CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 11 mai 2023

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display:inline-block } .s4196892D { width:3.17pt; font:7pt 'Times New Roman'; display:inline-block } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s8773B649 { width:25.2pt; display:inline-block } .sB81C5FD1 { width:141.42pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }     FIRST SECTION CASE OF ZAGHINI v. SAN MARINO (Application no. 3405/21)     JUDGMENT   Art 1 P1 • Confiscation of sum of money and applicant’s inability to recover it, following criminal proceedings against third parties for money laundering • Confiscation measure proportionate to legitimate aim of fighting money laundering • Impugned decision based on judicial assessment of evidence available • In the specific circumstances, applicant given reasonable opportunity to put his case for recovering confiscated funds to domestic authorities who examined his claims as circumscribed by him • No indication of arbitrariness   STRASBOURG 11 May 2023   FINAL   25/09/2023     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Zaghini v. San Marino, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Marko Bošnjak , President ,   Péter Paczolay,   Alena Poláčková,   Lətif Hüseynov,   Ivana Jelić,   Gilberto Felici,   Raffaele Sabato , judges , and Renata Degener, Section Registrar, Having regard to: the application (no.   3405/21) 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 Gianluca Zaghini (“the applicant”), on 7 January 2021; the decision to give notice to the San Marinese Government (“the Government”) of the complaint concerning Article   1 of Protocol No. 1 and to declare inadmissible the remainder of the application; 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); the parties’ observations; Having deliberated in private on 4 April 2023, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The application concerns the confiscation of sums of money following criminal proceedings for money laundering against other persons but not the applicant, and the applicant’s subsequent claim to recover that money. THE FACTS 2.     The applicant was born in 1966 and lives in Munich. He was represented by Ms L. Galletta, a lawyer practising in Bovalino, Italy. 3.     The Government were represented by their then Agent, Mr   L.   Daniele. 4.     The facts of the case may be summarised as follows. Background to the case The criminal proceedings The investigations in Italy and San Marino 5.     In 2003 criminal proceedings were initiated against the applicant and others at the Court of Forlì, Italy, in relation to tax evasion and making unjust profits (of around fifteen million euros “EUR”) at the expense of the State. 6.     On 4 November 2003, a request for legal assistance by means of international letters rogatory from the Deputy Public Prosecutor at the Court of Forlì, Italy, was accepted by the competent Judge (CoL - Commissario della Legge ) of the Court of San Marino. Thus, the latter ordered the execution of asset investigations against the applicant’s father, and other persons, including G.A. and P.A., as well as the seizure of sums of money, and in any case of current account surpluses, securities, valuables and safe deposit boxes, which could be traced back to all the above-mentioned persons, as well as of safe deposit boxes possibly used by them. 7 .     The investigations carried out in the framework of the international letters rogatory revealed: that a bank account had been registered in the applicant’s name with I.B.S. bank, Branch of Dogana, and that his father had been delegated by the applicant (at the time under house arrest) to withdraw from such account the amounts of EUR 939,500 on 1 December 2003 and of EUR 1,006,700 on 4 December 2003, both amounts having been withdrawn in cash; that a safety deposit box in the name of G.A. was kept at C.d.R. bank, Branch of Domagnano, which contained a total amount of EUR   1,892,700. 8 .     On 5 December 2003 the safety box containing the money was opened and seized by the police, who left it in the custody of the bank director. 9.     On 21 January 2004 the CoL concluded the international letters rogatory proceedings and at the same time ordered the institution of criminal proceedings for the offence of money laundering, provided for by Article   199   bis of the Criminal Code of San Marino and punishable in accordance with Article   4 of Law of 15 December 1988, against the applicant’s father, G.A. and P. A. 10.     The investigating judge (in San Marino) questioned the applicant’s father, G.A. and P.A. and obtained the criminal file in relation to the proceedings ongoing in Italy, including the applicant’s statement released during the investigation in Italy (on the basis of evidence which had been set out before him). The applicant’s pre-trial statements included an admission that he had deposited in San Marino around EUR 1,800,000 obtained from illegal activity. From the investigations of the investigating judge in San Marino it transpired that after withdrawing the sum of EUR   939,500 on 1   December 2003 and EUR 1,006,700 on 4 December 2003, the applicant’s father had delivered the sum of EUR 1,903,700 to his son’s former partner (P.A.), who received it. She was instructed to ask an acquaintance from San Marino (G.A.) to open a safe deposit box, in his own name, where the money should be kept. Accordingly, G.A. opened the safe deposit box in his own name and deposited EUR 1,892,700, the applicant’s father and P.A. having kept EUR 12,000 and EUR 11,000 respectively, sums they took back to Italy. 