Application no. 75201/16
against San Marino
The European Court of Human Rights (First Section), sitting on 3 September 2019 as a Chamber composed of:
Ksenija Turković, President,
Pere Pastor Vilanova,
Jovan Ilievski, judges,
Kristina Pardalos,ad hoc judge,
and Abel Campos, Section Registrar,
Having regard to the above application lodged on 29 November 2016,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Mr Gilberto Felici, the judge elected in respect of San Marino, withdrew from sitting in the Chamber (Rule 28). The President accordingly appointed Ms Kristina Pardalos to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29),
Having deliberated, decides as follows:
The applicant, Ms Daniela Staiano, is an Italian national, who was born in 1962 and lives in Grottaferrata (RM). She was represented before the Court by Mr D. Fiorino, a lawyer practising in Rome.
The Government of San Marino (“the Government”) were represented by their Agent, Mr L. Daniele.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The criminal proceedings No. 27880/2008 in Italy
1. In the criminal proceedings No. 27880/2008, by a judgment of 6 June 2011 filed in the registry on 5 September 2011, the Rome preliminary hearings judge (Giudice dell’Udienza Preliminare – “the GUP”) found the applicant guilty of two offences, namely (i) criminal conspiracy in connection with drug trafficking (associazione per delinquere finalizzata allo spaccio di droga) under Section 74.2 of the President of the Republic’s Decree (“DPR”) No. 309 of 9 October 1990 (see paragraph 24 below) and (ii) ongoing money laundering (under Article 648 bis of the Italian Criminal Code ‑ see Relevant domestic law, paragraph 25 below), and sentenced her to six years and eight months’ imprisonment and to a permanent prohibition from holding public office.
2. According to the GUP, the applicant, together with her husband G. (head of the conspiracy) and nine other people (some of whom had been found guilty of drug trafficking in the same proceedings, on the basis that they had carried out five import operations of cocaine between 9 June 2009 and 4 May 2010), had constituted a criminal conspiracy in order to obtain, purchase (abroad), convey and import into Italy, significant quantities of cocaine and to launder the assets obtained therefrom. In particular, the conversation transcripts between the applicant and her husband which had been added to the Italian case‑file had almost exclusively focused on the modalities and the practical aspects of the operations of money laundering. Relying, inter alia, on the above-mentioned evidence, the GUP found that the role of the applicant in the conspiracy in connection with drug trafficking had been to transfer abroad the proceeds of the drug trafficking but that she had not taken part in the drug trafficking itself. In particular, the money laundering had consisted in transferring major sums of money to San Marino.
3. By a decision of 21 May 2012, filed in the registry on 29 June 2012 the Court of Appeal (Corte d’Appello) of Rome upheld the first‑instance judgment reducing, however, the penalty to five years’ imprisonment and five years prohibition from holding public office.
4. The above‑mentioned decision became final on 4 June 2013 when the Court of Cassation (Corte di Cassazione) rejected the applicant’s appeal. In particular, the Court of Cassation rejected the applicant’s argument that she could not have been convicted of money laundering since she had been found guilty of conspiracy which she had asserted was the predicate offence. In this connection she had noted that Article 648 bis of the Italian Criminal Code, dealing with moneylaundering (see paragraph 25 below) excluded prosecution for money laundering if the same person had aided and abetted the predicate offence. However, the Court of Cassation found that according to its case‑law, in connection with the offence of money laundering, the offence of ‘simple’ criminal conspiracy could not be considered as aiding and abetting the commission of the predicate offence given that the former offence (conspiracy) was not in itself capable of generating profits.
5. On an unspecified date the applicant started serving her prison sentence.
2. The criminal investigation No. 602/RNR/2010 in San Marino
6. Following a letter of request by the Rome Public Prosecutor, by a decision of 24 May 2010 the investigating judge (Commissario della Legge Inquirente), considering that the documents supplied indicated the commission of an offence punishable in San Marino, ordered the institution of a criminal investigation for the continuing offence of money laundering, under Articles 50 and 199 bis of the Criminal Code (see Relevant domestic law, paragraph 20 below). As a result, the investigating judge issued a judicial notice and ordered the seizure of the money or other assets which were traced back to the applicant.
7. On 25 May 2010 all the money deposited into four bank accounts and three safe deposit boxes which had been traced back to the applicant was seized (for a total amount of 1,377,832.55 euros (EUR)).
8. On 31 August 2013 the Financial Intelligence Agency (hereinafter, “the AIF”) who had been requested by the investigating judge to investigate the matter submitted their final report. The AIF found that the applicant had carried out multiple banking operations in the periods when the drug trafficking episodes took place and the report described in detail all the banking operations that the applicant had carried out on the relevant bank accounts, from 5 June 2008 until 25 May 2010 (for a total amount of EUR 629,550).
