SOFIA v. SAN MARINO
Inadmissible
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković
1. The applicant, Mr Rosario Sofia, is an Italian national who was born in 1966 and lives in Catania. He was represented before the Court by Mr C. Cali, a lawyer practising in Catania, Italy. 3. On 1 December 2008 the applicant and G.S., his brother, arrived at a San Marinese bank (Banca di San Marino) where G.S. held a current account (hereinafter “the current account”), which he had opened on 30 October 2006. 4. G.S. on that day withdrew 850,000 euros (EUR), which had been deposited in the current account earlier. At the same time, the applicant asked the bank employee dealing with them to issue sixty-eight bearer savings books (libretti al portatore) in his name. The two brothers asked the bank employee to then deposit the money G.S. had just withdrawn into the sixty-eight bearer savings books (in particular, they requested that each savings book have an equal amount of EUR 12,500). 5. Asked by the bank employee for the reason for such operations, the applicant and his brother explained that they feared that ongoing criminal proceedings against G.S. in Italy could lead the Italian judicial authorities “to request information” (potrebbe determinare una richiesta di informazioni). 6. Despite the suspicious nature of the operations and the explanation provided by the applicant and his brother, the director of the bank branch gave his consent to carry out the requested transactions, despite his duty under anti-money laundering laws not to engage in operations that appear suspicious. However, he later reported them to the Financial Intelligence Agency (Agenzia di Informazione Finanziaria, hereinafter “the AIF”), the national authority responsible for combatting money laundering, among other tasks. 7. In a report of 17 February 2009, received by the San Marinese courts the day after, the AIF informed the investigating judge (Commissario della Legge, hereinafter the Commissario) of the above-mentioned facts, which in the AIF’s opinion possibly constituted money laundering. In particular, the agency emphasised that G.S. had deposited the money in the current account by paying in several cheques which could not be considered “compatible” with the professional and commercial activities he had declared to the bank. In fact, the information provided to the bank in 2006 had stated that his job consisted of trading in clocks, silver and items made from gold. The trading had originally been done in his own name, as a natural person, and subsequently through a company called S., which had been liquidated in 1996. After that, it had continued through a company called S.P., in which he had never held any administrative position or share capital (the company had in formal terms been administered by his wife). That company had ceased business in 2008. Since most of the cheques which had made up the above-mentioned sum had been deposited in or after 2008, the AIF considered that the transactions had not been justified by or been in line with the above-mentioned facts. 8. On 19 February 2009 the authorities in San Marino instituted criminal proceedings no. 204/2009 against the applicant for money laundering. 9. On 9 March 2009 the Commissario, relying on Article 29 of the 1939 bilateral Convention on Friendship and Good Neighbourhood between San Marino and Italy (Convenzione bilaterale di Amicizia e Buon Vicinato tra San Marino e Italia), reported the suspected operations to the Italian National Prosecutor against the Mafia (Procura Nazionale Antimafia) and requested information concerning the applicant and his brother. 10. On 13 October 2009 the requested judicial authority in Italy informed the Commissario that there were ongoing proceedings for usury against the applicant’s brother, as well as V. and T, following a criminal complaint submitted by B., a jewellery trader. The applicant was also considered by the Italian financial police (Guardia di Finanza) to be very close to various members of a local Mafia group in Catania. 11. On the basis of that information, the Commissario sent a formal letter of request on 23 October 2009 to the public prosecutor in Catania for assistance in finding out if the money deposited in the current account in the San Marinese bank could possibly have been related to the offence of usury or to any other crimes in any way related to G.S. 12. By a note of 21 November 2009 the Catania public prosecutor replied to the Commissario. He stated that after examining the San Marinese bank documents attached to the letter of request and comparing those documents with information at his disposal, the money deposited in the San Marinese current account had to be considered as proceeds of the offence of usury or related to it. 13. On 21 December 2009, following a request by the Commissario, the AIF provided the judicial authority with further information regarding the bank operations carried out by the applicant and his brother. 