Published on 3 May 2021
FIRST SECTION
Application no. 345/21
Mario FOSCHI against San Marino
and three other applications
(see list appended)
communicated on 16 April 2021
STATEMENT OF FACTS
The applicants’ details are set out in the appended table.The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.Application no. 345/21
On 21 August 2014 Mr. Foshi (“the first applicant”) lodged a complaint with the Italian police against MKT (a Bulgarian national) in relation to fraud and misappropriation of funds (354,370 euros [EUR]). According to the Italian investigation the money transfers from the first applicant to MKT (who for several years had done business together in relation to the sale of cars destined for Bulgaria) and his wife, which were allegedly intended to be used for the purchase of property in Bulgaria, had been made by the first applicant voluntarily and for the purposes of purchasing vehicles not property. While it appeared that EUR 100,000 had indeed been transferred to MKT, there were not sufficient elements to sustain the charges. According to the Italian police the issue was one of a civil nature whereby the injured party (the first applicant) was to seek damage for the losses incurred in the ambit of the commercial activity he undertook with MKT. In any event, the money transfers occurred in the most part from San Marino to other States, therefore, the alleged crime occurred outside of the jurisdiction of Italy.
Thus, the file was transferred to the San Marino authorities who on 8 July 2015 opened criminal investigation file no. 420/215. However, the investigating judge assigned to the case did not take any steps.
On 7 May 2019 the Acting Chief Justice of San Marino invited the parties to make submissions (within two weeks) concerning the non‑observance of the time-limits for the investigation.
On 3 February 2020 the Acting Chief Justice of San Marino assigned a new investigating judge.
On 4 March 2020 the new investigating judge noted that the crime had become time‑barred, as no investigative act ensued after the opening of the file. The Prosecutor agreed and was in favour of discontinuation (archiviazione).
On 10 March 2020 the investigating judge declared the charge discontinued because it had become time-barred (Article 52 et seq. of the Criminal Code). Application nos. 6319/21 and 6321/21
On 13 April 2016 Mr. Fabbri and Ms. Marro (the second and third applicant, respectively) lodged a complaint with the San Marino tribunals against N. (a national of Bosnia and Herzegovina) for personal injury. They expressed their intention of joining the eventual proceedings as a civil party and asked to be informed if proceedings where to be discontinued. As a result, the following day criminal investigation file no. 210/RNR/2016 was opened. The investigating judge assigned to the case did not take any steps.
On 28 May 2019 the Acting Chief Justice of San Marino invited the parties to make submissions (within two weeks) concerning the non‑observance of the time-limits for the investigation.
On 16 November 2020 a newly assigned investigating judge declared the charge discontinued because it had become time-barred (Article 52 et seq. of the Criminal Code, particularly Article 54). He informed the Prosecutor accordingly, noting that in the absence of his objection the decree would take effect. He also noted that it appeared from the case file that no investigative measures had been undertaken throughout the entire time and that N. had not even been notified of the investigation. Thus, even assuming it was not time-barred, no criminal proceedings could ensue in the absence of any evidence having been collected (Article 135 of the Code of Criminal Procedure).
On 20 November 2020 the Prosecutor agreed to discontinue the case.Application no. 9227/21
In 2015 proceedings for defamation were initiated by C. (a teacher) against the fourth applicant’s parents for defamation, them having written a letter of complaint concerning her actions and omissions during a trip abroad, inter alia, her failure to protect their son from bullying.
By a judgment of 6 March 2018 the trial judge found the parents guilty, and sent the file to the investigation judge to consider whether it was necessary to investigate third persons in relation to the incident. As a result, on 28 March 2018 criminal investigation file no. 178/RNR/2018 was opened against V. and D. for private violence and persecution against the applicant (a minor). A request to join the proceedings as a civil party was submitted. The investigating judge assigned to the case did not take any steps.
On 25 November 2020 a newly assigned investigating judge archived the case in accordance with Article 135 of the Code of Criminal Procedure as no elements had been collected substantiating an indictment. He also noted that the charge had become time-barred (Article 52 et seq. of the Criminal Code, particularly Article 54) in the absence of any investigative acts having been undertaken. He informed the Prosecutor accordingly, noting that in the absence of his objection the decree would take effect.
