THIRD SECTION

Application no. 28005/12 M. N. and others against San Marino lodged on 26 April 2012

STATEMENT OF FACTS

A list of the applicants is set out in the appendix.

A. The circumstances of the case

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

1. Background of the case

I n or before the year 2009 criminal proceedings were instituted in Italy against named individuals (excluding the applicants) who were charged, inter alia , of conspiracy, money laundering, abuse of a position of influence in financial trading, embezzlement, tax evasion and fraud. In particular it was suspected that, Mr EMP organised , financed and managed, directly or indirectly a network of companies situated in various states (San Marino, Italy, Malta, Madeira (Portugal) and Vanuatu) all traceable to one source namely, San Marino Investimenti S.A. (herein after “ S.M.I. ”). According to the applicants EMP owned S.M.I. ’ s entire capital stock which was instrumental to the accomplishment of a series of investment and fiduciary operations ( operazioni fiduciarie ) the aim of which was to allow a number of Italian clients to launder money coming from illicit sources (by impeding the identification of the real source of the money entrusted to it by means of a double system of fiduciary mandates ( mandati fiduciari )). The group of co-accused were suspected of having, through such network, abusively supplied investment services contrary to the legal requirements as provided in the relevant Italian law ( Testo Unico Della Finanza ) and of having, abusively carried out financial activities without being in possession of the necessary economic and financial requisites and the relevant registration as required by Italian law ( Testo Unico Bancario ).

In the context of these proceedings, by means of a letter rogatory received by the San Marino judicial authorities on 8 May 2009, the Public Prosecutor ’ s office (of the Rome Tribunal) asked the San Marino authorities for assistance in obtaining documentation and carrying out searches in various banks, fiduciary institutes and trust companies ( banche , fiduciare e societa ’ trust ) in San Marino, in accordance with Article 29 of the Bilateral Convention on Friendship and Good Neighbourhood between Italy and San Marino of 1939.

By a decision of 27 November 2009 (hereinafter also referred to as exequatur decision), the ordinary first-instance tribunal ( Commissario della Legge , hereinafter CL) accepted the request in conjunction with the crimes of conspiracy, money laundering, aggravated fraud and embezzlement with the aim of fraud, considering that the relevant requirements for the execution of the request were fulfilled. In particular the CL considered that those crimes were also punishable under San Marino law. It therefore ordered the investigation to ensue in respect of all banks, fiduciary institutes and trust companies in San Marino for the purposes of acquiring information and banking documents ( inter alia , copies of statements showing transactions and movements, cheques , fiduciary dispositions ( disposizioni fiduciarie ) and emails) related to a number of named current accounts and any other current account which could be traced back ( riferibile ) to S.M.I. It gave further details as to the modalities of the search and seizure and ordered the judicial police (PG) to serve the decree upon the directors of all the banks and trust companies. It also warned that documentation obtained and forwarded could not to be used for purposes other than those linked to the criminal proceedings mentioned in the decree accepting the request made in the letter rogatory , unless the court decided otherwise following a further assessment.

According to the applicants, by a note of 26 April 2010 the CL ordered that the Italian citizens who had undertaken fiduciary agreements ( aperto posizioni fiduciarie ) with S.M.I. (1452 in all) should be served with a notification of such order.

Following the investigation and the seizure of the relevant documents and in consequence of the last-mentioned CL order, the applicants were served with the relevant notification ( M.N . on 24 January 2011, S.G. on 16 June 2011 and C.R. and I.R . on 4 February 2011).

On an unspecified date the applicants lodged a complaint (Article 30 of law no. 104/2009) before the judge of criminal appeals ( Giudice delle Appellazioni Penali ) against the CL decision concerning the seizure of documents related to them on the basis that they were not persons charged with the criminal offences at issue. They alleged a violation of the principles contained in the San Marino declaration on citizens ’ rights and fundamental principles (hereinafter “the declaration”). In particular they contended that the principle that crimes had to be punishable under the law of the requested state had not been respected, that there had been a violation of both Italian and San Marino law, and the absence of the fumus delicti and of any link between the crimes at issue and the position of the applicants. Moreover, given that many such complaints by persons in similar situations had already been declared inadmissible by the domestic court for lack of standing - them not being the persons charged and therefore not the direct victims of the seizure - the applicants further complained about the illegitimacy of Article 30 (3) of law no. 104/2009 as being in contrast with the principles laid down in the declaration, in so far as it had been interpreted as not protecting and recognising the right to lodge a complaint by anyone who was subject to coercive measures of seizure of documents (related to their interests) as a result of an exequatur judgment.

