BIAGIOLI v. SAN MARINO
Inadmissible
Aleš Pejchal;Armen Harutyunyan;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano
1. The applicant, Mr Carlo Biagioli, is an Italian national, who was born in 1969 and lives in San Marino. He was represented before the Court by Mrs A. Mascia, a lawyer practising in Verona, Italy. summarised as follows. 3. The applicant is the son of the Commander in Chief of the San Marino Police. He was a lawyer and notary by profession before being disbarred (radiato) as a result of criminal proceedings which were instituted in 2005 against both father and son for making false declarations in public documents (reato di falso in atto pubblico) under Articles 73 and 295 of the Criminal Code on 1 March 2002. It was alleged that they had altered the content of the police daily record (foglio di servizio) of 16 June 1999 by adding that they had carried out a check-up on a specific car and person, whereas such a check-up had never been undertaken. 4. By a judgment of 4 April 2012 no. 81/2012, filed in the registry on 11 May 2012, both the applicant and his father were found guilty. The applicant was sentenced to two years and six months’ imprisonment and prohibited from holding public office for fifteen months. 5. By judgment no. 154/2012 of 28 September 2012 the Appeal Court upheld the first-instance judgment, reducing, however, the punishment. The applicant was sentenced to two years’ imprisonment and prohibited from holding public office for a year. His sentence was suspended for two years. 6. More factual details about the criminal proceedings can be found in Biagioli v. San Marino, (dec.), no. 8162/13, 8 July 2014. 7. In the meantime on 21 August 2005, the San Marino Chamber of Advocates and Notaries (OAN) (hereinafter “the CAN”) had asked the applicant to submit an explanation as to the facts surrounding the criminal proceedings. By a letter of 5 September 2005, the applicant informed the CAN that no charges had been issued against him and that any impugned conduct had not been in connection with the carrying out of his profession. 8. On 3 April 2007, following the issuance of a bill of indictment against the applicant, the CAN once again asked him for explanations, and the applicant submitted the relevant bill of indictment. 9. Following the delivery of the first-instance judgment, on 12 April 2012 the CAN requested the applicant to provide a copy of the operative part of the judgment. The applicant complied with the request on 18 April 2012, also submitting a copy of his appeal application. 10. On 4 May 2012 the applicant was notified that the CAN was instituting disciplinary proceedings against him in respect of a breach of Article 9 of legislative decree no. 56 of 26 April 1995, as well as Article 45 (1) of law no. 28 of 20 February 1991 (see relevant domestic law below). 11. At the hearing of 22 June 2012, as well as in his written submissions, the applicant argued that the disciplinary action against him was timebarred. In any event he requested the suspension of any sanction against him until the judgment finding him guilty had become final. 12. On 5 July 2012, the CAN rejected his argument concerning prescription but suspended the disciplinary proceedings until the criminal proceedings had become final. 13. On 19 July 2012, the applicant challenged that decision before the National Commission of Liberal Professions (libere professioni) (CNLP), hereinafter “the Commission”. 14. On 12 September 2012 the Commission rejected the applicant’s challenge concerning prescription on the basis that the decision of 5 July 2012 was not a decision on the merits, namely as to whether or not to apply the disciplinary measure, and thus was not subject to an autonomous challenge. Such a challenge could be raised in the context of an appeal in the event of the CAN ordering a disciplinary measure. 15. On 3 October 2012 the applicant challenged the decision of the Commission. 16. Eventually, by a judgment of 4 March 2013 the Administrative Court rejected the applicant’s challenge and upheld the Commission’s decision. 17. Following the Court of Appeal judgment of 28 September 2012 in the criminal proceedings against the applicant, on 5 October 2012 the CAN informed the applicant that disciplinary proceedings were to be continued and that he was to appear at a hearing. 18. Hearings in the presence of the applicant and his lawyer took place on 15 and 17 October 2012, and written submissions were also filed. The applicant made submissions concerning, inter alia, the invalidity of the CAN owing to its constitution; the generic nature of the accusation; the fact that the impugned conduct had taken place outside the ambit of his professional activities; and the lack of proportionality of the measure. He also reiterated his argument that the disciplinary action was time-barred, and requested the suspension of the measure. Without prejudice to his arguments he claimed that in any event, the sanction should not be anything other than suspension for a month. 19. By a decision of 23 October 2012 the CAN disbarred the applicant. It noted that Article 51 of law no. 28 of 20 February 1991 provided that disbarment applied (importa, di diritto) in cases of a final finding of guilt under Article 295 of the Criminal Code (relevant to the present case). Thus, the CAN had no room for evaluation, discretion or decision making, save for the determination of whether an irrevocable criminal judgment finding guilt actually existed. In the present case, that fact had been ascertained and the judgment had been submitted by the applicant himself. It followed that the CAN’s finding applying such a sanction was simply declaratory, the legislator having prescribed mandatory disbarment in such cases. It further rejected the applicant’s plea concerning prescription in respect of the disciplinary action and his request for suspension of the disciplinary proceedings. It also considered that the disciplinary