FIRST SECTION
CASE OF MELANDRI v. SAN MARINO
(Application no. 25189/21)
 
 
JUDGMENT
 
Art 1 P1 • Confiscation of sum of money derived from crime and applicant’s inability to recover it, following his conviction for money laundering • Measure proportionate to legitimate aim of fighting against money laundering • Procedural safeguards available to applicant in relevant proceedings
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
12 September 2024
 
FINAL
 
12/12/2024
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Melandri v. San Marino,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Ivana Jelić, President,
 Alena Poláčková,
 Krzysztof Wojtyczek,
 Lətif Hüseynov,
 Péter Paczolay,
 Gilberto Felici,
 Erik Wennerström, judges,
and Ilse Freiwirth, Section Registrar,
Having regard to:
the application (no. 25189/21) against the Republic of San Marino lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mr Vincenzo Secondo Melandri (“the applicant”), on 7 May 2021;
the decision to give notice to the San Marinese Government (“the Government”) of the complaints concerning Article 6 §§ 1 and 3 (a) and (b) of the Convention and Article 1 of Protocol No. 1 to the Convention and to declare inadmissible the remainder of the application;
the parties’ observations;
the decision of the Government of Italy not to make use of their right to intervene in the proceedings (Article 36 § 1 of the Convention);
Having deliberated in private on 27 August 2024,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns a complaint under Article 6 §§ 1 and 3 (a) and (b) of the Convention in relation to criminal proceedings against the applicant for money laundering and a complaint concerning the consequent confiscation of the applicant’s property under Article 1 of Protocol No. 1 to the Convention. THE FACTS
2. The applicant was born in 1969 and lives in Russi, Italy. He was represented by Mr A. Pagliano, a lawyer practising in Naples. 3. The Government were represented initially by their Co-Agent, Ms M. Bovi and later by their Agent Ms S. Bernardi. 4. The facts of the case may be summarised as follows. BACKGROUND TO THE CASE
5. On 28 November 2012, the Financial Intelligence Agency (hereinafter ‘FIA’) reported to the Investigating Judge a number of banking transactions carried out by the applicant and L.C., at B. C. S.p.a. – a San Marino bank (hereinafter ‘the bank’) – that could constitute money laundering. 6. It transpired that in the period from 2 September 2009 to 17 March 2010, the applicant had deposited into an account in his name, held at the bank, 4,865,830 euros (EUR) in cash and a number of cheques amounting to approximately EUR 500,000. 7. Meanwhile L.C. – who had been introduced to the bank by the applicant – had also opened a current account with the bank, in the name of a wine company named O. (hereinafter ‘company O.’), of which he was the sole director. Over the period 20 October 2010 to 22 December 2010 EUR 310,000 had been credited to company O. by company A.G. which was traceable to the applicant. 8. The FIA reported that it had learned from press reports in June 2012 that the applicant, together with L.C., had been subjected to measures restricting personal freedom as a result of the investigation called “Operation Baccus”, promoted inter alia by the Bari Anti-Mafia District Directorate. The applicant and others had been charged, in Italy, with a number of crimes, including money laundering, conspiracy to commit extortion, usury, and fraud against the State, via a series of fictitious operations in the wine sector (proceedings no. 14219/09). The illegal activities had been intended to eventually defraud the Italian tax authorities and the European Union. 9. According to the Italian judicial authority (see precedent paragraph), the criminal association carried out a number of fictitious business operations in the wine industry. In particular, a number of companies in Puglia had issued invoices to company A.G. for apparent supplies of must. Through such fictitious transactions the criminal organisation’s illicit proceeds were laundered, while company A.G. benefitted from the reduction of costs resulting in tax savings and the receipt of undue benefits. The pattern of these operations was confirmed, according to the FIA, in the relations between company O. and company A.G. as reflected in the respective bank accounts. THE CRIMINAL PROCEEDINGS IN SAN MARINOThe preliminary stages

