FIRST SECTION
 
 
 
 
 
 
CASE OF PASQUINI v. SAN MARINO
 
(Application no. 50956/16)
 
 
 
 
 
 
 
 
JUDGMENT
 
 
 
 
STRASBOURG
 
2 May 2019
 
 
 
FINAL
 
02/08/2019
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Pasquini v. San Marino,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Linos-Alexandre Sicilianos, President,
 Aleš Pejchal,
 Krzysztof Wojtyczek,
 Armen Harutyunyan,
 Tim Eicke,
 Jovan Ilievski,
 Gilberto Felici, judges,
and Abel Campos, Section Registrar,
Having deliberated in private on 19 March 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 50956/16) 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 Enrico Maria Pasquini (“the applicant”), on 16 August 2016. 2. The applicant was represented by Mr A. Pagliano, a lawyer practising in Naples. The Government of San Marino (“the Government”) were represented by their Agent, Mr L. Daniele. 3. The applicant alleged, under Article 6 § 1 of the Convention, that the composition of the Court for Trusts had been irregular and not prescribed by law. He further complained that the fact that he had had to pay substantial legal costs in order to apply to that court, on the basis of criteria not specified by law and the refusal of leave to appeal in itself had amounted to a violation of his right of access to a court. He also complained that the Judge of Civil Appeals had not been impartial in refusing him leave to appeal, given his previous expression of opinion on the same facts in a connected case. 4. On 19 June 2017 notice of the application was given to the Government. 5. The Italian Government did not make use of their right to intervene in the proceedings (Article 36 § 1 of the Convention). THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1948 and lives in San Marino. A. Background to the case
7. The applicant owned the entire share capital (and at the material time was also the director) of S.M.I., a fiduciary company operating in San Marino. Company S.M.I. is currently in compulsory liquidation. 8. On an unspecified date an individual, B., conferred a mandate to Z. for the latter to open a fiduciary account (conto fiduciario) with company S.M.I. in his own name but on behalf of the former. Thus, on 2 March 1988 Z. signed a fiduciary management mandate (mandato di amministrazione fiduciaria) with company S.M.I. on behalf of B. 9. As part of the mandate, company S.M.I. opened fiduciary account no. 381‑AF07701 in order to carry out some financial operations concerning securities listed on the Italian Stock Exchange. 10. By a contract of 20 March 1990, signed in the context of the above‑mentioned fiduciary mandate (on behalf of B.), company S.M.I. and another company, K., purchased from company P.A. some shares of its subsidiary company, A.N. As part of the price for these shares, companies S.M.I. and K: (i) waived a previous debt owed to them by an owner of company P.A., and (ii) undertook to reimburse a debt of 11,000,000,000 Italian liras (LIT) that company P.A. owed an Italian bank, S. (in particular, company S.M.I. undertook to reimburse LIT 9,900,000,000 and company K. LIT 1,100,000,000). 11. Eventually B. complained that company S.M.I. had not returned to him part of the proceeds (LIT 9,035,264,332) obtained from the purchase (see paragraph 10 above) and subsequent sale, a few months later, of the shares of company A.N. Nor had company S.M.I. recorded that sum in the statement related to the fiduciary account. B. had become aware of the breach of contract during previous criminal proceedings (ongoing for other reasons, in Milan) in which company S.M.I. had submitted statements concerning the above-mentioned fiduciary account. B. Civil proceedings no. 300/2001
1. First-instance
12. On 4 October 2001 B. filed a civil complaint against Z. and company S.M.I., represented by its legal representative and director (the applicant), in order to obtain from them, in solidum, the payment of LIT 9,035,264,332. 13. By an interlocutory judgment of 4 June 2007 the first‑instance judge (Commissario della Legge) found that not all the financial operations carried out by company S.M.I. on behalf of B. in execution of the fiduciary mandate had been correctly recorded in the financial statement. The judge applied the rules governing contracts of mandate as established by the domestic case‑law and practice, relying, in particular, on the duty of the agent (mandatario  in this case, company S.M.I.) to give evidence of the operations carried out in execution of a mandate in order to demonstrate that it had fulfilled its reporting obligation (obbligo di rendiconto). According to the judge, the only evidence that company S.M.I. had submitted for that purpose had been the above‑mentioned financial statement. However, B. had demonstrated that the statement was incomplete and therefore unreliable. Thus, company S.M.I. had failed to discharge its burden of proof to show that it had returned to B. the sums obtained from the transfer of company A.N.’s shares. 