11 .     By order of 16 August 2005 the investigating judge in San Marino ordered the seizure of the sum of EUR 1,892,700 which had been deposited in the safety deposit box in the name of G.A. The day after he issued the indictment against the applicant’s father, G.A. and P.A. The trial for money laundering in San Marino 12 .     By a first-instance judgment of 29 November 2005, the first-instance judge found the three co-accused guilty, sentenced them to suspended sentences of imprisonment and ordered that the sum, which had been seized, was to be confiscated (leaving it for the execution judge to determine the share of the two States involved as per international agreements). 13 .     According to the judgment, this was the first money laundering case in San Marino following the introduction of the relevant law, namely Article   199 bis of the Criminal Code. The latter had been enacted to respond to the growing phenomenon of the use of money deriving from crime ( denaro proveniente da misfatto ) and the need to fight against such phenomenon in the light of international obligations. The judge considered that the accused persons’ criminal responsibility was clear from their own statements, which in substance amounted to nothing less than confessions. In the judge’s view both the applicant’s father and P.A. were aware of the illicit origin of the funds, in respect of which they had made arrangements with the applicant to hinder the verification of the origin of those funds and hide them. To ensure that such aim was achieved P.A. had further solicited the assistance of G.A. as she had not wanted to get involved, knowing that the applicant was being investigated for crimes against the financial administration of Italy. G.A.’s pleas that he was in good faith could also not be upheld as, according to the judge, no person with average intellectual faculties would have accepted to do such a ‘favour’, without knowing its real purpose. As to confiscation, without specifying which sub-article was being applied, the judge referred to Article   147   (1) and (2) (see paragraph 31 below), both of which, according to the judge, provided for obligatory confiscation of the relevant items. 14 .     By an appeal judgment of 9 May 2008, confirming in part the first-instance judgment, the applicant’s father and former partner’s guilt as well as the confiscation were confirmed. The proceedings in respect of G.A. were discontinued, them having become time-barred following the application of mitigating circumstances as a result of his spontaneous confession. In so far as relevant, the Court of Appeal noted that the evidence provided by the Italian authorities was more than sufficient to prove that the sum of EUR   1,946,200 (the laundering of which was imputed to the appellants), was all, or in the most part, obtained from the commission of the crimes with which the applicant was charged in Italy, and a final judgment in that respect was unnecessary. The fact that the applicant had asked the accused to hide that money, precisely while he was under home arrest in connection with those offences, was further evidence of this. The accused persons’ plea that the predicate offence which generated the money was not punishable in San Marino was also rejected given that fraud ( truffa ) against the State was clearly also punishable in San Marino. Lastly, the Court of Appeal considered that the applicant’s father was aware that he had been asked to hide the money because of the investigation ongoing in Italy and thus, he was fully aware of the illicit origin of the funds. Similar considerations applied to P.A. who had also tried to hide any connection with G.A. when stopped by the Police, there had therefore been no doubt that she was aware of the significance of the actions she had been asked to undertake. 15 .     By means of an execution order of 19 December 2008 (without prejudice to the possibility of the two States involved to share the money as per international agreements) the Enforcement Judge having seen the appeal judgment, ordered the confiscation of the sum of money equal to EUR   1,892,700, which had been found in the safety deposit box and had already been seized following the decree of 16   August 2005, plus the interest accrued in the meantime. The Enforcement Judge had regard to Article   147   (3) of the Criminal Code (as amended in 2004) according to which “in the event of a conviction it is always mandatory to confiscate the things that served or were intended to commit the crimes referred to in articles   ... 199 bis , precisely money laundering, as well as things that are the price, the product or the profit”. The applicant’s trial for tax evasion and unjust profits in Italy 16.     