punishments provided for by law were justified by a general principle, namely that of behaving in line with the duties of correctness, dignity and honour for the profession, even beyond the exercise of the professional activity, in so far as such behaviour may harm the common beliefs of the community. Indeed, the law (Article 39 of legislative decree no. 56 of 1995) could only be interpreted in the sense that actions undertaken outside the scope of one’s activity must be subject to disciplinary action if they affected society’s values, reflected on the professional reputation of lawyers or notaries, or compromised the image of the forensic and notarial categories. The correctness of this interpretation was evident given that, according to the law, a finding of guilt brought about disbarment mandatorily, as well as from the wording of Article 5 of Decree no. 105 of 2011 concerning the statute of the Chamber of Advocates and Notaries, and the correlation between law no. 28 of 1991 and legislative decree no. 56 of 1995. 20. On 4 October 2012 the applicant challenged this decision. 21. On 16 January 2013 the Commission confirmed the decision of the CAN in its entirety and rejected the applicant’s challenges concerning the prescription of the disciplinary action, and the composition and constitution of the CAN. It also rejected his allegations concerning the lack of detail about the accusation, the automatic application of the sanction and the incoherence of the CAN’s decision, which had not followed the expert opinion. As for the applicant’s complaint that the facts that had led to the accusation had occurred outside his professional duties, as well as the proportionality of the measure, the Commission referred back to the decision of the CAN, which had found that such arguments were irrelevant given the content of Article 51 of law no. 28 of 1991 and its application in the present case. 22. On 18 April 2013 the applicant challenged the Commission’s decision before the Administrative Court, reiterating the arguments he had already put forward. 23. In his application lodged on 18 April 2013 against the decision of the Commission of 16 January 2003, the applicant raised a number of pleas (in a 100-page document). His pleas concerned issues relating to the law and its application, whether in substance or as a matter of procedure. 24. In his requests dated 24 May and 7 August 2013 the applicant raised two more procedural pleas. In a further request he also challenged the constitutional legitimacy of Articles 30 and 40 of legislative decree no. 56 of 1995 in so far as they did not provide for the possibility of requesting the withdrawal of or abstention by persons sitting on the disciplinary body. He also challenged the legitimacy of Article 51 of law no. 28 of 1991 and Article 39 of legislative decree no. 56 of 1995. The applicant argued that the fact that the legislation provided for an automatic sanction, without the possibility of a progressive application of sanctions depending on the specific case, subject to evaluation by the disciplinary body, was contrary to the principles of reasonableness and proportionality. 25. By a decision of 23 July 2013 the Administrative Court rejected the applicant’s pleas concerning the irregularity of the CAN’s constitution. In particular, as to the constitutional legitimacy of Articles 30 and 40 of legislative decree no. 56 of 1995, it considered that, in the present case, the applicant’s inability to request the withdrawal of a member of the organ had not breached his rights. As to the constitutional legitimacy of Article 51 of law no. 28 of 1991 and Article 39 of legislative decree no. 56 of 1995, the court considered that the automatic application of a sanction would be in breach of constitutional principles only if it were not preceded by disciplinary proceedings. In the present case, the applicant had been subjected to disciplinary proceedings during which he had been able to put forward all his arguments and defend himself before both the CAN and the Commission. Indeed, it transpired from the decision of the CAN that that organ had: verified the existence of the disciplinary breach (by establishing the existence of a final criminal judgment); heard the applicant various times; established the facts and indicated the relevant provisions relating to the breach at issue; allowed the applicant’s legal representative full access to the disciplinary file; and allowed the applicant to make written submissions and call witnesses as well as make any oral submissions in his defence. It followed that although the law provided for automatic application of the measure, as happened in the present case, the measure was applied only after disciplinary proceedings had been carried out in compliance with the relevant rules of procedure. In the present case the disciplinary organs had correctly interpreted and applied the law in conformity with the constitutional principles invoked. The applicant’s complaint was therefore ill-founded. 26. During the proceedings before the Administrative Court, the applicant’s request to suspend the effects of the Commission’s decision pending a decision in the administrative proceedings was rejected on 3 May 2013 following an oral hearing. The Administrative Court rejected the request on the grounds that the applicant had not shown what prejudice he had suffered and bearing in mind the interests of third parties and the crimes of which the applicant had been found guilty by means of a final judgment. 27. The applicant challenged that decision, but the Administrative Appeal Court dismissed his appeal on 5 May 2013. 28. On 7 August 2013 the applicant reiterated his challenges in respect of the constitutionality of Articles 30 and 40 of legislative decree no. 56 of 1995 as well as of Article 51 of law no. 28 of 1991, but this time in the light of the San Marino Fundamental Human Rights Charter and the Convention. 