FIRST SECTION
DECISION
Application no. 27803/16
Fabrizio Stefano PIRAS
against San Marino
The European Court of Human Rights (First Section), sitting on 27 June 2017 as a Chamber composed of:
Linos-Alexandre Sicilianos, President,
Kristina Pardalos,
Aleš Pejchal,
Krzysztof Wojtyczek,
Pauliine Koskelo,
Tim Eicke,
Jovan Ilievski, judges,
and Abel Campos, Section Registrar,
Having regard to the above application lodged on 10 May 2016,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Fabrizio Stefano Piras, is an Italian national who was born in 1965 and lives in Moscow. He was represented before the Court by Mr A. Pagliano, a lawyer practising in Naples.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Criminal proceedings No. 25/2015/RNR
3. On 9 February 2015 the Financial Intelligence Agency (Agenzia di Informazione Finanziaria, hereinafter “the AIF”), the national authority responsible for combatting money laundering, ordered the temporary freezing of bank accounts (mentioned below at paragraph 5) at three named San Marinese banks, which were traced back to the applicant.
4. Pursuant to the relevant law, the AIF informed the investigating judge (Commissario della Legge Inquirente) of the freezing order and provided him with all the information in its possession. A criminal investigation was thus opened against the applicant and eleven others for the continuous offence of money laundering under Articles 50, 73 and 199 bis of the Criminal Code.
2. The seizure decision
5. By a decision of 19 February 2015, served on the applicant’s counsel on 20 April 2015, the investigating judge, relying on Article 58 bis and ter of the Code of Criminal Procedure (see relevant domestic law below) preventively seized, inter alia, the following assets, which were all traced back to the applicant: (i) bank account No. 11/0111344; (ii) bank account No. 11/01/11677; (iii) securities portfolio (dossier titoli amministrati) No. 11/71/00042; (iv) bank account No. 11/81/02166; (v) the financial product (prodotto finanziario) No. 11/46/01034; and (vi) the insurance product (prodotto assicurativo) No. 11/84/00147. The judge also ordered the seizure of any credit balance or other assets (including any safe deposit boxes) traced back to the accused persons. A judicial notice was issued on the same day by the investigating judge and served on the applicant’s legal counsel.
6. According to the prosecution, the accused persons had between 2008 and 2011 laundered assets which were the product of fraudulent bankruptcy committed by a certain G. (one of the co-accused) to the detriment of various Italian companies (company P., company C. and others), which had been traced back to G. and of which he had been the director and liquidator. Other laundered assets were the product of other offences (such as embezzlement, fraud and tax fraud), also committed by G. The laundering had been carried out in twenty-two different episodes (all set out precisely in the judicial notice) and the applicant had taken part in fifteen of them. In particular, the accused persons had carried out several bank operations, consisting, inter alia, of repeated withdrawals and deposits of money, the issuing and cashing of cheques on behalf of fictitious persons or the other co-accused persons and the use of bank accounts (sometimes held by other co-accused persons, by relatives or foreign companies) to transfer money within the country or abroad for the purposes of concealing its criminal origin.
7. Except for the assets related to the alleged fraudulent bankruptcy by G., the alleged criminal origin of the other assets was indicated in the seizure decision by means of references to the legal classification of some of the offences allegedly committed by G. The second page of the decision specified offences such as “bankruptcies, embezzlement, fraud and tax fraud”, while page 42 gave more generic indications such as “acts of fraud and tax offences”. The decision gave no further details regarding the factual basis for such predicate offences.
8. In the detailed seizure decision, the investigating judge reconstructed in precise terms all the above-mentioned bank operations and expressly referred, inter alia, to the applicant’s financial situation. He noted that a customer due diligence test carried out on 19 September 2008 by one of the banks involved had shown that the applicant did not have any administrative role or shareholdings in any Italian companies which could produce any income. According to the judge, after that period, from 15 February 2013, the applicant had been a partner and advisor in a named management consultancy firm. He had not carried out any other business or professional activities and was not on the list of professionals who had received legitimate payments from the bankrupt companies, P. and C. In the light of that information, the judge considered that the applicant’s financial resources were not consistent with the financial, business or professional activities he had declared he carried out.