10. As a result of the above, criminal proceedings no. 865/2012 were opened in San Marino. The Investigating Judge in San Marino acquired, by means of letters rogatory, the relevant documentation from the Italian authorities. The latter pointed out that the amounts deposited by the applicant in the bank were not compatible with his personal savings but were the result of the activities carried out with his associates of the mafia organisation referred to in the Italian criminal proceedings no. 14219/09. Further information received by the same means, in 2013, highlighted the role of fictitious operations of company O. inter alia with company A.G., in the context of the complex scam perpetrated by the criminal organisation. On 14 November 2013 the Court of Appeal of Bari sent a copy of its judgment in criminal proceedings no. 14219/09 whereby the applicant had been found guilty of issuing false invoices and criminal association (confirmed later by the Court of Cassation in the most part, save some counts listed in the charges which had become time-barred). 11. On 22 November 2013 the Investigating Judge in San Marino, also on the basis of the elements acquired by virtue of international judicial assistance, charged the applicant and L.C. with the offence of money laundering pursuant to Article 199 bis of the Criminal Code (hereinafter ‘CC’). He also ordered the preventive seizure of a life insurance policy with a single premium taken out with C.S.A. S.p.a. on which securities and sums amounting to roughly EUR 6,800,000 had been transferred, an account in CIS bank, holding EUR 480, as well as of any other account traceable to the applicant with any other financial institute in San Marino. 12. The seizure of the policy was enforced on 5 December 2013. 13. On 9 December 2014 the applicant was notified that he was being charged for the offences under Articles 50 (continuous offences) and 199 bis (money laundering) of the CC, as well as those under Articles 50, 73 (co‑participation and co-operation) and 199 bis of the CC committed together with L.C. 14. On 12 and 13 March 2015 the applicant and LC. were questioned. 15. On 27 March 2015 the Investigating Judge ordered the seizure of a safe deposit box and its contents held at the bank in the applicant’s name. The seizure was enforced on 30 March 2015 and the box opened on 15 April 2015, date when the applicant’s challenge to the seizure was rejected. 16. On 17 April 2015 the Investigating Judge issued an indictment against the applicant for
i) (first charge) the criminal offences provided for and punished by Articles 50 and 199 bis of the CC, because with several actions in pursuance of the same criminal plan, he transferred and concealed (occultava) money obtained from crimes (namely, misappropriation of funds obtained by the use of false invoices, fraud (frode) to the detriment of the treasury and scams to the detriment of the European Union (truffe comunitarie)). The funds were transferred to San Marino as apparent commercial operations with company A.G. administered by the applicant. In particular the applicant deposited in current account X, opened in his name at bank CIS, EUR 6,132,577.39 in cash and EUR 1,768,915.53 in cheques. After having been invested in movable property and foreign funds, the transferred funds, together with other sums provided by the applicant were in part withdrawn (EUR 1,986,081.50 in cash) and in part (EUR 8,669.923,31) used to make bank transfers (bonifici) into other accounts in the applicant’s name. Part of the latter sum was used to open a life insurance policy in the applicant’s name which, on 10 March 2011, stood at EUR 6,832,907.67, on 11 December 2011 a further EUR 44,5000 were added into the policy, and on 22 December 2011 EUR 20,000 were withdrawn and transferred into another account held by the applicant. The latter sum was then in part (EUR 10,000) withdrawn from that account and in the remaining part issued in the form of two cheques (each of EUR 5,000). The impugned behaviour occurred in San Marino and came to an end on 5 December 2013, date when the life insurance policy was seized; and
ii) (second charge) for the offences provided for and punished by Articles 50, 73 and 199 bis of the CC because with several actions in pursuance of the same criminal plan, together with L.C., he transferred money obtained from crime (fraud to the detriment of the treasury and the European Union and false invoices). In particular, in relation to the sum of EUR 310,000 transferred to company O. by company A.G. and eventually transferred in part (EUR 160,000) in favour of a certain A.M., withdrawn in cash in respect of EUR 14,500 and the remainder used to issue cheques. This conduct having occurred in San Marino until 22 December 2013. The trial
