Communicated on 10 March 2017
FIRST SECTION
Application no. 23327/16
Livio BACCIOCCHI
against San Marino
lodged on 21 April 2016
STATEMENT OF FACTS
The applicant, Mr Livio Bacciocchi, is a San Marinese national, who was born in 1958 and lives in San Marino. He is represented before the Court by Mr S. Sabattini, a lawyer practising in Bologna, Italy.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case
The applicant was a notary by profession.
M. was the administrator of company I. He resigned on 5 May 2010.
On 8 July 2009 the leasing contract No.50-00244 was signed between company I. and a leasing company IBS for the financing of some real estate investments. On the same day, before the applicant as notary, the above‑mentioned M., together with third parties F.M. and L.D.G. (business partners at the time of the facts) signed a personal guarantee agreement (fideiussione personale) of 1,800,000 euros (EUR) in favour of IBS, referring to the financial obligations deriving from the above mentioned leasing contracts.
On 18 March 2011, M., F.M. and L.D.G., submitted a sworn statement before notary O., in which they acknowledged the amount of the debt (ricognizione di debito) and confirmed their willingness to give the above mentioned personal guarantee (la fideiussione doveva ritenersi ferma e valida). On the same day this sworn statement signed by the three of them was sent to IBS by post.
2. The criminal proceedings No.677-678/RNR/2012 (for corruption)
In 2012 criminal proceedings were instituted against the applicant and M., together with other five persons, for the offence of corruption (of some inspectors of the public administration). According to the prosecution, representatives or employees of certain named construction companies had paid public inspectors in order to avoid the security checks on construction sites they were in charge of.
The applicant became involved in such proceedings as co-accused (chiamata in correita’), 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 corruption 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.
The proceedings were assigned to the first-instance judge A.B. (in his capacity of judge on the merits).
In those proceedings the applicant claimed that the accusations by M. had been made after the latter had threatened him (the applicant) to force him to take over the obligations deriving from the above mentioned personal guarantee.
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 corruption and sentenced them as follows: the applicant to five years imprisonment, three years’ and eight months’ prohibition from holding public office and exercising political rights, and to a fine of EUR 22,500, and M., in consideration of his spontaneous confession, to two years’ and ten days’ imprisonment, one year prohibition from holding public offices and exercising political rights, and to a fine of EUR 4,000.
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 (as well as a statement of another witness Z. during the investigation stage – despite it being retracted during the proceedings, and the witness testimony of another person, U.).
On 13 February 2015 the applicant lodged an appeal before the Judge of Criminal Appeals (Giudice d’Appello Penale) against the above-mentioned judgment, claiming, inter alia, the lack of credibility of the accusations of M. According to the applicant such charges had been incomplete, imprecise, not spontaneous and not coherent. They had been aimed at obtaining illicit personal benefits. Moreover, it had been the serious hostility and enmity between them, due to the business relations the two had had in the past and to the applicant’s refusal to bear the financial burden of the personal guarantee which M. had signed, which had led M. to make such accusations.
In particular the applicant drew the attention of the judge to some documents he had submitted during the first-instance proceedings, as well as to the recordings of some personal conversations the applicant had had with M. (which had been secretly recorded by M. himself and then submitted by his defence in the first-instance proceedings) and to the same declarations made by M. before the inquiring judge. In particular the applicant’s defence pointed out that, in the course of the recorded conversations, M. had persistently requested the applicant to take responsibility for his personal debts. Moreover, after the refusal of the applicant to so do, M. had textually threatened “to see him in court”.
By a judgment filed in the registry on 12 January 2016 the Judge of Criminal Appeals upheld the first-instance judgement (in the part relating to the applicant), diminishing however the punishment to four years’ and six months’ imprisonment, three years and six months prohibition from holding public office and political rights, and a fine of EUR 15,000.