By decisions of 25 February 2011 in respect of S.G., C.R. and I.R. , and of 30 June 2011 in respect of M.N. , the judge of criminal appeals declared th e complaints inadmissible. The c ourt noted that the applicants had been served with a notice of the exequatur order and had exhausted remedies available in law. It further noted that an exequatur decision may only be challenged by a person who is involved in the investigation being carried out by the requested authority, or by a third party who is not investigated but who has been subjected to the measure. A person, who, in consequence of the investigation, is involved in any way with the activity undertaken, may not be considered as an interested person since any breach of the rights or interests of such persons, resulting from the execution of the exequatur decree, must be raised in the ambit of the Italian jurisdictions. The court considered that as established by domestic case-law it was only after the finding of admissibility of the application that a judge had to establish a time-limit for submissions. For the purposes of admissibility one had to verify, amongst other things, the juridical interest of the appellant. Moreover, any constitutional complaints could give rise to an assessment of such question by the competent court ( Collegio Garante ), following a referral, only if the original proceedings where properly instituted, and not where, because of a lack of juridical interest of the appellant, the application was inadmissible. In the present case the appellants were not interested parties in relation to the exequatur decision, but may only have an eventual interest in the effects of such execution, and thus they did not have juridical interest t o challenge the said decision.

In relation to the illegitimacy complaint, the judge of criminal appeals only pronounced itself on the request made by C.R. , and by a decision of 29 April 2011 the judge of criminal appeals declared the complaint inadmissible as on that date no proceedings appeared to be pending.

The applicants appealed to the third instance criminal judge ( Terza Istanza Penale ) reiterating their complaints and invoking the European Convention on Human rights and Fundamental Freedoms. In particular they noted that the CL exequatur decision had ordered the seizure of documents related to them, despite them not being linked to any of the activities mentioned in that decision or them having ever had relations with the Italian companies. Moreover, the seized documents were irrelevant for the purposes of ascertaining the existence of the crimes attributed to the accused, thus, the only purpose behind the seizure was to name the Italians who had had dealings with S.M.I. irrespective of any involvement they had had with the facts object of the letter rogatory . They further challenged the appeal decisions in so far as they were issued in breach of the rights of the defence , in particular as they were not allowed to present submissions as provided for in law, neither in respect of the challenge nor in respect of the constitutional complaint. Furthermore, the decisions had lacked reasons and made no reference to the actual position of the applicants and a lack of reasoning in respect of the rejection of the constitutional complaint was particularly detrimental in so far as it did not allow a proper examination of the matter by the third-instance judge.

By decisions of 2 March 2011 filed in the registry on the same day (served on unspecified dates antecedent to those of M.N. ) in respect of S.G. and I.R , of 29 July 2011 filed in the registry on the same day and served on 3 August 2011 i n respect of C.R. , and of 27 October 2011 filed in the registry o n the same day and served on 10 November 2011 in respect of M.N. , the third instance criminal judge confirmed the appeal decision in that the appellants lacked juridical interest, in consequence the appeal was inadmissible and in any event there appeared to be no violation of law afflicting the impugned decision. The question of constitutional legitimacy of law no. 104/2009 was also rejected on the same ground highlighted by the appeal court.

Subsequently, the applicants (except for M.N . ) lodged an objection requesting the revocation of the exequatur decision in their respects, on the basis that the documents related to them were of no relevance to the investigation.

By a decision of 7 September 2011, served on their lawyer on an unspecified date, the judge held that the objection was to be discontinued ( non luogo a procedere ) in view of the findings of the third instance criminal judge and noting that the authorities were not limited to carrying out the actions requested by the letter rogatory only in respect of persons formally charged, but could also extend such acts to thirds who were not so charged.

The applicants lodged a further objection requesting the CL to restrict the use of the seized documents. By decisions filed in the relevant registry on 19 September 2011 the CL held that its exequatur decision of 27 November 2009 had already applied such a limitation, indeed that decision had clearly stated that such documentation was not to be used for purposes other than those linked to the criminal proceedings mentioned in the letter rogatory , unless the court decided otherwise following a further assessment.

B. Relevant domestic law

Article 29 of the Bilateral Convention on Friendship and Good Neighbourhood between Italy and San Marino of 1939, reads as follows:

“The judicial authority of each contracting State, shall, following a request from the other contracting State, proceed to notify acts, execute acts in conjunction with preliminary investigations, including seizure of objects constituting the corpus delicti , and carry out any other act related to criminal proceedings underway before the abovementioned authorities.