17. The applicant was assisted by counsel throughout the criminal proceedings against him. During the trial the preliminary motions raised by the defendants were upheld. The FIA Director provided a supplementary report detailing all the banking operations which had been carried out by the applicant in San Marino which showed in particular that cash had been deposited in current account X until 2 December 2010 and cash had been withdrawn until 5 April 2011. The report also showed that the opening of the insurance policy and the relevant deposit had taken place on 10 March 2011, whereas the sums covered by the policy had been transferred until 27 December 2011 (date of partial redemption). 18. The defendants submitted their defence pleadings, in particular the applicant argued that there was no proof of the illicit origin of the funds and that the crime of self-laundering was only introduced by means of Law no. 100/2013 (see paragraph 31 below), that is, after the ascribed conduct, and subsidiarily asked to benefit from the privilege of self-laundering to obtain the lesser punishment in respect of the predicate offences. The FIA Director gave testimony as well as a certain M.G. who testified to have issued false invoices to company O. The relevant reconstruction of the timelines and transfers, as presented at the trial, was not challenged. The first-instance judgment
19. By a judgment of the Judge of First Instance (Commissario della Legge) of 10 January 2019 the applicant was found guilty of money laundering, for having transferred and concealed funds of illicit origin, in relation to both charges considering the continuous nature of the offences taken together (but only in relation to acts committed after the amendments of 2013 which entered into force on 29 July 2013 (Law no. 100/2013) to Article 199 bis of the CC). L.C. was acquitted in the absence of concrete evidence that the co-operation with the applicant, with which he had been charged, continued after the entry into force of Law no. 100/2013. Leaning towards the minimum scale of punishment, the applicant was sentenced to, inter alia, four years and six months imprisonment. Moreover, according to Article 147 of the CC (see paragraph 27 below) the judge ordered that the property previously seized (see paragraphs 11 and 15 above), and the interest accrued thereon, be confiscated. 20. The Judge of First Instance considered that the applicant had been involved in various criminal proceedings related to economic crime which generated substantial sums of money (millions of euros). The circumstances of the case, including the timelines and methods used, showed that the funds held by the applicant derived from such wrongdoing. That evidence (prove logiche) sufficed to convince the judge, as required by domestic case-law, irrespective of a finding of guilt in respect of those predicate offences. Indeed, in Italy the applicant had only been found guilty in part (including various conduct related to issuing false invoices as of 1997) as other offences had become time barred or had not been sufficiently proven (the fraud). Furthermore, the applicant’s recapitulation of his business dealings turned out to be ill-founded and in various aspects disproved, to the extent, ad abundantiam, that the false invoices referred to quantities which could not even have been held in the stores considering the latter’s size. Substantial sums of money were deposited in San Marino, shortly after those circumstances, which could not have been the fruit of his licit activity – indeed the applicant had not proved that. It could not be ignored that the applicant had been involved in organised crime over a number of years and that the deposits had been made in cash, typical of persons who wanted to hide the origin of the funds. The applicant’s conduct thus amounted to the offence under Article 199 bis of the CC, and the elements of the crime, both the objective element and the deliberate intent had been established. 21. In the first-instance court’s view, the permanent nature of the behaviour intended to hide the funds (occultamento) meant that it only came to an end on 22 November 2013 when the funds had been seized, justifying the classification as continuous offences. In the light of the applicant’s argument that the offence of self-laundering had been introduced only in 2013, the applicant could therefore only be sanctioned for the period subsequent to that law, which entered into force on 29 July 2013. The appeal proceedings
