CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 8 octobre 2019

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SAN MARINO (Applications nos. 20319/17 and 21414/17)         JUDGMENT   STRASBOURG 8 October 2019     FINAL   08/01/2020       This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Balsamo v. San Marino, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Georgios A. Serghides, President,   Helen Keller,   Dmitry Dedov,   Branko Lubarda,   Alena Poláčková,   Erik Wennerström, judges,   Vincent A. De Gaetano, ad hoc judge, and Stephen Phillips, Section Registrar, Having deliberated in private on 10 September 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in two applications (nos.   20319/17 and   21414/17) 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 two Italian nationals, Ms Valentina Balsamo and Ms Angela Balsamo (“the applicants”), on 8 March 2017 and 10   March 2017 respectively. 2.     The applicants were represented by Mr A. Pagliano, a lawyer practising in Naples. The San Marinese Government (“the Government”) were represented by their Agent, Mr L. Daniele and their Co ‑ Agent Ms   M.   Bovi. 3.     The applicants alleged, in particular, that a confiscation had been imposed on them, following their acquittal, which they considered had not been in accordance with the law and had been disproportionate. 4.     On 19 September 2018 the Government were given notice of the complaints concerning Articles 6 §   2, 7   §   1, alone and in conjunction with Article 13 of the Convention, as well as under Article 1 of Protocol No.   1 to the Convention and the remainder of the applications was declared inadmissible pursuant to Rule   54   §   3 of the Rules of Court. 5.     The Italian Government, who had been notified by the Registrar of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44), did not indicate that they intended to do so. 6.     Mr Gilberto Felici, the judge elected in respect of San Marino, withdrew from sitting in the Chamber (Rule 28). The President of the Chamber accordingly appointed V.A. De Gaetano to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29).   THE FACTS THE CIRCUMSTANCES OF THE CASE 7.     The applicants were born in 1986 and 1985 respectively and live in Brescia, Italy. The criminal investigation No. 477/2011 8.     On an unspecified date a criminal investigation was instituted against a certain B. and his two daughters (the applicants) for ongoing money laundering under Articles 50, 73 and 199 bis of the Criminal Code. According to the prosecution the accused persons had laundered assets which had been obtained, in Italy, by B., through the commission of multiple offences. The total value of the allegedly laundered assets amounted to 2,150,000 euros (EUR). 9.     On 28 July 2011 the investigating judge ( Commissario della Legge Inquirente ) seized a current account, a bonds account (dossier titoli) and the content of a safe deposit box, all registered in the first applicant’s name and in respect of which B. and, subsequently, the second applicant had a mandate. The assets together amounted to a total of EUR   1,920,785.50. It transpired that the first applicant had opened the account on 30   December 2004 at the age of eighteen and on that day she had deposited EUR   500,000 in cash. On 1 August 2005 and 2   March 2006 she had deposited EUR   150,000 and EUR   400,000 respectively, in cash. On 20   April 2006 B. deposited EUR 950,000 in cash and on 1   July 2008 the second applicant deposited EUR 150,000 in cash. 10.     On 10 January 2012, in execution of a letter of request - which had been sent on 6 September 2011 by the investigating judge to the Brescia Court of Appeal ‑ the Italian judicial authorities submitted relevant documents and information concerning the alleged criminal origin of the above ‑ mentioned assets. It transpires from the documents in the case ‑ file that included with the above-mentioned documents was a copy of a judgment of the Court of Appeal of Brescia of 6 November 2008 which found B. guilty of theft and receiving stolen goods ( ricettazione ). It further transpires that according to that judgment the proceeds deriving from such offences amounted to EUR   750,000. 11.     By a decision of 12 February 2014 the investigating judge archived the proceedings against B. (the documents in the case-file do not provide reasons for this decision) and indicted the first and the second applicants for money laundering. The first-instance criminal proceedings 12.     By a judgment no. 139 of 4 November 2014, filed with the registry on 7   August 2015, the first-instance criminal judge ( Commissario della Legge Decidente ) found the first and the second applicant guilty of the offence charged. He sentenced the first applicant to two years and six months’ imprisonment, and the second applicant to one year’s imprisonment. They were both fined EUR 5,000 and prohibited for one year and four months from holding public office and exercising political rights. The judge, relying on Article 147 § 3 of the Criminal Code, confiscated the sums which had been seized (EUR 1,920,785.50). In addition, the judge issued, in respect of the first applicant, a confiscation by equivalent means of EUR   499,000 given that, before the execution of the seizure she had withdrawn the latter sum from her bank account. 