CASE OF TIERCE AND OTHERS v. SAN MARINO
Violation of Art. 6-1 due to lack of impartial tribunal;Violation of Art. 6-1 due to the impossibility of being heard in person on appeal;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
Elisabeth Palm
10. On 29 November 1990 the first applicant's business associate, Mr C.B., lodged a criminal complaint with the Civil and Criminal Court (tribunale commissariale civile e penale) of the Republic of San Marino, accusing the first applicant of irregularities in the management of their business affairs. On 4 December 1990 Mr C.B. lodged a second complaint together with supporting documents, seeking, in particular, to have the first applicant's bank accounts frozen. 11. By a summons issued by the Commissario della Legge (judge) of the Civil and Criminal Court, Mr L.E., on 6 December 1990 and served on 10 December 1990, the first applicant was required to appear before that court on 17 December 1990; at the first applicant's request, the hearing was postponed until 22 February 1991. 12. On 30 January 1991 Mr C.B. filed further documents. 13. On 22 February 1991 Mr C.B. and the first applicant were questioned by the Commissario della Legge, Mr L.E. 14. On 4 March 1991 the first applicant filed pleadings. 15. On 16 May 1991 the Commissario della Legge, Mr L.E., ordered an expert to draw up a report with a view to ascertaining the nature of the business relationship between the first applicant and his associate and verifying the propriety of the first applicant's management of the company. 16. On 28 November 1991 the expert submitted his report, concluding that, on account of irregularities attributable to the first applicant, the latter owed his associate the sum of 93,188,334 Italian lire. On 30 December 1991 the Commissario della Legge, Mr L.E., allowed a further application by Mr C.B., dated 18 December 1991, for the attachment of the first applicant's assets in order to prevent him disposing of them. 17. On 8 May 1992 the Commissario della Legge, Mr L.E., questioned the expert, who reaffirmed his findings. The first applicant's lawyer asked for time to submit various documents. 18. On 14 May and 4 June 1992 the first applicant's lawyer filed his observations and various documents; Mr C.B.'s lawyer did likewise on 15 May and 11 June 1992. 19. On 19 June 1992 another Commissario della Legge authorised a second preventive attachment of the first applicant's property, including a number of cars, bank accounts and any other items of value. In an order of 24 June 1992 the second Commissario della Legge specified the items that were to be attached and appointed the first applicant as their legal guardian (custode giudiziale). 20. On 25 and 26 June 1992 the bailiffs (cursori) drew up a record of the attachment, noting that two cars had disappeared and that the first applicant, who was responsible for them in his capacity as legal guardian, was unable to indicate their whereabouts. Mr C.B.'s lawyer consequently lodged a further complaint against the first applicant, accusing him of the offence of fraudulent conversion of property under attachment (frode nel pignoramento o nel sequestro). 21. On 26 June 1992 the missing cars were located; on the same day the first applicant was questioned by the Commissario della Legge, Mr L.E. 22. On 2 July 1992 a defence witness was questioned by the Commissario della Legge, Mr L.E. 23. On 19 and 23 November 1992 Mr C.B.'s lawyer lodged a third application for preventive attachment of the first applicant's property. On 14 December 1992 the Commissario della Legge, Mr L.E., allowed the application and authorised the attachment of certain cars belonging to the first applicant, and also of his share in another company. On the same day the first applicant was committed for trial on charges of fraud and fraudulent conversion of property under attachment. 24. On 2 February 1993 the first applicant was issued with a summons to appear in court. 25. Since the shortened form of procedure (procedura sommaria) was applicable, the trial was held before the same Commissario della Legge, Mr L.E., who had already dealt with the case as the investigating judge. Evidence was heard from the parties and from various defence witnesses. 