CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 14 novembre 2024

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Serghides , President ,   Erik Wennerström,   Alain Chablais , judges , and Liv Tigerstedt, Deputy Section Registrar , Having regard to the application (no.   11536/23) 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”) on 6 March 2023 by an Italian national, Mr Giuseppe Roberti, who was born in 1949 and lives in Montefiore Conca (RN) (“the applicant”) and was represented by Mr   R. Fabbri and Mr S. Pagliai, lawyers practising in Borgo Maggiore and Firenze respectively; Considering that Mr Gilberto Felici, judge elected in respect of San Marino, withdrew from sitting in the case (Rule 28 § 3 of the Rules of Court); Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     Together with others, the applicant (as partner and administrator of bank P.I. and of company A.G., and a focal point for certain members of political parties) was investigated in what is known as the “ Conto Mazzini ” inquiry involving various political figures and prominent persons in the financial and banking industry. The Chief Justice, P., assigned judge B. as lead investigating judge and later judge F. as first-instance judge. 2.     By a judgment of 29 June 2017, delivered by judge F., the applicant was found guilty of aggravated conspiracy and certain counts of money laundering and sentenced to nine years imprisonment, a fine, and interdiction from public office. The judge also ordered the (direct) confiscation of 1,026,047 euros (EUR), which had already been seized, and the confiscation (by equivalent means) of a further EUR 7,911,687. 3.     The applicant appealed. The case was attributed to judge C. 4.     During the appeal, a series of press articles divulged the content of certain meetings of the judicial council held in 2017 from which it transpired that the principle of the secrecy of investigations had repeatedly been breached by Chief Justice P. and the investigative steps of the case had been discussed among judges who had had no authority to acquaint themselves with the facts. Those meetings had been attended by both the investigating judge B. and the first-instance judge F. 5.     The matter was brought to the attention of the Judge of Appeals (judge   C.), by the applicant who argued that both judges B. and F. could not have been independent and impartial given the political influence and pressure exerted on them and the dynamics and power games amongst the judiciary. 6.     In the meantime further press articles were published, which, according to the applicant, raised doubts about the impartiality also of judge C., who had made certain statements in a meeting of the judicial council of 8 June 2020 in relation to the adoption of Law no. 1 of 2020 which excluded people like him [judge C.], who were awaiting confirmation in their post, from being part of the judicial council as, given their precarious status, they were dependent on politicians. Judge C. had thus questioned what people would think if such judge was asked to preside the case which had the most significant risks of undue pressure in the history of San Marino [1] . 7.     On 28 October 2020, the applicant raised further arguments in relation to judge B. Given the situation of the judges involved in the case, the defendants considered that the proceedings had to be declared null and asked judge C. to take a preliminary decision on the matter. 8.     Judge C. refused to add to the case file the minutes of the judicial council of 8 June 2020 in which he had taken part, or to decide the matter of nullity, but accepted further documentation so that the parties could make submissions as to the impartiality of judge B. (who in the meantime had become subject to disciplinary and criminal proceedings for corruption in relation to other proceedings). 9.     The documents were made available to the accused persons on 24   November 2020 and extensions of time to study the materials were refused. This together with judge C.’s prior attitude, which was considered hostile, and his precarious position, as well as other statements he had made (referring to attacks on him by politicians) and statements made by politicians who had put into doubt his independence and impartiality, led to a request by another co-accused for judge C.’s abstention or removal ( ricusazione ). 10.     Having refused to abstain, the removal request was sent, according to law, for decision by the Judge for Extraordinary Remedies (JER). On 18 May 2021 the request was considered inadmissible as not falling within any of the situations referred to by law for removal. 11.     Subsequently, proceedings were suspended pending a constitutional decision concerning the interpretation of the crime of money laundering. By a judgment of 2 August 2021 it was considered as an instantaneous crime which could not be protracted in the absence of any active behaviour. 12.     In consequence, by a judgment published on 3 March 2022, the Judge of Appeals found the applicant not guilty in respect of certain charges of money laundering as they were not crimes provided by law at the time and discontinued the remaining charges as they had become time-barred. While revoking the imprisonment, the fine and the confiscation by equivalent means (which could not be imposed in the absence of a conviction), he nonetheless maintained in force the (direct) confiscation of EUR 1,152,800 representing the illicit funds acquired which had remained available to the applicant. The Judge of Appeals relied on Article 147 (1) of the Criminal Code, which in his view did not require a conviction, but solely the responsibility of the accused, noting that this constituted the profit resulting from the aggravated conspiracy (which charge had been discontinued) and/or sums of money having illicit origin (originating from the predicate offence of the money laundering of which he had been acquitted), and thus constituted a preventive measure. 