13.     The first ‑ instance criminal judge found that the applicants had laundered assets which had been obtained by B., in Italy, through the commission of multiple offences. As to the criminal origin of the assets, the judge held that previous domestic case-law had established that in order to find someone guilty of money laundering it was not necessary to have a previous conviction for the underlying, predicate offence, or to know its perpetrator. It sufficed instead to have reasonable evidence ( prove logiche ) of the criminal origin of the money in question. The criminal origin of the money was an objective prerequisite to be autonomously ascertained by the judge in the money laundering case. It was thus not important to ascertain a specific predicate offence if a plurality of elements showed the illicit origin of the money. In the case at hand, the criminal origin of the assets had been shown by the above-mentioned Italian criminal judgment against B. together with other relevant elements. In particular, the judge quoted a part of the Italian judgment which described the criminal career of B. and his previous convictions for inter alia , fighting, causing personal injury, carrying of weapons and, after 1975, handling and receiving stolen goods, multiple instances of theft, owning unjustified assets and drug dealing. 14.     The judge acknowledged that the proceeds (EUR 750,000) of the predicate offence - of which B. had been found guilty in Italy by the above ‑ mentioned judgment - were much lower than the sum object of the laundering (EUR 2,150,000). This fact, however, could not lead to exclude the criminal origin of all the sum at issue since, inter alia , (i) B.’s criminal record from 1975 included multiple offences each of which was able to produce a relevant criminal profit; (ii)   a   disproportion existed between the legitimate income of the applicants (and their family) and the assets in their possession; (iii) the applicants had tried to demonstrate the licit origin of the assets (such as from their family business and the sale of immovable property) but their explanation had not relied on any evidence and there had been some contradictions between the statements made by each applicant’s legal counsel in this respect; (iv) it was unreasonable that the applicants had decided to deposit the money in a foreign bank far from the centre of interest of their family’s businesses and this was a further indication of their attempt to hide the criminal origin of the assets. 15.     The court was also convinced that despite their young age both applicants were well aware of the origin of the money and the objectives behind the transfers of money to San Marino, particularly given that they were well aware of their father’s problems with the justice system. The criminal appeal proceedings 16.     By a judgment of 10 October 2016, published on 12 October 2016, the Judge of Criminal Appeals ( Giudice d’Appello Penale ) acquitted both applicants for lack of evidence capable of demonstrating the mens rea (subjective element of a crime). In particular it had not been ascertained beyond a reasonable doubt that the applicants had been aware of the criminal origin of the assets in the light, inter alia , of their young age. Nevertheless, the court noted that the sum deposited in the bank account had had a criminal origin in the absence of any explanation as to the origin of the money (which led to the purchase of properties, the sale of which resulted in the sums at issue). Indeed the fact that relevant fiscal controls did not exist at the time did not suffice to prove the licit origin of the funds. Further, the transfer of such money into banks in San Marino showed the attempt to make such money untraceable precisely to hide their initial origin. The judge upheld the confiscation of the sums which had been seized. The proceedings before the judge for extraordinary remedies 17.     When the applicants introduced their application with the Court (in March 2017) they did not inform the Court about the proceedings they had lodged two months earlier before the judge for extraordinary remedies (criminal competence). Nor did they inform the Court about the matter, and later about the relevant decision, at any other time after that. It was only the Government, in their observations of 9 January 2019, following the communication of the complaints, that brought the following facts to the Court’s attention. 18.     On 5 January 2017 the applicants applied for revision of the judgment of 12 October 2016 before the judge for extraordinary remedies. They complained in particular that the judgment of 12 October 2016 had breached their rights under Article 6 § 2, and 7 of the Convention and Article 1 of Protocol No. 1 to the Convention. They considered that under domestic law there was no available remedy other than a request for a revision of a judgment, noting that a failure of the judge for extraordinary remedies to take cognisance of their complaints could make the State liable to a violation of Article 13 of the Convention. 