9. Furthermore, the investigating judge considered that there had existed a periculum in mora (danger in delay) in not issuing a seizure order, as the consequences of the offence could have been aggravated or prolonged. Indeed, the assets could have been withdrawn and/or concealed by the accused persons, thus frustrating the possibility for confiscation at the end of the proceedings. Moreover, the laundering was allegedly still ongoing at the time of the AIF’s temporary freezing order. By the same decision the judge also summoned the applicant for questioning.
3. Complaint against the seizure decision to the Judge of Criminal Appeals
10. On 4 May 2015 the applicant and two other accused persons represented by the same counsel lodged a complaint against the seizure decision with the Judge of Criminal Appeals (Giudice d’Appello Penale) under Article 56 of the Code of Criminal Procedure.
11. The applicant primarily requested the lifting of the decision in toto or alternatively a reduction in the amount of money seized to 280,000 euros (EUR). The grounds he gave included the fact that: (i) the judge had violated the principle of nullum crimen sine lege since he had applied a wording of Articles 58 bis and ter of the Code of Criminal Procedure which had been introduced only in 2013 and had therefore not yet been in force at the material time. According to the applicant, prior to the amendments introduced by Law No. 100 of 2013, the domestic law had not provided for a precautionary seizure with the aim of the future confiscation of items other than the price, product or profit of a crime or which had been used to commit a crime – the seizure had therefore been disproportionate; (ii) the alleged offences at the origin of the laundered money had been indicated by the investigating judge in a very generic way – he argued that such a lack of specifics was not sufficient to provide one of the prerequisites for the seizure, namely the fumus delicti (the presumption of a sufficient legal basis); (iii) the only predicate offence which had been mentioned in sufficiently precise terms in the seizure decision had been that of fraudulent bankruptcy to the detriment of company P., for which G. had been found guilty, at first-instance, in Italian criminal proceedings. However, in that connection and in relation to his alternative request, the applicant noted that the Italian court, in Udine, had found that G. had taken EUR 670,000 from the assets of company P. (which had then gone bankrupt) and that only a part of that money (EUR 280,000) had then been transferred to San Marino. Thus, there was a disproportion between the money seized (approximately EUR 1,650,000) and the money having an ascertained (or at least a precisely indicated) criminal origin (EUR 280,000). The applicant argued that the judge had failed even to give a summary description of the alleged actions or factual background constituting such offences and that such lacunas had made it impossible for him to adequately defend himself.
12. By a decision of 25 May 2015, served on the applicant on 28 May 2015, the Judge of Criminal Appeals rejected his requests.
13. In particular, the judge held that there had been no violation of the principle of nullum crimen sine lege since that rule was applicable only to substantive criminal provisions not procedural ones. The latter were subject, instead, to the tempus regit actum principle (the legality of an act can only be judged according to the law in effect at the time of the act).
14. According to the judge, preventive seizure (either probative or preventive with the aim of eventual permanent confiscation) could be ordered regardless of a final finding of guilt concerning an offence. Such a measure was aimed at preventing the commission of further offences or making sure that future measures were not frustrated. Moreover, contrary to the opinion of the defence, preventive seizure had been applicable at the material time (before the amendment of 2013) as section 39 of Law No. 134 of 2010 had expressly provided for it.
15. As to the difference between the sums seized and the alleged product of the offence, the court stated that Articles 58 bis and ter of the Code of Criminal Procedure did not set any limits on seizures or state that the seized amount had to be limited to funds belonging to the accused, or to the price, product, or profit of an offence. According to the judge, a proportionality test had to be carried out only at the stage of applying permanent confiscation following a finding of guilt, not at the stage of precautionary measures, given the different purpose of the measures.
