducing omission had not been clearly covered by the domestic provision on corruption. Therefore, according to the applicants, such provision had been applied retroactively and, by analogy, to their disadvantage.

33.  In reply to the Government’s submissions, the applicants argued that the Government were wrong in considering that the offence had been committed on 1 January 2010 and that they had misinterpreted Article 55 of the Criminal Code. They pointed out that the relevant provision came under Chapter VII of the Criminal Code, which was entitled “Extinction of the crime”. Therefore it was applicable only in order to calculate the limitation period of an offence and not to establish the date on which an offence had been committed. The applicants referred to relevant domestic case‑law concerning continuing offences (see paragraph 27 above). In the light of such case‑law, the applicants argued that each single episode of corruption, even if it was considered as part of a continuing offence, maintained its autonomy. Thus, in order to identify the provision and the penalty to apply to the case, each episode of corruption which had been attributed to the applicants had to be considered as having been committed on the date of the acceptation of each promise, or on the date of receipt of each payment (or gift) if such receipt had been prior to the promise (see Relevant domestic law, paragraph 25 above). In the opinion of the applicants, even the Judge of Criminal Appeals had confirmed such interpretation (see paragraph 18 above).

34.  Thus, according to the applicants, the facts committed prior to the entry into force of the relevant amendments did not constitute an offence under domestic law and the applicants should have been acquitted for their conduct before that date (23 September 2008).

35.  The applicants shared the Government’s opinion that both, the old version and the new version of the provision on bribery, provided for the same penalty. They argued, however, that the type (based on the relevant definition) of punishable conduct (which, also according to the Government, was more specific in the wording of the law following the amendment) should have determined the application of a more lenient global penalty (than the one imposed on them), given that some of the alleged episodes of corruption (namely, those committed prior to the entry into force of the amendment) had not constituted a crime.

(b)  The Government

36.  The Government denied that the new formula of Article 373 of the Criminal Code had been applied retroactively to the applicants’ detriment. They submitted that the amendment to Article 373 of the Criminal Code had entered into force on 23 September 2008 (see paragraph 25 above), whereas the conduct constituting an offence had persisted until 1 January 2010 (see paragraph 10 above). Thus, in the opinion of the Government, there had not been a retroactive application of the law. The Government referred to Articles 50 and 55 of the Criminal Code concerning continuing offences (see paragraph 22 above). Pursuant to Article 50, the criminal conduct of the applicants, constituting violations of the same criminal provision and being linked by the same criminal plan, had been characterised as a continuing offence. Pursuant to Article 55, in the event of a continuing offence, the latter had to be considered as having been committed until the last criminal act had been carried out, namely 1 January 2010 (see paragraph 10 above). In that light, the amended version of the relevant law on corruption, resulting from a combined reading of Articles 50, 55 and 373 of the Criminal Code, was, in the Government’s view, the only applicable law in the instant case.

37.  In any event, the conduct of the applicants had never been considered by the domestic courts to be mere acts of omission, but rather as conduct aimed at allowing B.’s de facto companies to avoid sanctions, thus as acts of commission. As a result, the amendment had not had any practical effect on the position of the applicants. Referring, in particular, to the first‑instance judgment, the Government pointed out that the judge had stated that the conviction had been based on the fact that the applicants had used their discretionary powers in a distorted way, thus constituting the offence of direct bribery under Article 373 § 1 (see paragraph 13 above), namely conduct which had been contrary to their official duties. So, even if the applicants’ argument (namely, that it was necessary to consider each of their actions or omissions individually) had been accepted by the domestic courts, there would not have been any significant change as regards the position of the applicants, owing to the fact that the acts carried out before 23 September 2008 had also been acts of commission.

38.  In addition, since the penalties had remained unchanged in the two formulas of Article 373, the domestic courts, when applying the punishment, had had no need to make a distinction between the acts performed before and after the amendment of the provision. The Government considered that both, the old and the new formula of Article 373 of the Criminal Code, provided for the same penalty. The difference between the two versions of the provision lay solely in the fact that a more specific definition of the punishable conduct (specificazione della condotta punibile) had been provided. Thus, in the Government’s view, even assuming that the domestic courts had applied the old version of Article 373 instead of the new one, the punishment would have been exactly the same. Contrary to the applicants’ allegations, the Government argued that the acts ascribed to the applicants had already constituted an offence under the pre‑existing legislation.

2.  The Court’s assessment

(a)  General principles

39.  The Court reiterates that Article 7 of the Convention is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage (concerning the retrospective application of a penalty, see Welch v. the United Kingdom, 9 February 1995, § 36, Series A no. 307‑A; Jamil v. France, 8 June 1995, § 35, Series A no. 317‑B; Ecer and Zeyrek v. Turkey, nos. 29295/95 and 29363/95, § 36, ECHR 2001‑II; and Mihai Toma v. Romania, no. 1051/06, §§ 26-31, 24 January 2012). It also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) (see Kokkinakis v. Greece, 25 May 1993, § 52, Series A no. 260-A). While it prohibits in particular extending the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy (see Coëme and Others, cited above, § 145; for an example of the application of a penalty by analogy, see Başkaya and Okçuoğlu, cited above, §§ 42‑43).

