Published on 23 June 2025
FIFTH SECTION
Application no. 20912/24
Virginia GRIMALDI and Vito PARISI
against San Marino
lodged on 12 July 2024
communicated on 2 June 2025
SUBJECT MATTER OF THE CASE
The application concerns criminal proceedings for money laundering.
The second applicant was prosecuted for corruption and unlawful interference in public procurement, in Italy, in the 1990s. Those proceedings were discontinued in 2007 as the offences had become time barred.
In 2016, in San Marino, the applicants (a married couple of Italian nationality) were prosecuted for the charge of “having, together, in executing a criminal plan, transferred, concealed and substituted illicit funds” (i.e. continuous offence under Article 50 of the Criminal Code “CC” and money laundering under Article 199bis of the CC, in cooperation, Article 73 of the CC) in relation to three cash deposits made into a San Marino bank account in 1992, 1993 and 2000 respectively (totalling 1,005,541.58 euros (EUR)) which were then, in part, subject to a number of other transactions (investments, transfers and withdrawals) between 7 October 1997 and 9 December 2015. On the latter date, during the investigation phase, EUR 604,132.27 which were still in the bank account had been seized by the authorities.
By a judgment of 5 September 2018, the first-instance judge (“CoL”) found the applicants guilty of the charges and sentenced them to four years and two months’ imprisonment, a fine of EUR 6,000 and a two-year interdiction from public office. Recalling Article 147 of the CC, as stood on 9 December 2015, providing for ‘direct confiscation’ and ‘confiscation by equivalent means’ with reference to money or other possessions, as well as its prior formulations providing for ‘confiscation by equivalent means’ limited to sums of money, it ordered the direct confiscation of EUR 604,132.27 which had already been seized, and a confiscation by equivalent means of up to EUR 536,280.89 (corresponding to the sums withdrawn/transferred and the interest accrued) in respect of the first applicant.
In particular, the judge found that, on the basis of the evidence submitted, the applicants had been unable to prove the licit origins of the sums originally deposited in San Marino in 1992 and 1993 which were therefore illicit, namely, resulting from the delinquent conduct of the second applicant in Italy. Conversely, the required level of proof had not been achieved to consider illicit the remaining sum deposited in 2020 despite the anomalous movements surrounding it. As to the first applicant, the judge considered that her deposits in 1992 and 1993 amounted to “transfers” of illicit funds; the subsequent transactions amounted to “transfer or substitution of those funds”; and the holding of those sums since 1992 as “concealment” (occultamento) of the funds. The permanent nature of the concealment and the further transfers justified the continuous offence charge. However, she could only be found guilty of money laundering in respect of the period of 4 January 1999 onwards (date when the crime of money laundering was introduced into the CC), and the consummation of the crime occurred thereafter[1]. As to the second applicant he was found guilty in respect of the period after 13 August 2015 given amendments to the law in connection with the abolishment of the privilege of self-laundering (i.e., the laundering by the perpetrator of the predicate offence).
The applicants appealed invoking inter alia a retroactive application of the law, considering that the offence had to be seen in its unity (with all material elements coexisting), and that since the conduct prior to 4 January 1999 could not amount to money laundering, neither could the subsequent conduct amount to it. They further challenged the assessment about the illicit origin of the funds and argued that that the first applicant should have benefited of a more favourable penalty (lex mitior) and that the confiscated sum had not been properly calculated both mathematically and in so far as the sums transferred prior to 1999 should not have been confiscated since she had not been found guilty in respect of that period.
By a judgment filed in the registry on 13 March 2024 the appeal court discontinued the case in relation to the second applicant as the offence had become time-barred and confirmed the rest of the judgment. Firstly, it considered that various transfers had been carried out by the first applicant after the introduction of the crime of money laundering on 4 January 1999; each transfer of funds amounted to the crime of money laundering, the plurality of acts thus sufficed to justify the continuous offence charge. Secondly, for the crime of money laundering it sufficed to establish that the origin of the funds was illicit based on all the relevant and concordant evidence which, in the present case, had been appropriately analysed by the first-instance judge who reached fitting conclusions. Lastly, the first applicant had obtained the lowest punishment and the confiscation had been properly mathematically calculated.
The first applicant complains under Article 7 of the Convention that, since, in 2021, “concealment” was held by the Constitutional Court to be an instantaneous act, she had been punished (namely, the direct confiscation) for concealing funds (the EUR 604,132.27) which had never been withdrawn or transferred from the time of their deposit (concealment) in 1992 until the introduction of the offence of money laundering on 4 January 1999.
She also complains under Article 7 that the law concerning punishment had been applied retroactively to her in relation to part of the confiscation by equivalent means, namely in connection with EUR 454,280.89 (out of the EUR 536,280), which concerned thirty transactions which had occurred prior to the enactment of the punishment of confiscation by equivalent means (Law no. 100/2013). Moreover, transactions amounting to around EUR 50,000 (out of the EUR 536,280) had occurred even prior to the entry into force of the offence of money laundering.