14. Given the unreliability of the statement, the judge, applying the domestic practice concerning the assessment of documentary evidence, took into consideration only the parts of the statement which constituted evidence against the party which had drafted the document, that is to say, only the credit entries (the sums of money company S.M.I. admitted to having been received by B.) but not the debit entries reported therein (indicating what sums S.M.I. had claimed to have used in execution of the fiduciary mandate). Thus, the judge considered all the credit entries (amounting to LIT 34,962,635,382) and deducted from them the sums which B. acknowledged having received and those which company S.M.I had used on his instructions (amounting to LIT 25,927,371,050) as also admitted by him. This left an outstanding debt of LIT 9,035,264,332 (approximately 4,662,778.93 euros (EUR)) which company S.M.I. owed B. 15. However, according to the judge, this was the result of presumptions being made, and B. had not entirely discharged the relevant burden of proof. Thus, to compensate for the partial lack of evidence and allow B. to entirely discharge his burden of proof, the judge in the same aforementioned interlocutory judgment summoned B. so that he could take a “supplementary oath” (giuramento suppletorio – an oath of a party on his or her own behalf as confirmation of otherwise inadmissible or inconclusive evidence – for more details, see Relevant domestic law, paragraph 68 below). The wording of the “supplementary oath”, as set by the judge, was as follows:
“I swear and declare that I did not authorise any other withdrawals [of money] as reported in financial statement no. 381-AF0770l apart from the ones that I have acknowledged and that [were] indicated in my counsel’s submission of 24 April 2003. Thus, company S.M.I. must return to me LIT 9,028,398,950.”
16. Consequently, the proceedings continued solely for the purposes of the taking of the “supplementary oath”. 17. In the same interlocutory judgment the judge also found that Z. had been a mere agent of B. and removed him from the case. 18. On 30 June 2008, B. took the above-mentioned “supplementary oath” as set out by the judge. 19. No first‑instance judgment on the merits was ever issued. 2. Appeal against the interlocutory judgment
20. On 12 December 2008 company S.M.I. appealed against the interlocutory judgment of 4 June 2007. B. cross-appealed and requested, inter alia, that the interlocutory judgment of 4 June 2007 be declared final and that company S.M.I.’s requests be rejected. 21. By a judgment of 9 June 2011, filed with the registry on 30 June 2011, and served on the applicant on 20 July 2011, the Judge of Administrative Appeals, in his capacity as Judge of Civil Appeals (Giudice Amministrativo d’Appello in veste di Giudice delle Appellazioni Civili), dismissed the appeal. The judge confirmed that company S.M.I. had a remaining debt to B. of LIT 9,028,398,950 (EUR 4,662,778.93), and ordered it to pay him that sum of money together with default interest and currency revaluation. 22. The judge specified that the judgment (against which S.M.I. had lodged this appeal) had to be considered a “partial interlocutory judgment” (interlocutoria mista) falling into the category of judgments which examined the merits in part [and thus could be appealed against, as opposed to a “mere interlocutory judgment” (interlocutoria mera) which did not examine the merits and therefore could not be appealed against]. It could not be regarded as a “mere interlocutory judgment” since the first‑instance judge, finding that B. had partially proven his statements, had partly examined the case on the merits. Thus, the judgment had become final after B. had taken the “supplementary oath”, and was amenable to appeal. 3. Third‑instance