9. On 30 October 2013 the investigating judge issued the indictment decision which in particular identified the relevant charge thus: “…through multiple actions, in execution of the same criminal plan, in order to conceal their criminal origin, [the applicant] transferred, hid and substituted the proceeds of the offence of importation and selling of drugs, which she deposited and concealed in various bank accounts”. The indictment listed a series of bank deposits (and transfers) made by the applicant in San Marino until 25 May 2010 as follows: a cash deposit of EUR 276,361.52 in a current account registered in her name, a cash deposit of EUR 436,555.98 in a savings book registered in her name, a cash deposit of EUR 662,498.89 in a bearer’s savings book, a deposit of EUR 529,735 in another account C. (and the subsequent transfer of the latter money to the above‑mentioned bearer’s savings book), a cash deposit of EUR 425,000 in a current account registered in the name of one of her daughters (M.G.), and a cash deposit of EUR 339,400 in a current account registered in the name of another one of her daughters (P.G.).
3. The trial
10. At the trial the defence requested, inter alia, the applicant’s acquittal on the ground that “self‑laundering” (autoriciclaggio) (i.e., laundering carried out by the same person who had also committed the predicate offence, that is the offence from which the laundered assets were derived) did not constitute an offence at the time of the facts which came to an end on 25 May 2010. They argued that the wording of Article 199 bis of the Criminal Code in force at the material time excluded from its remit the cases of “aiding and abetting” (concorso nel reato, hereinafter ‘the aiding and abetting clause’ see Relevant domestic law, paragraph 20 below). Thus, the same person who had committed the offences which were the origin of the laundered proceeds could not be found guilty of the laundering of those same proceeds.
11. By a decision of 15 January 2015, filed in the relevant registry on 7 August 2015, the first-instance judge on the merits (Commissario della legge Decidente) found the applicant guilty of ongoing money laundering and sentenced her to four years and six months’ imprisonment, to a fine of EUR 10,000 and to two years prohibition from holding public office and exercising political rights. The judge also ordered the direct confiscation of EUR 1,377,832.55 (sum already seized) and ordered the confiscation by equivalent means, of a further EUR 16,159.17.
12. The first‑instance judge cited, inter alia, a judgment of 9 May 2008 of the Judge of Criminal Appeals concerning charges of money laundering, according to which “a previous and autonomous judicial decision as to the exact type of predicate offence and its perpetrators was not necessary [in order to establish guilt]. It sufficed instead to have reasonable evidence (prove logiche) of the criminal origin of the money in question. The criminal origin of the money was an objective prerequisite to be autonomously ascertained by the judge in the money laundering case. It was thus not important to ascertain a specific predicate offence if a plurality of elements showed the illicit origin of the money”.
13. The first‑instance judge further acknowledged that before the amendments introduced by Law No. 100 of 29 July 2013 “self‑laundering” was not a criminal offence provided for by the domestic law. He went on to address the issue in law as to whether, as a general principle, the offence of criminal conspiracy could be considered a predicate offence of money laundering. The judge found a partial divergence between the Italian and the San Marino case‑law on the point. In Italy (which had a similar legal provision on money laundering, see Relevant domestic law, paragraphs 25 and 28 below) the Court of Cassation had stated that the offence of mafia‑type criminal conspiracy (associazione per delinquere di stampo mafioso) could constitute a predicate offence of money laundering since it was potentially capable of generating illicit proceeds ex se. By contrast, the same Court of Cassation had held that the constitution of a ‘simple’ criminal conspiracy (associazione per delinquere semplice) could not be considered a predicate offence for the offence of money laundering, since a ‘simple’ criminal conspiracy was not able, ex se, to generate illicit proceeds (see Relevant domestic law, paragraph 27 below). Thus, under the Italian jurisprudence, proceeds could derive only from the specific offences, (hereinafter, ‘the target‑crimes’, (reati‑scopo) namely the specific crimes for the commission of which the criminal conspiracy had been constituted) committed by the individual members of a ‘simple’ conspiracy, but not from the offence of criminal conspiracy itself. By contrast, the judge noted that in a San Marino judgment (No. 3 of 15 May 2014), the Third‑Instance Criminal Judge (Terza Istanza Penale), had stated that “nobody could deny that a finding of guilt for conspiracy … shows the existence of a first and fundamental predicate offence useful to find the consummation, in San Marino, by the same person, of the offence of (self) laundering”, as had already been established by the domestic case‑law (see Relevant domestic law, paragraph 22 below).
