Information Note on the Court’s case-law 20

July 2000

Tierce and Others v. San Marino - 24954/94, 24971/94 and 24972/94

Judgment 25.7.2000 [Section I]

Article 6

Criminal proceedings

Article 6-1

Public hearing

Oral hearing

Absence of oral hearing on appeal: violation

Impartial tribunal

Cumulation of functions – Commissario della Legge : violation

Facts : In 1990 the first applicant’s business associate filed a compl aint against the first applicant, whom he accused of irregularities in the management of their company. A Commissario della Legge investigated the matter; he heard each of the two parties in the other’s presence, ordered an expert inquiry into the manageme nt of the company and authorised the attachment of a number of the applicant’s assets to prevent him disposing of them. Two vehicles covered by the attachment order could not be found and a further complaint of misappropriation of assets covered by an atta chment order was filed by the applicant’s business associate against the applicant; the vehicles were eventually found, on the basis of information received from the applicant. In 1992 the applicant was committed for trial for fraud and misappropriation of attached assets before the same Commissario della Legge , sitting as a judge in the summary procedure applied to the case. The applicant was found guilty by the Commissario della Legge , who imposed a suspended prison sentence and ordered him to pay a fine. The applicant appealed. Without holding a hearing, and relying on the documents relating to the investigation at first instance placed in the file for the appeal by the same Commissario della Legge , the appellate court rejected the applicant’s grounds of appeal and remitted the procedural documents to the Commissario della Legge for verification of the applicant’s responsibility for misappropriating another vehicle covered by an attachment order. The San Marino judicial system makes no provision for a cass ation appeal. The other two applicants were both arrested while in possession of drugs. The Commissario della Legge confirmed their arrest, questioned them and then charged them with possession of and trafficking in drugs (the second applicant was also accused of illegal possession of a firearm) and summoned them to appear for trial. The Commissario della Legge convict ed the second applicant of possession of drugs and acquitted the third applicant for lack of evidence. The second and third applicants appealed against that decision. The Procuratore del Fisco also appealed and argued that both applicants should have been found guilty of being in possession of drugs with intent to deal. The second applicant requested the appellate court to raise a question on the constitutional legitimacy of the absence of a public hearing on appeal during which the accused could give evide nce in person to the appellate court. Without holding a hearing, and on the basis of the documents relating to the investigation at first instance placed in the file for the appeal, the appellate court convicted both applicants and held that the question o f constitutional legitimacy was unfounded.

Law : Article 6 § 1 – 1. Independence of the Commissario della Legge – The first applicant’s fears concerning the objective impartiality of the Commissario della Legge related to the combination of his roles as investigating judge, trial judge at first instance and judge responsible for preparing the appeal. For more than two years the Commissario della Legge conducted very thorough investigations into the first applica nt’s affairs, including repeated questioning of the applicant, the complainant and witnesses, ordering expert inquiries and questioning the expert and making orders for attachment of the applicant’s assets. The Commissario della Legge thus made very extens ive use of his powers as investigating judge. He then committed the applicant for trial and convicted him. Consequently, the applicant’s concerns regarding the impartiality of the Commissario della Legge could be regarded as justified from an objective sta ndpoint. In the light of that conclusion, the Court did not consider whether the applicant’s fears concerning the fact that the Commissario della Legge had then prepared the file for the appeal were also well founded.

Conclusion : violation (unanimously).

2 . Hearing on appeal – In San Marino the appellate court has jurisdiction to deal with points of fact and of law. There is no public hearing before that court. Under the Code of Criminal Procedure, an investigative hearing may be held in the course of the a ppeal if the appellate court considers that further investigations are necessary, but the hearing is before the Commissario della Legge , who is responsible for investigations on appeal. There was no such investigative hearing either in the first applicant’ s case or in the second and third applicants’ case. Had such a hearing taken place, it would not have been before the appellate court and the applicants would therefore not have been able to plead their case before that court. In both cases the appellate c ourt was required to deal with facts and law in order to ascertain the applicants’ guilt. In the first applicant’s case the court considered the legal classification of the applicant’s conduct. In the case against the other two applicants the appellate cou rt had to evaluate the testimony of both applicants before the court of first instance without directly questioning them. The second applicant’s conviction was aggravated by the fact that he intended to deal in the drugs in his possession and the third app licant was convicted although he had been acquitted at first instance. In both cases it was necessary to hear the applicants directly in their appeals. All in all, the role of the appellate court and the nature of the questions submitted to it lead to the conclusion that there was no special feature of the procedure that could justify refusing the applicants a hearing in public on appeal which they could attend and at which they could give evidence in person.

Conclusion : violation (unanimously).

Article 41 – The Court awarded 12,000,000 ITL to the first applicant and 10,000,000 ITL to each of the other two applicants in respect of non-pecuniary damage. It also awarded the three applicants 15,000,000 in respect of costs and expenses.

© Council of Europe/Euro pean Court of Human Rights This summary by the Registry does not bind the Court.

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