23. On 6 July 2011 company S.M.I. attempted to further appeal against the judgment of 30 June 2011, before the Third‑Instance Judge (Terza Istanza). By a judgment of 6 April 2012 the complaint was declared inadmissible on the grounds that the only role of a Third‑Instance Judge was to decide which one of two non‑concordant judgments had to be upheld. That prerequisite did not exist in the case at hand, since both the first and second-instance judgments had been concordant on the merits. C. Joined criminal investigations nos. 312/RNR/2011 and 198/RNR/2012 (for “false oath” and slander)
24. On an unspecified date the applicant (in his own name) filed a criminal complaint against B. under Article 359 of the Criminal Code, accusing him of swearing a false oath. He claimed that, by the statements made under oath on 30 June 2008, B. had committed perjury. A criminal investigation was subsequently initiated. 25. In turn B. filed a complaint against the applicant, accusing him of slander. The investigating judge (Commissario della Legge Inquirente) joined the two investigations. 26. By a decision of 11 May 2015 the investigating judge closed the proceedings since in his opinion there was no evidence that B. had committed perjury. The judge considered that since the expert’s report showed that it was not possible to conclude who had made the payment to bank S., there was no evidence to show the non‑existence of the debt to B. and consequently the falsity of the statements which he had made under oath. 27. On an unspecified date the applicant lodged a complaint with the Judge of Criminal Appeals requesting that the investigation be reopened. 28. By a decision of 31 July 2015, Judge L.F., a Judge of Civil Appeals in his capacity as Judge of Criminal Appeals (Giudice delle Appellazioni Civili in veste di Giudice delle Appellazioni Penali) dismissed the complaint and upheld the decision to close the case. In the opinion of the judge it was implausible that a reopening of the investigation could lead to the discovery of new documents able to demonstrate the origin of the funds used to pay off the debt to bank S. The expert had already analysed all the documents available, which had been found not only in the headquarters of company S.M.I., but also in the archives of the court in Milan (where other proceedings were ongoing). He had not found any records of such a payment. Moreover, the payment dated back to 1990. Furthermore, the dispute at hand had arisen because company S.M.I. and B. had decided, by mutual consent and on purpose, not to record all the operations carried out in execution of the fiduciary mandate. D. The institution of proceedings no. 2/2014 (before the Court for Trusts)
1. First-instance
29. Meanwhile, on 30 October 2014 the applicant (in his own name) had lodged an application with the first-instance civil judge to have civil proceedings no. 300/2001 reopened (istanza di riassunzione del giudizio). 30. Within that application, the applicant submitted a “jactitation suit” (azione di iattanza /di accertamento negativo) (see paragraph 42 and 74 below), requesting the judge to declare that the supplementary oath sworn by B. had been false. The applicant argued that after the taking of the “supplementary oath” new evidence had come into his possession. According to him, B. had not provided company S.M.I. with the necessary funds to carry out the purchase of company A.N.’s shares. Thus, the statement that B. had not authorised any other money withdrawals (except for the ones he had expressly acknowledged) had been false since he had at least authorised company S.M.I. to pay off the debt of LIT 9,900,000,000 owed to bank S., in execution of the obligations arising from the contract for the purchase of company A.N.’s shares. That debt had been paid off by company S.M.I. with the proceeds deriving from the sale of the shares of company A.N., since no other funds had been provided by B. for that purpose, and therefore the sum of LIT 9,900,000,000 had to be subtracted from the amount of the alleged debt claimed by B. 31. By a decision of 12 November 2014 the Chief Justice (Magistrato Dirigente), relying on the domestic law on the competence of the courts (see paragraph 61 below), referred the case to the Court for Trusts and Fiduciary Relationships (Corte per il Trusts ed i Rapporti Fiduciari ‑ hereinafter “the Court for Trusts”). The latter had been instituted by Constitutional Law no. 1 of 26 January 2012 and had competence to hear all cases concerning trusts and fiduciary relationships (see paragraph 56 below). 32. Thus, proceedings no. 2/2014 were instituted before the Court for Trusts. 