26. In a judgment delivered by the Commissario della Legge, Mr L.E., on 7 May 1993 and deposited at the registry on 16 July 1993 the first applicant was found guilty on both charges (fraud and fraudulent conversion of property under attachment), and was given a one-year suspended prison sentence and ordered to pay a fine. 27. On an unspecified date the first applicant appealed against that judgment. He argued, firstly, that he could not be held criminally liable and that the only issue that could be raised was that of his civil liability, basing his submission, in particular, on the content of agreements he had concluded with Mr C.B. He also complained that he had not been given permission to consult certain accounting documents which could have established that his actions had at the very most amounted to misappropriation (appropriazione indebita) rather than to fraud. As regards the charge of fraudulent conversion of property under attachment, he added that he had never intended to break the law but had quite simply misunderstood the content of a Criminal Court decision of 3 July 1993 and had, accordingly, believed that the attachment order had been lifted; on realising his error, he had immediately informed the judge of the cars' whereabouts. Lastly, he maintained that the charge of fraud had become time-barred on 26 July 1993. 28. The complainant likewise appealed, arguing that the first applicant's criminal liability was beyond dispute because he had misrepresented their firm's financial position in order to make him accept a sum well below the value of his share. He further submitted that the charges were not time-barred and that the Commissario della Legge had not taken into account certain aggravating circumstances, the continuation of the offence in question or the commission of other offences, such as issuing bad cheques, fraudulent conversion of property under attachment and misappropriation. The complainant also claimed damages and sought to have the orders for the attachment of the first applicant's property upheld. 29. State Counsel (Procuratore del Fisco) sought to have the judgment at first instance upheld in its entirety. 30. In the meantime, the Commissario della Legge had ordered the lifting of the attachment of certain of the first applicant's assets. 31. Without holding a hearing, and on the basis of the documents relating to the investigation at first instance (alla stregua delle risultanze processuali), which the Commissario della Legge, Mr L.E., had added to the file for the appeal, the criminal appeals judge (Giudice delle appellazioni per le cause penali) held, in a judgment of 22 October 1993 which was deposited at the registry on the same day and became final on 26 November 1993, firstly that the applicant's objection that he had been unable to consult the accounting documents was manifestly ill-founded and in any event of no consequence, since he had never been denied access to the documents. The appellate judge further held that the file on the investigation at first instance showed that the first applicant had concealed his activities from his associate Mr C.B., and had falsely represented their firm's financial position to him for the purpose of deception; his conduct consequently amounted to fraud. As regards misappropriation, that offence – which had, moreover, become subject to limitation – did not preclude fraud, but should rather be added to it as a preliminary step towards it. The judge accordingly upheld the first applicant's conviction. As regards the offence of fraudulent conversion of property under attachment, the judge considered that the first applicant's explanation was legally irrelevant, since it referred to a decision delivered after the perpetration of the offences for which he had been tried. The judge also dismissed the objection that the charge of fraud was time-barred, pointing out that time had ceased to run while the expert report was being drawn up and that the limitation period had consequently not expired until 2 November 1993. The appellate judge also upheld the order for the attachment of the first applicant's property and referred the case to the civil courts for quantification of the damages to be paid to the complainant. Lastly, the judge forwarded the procedural documents to the Commissario della Legge, instructing him to ascertain whether the first applicant could be held liable for the fraudulent conversion on 24 June 1992 of a further car under attachment. 32. In the San Marinese judicial system there is no provision for an appeal on points of law. 33. On 30 January 1993 the second and third applicants were found in possession of drugs and arrested by the San Marinese police. Their arrest was confirmed later that day by the Commissario della Legge, Ms R.V. 34. On 1 February 1993 the second applicant was questioned by the Commissario della Legge. He stated, among other things, that he had come to San Marino to buy drugs for personal use and that he had asked the third applicant to join him, although she had not been aware of his intentions. 35. On 4 February 1993 the third applicant was questioned by the Commissario della Legge. She stated, in particular, that she had not known about the second applicant's activities. 