16. With regard to the alleged general nature of the reference to the offences which had been at the origin of some of the assets, it had already been established in domestic case-law that in order to find someone guilty of money laundering it was not necessary to determine the type of predicate offence, the perpetrator, or the victim. It sufficed instead to have evidence of the criminal origin of assets which had been transferred, concealed or substituted – thus the burden of proving the illicit origin was satisfied if such an origin emerged clearly from a logical and coherent interpretation of the evidence. Hence, the investigating judge’s reasoning had sufficed for applying the seizure order since he had described in detail the bank operations carried out by the accused – the suspicious and unreasonable complexity of the operations, the relevant amount and their lack of transparency – elements which had spoken for themselves. Moreover, the investigating judge had highlighted the close relations between G. (the person who had allegedly collected the funds) and all the other accused persons and indicated the respective role of each in carrying out the laundering.
4. Complaint against the seizure decision to the Third-Instance Criminal Judge
17. On 24 June 2015 the applicant lodged a complaint with the Third‑Instance Criminal Judge (Terza Istanza Penale), reiterating his earlier submissions and requests. In addition, he complained that the judge had reversed the burden of proof in connection with the lack of a precise indication of the fumus delicti in the seizure decision.
18. On 7 September 2015 the Attorney General (Procuratore del Fisco) filed submissions against the applicant’s appeal.
19. By a decision of 4 November 2015, served on 12 November 2015, the judge rejected both of the applicant’s requests. The judge stated that third-instance criminal proceedings were only interim proceedings aimed solely at reviewing the legality of precautionary measures and not the merits of a case. They could not be regarded as a sort of preliminary assessment of an accused’s guilt on criminal charges (since such an assessment was for trial courts). When a Third-Instance Criminal Judge was called on to review the legality of a precautionary measure, the judge had to assess the existence of fumus delicti, namely the plausibility of the investigator’s suspicions (ipotesi investigativa) concerning the commission of an offence and the possibility to trace it to the accused. The judge also had to review whether the substantive provisions that had been applied reflected the factual circumstances described in the notice of the offence (notizia di reato) and whether there had been a correct application of the procedural provisions concerning the admissibility and the assessment of evidence. In addition, the judge had to check whether the rights and duties of the parties had been adhered to; ensure that the requirements and limits of the measure had been correctly applied; and ascertain the existence of adequate reasoning justifying the measure.
20. The judge found that the submissions related to the existence of the fumus delicti, the reversal of the burden of proof and the problem of the assessment of the criminal origin of the assets were inadmissible on the grounds that they concerned the merits of the case and not the legality of the procedure.
21. After a detailed examination of the evolution of the provisions concerning seizures in the domestic law, the judge found no violation of the nullum crimen sine lege principle in the case or, in particular, of the principle of the non-retroactivity of criminal provisions. Moreover, the judge had not had to find any periculum in mora or make any other consideration concerning the accused’s wealth, his personal situation or financial needs, in order to apply a seizure order with the aim of future confiscation.
22. As to any lack of proportion in the seizure, the judge reiterated that the relevant Articles of the Code of Criminal Procedure applied by the investigating judge (Article 58 bis and ter) did not set any limits and the seizure order had therefore been in accordance with the law.
23. The judge also dismissed all the other grounds of appeal. In conclusion, he held that the investigating judge had not made any mistakes in applying or interpreting the relevant laws or in using his powers of discretion in his assessment. The seizure had therefore been necessary, inevitable and proportionate.
B. Relevant domestic law and practice
1. The Criminal Code
24. The offence of money laundering, Article 199 bis of the Criminal Code, reads, in so far as relevant, as follow:
“(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), and 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).”
2. Law No. 134/2010
25. Sections 38 and 39 of Law No. 134 of 26 July 2010, which were applicable until amendments to the Code of Criminal Procedure in 2013 (see paragraph 26 below), in so far as relevant, read as follows:
Section 38 (Probative seizure)
“(1) The Commissario della Legge shall by a reasoned decision order the seizure of the corpus delicti and of items pertaining to a crime (cose ad esso pertinenti) which he deems necessary for the establishment of the facts.
(2) Items on which or through which the crime has been committed, and items which constitute the product, profit or price of the crime, shall be considered corpus delicti.