After a first-instance judgment finding the applicant guilty in 2012, by a judgment of 22 November 2016, the proceedings against the applicant were declared time-barred and the Court of Appeal of Bologna ordered the restitution of the money preventively seized. The procedures pursued by the applicant in San Marino Before the judge of international cooperation 17 .     As of 16 November 2017, by means of three subsequent unsuccessful requests, the applicant asked the judge for international cooperation ( Giudice per le rogatorie ) to release the sums seized, to him as legitimate owner, as ordered by the Court of Appeal of Bologna. His requests were rejected on 17   November 2017, 19   January 2018 and 1   February 2018, inter alia , as those sums had in the meantime been confiscated as a result of the criminal judgment against the applicant’s father and other third parties. In the circumstances of the case the applicant could not be considered as an extraneous third party (him being only spared charges for money laundering, as author of the predicate offence, due to the exemption provided by domestic law in such cases). The decision of the Italian authorities to lift the seizure (which had since then become a confiscation for the crime of money laundering in San Marino) could only amount to renunciation by the Italian State of their share of that money. 18.     The applicant’s appeal was dismissed by the Judge of Appeals on 23   April 2018, as it had been filed outside the grounds permitted by law ( al di fuori dei casi consentiti ). 19.     The applicant lodged a further appeal to the Highest Judge of Appeal, namely the third instance judge ( Giudice per la Terza Istanza ) who on 29   June 2018 rejected the appeal for lack of jurisdiction as the law did not provide the applicant with access to the third instance judge to challenge preventive measures arising from international cooperation. Before the Enforcement Judge and the relevant appeal bodies Before the Enforcement Judge 20.     On 13 August 2018 the applicant lodged a request ( incidente di esecuzione art. 203 bis CCP ) with the Enforcement Judge, asking him to annul the confiscation (resulting from the execution order of 19 December 2008) on the basis of the judgment delivered in the criminal proceedings in Italy. 21 .     By a judgment of 13 September 2018 the request was rejected and the confiscation confirmed, it being noted that the confiscated funds concerned the corpus delicti of the crime of money laundering, i.e. the money generated from the previous perpetration of another offence. Indeed, the illicit origin of the funds had been established by the San Marino criminal courts, and such findings were not dependent on a finding of guilt in respect of the predicate offence in the criminal proceedings in Italy. The outcome of the latter, which moreover was that the crime was time-barred and not the lack of commission of the crime, was therefore irrelevant. 22.     The applicant challenged ( reclamo ex art. 203 ter et seq. CCP ) this decision claiming it had been based on irrelevant reasons and in total disregard for the principles established in G.I.E.M. S.R.L. and Others v.   Italy ([GC], nos. 1828/06 and 2   others, 28 June 2018). 23 .     On 26 October 2018 the Enforcement Judge rejected the challenge reiterating that the illicit origin of the funds had been established and, reviewing the entire evidence, reiterated that this had been acknowledged by the applicant’s father and the applicant himself – in this connection the judge referred to the applicant’s own replies to questioning during the investigations in Italy. According to the Enforcement Judge, given his own statement, the applicant could not be considered a third party in good faith, quite the contrary, the applicant had been fully aware of the movement of the money which he himself had instigated. Thus, the applicant could have been co ‑ accused in the laundering, had it not been for the law in San Marino [at the time], which barred an individual who committed the predicate offence from being prosecuted for money laundering. Indeed, in his request the applicant had not even attempted to show the licit origin of the funds so to substantiate his alleged good faith. Before the appeal bodies 24 .     The applicant appealed ( reclamo di seconda istanza ), requesting the return of his money plus interest and inflation, and claiming violations of his right to be presumed innocent, to adversarial proceedings, and to a tribunal established by law in respect of the proceedings before the Enforcement Judge. He insisted that he should have been given the right to put forward his case firstly during the criminal proceedings, and secondly in the procedure before the judge for international cooperation (which he considered the only competent judge to deal with his request – however, the judge for international cooperation had dismissed his claim “acting as an investigating judge”) (see paragraph 17 above). The applicant pointed out that he had not been a party to the criminal proceedings in San Marino, as he had not been called to participate in those proceedings. Thus, he had not had the opportunity to prove the licit origin of the funds determined in the appropriate forum. In the applicant’s view, it was at that time that he should have been given the opportunity to put forward his case and not before the Enforcement Judge who could not decide whether or not the money had a licit origin. He, however, considered that it was not for him to prove such licit origin, him not being an investigated person. While admitting that the Enforcement Judge had been the only one who examined the merits of his case, according to the applicant, the Enforcement Judge had had no competence to do so. Moreover, in doing so he had relied on statements made at pre-trial stage in the absence of adversarial proceedings. In his appeal the applicant further argued that while the authorities insisted on applying Article 147 (2) of the Criminal Code to the confiscation, this could not apply as money was not dangerous in itself unless it was held by the money launderer, but this was not his case. 25 .     