36. On 4 February 1993 the Commissario della Legge refused an application for release (difesa a piede libero) which the third applicant had lodged earlier that day. On 15 February 1993 the appellate judge, Mr M.N., dismissed an appeal lodged by the third applicant on 8 February 1993. 37. On 25 February 1993 the third applicant again applied to the Commissario della Legge to be released. The Commissario della Legge, Ms R.V, instructed a “marshal” to question the third applicant, who reaffirmed her earlier statements but said that she did not wish to add anything. The Commissario della Legge allowed her application for release on 26 February 1993. 38. On 9 March 1993 the Commissario della Legge, Ms R.V., dismissed an application for release lodged by the second applicant on 5 March 1993. 39. On the same day the Commissario della Legge, Ms R.V., charged the second and third applicants with unlawful possession of and trafficking in drugs, and also charged the second applicant with unlawful possession of a firearm. She summoned them to stand trial on 26 April 1993. 40. At their trial the second and third applicants reaffirmed the statements they had made during the investigation. 41. In a judgment of 26 April 1993 another Commissario della Legge, Mr S.S., sentenced the second applicant to seven months' imprisonment for unlawful possession of drugs (without intent to supply) and acquitted him of the offence of unlawful possession of a firearm. He acquitted the third applicant with the benefit of the doubt. 42. On the same day the second applicant appealed against that judgment to the criminal appeals judge. 43. A second application for release lodged by the second applicant on 5 May 1993 was refused by the Commissario della Legge, Mr S.S., on 6 May 1993. On 10 May 1993 the second applicant appealed against that decision, but the appellate judge, Mr P.G., dismissed the appeal in a decision of 13 May 1993, on the grounds of the serious nature of the alleged offence and the second applicant's extensive criminal record. 44. On 17 May 1993 State Counsel appealed against the judgment of 26 April 1993, seeking the conviction of the second applicant – for possession of drugs with intent to supply, rather than merely for possession of drugs – and the third applicant. He argued, in particular, that the Commissario della Legge had failed to take into account a number of factors: as regards the second applicant, the strong evidence of his dealing in heroin, the serious nature of the offence, and his extensive criminal record, among other things, and, as regards the third applicant, her contribution to and physical participation in the offence, her knowledge of crime, and the fact that she had knowingly and willingly committed the offence with which she had been charged. 45. On 21 May 1993 the third applicant likewise appealed against the judgment of 26 April 1993, seeking acquittal on the ground that she had not committed the offence. 46. On 23 June 1993 the second and third applicants applied to the Council of the XII, challenging Mr M.N. and Mr P.G. as appellate judges, on the ground that they had dealt with the case at an earlier stage, having already dismissed their applications for release on appeal. 47. On 30 July 1993 the Council of the XII dismissed their application. 48. On 2 August 1993 the second applicant asked the appellate judge to request a ruling from the General Grand Council (Consiglio Grande e Generale) as to whether the absence of a public hearing on appeal during which the accused could give evidence in person to the appellate judge was in conformity with the San Marinese Constitution and with Article 6 § 1 of the Convention. On 13 August 1993 State Counsel submitted that the request should be declared manifestly ill-founded. 49. On 3 August 1993 Mr P.G. was appointed as the judge in the appeal proceedings. 50. On 20 August 1993 the third applicant requested a ruling as to whether, firstly, Article 54 of the Code of Criminal Procedure, pursuant to which all foreign nationals not resident within the territory of San Marino who were charged with a criminal offence had to be detained, and, secondly, the absence of an independent tribunal to decide on preventive measures in individual cases, were in conformity with the Constitution and with Article 5 and Article 6 § 2 of the Convention. On 23 August 1993 the third applicant likewise requested a ruling as to whether the absence of a public hearing on appeal during which the accused could be heard in person by the appellate judge was constitutional. 51. In a judgment delivered on 24 August 1993 and made public on 27 August 1993 the appellate judge sentenced the second applicant to one year and two months' imprisonment for possession of drugs with intent to supply, and the third applicant to ten months' imprisonment. The judge referred to the statements made by the second and third applicants during the proceedings at first instance. He held, in particular, that the second applicant was guilty of a serious offence and had also attempted to conceal the third applicant's guilt, and that the third applicant was guilty on account of the strong evidence against her; she had been aware of the second applicant's criminal intentions and had made a conscious decision to participate in the offence. 