14. Having noted the general legal principle, the first‑instance judge considered that in the present case it was however necessary to look at the specific facts of the case and the role played by the applicant in the operations carried out by the individual members of the conspiracy. Even assuming that the applicant was right in her argument that she could not at the same time be found guilty of money laundering and of having participated in the conspiracy, it was nevertheless necessary for the judge to establish the actual role she played in it. Deciding on the facts of the present case, the judge established that, according to the judgment of 6 June 2011 (see paragraph 2 above), the role of the applicant in the criminal conspiracy ‑ of which she was found guilty in Italy ‑ had been limited to the concealing and transferring of the proceeds of drug trafficking to San Marino. Therefore, the applicant had not had any role in the planning and in the factual commission of the drug trafficking offences (which, according to the judge, had been the origin of the assets). Moreover, the evidence had not demonstrated any specific role of the applicant in the general planning of the criminal activities of the conspiracy, nor had the laundered assets included the applicant’s personal profits for her participation in the conspiracy. In conclusion, the applicant’s involvement in the conspiracy had been limited to the laundering of the proceeds obtained from the drug trafficking committed by others. Thus, in the judge’s view, her actions were not to be considered encompassed by the aiding and abetting clause, which would have excluded the offence of laundering under the old wording of Article 199 bis of the Criminal Code. According to the judge, a different conclusion would have resulted in an antinomy (contradiction between two laws or principles), since the laundering carried out by the applicant (as her specific role in the conspiracy) would have been considered as the predicate offence of the same laundering carried out in San Marino. Thus, the same criminal actions would have constituted at the same time both the laundering and the predicate offence of the laundering.
15. The judge added that while such conclusions did not mean that the offence of criminal conspiracy could not constitute, in itself, the predicate offence of money laundering, in the concrete case before him it was not necessary to solve that legal issue, given that the role of the applicant had been limited to the laundering of the money “belonging to the conspiracy” (appartenenti al sodalizio).
16. As to the confiscation, the judge specified that he had ordered the confiscation of the whole corpus delicti of the crime (as it had resulted from the bank operations carried out by the applicant), inter alia, on the basis that she had not given a credible alternative explanation as to the origin of the money. By contrast, the evidence had shown that a large disproportion existed between the applicant’s income and the money that she had deposited in the relevant current accounts.
4. The appeal proceedings
17. On an unspecified date the applicant lodged an appeal against the above‑mentioned judgment on the same grounds already put forward at first instance.
18. By a decision of 1 June 2016, filed in the registry on 3 June 2016, the Judge of Criminal Appeals upheld the first-instance judgment.
19. As to the claim that she had been convicted of self‑laundering despite the law excluding cases of aiding and abetting, the judge held that such argument had already been rejected by the Italian Court of Cassation in its judgment of 4 June 2013 (by which that court had found the applicant guilty of money laundering) (see paragraph 4 above). According to the Italian case‑law of the Court of Cassation, in connection with the offence of money laundering, the offence of ‘simple’ criminal conspiracy could not be considered as aiding and abetting the commission of the predicate offence. Thus, in the Italian Court of Cassation’s view, which was shared by the judge of Criminal Appeals in San Marino, a person could be charged with criminal conspiracy and money laundering at the same time. The judge of Criminal Appeals considered that until the members of the criminal conspiracy committed the target offences, they would not be able to obtain any profit. Profits in fact derived exclusively from the target offences actually committed by the members of the conspiracy, and not from the offence of criminal conspiracy ex se. For this reason, only the members of the conspiracy who had actually committed the target offences (which had given origin to the laundered assets ‑ in the case at hand the drug trafficking) could benefit from the exclusion clause, and thus could not be found guilty of the laundering of the proceeds obtained from the target offences. This had not been the case of the applicant, who had not had any role in the underlying drug trafficking.
B. Relevant law and practice
1. San Marino Law
20. Articles 50 and 199 bis of the Criminal Code at the time of the facts (which ended on 25 May 2010) read as follows:
“Whosoever, through one or more actions or omissions, 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.”
Article 199 bis
“(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 is known was obtained as a result of crimes not resulting from negligence or contraventions (misfatto).
(3) If the crime at the origin of the money laundered has been committed in a foreign country, such crime has to constitute a prosecutable criminal offence also in San Marino.”
21. Following amendments introduced by Law No. 100 of 29 July 2013 the phrase “except in cases of aiding and abetting” was repealed.
