Legal summary
September 2024
Fabbri and Others v. San Marino [GC] - 6319/21, 6321/21 and 9227/21
Judgment 24.9.2024 [GC]
Article 6
Civil proceedings
Article 6-1
Access to court
Civil rights and obligations
Complaint by victims of alleged offences participating in criminal proceedings that the investigating judge’s inaction led to the time-barring of those offences and thus to the non-adjudication of their civil claims: no violation
Facts – The criminal proceedings in which the three applicants participated as injured parties were discontinued after the investigating judge assigned to their cases had failed to take any steps, resulting in the charges becoming time-barred. The applicants complained that due to the authorities’ inaction they could not have their civil claims adjudicated in the criminal proceedings.
In a judgment of 18 October 2022, a Chamber of the Court held, by four votes to three, that there had been a violation of Article 6 § 1 on the basis that the applicants had been denied access to a court in respect of their civil claims.
On 6 March 2023 the case was referred to the Grand Chamber at the Government’s request.
Law – Article 6 § 1:
(a) Applicability of Article 6 § 1 of the Convention under its civil limb in the context of criminal proceedings – The Grand Chamber confirmed that neither Article 6, nor any other Convention provision, could be interpreted as compelling the Contracting Parties to enable civil claims in respect of damage to be made in criminal proceedings. Nevertheless, a majority of national systems provided for that possibility (at least at certain stages of the criminal proceedings). The comparative material showed that five of the thirty-five member States surveyed did not provide for that option, and two of the thirty that did provide for that option did not allow it at the investigation stage. That choice fell within the margin of appreciation of the States.
The possibility, in certain member States, of making civil claims in the framework of criminal proceedings had generated a substantial amount of case-law under Article 6. The general principles concerning the applicability of the civil limb of that provision in such circumstances, had been adapted to the constructs of the diverse legal systems, including the terminology used in each member State, as well as their formal procedures or lack thereof.
Against that background, the Court clarified the relevant criteria to allow for a coherent and calibrated approach to the applicability of Article 6 in those member states that provided for a right to bring civil claims in the context of criminal proceedings. In particular, for Article 6 to apply in its civil limb the following requirements had to be met:
– An applicant had to have a substantive civil right recognised under domestic law (such as the right to compensation for damage sustained).
– The domestic legislator must have endowed the victim of a crime with a (procedural) right of action to pursue that civil right in, and at the relevant stage of, the judicial criminal proceedings complained of.
– Victims had to clearly demonstrate the importance they attached to securing the civil right at issue notwithstanding the fact that criminal courts might have jurisdiction. To do so the civil right had to be invoked and/or pursued via the appropriate channel, in accordance with the tenets of the domestic legal framework. Thus, where domestic law provided for a formal status of “civil party” Article 6 would apply only if, and from the time when, the applicant had lodged a formal request to obtain such status, even if it had not yet been decided upon. In domestic systems having more flexible and less formalistic approaches (i.e. where no official “civil party” status existed, for example, those systems requiring solely that a civil claim was lodged or brought to the attention of the domestic courts) Article 6 would apply if, and from the moment when, the applicant’s pursuance of a civil right had been clear, in the light of the tenets of that domestic system.
That was without prejudice to the possibility for the Court to consider that the steps undertaken by an applicant to invoke and/or pursue the civil right at issue, were prima facie invalid procedurally or substantively, or that it was inappropriate or even abusive for the individual to attempt to bring such claims through the criminal avenue, such as would be the case, for example, if the matter at issue was merely of a civil nature, or if statutory limitation periods or any relevant time-limits applicable at that stage had already expired. In such circumstances it could not be considered that a civil right had been invoked and/or pursued using the appropriate channel, in accordance with the tenets of the domestic legal framework, thus Article 6 will not apply.
– Article 6 would only apply if the civil right being pursued in the criminal proceedings was not actively being pursued in parallel before some other court.
– Lastly, the criminal proceedings had to be decisive for the civil right in issue. In other words, the criminal proceedings must affect the civil component. That requirement could be considered as having been met, for example, if there was an obligation on the judge, as the competent authority, to determine the civil claim, in whole or in part, or the judge had done so in practice; or where criminal proceedings prevailed over any civil proceedings, either in the sense that the criminal proceedings, in which an applicant was pursuing civil claims, would bring to an end or suspend any already pending civil proceedings (or disallow an applicant from introducing and pursuing any civil proceedings in parallel); or in the sense that the determination of the civil claim was bound by the findings of the criminal proceedings.