3. The criminal proceedings No. 58/RNR/2011 (for corporate crimes)
At around the same time, criminal proceedings No.58/RNR/2011 were also pending against, inter alia, the applicant and M., for some named corporate crimes, connected to the administration of the above-mentioned construction companies (M. for his formal role of administrator of company I., and the applicant for his de facto controlling role of company I. and other companies).
In the context of such proceedings, on 28 May 2011 (ten days after the date of the letter through which M. had confirmed to IBS the validity of the personal guarantee), 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. He accused the applicant of having inserted it in a pile of other documents which were prepared for him (M.) to sign, in order to confuse him and get his inadvertent signature.
These statements were confirmed in a hearing on 1 December 2014.
The outcome of these proceedings is unknown.
4. The civil proceedings No. 375/2012 (for payments due)
On 14 June 2012, through a summary procedure (procedura sommaria documentale), IBS brought a civil suit against M., L.D.G. and F.M. in order to obtain from them, in solidum, the outstanding payment in compliance with the obligations deriving from the personal guarantee.
On 27 September 2012 M., L.D.G. and F.M. lodged an opposition against IBS’s application, also bringing a counter-claim against the applicant and they requested the judge:
i) To ascertain the existence of an underlying mandate (rapporto di mandato) between the applicant (as principal) and M., L.D.G. and F.M. (as agents); ii) To declare the annulment of the leasing contract No.50-2044 and the linked repayment plan since the obligations related to them had been undertaken on the basis of the above mentioned mandate, or otherwise to declare the personal guarantee and the civil proceedings extinguished; iii) Alternatively, to condemn the applicant to pay an amount of money as compensation for the damages he had caused to M., L.D.G. and F.M., by not releasing them from the financial obligations they had undertaken in his own interest; and iv) Or to reduce the amount of money to be paid by M., L.D.G. and F.M., on an equitable basis.
On 27 March 2014, E.B., who was at the time of the facts the director of IBS, testified that he was present when the personal guarantee agreement was signed. He noted that he had asked M., L.D.G. and F.M. to be there for the signing of the contract and that he had personally explained to them the content of the document and the sum it referred to. He remembered that he had not read the whole contract to the parties, but he could not remember if the contract had been anticipated to them before the day of the signing.
The applicant’s secretary C.G. testified that she had sometimes summoned M., F.M. and L.D.G. to the applicant’s office in order to make them sign documents she had not previously sent to them.
G.M., who at the time of the facts was a member of the management board of IBS, testified that he didn’t remember the way in which M., F.M. and L.D.G. had been informed that they were about to sign a personal guarantee agreement.
By a decision of 27 November 2015, filed in the registry on the same day, the first-instance judge partially acceded to the claim of IBS (excluding interest) and condemned M., L.D.G. and F.M. to pay to IBS, in solidum, the outstanding dues (EUR 1,306,598.29). He rejected the counterclaim since it had not been adequately demonstrated.
5. The criminal proceedings No.62/RNR/2015 (for slander)
(a) Inquiry stage
On 29 January 2015 the applicant filed a report against M. for the offence of slander (calunnia) ex Article 357 of the Criminal Code. 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 that M. had willingly signed the personal guarantee agreement, knowing exactly what he was signing and its consequences. Moreover, E.B. had testified that he had personally explained to M., L.D.G. and F.M. that they were about to sign a personal guarantee agreement and the amount of such guarantee.
On the basis of the above-mentioned report, criminal proceedings No.62/RNR/2015 were instituted against M. for the offence of slander.
On an unspecified date, the investigations were assigned to judge A.B., in his capacity as inquiring judge (Commissario della Legge Inquirente).
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.
On 22 June 2015 M. was questioned by the inquiring judge.
By a decision issued on the same day the inquiring judge, bearing in mind Article 5 of Law No. 93 of 17 June 2008, ordered the temporary classification of the proceedings, deeming that further necessary investigative steps (inter alia any further questioning and witness statements) could have been influenced by the knowledge of the acts of the proceedings.
