Last Updated on May 3, 2019 by LawEuro
FIRST SECTION
DECISION
Application no.23327/16
Livio BACCIOCCHI
against San Marino
The European Court of Human Rights (First Section), sitting on 4 December 2018 as a Chamber composed of:
Linos-Alexandre Sicilianos, President,
AlešPejchal,
Krzysztof Wojtyczek,
Armen Harutyunyan,
PauliineKoskelo,
Tim Eicke,
Gilberto Felici, judges,
and Abel Campos, Section Registrar,
Having regard to the above application lodged on 21 April 2016,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr LivioBacciocchi, is a national of San Marino, who was born in 1958 and lives in San Marino. He was represented before the Court by Mr S. Sabattini and Mr A. Campagna, lawyers practising in Bologna and Dogana.
2. The Government of San Marino (“the Government”) were represented by their Agent, Mr L. Daniele.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background of the case
4. The applicant was a lawyer and a notary by profession.
5. M. was the administrator of company I. He resigned on 5 May 2010.
6. On 8 July 2009 a leasing contract was signed between company I. and a leasing and banking institute IBS for the financing of some real estate investments. On the same day, before the applicant as notary, the above‑mentioned M., together with F.M. and L.D.G. (business partners at the time of the facts) signed a personal guarantee agreement of 1,800,000 euros (EUR) in favour of IBS referring to the financial obligations deriving from the above‑mentioned leasing contracts.
2. The criminal proceedings No. 677-678/RNR/2012 (for bribery)
7. In 2012 criminal proceedings were instituted against the applicant and M., together with other five persons, for the offence of bribery (of some inspectors of the public administration).
8. The applicant became involved in such proceedings as co‑accused following statements made by M. before a commission of inquiry and the inquiring judge respectively. The applicant was described by M. as the de facto administrator of the construction companies involved in the bribery episodes as well as the actual brains of the crime, while M. (according to his own declarations before the inquiring judge) had just paid the money as he was ordered to do by the applicant.
9. The proceedings were assigned to the first-instance judge A.B. (in his capacity of judge on the merits).
10. On 19 September 2014 the first‑instance judge found both the applicant and M., together with the other accused persons, guilty of the offence of bribery.
11. According to the judgment, the responsibility of the applicant was based, inter alia, on the accusations brought against him by M., which the judge considered trustworthy.
12. On 13 February 2015 the applicant lodged an appeal before the Judge of Criminal Appeals (Giudiced’AppelloPenale)against the above‑mentioned judgment, claiming, inter alia, the lack of credibility of the accusations of M.
13. By a judgment filed in the registry on 12 January 2016 the Judge of Criminal Appeals upheld the first‑instance judgment (in the part relating to the applicant), diminishing, however, the punishment.
14. On the same day the applicant was arrested.
3. The criminal proceedings No. 58/RNR/2011 (for corporate crimes)
15. At around the same time, criminal proceedings No. 58/RNR/2011 were also pending against, inter alia, the applicant, for some corporate crimes.
16. In the context of such proceedings, on 28 May 2011, during police questioning, M. declared that the applicant had made him sign the above‑mentioned personal guarantee agreement without his knowledge. Admitting that it was his own signature, he, however, claimed not to have been aware of signing such a document.
17. These statements were confirmed at a hearing on 1 December 2014.
18. By a judgment of 30 September 2015 the first‑instance judge found the applicant guilty of obstructing financial supervisory activities and sentenced him to one year and three months’ imprisonment, two years’ and six months’ prohibition from holding public office and political rights, and a fine.
4. The criminal proceedings No.62/RNR/2015 (for slander)
(a) Inquiry stage
19. On 29 January 2015 the applicant filed a report against M. for the offence of slander. The applicant reported that M. had made false declarations to the police and judicial authorities in stating that he (M.) had been deceived and defrauded by the applicant. The applicant argued, inter alia, that M. had willingly signed the personal guarantee agreement, knowing exactly what he was signing and its consequences.
20. On the basis of the above‑mentioned report, criminal proceedings No. 62/RNR/2015 were instituted against M. for the offence of slander and the investigation was assigned to judge A.B., in his capacity as inquiring judge (CommissariodellaLeggeInquirente).
21. On 13 February 2015 the applicant requested to join the proceedings as a civil party, claiming reparation for the damage incurred by him as a result of the offence.
22. By a decision issued on the same day the inquiring judgeordered the temporary secrecy / classification of the proceedings.
23. By a decision of 17 August 2015, while the proceedings were suspended for judicial holidays (see Relevant domestic law, paragraph 36 below) and the case‑file was still classified, the inquiring judge archived the proceedings. He considered, inter alia, that the evidence collected in the investigation did not demonstrate that M. was aware of having signed a personal guarantee contract.