On 27 November 2020 the Prosecutor expressed his agreement.Relevant domestic law
The relevant Articles of Law no. 93/2008 concerning criminal procedural rules, in so far as relevant read as follows:
Article 3
“(1) Except in the cases mentioned in Article 5 below [secret or urgent investigations], the investigating judge carries out all the investigating activity in general, as well as that related to the collection of evidence and particularly its acquisition (formazione), while safeguarding the rights of the accused and the prerogatives of the Attorney General (Procuratore del Fisco) as well as the rights of private parties as protected by criminal law.
(...)
(3) Save for judicial acts covered by banking secrecy according to law ..., the injured party (parte lesa) who has duly constituted himself or herself as a party to the proceedings has the right to receive, upon request, a copy of the acts of the proceedings and to submit in any phase of the proceedings memorials, submissions or documentation; he or she can request to take part, possibly only through his or her defence counsel or expert (perito), during the investigations, to any on site examination (accessi), searches and or other expert examination (perizie). The investigating judge to whom the request is made must give reasons for the decision. The investigating judge shall deny the authorisation in case the request of the injured party, who has duly constituted him or herself as a party to the proceedings, 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 (...)
(4) The injured party is obliged to participate in confrontations with the accused set by the investigating judge.
(5) The above is without prejudice to the obligation of the judicial police to undertake investigations of their own motion, in accordance with the law, save any contrary instruction by the investigating judge, who must be informed immediately of the notice of the crimes and any further elements useful to the investigation.”
Article 4
“(1) Within thirty days of the crime report ..., save for the exceptions mentioned in Article 5 below, the investigating judge must personally inform the accused and the Attorney General of the legal and factual elements of the crime in respect of which proceedings are being carried out ...”
Article 6
“(1) The investigating judge, in line with the principle that proceedings shall be heard in a reasonable time (...) shall ensure the quick completion of the investigation and therefore the publication of the proceedings including the decision to commit the individual and appoint an oral hearing, or alternatively to archive the charges under Article 135 of the Code of Criminal Procedure, in the shortest time possible.
(2) In any event either of these decisions must be made within the peremptory time-limit (...).
(3) Once the time-limits expire the proceedings must be considered published, irrespective of any such decision by the investigating judge.
(4) The case-file is then transferred to the Registry of the Chief Justice, who shall verify the state of the proceedings, and after hearing the parties and the opinion of the Attorney General, if the latter agrees, the former shall assign the case to him or herself and order its discontinuation. If, however, he or she considers that it was impossible to abide by the time-limit due to a fortuitous event or force majeur, he or she may give an extension of thirty days. No further extensions are allowed (...).
(5) The Chief Justice shall immediately inform the Commission for Justice Affairs and the ordinary Judicial Council of the delay which occurred and the consequent decisions.
(6) Such a delay may give rise to civil responsibility on the part of the investigating judge if the conditions laid down in Article 9 of the Constitutional law of 30 October 2003 no. 114 are also fulfilled”.
The relevant Article of the Criminal Code reads as follows:
Article 54
“An offence is time-barred:
(2) within three years if it is punished by imprisonment of the second degree, by prohibition of the third or fourth degree, by a fine...”
The relevant Articles of the Code of Criminal Procedure, as last amended in 2015, in so far as relevant, read as follows:
Article 1
“Every crime gives rise to a criminal action. A civil action also arises when the crime causes damage, physical or moral, to the passive subject of the crime [the victim] and the civil action may be pursued by anyone having an interest in obtaining damage for the harm caused.”
Article 3
“A civil action can be instituted separately, via civil proceedings, in which case it is regulated by the norms of civil procedure, or contemporaneously with the criminal action. In the latter case the claim for damage is registered in the criminal proceedings, and the deciding [trial] judge will decide on the matter as established in Chapter XXI of this Code.”