22. In the judgment No. 3 of 15 May 2014 in criminal proceedings No. 172/2013 (concerning self‑laundering carried out on 23 October 2013), in the context of a request by an accused for the court to release funds previously seized as a precautionary measure, the Third‑Instance Criminal Judge held that a previous finding of guilt for the offence of criminal conspiracy was capable of constituting a predicate offence for the purposes of the offence of (self) money laundering. It further appears from the indictment, the first‑instance judgment of 5 May 2015 and the appeal judgment of 11 May 2016, submitted by the Government that, in fact, in the above‑mentioned case it had been established that the relevant predicate offences of the self‑laundering had been the offences of tax fraud, illegal waste trafficking and diversion of funds of a named company, with no mention of the offence of criminal conspiracy.
23. In a judgment of 9 August 2017 in criminal proceedings no. 469/2012 (concerning ongoing money laundering carried out prior to 2013), the Judge of Criminal Appeals found that, in order not to consider the accused person who had aided and abetted the commission of the predicate offence as responsible of the laundering of the money obtained therefrom (so applying the ‘aiding and abetting clause’), it was necessary to verify, in practice, what had been the material contribution of the defendant to the commission of such predicate offence. In such case, for instance, the judge found guilty of money laundering a person who had aided and abetted the commission of the predicate offence of fraudulent bankruptcy by being the mere front man of the companies which had been used in order to misappropriate the funds of the company which had been victim of the bankruptcy. Considering the limited material role of that defendant in the commission of the predicate offence, the judge did not apply the aiding and abetting clause.
2. Italian Law
24. Sections 73 and 74 of the DPR No. 309 of 9 October 1990 (consolidated text on narcotic drugs and psychotropic substances) read, in so far as relevant, as follows:
Section 73 (illegal production, trade and detention of narcotic drugs and psychotropic substances)
“(1) Whosoever, without authorisation…sells, offers or puts up to sale, cedes, distributes, trades, transports…narcotic drugs or psychotropic substances…shall be punished by imprisonment from six to twenty years and by a fine from EUR 26,000 to EUR 260,000.
Section 74 (criminal conspiracy in connection with drug trafficking)
(1) When three or more persons conspire in order to carry out one or more offences among those provided for by Article 73, whosoever promotes, constitutes, directs, organizes or finances the conspiracy should be punished, just for that, by imprisonment for no less than twenty years.
(2) Whosoever takes part in the conspiracy shall be punished by imprisonment for no less than ten years.”
25. Article 648 bis of the Italian Criminal Code reads, in so far as relevant, as follows
Article 648 bis
“Except in cases of aiding and abetting, whosoever substitutes or transfers money, goods or other assets deriving from crimes not resulting from negligence or carries out other operations in order to hide their criminal origin, shall be punished by imprisonment from four to twelve years and by a fine from EUR 1,032 to EUR 15,493…”
26. Section 3 § 3 of Law No. 186 of 15 December 2014 provided for the criminal offence of self‑laundering (Article 648 ter § 1 of the Criminal Code). The latter offence entered into force on 1 January 2015.
27. In the judgment No. 10582 of 14 February 2003, the Court of Cassation stated that: “Between the offence of money laundering and the offence of criminal conspiracy there is no relationship of presupposition (rapporto di presupposizione). Thus, the clause of exclusion [of the criminal responsibility, namely the ‘aiding and abetting clause’, see paragraph 25 above] does not apply…and the member of the criminal conspiracy shall also be charged with the money laundering of the goods which had been acquired through the commission of the target‑offences of the criminal association.” The Court of Cassation textually reiterated the same statement, inter alia, in the judgment No. 40793 of 23 September 2005.
28. By judgment No. 25191 of 13 June 2014, the Plenary Formation of the Court of Cassation found that the offence of mafia‑type criminal conspiracy (associazione per delinquere di stampo mafioso) could constitute a predicate offence for the purposes of money laundering since such type of conspiracy was capable, in itself, to generate illicit profits. In particular at point 8 of the above‑mentioned judgment (p. 24) the Court of Cassation stated that: “the clause of exclusion of the criminal responsibility [clausola di esclusione della responsabilità which is identical to the ‘aiding and abetting clause’ in the San Marino provision on money laundering] is not applicable (non opera) in respect of a member of a mafia‑type criminal conspiracy that had laundered or redeployed, money, goods or other things (utilità) deriving from the mere target‑crimes, to whose consummation he had not given any contribution (alla cui realizzazione egli non abbia fornito alcun apporto), since the subject of the typical criminal actions (attività tipica) of the offence of money laundering is not directly linked to the offence that he had aided and abetted (non è direttamente ricollegabile al reato cui egli concorre). A member of a mafia-type criminal conspiracy who, in the division of roles and functions between the conspirators, had the task of laundering and redeploying the money which had been produced by the criminal organisation (in itself), is not punishable for self‑laundering, since the subject of his or her conduct are money, goods and other things deriving from the organisation in itself, to which he or she provides his or her conscious and voluntary support”.
