CONCURRING OPINION OF JUDGE DE GAETANO

1. This judgment reaffirms the principle – enshrined in many penal codes, as well as in national case-law and in doctrinal writings – that a person may be found guilty of receiving stolen property (or property obtained by fraud, misapplied or obtained by means of any offence) even though the thief is not prosecuted or punished – indeed, he may even be unknown – provided the actual commission of the theft or other predicate offence is proved. In the same vein, an accomplice may be found guilty of an offence even though the principal offender is never prosecuted or punished, and a co-conspirator may be found guilty of conspiracy to commit an offence even though none of the other co-conspirators are brought to justice (or, having been brought before the courts, are acquitted). Nothing in all this suggests, even minimally, a violation of Article 7 of the Convention.

2. What appears to have been problematic in this case is the fusion (or confusion) at the domestic level of two separate issues – the question of the autonomy of the applicant ’ s trial, in line with the principle mentioned above (see § 49, last sentence), and the entirely separate and independent question of the extent to which the privilege against self-incrimination affected third parties involved in an offence (§ 50, first sentence). To compound matters further, unhelpful arguments have been advanced (see § 38) based on the communicability or otherwise (as between principal and accomplice) of personal and/or real circumstances involved in the commission of an offence.

3. In the instant case, in view of the principle mentioned in para. 1 , supra , it would appear that it was unnecessary to invoke the margin of appreciation in § 53.