In questioning F.M. and L.D.G. stated that they had not been aware of the fact that they had signed a personal guarantee.
By a decision of 17 August 2015 the inquiring judge archived the proceedings for slander. He considered that the evidence collected in the investigation did not demonstrate that M. was aware of having signed a personal guarantee contract. According to the judge, M.’s statements in the criminal proceedings No. 58/RNR/2011 had not been determined by a slanderous intention (intento calunnioso) since M., was fully convinced of the truthfulness of his accusations. The judge relied on, inter alia, the declarations made by F.M. and L.D.G. finding that the testimony of E.B. in the civil proceedings No. 375/2012 was not reliable. According to the judge, the testimonies had demonstrated an established routine (prassi invalsa) where the applicant (as the de facto administrator of the companies involved) used to autonomously set up contracts and other documents (including with E.B.) which afterwards he used to give to the various formal administrators of his companies so that they could sign them, without previously communicating to them the content of what they were about to sign.
(b) Interlocutory request
In the meantime, on 30 July 2015, the applicant filed a request for the abstention of the inquiring judge on the basis that the same judge had been the first-instance judge (in his capacity of judge on the merits) in the proceedings No. 677-678/RNR/2012. In that case the finding of guilt had derived, inter alia, from the accusations brought against him by M. Thus, A.B., in his capacity of judge on the merits, had already expressed his opinion about the personal guarantee of M. and, more in general, about the truthfulness of the declarations made by M. with respect to such documentation.
By a handwritten decision of 3 August 2015 the inquiring judge rejected the abstention request. [Abstention being an action which a judge would carry out ex-officio, as opposed to a request for withdrawal (ricusazione) see also “Relevant domestic law” below] The inquiring judge held that a request formulated in order to “encourage” the judge’s abstention was procedurally incorrect. In any event none of the reasons set out in the law for the withdrawal of a judge were fulfilled.
(c) The appeal against the decision to archive
On 5 October 2015 the applicant lodged a complaint before the Judge of Criminal Appeals under ex Article 135 of the Code of Criminal Procedure against the decision to archive.
The applicant’s defence requested the judge to indict M. or, alternatively, to reopen the proceedings in order to make further investigations and in particular to hear E.B. (the only eyewitness of the signing of the personal guarantee agreement) and the notary O. (which had authenticated the declaration on 18 March 2011). Inter alia, the applicant claimed that the judge’s reasoning had been illogical. Moreover, the investigations had been incomplete, since E.B. and A.O. had not been heard. He noted that the investigation had been classified, and despite him being a civil party, he had as a result been denied access to the file in order to be able to exercise his rights as provided for by law. Further, the applicant referred to the recorded conversations between him and M. which had been submitted by the defence of M. in the proceedings for corruption. In the applicant’s view, in such conversations M. had manifested his worries for the economic burden arising from the personal guarantee, persistently requiring the applicant to release him from such obligations. Furthermore he had threatened “to see him in court”, but he had never mentioned the episode of the alleged fraud in obtaining his signature. He claimed that the inquiring judge had also misunderstood the sense of the testimonies of C.G., and G.M, who had been heard in the civil proceedings No. 375/2012.
Moreover, the applicant expressly requested to assign the new investigations to a different investigating judge, since he reiterated the argument that judge A.B. was not impartial. In this connection he argued that that the rejection of the abstention request on procedural grounds had not been pertinent since it was a right of the parties to make submissions aimed at soliciting a judge to apply a relevant law (in this case the internal law on abstention). Furthermore, the judge had failed to explain or give reasons as to why there were no grounds for withdrawal.
By a decision of 20 November 2015 the judge of civil appeals in his capacity of judge of criminal appeals (Giudice delle Appellazioni Civili in veste di Giudice delle Appellazioni penali), to which the complaint had been assigned, dismissed all the applicant’s requests.