29. By a judgment No. 30255 of 3 March 2017, filed with the registry on 16 June 2017, concerning the crime of “fictitious registration of possessions” (interposizione fittizia di beni), the Court of Cassation upheld the seizure of the proceeds, notwithstanding the expiration of the limitation period of the crime. The Court of Cassation held that: “To date, the case‑law that admits the possible existence of a profit deriving directly and immediately from the commission of the offence of ‘simple’ criminal conspiracy… is absolutely prevalent and must be shared”.
30. The applicant complained under Article 7 of the Convention that she had been found guilty of an offence (“self‑laundering”) not provided by the domestic law at the time of the facts (which came to an end on 25 May 2010). At the material time, the relevant provision on money laundering was not applicable in the case of “aiding and abetting”, thus the perpetrator of the predicate offence which had given origin to the assets which were eventually laundered could not be found guilty of such laundering.
31. The applicant complained that she had been found guilty of an offence not provided by the domestic law at the time of the facts, as provided in 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.”
A. The parties’ submissions
1. The Government
32. The Government submitted that the interpretation given by the domestic courts to the relevant law on money laundering had not violated Article 7. They argued that the relevant provision had been absolutely accessible and that its interpretation had been foreseeable and reasonable.
33. As to the foreseeability of the interpretation of the ‘aiding and abetting clause’, referring to the Court’s case law (in particular, S.W. v. the United Kingdom, 22 November 1995, § 36, Series A no. 335‑B and C.R. v. the United Kingdom, 22 November 1995, § 34, Series A no. 335‑C) the Government noted that the Convention does not outlaw the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resulting development is consistent with the essence of the offence. In relation to the issue whether the offence of criminal conspiracy could be considered (or not) a predicate offence of money laundering, they noted that, at the relevant time, no specific precedent existed on the point. Due to its territorial and population size, San Marino did not have a considerable production of case‑law, despite the significant increase, in recent years, of criminal proceedings and case‑law concerning money laundering.
34. With reference to the statement made by the Third‑Instance Criminal Judge in the decision No. 3 of 15 May 2014 (which had been cited in the first‑instance judgment, see paragraphs 13 above) concerning the abstract capability of the offence of criminal conspiracy to constitute a predicate offence, the Government submitted that such decision had not been followed by any other judicial ruling (at any instance). Moreover, such statement had been made by the Third-Instance Criminal Judge and, in the domestic legal system, in the criminal sphere, such court did not deal with the guilt or not of an accused since its competence was confined to assessing the legitimacy of precautionary measures adopted by an investigating judge during an investigation. In addition, the statement had been made, on that occasion, only as an obiter dictum, without any tangible impact on the final decision of the respective criminal proceedings as a whole. Indeed, the indictment in those criminal proceedings, which had been confirmed at first and second instance, had found that the laundered money in that case had derived from the offences of tax fraud, illegal waste trafficking and diversion of funds of a named company, without any mention of the offence of criminal conspiracy as the predicate offence of the money laundering (see paragraph 22 above). In any case, the Government highlighted that the decision No. 3 of 15 May 2014 had not had (and could not have had) any influence on the criminal conduct of the applicant since it had come to be almost four years after the acts of money laundering. Thus, the applicant could not invoke such decision as justification for her previous conduct.
35. The Government also referred to subsequent relevant domestic case‑law in general (i.e. not related to conspiracy) whereby the San Marino courts interpreted the above-mentioned ‘aiding and abetting clause’. In particular, by a judgment of 9 August 2017 in criminal proceedings no. 469/2012 (see paragraph 23 above), the Judge of Criminal Appeals had stated that, to apply the “aiding and abetting clause”, it was necessary to verify, in practice, what had been the accused’s material contribution in the commission of such predicate offence. Such approach, had significantly limited the scope of the ‘aiding and abetting clause’.
36. The Government also highlighted that the applicant was an Italian citizen who lived in Italy and was thus familiar with established Italian case‑law on the point applied to her case, namely that only the offence of mafia‑type criminal conspiracy could be considered as a predicate offence for the purposes of money laundering, while the offence of ‘simple’ criminal conspiracy could not.
