Communicated on 19 June 2017
FIRST SECTION
Application no. 50956/16
Enrico Maria PASQUINI
against San Marino
lodged on 16 August 2016
STATEMENT OF FACTS
1. The applicant, Mr Enrico Maria Pasquini, is an Italian national, who was born in 1948 and lives in San Marino. He is represented before the Court by Mr A. Pagliano, a lawyer practising in Naples.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case
3. The applicant was the owner of the whole share capital (and at the material time also the director) of company S.M.I., a fiduciary company operating in San Marino.
4. On an unspecified date a certain B. conferred a mandate to a certain Z., for the latter to open a fiduciary account (conto fiduciario) with company S.M.I. in his own name but on behalf of the former. Thus, on 2 March 1988 Z. signed a fiduciary mandate agreement (mandato di amministrazione fiduciaria) with company S.M.I. on behalf of B.
5. For the execution of such mandate company S.M.I. opened the fiduciary account No. 381-AF077-01, in order to carry out some financial operations concerning securities listed on the Italian Stock Exchange.
6. By a contract of 20 March 1990, signed in the context of the above‑mentioned fiduciary mandate (on behalf of B.), company S.M.I. and another company K. purchased from company P.A. some shares of its subsidiary company A.N. As part of the price for these shares company S.M.I. and company K: i) waived a previous credit they had towards a certain named company owner of company P.A., ii) assumed the obligation to reimburse the debt of 11,000,000,000 Italian liras (LIT) that company P.A. had towards an Italian bank S. (in particular company S.M.I. took on the obligation to reimburse LIT 9,900,000,000 and company K. LIT 1,100,000,000.
7. Eventually, B. complained that company S.M.I. had not returned to him part of the proceeds (LIT 9,035,264,332) which had been obtained from the purchase (see paragraph 6 above) and the subsequent selling, a few months later, of the shares of company A.N. Nor had company S.M.I. recorded such sum in the statement related to the fiduciary account. B. had become aware of such a breach of the contract during previous criminal proceedings (ongoing for other reasons, in Milan) where company S.M.I. had submitted the statements concerning the above mentioned fiduciary account.
2. The civil proceedings No. 300/2001
8. On 4 October 2001 B. filed a civil complaint against Z. and company S.M.I. represented by it legal representative and director (the applicant) in order to obtain from them, in solidum, the payment of LIT 9,035,264,332.
9. According to B., despite knowing that B. was the real owner of the assets which had been deposited in the above-mentioned fiduciary account ‑ since it had been informed of such a fact when the account had been opened – company S.M.I had not properly fulfilled its obligations towards him arising from the fiduciary mandate. In particular, it had not paid him the proceeds it received from the transfers related to company A.N.
10. During the proceedings company S.M.I. submitted a financial statement related to the fiduciary account No. 381-AF0770l (as it stood on 31 December 1990), having a balance of zero. B. contested the reliability of that financial statement and submitted some documents which showed operations made in 1990 in execution of the same mandate which, however, had not been recorded in the financial statement.
11. On 24 April 2003 B.’s defence also submitted a written list of all the sums of money that B. acknowledged having received from company S.M.I. as a result of the fiduciary mandate, and the sums which company S.M.I. had deployed on B.’s instructions.
12. By an interlocutory judgment of 4 June 2007 the first-instance judge (Commissario della Legge) found that not all the financial operations made by company S.M.I. on behalf of B. in execution of the fiduciary mandate had been correctly recorded in the financial statement. The judge applied the rules governing the contract of mandate as established by the domestic case‑law and practice - relying, in particular, on the duty of the mandatary (mandatario) [in this case company S.M.I.] to give evidence of the operations made in execution of a mandate, in order to demonstrate that it fulfilled its obligation of accountability (obbligo di rendiconto). According to the judge, the only evidence that company S.M.I. had submitted for this purpose had been the above-mentioned financial statement. However, B. had demonstrated that it was incomplete, and therefore unreliable, thus company S.M.I. had failed to discharge its burden of proof and that it had returned to B. the sums that it had obtained from the transfer of company A.N.’s shares.