(b) Interlocutory request
24. In the meantime, on 30 July 2015,the applicant had filed a request for the abstention of the inquiring judge. The applicant addressed such a request to the same inquiring judge (A.B.) and unusually also brought it to the attention of the Chief Justice, who had no powers to intervene in such case. He argued that serious and evident reasons existed so as to consider that the inquiring judge’s free judgment (serenità di giudizio) was compromised on the basis that the same judgehad been the first‑instance judge (in his capacity of judge on the merits) in the proceedings for bribery (see paragraph 9 above). In that case the finding of guilt had derived, inter alia, from the accusations brought against him by M. (see paragraph 11 above). Thus, A.B., in his capacity of judge on the merits, had already expressed his opinion about the truthfulness of the statements made by M. against the applicant and such statements had been considered the primary evidence against the applicant in his conviction for bribery (see paragraph 11 above). The applicant argued that a possible indictment of M. in the criminal proceedings for slander would have represented a direct endorsement of the defence he had put forward (concerning the lack of credibility of M.) and which had already been rejected by the same judge in the judgment of the criminal proceedings for bribery.
25. By a handwritten decision of 3 August 2015 the inquiring judge stated that there was no need to decide the matter (non luogo a provvedere) since a request to “encourage” a judge’s abstention was procedurally incorrect. Although he had no competence to decide on the merits of the request, he further noted that none of the reasons set out in the law for the withdrawal of a judge were fulfilled (see Relevant domestic law, paragraph 33 below).
26. The judge ordered the communication of the decision (“si comunichi”). The outcome, the date and the means of such “communication” are unknown.
27. According to the applicant, he had only obtained knowledge of the judge’s decision on his request for abstention on 7 September 2015, namely when he had had access to the case‑file and after the decision of 17 August 2015 to archive the case.
(c) The appeal against the decision to archive
28. On 5 October 2015 the applicant lodged a complaint before the Judge of Criminal Appeals against the decision to archive, requesting, inter alia, that a new investigation be opened and assigned to a different investigating judge, since judge A.B. was not impartial.
29. By a decision of 20 November 2015 the judge of civil appeals in his capacity of judge of criminal appeals (GiudicedelleAppellazioniCivili in veste di GiudicedelleAppellazionipenali), dismissed the applicant’s request to re‑open the investigation.
30. The judge of appeal also decided not to express his opinion about the claimed incompatibility of the investigating judge since the same investigating judge had considered that no reasons for his “spontaneous” abstention subsisted (see paragraph 25 above). At the same time he noted that if the applicant meant to challenge the inquiring judge he should have submitted a request under Section 10 (3) of the qualified Law No.145 of 2003 (see Relevant domestic law, paragraph 35 below) on time and to the inquiring judge (namely, judge A.B.). Since he had not done so and the proceedings had come to an end, it was not for the appeal judge to look into the matter.
B. Relevant domestic law and practice
1. The injured/civil party
31. Sections 3 and 4 of Law No. 93 of 17 June 2008 read, in so far as relevant, as follows:
“(3) Save for judicial acts covered by banking secrecy according to law …, the injured party who has become a party to the proceedings has the right to receive on his request a copy of the acts of the proceedings and to submit in any phase of the proceedings memorials, submissions or documentation; he can request to take part, possibly only through his defence counsel or expert (perito), during the investigations, to any on site examination (accessi), searches and or other expert examination (perizie). The inquiring judge, to whom the request is made must give reasons for his decision. The inquiring judge shall deny the authorisation in case the request of the joined civil party represents a serious breach of the right of defence of the accused as well as if it is in contrast with fundamental requirements of confidentiality of the investigations or with bank secrecy…
(4) the injured party (parte lesa) is obliged to participate in confrontations with the accused set by the inquiring judge.”
32. Article 8 of the Criminal Code reads, in so far as relevant, as follows:
“Once the CommissariodellaLegge receives a request by a party to join proceedings as a civil party, he shall by decision admit the civil party to join the proceedings.
Such decision gives the civil party the right to be served with the communication of the acts of the proceedings after its publication [indictment], as well as the right to appoint a lawyer who can make written submissions on his behalf…”
2. Abstention and withdrawal of judges
33. Section 10 of the Qualified Law No. 145 of 30 October 2003, as modified by Section 9 of the Qualified Law No. 2 of 16 September 2011, concerning abstention and withdrawal, reads, in so far as relevant as follows:
“(1) A Judge must abstain when serious reasons exist, due to personal interests in the proceedings, existing relationships of family, marriage, cohabitation more uxorio, friendship, hostility, existing business or working relationship, between the judge himself or one of his close relatives and one of the parties or their attorneys in civil or administrative proceedings, or the accused person, the victim of the crime or their lawyers, in criminal proceedings.