By a judgment of 2 January 2019 the Judge of Criminal Appeals rejected the appeal. The latter considered that the judge for international cooperation had correctly rejected the applicant’s request since the preventive measure, applied via international cooperation, had been superseded by other measures including the judgment of the Court of Appeal (final as of 9   May 2008) confiscating the funds. As a result, from that date onwards, the judicial authority before whom the applicant could have and should have instituted his request for the return of the sums was the Enforcement Judge, who must be considered ( deve ritenersi ) competent to protect the interests post rem iudicatam of persons extraneous to the crime and third parties in good faith, who consider they have rights on any confiscated object. Indeed, the Enforcement Judge’s powers were not limited to assessing procedural aspects and could collect all relevant material to decide the claim put before him, as in fact happened. Thus, the applicant had had the possibility to be heard by a tribunal constituted by law, with all the relevant guarantees, such as being represented, having an adversarial hearing, and where the judge could take further investigative steps ( ulteriori approfondimenti istruttori ) if necessary. However, unlike extraneous third parties who do not contest the existence of the crime but only their involvement in it, the applicant was claiming that the funds had a licit origin, an allegation which was diametrically opposed to the reconstruction of facts leading to the relevant legal conclusions in the final appeal judgment of the San Marino criminal courts. It followed that the confiscation could not be annulled due to “the insuperable constraint deriving from the existence of a final criminal judgment”. Since the Enforcement Judge could not frustrate the findings in such a judgment, he had not needed to enter into considerations as to whether or not the funds were licit – matters which had already been established. 26.     The applicant’s claim that he should have been called into the criminal proceedings to defend the licit origin of the sums, was also dismissed, given that San Marino procedural law did not provide for such an action in respect of a third party. Further, even assuming that the Enforcement Judge had upheld the argument that a person should have a right to challenge the deprivation of his possessions (as a result of someone else’s wrongdoing), he could not in such circumstances remedy the situation under the relevant legal framework. Thus, the applicant’s Conventional complaints (such as those in G.I.E.M. S.R.L. and Others , cited above) could only be raised in revision proceedings, which according to recent domestic case-law proclaimed to be an effective remedy prior to European Court of Human Rights proceedings. 27 .     The applicant appealed to the third instance judge complaining primarily that he had not had a fair hearing because he had never been notified of the confiscation and thus could not defend himself against it. He argued that the procedure before the Enforcement Judge could not be an effective remedy in this regard. 28.     On another unspecified date he supplemented his appeal considering, this time, that both the Enforcement Judge and the third instance judge could order the revocation of the confiscation. He further raised complaints under Articles 6 and 7 of the Convention as well as Article 1 of Protocol No.   1 to the Convention. 29 .     By a partial decision of 10 February 2020 the third instance judge rejected his primary ground of appeal (about the non-existence of effective remedies), as it was contradicted by the procedural documents according to which his counsel had put forward all pleas in defence that he considered appropriate. Thus, the applicant had had the opportunity to make out his case before the Enforcement Judge at both first and second instance, who thoroughly examined his case. 30 .     