In the present case the first two requirements were met in respect of all three applicants. However, the remaining requirements were only met in respect of the third applicant.
Under domestic law to obtain the formal status of “civil party”, an injured party had to make a request by means of a signed declaration. The third applicant (application no. 9227/21) had made such a formal request which had been notified to the relevant parties. Furthermore, the criminal proceedings at issue had affected the civil component. Article 6 was thus applicable to the proceedings in his case.
Conversely, the first and second applicants (applications nos. 6319/21 and 6321/21), had merely reserved their right to join any eventual proceedings, without signing such a declaration. They had not therefore demonstrated, in accordance with the domestic law, the importance they had attached to securing their right to financial reparation for any damage sustained. The proceedings in respect of those applicants, had not thus involved the determination of a “civil right” and, accordingly, Article 6 did not apply in their case.
Conclusion: admissible in respect of the third applicant: preliminary objection dismissed and Article 6 applicable (unanimously); inadmissible in respect of the first and second applicant (incompatible ratione materiae); preliminary objection upheld (by a majority).
(b) Merits (with regard to the third applicant) –
(i) Relevant case-law – Two lines of case-law had developed regarding access to a court in relation to civil claims brought in the ambit of criminal proceedings.
In the first line of cases, where civil‑party claims made in the context of criminal proceedings had not been examined by reason of the termination of those proceedings, the Court had had regard to the availability of other channels through which the applicants could have asserted their civil rights. In cases where the applicants had had at their disposal other accessible and effective avenues for their civil claims, it had found that their right of access to a court had not been infringed. That group of cases included situations where the termination of the proceedings had not been due to delays caused by the authorities or other shortcomings on their part, or where, although there had been some delays, they had not been extreme or had been counterbalanced, but also situations where the discontinuance had been due to such shortcomings and delays.
In the second line of cases, where civil‑party claims made in the context of criminal proceedings had not been examined on account of the termination of those proceedings, the Court had considered that where the domestic legal order provided litigants with an avenue of redress, such as a civil claim in the context of criminal proceedings, the State was under an obligation to ensure that they enjoyed the fundamental guarantees laid down in Article 6 § 1. In nearly all of those cases, there had been a delay mainly imputable to the authorities, thus on the facts before it, the Court had considered that it could not be expected of the applicants to pursue civil remedies, several years after they had lodged their civil claims in the ambit of criminal proceedings, and even longer after the impugned events, even if it had still been possible to do so. In those circumstances, and despite any possibility of bringing separate civil claims at the outset or in parallel, the Court had found a violation of the right of access to a court.
(ii) Relevant considerations – The Court recalled that although the right of access to a court was a stand-alone right, it could not be ruled out that, in exceptional cases, the fact that the proceedings remained pending for an excessive period might affect the above right. Thus, while a timely decision by the authorities remained necessary and was protected by the right to have proceedings heard within a reasonable time, the absence of a decision on a civil claim within the context of criminal proceedings, whether at pre-trial or trial stage, as a result of some shortcoming on the authorities’ part, could not of itself, and regardless of any other considerations, amount to a violation of the right of access to a court.
In that context, in the civil sphere, a person’s claim of a right of access to a court might conflict with another person’s right to legal certainty, which constituted one of the fundamental aspects of the rule of law and was likewise guaranteed under the Convention. Such a situation required a balancing exercise between conflicting interests, and the State was accorded a wide margin of appreciation in that field. Similar considerations applied in proceedings such as those in the present case in the light of the rights of the accused, which were also guaranteed under the Convention. Thus, while an individual might opt for the introduction of a civil claim in the criminal proceedings because it was less expensive and less burdensome, it also carried a risk that authorities entrusted with the criminal complaint would be unable to decide on the civil claim for a variety of reasons (such as, limitation periods, plea bargaining, a decision that the facts did not constitute a criminal offence, or acquittal, amongst others).
It was also of significant relevance whether an applicant pursuing civil claims had acted with the required diligence in pursuing his or her interests or whether he or she had contributed to the delays or the reasons leading to the discontinuance.
(iii) The approach to be taken – The Court clarified the approach to be taken in access to court complaints in relation to civil claims brought in the framework of criminal proceedings. As a rule, the discontinuance of criminal proceedings with the result that a civil claim could not be determined therein, did not result in a violation of the right of access to a court if it was based on lawful grounds which were not applied arbitrarily or unreasonably, and if the applicant had ab initio an alternative avenue of redress capable of determining the civil claim at issue.