37. In any event, according to the Government, the applicant’s arguments had been misleading both from a procedural and a substantive point of view. From a procedural point of view, the Government noted that the charge against the applicant, as set out in the indictment decision (see paragraph 9 above), had considered the offence of importation and selling of drugs (drug trafficking) committed by others as the alleged predicate offence, without any mention of the offence of criminal conspiracy. In this connection, the Government specified that an indictment decision must contain all the relevant facts of a case. As a consequence, in criminal proceedings for money laundering, it must indicate the predicate offence determining the criminal origin of the laundered assets. In her case the indictment decision made no reference to conspiracy. Had the applicant wanted the aiding and abetting clause to apply to her she should have invoked her participation in the drug trafficking, however she had failed to do so, possibly because there had been no conviction in that regard. Thus, since she had not aided and abetted the commission of the predicate offence (drug trafficking), she could not invoke the “aiding and abetting clause” to avoid her conviction.
38. From a substantive point of view, the Government pointed out that the first‑instance judge had expressly raised the issue of the applicability of the ‘aiding and abetting clause’ in the applicant’s case (see paragraph 13 above). The decision not to apply such clause to the applicant had not been determined by the legal principle stated in the judgment No. 3 of 15 May 2014 of the Third‑Instance Criminal Judge, which the judge had opted not to apply, but on the basis of the specific facts of the case, and, in particular, of the specific role played by the applicant (see paragraph 14 above).
39. As to the reasonableness of this interpretation, referring to the Court’s case law (in particular, The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 49, Series A no. 30,) the Government considered that by assessing what role the applicant had had in the commission of the predicate offence the domestic courts had carried out an ordinary activity of interpretation of the relevant clause, in a way which had been literal, and consistent with the general purpose (ratio) of the domestic provision on money laundering. According to the Government, there was no doubt that the interpretation of the ‘aiding and abetting clause’ given by the domestic courts had reflected the intention of the law, since the clause “except in cases of aiding and abetting” provided for the exclusion of the criminal responsibility of a person charged with money laundering only in the case that the latter had aided and abetted the predicate offence, namely, in the present, case, the drug trafficking.
40. As to the consistency of the judicial interpretation of the provision with its general purpose, the Government noted that the idea behind the aiding and abetting clause was to avoid punishing someone twice for a linked offence, the second of which was absorbed by the first (i.e. the money laundering being absorbed by the drug trafficking) but in the applicant’s case her conviction for money laundering in San Marino could not be said to have been absorbed by her prior conviction for the offence of conspiracy. In the present case the applicant had sought to avoid being punished for money laundering (in San Marino) on the basis that her role in the criminal conspiracy had been solely the money laundering. The Government considered such an argument paradoxical since had it been upheld, the money laundering carried out by her in San Marino would not have been punished at all. Such paradoxical conclusion was completely unacceptable in the light of the case-law of this Court as explained in Pessino v. France (no. 40403/02, § 36, 10 October 2006).
2. The applicant
41. Invoking Article 7 of the Convention, the applicant asserted that she had been found guilty of an offence (“self‑laundering”) which had been introduced on 29 July 2013 (see paragraph 21 above) and which was therefore not provided by the domestic law at the time of the facts (which came to an end on 25 May 2010, see paragraph 9 above). At the material time, the relevant provision on money laundering was not applicable in the case of “aiding and abetting” (see paragraph 20 above) and thus the perpetrator of the predicate offence which had been the origin of the money which was eventually laundered could not be found guilty of such laundering. The applicant submitted that in the present case, the predicate offence which had been the origin of the money had been the crime of ‘criminal conspiracy in connection with drug trafficking’ (see paragraph 24 above), an offence for which she had been convicted in Italy, together with the offence of ongoing money laundering (see paragraph 1 above). Thus, the domestic courts should have acquitted her, since, given the fact that she had been found guilty of the predicate offence (conspiracy), her case was encompassed by the above mentioned ‘aiding and abetting clause’.
42. In the opinion of the applicant, the decision of the domestic courts not to apply the ‘aiding and abetting clause’ to her case had been erroneous.
43. According to the applicant the only issue was to identify in the domestic case‑law, a legal precedent or, at least, some relevant legal elements in order to consider the interpretation of the ‘aiding and abetting clause’ given by the domestic courts in her case, as foreseeable and predictable. Moreover, it was necessary to verify whether the offence of criminal conspiracy was capable of autonomously generating profits irrespective of the commission of further crimes (the target crimes).
44. The applicant pointed out that the Government had acknowledged that no relevant precedent existed on the point. However, she referred to the above‑mentioned decision No. 3 of 15 May 2014. By that decision the Third‑Instance Criminal Judge had found that the offence of criminal conspiracy could constitute a predicate offence leading to the offence of “(self) laundering”. On the basis of this, the applicant submitted that in the absence of specific legislation on the topic and considering the lack of any further precedent, she could not reasonably have foreseen the possibility of being found guilty of the laundering of the proceeds of a predicate offence which she had aided and abetted, even had she had the assistance of legal counsel.