14. By a decision of 4 February 2010 the Commissario informed the applicant (judicial notice), that he was under investigation for money laundering under Article 199 bis of the Criminal Code for the actions taken in San Marino on “1 January 2008” (the first page of the same decision gave the correct date of 1 December 2008). According to the prosecution, the opening of the bearer savings books and the deposit of the money from the current account, held by the applicant’s brother, into the bearer savings books in equal shares of EUR 12,500 each for an overall sum of EUR 850,000 had constituted acts of concealment, transfer and substitution of money, aimed at hiding the criminal origin of the funds, which were the proceeds of the offence of usury. 15. By the same decision, the Commissario also ordered the seizure of the EUR 850,000 deposited in the sixty-eight bearer savings books as well as the physical seizure of the savings books themselves, if they were in the possession of the bank, considering the money to be the corpus delicti of the offence of money laundering. Moreover, the Commissario ordered the bank to transfer to it within fifteen days a copy of all the documents relating to the savings books and to provide any other useful information (including the precise final balance of each book). 16. On the same day the Commissario also asked the AIF and the judicial police to carry out further investigations. 17. The results of those investigations were eventually reported by the AIF on 21 April 2010. It stated, inter alia, that G.S. had opened a first bearer savings book (no. 1) on 4 February 2002 and had deposited EUR 579,352.36 through three deposits of cash. Following a series of other operations the bearer savings book (no. 1) had been closed on 30 October 2006. On the same day, G.S. had opened a current account, in which he had deposited the money left in bearer savings book (no. 1) and had over time deposited 683 cheques worth a total EUR 1,817,406.14. 18. According to the AIF, B. had written or been the beneficiary of seven of the above-mentioned cheques for an overall sum of EUR 37,890, V. had written or been the beneficiary of thirty-six cheques (EUR 99,373), T. of twenty-six (EUR 78,375) and S.S. of one (EUR 1,500). 19. On an unspecified date the applicant lodged a complaint with the Judge of Criminal Appeals (Giudice d’Appello Penale) against the Commissario’s decision of 4 February 2010. He applied, firstly, to have the whole decision annulled on the ground that it had not complied with the time-limit provided by law. Secondly, he sought the annulment of the seizure since it lacked the requisite fumus delicti (presumption of a sufficient legal basis) and because the Commissario had seized all the money in the applicant’s bank accounts and not just that directly linked with the alleged “predicate offence” (usury). In the applicant’s opinion the Commissario should have seized only EUR 37,890 and not the entire EUR 850,000 given that in the report submitted by the AIF on 21 April 2009 only EUR 37,890 had definitely been considered as the proceeds of usury against B. 20. By a decision of 21 September 2010 a Judge of Civil Appeals in his capacity as Judge of Criminal Appeals dismissed the complaint. The judge held that the seizure decision had been delivered within the time-limit. He further held that the two prerequisites for the application of the disputed seizure, namely fumus delicti and periculum in mora (a danger in delay), had been in place. 21. Moreover, the judge noted that even if the AIF report had limited the corpus delicti of the usury in question to EUR 37,890, such a limitation did not exclude the possibility that further amounts of money transferred into the savings books could also possibly have been profits from the alleged predicate offence. In the judge’s view, if that were not the case it was difficult to fathom why the applicant had transferred the whole sum into the savings books and not just EUR 37,890. 22. The applicant appealed to the Third-Instance Criminal Judge (Terza Istanza Penale) against the seizure decision and the decision of the Judge of Criminal Appeals. In particular, he highlighted, inter alia, the lack of proportion between the amount of money seized and the sum considered, in the Italian proceedings and the AIF report, to have been the proceeds of usury. 23. The Third-Instance Criminal Judge dismissed the appeal on 29 November 2010 after an oral hearing held the same day. He noted that there was no reason to believe that the predicate offence (usury) in the criminal proceedings in Italy against the applicant’s brother was the only offence ascribable to him. 24. On an unspecified date the applicant was served with a bill of indictment, which read: “...for the offence ex Articles 50 and 199 bis of the Criminal Code ... since with multiple actions connected between them by a common criminal plan, in the Banca di San Marino, in the presence of his brother, [the applicant] opened sixty-eight bearer savings books of EUR 12,500 each, where he transferred the overall sum of EUR 850,000 using money simultaneously (contestualmente) withdrawn by his brother [G.S.] from his current account, in which the latter had deposited sums deriving from usury or having a criminal origin ... acts committed in San Marino, on 1 December 2008”. 