However, in the exceptional circumstance that the lawful discontinuance was the result of a serious dysfunction of the domestic system (such as, for example, the authorities’ total inaction), the Court, after having assessed the applicant’s behaviour, might be called on to examine the availability of any other avenue open to him or her, so as to determine whether the very essence of the right had been impaired. Where the discontinuance was only partly the result of a serious dysfunction of the domestic system – the applicant having contributed to that outcome (for example, by means of inaction, negligence, or bad faith) – it would suffice that the applicant had another avenue of redress, either ab initio or after the discontinuance, to find that the essence of the right had not been impaired. It would follow, in such a case, that the State had satisfied its obligation to provide the relevant applicant effective access to a court. That was without prejudice to any complaint concerning the length of proceedings, should that be invoked, which would be subject to a separate examination based on the criteria laid down in the Court’s case law relating to that aspect of Article 6.
Exceptionally, when the serious dysfunction of the domestic system was the sole or decisive reason leading to the discontinuance – the applicant having pursued the civil claims diligently via the criminal avenue – it would be open to the Court to find that the applicant had a legitimate expectation to have those claims determined in that avenue irrespective of any other available remedy ab initio, and that, on the specific facts before it, it would not be reasonable to expect the applicant to pursue any available civil remedy after the discontinuance. It would follow, in such a case, that the State had failed to satisfy its obligation to provide the applicant with effective access to a court, it being demonstrated that the very essence of that right has been impaired. Should there be no such failure on the part of the State, it was clear that a complaint for unreasonable delay would be open to such an applicant.
(iv) Application of the principles to the present case – In the third applicant’s case the authorities had discontinued the criminal proceedings, at the investigation stage, on the ground that the limitation period for criminal liability had expired, and that in any event no evidence had been collected allowing for prosecution since no investigative measures had been undertaken within the required time-limit. As a result, his civil claims could not be examined by a criminal court.
When the criminal proceedings had been discontinued, the investigative authorities had no obligation to examine any civil claims. There had thus been no procedural irregularity in the way they had proceeded. Nor had the third applicant challenged the applicable limitation period and time-limits or argued that they had been applied restrictively. It followed that the decision to discontinue the case had been lawful and not arbitrary or manifestly unreasonable.
Thus, in principle, in the absence of any exceptional circumstances, the third applicant’s right to a court would have been respected if he had had, ab initio, the possibility of pursuing civil claims in separate civil proceedings, as had indeed been the case. It was no disputed, however, that the investigating judge assigned to the case had not taken any steps whatsoever following the opening of the criminal investigation, as a result of which the proceedings had been discontinued, and that that had been the result of a serious dysfunction in the domestic investigative judicial authority at the relevant time, leading to around 800 such investigations becoming time-barred. Nonetheless, that dysfunction had not been the sole or decisive reason behind the failure to consider his civil claim in the avenue he had chosen. The third applicant had not pursued his interests diligently. He had not attempted to bring his civil claim (separately or in the context of the ongoing criminal proceedings) until just a few days before the expiry of the limitation period in respect of the alleged offence (2019), even though the offence had been committed three and a half years earlier (2015). He also made his declaration only three months before the procedural time-barring of the investigation opened ex officio.
Furthermore, the third applicant could have brought separate civil proceedings in 2015 when the alleged offence had been committed instead of joining the criminal proceedings years later, or once he had been notified of the decision to discontinue those proceedings. It was still open to him to do so and in 2023 he had still been considering whether to bring separate civil proceedings.
In those circumstances, the Court found that the very essence of the third applicant’s right had not been impaired such that it could not be said that he had been denied access to a court for the determination of his civil rights.
Lastly, the Court pointed out that, although under Article 6 § 1 there was no self‑standing obligation to investigate crime, for punitive purposes and still less for the purposes of facilitating the bringing of civil claims, other Convention provisions, inter alia, Articles 2, 3, and 4, imposed a self‑standing duty of investigation in the ambit of the State’s positive obligations under those provisions. Moreover, under Article 6 § 1 the State remained the guarantor of the right to have a serious and genuine dispute concerning civil rights heard within a “reasonable time”, irrespective of which court had jurisdiction to do so. Thus, the Court made it clear that it was particularly concerned about the serious dysfunction identified in San Marino at the relevant time.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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