13. Given the unreliability of the statement, the judge, applying the domestic practice concerning the assessment of evidence took into consideration only the parts of the statement which constituted evidence against the party which had submitted it, namely only the credit entries (i.e. the sums of money company S.M.I. had admitted to have received by B.) but not the debit entries reported therein (i.e. the sums company S.M.I. had spent in execution of the fiduciary mandate). Thus, the judge considered all the credit entries (amounting to LIT 34,962,635,382) and deducted from them the sums which, B. acknowledged to have received or deployed on his instructions (amounting to LIT 25,927,371,050). This left an outstanding debt of LIT 9,035,264,332 which company S.M.I. owed B.
14. However, according to the judge, this was the result of the application of presumptions, and B. had not entirely fulfilled the relevant burden of proof. Thus, the judge, in the same aforementioned interlocutory judgment, summoned B. so that he could take a “suppletory oath” (giuramento suppletorio – an oath of a party on his or her own behalf as confirmation of otherwise inadmissible or inconclusive evidence – for more detail see paragraph 54 below) in order to compensate the partial lack of evidence and to entirely fulfil his burden of proof. The oath’s formula, as set by the judge, read as follows: “I swear and declare that I did not authorize any other withdrawals [of money] as reported in the financial statement No. 381-AF0770l apart from the ones that I have acknowledged and that had been indicated in my counsel’s submission of 24 April 2003. Thus, company S.M.I. must return to me LIT 9,028,398,950”.
15. Consequently, the proceedings continued solely for the purposes of the taking of the oath.
16. In the same interlocutory judgment, the judge also found that Z. had been a mere agent of B., thus the former was removed from the case.
4. The taking of the oath in the civil proceedings No. 300/2001
17. On 30 June 2008, B. took the above-mentioned “suppletory oath”. In particular he stated under oath that he had not authorised any other money withdrawals apart from the ones expressly acknowledged in his lawyer’s submission (see paragraph 11 above). Therefore Company S.M.I. had a remaining debt of LIT 9,028,398,950 towards him.
18. No first-instance judgment on the merits ensued.
5. The appeal against the interlocutory judgment
19. In so far as relevant, on 12 December 2008, company S.M.I. appealed against the interlocutory judgment of 4 June 2007. B. requested, inter alia, that the interlocutory judgment of 4 June 2007 be declared definitive and that company’s S.M.I. requests be rejected.
20. By a judgment of 9 June 2011, filed with the registry on 30 June 2011 the Judge of Administrative Appeals in his capacity as Judge of Civil Appeals (Giudice Amministrativo d’Appello in veste di Giudice delle Appellazioni Civili) rejected the appeal. The judge confirmed that company S.M.I. had a remaining debt of LIT 9,028,398,950 (i.e. 4,662,778.93 euros (EUR)) towards B., and thus sentenced company S.M.I. to pay B. such sum of money together with default interests and currency revaluation.
21. The judge specified that the appealed judgment had to be considered an interlocutory judgment having, however, the effect of a definitive judgment (“interlocutoriae vim definitivae habentes”). It could not be regarded as a merely interlocutory judgment [which cannot be appealed] since the first-instance judge, finding that B. had partially proven his statements, had partly examined the case on the merits. Thus, the judgment was appealable and had become definitive after B. had taken the oath.
22. On the merits, the judge considered that in contractual matters the law provided for the reversal of the ordinary burden of proof, since it was the debtor (and not the creditor) who had to demonstrate that he had correctly fulfilled his obligations, irrespective of who had instituted the action. Consequently the judge held that company S.M.I. (the debtor) had not demonstrated that it had entirely fulfilled the obligations arising from the fiduciary mandate agreement, while B. (the creditor) had demonstrated the existence of such an agreement and of some breaches of contract on the part of company S.M.I. (the latter had not regularly recorded in the statement of the fiduciary account some operations made in 1990 in execution of the fiduciary mandate – see paragraph 10 above). Therefore it was reasonable for the first-instance judge to consider that there were “precise and consistent” suspicions about the existence of the credit on behalf of B. - even if such suspicions had not been considered sufficient in order to decide the case – and thus to call for an oath by B.