By a decision of 18 September 2020, notified to the applicant on 25   September 2020, the third instance judge rejected the remaining grounds raised in the supplementary appeal. Confirming his competence to decide the matter, he found the judgment on appeal irreproachable. He further noted that in the criminal appeal judgment of 14 March 2008 it had been established that the sum had been obtained by the applicant as a result of the crimes for which he had been charged in Italy and in respect of which he was on house arrest, indeed the defense had provided no alternative version of events. The fact that the applicant had also asked his father to hide the money while he had been on house arrest was one more proof of that. The Enforcement Judge at both first instance and on appeal had therefore been correct in rejecting the applicant’s request. Contrary to the applicant’s argument, Article   204   bis   (15) of the Code of Criminal Procedure did not confer on the Enforcement Judge the power to revoke a measure ordered by the criminal court which had been ritually enforced. RELEVANT LEGAL FRAMEWORK DOMESTIC LAW The Criminal Code 31 .     The provisions of the Criminal Code read, in so far as relevant, as follows [1] : Article 199 bis (Money laundering) “1. Apart from cases of participation in the commission of the offence, anyone who, for the purpose of concealing its true origin, conceals, substitutes or transfers money, or cooperates or intervenes in causing it to be concealed, substituted or transferred, knowing or suspecting that such money was obtained by others through an intentional criminal offence, commits a money laundering crime. 2. Also anyone who uses money, or cooperates or intervenes in causing it to be used in economic or financial activities, knowing or suspecting that such money was obtained by others through an intentional criminal offence, commits a money laundering crime. 3. The provisions of this Article shall 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, the fact shall be criminally prosecutable and punishable also in San Marino legal system.” Article 147 (original text) “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. 3. Confiscated properties shall be transferred to the State Treasury or, where appropriate, destroyed.” Article 147 (3) (as amended in February 2004) “3. 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 and the criminal offences for the purpose of terrorism or subversion of the constitutional order, 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. Confiscated properties or equivalent sums shall be transferred to the State Treasury or, where appropriate, destroyed.” The Code of Criminal Procedure 32 .     The relevant provisions of the Code of Criminal Procedure (CCP) read as follows [2] : Article 200 “The revision of a final judgement of conviction or acquittal, which entails the application of security or confiscation measures, or of a final criminal conviction order, shall be admissible: a) If new evidence has emerged or is discovered, which demonstrates, alone or together with evidence already obtained, that the convicted person shall be acquitted pursuant to Article 162, paragraph 1; b) If the measure was issued as a consequence of false circumstances or of another offence; c) If the facts upon which the measure is based are not compatible with those established in another final criminal ruling; d) If the Court of Human Rights has ruled that the Judgement was rendered in violation of the provisions of the European Convention on Human Rights and Fundamental Freedoms or of its Protocols and the serious negative effects of this judgement can only be removed following a revision. The following persons shall be entitled to submit an application for revision: a) The person convicted or acquitted, either personally or through a special attorney, or one of his next of kin or heir if the person convicted or acquitted is dead; b) The prosecuting magistrate ( Procuratore del Fisco ). The expiry of the limitation period for the offence at the time of the judgement shall not affect the revision proceedings and shall not be mentioned in the relevant judgement. However, the limitation period shall start to run again from the date of the declaration of admissibility of the application for revision and the relevant time-limits shall be extended by one year.” Article 201 “The application for revision shall be submitted in writing and shall indicate the details of the impugned measure and the relevant reasons, with specific indication of the evidence and reasons on which the application is based. Upon submission of the application for revision, or subsequently, the parties entitled thereto may appoint a counsel of their own choosing. The application shall be filed with the Court Registry, together with any supporting documents, within one year from the discovery of the new evidence or facts referred to in the first paragraph of Article 200, letters a) and b), from the date on which the ruling referred to in the first paragraph of Article 200, letter c) has become final, or from the date on which the judgement of the European Court of Human Rights has become final under the circumstances referred to in the first paragraph of Article 200, letter d). [The Judge of Appeal in criminal matters shall be competent to decide on the application for revision, provided that he has not rendered the judgement against which the application is submitted]. The application for revision shall be inadmissible if it is submitted in a case other than those provided for by law, by a person not entitled thereto, or in case of noncompliance with the prescribed forms, time-limits and requirements. However, when the Judge declares the application inadmissible on the ground of noncompliance with the prescribed forms, he