(3) The judicial authority or the judicial police (Polizia Giudiziaria) can examine and make a copy of acts, documents, mail, data and information contained in the computer software of financial institutions and seize acts, documents, mail, securities, funds, sums of money and all other items, even if they are contained in safe deposit boxes, when they have good reason to believe that such things pertained to the crime even if [such things] do not belong to the accused or are not registered in his name.”
Section 39 (Precautionary seizure)
“(1) The Commissario della Legge shall by a reasoned decision order the seizure of items pertaining to a crime if the consequences of such a crime could be aggravated or prolonged or where the commission of other crimes could be facilitated.
(2) The Commissario della Legge may also order the seizure of items for which confiscation is allowed, as well as things to which those items may have been transformed or converted, and of things with which they may have been merged (delle cose a cui sono state mescolate) and [the seizure] of the profits obtained therefrom.”
3. The Code of Criminal Procedure
26. The provisions of Law No. 134/2010 were replaced by Articles 58 bis and 58 ter of the Code of Criminal Procedure by means of section 13 of Law No. 100 of 29 July 2013. Article 58 bis and ter, concerning probative and precautionary seizures, are virtually identical to sections 38 and 39 of Law No. 134 of 26 July 2010. The only difference concerns precautionary seizure: whereas Law No. 134/2010 stated that the application of a preventive seizure with the aim of confiscation was not mandatory and depended on the judge’s discretion (“may order” - puo’ disporre), Law No. 100/2013 considered it as mandatory (“shall order” - dispone). Moreover, the latter provision also stated that judges must not only order seizure in cases that have a view to a “direct” confiscation, but also in those aimed at “confiscation by equivalent means” (confisca per equivalente).
27. Article 56 of the Code of Criminal Procedure, in so far as relevant, reads as follows:
“Decisions concerning coercive measures or seizures against persons or assets and their subsequent confirmation may be challenged before the Judge of Criminal Appeals by the accused or the Attorney General within ten days of notification or enforcement of the measure ...”
28. According to established domestic case-law (for example, the decision of 25 October 1993 by the Judge of Criminal Appeals in criminal proceedings no. 771/1993; decision of 21 June 1995 by the Judge of Criminal Appeals in criminal proceedings no. 771/1993; decision of 21 November 2000 by the Judge of Criminal Appeals in criminal proceedings no. 1186/1998; and the decision of 4 April 2001 by the Judge of Criminal Appeals in proceedings concerning letter of request no. 68/2000), a complaint under Article 56 of the Code of Criminal Procedure is inadmissible if the Judge of Criminal Appeals is asked to review in general terms all the activities carried out by the investigating judge during the investigation. A Judge of Criminal Appeals can only intervene during an investigation in the specific cases expressly provided for by law, namely in order to review decisions applying precautionary measures, searches and seizures or in the case of aberrant decisions.
4. Law No. 55/2003
29. Law No. 55 of 25 April 2003 sets out the procedure to challenge the legitimacy of precautionary measures, such as seizures.
30. According to section 24 (in the light of section 3 of Constitutional Law No. 144 of 2003), a third-instance judge is competent to decide such challenges and such a challenge does not suspend the enforcement of the measure. Section 25 states that such a challenge can be lodged by interested parties or the Attorney General within thirty days of notification of the seizure decision to the parties. The appeal is then sent to the relevant body, which allows the parties to make submissions within ten days.
COMPLAINTS
31. The applicant complained under Article 6 § 1 of the Convention that he had in general been denied the right to a fair trial during the investigation as a result of the failure to comply with relevant time-limits.
32. The applicant complained further under Article 6 § 1 of the Convention that the seizure decision had violated his right to a fair trial since: (i) the charges had not specified what behaviour had constituted the offences which had been at the origin of most of the assets allegedly laundered (apart from fraudulent bankruptcy, which had referred to a small part of the assets); (ii) the judge had not specified what kind of seizure he had applied (probative or preventive) as he had relied on both Articles of the Code of Criminal Procedure and the overlapping of the two kinds of seizure had rendered the legal basis of the seizure applied unclear; (iii) the specific reasons which had led to the issuing of the seizure order had not been mentioned in the seizure decision; and (iv) the mens rea of the predicate offences had not been clarified.