6. The third-instance complaint
23. On 6 July 2011 company S.M.I. complained with the Third-Instance Judge (Terza Istanza) against the appeal’s judgment of 30 June 2011. By a judgment of 6 April 2012 the Third-Instance Judge declared the complaint inadmissible. The request of company S.M.I. could not be examined since the role of a Third-Instance Judge was uniquely to decide which one of two non-concordant judgments had to be upheld. The latter prerequisite did not exist in the case at hand, since both the first and the second-instance judgments had been concordant on the merits.
7. The joined criminal investigations Nos. 312/RNR/2011 and 198/RNR/2012 (for false oath and slander)
24. On an unspecified date the applicant (in his own name) filed a criminal complaint against B. for the offence of false oath under Article 359 of the Criminal Code. He claimed that, by the statements made under oath on 30 June 2008, B. had committed perjury. Consequently, a criminal investigation was initiated.
25. B. filed a countersuit for slander against the applicant. The investigating judge (Commissario della Legge Inquirente) joined the two investigations.
26. On an unspecified date, an expert’s report, ordered by the judge of his own motion was submitted. The aim of such a report was to ascertain the origin of the sum of money through which company S.M.I. had paid off the debt of company P.A. towards bank S. (see paragraph 6 above). The expert concluded that it was possible to hypothesize that such a sum had been obtained by the selling of company A.N.’s shares but that there was no accounting document able to demonstrate i) who had made the payment to bank S., ii) when such payment had been made and iii) with which money. The expert also specified that no money withdrawal related to the payment of the debt towards bank S. had been recorded in any bank statements of company S.M.I.
27. By decision of 11 May 2015 the investigating judge archived the joined proceedings since in his opinion there was no evidence that B. had committed perjury. The judge considered that the results of the expert’s report showed that it was not possible to conclude who had made the payment to bank S., therefore no evidence had showed the inexistence of the debt towards B. and consequently the falsity of the statements which B. had made under oath.
28. On an unspecified date the applicant lodged a complaint with the Judge of Criminal Appeals requesting the reopening of the investigation.
29. By a decision of 31 July 2015, judge L.F., a Judge of Civil Appeals in his capacity as Judge of Criminal Appeals (Giudice delle Appellazioni Civili in veste di Giudice delle Appellazioni Penali) rejected the complaint and upheld the decision to archive the case. In the opinion of the judge it was not plausible that the reopening of the investigation could lead to the discovery of new documents able to demonstrate the origin of the funds which had been used to pay off the debt towards bank S. The expert had already analysed all the documents available, which had been found not only in the headquarters of company S.M.I., but also in the archives of the court of Milan (where other proceedings were ongoing), and he had not found any record of such a payment. Moreover, the payment dated back to 1990. Furthermore, the dispute at hand had had its origin, above all, since company S.M.I. and B. had decided, by mutual consent and on purpose, not to record all the operations carried out in execution of the fiduciary mandate.
8. The application for the reopening of the civil proceedings No 300/2011 and the institution of the proceedings No. 2/2014 (before the Court for Trusts)
30. Meanwhile, on 30 October 2014, the applicant (in his own name) had applied to the first-instance civil judge for the reopening of the civil proceedings No. 300/2001 (istanza di riassunzione del giudizio).
31. More precisely, the applicant submitted a jactitation suit (azione di iattanza/di accertamento negativo) (see paragraph 56 below) requesting the judge to declare that the suppletory oath sworn by B had been false. The applicant argued that after the taking of the oath he had become aware of new evidence which came into his possession. According to the applicant, B. had not, provided company S.M.I. with the necessary funds in order to carry out the purchase of company A.N. Thus, the statement that B. had not authorized any other money withdrawals (except for the ones he had expressly acknowledged) was false since he had at least authorized company S.M.I. to pay off the debt of LIT 9,900,000,000 towards bank S., in execution of the obligations arising from the purchase contract of company A.N.’s shares. Such a debt had been paid off by company S.M.I. with the proceeds deriving from the selling of the shares of company A.N., since no other funds had been provided by B. for this purpose, therefore the sum of LIT 9,900,000,000 had to be detracted from the amount of the alleged credit claimed by B.