may, by way of exception and by virtue of the particular nature of the revision procedure, allow the person concerned to submit again the application in a correct way within a reasonable time. If the application is found to be manifestly inadmissible, the Judge of Appeal shall declare its inadmissibility by means of a reasoned decree. Alternatively, he may suspend, pursuant to the procedure established in Article 198, the enforcement of the sentence or of the security measure by means of a reasoned decree and may apply, if necessary, a precautionary measure. If the application for revision is admitted, the Judge of Appeal shall establish the effects of the admission by revoking the impugned measure and expressly adopting any consequent decision. If the application is rejected or declared inadmissible, the Judge of Appeal may order the private individual submitting the application for revision to pay the costs of the proceedings. In case of suspension of the sentence or of the security measure, the Judge of Appeal may order that its enforcement be resumed.” Article 203 bis “The Enforcement Judge provides on a request by means of a decree, after having heard, if necessary, the submissions of the prosecutor and the convicted person (...)” Article 203 ter “All measures issued by the Enforcement Judge can be challenged by the Prosecutor, the person convicted or by anyone else who has an interest in the measure. The Enforcement judge decides on the challenge at first instance, while the Judge for criminal matters [of first instance for ordinary cases] decides at second instance. The challenge does not suspend the execution.” Article 203 quater “At first instance, the Enforcement Judge, having received the complaint, sets the day for the hearing for the purposes of discussion and deliberation and orders the notification to the parties, who have the right to attend the hearing. The parties have the right to be assisted by a lawyer. ... The deadline to challenge the measure before the second instance is 10 days from having acquired knowledge, according to law, of the decision of the enforcement judge. The latter, before ordering the transmission of documents, may set the time-limits for the presentation of briefs.” Article 204 bis “Apart from that stated in the preceding articles, it is for the Enforcement judge to: ... 14) provide for the enforcement of the obligations arising from the crime and other criminal consequences; 15) take all the other measures foreseen by the law in matters of execution, modification and extinction of penalties, and preventive measures.” RELEVANT INTERNATIONAL INSTRUMENTS 33.     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). 34.     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. 35.     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, CETS No.   198 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.” RELEVANT REPORTS 36.     According to the MONEYVAL (Committee of experts on the evaluation of anti-money laundering measures and the financing of terrorism) Third Round Detailed Assessment Report on San Marino, adopted on 15   September 2008, concerning the situation of Money laundering in San Marino: “According to previous reports, laundering in San Marino almost always related to transactions conducted by non-residents who attempted to use the national financial system to launder proceeds obtained from crimes perpetrated abroad. Investigations in such cases proved difficult, both due to the need to rely on co-operation with foreign authorities and the fact that a connection between the money deposited in San Marino and the predicate offence committed abroad was difficult to establish. ... Since the last evaluation and until the end of 2006, there were four investigations and one conviction for money laundering.” 37.     According to the MONEYVAL Report on the Fourth Assessment Visit of San Marino adopted on 29 September 2011: “13. The money laundering risks, according to the authorities continue to derive from the foreign predicate offenses (primarily offences of fraud, usury and bankruptcy), with proceeds being invested or transferred through San Marino, with the banking and fiduciary sectors being the areas with the greatest vulnerability. The authorities indicated that one of the main challenges remains the high level of sophistication achieved by the interposition of a series of legal entities, often located in different countries, however in most cases, there is involvement (real or fictitious) of at least one San Marino national. Money laundering is often committed by making use of fictitious business operations to justify movements of capital. No significant changes to patterns or methods appear to have been identified. However, the evaluation team noted that several Italian media articles and TV reports issued in the period before the evaluation visit raised concerns of cross linked investments to launder in San Marino proceeds from tax evasion and from the Italian mafia, possibly exploiting the vulnerabilities of San Marino’s financial system. 