22. The applicant appealed submitting, in so far as relevant, that the amounts defined in the charges corresponded to his capital and business profile and arguing that there was no connection between the funds deposited in San Marino and the crimes with which he had been charged [in Italy], pointing out how such funds actually originated from value added tax (‘VAT’) refunds obtained from the Italian tax authorities, and, thus, could not be considered illicit. He further argued that the conduct attributed to him amounted to self-laundering in so far as he would also be the author of the predicate offences. However, the offence of self-laundering was created by means of the amendments to Article 199 bis of the CC (removing the exception that applied to persons who had committed the predicate offence). The latter only entered into force on 29 July 2013, and thus, had not existed at the time of the impugned conduct, which could therefore only concern the transfers which came to an end in March 2011, and thus he could not be punished for it. Nor could Law no. 99/2010 (see paragraph 32 below) apply to his case. 23. By a judgment of 6 November 2020, filed in the relevant registry on 11 November 2020, the Judge of Appeal in criminal matters (hereinafter ‘the Judge of Appeals’) upheld the finding of guilt on the first charge while varying its basis. In particular, he considered that the applicant had indeed committed self-laundering, which was nevertheless prosecutable in the present case given that Law no. 99/2010 (see paragraph 32 below) had already provided that the relevant exception under Article 199 bis of the CC did not apply in relation to the predicate offence of fabricating false invoices. The applicant’s appeal, referring to Article 1 (f) of Law no. 99/2010, was unclear as to why it should not apply, indicating arguments which could only be relevant for conduct related to the period antecedent to June 2010. However, the offence at issue had been committed as from 10 March 2011, i.e. after the entry into force of Law of no. 99/2010, until 27 December 2011, date of the last transfer of the insurance policy. 24. On the merits of the first charge, the Judge of Appeals noted that the findings of the Italian Court of Appeal confirmed by the Court of Cassation (see paragraph 10 above) were clear in relation to the use of false invoices in favour of company A.G. for fictitious services, in relation to which the applicant had obtained undue tax reimbursements from the State. The Judge of Appeals considered, inter alia, that the findings of the first-instance court as to the illicit origin of the sums at issue had been based on numerous, serious, precise and compellent indications and there was no doubt that the funds were the result of offences committed via the dealings of company A.G. In addition, it would have been normal and easy for the applicant to prove that the funds originated from his licit business. This was not so and there was little doubt that any such licit funds would not have been circulated in cash. According to the Judge of Appeals, those funds, or the most part, constituted the personal profit made by the applicant in exchange for his participation in the criminal association, within which his role was to receive false invoices and pay them by means of bank transfers. Thus, in a sense, those sums derived from the orchestrated tax fraud to the detriment of the Italian State, and in particular the use of false invoices to obtain financial advantages and undue reimbursements of VAT. Such profits (in the form of an economic advantage) had to be considered as also being derived from crime (misfatto), as required by Article 199 bis of the CC. The substantial sum was also obtained as a result of the misappropriation of funds mentioned in the indictment, and possibly also from money laundering in Italy, although the latter was not referred to in the indictment given the insufficient evidence. 25. The Judge of Appeals further acquitted the applicant of the second charge, considering the finding of the first-instance court incongruous, given the reasons for acquitting the co-accused (despite it being based on a wrong premise, namely the lack of proof of the continued existence of the offence following the 2013 amendments). In any event, even on the correct premise being applied on appeal, the funds at issue in the second charge were rather the means to commit the crime not the profits and thus it was for that reason that both had to be acquitted. In consequence it redefined the punishment imposed to, inter alia, four years and three months of imprisonment. It confirmed the rest of the first-instance judgment. 26. On 10 December 2020 the Enforcement Judge ordered the confiscation of the assets previously seized (including the life insurance policy), and the interest accrued thereon, in favour of the San Marino State treasury. RELEVANT LEGAL FRAMEWORK
        THE CRIMINAL CODE
27. Article 147 (1) and (2) of the Criminal Code concerning confiscation as in force from July 2009 until 13 August 2013 read as follows:
“1. The instrumentalities belonging to the criminal offender, which served or were destined to commit the crime, and the things being the price, product or profit thereof, shall be confiscated. 2. Regardless of conviction, confiscation shall also apply to the illegal making, use, carrying, holding, sale of or trade in property, even if not owned by the criminal offender, which constitutes a crime.”