32. By a decision of 12 November 2014 the Chief Justice (Magistrato Dirigente), relying on the domestic law on the competence of the courts (see paragraph 48 below) referred the case to the Court for Trusts (Corte per il Trust ed i Rapporti Fiduciari). The latter had been instituted by constitutional Law No. 1 of 26 January 2012 and was competent for all the cases concerning trusts and fiduciary relationships (see paragraph 45 below).
33. Thus, the proceedings No. 2/2014 before the Court for trusts were instituted. By a decision of 3 December 2014, pursuant to the relevant law, the president of the court referred the case to a panel composed of two judges (judge G. and the president of the court himself). The president calculated in EUR 17,750 the amount of the legal fees that the applicant had to pay in advance and requested the applicant to pay such a sum, within seven days, under penalty of barring the claim (see paragraph 46 below).
34. Although he had been regularly notified with the reopening of the proceedings, B. did not respond.
35. By a judgment filed in the registry on 18 September 2015 the court partially acceded to the applicant’s complaint. The court declared false only the first part of the oath (namely, the part in which B. had declared that he had authorized only the operations he had explicitly acknowledged in the list submitted by his lawyer on 23 April 2003 and not the further money withdrawals which had been recorded in the bank statement No. 381‑AF0770l – see paragraph 14 above). However, the court held that the second part of the formula (namely that relating to the final amount due) be truthful. Thus, it dismissed the applicant’s request to reduce the amount of the debt and confirmed that company S.M.I. had to pay to B. the same sum of money.
36. According to the court, the oath’s formula did not imply that the second part of the oath had to be seen as a consequence of the first part, despite the use of the word “thus” (“per cui”). It was therefore preferable to separate the two parts of the oath, since operations could have existed which may not have had any effect on the amount of the final balance. In connection with the first part, the court noted that the authorisation of the mandator (mandante) (in this case B.) to use the proceeds obtained from a certain financial operation in order to pay off an obligation arising from that same operation, as happened in the case at hand, had to be considered implicit in a contract of mandate. It followed that the first part of the oath limiting authorisations to those listed by B’s legal representative, had not been exact, and the applicant was thus right on that point and the first part of the oath to be considered false.
37. In any case, having examined all the evidence, in the court’s view, the declaration of falsity of the first part of the statement made by B. under oath did not necessarily impact the quantification of the debt since i) all the parties to the contract of 20 March 1990 had acted under the instructions of the same mastermind (B.), ii) company P.A (the seller of the shares of company A.N., from which company S.M.I. had taken over the debt towards bank S. – see paragraph 6 above) belonged to company S.M.I. iii) the taking over of the debt had not even been notified to bank S. Thus, there was no risk that company S.M.I. had to actually pay the debt. In addition, the applicant had not given evidence of any payments made by company S.M.I enabling a reduction in the amount of its debt towards B.
38. By the same judgment the court also calculated the total amount of the litigation fees in EUR 29,500 and approved the fees requested by the lawyers (EUR 37,887).
9. The denial of leave to appeal
39. On 2 October 2015, relying on Article 11 § 2 of Decree No. 85 of 19 July 2013 (see paragraph 46 below), the applicant (in his own name) applied to the president of the court in order to be allowed to appeal part of the judgment.
40. The applicant claimed, inter alia, that the splitting of the oath’s formula in two parts, and the finding of the falsity of the first part and not of the second part thereof, had been illogical and erroneous. Indeed, such a decision had annulled the applicant’s interest in bringing proceedings. According to the applicant, his jactitation suit had aimed at ascertaining the existence of a concrete damage arising from the falsity of the oath and such damage arose from the second part of the formula (the one in which B. had claimed the return of a quantified sum) not from the first part thereof. Furthermore, the two parts of the oath had to be considered strictly connected. Thus, the finding that the first part of the formula was false should have automatically determined also the declaration of falsity of the second part since between them a logical causal link (nesso logico di causalita’) existed. In addition, the decision to split the oath’s formula in two parts had not be reasoned and in the applicant’s view he needed not bring any proof of the inexistence of the debt, it being an automatic result of the falsity of the statement given on oath.