13.     The applicant appealed to the Third Instance judge, solely concerning the confiscation, setting out various substantive legal arguments, and noting, without prejudice to the prior arguments, that the confiscation was in any event to be limited to EUR 1,026,047 which had already been seized. 14.     By a decision of 3 November notified on 9 November 2022 the Third Instance judge declared the appeal inadmissible on procedural grounds. 15.     He noted that the appeal had been lodged on 3 May 2022 after the entry into force of Law no. 24 of 2022, on 17 March 2022, which introduced the suspension of the execution of an appeal judgment and the possibility to appeal before the Third Instance judge within sixty days of the appeal judgment. Thus, in light of the new law, the appeal had been lodged in time according to the tempus regit actum . However, also in line with the principle of tempus regit actum , in accordance with Article 198 (4) of the CPP (the old law), the appeal judgment had become definitive on its publication on 4   March 2022 (in the absence of any transitory provision). Since both propositions were in line with the tempus regit actum , and yet gave different results, its interpretation had to be based on other factors, such as the chronological relationship between the judgment and the appeal. The appeal judgment having become final, no further appeal could lay against it. 16.     It followed that, even if a punishment or preventive measure had been unlawful, that judgment was final, and could not be altered by the Third Instance judge. However, in the view of the Third Instance judge, an unlawful order could be revoked or corrected by the Enforcement judge in cases of absolute abnormality of the order deemed unlawful. In the Third Instance judge’s view, it was only Article 147 (2) of the Criminal Code which provided for confiscation in the absence of conviction. Nevertheless, this only applied to things intrinsically dangerous, which was not the case of money resulting from predicate offences the commission of which had not been assessed during the proceedings. In such circumstances it would be open to the Enforcement judge to examine the matter. 17.     Consequently, the applicant asked the Enforcement judge to annul the confiscation tout court , which in the applicant’s case concerned immovable property in his name and in the name of a trust, a bank account and other liquidity. He based his arguments on the unlawfulness of the confiscation and the reasoning of the Third Instance judge. 18.     By a judgment of 29 September 2023 the request to annul the confiscation tout court (that is including the direct confiscation) was rejected. The Enforcement judge did not share the view of the Third instance judge, but rather embraced the view of the Judge of Appeals, emphasising that the confiscation in the present case had not been a penalty. Considering each type of asset on its own, the Enforcement judge lifted (in accordance with the findings of the Judge of Appeals) the confiscation (by equivalent means) of several immovable properties in the applicant’s name (which had previously been seized) finding that they were not a direct profit of a crime ( misfatto ), and in so far as the confiscation concerned the property held by the trust this was also to be released subject to separate instructions to be given on request. The Enforcement judge, however, maintained the confiscation of the money held in the account given that its illicit origin had been proven, as well as that of other liquidity, to the extent of the sum indicated by the Judge of Appeals, plus interest. He noted that the restitution of the immovable property would take effect once the judgment became final, in the absence of any further challenges or the rejection of such challenges, and would be followed by letters rogatory for the return of property held in Italy. 19.     On an unspecified date the applicant asked the Enforcement judge to clarify his judgment in relation to the return of the immovable property held in a trust including a number of immovable properties listed, noting that if all the listed properties were to be returned, he would not appeal against the judgment (concerning the money in the account and remaining liquidity). 20.     On 29 November 2023 the Enforcement judge confirmed that his judgment included the listed immovable property and took note of the fact that the applicant was forfeiting his right of appeal, and thus the enforcement judgment became final. On that day the release of the property in Italy was requested by the San Marino authorities. 21.     The applicant submitted that he chose not to appeal that part of the enforcement judgment in order not to delay the return of his immovable property. 22.     Invoking Articles 6 §§ 1 and 2 of the Convention the applicant complained that his trial (as from investigation stage to the appeal) had not taken place before an independent and impartial tribunal given the external influences on the judges and the absence of any safeguards in the domestic system. As to the appeal stage, judge C. had been selected in deformity with the usual practice and in a manner which was not in line with the usual procedures, precisely to take on this case. Moreover, judge C.’s position being precarious at the time, he had objectively been dependent on politicians, who made up half of the judicial council who would eventually vote on his permanent status. Those politicians had exercised huge pressure upon judge C. to reach a guilty verdict, which had been avoided only because of the intervention of the Constitutional Court which had clarified the interpretation of the crime of money laundering. The applicant also complained that his presumption of innocence had not been respected given statements made by public officials during the trial destined to influence the outcome of the case. THE COURT’S ASSESSMENT 23.     