19.     By a decree of 16 January 2017 the judge for extraordinary remedies considered that he had competence to decide the case under Article 200 (1) of the Code of Criminal Procedure and considered that the request for revision could not be declared inadmissible under Article 201 (5) of the same Code. 20.     In his pleadings of 20 March 2017, the Attorney General requested the judge for extraordinary remedies to declare the request inadmissible, as Article 200 of the Code provided an exhaustive list of four situations in relation to which a revision request could be lodged. None of those reasons referred to alleged violations of Convention rights and thus it could not be applied to the present case. 21.     In their written submissions of May 2017 the applicants informed the judge for extraordinary remedies that they had lodged an application with the Court complaining about the same matters, as they were required to respect the six month period for bringing such claim. At the same time they requested the judge for extraordinary remedies to suspend his decision on their request pending the proceedings before the Court. They further informed the judge for extraordinary remedies that if their request to suspend proceedings was not upheld, they would withdraw their application before him. 22.     By a judgment of 23 May 2017 the judge for extraordinary remedies rejected their request for the proceedings to be suspended, as well as their request to withdraw the proceedings and, having regard to the merits (seen globally), he rejected their revision request. 23.     He noted that no reasons had been put forward by the applicants to contest his competence to decide the case, and that he had to bear in mind the risks the State could incur in relation to, inter alia , Article 13 of the Convention. Relying on judgment No. 6 of the constitutional jurisdiction (namely, il Collegio Garante della Costituzionalita` delle Norme ) of 1   August 2007 the judge considered that he had the competence to examine Convention complaints (see paragraph 34 below) and that this was in accordance with the State’s obligation under Article 13 of the Convention. 24.     He further considered that the complaints raised by the applicants were arguable and therefore Article 13 was applicable. On the merits he found no violation of the provisions invoked in view of the fact that the appeal judge had made a correct application of the law in the light of relevant international instruments given that the confiscated sums had illicit origins – the facts had been established in fair proceedings, where the applicants’ defence rights had been respected. No arbitrary conclusions had been drawn nor had there been any issue of legal certainty. The measure had been proportionate, as well as foreseeable. 25.     In particular the judge for extraordinary remedies made the following considerations: 26.     The Judge of Criminal Appeals had correctly applied the confiscation in so far as he could not have allowed the funds – whose illicit origin had been proved – to be recirculated by the applicants who at that stage had become aware of the illicit origin of the funds. 27 .     In this case, although applied at the end of criminal proceedings, the confiscation had no punitive function but merely a preventive one aimed at impeding the illicit use of the property at issue. Similar measures applied in Italy and Germany, countries which have “privileged” such preventive measures to fight against the use of illicit funds – measures which have withstood challenges before the European Court of Human Rights. In the present case the illicit origin of the funds had been ascertained in the ambit of a fair trial. 28 .     As to the lawfulness of the measure, the judge for extraordinary remedies considered that, while it could appear that the Judge of Criminal Appeals had applied a combination ( assimilazione ) of both provisions, legal doctrine (including Italian jurisprudence concerning analogous provisions in Italian law) had stressed the conceptual independence of the so-called mandatory confiscation of self-evidently illicit things (having a preventive nature) from other forms of confiscation provided for by the same law or by other legal provisions (having a punitive character ( repressive )). He further considered that the confiscation, independently from any investigation concerning the possessor, his/her criminal liability or dangerousness, constituted a mere consequence of the status ( condizione giuridica ) of the property and therefore was devoid of any punitive nature. As argued by the Attorney General, “crime cannot pay” – in all European States laundered money could not be allowed to circulate. In the light of the applicable law and international norms the Judge of Criminal Appeals had correctly applied the confiscation of those sums having illicit origin, and the measure had been lawful and proportionate. 29 .     