41. On 19 October 2014 the president of the court rejected the application for leave to appeal on the grounds that: (i) most of the applicant’s grounds of appeal concerned the merits of the case (which according to the relevant law cannot constitute a ground of appeal against the judgments of the Court of Trusts), (ii) in the first-instance proceedings before the Court of Trusts, the applicant had not given evidence of any payments made by company S.M.I. able to reduce the amount of its debt towards B. Thus the court had correctly concluded that the second part of the oath was true and that the amount of the credit had to remain the same.
10. The complaint against the denial of leave to appeal
42. Against the decision denying leave to appeal, the applicant lodged a complaint with the Judge of Civil Appeals relying on Article 11 § 3 of the Decree No. 85 of 19 July 2013 (see paragraph 46 below). He substantially reiterated the same requests which he had already submitted.
43. By a decision of 11 February 2016, judge L.F., in his capacity as Judge of Civil Appeals rejected the complaint and upheld the decision not to authorize the appeal. The decision was served on the applicant’s legal counsel by e-mail on 16 February 2016.
44. In the opinion of the judge, the complaint did not contain any issues of law. Indeed, the plea concerning the splitting of the oath’s formula in two parts had to be considered a complaint on the merits since it regarded the analysis of the oath’s formula as had been carried out by the court. On the one hand, the court had considered that the first part of the oath’s formula was false on the basis of the rules governing the contract of mandate and in the light of the evidence of the operations carried out by company S.M.I. On the other hand, the second part of the formula had been held to be true on the basis of the fact that no evidence had demonstrated that company S.M.I. had made any relevant payments in B’ s name. (i.e. the reimbursement of the debt). Thus, the decision to split the oath’s formula in two parts had been correct, since the two parts thereof were not logically connected.
B. Relevant domestic law and practice
1. The Court for Trusts (“Corte per il Trust ed i Rapporti Fiduciari”)
45. Article 1 of Law No. 1 of 26 January 2012 reads, in so far as relevant, as follows:
Article 1
“In the context of the ordinary jurisdiction the Court for trusts and fiduciary relationships is instituted. The court is competent for all the cases concerning legal relationships arising from the fides or the fiducia, such as trusts, fiduciary administrations, fideicommissa, ... and similar legal instruments provided by any legal systems ...”
46. The Delegate Decree No. 128 of 30 September 2013, concerning the procedure before the Court for Trusts, reads, in so far as relevant, as follows:
Article 2 (Application)
“...
(2) Under penalty of the barring of a claim (improcedibilita’), an application must be filed with the registry together with the evidence of the payment of:
(a) the judicial tax,
(b) the registry fees (diritti di cancelleria) in the amount periodically determined by the President and, in general, also calculated on the basis of the value of the claim.
...”
Article 4 (Beginning of the proceedings)
“(1) The president decides, by a final decision not subject to appeal:
(a) whether the case has to be referred to a single judge, to a panel (collegio) (of which he also decides the members and the President), or to the full court (piena corte),
(b) [the amount of] the variable part of the emolument for the single judge or the panel,
(c) [the amount of] the legal fees (which can vary depending on the complexity of the case and/or its value) that the applicant must pay within seven days under penalty of barring of the claim, on the basis of the total amount of the emoluments of the judges and the expenses’ reimbursed to them
...”
Article 10 (Decision)
“(1) If a case is to be decided by a panel:
...
(b) the court adopts its decisions by a majority.
...”
Article 11 (Appeal)
“(1) Appeals can concern only issues of law without any prejudice to the factual findings made by the court, as long as the appeal has been previously allowed in accordance with the following paragraphs:
(2) Within fifteen days from the filing of the judgment with the registry the unsuccessful party can request leave to appeal to the president. The president, by a reasoned decision authorizes the appeal exclusively if the case raises uncertainty in respect of the juridical issues determined or if such issues are of general importance.
(3) If the leave is denied, the applicant, within fourteen days from the denial of the president, can lodge a complaint with the Judge of Civil Appeals requesting leave to appeal.
...”