Article 4
“The victim who chooses to seek damage during criminal proceedings, has no other right other than appearing during the trial so to call witnesses and submit evidence which he or she considers could prove the responsibility of the accused. He or she has no right to have knowledge of the investigative acts undertaken before the proceedings are published [ie. the decision to commit or not for trial].”
Article 5
“The fact that a crime has become time-barred does not impede the exercise of the civil action, unless the latter is also time-barred.”
Article 7
“During criminal proceedings, a civil action is exercised by means of a signed (...) declaration expressing one’s intention to constitute him or herself as a civil party.
The declaration must be notified to the accused (prevenuto) and the Attorney General, and must be filed, together with the documents related to notification of the other parties, in the Registry of the Tribunal, not later than the day of the publication of the proceedings.
In summary proceedings the declaration may be submitted even on the day established under Article 175 (1) for the first hearing (trattazzione della procedura) but before the indictment (contestazione del reato al pervenuto)”
Article 8
“Once the Commissario della Legge [investigating or trial judge] receives a request by a party to join proceedings as a civil party, he or she 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, as well as the right to appoint a lawyer who can make written submissions on his or her behalf...”
Article 135
“Having heard all relevant witnesses, and undertaken all acts necessary for establishing the truth concerning the case, the investigating judge shall, if he or she considers that the evidence collected does not offer sufficient legal grounds to prosecute the accused, order that the case be archived, subject to the Attorney General’s agreement (...)”.
Article 175
“Within thirty days from the lodging of the criminal complaint the [investigating] judge (Commissario della legge) must fix a first hearing for the summary proceedings, with the possibility of carrying out summary investigations in the meantime.
If urgent objective investigations are necessary, the judge shall provide accordingly, and the above-mentioned term shall start to run on the completion of such investigations. The witnesses shall be summoned to appear for questioning on specified dates.
The accused shall also be summoned by means of a committal decree setting out the facts imputed to him or her (...)
The committal decree is to be notified to the Attorney General to enable his or her intervention at the trial.
Once the committal decree is issued the proceedings are deemed published. (...)”
COMPLAINTS
The applicants complain under Article 6 § 1 of the Convention that they did not have access to court to determine their civil claims as a result of the inaction of the authorities which led to the discontinuation of the criminal proceedings.
QUESTIONS TO THE PARTIES
1. Was Article 6 § 1 of the Convention in its civil head applicable to the investigation proceedings ensuing from the applicants’ criminal complaints (see, for example, Arnoldi v. Italy, no. 35637/04, §§ 36-41, 7 December 2017)? In particular, what rights pertain to injured parties during the investigation stage, and have the applicants exercised any such rights in the present cases?
2. If so, in the absence of any investigative acts being undertaken by the authorities which led to the discontinuation of the investigations, was there a breach of the applicants’ right to access to court for the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention (see, for example, Anagnostopoulos v. Greece, no. 54589/00, §§ 31-32, 3 April 2003, and Dinchev v. Bulgaria, no. 23057/03, § 50‑52, 22 January 2009)?
3. The applicants should further clarify the factual situation concerning any formal requests lodged to join the proceedings as a civil party, in particular by whom and when, and whether a decision had been taken on any such requests? The reply should be accompanied by the relevant documentation.
APPENDIX
No.
Application no.
Case name
Lodged on
Applicant
Year of Birth
Place of Residence
Nationality
Represented by
1.
345/21
Foschi v. San Marino
15/12/2020
Mario FOSCHI
1942
Domagnano
San Marinese
Rossano FABBRI
2.
6319/21
Fabbri v. San Marino
15/01/2021
Stellino FABBRI
1955
Acquaviva
San Marinese
Rossano FABBRI
3.
6321/21
Marro v. San Marino
15/01/2021
Angelina MARRO
1973
San Giovanni (RSM)
Italian
Marino Federico FATTORI
4.
9227/21
Forcellini v. San Marino
02/02/2021
Andrea FORCELLINI
2003
Fiorentino
San Marinese
Rossano FABBRI
Full & Egal Universal Law Academy