(2) A Judge must likewise abstain in case he or she had given advice and opinions, or, prior to the proceedings and in the exercise of his functions he or she had illegitimately manifested his opinion on the facts object of the proceedings.
(3) In all such cases, if the Judge does not abstain of his own motion, the parties may request his withdrawal.
(4) The Judge could also abstain where it would be appropriate if circumstances exist which would compromise his impartiality and free judgment….”
34. In the judgment No. 6 of 16 November 2015 by the Third‑Instance Judge, in the criminal proceedings No. 154/RNR/2015, that court considered that the statements made by judges in judgments or decisions cannot be considered as an illegitimate manifestation of opinion (mentioned in Section 10 subparagraph 2 of the Qualified Law No. 145 of 30 October 2003, see paragraph 33 above), the latter constituting ones opinions manifested in the exercise of their duties. In that same judgment, the judge also noted that the defence had not raised any timely complaint, namely a formal request for withdrawal or a call for abstention, in the act of appeal or before the decision of the impugned judge.
35. Section 2 of Law No. 139 of 16 September 2011 reads, in so far as relevant, as follows:
“(1) The judge who is affected by one of the grounds of mandatory abstention provided by Section 10 of the Qualified Law No.145 of 30 October 2003, as modified by Section 9 of the Qualified Law No. 2 of 16 September 2011 shall declare so and request the competent judge to exempt him from the proceedings in which the incompatibility had occurred.
(2) The request, once it has been notified to the parties shall be transmitted to the competent judge, together with the documents of the proceedings. The evidence shall be mentioned and attached to the request.
(3) The decision shall be filed in the registry together with the case‑file of the proceedings and shall be notified to the parties and to the judge on the merits of the main proceedings.
(4) The same disposition shall apply also in cases of non-mandatory abstention.
(5) The request for withdrawal (istanza di ricusazione) can be submitted in every phase of the proceedings.
(6) The request for withdrawal shall be added to the case‑file and shall indicate in detail the reasons for withdrawal as provided by the law, and the related evidence substantiating the challenge.
(7) Once the judge hearing the main proceedings receives the request, he shall inform the Chief Justice and shall request the registry to transmit it to the competent judge, together with a copy of the case-file. If the request is submitted in the pleading stage of the criminal proceedings, the judge shall carry out the tasks set out for such hearing but desist from delivering the judgment.
…
(15) In the judgment rejecting a request the party who made such request can be ordered to pay a sum of money from EUR 1,000 to EUR 10,000, as legal costs, without any prejudice to any available civil or criminal actions…”
36. Section 29 of Law No. 55 of 17 June 1994, in so far as relevant, reads as follows:
“Criminal proceedings shall be subject to a period of judicial holidays in the months of July and August of each year, during which the terms of the proceedings are suspended. All the terms provided for the acts of judges, parties and their counsels, even in the case that they are acts to be carried out or submitted in the registry, whenever they expire during judicial holidays, are therefore delayed to the first day subsequent to the end of the holidays. Nevertheless, in the case of urgent matters and in any case concerning parole, the judge orders the continuation of the proceedings also during the period of judicial holidays…”
COMPLAINT
37. The applicant complained under Article 6 § 1 of the Convention that the fact that the same person had had the role of first‑instant judge in the criminal proceedings No. 58/RNR/2011 on the one hand and the role of inquiring judge in the criminal proceedings No.62/RNR/2015 on the other hand, had violated the principle of impartiality of the judge since the two proceedings were substantially connected and related to the same persons.
THE LAW
A. Article 6 § 1 of the Convention
38. The applicant complained, under Article 6 § 1 of the Convention, about the impartiality of the inquiring judge. The relevant provision reads, in so far as relevant, as follows:
“In the determination of … any criminal charge against him, everyone is entitled to a … hearing … by an … impartial tribunal…”
1. Compatibility rationemateriae
39. The Government accepted that Article 6 § 1 was applicable to the slander proceedings and to the applicant as a civil party in the criminal proceedings.
40. The applicant submitted that Article 6 § 1 of the Convention was applicable since he enjoyed civil party status in the proceedings for slander. The applicant noted that he had submitted a request to join the criminal proceedings as a civil party on 13 February 2015, seeking compensation for damages (see paragraph 21 above). Thus, the proceedings had not solely been aimed at securing a “private revenge”.