52. The judge further held that the second and third applicants' requests for rulings as to constitutionality were manifestly ill-founded. As regards, in particular, the absence of a public hearing on appeal, the judge concurred with the applicants' arguments, which were based on the principles of international law, but held that the objection had been raised with a view to revising the Code of Criminal Procedure, a process that could not be initiated by means of a declaration of unconstitutionality. 53. Criminal procedure is governed in San Marinese law by the 1878 Code of Criminal Procedure, as amended by Law no. 43 of 18 October 1963 and Law no. 86 of 11 December 1974. 54. The shortened form of procedure is governed by Articles 174 to 185 of the Code of Criminal Procedure. It is applicable to offences carrying either a prison sentence of up to three years or a fine. Proceedings are conducted before the Commissario della Legge, who must set the case down for trial within thirty days and may in the meantime carry out summary investigations (indagini sommarie) and take emergency measures. The Commissario della Legge summons the accused and any witnesses to appear before him at the hearing. The summons is also served on State Counsel (Article 175), who is required to take part in the proceedings as prosecutor (magistrato requirente). 55. At the hearing, the Commissario della Legge examines the witnesses and then the defendant. Next, State Counsel gives his address and counsel for the defence makes his submissions. Finally, the defendant may put forward any arguments he considers necessary for his defence (esporre cio' che crede in sua discolpa) (Articles 176-79). 56. The Commissario della Legge deliberates in private, draws up the operative provisions and, on returning to the courtroom, makes them public by reading them out. The text of the judgment must be deposited at the registry within thirty days of delivery (Article 181). The Commissario della Legge may also adjourn the case if he considers that further information is required (Article 182). 57. Under the ordinary procedure, preliminary investigations are conducted by the Commissario della Legge and hearings are held before the first-instance judge (magistrato). 58. In addition, section 24 of the Judicature Act (Law no. 83 of 28 October 1992) provides that, pending the entry into force of a new Code of Criminal Procedure, only the provisions governing the shortened form of procedure are to be applied to offences committed from the day after the publication of that Act in the Official Gazette (Bollettino Ufficiale). The functions of investigating and trial judge are, however, to be discharged by two different Commissari della Legge. 59. Under Articles 186 et seq. of the Code of Criminal Procedure, appeals against a judgment at first instance may be lodged by the accused, State Counsel or the complainant (but only in relation to the latter's civil interests). 60. Article 196 of the Code of Criminal Procedure provides that the appellate judge has jurisdiction to deal with all aspects of a case (piena cognizione del giudizio). If an appeal is lodged solely by the accused, the judge may neither impose a harsher penalty nor withdraw any advantages granted. 61. Appeal proceedings are conducted without any further investigative measures being taken; the parties make their submissions in the same order as at first instance. The accused is not entitled to be heard in person by the appellate judge. 62. An investigative hearing may nonetheless be held at the appeal stage if the judge considers it necessary to repeat investigative measures that have been declared void or to carry out new ones (Article 197). The hearing is held before the Commissario della Legge. 63. Article 198 of the Code of Criminal Procedure provides that judgments are to be delivered at a public hearing in the presence of the Captains-Regent (Capitani Reggenti), the accused, his counsel and the other parties; the registrar reads out the judgment. 64. Under Article 197 of the San Marinese Criminal Code, anyone who unlawfully appropriates another's property of which he is in possession in any capacity whatsoever is guilty of the offence of misappropriation (appropriazione indebita). 65. Under Article 204 of the Criminal Code, anyone who secures an unfair material advantage by misleading another through deception or misrepresentation is guilty of the offence of fraud (truffa).