Communicated on 15 June 2017

FIRST SECTION

Application no. 75201/16 Daniela STAIANO against San Marino lodged on 29 November 2016

STATEMENT OF FACTS

1. The applicant, Ms Daniela Staiano , is an Italian national, who was born in 1962 and lives in Grottaferrata , Rome. She is represented before the Court by Mr D. Fiorino , a lawyer practising in Rome.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The criminal proceedings No. 27880/2008 in Italy

3. 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 and (ii) ongoing money laundering (under Article 648 bis of the Italian Criminal Code - see paragraph 20 below), and sentenced her to six years and eight months ’ imprisonment and to the permanent prohibition from holding public office. According to the GUP, the applicant, together with her husband G. and nine other people (some of whom had also been found guilty of drug trafficking in the same proceedings), had constituted a criminal conspiracy in order to obtain, purchase (abroad), convey and import in Italy, significant quantities of cocaine and to launder the assets obtained therefrom. The GUP found that the sole role of the applicant in the conspiracy in connection with drug trafficking had been to transfer abroad the proceeds of the drug-trafficking but she had not taken part in the drug-trafficking itself. In particular, the laundering had consisted in transferring major sums of money to San Marino.

4. 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.

5. The above-mentioned decision became final on 4 June 2013 when the Court of Cassation ( Corte di Cassazione ) rejected the applicant ’ s appeal.

6. On an unspecified date the applicant started serving her prison sentence.

2. The criminal investigation No. 602/RNR/2010

7. 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 also 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 paragraph 17 below). Thus, the investigating judge issued a judicial notice and ordered the seizure of the money or other assets which were traced back to the applicant.

8. On 31 August 2013 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 bank operations in the same periods of the drug trafficking episodes and the report described in detail all the bank operations (for a total amount of EUR 629,550) that the applicant had carried out on the relevant bank accounts, from 5 June 2008 to until 25 May 2010.

9. On 30 October 2013 the investigating judge issued the indictment decision. In particular the charge read: “...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 operations carried out by the applicant in San Marino until 25 May 2010.

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 had 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 ). Thus, the same person who had committed the offences which had given origin to 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 a direct confiscation of EUR 1,377,832.55 (sum already seized) and issued a confiscation by equivalent means of a further EUR 16,159.17.

12. The first-instance judge acknowledged that before the amendments introduced by Law No. 100 of 29 July 2013 “self-laundering” had not been a criminal offence provided by the domestic law. He therefore addressed the issue in law as to whether the offence of criminal conspiracy could be considered a predicate offence of the 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) the Court of Cassation had held that the constitution of a criminal conspiracy could not be considered a predicate offence for the offence of money laundering, since a criminal conspiracy is not able, ex se , to give origin to illicit proceeds. Thus, under the Italian jurisprudence, proceeds can derive only from the specific offences committed by the members constituting the conspiracy, but not from the offence of criminal conspiracy itself. On the contrary, the judge noted that in a recent San Marino judgment (No. 3 of 15 May 2014), the Third-Instance Criminal Judge ( Terza Istanza Penale ), had found 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.

13. Having noted the legal principle, the first-instance judge, considered that nevertheless in the present case it was necessary to look at the specific facts and the role played by the applicant in the legal operations carried out by the conspirators. Even assuming that the applicant, for the above mentioned reasons, could not at the same time be found guilty of money laundering and having participated in the conspiracy, it was necessary for the judge to establish the actual role played by the applicant in the conspiracy. Deciding on the facts of the present case, the judge specified that the role of the applicant in the criminal conspiracy - of which she was found guilty in Italy - according to that judgment, 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 commission of the drug-trafficking (the offence which, according to the judge, had given origin to 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. Thus, her actions were not to be considered encompassed by the clause of “aiding or abetting”, 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 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.

4. The appeal proceedings

14. On an unspecified date the applicant lodged an appeal against the above-mentioned judgment on the same grounds already put forward at first instance.

15. 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.

16. 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, according to the Italian case-law of the Court of Cassation, in connection with the offence of money laundering, the offence of criminal conspiracy could not be considered as aiding and abetting the commission of the predicate offence. Thus, in the Court of Cassation ’ s view, which was shared by the judge of Criminal Appeals, criminal conspiracy could coexist with the offence of money laundering. Further, the judge of Criminal Appeals considered that until the members of the criminal conspiracy - which had been constituted in order to commit some specific offences - committed such specific offences, they would not obtain any profit. Profits derived exclusively from other offences actually committed by the members of the conspiracy ( reati-scopo ), not from the offence of criminal conspiracy ex se . For this reason, only the conspirators who had actually committed the offences which had given origin to the laundered assets (in the case at hand the drug trafficking) could not be found guilty of the laundering of such proceeds. This had not been the case of the applicant, who had not had any role in the drug trafficking.

B. Relevant law and practice

1. San Marino Law

17 . Articles 50 and 199 bis of the Criminal Code at the time of the facts (which ended on 25 May 2010) read as follows:

Article 50

“Whosoever, through one or more acts 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.”

18. Following amendments introduced by Law No. 100 of 29 July 2013 the clause “except in cases of aiding and abetting” was repealed.

19. In the judgment no. 3 of 15 May 2014 the Third-Instance Criminal Judge reiterated that a previous finding of guilt for the offence of criminal conspiracy constitutes a predicate offence for the purposes of the offence of (self) money laundering.

2. talian Law

20 . 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...”

COMPLAINT

21. The applicant complains, 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.

QUESTION TO THE PARTIES

Did the acts of which the applicant was convicted constitute a criminal offence under national law at the time they were committed, as envisaged by Article 7 of the Convention? In particular, was the quality of the law on the basis of which she was convicted sufficiently precise and foreseeable?

The parties are invited to supplement their replies by means of relevant domestic case-law and the Government is requested to supply a copy of the judgment no. 3 of the Third Instance Judge of 15 May 2014.