41. The Court notes that the parties do not contest the applicability of the provision and the Court does not consider it necessary to examine the issue since, even assuming that it was applicable the complaint is in any event inadmissible for the reasons explained below.
2. The Government’s objection of non-exhaustion of domestic remedies
(a) The parties’ submissions
(i) The Government
42. The Government submitted that the applicant had failed to exhaust the appropriate domestic remedy, namely a ‘request for withdrawal’ of the judge as he had, instead, made a ‘request for abstention’, which in the Government’s view was unusual, irregular and an ineffective remedy in relation to the objective pursued by the applicant.
43. They explained that, on the one hand, ‘abstention’ (astensione) was a legal instrument through which a judge, of his own motion, requested the Judge for Extraordinary Remedies (Giudice per iRimediStraordinari) to exempt him from dealing with a case on the basis of the compulsory grounds provided by law (see paragraph 33 above) or for “reasons of appropriateness” (motivi di opportunità). On the other hand, a request for withdrawal (ricusazione) allowed a party questioning the impartiality of a judge, to raise the issue and gave him or her, the possibility to submit such a complaint to the competent Judge for Extraordinary Remedies.
44. According to the Government, a request for withdrawal addressed to the competent Judge for Extraordinary Remedies was the ordinary remedy specifically available in cases of alleged partiality of a judge. They considered that the applicant, an experienced lawyer by profession, was perfectly aware of the correct procedure to follow.
45. The Government did not agree with the applicant’s submission that his request was not encompassed in any of the cases for compulsory withdrawal and abstention provided by the law and thus that his only option was to rely on the criterion of serious “reasons of appropriateness” only envisaged in the case of abstention. In the Government’s view the applicant could have lodged a request for withdrawal, addressed to the Judge for Extraordinary Remedies, relying on Section 10 § 1 (see paragraphs 33 and 35 above) which provided for compulsory abstention or withdrawal in the case of ‘the judge’s interest in the proceedings’. This was so because, in their view, the situation complained of concerned precisely one of interest of the inquiring judge in the proceedings, in so far as the latter could not change the outcome of the criminal proceedings for bribery, which he had previously decided in his capacity as first-instance judge.
46. However, even if the applicant’s argument had been correct, and that abstention was his only means of complaining, the Government noted that abstention was not obligatory and depended on the discretion of the sitting judge, thus the parties were not entitled to object if the latter decided not to abstain of his own motion. Moreover, the Government noted that, contrary to the applicant’s allegation and irrespective of the fact that the case‑file was classified, the judge had ordered that his decision to reject the request for abstention be communicated to the applicant. Thus, the latter could have adopted any appropriate countermeasures and could have exercised his right of defence, following such communication.
47. In the opinion of the Government, irrespective of the fact that the relevant jurisdiction was attributed to a judge defined ‘for extraordinary remedies’, a request for withdrawal could not be considered an extraordinary remedy, being the only ordinary remedy specifically available in San Marino in case of alleged partiality of a judge.
(ii) The applicant
48. Relying on domestic case‑law (see paragraph 34 above), the applicant noted that such case‑law had considered a request for abstention, together with the request for withdrawal, as one of the possible remedies in order to raise the issue of the partiality of a judge. In the present case he had not based his request for abstention on one of the grounds for compulsory abstention provided by the relevant law (in respect of which, if a judge does not abstain, the parties can request his withdrawal) but on the basis of “reasons of appropriateness” (which was subject to a judge’s discretion, and if a judge did not abstain of his own motion, parties were not allowed to request his withdrawal) (see paragraph 33 above). Therefore, the applicant’s request for abstention had been perfectly regular in the light of the reasons for which it had been submitted, and no further action could be undertaken.
49. However, even if that were not so, the applicant noted that the decision to dismiss the request for abstention had been taken by the inquiring judge while the case file was classified, and during judicial holidays when the criminal proceedings were suspended (without any decision to continue the proceedings during holidays as provided by the domestic law in the case of urgency). This had prevented the applicant from promptly knowing the judge’s decision on the abstention request before the archiving of the case‑file. Thus, in his view, at that point a formal request for the judge’s withdrawal would have been useless.
50. The applicant also submitted that a request for abstention or withdrawal could not be considered an effective and accessible remedy within the meaning of Article 35 § 1 of the Convention since it was of an extraordinary nature, on the grounds that it had to be decided by the Judge for Extraordinary Remedies.
(b) The Court’s assessment
(i) General principles
51. The Court reiterates that it is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It should not take on the role of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available in respect of the alleged violation. The rule is therefore an indispensable part of the functioning of this system of protection (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 69, 25 March 2014).
52. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (ibid., § 71).