The judge of extraordinary remedies further considered that, even assuming Article 147 (2) of the Criminal Code had been interpreted extensively, such an interpretation had been foreseeable in the light of both domestic and international standards, including the recommendations by MONEYVAL (the Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism – a monitoring body of the Council of Europe). Relying on European Court of Human Rights case-law, the judge for extraordinary remedies held that, contrary to the argument raised by the applicants, judicial interpretation of laws did not go against the principle of legal certainty when it was justified by the need to adapt laws to the existing realities, socio-economic needs or international obligations. Given the context, the measure had been necessary in a democratic society. The criminal pervasiveness of the conduct at issue and the multiplier effect on criminal activities, their adverse impact on the regularity of economic activities, the destabilising effects on the economic market and the negative impact on the image of the country and its international credibility were all convincing and imperative reasons justifying the measure.   RELEVANT DOMESTIC LAW AND PRACTICE The Criminal Code 30 .     Article 199 bis of the Criminal Code, as amended by Chapter   2, Article   7 of Law no. 28 of 26 February 2004, and by Article   77 (2) of Law no.   92 of 17 June 2008, read, in so far as relevant, as follows: Article 199 bis (money laundering) “(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) . ... (5) Whosoever commits the offences provided for by the present article is punished by imprisonment of the fourth degree, by a daily fine of the second degree and by a third degree prohibition from holding public office and exercising political rights (6) The punishments can be diminished by one degree on account of the quantity of the money or the assets and the type of the operations which had been carried out ( indole delle operazioni effettuate )... (7) The judge applies the penalty provided for the predicate offence if it is less heavy.” 31 .     Title VI of the Criminal Code, which has the title “Civil obligations and other effects resulting from offences”, includes Article 147 of the Criminal Code, which, as amended by Article 42 of the Decree No. 181 of 11   November 2010, and as applicable at the time of the facts of the present case, read, in so far as relevant, as follows: Article 147 (confiscation) “(1) In a judgment of conviction, the Judge shall order (il giudice ordina ) the confiscation of the items belonging to the convicted person which were used or 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. (2) Regardless of conviction, confiscation ensues in the case of any fabrication, use, possession, transfer or commerce, of items, where such act constitutes an offence, even if the items do not belong to the perpetrator of the act in issue ( agente ). (3) In a 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 offences ex Articles 167, 168, 168 bis , 169, 177 bis , 177 ter , 194,   195, 195 bis , 195 ter , 196, 199, 199 bis , 204 (3-1), 204 bis , 207, 212, 305   bis , 337   bis , 337 ter , 371, 372, 373, 374, 374 ter (1), 388, 389, 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, as well as ordering the confiscation of the price, product and profit of the crime. If 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 above-mentioned items.” The Code of Criminal Procedure 32.     Article 200 of the Code of Criminal procedure, concerning revision proceedings, in so far as relevant reads as follows: “A revision of a judgment finding guilt or acquittal, with the application of security measures or confiscation, ... which have become res judicata, is permissible: (a) If new evidence comes to light which alone or in conjunction with the evidence already adduced, show that the applicant must be acquitted...; (b) If the finding is based on a falsehood or other crime; (c) If the facts established for the purposes of that finding are not reconcilable with the facts established in another criminal judgment which is final. (d) If the European Court of Human Rights has found that the criminal proceedings were in violation of the Convention, and the ensuing serious negative consequences can only be remedied by means of the revision of the judgment. ... [concerning who may lodge such a request]” 33 .     According to Article 202 of the Code of Criminal Procedure, a revision request has to be submitted within one year from the relevant facts leading to the reasons mentioned in the respective sub-articles of Article   200. Relevant case-law 34 .     By a decree of 3 March 2007 the judge for extraordinary remedies asked for a constitutional reference in respect of Article 200 (1) of the Code of Criminal Procedure in so far as it appeared not to include, within its remit, the situation where a norm, which was determinative in deciding the substance and procedure of a case, had been found to be unconstitutional only after the case had been finally determined. 35 .     