40.  It follows that offences and the relevant penalties must be clearly defined by law. This requirement is satisfied where the individual can know from the wording of the relevant provision, if need be with the assistance of the courts’ interpretation of it and after taking appropriate legal advice, what acts and omissions will make him criminally liable and what penalty he faces on that account (see Cantoni v. France, 15 November 1996, § 29, Reports of Judgments and Decisions 1996‑V, and Kafkaris, v. Cyprus [GC], no. 21906/04, § 140, ECHR 2008).

41.  The Court must therefore verify that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a legal provision which made that act punishable, and that the punishment imposed did not exceed the limits fixed by that provision (see Coëme and Others, cited above, § 145; Achour v. France [GC], no. 67335/01, § 43, ECHR 2006‑IV; and Del Río Prada v. Spain [GC], no. 42750/09, § 80, ECHR 2013).

42.  The Court reiterates that the legal basis of a crime has to be sufficiently clear and foreseeable, but that, to some extent, the gradual interpretation of the meaning and of the scope of an offence operated by the internal courts can be taken into account. The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain (see Kafkaris, cited above, § 141). Whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances (see Scoppola v. Italy (no.2) [GC], no. 10249/03, § 100, 17 September 2009, and Del Río Prada, cited above, § 92).

43.  It is not the Court’s task to substitute itself for the domestic courts as regards the assessment of the facts and their legal classification, provided that these are based on a reasonable assessment of the evidence (see Rohlena v. the Czech Republic [GC], no. 59552/08, § 51, ECHR 2015). Furthermore, in any system of law it is for the domestic courts to interpret the provisions of substantive criminal law in order to determine, by reference to the structure of each offence, the date on which, all the requirements of the offence being present, a punishable act was committed. The Convention may not act as a bar to this kind of judicial interpretation, provided that the conclusions reached by the domestic courts are reasonably foreseeable within the meaning of the Court’s case‑law (see Rohlena, cited above, § 58).

44.  The Court reiterates that in assessing the foreseeability of a judicial interpretation, no decisive importance should be attached to a lack of comparable precedents (compare K.A. and A.D. v. Belgium, nos. 42758/98 and 45558/99, §§ 55‑58, 17 February 2005). Where the domestic courts are called on to interpret a provision of criminal law for the first time ‑ as in the present case ‑ as opposed to cases concerning a reversal of pre‑existing case‑law, an interpretation of the scope of the offence which is consistent with the essence of that offence must, as a rule, be considered as foreseeable (see Jorgic v. Germany, no. 74613/01, § 109, ECHR 2007‑III). In this regard, the Court reiterates that Article 7 of the Convention is not incompatible with judicial law‑making and does not outlaw the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (see Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 821, 25 July 2013).

(b)  Application to the present case

45.  Turning to the instant case, the Court notes that the applicants did not complain that the domestic courts had defined their case as a continuing offence (see, a contrario, Rohlena, cited above, § 44) which, moreover, in their case had not led to a more severe punishment (see paragraph 16 above). Rather, they argued that their conduct prior to the 2008 amendments did not amount to an offence at all, and thus they should not have been punished also for the acts committed prior to 2008. Thus, the Court notes that even accepting that Article 50 of the Criminal Code obliged the domestic courts to apply the post‑2008 amendment in cases of a continuing offence, the application of the concept of a continuing offence was of no consequence to the applicants’ case because the law both before and after the amendments covered the same offence and was foreseeable. The Court will thus revert to the matter, which was referred to in the applicants’ observations at a later stage if necessary.

46.  The Court observes that the applicants were charged with the continuing offence of bribery, pursuant to Articles 50, 73 and 373 of the Criminal Code. In particular, they were charged with periodically receiving sums of money in cash in order to omit to carry out their duties, namely by failing to inspect the construction sites of the companies controlled by B. and by abstaining from sanctioning violations and irregularities found in such companies (see paragraph 10 above).

47.  The applicants claimed that the conduct ascribed to them constituted bribery inducing omission, which had only become an offence incorporated in Article 373 § 1 in 2008, whereas they had also been accused in relation to their conduct preceding that date.

48.  The Court starts by noting that the charges against the applicants referred to the offence of bribery under Article 373 in general, which includes both direct bribery, namely, prior to 2008, payment to carry out an act contrary to the duties arising from the functions of a public official (Article 373 § 1), as well as indirect bribery, namely payment for the carrying out of acts arising from the functions of a public official ‑ a lesser offence arising out of mitigating circumstances according to domestic doctrine (see paragraph 24 above). It was thus for the national judge to classify their conduct as falling under one or more of the said sub‑paragraphs. In this connection, the Court refers to its general principles set out at paragraph 43 above concerning the assessment of facts and their legal classification. However, in the present case, it remains for the Court to examine whether there was a contemporaneous legal basis for the applicants’ conviction and that the result reached by the relevant domestic courts was compatible with Article 7 of the Convention (compare the approach taken in Rohlena, cited above, § 52).