28. Article 147 (3) of the Criminal Code was modified three times on different dates between 2009 and 2011 (covering the period in relation to the commission of the offence of which the applicant was found guilty, namely from 10 March 2011 to 27 December 2011), and read, in so far as relevant, respectively, as follows:
From 5 July 2009 to 15 July 2010 and from 11 November 2010 to 31 May 2012
“In case of conviction, the confiscation of the instrumentalities that served or were destined to commit the criminal offence referred to in Article 199 bis (...), as well as of the things being the price, product or profit thereof, shall always be mandatory. Where confiscation is not possible, the judge shall impose an obligation to pay a sum of money corresponding to the value of the instrumentalities and things referred above.”
From 15 July 2010 to 11 November 2010
“In case of conviction, the confiscation of the instrumentalities that served or were destined to commit the criminal offence referred to in Article 199 bis (...), as well as of the things being the price, product or profit thereof, shall always be mandatory. In the event that the instrumentalities that served or were destined to commit the criminal offence or those being the price, product or profit thereof have been mixed entirely or partially with goods having a licit origin, the judge shall order the confiscation of the combined goods up to the estimated value of the instrumentalities that served or were destined to commit the criminal offence or those being the price, product or profit thereof. In the cases indicated in the third sub-article, the judge shall order the confiscation of money, goods or other instrumentalities of which the person found guilty cannot prove the licit origin. Where confiscation is not possible, the judge shall impose an obligation to pay a sum of money corresponding to the value of the instrumentalities and things referred above.”
29. As of 13 August 2013, Article 147 of the Criminal Code read as follows:
“1. By passing a judgment establishing the defendant’s liability, the judge shall order the confiscation of the instrumentalities that served or were destined to commit the offence, and of the things being the price, product or profit thereof. 2. Regardless of conviction, confiscation shall also apply to the illegal making, use, carrying, holding, sale of or trade in property, even if not owned by the criminal offender, which constitutes a crime. 3. In the event of acquittal due to mental illness, the confiscation of the instrumentalities referred to in paragraph 1 shall always be mandatory when there is an ascertainable and tangible risk that they might be used by the individual to commit offences. 4. For the purposes of confiscation, the assets that the offender has fictitiously registered in the name of third persons, or in any case, owns through an intermediary, shall be regarded as belonging to him/her. 5. The confiscation of the profit, price or product of the offence shall also be ordered against the person who, having nothing to do with the offence, has taken advantage thereof, if he/she could be aware of the illicit origin of the things available to him/her. 6. Confiscation may also be ordered with respect to property the ownership of which has been transferred to a person other than the offender by virtue of inheritance law. In this case, confiscation shall be ordered only with respect to the assets currently available to the heir. 7. Confiscation shall not affect the rights of bona fide third parties on the things confiscated. 8. If the instrumentalities indicated in paragraph 1 above cannot be confiscated for any reason, the judge shall order the confiscation of money, property or other benefits available to the convicted person, also through an intermediary, for a value corresponding to the product, profit or price of the offence
9. When the instrumentalities referred to in paragraph 1 have been intermingled, in whole or in part, with property acquired from legitimate sources, the judge shall order the confiscation of the intermingled proceeds, up to the assessed value of the instrumentalities that served or were destined to commit the offence or of the things being the price, product or profit thereof. If the instrumentalities referred to in paragraph 1 have been transformed or converted, in whole or in part, in other assets, confiscation shall affect such assets, as well as the benefits deriving from the transformation, conversion or intermingling. 10. In case of conviction for the crimes referred to in Articles 150, 158, 157, 168, 168 bis, 169, 177 bis, 177 ter, 194 paragraph 3, 195, 195 bis, 195 ter, 196, 199, 199 bis, 204 paragraph 3 number 1, 204 bis, 204 ter, 207, 212, 237, 239, 241, 242, 246, 251, 252 ter, 287 bis, 287 ter, 295, 296, 297, 298, 299, 300, 305 bis, 308, 309, 337 quater, 337 quinquies, 371, 372, 373, 374 paragraph 1, 374 ter paragraph 1, 401, 401 bis, 403, 403 bis, the crimes for the purpose of terrorism, the crime referred to in Article 1 of Law no. 139 of 26 November 1997 and the crime referred to in Article 2 of Law no. 99 of 7 June 2010, the judge shall order the confiscation of benefits available to the convicted person, of which the offender is not able to demonstrate the lawful origin. 11. Confiscated properties or equivalent sums shall be allocated to the State budget or, where appropriate, destroyed.”