45. The applicant noted that by the judgment No. 25191 of 13 June 2014, the Italian Court of Cassation (in its plenary formation) had found that the offence of mafia‑type criminal conspiracy could constitute a predicate offence for the purposes of money laundering. Such judgment, however, had not stated, that the offence of ‘simple’ criminal conspiracy could not be a predicate offence for the purposes of money laundering. On the contrary, in the above‑mentioned judgment the Court of Cassation had referred to various Italian case‑law and doctrine in the light of which such a conclusion (the capability of autonomously generating profits) could be reached even for other types of criminal conspiracy. The applicant relied particularly on the statement made by the Court of Cassation in that same judgment (at point 8 on p.24) (see paragraph 28 above) which in her view supported her claim that she could not be found guilty of money laundering. She also referred to another judgment No. 30255 of 16 June 2017 (see paragraph 27 above) by which the Italian Court of Cassation had held that a ‘simple’ criminal conspiracy was capable ex se of generating profits. Further, she noted that Italian law on seizure and confiscation treated both drug conspiracy and mafia type conspiracy on the same level.
46. In reply to the Government’s argument that the charge indicated drug trafficking as a predicate offence and not the conspiracy, the applicant argued that the content of the indictment decision (see paragraph 9 above) had been completely generic, while the target‑crimes of which the criminal association had been found guilty in Italy, had been five specific episodes of drug trafficking (see paragraph 2 above). Thus, in order to find that the alleged laundered assets had actually been those deriving from drug trafficking and not the whole activity of the criminal association in general, it would have been necessary to prove the existence of a link between the drug trafficking and the money laundering. However, the domestic courts had considered the whole activity carried out by the criminal conspiracy (and not the five episodes of drug trafficking) as the predicate offence of the money laundering. Indeed, on the basis of the investigation carried out by the Rome Public Prosecutor, the only money that had been deposited in the San Marino bank accounts by the applicant had been EUR 626,550 (see paragraph 8 above) and not the total balance of the relevant accounts. Thus, the decision of the San Marino domestic courts to confiscate the whole balance of the relevant bank accounts (see paragraph 11 above) had implied that those courts had not only treated the five operations of drug trafficking as the predicate offence, but the whole activity of the criminal conspiracy in its entirety. She also noted that the domestic courts had failed to identify the exact predicate offence.
47. In conclusion, the applicant pointed out that the issue, in the present case, was not moral but strictly legal. The problem was exclusively to apply to the applicant case the ‘aiding and abetting clause’ which was provided, at the time of the facts, by the relevant law on money laundering. Such clause had been introduced deliberately by the legislature, which had considered that the target crime having been punished, it was not necessary to apply a further punishment to the money laundering of the profits generated thereby. In the face of a precise criminal provision, in force at the material time, the Government and the domestic courts had considered the applicant’s conducts as illicit on the basis of a mere judicial interpretation. Moreover such interpretation had not been based on the domestic case‑law (namely, the case law of San Marino, where the applicant had allegedly carried out her alleged criminal conduct), but on the case‑law of a foreign State (Italy), namely the place of residence of the applicant.
B. The Court’s assessment
1. General principles
48. The Court reiterates that the guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 even in time of war or other public emergency threatening the life of the nation. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (seeRohlena v. the Czech Republic [GC], no. 59552/08, § 50, ECHR 2015, and the cases cited therein).
49. Article 7 of the Convention is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage. 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). 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 (ibid.).
50. 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 (ibid.).
51. The Court must therefore verify that at the time when an accused person performed the act which led to him or her 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 (ibid.).
52. When speaking of ‘law’ Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises statutory law as well as case-law and implies qualitative requirements, notably those of accessibility and foreseeability. These qualitative requirements must be satisfied as regards both the definition of an offence and the penalty the offence carries (ibid.).
53. It is a logical consequence of the principle that laws must be of general application that the wording of statutes is not always precise. One of the standard techniques of regulation by rules is to use general categorisations as opposed to exhaustive lists. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice. However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Again, 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 (ibid.).
54. The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain. The progressive development of the criminal law through judicial law-making is a well‑established and necessary part of legal tradition in the Convention States. Article 7 of the Convention cannot be read as outlawing 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. By contrast, the lack of an accessible and reasonably foreseeable judicial interpretation can lead to a finding of a violation of the accused’s Article 7 rights. Were that not the case, the object and the purpose of this provision – namely that no one should be subjected to arbitrary prosecution, conviction or punishment ‑ would be defeated (ibid.).