In judgment No. 6 of the constitutional jurisdiction (namely, il Collegio Garante della Costituzionalita` delle Norme ) of 1 August 2007, the latter held that “in the San Marino judicial system the only means of correcting any possible substantive injustice relating to a final judgment, was by means of a judgment of the judge for extraordinary remedies, via the institution of revision proceedings applicable in the criminal sphere”. It noted, however, that the then current formulation of Article 200 of the Code of Criminal Procedure, did not allow for revision of a judgment based on a norm which was subsequently found to be unconstitutional (and which could raise issues under Articles 5 and 7 of the Convention). Nor could Article 200 of the same Code be interpreted extensively or by analogy, given that it provided for a clear and exhaustive list of when a revision request could be lodged. It followed that Article 200 of the Code of Criminal Procedure was unconstitutional, in part, in so far as it did not provide for the possibility of requesting revision in cases where a final judgment in the criminal sphere had been reached on the basis of a norm which was later found to be unconstitutional (and only in respect of cases where the punishment had not already been served – as in such cases it was legitimate not to provide a remedy in the interests of legal certainty). 36 .     In a judgment No. 6 of 13 August 2018, in a case relating to issues analogous to those which were at issue in the case of M.N. and Others v.   San Marino (no. 28005/12, 7 July 2015) the judge for extraordinary remedies reiterated his competence to assess human rights issues in the context of a request for revision under Article 200 of the Code of Criminal Procedure, as he had done in the previous cases since 2016, namely in judgments of 10 July 2018 in revision proceedings No. 3/2018, 26 February 2018 in revision proceedings No. 2/2017, 10-23 May 2017 in revision proceedings No. 1/2017 and 13 August 2016 in revision proceedings No.   2/2016. Such interpretation was based on judgment No. 6 of the constitutional jurisdiction (see preceding paragraph), which in his view provided that revision proceedings were the only remedy in cases where there had been a “substantive injustice relating to a final judgment which was in contrast with fundamental human rights”. He considered that the effective remedy required by the Convention was guaranteed in San Marino by revision proceedings given that the constitutional jurisdictions had entrusted the judge for extraordinary remedies with the competence to evaluate a situation where a final judgment was in conflict with fundamental human rights, and to examine the complaint where this was based on an arguable claim, and, Article 13 attributed to the judge for extraordinary remedies the power to award adequate redress for the violations upheld. 37.     In so doing the judge for extraordinary remedies rejected the objection raised by the Attorney General to the effect that the judge for extraordinary remedies had no such competence given that such a situation was not listed in the exhaustive list of situations proceeded by Article 200 of the Code of Criminal Procedure.   Relevant International Instruments 38 .     On 12 October 2002 the Republic of San Marino ratified the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (Strasbourg 1990 – ETS No. 141). The Convention aimed to facilitate international co-operation and mutual assistance in investigating crime and tracking down, seizing and confiscating the proceeds thereof. Parties undertake in particular to criminalise the laundering of the proceeds of crime and to confiscate instrumentalities and proceeds (or property the value of which corresponds to such proceeds). 39 .     On 27 July 2010 the Republic of San Marino ratified the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (Warsaw 2005 ‑ CETS No.198). This Convention covers both the prevention and the control of money laundering and the financing of terrorism. State parties to the Convention are asked to adopt legislative and other measures in order to assure that they are able to search, trace, identify, freeze, seize and confiscate property, of a licit or illicit origin, used or allocated to be used for the financing of terrorism; and to provide co-operation as well as investigative assistance to each other. 40 .     According to these instruments confiscation means “a penalty or a measure, ordered by a court following proceedings in relation to a criminal offence or criminal offences resulting in the final deprivation of property”.   In particular in relation to confiscation measures, in so far as relevant, the latter provides that: Article 3 “1.     Each Party shall adopt such legislative and other measures as may be necessary to enable it to confiscate instrumentalities and proceeds or property the value of which corresponds to such proceeds and laundered property. 2.     