30. Article 199 bis of the Criminal Code (Money Laundering) (Law no. 123/1998 as amended by Law no. 28/2004 and Law no. 92/2008) reads as follows[1]:
“1. Apart from cases of participation in the commission of the offence, anyone who conceals, substitutes or transfers money, or cooperates or intervenes in causing it to be concealed, substituted or transferred, knowing that such money is proceeds of a criminal offence, for the purpose of concealing its true origin, commits a money laundering offence. 2. Also anyone who uses money, or cooperates or intervenes in causing it to be used in economic or financial activities, knowing that such money is proceeds from crime, commits a money laundering offence. 3. The provisions of this article also apply when the criminal offender from whom the proceeds were received is not indictable or punishable, or failing any of the conditions for the criminal offence to be proceeded against. Where the predicate offence was committed abroad it shall be criminally prosecutable and punishable also in San Marino. 4. Any property, as well as legal documents, acts or instruments evidencing title to or interest in such property shall be considered equivalent to money. 5. Anyone who commits the crimes set forth in this article shall be punished by terms of fourth-degree imprisonment, second-degree daily fine and third-degree disqualification from public offices and political rights. The punishments may be decreased by one degree based on the corresponding amount of money or assets and on the nature of the transactions carried out. The punishments may be increased by one degree when the facts have been committed in the exercise of a commercial or professional activity subject to the authorisation or qualification by the competent public authorities. 6. The judge shall apply the punishment corresponding to that imposed for the predicate offence, if this is less serious.”
31. By means of Law no. 100/2013 which entered into force on 29 July 2013 the words “Apart from cases of participation in the commission of the offence”, and thus the exemption from prosecution in the cases where the offender of the offence of money laundering had also committed the predicate offence generating the laundered money, was removed. OTHER RELEVANT LAWS
32. Article 1 of Law no. 99 of 7 June 2010 (Rules for the prevention of tax evasion through the use of forged documents and introduction of criminal conspiracy as an aggravating circumstance) reads as follows:
“For the purposes of this Law:
[.......] f) In case of issuance, use or release of invoices or other documents for non -existing transactions or services, the reserve clause referred to in Article 199 bis of the Criminal Code ("except for cases of participation in the commission of the offence") shall not apply.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF THE CONVENTION
33. The applicant complained that he was unable to defend himself since he had been charged with money laundering but was ultimately found guilty of self-laundering, in breach of Article 6 §§ 1 and 3 (a) and (b) of the Convention, which read as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing [...]
3. Everyone charged with a criminal offence has the following minimum rights:
(a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b)  to have adequate time and facilities for the preparation of his defence; [...].”
