European Court of Human Rights Rules on Retroactive Application of Penal Provision in San Marino

Landmark Ruling on Financial Crime Definition

In a significant judgment, the European Court of Human Rights (ECHR) has addressed the gray areas surrounding financial crime definition in San Marino. The case, Berardi and Mularoni v. San Marino, revolves around the retroactive application of a penal provision to acts that were not criminal at the time of their commission.

Background

The principle of nullum crimen sine lege (no punishment without law) is a cornerstone of criminal justice jurisprudence, incorporating the values of human rights in criminal procedures and protecting the accused from unfair trial. However, what happens when an act is not a crime at the time of its commission but becomes one later?

Key Issues before the ECHR

• Can the ECHR intervene in the interpretation of substantive criminal law by domestic courts?
• Do the facts of the case fall under Article 7 of the European Convention on Human Rights, which states that 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?

The Court’s Ruling

The ECHR held that while it is for domestic courts to interpret substantive criminal law, the ECHR can intervene if the interpretation is reasonably foreseeable. In this case, the court found that despite the absence of comparable precedents, the domestic courts’ conclusion that omitting to perform official duties in lieu of bribery could be reasonably read into the pre-amended definition was foreseeable.

Implications

The ruling has significant implications for San Marino’s efforts to tackle organized financial crimes. With this judgment, the ECHR has shown confidence in the country’s judicial development in tackling white-collar crimes. San Marino’s recent commitment to investigating and prosecuting such crimes creates a fertile ground for forging a new jurisprudence in this area.

Conclusion

The European Court of Human Rights’ ruling on the retroactive application of penal provision in San Marino is a significant step forward in addressing financial crime definition. The court’s decision highlights the importance of ensuring that individuals are not unfairly held guilty of crimes committed before they were made illegal. This judgment sets a precedent for other countries to follow, emphasizing the need for clarity and consistency in criminal law.