Provided that paragraph 1 of this article applies to money laundering and to the categories of offences in the appendix to the Convention, each Party may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that paragraph 1 of this article applies a) only in so far as the offence is punishable by deprivation of liberty or a detention order for a maximum of more than one year. However, each Party may make a declaration on this provision in respect of the confiscation of the proceeds from tax offences for the sole purpose of being able to confiscate such proceeds, both nationally and through international cooperation, under national and international tax ‑ debt recovery legislation; and/or b) only to a list of specified offences. 3.     Parties may provide for mandatory confiscation in respect of offences which are subject to the confiscation regime. Parties may in particular include in this provision the offences of money laundering, drug trafficking, trafficking in human beings and any other serious offence. 4.     Each Party shall adopt such legislative or other measures as may be necessary to require that, in respect of a serious offence or offences as defined by national law, an offender demonstrates the origin of alleged proceeds or other property liable to confiscation to the extent that such a requirement is consistent with the principles of its domestic law.” Article 5 “Each Party shall adopt such legislative and other measures as may be necessary to ensure that the measures to freeze, seize and confiscate also encompass: a) the property into which the proceeds have been transformed or converted; b) property acquired from legitimate sources, if proceeds have been intermingled, in whole or in part, with such property, up to the assessed value of the intermingled proceeds; c) income or other benefits derived from proceeds, from property into which proceeds of crime have been transformed or converted or from property with which proceeds of crime have been intermingled, up to the assessed value of the intermingled proceeds, in the same manner and to the same extent as proceeds.” THE LAW   JOINDER OF THE APPLICATIONS 41.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.   PRELIMINARY OBJECTIONs Abuse of petition 42.     Article 35 § 3 (a) of the Convention provides: “The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: (a)     the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of individual application; ...” The parties’ submissions 43.     The Government submitted that in their application to the Court the applicants had omitted to mention their application to the judge for extraordinary remedies, which was pending at the time, and wherein they brought the same complaints brought to the Court under Articles 6 § 2 and   7 of the Convention. Moreover, in their application to the Court they complained specifically that they had no remedy for the purposes of Article   13, concealing to the Court that they had been pursuing precisely such a remedy at the same time. They further failed to inform the Court when a judgment in their case had been issued. The Government noted that following developments in the case-law regarding the way and the conditions to apply for a revision of criminal judgments under Article 200 of the Code of Criminal Procedure (see paragraphs 35 and 36 above) - in particular the judgment of the Constitutional Court of 1 August 2007 the principle of which was interpreted and extended by the judge for extraordinary remedies to make him responsible for human rights violations ‑ that avenue had become an appropriate and effective remedy for Convention complaints. Thus, the Government considered that the applicants, who were aware of the domestic developments to the extent that they attempted such proceedings, had deliberately submitted incomplete and misleading information to the Court. The Government requested the Court to find that there had been an abuse of petition and in consequence to declare the application inadmissible. 44.     The applicants considered that according to the ECtHR case ‑ law against San Marino to date, proceedings before the judge for extraordinary remedies were an extraordinary remedy which did not need to be exhausted. In consequence there had been no reason to inform the Court about that further remedy they had pursued. In their view the remedy was unnecessary and could not change their victim status since it could not redress their situation. They submitted that they had not had a fraudulent intent to mislead the Court and that their omission did not deal with the core issue of the case. They distinguished their situation from that where applicants had omitted to inform the Court that they had been successful in pursuing such a remedy, i.e., a situation where domestically the authorities would have had provided redress for the infringements, thus, impinging on their victim status. The Court’s assessment 45.     The Court reiterates that under Article 35 § 3 (a) an application may be rejected as an abuse of the right of individual application if, among other reasons, it was knowingly based on untrue facts (see Akdivar and Others v.   Turkey , 16 September 1996, §§ 53-54, Reports of Judgments and Decisions 1996 ‑ IV; Varbanov v. Bulgaria , no. 31365/96, §   36, ECHR   2000 ‑ X; Rehak v. the Czech Republic (dec.), no. 67208/01, 18   May 2004; Popov v. Moldova (no. 1) , no. 74153/01, § 48, 18 January 2005; Kerechashvili v. Georgia (dec.), no. 5667/02, ECHR 2006 ‑ V; Miroļubovs and Others v. Latvia , no. 798/05, § 63, 15 September 2009; and Centro   Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, §   97, ECHR 2012). The submission of incomplete and thus misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information (see Hüttner v. Germany (dec.), no.   23130/04, 9 June 2006; Predescu v.   