29. An oral hearing took place on 29 August 2013. The decision on the matter was delivered in the main proceedings (see below). 30. By a judgment of 10 October 2013 the Administrative Court dismissed the applicant’s claims (by means of a fifty-page judgment). 31. The court held that as it had already stated in various decisions in the present case, its jurisdiction in the instant case was that provided for under law no. 68 of 28 June 1989, as set out in Article 54 of legislative decree no. 56 of 1995, namely judicial review of administrative action (giurisdizione di legittimita`). Thus the impugned acts could only be challenged on the basis that the decision in the disciplinary proceedings was not in accordance with the law, had been delivered by a body that did not have the requisite jurisdiction or had been delivered in abuse of power. It was not for the administrative court to assess the facts or conduct leading to the decisions, which was the responsibility of the disciplinary body in accordance with the law. According to jurisprudence, in disciplinary proceedings against lawyers the establishment of the misconduct leading to the disciplinary breach was the exclusive competence of the disciplinary organs. However, the decision was subject to a control concerning its reasonableness, in judicial review proceedings. This was also confirmed by the disciplinary bodies’ statements. Other jurisprudence had confirmed that the factual assessment made by the disciplinary organ would be irreproachable as long as it was backed up by sufficient and appropriate reasons, and that judicial review should not extend to an assessment of the evidence or of the gravity of the offence, or the appropriateness of the sanction imposed. The court further noted that those were administrative proceedings and as such were not subject to the guarantees of criminal proceedings. 32. Bearing in mind the above, the court found that the applicant’s complaints were ill-founded. Concerning constitutional legitimacy, the court confirmed the decision it had delivered on 23 July 2013 (see paragraph 25 above) and noted that the applicant had again reiterated those complaints. 33. On 13 November 2013 the applicant appealed against the Administrative Court judgment of 10 October 2013. He once again reiterated his claims concerning constitutional legitimacy (mentioned above) and the lack of adequate reasoning given in this respect by the previous organs. He also challenged the first-instance court’s findings in so far as they had repeatedly relied on previous decisions given in his case. They had also relied on Italian jurisprudence without considering the fact that San Marino law was different from Italian law. He further considered that the first-instance court had wrongly interpreted and applied relevant laws in relation to each and every one of his claims. 34. On 11 February 2014 the applicant submitted further written submissions on his grounds of appeal. On 11 February 2014 the parties agreed that no oral pleadings were necessary since the arguments had already been exhaustively made. 35. The applicant’s appeal was dismissed and the judgment of the Administrative Court was upheld on appeal on 24 March 2014. The Administrative Appeal Court noted that the issues of constitutional legitimacy had once again been reiterated. It considered that the CAN and the Commission were disciplinary organs to which Articles 6 and 13 of the Convention, or the equivalent articles of the San Marino (human rights) Declaration did not apply. Furthermore, the Administrative Appeal Court highlighted that the law distinguished between minor crimes and more grave crimes when regulating the application of the various applicable sanctions, including disbarment from a profession. The application of such a serious sanction, which only applied to more serious crimes, in the applicant’s case had been wilfully and consciously decided by the legislator, leaving no discretion to the disciplinary Commission. It was worth noting that in San Marino, lawyers also carried out the functions of notaries, and a criminal conviction for making false declarations in public documents was objectively incompatible with the function of a public official which was, by definition, the guarantor of truthfulness and the veracity of documents. Thus, the fact that the law provided an automatic application of the sanction in such cases could not be considered unreasonable or disproportionate, and was thus in conformity with Article 4 of the San Marino Declaration. 36. As to the applicant’s complaints concerning the first-instance administrative decision, the court found that the first-instance court had given relevant and sufficient reasons in its decision and that its findings were valid. The mere fact that in some instances that decision had relied on Italian jurisprudence only served to further the reasoning in relation to the arguments raised. As to each of the remaining grounds of appeal, the Administrative Appeal Court entered into each and every one and reached the conclusion that they were all manifestly ill-founded. 37. The decision to disbar the second applicant was communicated to the Employment Office, which in turn and in accordance with Articles 12, 13, 49 and 50 of law no. 28 of 1991, namely the legal framework concerning the exercise of the liberal professions, struck him off its list of liberal professionals. That entailed the automatic cancelling of his VAT number (codice operatore economico) as from 18 February 2013. 38. Article 295 of the Criminal Code, concerning the offence of making false declarations in public documents, reads as follows: “A public official who, in the exercise of his duties, counterfeits or alters a public deed shall be liable to imprisonment and interdiction from public office of the third degree. The same actions carried out by an individual attract a sanction of imprisonment of one lesser degree.” 