47. By a Decree of 10 September 2015 the president of the Court for Trusts, having regard to the domestic law concerning the procedure before it, and his previous [general] decree [on the functioning of the Court for Trusts] of 2 December 2014, established the criteria to determine the amount of the legal fees and the judges’ emoluments.
2. Law No. 145 of 30 October 2003
48. Section 6 of Law No. 145 of 30 October 2003 attributes the power to organise and distribute the workload of the courts to the Chief Justice. It reads, in so far as relevant, as follows:
Section 6
“...
(2) The Chief Justice has the power to organise and distribute the judicial workload according to pre-established criteria, as well as the duty to supervise (without interfering with the free decision making of each judge) and to co-ordinate and manage the judicial office, with the exception of merely administrative functions.
(3) The Chief Justice attributes the workload to first-instance civil judges, first-instance administrative judges and trainee judges in accordance with their professional competencies, experience and academic backgrounds (titoli). He shall also establish the criteria for the purpose of distributing the workload between the judges of appeal, with their agreement.
(4) The Judicial Council (Consiglio Giudiziario) approves the criteria drawn up by the Chief Justice for the workload’s distribution, during its following [available] session.
(5) First-instance judges [mentioned above] must fulfil on time the duties of their office and adapt to the orders given by the Chief Justice, save for any incompatibilities provided by law – any other possible function may be undertaken only in accordance with the needs of the office and upon authorisation of the Judicial Council in its ordinary session.
(6) The Chief Justice must submit to the parliament (Consiglio Grande e Generale), through the Secretary of State for Justice, an annual report concerning the state of justice, including details about the work carried out by magistrates and judges of every level ”.
3. Incompatibility, abstention and withdrawal of judges
49. Article 1 of the Law No. 145 of 30 October 2003, following amendment in 2011 reads, in so far as relevant, as follows:
“The courts are divided into the following sections, civil, criminal, administrative and protection of minors and family. First-instance judges are assigned to each section by the Chief Justice.
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...”
50. Point 2 of Part VI of the regulations on the distribution of work amongst single-judges 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.”
51. 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 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.”
52. 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.
4. Criminal Code
53. Article 359 of the Criminal Code reads as follows:
Article 359 (false oath)
“Whosoever, as a party in a civil proceedings, commits perjury, shall be punished by imprisonment of second degree”
5. “Suppletory oath”
54. A “suppletory oath” is a sworn oath that confirms a statement of fact. One of the parties may be requested to take such oath by the judge, who draws up a formula to this effect. The oath can be requested by means of an interlocutory discretionary decision of the judge in order to decide the case in the event that the facts had not been fully proved at the probative‑stage. According to domestic case-law and legal literature, a suppletory oath is admissible only in the case of a partial lack of evidence (semiplena probatio) and it has to be preferably requested of the party who had partially given evidence of his or her statement in the course of the proceedings. The factual findings which derive from the statements made under oath cannot be examined any further by the judge. Thus, the sworn statement of facts determines an unrebuttable presumption of truth (legal proof). According to the domestic doctrine, the only admissible ways to contrast the factual findings arising from the statements made under oath are: i) the declaration of falsity of the oath in criminal proceedings for false oath (Article 359 of the Criminal Code), ii) the submission of new evidence concerning facts of which the party had had knowledge after the taking of the oath or written evidence which would have been impossible to submit before (jactitation suit).
6. Contract of mandate
55. According to the domestic case-law, practice and legal literature the mandatary in a contract of mandate has the following obligations: i) carrying out the tasks set by the mandator, according to his or her instructions, ii) giving account of the operations carried out in execution of the mandate. The mandator can bring a direct action of mandate (“actio mandati diretta”) against the mandatory in order for the latter to give a detailed account of the operations carried out in the execution of the mandate as well as to obtain any sum of money due. Thus, in bringing such an action the mandator must give evidence of the existence of the contract and the mandatory must give account of the operations he had carried out (see, among other authorities, the judgment of 31 August 1949 of the Commissario della Legge in Giurisprudenza Sammarinese, 2, p. 230 and the, Schupfer, Il diritto delle obbligazioni in Italia nell’eta’ del Risorgimento, vol. 3 p. 15 and seq. and J. Voet, Commento alle Pandette, XVII, p. 750 and seq.).
