FIRST SECTION
DECISION
Application no. 78692/16
Christian GUERRA
against San Marino
The European Court of Human Rights (First Section), sitting on 12 June 2018 as a Committee composed of:
Pauliine Koskelo, President,
Kristina Pardalos,
Tim Eicke, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 6 December 2016,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Christian Guerra, is a San Marinese national, who was born in 1973 and lives in San Marino. He was represented before the Court by Mr M. Orru, a lawyer practising in Rimini.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 27 May 2014 the applicant filed a criminal complaint against his colleague, S. for insult and slander. Thus, a criminal investigation was instituted.
4. In view of the results of the investigation, on 28 March 2015 the inquiring judge ordered that the case be archived.
5. On an unspecified date the applicant, unsatisfied with the outcome of the investigation, applied for its reopening. He considered that i) certain testimonies had been contradictory and incoherent ii) that there had been a wrong application of law in respect of the offence of slander iii) that witness testimony had not been given under oath – in this connection he also noted that regretfully he, as injured party, had not been present in contrast with the ratio behind Article 3, of Law no. 93/2008 (see relevant domestic law below). He requested i) a site examination, ii) the re‑hearing of some witnesses already heard by the inquiring judge and the hearing of two new witnesses. Referring to Article 3, of Law no. 93/2008 he also requested, in advance, to allow him, via his legal representative, to attend the above mentioned investigative acts.
6. On 8 June 2015 the appeal judge, bearing in mind the first two issues raised by the applicant, upheld the applicant’s objection against the decision to archive the case and ordered the reopening of the investigation, in particular the appeal judge ordered a site examination and the hearing of the relevant witnesses.
7. On unspecified dates the inquiring judge carried out the requested site examination and heard the relevant witnesses without the participation of the applicant’s lawyer.
8. By a decision of 30 March 2016 the inquiring judge, noting that the investigative acts ordered by the appeal judge had taken place, ordered the archiving of the case‑file since the further investigation had not brought any new evidence.
9. On 5 May 2016 the applicant applied again for the reopening of the investigation reiterating his concerns. He noted, inter alia, that it was perplexing that the inquiring judge had not informed him of the hearing dates, thus it had been impossible for his lawyer to attend the site examination and to cross-examine the witnesses, which in his view ran counter to Article 6 of the Convention.
10. By a decision of 6 June 2016, served on the applicant on 9 June 2016, the appeal judge rejected the applicant’s request. He emphasized the distinction in law between the rights of the accused and that of the Attorney General (Article 3, sub article 2, of Law no. 93/2008), as opposed to the ones of the injured party (Article 3, sub articles 3 and 4, of Law no. 93/2008). An injured party “has the right to receive, upon 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”. It resulted from the acts of the proceedings that, following the reopening of the investigation, the applicant’s representative repeatedly viewed the acts (on 12 October 2015, 18 February 2015, and 3 March 2016), the last time being after the police had drafted their report. During this time not only did the applicant’s legal representative not object to the fact that he had not been notified of the acts, but neither did he request to be present at the hearing of the witnesses, nor did he make any other request. Indeed, even after seeing the police’s final report he did not consider it opportune to raise any matters or requests before the inquiring judge.
11. Finally, the judge of appeals noted that the evidentiary conclusions, following the reopening of the investigation upon the applicant’s request, confirmed the facts as construed by the inquiring judge who ordered that the case be archived. Furthermore, despite a more detailed investigation, the evidence obtained was not sufficient to give rise to the offences alleged by the applicant. The judge of appeals considered that the applicant’s request to reopen the investigation and repeat the different investigative acts already undertaken would not allow for the acquisition of any new elements.
B. Relevant domestic law
12. Article 3 of Law no. 93/2008 concerning criminal procedural rules and the confidentiality of criminal investigations, in so far as relevant read as follows:
Article 3 (right to defence)
“(1) Except in the cases mentioned in Article 5 below, the inquiring judge carries out all the inquiring 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.
(2) The accused, assisted by a legal representative, as well as the Attorney General, have the right to present their defence, by means of submissions and pleas. They may also examine, and make copies of all the acts in the proceedings, including the report of the crime. The inquiring judge must ensure that the parties can participate or be represented at each stage of the investigation proceedings.”
(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, upon 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.”
COMPLAINT
13. The applicant complained under Article 6 of the Convention about a violation of his right to a fair hearing and the principle of equality of arms since he had not been present at the site examination and during the hearings of the relevant witnesses. Thus, his lawyer had not had the possibility to attend, while the accused’s defence was informed of, and participated in, all the relevant hearings.
THE LAW
14. The applicant complained under Article 6 § 1 of the Convention which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
15. The Court reiterates that the Convention does not confer any right, as such, to have third parties prosecuted or sentenced for a criminal offence. To fall within the scope of the Convention such right must be indissociable from the victim’s exercise of a right to bring civil proceedings in domestic law, even if only to secure symbolic reparation or to protect a civil right such as the right to a “good reputation” (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004‑I; and Gorou v. Greece (no. 2) [GC], no. 12686/03, § 24, 20 March 2009). However, in cases where at the stage of the preliminary investigation injured parties may exercise rights and powers expressly afforded to them by law (see, for example, Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 312, ECHR 2011 (extracts)) the Court has concluded that the civil limb of Article 6 § 1 of the Convention was applicable to criminal proceedings in which the applicant participated as an injured party but not as a civil party (see Sottani v. Italy ((dec.), no. 26775/02, ECHR 2005‑III (extracts)); and Patrono, Cascini and Stefanelli v. Italy (no. 10180/04, §§ 31-33, 20 April 2006, the latter also referring to pre-trial stage). On the basis of similar considerations, the Court also found that Article 6 applied to a civil party in pre‑trial proceedings (see Podhradský v. Slovakia((dec.,), no. 10212/11, §§ 35‑43, 25 August 2015; and Javor and Javorová v. Slovakia, no. 42360/10, § 65-66 and 70, 15 September 2015).
16. The Court does not consider it necessary to determine whether Article 6 applied in the present case, since, even assuming that it did, the complaint is in any event inadmissible in so far as the applicant did not apply to the inquiring judge in order to be summoned and take part at the relevant hearings, as expressly provided by the relevant law on injured parties’ rights (see paragraph 12 above).
17. It should be pointed out that States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among many authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports 1996‑IV). 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 (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014, and the case‑law cited therein). 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.).
18. The Court notes that already during the initial investigation the applicant had not made a request to participate. Following his appeal, the investigation had been reopened, as requested by the applicant, thus, again allowing him to make a request to participate in the investigative acts. Therefore, the domestic system afforded the applicant with the possibility to participate at the hearings and to cross‑examine the requested witnesses. However, he failed to take advantage of this, as noted by the appeal judge (see paragraph 10 above), in so far as he failed to make a request to that effect to the inquiring judge as required by law (see paragraph 12 above). His request, made in advance, before the judge of appeals, does not alter that conclusion in so far as it cannot be considered as complying with the requisite formal requirements of domestic law.
19. It follows that the application is inadmissible for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons the Court,
Declares the application inadmissible.
Done in English and notified in writing on 5 July 2018.
Renata DegenerPauliine Koskelo
Deputy RegistrarPresident
Full & Egal Universal Law Academy