33. By a decision of 3 December 2014, pursuant to the relevant law (see paragraph 57 below), the President of the Court for Trusts (hereinafter “the President”) referred the case to a panel composed of two judges (Judge G. and the President himself). By the same decision, the President calculated the amount of legal fees. To this end, he relied on the “Rules on Court Fees and Judicial Remunerations”, which he had issued himself the day before (2 December 2014). He considered that the claim had an “undetermined value”, however, the applicant had requested to establish the non‑existence of a debt of EUR 4,662,778.93. Therefore, on the basis of the latter value and the applicable rules, the President calculated the amount of court fees as being EUR 6,000 and the variable part of the judge’s remuneration (la parte variabile del compenso spettante al giudice) as being EUR 23,000 (EUR 20,000 – in accordance with the relevant table – increased by 15%, given that the case had been referred to two judges) as well as EUR 500 in reimbursement of judicial expenses. The President ordered the applicant to pay (i) the court fees in toto and (ii) half of the required payments (for a total amount of EUR 17,750) at least seven days before the date of the first hearing, failing which the claim would be barred (see paragraph 57 below). 34. Although he was regularly notified of the reopening of the proceedings, B. did not respond. 35. In the course of the proceedings, the court ordered some expert reports to be drawn up. The final liquidation balance sheet of company P.A. was also added to the case file, amongst other things. The applicant submitted a consultant’s report aimed at showing that company S.M.I.’s debt to B. did not exist. That report was also added to the case file. 36. At a hearing of 26 May 2015 the court questioned the applicant and heard Z. (a witness called by the applicant). 37. On 10 June 2015 the applicant filed written submissions as requested by the court. 38. On 30 June 2015 the court, having considered the applicant’s submissions incomplete, heard the applicant again. 39. On 14 July 2015 the applicant submitted further written submissions. 40. By a judgment filed with the registry on 18 September 2015 the court partly acceded to the applicant’s complaint. 41. The court considered that the applicant had an interest in bringing proceedings, given the position which he had held in company S.M.I. (see paragraph 7 above). Notwithstanding the fact that the applicant, in his own name, had not been a party in the “original” civil proceedings (brought by B. against company S.M.I.) the outcome of those proceedings (the fact that company S.M.I. had been ordered to pay a substantial sum of money to B.) could have been detrimental to his personal property and reputation both because he would have been liable to pay the sums found to be due, but also because those sums would have been due as a result of his mismanagement. 42. The court accepted the applicant’s characterisation of the action lodged against B. as a “jactitation suit” aimed at establishing the falsity of the statements that B. had made under oath in the course of the civil proceedings. Addressing the applicant’s claim (that he had brought to the court’s attention new evidence which had come into his possession after the taking of the “supplementary oath”, or written evidence which he could not submit before, on the basis of which he had initiated the “jactitation suit”), the court found that the applicant had not submitted any such new evidence. Thus, according to the court, the applicant’s action should have been rejected on procedural grounds, without the merits of the case being dealt with. Nevertheless, in the court’s view, the fact that the parties of the case before it (the applicant and B., the latter in absentia) were different from the original parties in the “ordinary” civil proceedings (company S.M.I. and B.), allowed the court to consider the “jactitation suit” procedurally admissible, even in the absence of new evidence (that is to say, in the absence of the prerequisites for the admissibility of a “jactitation suit” as established by the domestic case-law, see paragraph 68 below). The court justified its decision not to follow the above-mentioned precedent on the basis that the final judgment in the “ordinary” civil proceedings had to be considered “res inter alios acta” (a thing involving and affecting different parties).
43.

Article of the Convention at issue: Article 6
Outcome: no_violation