33. In addition, the applicant complained under Article 6 § 2 of a violation of the presumption of innocence.
34. Invoking Article 1 of Protocol No. 1 to the Convention, the applicant complained of a lack of legality and proportionality in the seizure decision. Moreover, he said that there had been a violation of the positive obligation of the State to grant him the possibility to defend himself against the seizure of his assets.
THE LAW
A. Article 6 § 1 of the Convention
35. The applicant complained under Article 6 § 1 of the Convention about the fairness of the investigation. The relevant provision reads, in so far as relevant, as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing by [a] ... tribunal ...”
36. The applicant complained under Article 6 § 1 of the Convention that both the investigation in itself and the classification period pertaining to it, had failed to comply with the time-limits provided by the relevant law. In addition, the judicial notice had been delivered to the applicant after the legal time-limit had already expired. In the applicant’s view, those factors had led to a violation of his right to defence.
37. The Court reiterates that according to its constant case-law the question of whether or not court proceedings satisfy the requirements of Article 6 § 1 of the Convention can only be determined by examining the proceedings as a whole, that is once they have been concluded (see, for example, Dimech v. Malta, no. 34373/13, § 43, 2 April 2015, and the case‑law cited therein).
38. The Court notes that the criminal proceedings against the applicant have not yet come to an end. Indeed, the applicant’s trial has not even started and the matter is still under investigation. It follows that this complaint must be declared inadmissible as being premature, in accordance with Article 35 § 1 of the Convention.
B. Article 6 § 2 of the Convention
39. The applicant complained under Article 6 § 2 of the Convention about a violation of the presumption of innocence. The relevant provision reads as follows:
“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
40. The applicant complained that the domestic courts had de facto applied a criminal sanction on him without trying him or finding him guilty of a criminal offence. In the applicant’s view, it was impossible to assess the proportionality of the measure without quantifying the precise sums of money which had had a criminal origin. In addition, the burden of proof had been reversed since he had been asked to demonstrate a coherent link between his income and the amount of the money seized. Moreover, in the applicant’s opinion, precautionary measures aimed at guaranteeing a criminal sanction (as is the case with seizure aimed at confiscation) was contrary to the presumption of innocence.
41. Irrespective of any other admissibility considerations, in particular those concerning the applicability of the provision invoked, the Court notes as follows: the applicant complained of an alleged lack of proportionality between the proceeds of the offence and the amount of money seized on the basis of the laws applied by the domestic courts, which he alleged had been applied to him retroactively. He complained to both the Judge of Criminal Appeals and the Third-Instance Criminal Judge of a violation of the nullum crimen sine lege principle in connection with that issue. He raised the argument about the reversal of the burden of proof in connection with his property rights, together with a reiteration of the argument about proportionality (see paragraphs 11 and 17 above). The applicant thus raised his complaints under Article 7 of the Convention and Article 1 of Protocol No. 1, however, none of them were put forward in the light of the presumption of innocence under Article 6 § 2. In the circumstances of the present case, it cannot be said that the same considerations would have applied irrespective of the provision invoked.
42. The Court reiterates that States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among many authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions, 1996‑IV, and Vučković and Others v. Serbia [GC], no. 17153/11, § 70, 25 March 2014). In that connection and in accordance with Article 35 § 1 of the Convention, the Court may only deal with an issue after all domestic remedies have been exhausted (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). A complaint submitted to the Court must thus first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits (see Micallef v. Malta [GC], no. 17056/06, § 55, ECHR 2009‑V).
43. In view of the way in which the applicant raised his complaints before the domestic courts, the Court considers that in so far as the applicant is complaining under Article 6 § 2 about having been subject to a penalty without trial, an alleged lack of proportionality between the proceeds of the offence and the amount of money seized, as well as the reversal of the burden of proof, he has not given the domestic authorities an opportunity to put matters right through their own legal system.
