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San Marino’s Definition of Financial Crime Under Scrutiny: European Court Ruling Paves Way for Stronger Anti-Corruption Measures

Introduction

A recent ruling by the European Court of Human Rights (ECHR) has shed light on San Marino’s definition of financial crime, specifically bribery, and its application in the country. The case of Berardi and Mularoni v. San Marino has significant implications for the island nation’s efforts to combat organized financial crimes.

Background

The ECHR ruling centered around a state inquiry report from 2011 that revealed a widespread corrupt practice among construction companies that bribed public officials responsible for overseeing safety checks on building sites. The appellants argued that their acts of bribery were committed prior to a 2008 amendment to the Criminal Procedure Code, which added the element of “omission to perform duties” to the definition of bribery.

Pre-Amended Definition of Bribery

Prior to the amendment, the definition of bribery under Article 373 read:

• A public official who receives, for his own benefit or that of others, any undue profit or a promise of such in order to carry out an action contrary to the duties arising from his functions is to be punished by imprisonment and a prohibition on holding public office and exercising political rights of the fourth degree as well as by a fine of the third degree.

Amended Definition of Bribery

The amended definition added:

• A public official who receives, for his own benefit or that of others, any undue profit or a promise of such in order to omit or delay or after having omitted or delayed any duty pertaining to his office (function), and thus to carry out or to have carried out an action contrary to the duties arising from his functions, is to be punished by imprisonment and prohibition on holding public office and exercising political rights of the fourth degree as well as by a fine of the third degree.

ECHR Ruling

The ECHR had to rule on two issues:

• Whether it could intervene in the interpretation of substantive principles of criminal law by domestic courts, and
• Whether the facts and circumstances of the case fell under the ambit of Article 7 of the European Convention on Human Rights.

In its ruling, the ECHR held that it could not act as a bar to judicial interpretation of substantive criminal law by domestic courts, provided that the conclusions reached were reasonably foreseeable within the meaning of the Court’s case-law. The Court further opined that in assessing foreseeability, no decisive importance should be attached to a lack of comparable precedents.

Implications

The ruling is seen as a significant step forward for San Marino’s efforts to combat financial crimes, including corruption and bribery. With this judgment, the country can now develop a stronger jurisprudence in tackling white-collar crimes, building on its recent state and judicial resolve to investigate these criminal activities and bring perpetrators to justice.

Key Takeaways

• The ECHR ruling has shed light on San Marino’s definition of financial crime, specifically bribery.
• The amended definition of bribery added the element of “omission to perform duties” to the previous definition.
• The ECHR held that it could not act as a bar to judicial interpretation of substantive criminal law by domestic courts.
• The ruling is seen as a significant step forward for San Marino’s efforts to combat financial crimes, including corruption and bribery.