The parties’ submissionsThe Government

34. The Government submitted that the applicant had adequately been informed of the charges against him, and defended himself accordingly, so much so that he had been acquitted of the second charge. They therefore considered that the complaint should be rejected for lack of significant disadvantage, and in the alternative as manifestly ill-founded. 35. The Government explained that the offence of money laundering existed in San Marino legislation as early as 1998, together with its respective punishment, albeit amendments to that law were made in 2004, 2008, 2010 and 2013, in line with relevant international recommendations. While the original law provided for the ‘privilege of self-laundering’ namely the fact that the person who committed the predicate offence could not be prosecuted for money laundering, the latter privilege was abolished in 2013 allowing for prosecution for the charge of money laundering even if the accused had been the perpetrator of the predicate offence. Thus, allowing for a more effective repression of the increasing phenomenon of money laundering. 36. However, Article 1 (f) of Law no. 99/2010 (see paragraph 32 above) had already excluded that privilege in connection with the predicate offence of issuance, use or release of invoices or other documents for non-existing transactions or services (at issue in the present case). Thus, in that connection, the offence of self-laundering existed already then, it being incorporated into Article 199 bis to which no exception applied in the present case. In that light, the applicant had been clearly informed both at investigation stage and at trial about the charges being held against him in sufficient detail, as it was sufficient to rely on Article 199 bis of the CC. The Government emphasised that in the San Marino legal system (unlike the Italian system by which the applicant appeared to be inspired) the offence of money laundering and self‑laundering was one and the same, covered by the same provision. 37. In particular, the applicant had also been informed of the specific transactions at issue and the relevant dates and was questioned about them at the investigation stage. That relevant information was reiterated in his indictment in even greater detail including reference to the elements constituting the money laundering offence: the substitution, transfer and concealment operations carried out by the applicant using the illicit proceeds held in San Marino, the dates of execution, including the date of the commission of the crime and its legal classification, as well as the predicate offences generating the funds. 38. The Government further referred to the applicant’s appeal which had clearly covered argumentation both in respect of Law no. 100/2013 (eliminating the privilege of self-laundering in toto) and Law no. 99/2010 (excluding that privilege in relation to the predicate offence of false invoices). 39. Lastly, for clarification purposes, the Government submitted that the only reason why the first-instance court had not referred to Law no. 99/2010 was that it had focused on the continuing offence of money laundering. Given that the concealment of the funds had continued until 2015 it sufficed to apply Law no. 100/2013. Subsequently, in view of the applicant’s appeal on this matter, the Judge of Appeals provided a different legal interpretation of the facts, taking into consideration, as the time of the commission of the offence, the period starting from the day of the entry into force of Law no. 99/2010 to the day of the last transfer of the sums covered by the insurance policy (27 December 2011). Therefore, the latter took into account all the transfers, considering them as standalone, instantaneous, acts of money laundering which had been carried out by the applicant after the entry into force of Law no. 99/2010 and had concerned sums derived from the commission of the offence of tax fraud in Italy through the use of invoices relating to fictitious transactions. The latter was an autonomous legal assessment of the facts charged to the defendant, a prerogative inherent in the very exercise of the judicial function. Moreover, it had no effect on the applicant’s defence since the crime of tax fraud, committed in Italy as the predicate offence of money laundering, had also already been indicated in his judicial notice and the indictment. The applicant
40. The applicant submitted that bearing in mind the different amendments to Article 199 bis of the CC, he had not been informed in sufficient detail of the nature and cause of the accusation against him, with a view to preparing an adequate defence, as required by Article 6 §§ 1 and 3 (a) and (b) of the Convention. In particular, while he had been charged with money laundering, he was ultimately found guilty of self-laundering (an offence which had been introduced only in 2013). He noted that the confusion in the state of affairs was clear from the contradictory findings of the first‑instance court and those of the appeal court. Firstly, those courts had focused on different aspects of the illicit gains made in Italy and thus the vagueness of the predicate offences (inter alia, fraud being referred to beyond the false invoicing) persisted all throughout, and secondly, they had had different views of the applicable laws. The first-instance court had applied the 2013 legislation while the Judge of Appeals applied the 2010 legislation, the latter rightly correcting the erroneous timelines which had been applied by the first-instance court. In that light, the applicant was unable to properly defend himself. This had been compounded by the unclarity concerning the predicate offences. 41. In the applicant’s view, the legislative option of having the different facts of money laundering and self-laundering covered by a common incriminating provision perpetuated both ambiguity and approximation, with the inevitable result of making the defence almost impossible, since the elements of the legal fact could not be identified. This confusing situation was even more confounded by the Government’s own observations in the present case.

Article of the Convention at issue: Article 1
Outcome: no_violation