Romania , no.   21447/03, §§   25 ‑ 26, 2 December 2008; and Kowal v.   Poland (dec.), no.   2912/11, 18 September 2012). The same applies if important new developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule   47   §   7 (former Rule 47 § 6) of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts (see Centro Europa 7 S.r.l. and Di Stefano , cited above, and Miroļubovs and Others , cited above). However, even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty (see Al-Nashif v.   Bulgaria , no. 50963/99, § 89, 20 June 2002; Melnik v.   Ukraine , no.   72286/01, §§ 58-60, 28 March 2006; and Gross v.   Switzerland [GC], no.   67810/10, § 36, ECHR 2014). 46.     Turning to the circumstances of the instant case, the Court notes that in their application to the Court lodged in March 2017 the applicants argued, inter alia , that they had suffered a violation of Article 13 as they had no effective remedy at the domestic level for their Convention complaints and specifically noted that proceedings under Article 200 of the Code of Criminal Procedure could not be considered effective both because it was an extraordinary remedy and because it did not apply to their case (which was not included in the exhaustive list of circumstances provided by that Article). In so doing, however, they did not inform the Court that they had in any event attempted those proceedings which were pending at the time when they lodged the application to the Court. They also failed to inform the Court when a decision on the matter had been issued. 47.     In connection with the applicants’ claims as to the extraordinary nature of the remedy which made it irrelevant to their case, the Court notes that it is true that, in previous cases against San Marino, it has held that revision proceedings under Article 200 of the Code of Criminal Procedure amounted to an extraordinary remedy which need not be exhausted (see, for example, the admissibility decision in Ercolani v. San Marino ((dec.), no.   35430/97, 28   May 2002). The situation may be different now in the light of the fact that the judge for extraordinary remedies has established his competence to examine human rights issues as happened in the applicants’ case, and as appears to be the case since 2016 (see paragraph   36 above). Indeed, it would appear to be in the light of such developments that the applicants attempted the remedy. However, the Court has not yet had the opportunity to examine, on the basis of relevant observations by the parties, whether the revision proceedings are still to be considered an extraordinary remedy, or whether such proceedings are a remedy for the purposes of Articles 13 and 35 § 1 of the Convention in a given situation, and in such circumstances there is no doubt that the applicants should have informed the Court about the remedy they pursued. 48.     However, and more importantly, the Court notes that, as submitted by the applicants, the outcome of those proceedings has not had any impact on their victim status (see, a contrario , Kerechashvili. cited above). Moreover, in the circumstances of the present case the applicants had nothing to gain by hiding such information. The Court, thus, considers that the omission could be due to inadvertence or inexperience and thus the applicants’ intention to mislead the Court cannot be established with sufficient certainty. 49.     Accordingly, the Government’s objection is dismissed. Exhaustion of domestic remedies The parties submissions’ 50.     In respect of their complaints under Articles 6 § 2 and 7, the Government submitted that at the time when the application was lodged, the applicants had not yet exhausted domestic remedies, as the proceedings they pursued before the judge for extraordinary remedies were still pending at the time. 51.     The applicants submitted that the judge for extraordinary remedies was an extraordinary jurisdiction both under domestic-law and according to the Court’s case-law. In particular they noted that its extraordinary nature was evident given that Article 2 of Constitutional Law No. 144 of 2003 did not list such a remedy with the ordinary remedy and precisely established that the judge for extraordinary remedies has extraordinary jurisdiction. Its extraordinary nature was further confirmed by the fact that, until the time of observations, never had the San Marino Government invoked non ‑ exhaustion of domestic remedies before the Court for failure to undertake a request for revision (with the exception of cases where this jurisdiction had to decide on a request for withdrawal of a judge pending proceedings, in which context it was considered as an ordinary remedy), nor had the Court ever found an application inadmissible on that ground. The Court’s assessment 52.     