55. 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 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 Lebedevv. Russia, nos. 11082/06 and 13772/05, § 821, 25 July 2013).
56. The Court also reiterates that it is not its 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. More generally, the Court points out that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. Its role is thus confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (Rohlena, § 51). In sum, the Court must examine whether there was a sufficiently clear legal basis for the applicant’s conviction (ibid., § 53).
2. Application to the present case
57. The Court observes that the applicant was found guilty, in Italy, of two offences, namely, of “criminal conspiracy in connection with drug‑trafficking” and “ongoing money laundering” (see paragraph 1 above). In San Marino the applicant was charged with laundering the proceeds of the offence of importation and selling of drugs (see paragraph 9 above). Both the first‑instance and the appeal court in San Marino found the applicant guilty of money laundering on the basis that the applicant’s criminal conduct in Italy had been limited to the concealing and transferring to San Marino of the proceeds of drug trafficking and that she had not had any role in the planning and in the factual commission of the drug trafficking offences, which, according to the judges, had been the origin of the assets (see paragraphs 14 ‑ 15 and 19in fine above), and thus she could not benefit from the exclusion clause (the “aiding and abetting” clause).
58. The Court notes that it is not in dispute that pursuant to Article 199 bis of the Criminal Code (see paragraph 20 above), in the light of the exclusion clause in force at the material time, it was only the perpetrator of the predicate offence (which produced the assets which were eventually laundered) who could benefit from the “aiding and abetting” exclusion clause to a charge of money laundering. While not explicitly stated, it transpires from the conclusions reached in the above‑mentioned judgments that the two San Marino courts (as well as the Italian courts before that) considered the predicate offence to have been the drug trafficking, and that, on the facts of the case, the applicant had had no role in such trafficking. In consequence she could not benefit from the exclusion clause.
59. Thus, in simple terms, the applicant who was aware of the fact that she had not committed drug trafficking (and did not claim otherwise), was well aware that she could not benefit from the exclusion clause on that basis and does not argue otherwise. There is therefore no issue of a lack of foreseeability on that ground.
60. However, the applicant argued that conspiracy had to be considered as the predicate offence since in her view the conspiracy had been the origin of the assets that she had laundered (in fact the domestic courts had confiscated more than just the money originating from the five episodes of drug trafficking). Thus, she could not be found guilty of money laundering since she had committed the predicate offence namely the criminal conspiracy to traffic in drugs. The Court observes that the domestic courts extensively dealt with this argument which the applicant raised in her defence. However, ultimately those courts were unanimous in deciding the case on its facts (namely the applicant’s role in the conspiracy, and whether such role aided, or consisted of, the commission of the predicate offence). The Court reiterates that it is not its task to substitute itself for the domestic courts as regard the assessment of the facts and their legal classification, provided that these are based on a reasonable assessment of the evidence (see Rohlena, cited above, § 51 and Khodorkovskiy and Lebedev, cited above, § 803). The Court considers that their findings do not appear unreasonable in the present case. It follows, in the light of those reasonable findings of fact, that this Court need not enter into an examination of the foreseeability of the interpretation of conspiracy as a predicate offence in abstracto.
61. As to whether or not the case by case approach (applied to the present case) by the domestic courts was foreseeable, the Court attaches importance to the purpose of the exclusion clause at the time, as explained by both the applicant and the Government (see paragraphs 47 and 40 above). In that light, the Court finds that the approach taken by the domestic courts, namely that in each case where one had participated in a conspiracy related to the predicate offence, one had to look at the role played by the accused in that conspiracy and at whether they had actually participated in the predicate offence, was consonant with the purpose of the exclusion clause and thus reasonable and consistent with the essence of the offence with which the applicant was charged.
62. In conclusion, given that the predicate offence of the laundering carried out by the applicant was the offence of drug trafficking committed by others and that she had not taken part in that offence, the Court concludes that, contrary to what is alleged by the applicant, the domestic courts were entitled to conclude that i) the criminal acts of which she had been charged and had been found guilty had amounted to money laundering and not to “self‑laundering” and ii) “the aiding and abetting clause” of Article 199 bis in force at the material time did not apply to her. It was also clear at the time of the commission of the offence that the applicant could and ought to have expected, if necessary with appropriate legal advice, that Article 199 bis of the Criminal Code would be applied to the facts of her case. Thus, the Court finds that the applicant’s conviction for money laundering in the circumstances of her case was foreseeable and in conformity with Article 7 of the Convention.
63. It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 § 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on26 September 2019.
Abel Campos Ksenija Turković