44. It follows that the complaint under Article 6 § 2 must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
C. Article 1 of Protocol No. 1 to the Convention
45. The applicant complained under Article 1 of Protocol No. 1 to the Convention that there had been an arbitrary interference with his possessions. He further complained under Article 6 § 1 about the seizure decision (see paragraph 32 above). Article 1 of Protocol No. 1 reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
46. The applicant alleged before this Court that there had been a violation of the State’s positive obligation to grant him the possibility to defend himself against the seizure of his assets, given that there was no provision in domestic law for a maximum time-limit for the duration of a seizure order. Moreover, the seizure decision had not contained any detailed information about the charges and no judicial authority had intervened in order to assess the credibility of the charges on the merits. Secondly, the applicant contested the legality of the interference as the seizure ordered by the investigating judge had been based on two different provisions (Articles 58 bis and ter of the Code of Criminal Procedure), which provided for three different kinds of seizure (probative, precautionary and preventive with the aim of confiscation). In the opinion of the applicant, the overlapping of such provisions had rendered the application of the law unforeseeable and unclear. In addition, the applicant complained that the seizure had been disproportionate (since all his bank accounts in San Marino had been seized) and had not been necessary for the purposes of the measure. Under Article 6, the applicant complained about the domestic courts’ decisions in substance and about procedural irregularities (see paragraph 32 above).
47. In the present case the Court considers that the arguments made by the applicant under Article 6 § 1 of the Convention concerning the seizure decision, fall to be examined under Article 1 of Protocol No. 1 under the aspect of procedural safeguards.
48. The Court reiterates that, according to its case-law, Article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules: the first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, among other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, are to be construed in the light of the general principle laid down in the first rule (see Depalle v. France [GC], no. 34044/02, § 77, ECHR 2010).
49. The Court notes that the seizure of the applicant’s assets did not in itself deprive him of his possessions, but provisionally prevented him from using them and having them at his disposal, with a view, inter alia, to securing the possible penalty of confiscation, which could be imposed as an outcome of the criminal proceedings. The Court reiterates that the seizure of property for legal proceedings normally relates to the control of the use of property, which falls within the ambit of the second paragraph of Article 1 of Protocol No. 1 (see, among others, Rafig Aliyev v. Azerbaijan, no. 45875/06, § 118, 6 December 2011). There is no reason to hold otherwise in the present case.
50. In view of its finding that such a measure falls within the ambit of the second paragraph of Article 1 of Protocol No. 1, the Court must establish whether it was lawful and “in accordance with the general interest”, and whether there existed a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Džinić v. Croatia, no. 38359/13, §§ 61- 62, 17 May 2016).
51. As to the legality of the measure, the Court reiterates that this concept requires firstly that the impugned measures should have a basis in domestic law. It also refers to the quality of the law in question, requiring that it be accessible to the persons concerned, precise, and foreseeable (see Baklanov v. Russia, no. 68443/01, § 41, 9 June 2005).
52. The Court notes that the seizure was based on Articles 58 bis and ter of the Code of Criminal Procedure (see paragraphs 5 and 26 above). In that connection, it notes further that the applicant did not complain to the domestic courts about the simultaneous application of the above-mentioned provisions. In any event, the Court cannot accept that the simultaneous application of the provisions rendered the legal basis of the seizure unforeseeable or unclear, since both types of seizure provided for by law (probative and preventive) could coexist in the circumstances of the case.
53. While it is not the Court’s role to interpret and define the precise meaning of national law, a task that clearly falls within the realm of the national courts (see Konstantin Stefanov v. Bulgaria, no. 35399/05, § 61, 27 October 2015), it observes that, contrary to the applicant’s allegation, the seizure decision contained clear information about the reasons for the application of the measure, namely periculum in mora and fumus delicti. In particular, the issue of periculum in mora was set out precisely by the investigating judge (see paragraph 9 above) even if, according to the Third‑Instance Criminal Judge, that was not a prerequisite for applying a seizure order with the aim of confiscation (see paragraphs 21 above). As to the issue of fumus delicti, the domestic courts considered that the requirement had been fulfilled given that the decision had been taken only at the investigative stage and thus the fact that the charges were plausible had sufficed by itself (see paragraph 19 above). In that connection, the investigating judge gave various specific details about the bank operations constituting laundering (see paragraph 8 above) and referred to factual details concerning the relationship between the accused and the lack of coherent reasons for the difference between the applicant’s income and his property. The Court finds nothing arbitrary in those decisions, which must therefore be considered as fulfilling the lawfulness requirement.