In relation to the matter mentioned in the above sub-paragraph the judicial authorities of the two states must correspond directly between them. In the event that the requested authority is not competent, it will, of its own motion, forward the letter rogatory to the state having competence in the matter according to the latter ’ s law.

The execution of a letter rogatory may be refused only in the event that it does not fall within the competence of the judicial authorities of the requesting state.”

In so far as relevant Article 30 of law no. 104/2009 reads as follows:

“1. The decrees of notification in relation to the exequatur proceedings cannot be challenged.

2. Exequatur decrees which do not concern coercive measures and which are not referred to in sub paragraph one may be challenged by the Attorney General ( Procuratore del Fisco ), on the basis of its legitimacy, by means of a written application before the judge of criminal appeals, within ten days from the date of the notification of the exequatur decree.

3. An exequatur decree providing for coercive measures may be challenged by any means available in the domestic system. Interested persons, through a qualified lawyer, and the Attorney General may lodge a written application before the judge of criminal appeals, regarding the existence of the requisites of Title I and II of Chapter one of this Law, within ten days from the date of the notification of the exequatur decree.

4. The lodging of the above-mentioned applications suspends the execution of the rogatory request.

5. The attorney general for the purposes of sub article two above, and the attorney general and interested parties for the purposes of sub article 3 above, may view the letter rogatory or such parts which are not expressly reserved within ten days of the application. At the end of such time limit the CL transmits the file to the competent judge.

In so far as relevant Article 36 of l aw no.165/2005 regarding the obligation of banking secrecy reads as follows:

“1. Banking secrecy means that authorized individuals, are prohibited from divulging to third parties data and information obtained in the exercise of their specified functions.

5. Banking secrecy cannot be held against:

a) the criminal justice authorities. In such cases the acts of the judicial proceedings, in the inquiry stage, must be maintained rigorously secret.

b) the surveillance authorities ( autorita ’ di vigilanza ) in the exercise of their functions of surveillance and the fight against terrorism and money laundering.”

COMPLAINTS

The applicants complain under Article 6 § 1 of the Convention that they did not have effective access to court to complain about the exequatur decision ordering the search and seizure of banking documents referring to them, and which order had been served on them.

They further complain under Article 6 § 1 read in conjunction with Article 6 § 3 (b) that they did not have a fair trial as a result of their having been denied standing in the proceedings to contest the order of the CL.

The applicants also complain that the domestic courts failed to assess their complaint regarding the legitimacy of such an interpretation of the law with rights enshrined in the San Marino declaration and the European Convention, again denying them access to a court.

They further complain under Article 8 that the measure had interfered with their private life and correspondence, it had not been in accordance with the law, nor proportionate and it had failed to provide relevant procedural safeguards.

Lastly, they complain that they had been denied an effective remedy for the purposes of their Article 8 complaint, in breach of Article 13 of the Convention.

QUESTIONS TO THE PARTIES

1. Have all the four applicants complied with the six-month time-limit laid down in Article 35 § 1 of the Convention ?

2. Was Article 6 § 1 of the Convention under its civil head applicable to the circumstances of the present case? In particular did the proceedings instituted by the applicants concern a dispute over a “civil right” which can be said, at least on arguable grounds, to be recognised under domestic law?

3. If so, did the applicants have a fair hearing in the determination of their civil rights and obligations in accordance with Article 6 § 1 of the Convention? In particular, were the domestic courts ’ decisions based on a restrictive interpretation of procedural rules such as to undermine the very essence of the applicants ’ right to a court to challenge the exequatur decree? Alternatively, did the law baring access to the applicants pursue a legitimate aim? Was this limitation proportionate to the aim to be achieved?

4. Moreover, did the applicants have a fair hearing in the determination of their civil rights and obligations in accordance with Article 6 § 1 of the Convention? In particular, did the domestic courts ’ decisions rejecting the applicants ’ complaints regarding the legitimacy of the law ( in relation particularly to their complaint that the interpretation of the law in their case breached their right to fair trial (access to court) ) , undermine the very essence of the applicant ’ s right to a court?

5. Has there been an interference with the applicants ’ right to respect for their private life and correspondence, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

6. Did the applicants have at their disposal an effective domestic remedy for their Convention complaints under Article 8, as required by Article 13 of the Convention?

REQUEST TO THE PARTIES

The applicants should submit to the Court within three weeks the decision of the third instance judge in respect of S.G. and I.R. , together with the date of service of such decisions.

Appendix

N o .

Firstname LASTNAME

Nationality

Representative

S.G.

Italian

A. SACCUCCI

M.N.

Italian

A. SACCUCCI

C.R.

Italian

A. SACCUCCI

I.R.

Italian

A. SACCUCCI