49.  The Court notes that the first-instance judge considered that the conduct ascribed to the applicants had amounted to refraining from exercising their discretionary powers or doing so in an aberrant way in exchange for money, and considered that prior to the 2008 amendments such conduct constituted direct bribery and had been covered by Article 373 § 1 of the Criminal Code (see paragraph 13 above). Thus, the first‑instance judge characterised bribery inducing omission as a form of direct bribery, namely a type of bribery in which a corrupt public official received an undue payment in order to carry out an act contrary to the duties arising from his or her office. On this basis, the Court notes that the first‑instance judge implicitly considered that, with respect to the offence of bribery, omissions had to be considered as acts and that there was therefore no need to distinguish between omissions and commissions, both being acts contrary to the duties arising from a public official’s office.

50.  On appeal, the Judge of Criminal Appeals stopped short of explicitly characterising the applicants’ conduct as bribery inducing omission, but held that, even if it were so, before the 2008 amendments bribery inducing omission had been covered by Article 373 § 2. Nevertheless, the Judge of Criminal Appeals considered that this was not the case, as the applicants had been paid also to carry out acts which were contrary to their official duties, which was conduct covered by the “old” Article 373 [§ 1].

51.  The Court notes that despite the fact that the first and second‑instance courts disagreed as to whether bribery inducing omission had been covered by sub‑paragraph 1 or 2 of the provision dealing with the general crime of bribery prior to 2008, both those courts characterised the applicants’ criminal conduct as being acts contrary to their official duties, which is in the Court’s view a reasonable assessment. Thus, the same legal basis served for the applicants’ conviction in both domestic judgments, namely Article 373 § 1 of the Criminal Code, as it stood both prior to the 2008 amendments and thereafter.

52.  The Court finds that irrespective of whether they are characterised as acts of omission or acts of commission – a prerogative of the deciding judges – the acts committed by the applicants were carried out contrary to their duties and were considered by all the entities that pronounced themselves on the matter to be covered by Article 373 § 1 of the Criminal Code, both before and after the amendments.

53.  The Court recognises that the applicants’ case had no precedents, being the first criminal proceedings for bribery ever instituted in San Marino (see paragraph 29 above) and in this connection, refers to its general principles set out in paragraph 44 above.

54.  In assessing whether the domestic courts’ interpretation of the crime of bribery in the present case could reasonably have been foreseen by the applicants at the material time, the Court notes that both the old version and the new version of Article 373 § 1 of the Criminal Code of San Marino defined the concept of “bribery” in similar terms. Those provisions explicitly referred to the receipt of undue profit or a promise of such in order to carry out an act contrary to the duties arising from the functions of a public official. The Court has no doubt that the applicants were aware that payment to avoid carrying out their duties by failing to inspect construction sites and abstaining from sanctioning violations and irregularities was conduct which amounted to acts that were contrary to their duties and thus that they would constitute the offence of bribery, whatever its qualification. Thus, the Court considers that the consequences of failure to comply with the relevant criminal law were adequately foreseeable, not only with the assistance of legal advice, but also as a matter of common sense (see, mutatis mutandis, Moiseyev v. Russia, no. 62936/00, § 241, 9 October 2008 and, a contrario, Pessino v. France, no. 40403/02, §§ 36-37, 10 October 2006). The domestic courts’ interpretation was thus consistent with the essence of that offence.

55.  Lastly, as the Court has noted above (see paragraph 53), the offence of bribery (also in the old wording of the relevant law) comprised both acts of omission and acts of commission. Whether one or both types of acts were found to have been committed in the present case had no impact on the characterisation attributed to those acts in law, namely as falling under Article 373 § 1. Given that the legal characterisation was identical in both situations, the Court does not discern any legal basis to assume that in either case a heavier penalty would be imposed (see, mutatis mutandis, Moiseyev, cited above, § 242).

56.  Having regard to the findings that the applicants’ conduct was covered by both the old and the new formula of the law, that this was forseeable, and that both provisions carried the same penalty, the Court considers that the fact that the offence at hand was characterised as a continuing offence is irrelevant to the present case. Thus, it does not find it necessary to address the parties’ submissions in that respect.

57.  In the light of the above, the Court finds that there has not been a violation of Article 7 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the applications admissible;

2.  Holds that there has been no violation of Article 7 of the Convention.

Done in English, and notified in writing on 10 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel CamposLinos‑Alexandre Sicilianos
RegistrarPresident

Full & Egal Universal Law Academy