Resolution ResDH (2004)3

concerning the judgment of the European Court of Human Rights of 25 July 2000 in the case of Tierce and others against San Marino

(Adopted by the Committee of Ministers on 24 February 2004 at the 871st meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter referred to as “the Convention”),

Having regard to the final judgment of the European Court of Human Rights in the case of Tierce and others delivered on 25 July 2000 and transmitted the same day to the Committee of Ministers under Article 46 of the Convention;

Recalling that the case originated in three applications (Nos. 24954/94, 24971/94 and 24972/94) against San Marino, lodged with the European Commission of Human Rights on 17 May and 9 February 1994 under former Article 25 of the Co n vention by Mr Jean-Marc Tierce, a French national, and by Mr Roberto Marra and Ms Paola Gabrielli , two Italian nationals, and that the Commission declared admissible the complaints relating to the unfairness of certain criminal proceedings;

Recalling that the first application was brought before the Court by the Commission and the government of the respondent state on 2 and 27 November 1998 respectively and the two other applications on 8 and 9 March 1999 respectively;

Whereas in its judgment of 25 July 2000 the Court unanimously:

- held that there had been a violation of Article 6, paragraph 1, of the Convention regarding Mr Tierce as the double function – as investigating and trial judge - of the Commissario della Legge and the wide-ranging extent of his investigative powers could objectively cast doubt on his impartiality;

- held that there had been a violation of Article 6, paragraph 1, of the Convention as regards the three applicants in that they could not be heard in person by the appellate judge;

- held

a) that the government of the respondent state was to pay the first applicant, within three months, 12 000 000 Italian lire in respect of non-pecuniary damage;

b) that the government of the respondent state was to pay the second and the third applicants, within three months, 10 000 000 Italian lire each in respect of non-pecuniary damage;

c) that the government of the respondent state was to pay the three applicants, within three months,

the overall sum of 15 000 000 Italian lire in respect of costs and expenses, together with any value-added tax that may be chargeable;

d) that simple interest at an annual rate of 2,5% would be payable on those sums from the expiry of the above-mentioned three months until settlement;

- dismissed the remainder of the applicants’ claim for just satisfa c tion;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the mea s ures which had been taken in consequence of the judgment of 25 July 2000, having regard to San Marino’s obligation under Article 46, paragraph 1, of the Conve n tion to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken and the means available to the applicants under San Marino law in order to erase, as far as possible, the consequences for them of the impugned proceedings and about the measures taken in order to prevent new violations of the same kind as those found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that on 25 October 2000,  within the time-limit set, the government of the respondent state had paid the a p plicants the sums provided for in the judgment of 25 July 2000,

Declares, after having taken note of the information supplied by the Government of San Marino, and having noted that the outcome of the procedure contested by the Court in the Tierce case does not prejudge the outcome of the pending civil procedure for damages or the maintaining of the seizure of assets ordered for the purposes of this procedure, that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case.

Appendix to Resolution ResDH (2004)3

Information provided by the Government of San Marino during the examination of the Tierce and others case by the Committee of Ministers

With regard to the individual measures , the Government points out, that the two Italian applicants, Mr Marra and Ms Gabrielli , given prison sentences in 1993 of one year and two months and 10 months respectively, have submitted to the Committee of Ministers no request for, or information concerning, reparation for any consequences of the convictions.

As regards Mr Tierce, the government recalls that the applicant has never been deprived of his liberty (in 1993 he received a suspended sentence of one year’s imprisonment) and that all remaining consequences of the conviction at issue have been erased by a Court decree delivered on 31 October 2002, which effectively “cancelled” the crime. Accordingly, the reference to the conviction which was in violation of the Convention was removed from Mr Tierce’s record and he is no longer barred from running a company. The “historical” criminal record, used solely by the judicial authorities, also mentions that the crime has been cancelled. The government recalls that at the end of 2002 Mr Tierce introduced a request for rehabilitation before the Parliament ( Consiglio Grande e Generale ).

With regard to the assets seised at the request of Mr Tierce’s former associate, such seizure is solely part of the civil procedure for damages initiated by the applicant’s former associate, still pending before the civil national courts. The courts in question are not bound by the findings of the criminal procedure. Accordingly, this is a matter totally unrelated to the complaints at issue in the present case.  Furthermore, the closure of the present case by the Committee does not prejudge the outcome of the procedure pending before the national courts nor the outcome of any new application filed before the European Court.

With regard to the general measures , in order to inform the public and to ensure that the courts will be able to give a direct effect to the requirements emerging from the Tierce judgment in implementing San Marino law, this judgment has been published on 6 October 2000 by posting the whole text in Italian, French and English on the doors of the Public Palace ( ad valvas palatii ) – as is traditionally done in San Marino for all important official information (such as new laws, etc.) – in order to enable anybody to obtain, upon request, a copy of the judgment.

As regards the appeal procedure, a new law adopted on 27 June 2003 amended Article 198, paragraph 2, of the Code of Criminal Procedure, as amended by Law No. 20 of 24 February 2000, by explicitly confirming the possibility, already recognised in practice by the case-law, for an accused to be heard in person, if he or she so requests, by the court during the public appeal hearing.

In addition, the possibility for a combination of functions by the Commissario della Legge was abolished by Law No. 83 of 1992 on the administration of justice which applies until the entry into force of a new Code of Criminal Procedure. In this connection, the parliamentary committee working on the draft code has ruled out the possibility of combining investigation and judgment functions, in accordance with the case-law of the European Court, and the San Marino authorities undertake not to reintroduce such a combination of functions in the new Code of Criminal Procedure.

Laws Nos. 144 and 145 of 30 October 2003 (concerning the organisation of the judiciary system) have not modified the legislative provisions prohibiting the combination of judicial functions and providing for the right of accused persons to be personally heard by the deciding judge in first instance and appeal proceedings.

The Government concludes that these individual and general measures provide reparation for the applicant, that they prevent the risk of new violations similar to those found in the present case and that, accordingly, the Republic of San Marino has, in the instant case, fulfilled its obligations under Article 46.

* * *

In addition, the government draws the attention to the fact that further to Recommendation R(2000)2 by the Committee of Ministers to member states on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights, on 27 June 2003 the San Marino Parliament ( Consiglio Grande e Generale ) passed a law which makes it possible to reopen  criminal proceedings in which the European Court of Human Rights has found a violation of the Convention before national courts.