54. As to the legitimate aim of the measure, the Court has previously found that the application of provisional measures in the context of judicial proceedings aimed at anticipating a possible confiscation of property, was in the “general interest” of the community (see, for example, Borzhonov v. Russia, no. 18274/04, § 58, 22 January 2009 and the cases cited therein, and East West Alliance Limited v. Ukraine, no. 19336/04, § 187, 23 January 2014). The Court therefore accepts that the interference at issue pursued a legitimate aim (see Džinić, cited above, §§ 65-66). Furthermore, the Court considers that the interference also pursued another legitimate aim, namely the fight against money laundering (see Gabrić v. Croatia, no. 9702/04, § 40, 5 February 2009, and most recently, Boljević v. Croatia, no. 43492/11, § 40, 31 January 2017).
55. As to proportionality, the Court reiterates that any interference with the peaceful enjoyment of someone’s possessions must strike a fair balance between the demands of the general interests of the community and the requirements of the protection of an individual’s fundamental rights. The concern to achieve this balance is reflected in the structure of Article 1 as a whole. The requisite balance will not be found if the person concerned has had to bear an individual and excessive burden. In other words, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see East West Alliance Limited, cited above, § 168). Whereas a seizure of property is not in itself open to criticism, having regard in particular to the margin of appreciation permitted under the second paragraph of Article 1 of the Protocol, it carries with it the risk of imposing on an applicant an excessive burden in terms of his or her ability to dispose of property and must accordingly provide certain procedural safeguards so as to ensure that the operation of the system and its impact on an applicant’s property rights are neither arbitrary nor unforeseeable. Furthermore, the Court reiterates that while any seizure or confiscation entails damage, the actual damage sustained should not be more extensive than that which is inevitable, if it is to be compatible with Article 1 of Protocol No. 1 (see Džinić, cited above, § 68).
56. Turning to the instant case, the Court notes that the seizure order was issued by means of an interim decision in the context of criminal proceedings for money laundering and that it was aimed at preventing the applicant from hiding assets which could possibly have been subject to confiscation, at avoiding an aggravation or prolongation of the offence and at securing proof of the laundering. There is no doubt that for the applicant the assets seized were substantial, being all the assets he held in San Marino, worth approximately EUR 1,650,000 (see paragraph 11 above). Nevertheless, the Court notes that that was the amount connected with the bank operations constituting the alleged laundering and therefore the value of the seized property corresponded to the possible confiscation claim (see, a contrario, Džinić, cited above, § 80).
57. The Court recalls previous cases in which it was required to examine, from the standpoint of the proportionality test of Article 1 of Protocol No. 1, procedures for the forfeiture of property linked to the alleged commission of various serious offences entailing unjust enrichment. As regards property presumed to have been acquired either in full or in part with the proceeds of drug-trafficking offences (see Webb v. the United Kingdom (dec.), no. 56054/00, 10 February 2004; and Butler v. the United Kingdom (dec.), no. 41661/98) or by criminal organisations involved in drug-trafficking (see Arcuri and Others v. Italy (dec.), no. 52024/99, ECHR 2001 VII and Morabito and Others v. Italy (dec.), 58572/00, ECHR 7 June 2005) or from other illicit mafia-type activities (see Raimondo v. Italy, 22 February 1994, § 30, Series A no. 281‑A), the Court did not see any problem in finding the confiscation measures to be proportionate, even in the absence of a conviction establishing the guilt of the accused. The Court also found it legitimate for the relevant domestic authorities to issue confiscation orders on the basis of a preponderance of evidence which suggested that the respondents’ lawful incomes could not have sufficed for them to acquire the property in question. Indeed, whenever a confiscation order was the result of civil proceedings in rem which related to the proceeds of crime derived from serious offences, the Court did not require proof “beyond reasonable doubt” of the illicit origins of the property in such proceedings. Instead, proof on a balance of probabilities or a high probability of illicit origins, combined with the inability of the owner to prove the contrary, was found to suffice for the purposes of the proportionality test under Article 1 of Protocol No. 1 (compare also with the case of Silickienė v. Lithuania, no. 20496/02, §§ 60-70, 10 April 2012, where a confiscation measure was applied to the widow of a corrupt public official). More recently in Gogitidze and Others v. Georgia (no. 36862/05, § 108, 12 May 2015, concerning a confiscation applied in civil proceedings), the Court also found that the civil proceedings in rem through which the applicants - one of whom had been directly accused of corruption in a separate set of criminal proceedings, and two other applicants, were presumed, as the accused’s family members, to have benefited unduly from the proceeds of his crime - had suffered confiscations of their property, could not be considered to have been arbitrary or to have upset the proportionality test under Article 1 of Protocol No. 1. The Court found that it was reasonable for all three applicants to discharge their part of the burden of proof by refuting the prosecutor’s substantiated suspicions about the wrongful origins of their assets.