Under Article 1 of Protocol No. 1 to the Convention the first applicant complains that she had suffered an unlawful interference with her property (in light of the arguments set out under Article 7); that the courts had applied a reversed burden of proof and had failed to assess the arguments and evidence put forward by her.
Under Article 6 § 2 of the Convention the second applicant complains that the domestic courts attributed criminal guilt to him in relation to offences (corruption and unlawful interference in public procurement) in respect of which he had not been found guilty, in Italy.
QUESTIONS TO THE PARTIES
1. In so far as the first applicant was issued with an order for a direct confiscation of EUR 604,132.27 (sums deposited in 1992/1993 and not subject to any transfer thereafter), bearing in mind that the first applicant was only found guilty in relation to transfers occurring in the period following 4 January 1999, was she punished in the absence of a conviction, contrary to Article 7 of the Convention (see Varvara v. Italy, no. 17475/09, § 71, 29 October 2013)?
2. (a) In so far as the first applicant complained under Article 7 that the sum of EUR 454,280.89 subject to a confiscation by equivalent means concerned thirty transactions which had occurred prior to the enactment of the law providing for confiscation by equivalent means with reference to money or other possessions (Law no. 100/2013), did the applicant exhaust domestic remedies in this respect? In particular, was the argument raised on appeal?
(b) In what manner has the confiscation by equivalent means been implemented? The parties are requested to provide the Court with the relevant details of what has been confiscated in cash, immovable property, or other assets.
(c) In relation to the sum of EUR 454,280.89, resulting from thirty transactions occurring prior to the enactment of Law no. 100/2013 (providing for confiscation by equivalent means with reference to money or other possessions) what part of that sum concerned transactions occurring after the enactment of Law no. 28 of 2004, namely 7 March 2004, date when the law provided for confiscation by equivalent means limited to sums of money? If any part of the sum of EUR 454,280.89 concerned transfers between 4 January 1999 and 7 March 2004, has the first applicant been subject to a penalty in the absence of a law proscribing such punishment, contrary to Article 7?
(d) In so far as the first applicant was issued with an order of confiscation which included the sum of around EUR 50,000 (related to transactions that took place prior to the entry into force of the offence of money laundering in 1999), did this constitute a penalty for the purposes of Article 7 (see Sofia v. San Marino (dec.) no. 38977/15, § 64, 2 May 2017; Vannucci v. San Marino (dec.) no. 33898/15, § 40-42; and, conversely, Balsamo v. San Marino, nos. 20319/17 and 21414/17, § 61-65, 8 October 2019)? If so, bearing in mind that the first applicant was only found guilty in relation to the period following 4 January 1999, was she punished in the absence of a conviction, contrary to Article 7 (see Varvara, cited above, § 71)?
3. In relation to the confiscated sums mentioned in the preceding questions was the interference with the first applicant’s possessions in conformity with the lawfulness requirement of Article 1 of Protocol No. 1?
4. (a) In respect of the second applicant, was Article 6 § 2 of the Convention in its second limb applicable to the criminal proceeding in San Marino? In particular, was there a link between the concluded criminal proceedings in Italy (concerning corruption and unlawful interference in public procurement) and the subsequent proceedings in San Marino (concerning money laundering) (see for general principles Nealon and Hallam v. the United Kingdom [GC], nos. 32483/19 and 35049/19, § 122, 11 June 2024) bearing in mind the cross-border element, the conduct and offences at issue in each case, and any other relevant factors (compare Diamantopoulos v. Greece (dec.), no. 68144/1, § 28, 8 March 2022; Farzaliyev v. Azerbaijan, no. 29620/07, § 49-51, 28 May 2020; and Martínez Agirre and Others v. Spain (dec.) no. 75529/16 and 79503/16, § 46, 25 June 2019)?
(b) If so, in so far as the applicant complained about specific statements made by the first-instance judge, did the applicant raise a complaint to that effect before the Court of Appeal, allowing the latter to set aside any problematic wording of the imputed statements (compare Benghezal v. France, no. 48045/15, § 36, 24 March 2022, and A. v Norway (dec.) no. 65170/14, § 40-41, 29 May 2018)? If so, was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case, in particular given the statements made by the first-instance judge (compare Pasquini v. San Marino (no. 2), no. 23349/17, § 64, 20 October 2020)?
(c) Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case in the judgment of the Court of Appeal in respect of the second applicant? Where there any specific statements which could have been understood as imputing guilt to him for offences in respect of which he had been prosecuted, but were eventually declared time-barred, in Italy?
[1] In reference to the moment when the continuous offence came to an end.