25. On an unspecified date during the applicant’s trial he was questioned at a public hearing by the first-instance judge on the merits (namely, the Commissario della Legge in his capacity as judge on the merits in inquisitorial proceedings). The applicant stated that the money that had been seized was profit from his work and savings and that he had decided to deposit it in a San Marinese bank rather than an Italian one in order to take advantage of the San Marino tax system. The applicant also explained that transferring the money had been the result of his reckless behaviour (“frutto di un comportamento sconsiderato”) after advice from the same bank manager who had later reported the operation to the AIF. 26. In order to prove that the money did not have a criminal origin, the applicant submitted a report prepared by a financial expert, who also took part in a subsequent hearing and was questioned by the judge. In particular, the expert stated in the report that the money deposited in the San Marinese current account had to be considered as the result of tax evasion (redditi non dichiarati), which at the time of the facts was an administrative rather than a criminal offence in San Marino. The origin of the assets had therefore not been “criminal”, as required by law, to amount to the crime of money laundering. 27. By a judgment of 10 January 2013 the applicant was found guilty of money laundering and sentenced to five years and six months’ imprisonment. He was also fined EUR 30,000 (multa a giorni) and prohibited from holding public office and exercising political rights for two years. In addition, the judge ordered the confiscation of all the seized money (indicated by the judge as EUR 853,304.80), in accordance with Article 147 of the Criminal Code. 28. On 11 December 2013 the judgment and its reasoning was filed with the court’s registry. 29. The first-instance judge held that previous case-law had established that in order to find someone guilty of money laundering it was not necessary to determine the specific legal classification of the predicate offence, perpetrator or victim. It sufficed instead to have evidence (prova logica) of the criminal origin of the proceeds in question. Hence, the acts leading to the predicate offence could be described in the charges and eventually ascertained during the trial, without the details of the manner in which the predicate offence had been committed (anche solo per sommi capi quanto alle modalita’ di commissione). 30. The first-instance judge considered that the alleged tax evasion argument used by the defence had been an acknowledgment that the assets involved had been the result of the embezzlement of the profits of the two companies through which G.S. had worked and had de facto confirmed the criminal origin of the money. 31. Moreover, many factors had demonstrated G.S.’s involvement in acts of usury, inter alia, the issuing and cashing of hundreds of cheques, the cashing of cheques with increased amounts as substitutes for ones not paid out, the cashing of cheques in exchange for high-denomination banknotes and the brief period of time in which all such operations had been carried out. All those elements, together with the results of the Italian investigations, had, owing to their relevance and repeated nature, demonstrated usury, regardless of the results of the Italian criminal proceedings. 32. On an unspecified date the applicant lodged an appeal against the first-instance judgment. He complained, inter alia, about the lack of clarity in the charges, which had not contained any precise description of the predicate offence (apart from a reference to the offence of usury, which had anyway been connected with only a very small part of the confiscated money). In his opinion, that had amounted to a violation of his right of defence, as provided, inter alia, by Article 6 § 3 (a) of the Convention. 33. The applicant also challenged the first-instance judge’s finding that the confiscated money had had a criminal origin and the fact that no other predicate offence (apart from usury, which in his opinion had to be considered as relating to only a small part of the assets) had been specified and identified by the judgment. 34. In addition, the applicant argued that the reason given by the first-instance judge on the specific point of the criminal origin of the money had led to a reversal of the burden of proof. In fact, the first-instance judgment had noted that the applicant had not submitted any evidence of the lawful origin of the money. It followed that there had been a violation of the presumption of innocence and of the applicant’s right of property. 35. The applicant also argued that the wording of Article 147 of the Criminal Code in force at the time of the facts (December 2008) had provided for confiscation of only the price, the product and the profit of the offence. According to the defence, the judge had applied an amendment to that provision which allowed the confiscation of assets whose legitimate origin had not been proven by the person found guilty. That being so, a finding of guilt should have led to the confiscation of only EUR 37,890, namely only those assets whose criminal origin (usury to the detriment of B.) had been shown. 