The court considered that in order to exclude M.’s fraudulent intent (dolo) for the offence of slander to subsist, it was sufficient to refer to what had been said in the recorded conversations between M., the applicant and other persons, which had taken place before the declarations made by M. to the police and from which it had emerged that: i) The applicant as the de facto administrator of company I. was the one who used to make all the relevant decisions; ii) M. was not aware of having signed a personal guarantee agreement; iii) M. had lamented the fraud to the applicant before he had reported it to the police; Therefore according to the court the interpretation of such recorded conversations was the exact opposite of the one provided by the defence of the applicant.
In the opinion of the court the fact that on 18 March 2011 M., F.M. and L.D.G. had recognized before a notary their financial obligations deriving from the personal guarantee was not relevant in order to verify what had happened in the “internal relations” between the applicant and M.. Such document could have been signed by M. solely because he had considered that it would have been very difficult (if not impossible) to demonstrate that he had signed the personal guarantee agreement without knowing it. In the court’s view M. had indeed signed the personal guarantee agreement without his knowledge and he really believed that he had been deceived by the applicant. Thus, M. had not had the aim to purposely accuse the applicant of crimes he knew had never happened.
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. At the same time he noted that if the applicant meant to challenge the inquiring judge he should have submitted a request ex Article 10 (3) of the qualified Law No.145 of 2003 on time and to the competent judge. 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
Articles 3 and 4 of Law no. 93 of 17 June 2008, in so far as relevant, read 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.”
Article 8 of the Criminal Code, in so far as relevant, reads as follows:
“Once the Commissario della Legge 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 ...”
Article 135 of the Code of Criminal Procedure, as modified by Article 7 of Law No. 93/2008, in so far as relevant, reads as follows:
“The decision that orders the archiving of the proceedings (archiviazione) shall be promptly notified to the Attorney General (Procuratore del Fisco), to the person charged, to the victim, to the person who had pressed the charges, and shall be communicated to the Chief Justice (Magistrato Dirigente).
This decision can be appealed within thirty days from its notification, by the person charged or the victim of the alleged crime, before a Judge of Criminal Appeals different from the one competent to decide on the merits, on the basis of the ordinary criteria of assignment of the judiciary’s workload.
The Judge of Criminal Appeals shall deliver a reasoned decision within thirty days.
The decision of the Judge of Criminal Appeals which accedes to the claim shall also order the reopening of the investigation. The Chief Justice shall assign the case file to a different inquiring judge.”
2. Incompatibility, abstention and withdrawal of judges
Article 1 of the Law No.145 of 30 October 2003, following amendment in 2011, in so far as relevant, reads as follows:
“The court shall be divided into the following sections, civil, criminal, administrative and one for the protection of minors and the family. The first-instance judges are assigned to each section by the Chief Justice.
The judges of each specialized section have full competence and therefore may be substituted in the exercise of [their] functions and competence.
Appeal judges may replace each other in the event of impediment or incompatibility.
Substitutions are decided in accordance with predetermined criteria, established by the Judicial Council, in respect of the principle of the tribunal established by law ...”
Point 2 of Part VI of the regulations on the distribution of work amongst the judges of single-judge tribunals and their substitutions, entitled “General Regulations for Magistrates of Single Judge Tribunals”, approved by the Judicial Council, and dated November 2003 provides as follows:
“Incompatibility arises when a judge has already dealt with a case concerning the same facts, during which he or she has in some way expressed his or her opinion ‑ and therefore the reason for abstention will already have existed when the case was assigned. Thus, it is a duty (onere) of the magistrate in case of incompatibility, and a legal obligation under section 10 of Law no. 45/2003 in the case of abstention, for the Magistrate to speedily withdraw from the case. The deadlines for abstention are the same as applicable for withdrawals [...] but there are no deadlines for the purposes of incompatibility, which depends on the powers of the Chief Justice to assign the case to another judge in the relevant field. For the correct functioning of the system, a judge who considers that he or she has reason to declare his incompatibility should, not later than five days after the case has been assigned to him, write a letter giving reasons to the Chief Justice. On the expiry of such time-limit, the judge must proceed by means of abstention as provided for by law. In the event that abstention is upheld or incompatibility recognised, a new judge competent in the relevant field must be assigned, in accordance with the criteria set out in the list of competencies.”