58. In the present case, which concerns a seizure order issued in the course of a criminal investigation, there is no reason to apply a different standard, given the precautionary nature of the measure and the connection between the assets seized and the commission of a serious offence. Moreover, when applying the seizure order the domestic courts did not rely exclusively on a presumption (arising from the difference between the applicant’s assets and his legitimate income), but also on other relevant evidence (inter alia, the bank operations ex se and the connections between the co-accused) (see paragraph 16 above).
59. Notwithstanding the above finding, the Court must also ascertain whether the applicant was afforded a reasonable opportunity of putting his arguments before the domestic courts (see Veits v. Estonia, no. 12951/11, §§ 72 and 74, 15 January 2015, and Jokela v. Finland, no. 28856/95, § 45, ECHR 2002‑IV). The Court notes that the applicant raised his complaint concerning the proportionality of the measure before the Judge of Civil Appeals and the Third-Instance Criminal Judge and thus had access to two levels of jurisdiction on the matter. Moreover, the applicant was represented by a lawyer of his choice who took part in an oral hearing before the Third-Instance Judge. In addition, the investigating judge summoned the applicant for questioning as part of the seizure decision.
60. As to the specific argument raised by the applicant that there was no judicial assessment of the credibility of the charges, the Court notes that the seizure was ordered by an investigating judge, therefore a judicial authority, and was reviewed by a Judge of Criminal Appeals and a Third-Instance Criminal Judge. The domestic courts therefore afforded the applicant a reasonable opportunity of putting his case in adversarial proceedings before a judicial authority and nothing in the case-file indicates any arbitrariness.
61. Lastly, as far as the applicant’s complaint about the lack of a maximum time-limit for the duration of the seizure order is concerned, the Court reiterates that it has to confine itself, as far as possible, to the examination of the concrete case before it. Its task is not to review domestic law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected the applicant, gave rise to a violation of the Convention (see DRAFT - OVA a.s. v. Slovakia, no. 72493/10, § 65, 9 June 2015). The Court notes that, as stated at paragraph 49 above, the seizure of the applicant’s assets was just a temporary measure, which could only be confirmed at the end of the criminal proceedings. The seizure order was issued on 19 February 2015, is presumably still in force (see paragraph 5 above) and has therefore lasted a little more than two years. In the light of the complexity of the case (international money laundering involving twelve people, several companies and hundreds of complex bank operations), the Court does not consider that the duration of the measure is unreasonable.
62. In the light of the above considerations, given the importance of the aims pursued as well as the State’s margin of appreciation in this area, the Court considers that, in the circumstances of the present case, the seizure order concerned did not amount to a disproportionate interference with the applicant’s right to the peaceful enjoyment of his property.
63. It follows that this complaint is inadmissible as being manifestly ill‑founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 20 July 2017.
Abel CamposLinos-Alexandre Sicilianos
RegistrarPresident
Full & Egal Universal Law Academy