36. By a judgment of 3 February 2015, filed with the registry on 4 February 2015, the Judge of Criminal Appeals upheld the first-instance judgment, reducing, however, the penalty. The applicant was sentenced to two years’ imprisonment and prohibited from holding public office and exercising political rights for one year. The fine was reduced to EUR 5,000. 37. The judge also upheld the order to confiscate all the money deposited in the savings books since the criminal origin of those assets had been proven (with reference to usury and embezzlement by the applicant’s brother to the detriment of the Italian companies). Moreover, the laundering had concerned all the money and not just part of it, therefore the applicant could have foreseen that the whole sum could be confiscated. 38. The judge noted that the law did not require that charges or final judgments refer to a specific legal classification of the predicate offences at the origin of money laundering. Nor was it necessary to specify when an offence had been committed or by whom. The only relevant factor was the determination beyond a reasonable doubt that funds had a criminal origin (provenienza da misfatto). Accordingly, in order to find the applicant guilty of money laundering it had been sufficient for the judge to ascertain that the money allegedly subjected to laundering had not had a lawful origin, that is it had been possible to categorically exclude through evidence and logical deductions that the origin of the proceeds had been anything other than criminal. 39. Article 199 bis of the Criminal Code, as amended by Chapter 2, Article no. 7 of Law no. 28 of 26 February 2004, and by Article 77, Paragraph 2 of Law no. 92 of 17 June 2008, as applicable at the time of the facts (1 December 2008), read in so far as relevant as follows: “(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), 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).” (3) If the crime at the origin of the laundered money has been committed in a foreign country, such a crime has also to constitute a prosecutable criminal offence in San Marino (deve essere penalmente perseguibile e procedibile anche per l’ordinamento Sammarinese). ... (7) The judge applies the penalty provided for the predicate offence if it is less heavy.” 40. Article 147 of the Criminal Code, as amended by Article 5 of Law no. 28 of 26 February 2004, read at the time of the commission of the offence in the present case (December 2008), in so far as relevant, as follows: “1. In a judgment of conviction, the Judge shall order (il giudice ordina) the confiscation of items belonging to the convicted person which were used or which were intended to be used to commit the crime, as well as the confiscation of the price, the product, and the profit of the crime. ... 3. In the judgment of conviction the Judge must always order (e’ sempre obbligatoria) the confiscation of items which were used or which were intended to be used to commit the offence ex Art.199 bis (money laundering), or offences connected to terrorism, or offences with the purpose of subverting the constitutional order, as well as ordering the confiscation of the price, product and profit of the crime....” 41. Article 147 § 3 of the Criminal Code, as amended by Article 32 of Law no. 126 of 15 July 2010, in so far as relevant, reads as follow: “(3) In a judgment of conviction, the judge shall always order the confiscation of items which were used or which were intended to be used to commit the offences ex Articles 150, 155 aggravated, 156, 167, 168, 169, 177 bis, 177 ter, 194, 195, 195 bis, 195 ter, 196, 199 § 1, 199 bis, 204 (3-1), 204 bis, 207, 212, 237, 239, 241, 242, 246, 247, 248, 249, 295, 296, 297, 298, 299, 300, 305 bis, 308, 309, 337 bis, 337 ter, 371, 372, 373, 374 comma 1, 374 ter (1), 401, or offences connected to terrorism, or offences with the purpose of subverting the constitutional order, or the crime ex Article 1 of Law no. 139 of 26 November 1997 or the crime ex Article 2 of Law no. 99 of 7 June 2010, as well as ordering the confiscation of the price, product and profit of the crime. If the items which were used or which were intended to be used to commit the crime, as well as the price, the product and the profit of the crime, have been completely or partially mixed in with assets having a lawful origin, the judge shall order the confiscation of such assets up to the estimated value of the items which were used or which were intended to be used to commit the crime, or the estimated value of the price, product, and profit of the crime. In all of the above mentioned cases the judge shall also order the confiscation of money or other assets whose lawful origin the convicted person cannot demonstrate. If (direct) confiscation is not possible the Judge shall order (impone l’obbligo di) the payment of an amount of money equivalent to the value of the items to be confiscated.”