53. Article 35 § 1 also requires that the complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time‑limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. Where an applicant has failed to comply with these requirements, his or her application should in principle be declared inadmissible for failure to exhaust domestic remedies (ibid.,§ 72).
54. However, there is, as indicated above, no obligation to have recourse to remedies which are inadequate or ineffective. In addition, according to the “generally recognised rules of international law” there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his or her disposal. (ibid.,§ 73).
55. To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success. However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (ibid., § 74).
56. As regards the burden of proof, it is incumbent on the Government claiming non‑exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (ibid., § 77).
(ii) Application to the present case
57. The Court considers that there is no reason to doubt that a request for withdrawal of a judge is the general remedy applicable in the San Marino domestic system to challenge a judge’s partiality (see, for example, Diamante and Pelliccioni v. San Marino, no. 32250/08, § 191, 27 September 2011). As to the issue raised by the applicant, in connection with the specific circumstances of this case, namely that none of the grounds for compulsory withdrawal (and compulsory abstention) envisaged in Section 10 of the Qualified Law No. 145 of 30 October 2003 (as modified by Section 9 of the Qualified Law No. 2 of 16 September 2011) applied to him, the Court observes that there appears to be no doubt, as claimed by the applicant, that he could not rely on Section 10 § 2 given the interpretation attributed to it by the domestic case-law (see paragraph 34 above). However, the Court notes that the applicant could have relied on Section 10 § 1 of the relevant law (see paragraph 33 above), arguing that the circumstance that judge A.B. had been the judge on the merits who had delivered the first‑instance judgment in the bribery case amounted to an ‘interest in the proceedings’ for slander on the part of judge A.B. (see, mutatis mutandis, Di Giovanni v. Italy, no. 51160/06, § 46, 9 July 2013, concerning a similar provision in Italian law). The applicant has not substantiated why relying on this ground would have had no prospects of success. Nor has he submitted any other reason as to why he should not have pursued such an avenue. Thus, the Court considers that, in the particular circumstances of the present case, the applicant should have at least tried this avenue giving the domestic authorities an opportunity to put matters right through their own legal system.
58. The Court observes that, in reply to the Government’s argument, the applicant claimed that he was no longer in time to submit a request for withdrawal, once his abstention request was rejected (moreover during judicial holidays and when the case‑file was classified). The Court notes however that there was no reason why the applicant should not have lodged the former remedy in the first place, given that at least on 30 July 2015 (when he submitted his request for abstention), he had been perfectly aware of the fact that judge A.B. was the inquiring judge in the slander case. Thus, on that date, the applicant had the same information which led him to lodge the request for abstention (see paragraph 24 above) and could have made a timely use of the appropriate and effective remedy provided by law, namely a request for withdrawal.
59. In any event, the Court will examine whether the remedy undertaken by the applicant, could amount to an effective remedy, given that, under its established case‑law, when a remedyhasbeenpursued, use of anotherremedy which hasessentially the sameobjectiveisnotrequired (see, inter alia, Micallef v. Malta [GC], no. 17056/06, § 58, ECHR 2009).
60. To this end, the Court observes that Section 10 § 1 of the Qualified Law No. 145 of 30 October 2003, as modified by Section 9 of the Qualified Law No. 2 of 16 September 2011, is clear in characterising abstention as an action which a judge would carry out ofhis own motion, as opposed to a “request for withdrawal”, which according to Section 10 § 3 of the same law, shall be submitted by the parties (see paragraph 33 above). Similarly, pursuant to Section 2 § 1 of Law No. 139 of 16 September 2011, in the presence of one of the grounds for abstention provided by law, where the judge considers that he should abstain, he shall submit such matter to the Judge for Extraordinary Remedies. Indeed, the latter provision does not make any reference to a request for abstention lodged by a private party (see paragraph 35 above). The same was confirmed by the Government (see paragraph 42 above). Thus, it does not seem that the request for abstention submitted by the applicant had a legal basis in the relevant law.
61. As to the domestic case‑law which, in the opinion of the applicant, had considered a request for abstention, together with a request for withdrawal, as possible remedies provided by law (see paragraph 34 above), the Court considers that the latter statement had been a mere obiterdictum in that decision. In any event, the Court notes that the applicant has not relied on any other situation where such a request was made by a party and had been successful. Thus, in these circumstances, the Court has no element to consider a request for abstention as an appropriate and effective remedy under the domestic law.
62. In these circumstances, the Court considers that the applicant did not exhaust the available domestic remedy provided by law. It follows that this complaint must be rejected for non‑exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 10 January 2019.
Abel Campos Linos-Alexandre Sicilianos
Registrar President
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