In so far as the complaint relates to Article 6 § 1, the Court observes that the applicant had been in part acquitted of the charges against him and in part the charges had been discontinued, thus, in principle, he cannot be considered as a victim of Article 6 §   1 under the criminal limb (see Sakhnovskiy v. Russia [GC], no. 21272/03, § 77, 2 November 2010, and, for example, Bouglame v. Belgium   (dec.), no. 16147/08, 2 March 2010, and the case-law cited therein). 24.     However, it could be argued that Article 6 § 1 applies as a result of the confiscation imposed upon the applicant, either under the civil limb or under the criminal limb (should the confiscation in the present case amount to a penalty, compare and contrast , Sofia v. San Marino (dec.), no.   38977/15, §   64, 2   May 2017, and Balsamo v. San Marino , nos. 20319/17 and 21414/17, §   65, 8 October 2019). Nevertheless, the Court notes that even assuming that the complaint is not out of time on the grounds that the Enforcement proceedings were relevant to determine the applicant’s position (see in that sense Zaghini v. San Marino , no. 3405/21, § 48, 11 May 2023), the applicant forfeited his right to appeal the enforcement decision on the confiscation in respect of the money and remaining liquidity. Thus, given that the only consequence of the impugned proceedings was precisely that part of the confiscation (the rest having been revoked by the Judge of Appeals), which he failed to challenge out of his own free will, on the basis of his personal considerations, it cannot be said that he is a victim of an alleged violation of Article   6 §   1 (see mutatis mutandis , Communauté genevoise d’action syndicale (CGAS) v. Switzerland [GC], no.   21881/20, §§ 122-23, 27   November 2023, in relation to exhaustion, the absence of which impacts victim status). It follows that, even assuming it is not inadmissible for any other reason, the complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article   35 §   3   (a) and must be rejected in accordance with Article 35 § 4 of the Convention. 25.     The applicant further complains under Article 6 § 2 in relation to the public statements made during his trial. Accepting that Article 6 § 2 applied (under the criminal limb while criminal proceedings where ongoing) even if the proceedings ended in acquittal or no case to answer (see Allenet de Ribemont v.   France , 10 February 1995, §§   35-36, Series A no. 308), the applicant’s last complaint about the matter was made before the Judge of Appeals. Thus, even assuming that it was not unreasonable for the applicant to pursue the matter as part of the criminal proceedings (see Mamaladze v.   Georgia , no. 9487/19, §§   62-67, 3 November 2022) and therefore that the Judge of Appeals could be considered an effective remedy to exhaust in these circumstances, the final domestic decision of the Judge of Appeals is dated 3   March 2022, while the complaint was lodged more than a year later, on 6   March 2023. The same conclusion would hold had there not been any appropriate remedy to exhaust at the domestic level, as the last impugned statement had been uttered prior to the date of the appeal judgment. 26.     It follows that the complaint   is out of time and must be rejected in accordance with Article   35   §§   1 and   4 of the Convention. 27.     Lastly, the Court notes that, in so far as in his letter of 19 January 2024 the applicant mentions for the first time the “unlawful” loss of use of his immovable property over the years (during which it had been seized), it is recalled that an applicant must complain that a certain act or omission entailed a violation of the rights set forth in the Convention or the Protocols thereto in a manner which should not leave the Court to second-guess whether a certain complaint was raised or not (see Fu Quan, s.r.o. v. the Czech Republic [GC], no. 24827/14, § 145, 1 June 2023, and Grosam v. the Czech Republic [GC], no. 19750/13, § 90, 1 June 2023). Specifically, the Court has held that ambiguous phrases or isolated words do not suffice for it to accept that a particular complaint had been raised (see Ilias and Ahmed v. Hungary [GC], no. 47287/15, § 85, 21 November 2019). In the present case the applicant’s statement made for the first time in his letter of 19 January 2024 must be considered as an obiter dictum and not a complaint, so much so that the applicant did not invoke any Convention provision, nor indicate any remedies pursued at the domestic level in this regard, enabling the assessment of both exhaustion and the timeliness of the complaint. Moreover, it cannot be linked to his previous complaint as the property complained of is not the same and because the seizure throughout the years is an interference separate to the confiscation measure complained of (see, by implication, G.I.E.M. S.r.l. and Others v. Italy (just satisfaction) [GC], nos. 1828/06 and 2 others, § 41, 12   July 2023). Thus, it cannot be considered that the applicant has raised a complaint in this respect. In conclusion, in view of the above, the application must be rejected in accordance with Article   35 §   4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 5 December 2024.     Liv Tigerstedt   Georgios A. Serghides   Deputy Registrar   President [1] With reference to the criminal proceedings in the present case