7. Jactitation suit (“azione di iattanza” or “di accertamento negativo”)
56. According to the domestic case-law and legal literature a jactitation suit is a civil action afforded to the alleged victim of a slander. The aim of such an action is to obtain the declaration of the falsity of the statements made by the counterparty and “the cessation of the slander”. The interest in bringing proceedings exists if the alleged false statements of the defendant have damaged the reputation (buon nome), the status, the rights or the patrimony of the plaintiff. In the course of the civil proceedings the defendant has to demonstrate that his statements were true. If this burden of proof is not satisfied the judge declares the statements false (see, the judgment of the Commissario della Legge of 4 June 1966 in Giurisprudenza Sammarinese, 1964-1969, p. 316, in relation to the alleged falsity of a suppletory oath and the judgment of the Commissario della Legge of 25 August 1962 in Giurisprudenza Sammarinese, 1965, p. 196; See also G. Chiovenda, Azioni e sentenze di mero accertamento, in Rivista di diritto processuale, p. 33 and seq.).
COMPLAINTS
57. The applicant complains under Article 6 § 1 of the Convention that his right to a fair trial had been violated, since the judgment in the civil proceedings No. 300/2011 had been based on irrebuttable statements made by his counterparty under a “suppletory oath” contrary to the equality of arms principle.
58. The applicant further complains under Article 6 § 1 of the Convention that the composition of the Court for Trusts which decided his case had not been established by law – in so far as the law required decisions to be taken by a majority, while his panel was made up of two persons.
59. The applicant also complains under Article 6 § 1 that the president of the Court for Trusts and the Judge of Civil Appeals had been impartial. In particular, the president of the Court for Trusts (a member of the panel which had decided the case at first-instance) had also to decide whether or not to allow the applicant to appeal that same judgment, while judge L.F. had expressed his opinion twice on the same facts (the alleged falsity of the oath). The first time in his capacity of Judge of Criminal Appeals in the criminal case for false oath and slander, and the second time in his capacity of Judge of Civil Appeals deciding on the rejection of leave to appeal
60. The applicant further complains under Article 6 § 1 of the Convention that the denial of the leave to appeal had represented a denial of his right to a court. He argues that he had been made to pay legal costs which were not established by law.
61. Finally, invoking Article 1 of Protocol No. 1 to the Convention the applicant complains that the deprivation of his property, without him having the relevant procedural safeguards, and which was based on evidence which was later found to be false (in part) had been disproportionate and not adequately reasoned.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of his civil rights and obligations in accordance with Article 6 § 1 of the Convention? In particular, was the principle of equality of arms respected in the light of the application of the suppletory oath in the civil proceedings No. 300/2001? Is the decision of the judge to apply such oath subject to any guarantees capable of dispelling any doubt of arbitrariness?
2. Was the composition of the Court for Trusts established by law? In particular was it in accordance (and “compatible”) with the relevant laws which govern it? Was there a violation of Article 6 § 1 of the Convention as a result (see Buscarini v. San Marino (dec.), no. 31657/96, 4 May 2000)?
3. Was the court which dealt with the applicant’s case No. 2/2014 impartial, as required by Article 6 § 1 of the Convention? In particular, was the president of Court for Trusts that denied the applicant leave to appeal impartial, given that he had sat on the panel which gave the judgment in respect of which leave to appeal was being demanded? Secondly, was the Judge of Civil Appeals who confirmed the denial of leave to appeal, impartial, given that he had expressed his opinion in earlier proceedings? In connection with the former complaint, has the applicant exhausted effective domestic remedies, if any?
4. Did the applicant have an effective access to court as required by Article 6 § 1? In particular where the costs payable determined by a law which was of a sufficient quality? Was it precise and foreseeable? Were any restrictions on the applicant’s access to court justified and proportionate to any legitimate aim pursued?
5. Has there been a violation of Article 1 of Protocol No. 1? In particular did the the proceedings as a whole afford the applicant a reasonable opportunity of putting his case to the competent authorities with a view to enabling them to establish a fair balance between the conflicting interests at stake?
Full & Egal Universal Law Academy