The Court reiterates that the requirement for the applicant to exhaust domestic remedies is normally determined with reference to the date on which the application was lodged with the Court (see Baumann v.   France , no.   33592/96, § 47, ECHR 2001‑V (extracts)). However, the Court also accepts that the last stage of the exhaustion of domestic remedies may be reached shortly after the lodging of the application but before the Court determines the issue of admissibility (see, for instance, Zalyan and Others v.   Armenia , nos. 36894/04 and 3521/07, §   238, 17   March 2016, with further references). 53.     The Court notes that – without prejudice as to whether or not proceedings before the judge for extraordinary remedies lodged under Article 200 of the Code of Criminal Procedure are still to be considered an extraordinary remedy and whether they are an Article 13 compliant remedy – those proceedings ended just a few months after the introduction of the application and before the Court had determined the admissibility of the relevant complaints. In those circumstances, there are no grounds for dismissing the applicants’ complaint for failure to comply with the requirements of Article 35 § 1 of the Convention (see, for instance, Milić and Nikezić v. Montenegro , nos. 54999/10 and 10609/11, § 74, 28   April 2015, and Zalyan and Others , cited above, §§ 238-239). 54.     Accordingly, the Government’s objection is dismissed.   ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION 55.     The applicants complained that they had been punished despite having been acquitted. They relied on Article 7 of the Convention which reads as follows: “1.     No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2.     This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.” The parties’ submissions 56.     The applicants complained that they had been subjected to a confiscation despite having been acquitted. They considered that the confiscation amounted to a penalty which was punitive in nature and serious in its consequences. It had been meted out during criminal proceedings and therefore was clearly punitive. In their view its criminal nature was also evident from the fact that it was tied to a criminal conviction, although not that of the applicants, but of their father. Moreover, the measure was grounded on Article 147 (2) of the Criminal Code which allowed such measures even in cases of acquittal. However, according to the applicants that provision was intended to provide for the confiscation of possessions destined to committing crimes or which constituted a crime or which where dangerous, and thus the confiscation of sums of money should not have fallen under its remit. In their view by relying on that provision the judge was extending the domestic court’s remit by analogy, which was not possible in the criminal law sphere. In their view he had applied something in between Article   147   (1) which was a punitive measure and Article   147   (2) which was a preventive measure despite both provisions not being applicable in their case. Thus, while the measure had not been provided by law, it had been clearly punitive in nature. 57.     The Government submitted that confiscation under Article 147 (2) of the Criminal Code was not a sanction and was not punitive in nature. They relied on the findings of the judge for extraordinary remedies (see paragraphs 28 above). Referring to the Court’s criteria to prove the non ‑ criminal nature of the measure, the Government submitted that i) the confiscation had not arisen from a finding of guilt; ii) under domestic law it was classified as a civil obligation not a punishment as evident by its positioning in Title VI of the Criminal Code entitled “Civil obligations and other effects resulting from offences” (paragraph 31 above); iii) the nature and purpose of the measure was preventive, in particular to prevent the accumulation of illicit property solely based on its illicit origin as established by domestic provisions and international conventions; iv) the Government also considered that the confiscation of sums of money indisputably consisting of proceedings of numerous serious crimes could not be defined as having a “serious” consequence, but merely an adequate measure to contrast and repress the accumulation of assets deriving from serious crimes, such as trafficking in drugs and weapons, which are shared objectives in the international community; v) lastly, such sums, had been confiscated only after a prudent and careful assessment within which in the face of multiple and serious indications of the illegal and criminal original of the funds the applicants had failed to submit sufficient evidence of their lawful origin. The Court’s assessment General principles 58.     For the purposes of the Convention there can be no “conviction” unless it has been established in accordance with the law that there has been an offence – a criminal or, if appropriate, a disciplinary offence. Similarly, there can be no penalty unless personal liability has been established (see Varvara v.   Italy , no. 17475/09, § 69, 29   October 2013 and G.I.E.M S.R.L. and Others v.   Italy [GC], nos. 1828/06 and 2 Others, §   251, 28   June