39. Article 9 of legislative decree no. 56 of 26 April 1995, concerning the professional ethics of lawyers and notaries, and in particular their general duties, reads as follows: “The conduct of anyone registered with the Chamber of Advocates must be irreprehensible and characterised by the decorum, dignity and morality associated with his functions, even beyond the exercise of his or her profession as a lawyer or notary.” 40. Article 39, concerning sanctions, reads as follows: “The Chamber of Advocates and Notaries may institute (dar corso) disciplinary proceedings against an advocate or notary registered with the Bar, who, in the exercise of the profession, has by any means tarnished the dignity of the profession and the decorum and independence of the forensic and notarial sector, or has been lacking in the performance of his or her professional duties. Having established responsibility in accordance with the gravity of the violation and applying the principle of progressive application of sanctions (principio di gradualità), the Chamber shall apply one of the following sanctions: (a) - private reprimand (il richiamo) to be applied in the case and as provided for in Article 47 of Law no. 28 of 1991 - formal reprimand (la censura) to be applied in the case and as provided for in Article 48 of Law no. 28 of 1991 - temporary suspension from the exercise of the profession to be applied in the case and as provided for in Article 49 of Law no. 28 of 1991 - removal from the Bar (la cancellazione dall’albo) to be applied in the case and as provided for in Article 50 of Law no. 28 of 1991 - disbarment from the profession (la radiazione dalla professione) to be applied in the case and as provided for in Article 51 of Law no. 28 of 1991. 41. Article 54 reads as follows: “Decisions of ... the Chamber of Advocates and Notaries may be appealed against by means of a challenge (opposizione) and an application before the administrative courts as provided for by Law no. 68 of 28 June 1989.” 42. Under Article 37 of law no. 28 of 20 February 1991 (concerning discipline in the liberal professions – libere professioni), decisions of the Chamber of Advocates and Notaries may be challenged before the National Commission of Liberal Professions, and the latter’s decisions may be challenged under Article 44 of the same decree (see below). 43. In so far as relevant, the pertinent articles of law no. 28 of 20 February 1991 read as follows: “The National Commission of Liberal Professions has the following functions: N. to decide by administrative means challenges to decisions made by the Chamber of Advocates and Notaries on disciplinary matters”. “The decisions of the National Commission of Liberal Professions may be challenged before the Administrative Tribunal established by Law no. 68 of 28 June 1989.” “Disciplinary action may be taken in respect of any conduct by a professional, both during the exercise of his functions and beyond such exercise, in so far as such conduct may be detrimental to his own professional dignity, as well as to the decorum and independence of the category of professionals to which he belongs.” The Chamber of Advocates and Notaries, may, if it considers it appropriate in view of the nature and gravity of the impugned conduct, and applying in so far as possible the principle of progressive application of sanctions (principio di gradualità), apply the following sanctions - private reprimand (il richiamo) - formal reprimand (la censura) - temporary suspension from the exercise of a profession - removal from the Bar (la cancellazione dall’albo) - disbarment from the profession (la radiazione dalla professione). “The sanction of disbarment from the profession is provided for in cases in which the professional has been punished for committing an offence, by means of a final judgment, to imprisonment, interdiction from public office, or to disbarment from the profession, for a term of more than two years. Disbarment from the profession is mandatory in cases where a guilty verdict has been passed by means of final judgment for the offences referred to in Articles 295, 296, 354, 358 and 361 of the Criminal Code, irrespective of the punishment handed down in the specific case. Decisions in respect of the preceding Articles nos. 48, 49, 50 and 51 can be adopted only following disciplinary proceedings. The rules relevant to each respective profession shall determine the method and form of disciplinary proceedings, ensuring in every case the principle of proportionality of the sanction to the infraction committed, the obligation to notify the accused of the accusation, as well as to the latter’s right of defence. “... A professional who has been disbarred may be reinstated only if he or she has been rehabilitated and it has been shown that his or her conduct has been irreprehensible.” 44. Administrative proceedings are provided for by law no. 68 of 28 June 1989 concerning jurisdiction in administrative matters, the review of legitimacy and administrative sanctions. The relevant provisions, in so far as relevant, read as follows: “Whosoever has a direct and immediate interest in respect of an act on the part of the public administration, social security institution or autonomous State agencies or entities which is deemed to be detrimental to his interests may seek a judicial remedy (può ricorrere in via giurisdizionale) before a first-instance administrative judge.” ... “The first-instance administrative judge is competent to decide in the first instance. If the request is upheld, the impugned act is annulled.” (The judge may also award costs and give instructions as to the enforcement of the decision.) “The decisions of the first-instance administrative judge may be appealed against before the administrative appeal judge within thirty days of the notification given by the registry. ... The appeal does not suspend the enforcement of the measure.” 45. Other relevant provisions of domestic law can be found in Biagioli, (dec.), cited above.