Published on 18 July 2022
SECOND SECTION
Application no. 25189/21
Vincenzo Secondo MELANDRI
against San Marino
lodged on 7 May 2021
communicated on 27 June 2022
SUBJECT MATTER OF THE CASE
The application concerns criminal proceedings against the applicant, in 2012 in San Marino, on charges of continuous money laundering (Articles 50 and 199 bis of the Criminal Code (CC)). The first charge concerned transfers of money resulting from inter alia the use of fictitious invoices to obtain reimbursements to the detriment of the Italian State, amounting to more than 8 million euro (EUR), including the eventual opening in 2011 of a life insurance holding around EUR 6.8 million. The second charge related to similar behaviour by the applicant in conjunction with a certain C. in relation to the sum of EUR 310,000. The sum held in life insurance as well as other bank assets in the applicant’s name in San Marino had been subject to a precautionary seizure as of 2013.
By a judgment of 10 January 2019 the applicant was found guilty of both charges (the first charge in relation to acts committed after the amendments of 2013 to Article 199 bis of the CC), and the confiscation (under Article 147 of the CC) of the money under precautionary seizure was put in place. On appeal, by a judgment of 6 November 2020 filed in the relevant registry on 11 November 2020, the applicant was acquitted of the second charge, and the term of imprisonment reduced, but the rest was confirmed, including the confiscation in toto. In relation to the first charge, however, the Court of Appeal held that the applicant had committed self-laundering, as per law no. 99/2010 (which provided that the relevant exception in relation to cases of aiding and abetting under Article 199 bis of the CC did not apply in relation to the offence of fabricating fictitious invoices), as from 10 March 2010, i.e. the date of its entry into force, until 27 December 2011.
On 20 December 2020 the confiscation order was issued.
The applicant complains about the lawfulness and the proportionality of the confiscation, inter alia given that he was acquitted of the second charge, and that he had been unable to defend himself since he had been charged with laundering but ultimately found guilty of self-laundering.
QUESTIONS TO THE PARTIES
1. Bearing in mind the different amendments to Article 199 bis of the Criminal Code, was the applicant informed in sufficient detail of the nature and cause of the accusation against him, with a view to preparing an adequate defence, as required by Article 6 §§ 1 and 3 (a) and (b) of the Convention?
2. Was the confiscation of the applicant’s property in the present case in conformity with Article 1 of Protocol No. 1? In particular, was it in accordance with the law? which subsection of Article 147 of the Criminal Code applied in the present case? Was it proportionate, particularly bearing in mind that the applicant had been acquitted of the second charge? What procedural safeguards were available to the applicant in this context?