Article 10 of the Qualified Law No. 145 of 30 October 2003, as modified by Article 9 of the Qualified Law No. 2 of 16 September 2011, concerning abstention and withdrawal, in so far as relevant, reads as follows:
“A judge or magistrate 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.
The judge must likewise abstain himself in case he or she had prior to the proceedings given advice and opinions, or, illegitimately manifested his opinion on the facts object of the proceedings.
In all such cases, if the judge does not abstain of his own motion, the parties may request his withdrawal.
The judge could also abstain himself where it would be appropriate if circumstances exist which would compromise his impartiality and free judgement.
A request for withdrawal of the judge competent to decide a request for withdrawal shall not be admitted.
In criminal proceedings a request for the withdrawal of the Attorney General (Procuratore del Fisco) shall not be admitted.
The procedures regarding the abstention and withdrawal of judges shall be provided by an ordinary law on the matter.
The judge who had not complied with his duty of abstention, despite the existence of clear and objective reasons provided by the present Article of law, shall be punished with the measures provided by the law.”
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 Article 10 subparagraph 2 of the Qualified Law No. 145 of 30 October 2003, see paragraph above), the latter constituting ones opinions manifested in the exercise of his duties.
Article 2 of Law No.139 of 16 September 2011, in so far as relevant, reads as follows:
“The judge who is affected by one of the grounds of mandatory abstention provided by Article 10 of the Qualified Law No.145 of 30 October 2003, as modified by Article 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.
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.
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 .
The same disposition shall apply also in cases of non-mandatory abstention.
The request for withdrawal (istanza di ricusazione) can be submitted in every phase of the proceedings.
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.
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.
The withdrawal request shall be submitted by a lawyer practicing in San Marino. ...
If following a request for withdrawal, the judge choses to abstain, the provisions related to abstention shall apply and the withdrawal proceedings are extinguished.
Once the withdrawal request is received by the competent judge, he shall within the next three days, assign to the parties and to the judge who had been challenged the term of ten days for submitting evidence and submissions which shall be at the disposal of the parties and of the judge, who can make copies thereof. If there is a request to hear witnesses, the competent judge shall set a hearing. On the expiry of the [ten day] term and once the evidence has been collected, a new tem of ten days if provided for the concluding submissions.
Once the latter term expires, the case-file shall be held for the decision, which shall be filed in the registry within thirty days.
The judgment shall be filed in the registry together with the case-file and shall be notified ex officio to the parties and the judge.
The judgment which accedes to the withdrawal request shall also order which specific acts of the proceedings must be renewed in the light of the decision.
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 ...”
COMPLAINTS
The applicant complains, 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.
QUESTIONS TO THE PARTIES
1. Was Article 6 § 1 of the Convention under its civil head applicable to the slander proceedings lodged by the applicant in the present case? In particular, did the applicant have civil party status? If not, did the applicant who had victim/injured-party status in the criminal proceedings, pursue civil claims in that case so as to bring the civil limb of Article 6 § 1 into play? If not, what rights are granted to him under domestic law as a victim/injured party?
2. If the provision applies, has the applicant exhausted available domestic remedies in respect of the impartiality complaint in the slander proceedings? In particular, in the circumstances of the present case, in the light of the interpretation given to the word “illegitimately” in judgment No. 6 of 16 November 2015 by the Third Instance Judge, in the criminal proceedings No. 154/RNR/2015, can a request for abstention or withdrawal be considered an effective remedy with the meaning of Article 35 § 1 of the Convention?
3. If the provision applies, was the court which dealt with the applicant’s case concerning slander impartial, as required by Article 6 § 1 of the Convention?
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