San Marino’s Financial Crimes: A Case of Foreseeability and Retroactivity
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The European Court of Human Rights (ECHR) has made a landmark ruling on the definition of financial crimes in San Marino, addressing the principle of nullum crimen sine lege (no punishment without law).
Background
In 2011, a state inquiry report exposed widespread corruption among constructing companies that bribed public officials responsible for construction site safety to omit safety checks. The appellants argued that since the acts were committed prior to 2008, when bribery by omission was not part of the definition, they cannot be prosecuted under the principle of non-retroactivity.
The Case
The case revolves around the amendment of San Marino’s Criminal Procedure Code in 2008, which added the element of “omission to perform duties” to the definition of bribery. The ECHR had to rule on two issues:
- Whether it can intervene in the interpretation of substantive criminal law by domestic courts
- Whether the facts fall under Article 7 of the European Convention on Human Rights
Ruling
The court held that while it is for domestic courts to interpret substantive criminal law, the Convention may not act as a bar to this kind of judicial interpretation. In assessing foreseeability, the ECHR noted that an interpretation consistent with the essence of the offence must be considered foreseeable, even in cases where there are no comparable precedents.
The San Marino domestic courts held that there is no substantive difference between the earlier and amended definitions of bribery, and that omitting to perform official duties can be reasonably read into the pre-amended definition. The ECHR agreed, finding that the applicants could have reasonably foreseen the illegality of their acts.
Implications
The ruling demonstrates confidence in San Marino’s judicial development in tackling organized financial crimes. With recent state and judicial resolve to investigate and prosecute perpetrators, there is a fertile ground for the country to develop and forge a new jurisprudence in combating white-collar crimes.
Key takeaways:
- The ECHR has confirmed that domestic courts can interpret substantive criminal law
- Foreseeability plays a crucial role in determining the applicability of retroactive penal provisions
- San Marino’s judicial development is crucial in tackling organized financial crimes
By addressing the complexities surrounding retroactive application of penal provisions, this landmark ruling sets an important precedent for other countries to follow.