14. The San Marino authorities have placed a greater emphasis on developing its AML/CFT [anti money-laundering/combating the financing of terrorism] system, through a deep reform of its legislative and institutional framework, and an increased focus on training and resources. These initiatives have led to an increase in the number of money laundering investigations, with annual numbers rising 4 in 2007 to 13 in 2008, and with the development of jurisprudence on money laundering, with convictions reached in 4 judgements. This was also reflected in an increase of international co-operation with foreign authorities on money laundering cases, with predicate offences identified being inter alia fraud, usury, bankruptcy, international trafficking in narcotics, and having led to a number of seizure orders of important amounts.” 38.     The MONEYVAL Fifth Round Mutual Evaluation Report on San Marino of April 2021, in relation to the risks and general situation, found as follows: “The level of ML [money laundering] risk varies from “medium” to “medium-high” depending on whether the proceeds had derived from domestic or foreign crimes. The criminal proceeds derived from predicate offences committed domestically are mainly deposited at FIs [financial institutions] and reinvested in financial instruments and/or used for personal needs. The proceeds of crimes committed abroad and laundered in San Marino derive mainly from swindling/fraud (including tax evasion), misappropriation, (fraudulent) bankruptcy and the “ancillary” offence of criminal association (criminal conspiracy and a mafia-type criminal association). As noted in the 2019 NRA [national risk assessment] during the analysed period (2015-2019) the proceeds of crime generated by foreign predicate offences constituted over 90% of all ML convictions in San Marino.” THE LAW PRELIMINARY REMARKS 39.     The Court notes that the complaint communicated to the Government concerned solely Article 1 of Protocol No. 1 to the Convention, the remainder of the application having been declared inadmissible by the then President of the Section acting as a Single Judge at communication stage. In consequence, any repeated or new submissions by the parties in relation to Articles   6 and 7 of the Convention fall outside the scope of the current case. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 40.     The applicant complained that the imposed measure had not been legal or justified and that he had no effective means to challenge the confiscation contrary to Article 1 of Protocol No. 1 to the Convention, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Admissibility The parties’ submissions 41.     The Government submitted that the applicant had failed to exhaust domestic remedies in so far as he had not instituted proceedings under Article   200 of the Code of Criminal Procedure (CCP) as indicated by the Judge of Criminal Appeals (see paragraph 29 above). The latter’s indication had in the Government’s view undoubtedly resulted from a “constitutionally and conventionally oriented interpretation” of Article 200 of the CCP in order to grant an effective remedy and “avoid the setting in motion of an international complaint mechanism before the Strasbourg Court”. Such a finding had been made in the light of recent jurisprudence of the Judge for Extraordinary Remedies competent to decide on revision requests under Article 200 of the CCP who had of his own motion extended the interpretation of the provision and made himself competent to decide human rights complaints so as to fulfil the requirements of Article 13 of the Convention. It was the Government’s view that it would have been possible to submit to the Judge for Extraordinary Remedies the judgment of the Bologna Court of Appeal and to request, on that basis, the revision of the judgments of conviction adopted by the San Marino court in the criminal proceedings against third persons. In this way, it could have been possible to ‘reverse’ the outcome of the latter proceedings and obtain the acquittal of the defendants previously sentenced by a final judgment and, consequently, the revocation of the confiscation previously ordered together with the restitution of the confiscated property to the applicant. 42.     The applicant submitted that Article 200 of the CCP set out an exhaustive list of subjects entitled to request revision and Article 201 of the CCP provided that the request for revision was to be declared inadmissible if it was presented by a subject not legitimised to do so. The applicant not being one of those subjects, such proceedings in his case could not be pursued. The Court’s assessment 43.     The Court reiterates that the rule on exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before the Court to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering for their acts before an international body until they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see Kudła v.   Poland [GC], no.   30210/96, §   152, ECHR   2000-XI). 44.     The obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Vučković and Others v.   Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §   71, 25 March 2014 and Micallef v. Malta [GC], no. 17056/06, §   55, ECHR   2009). There is no obligation to have recourse to remedies which are inadequate or ineffective (ibid.). It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available both in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and