Communicated on 4 September 2017

FIRST SECTION

Application no. 23349/17 Enrico Maria PASQUINI against San Marino lodged on 20 March 2017

SUBJECT MATTER OF THE CASE

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 and Mrs L. Conti, lawyers practising in Naples and Borgo Maggiore, respectively.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The first instance proceedings

On an unspecified date criminal proceedings were instituted against the applicant (at the material time director of company S.M.I., a fiduciary company operating in San Marino) and another accused, inter alia , for the continuing offence of aggravated embezzlement. According to the prosecution, the applicant, between April 2009 and 10 March 2010, had embezzled 2,633,055.77 euros (EUR) from a fiduciary account opened with company S.M.I by a named company.

On an unspecified date, company S.M.I., which in the meantime had been put under compulsory liquidation ( liquidazione coatta amministrativa ), joined the criminal proceedings as a civil party.

By a judgment of 8 April 2014 the first-instance judge ( Commissario della Legge Decidente ) found the applicant guilty of the offence charged and, inter alia , sentenced him to compensate company S.M.I. by paying to it a sum of money to be quantified in separate civil proceedings. The judge, however, issued an interim compensation order ( provvisionale ) of EUR 2,633,055.77.

2. The appeal proceedings and the proceedings before the constitutional court

The applicant appealed arguing, inter alia , that the prescriptive (limitation) period of the offence of embezzlement as provided by the relevant law had already expired.

By a decision of 1 December 2015 the Judge of Criminal Appeals ( Giudice d ’ Appello Penale ) acknowledged that the limitation period for the offence of embezzlement had expired. However the judge, of his own motion, referred the question of t he constitutionality of Article 196 of the Code of Criminal Procedure (concerning the jurisdiction of the judge of appeal – see relevant domestic law below) to the Constitutional Court ( Collegio Garante della Costituzionalita ’ delle Norme ). In the opinion of the judge, the latter provision was in contrast with Article 15 §§ 1, 2, and 3 of the San Marino Fundamental Human Rights Charter and with Article 6 § 1 of the Convention since it failed to provide that, in the case that an offence had become time-barred, the judge of appeal could nevertheless decide on the merits of the civil claims concerning compensation and restitution (to the civil party). According to the judge such a lacuna was in contrast with the principles of reasonable duration of proceedings and procedural economy and with the rights of defence of a civil party.

On 27 December 2015 Law No. 189 of 22 December 2015 entered into force. It introduced Article 196 bis of the Code of Criminal Procedure which provided that the judge of appeal, declaring an offence time ‑ barred could nevertheless decide on the civil obligations deriving from that offence.

By a Judgment of 26 January 2016 the Constitutional Court ordered the restitution of the case file to the Judge of Criminal Appeals, in order for the latter to decide whether, in his opinion, in the light of the above-mentioned new law, the reasons for the constitutional complaint against Article 196 of the Code of Criminal Procedure still existed.

In an oral hearing of 27 June 2016 the parties to the criminal proceedings made their oral submissions. The applicant, argued, inter alia , that the new law had a substantive nature and not a procedural one, thus it could not be applied to facts committed prior to its entry into force.

By a judgment of 19 September 2016, published on 22 September 2016, the Judge of Criminal Appeals ruled that the offence of aggravated embezzlement was time-barred. Thus, the judge dismissed this charge ( non doversi procedere per intervenuta prescrizione ). N evertheless, relying on Article 196 bis of the Code of Criminal Procedure, the judge upheld the in terim compensation order of EUR 2,633,055.77 as well as the ruling that the applicant had to pay a sum of money to be quantified in separate civil proceedings on “the premise ( presupposto ) of the (applicant ’ s) criminal responsibility”. The judge rejected the applicant ’ s argument that the new provision could not be applied in the case at hand. In the judge ’ s view, the new provision had a clear procedural nature since it provided the judge with the power to deliberate on the compensation of damages deriving from an offence. Thus, on the basis of the tempus regit actum principle, the new provision had to be applied in all the proceedings which were ongoing on the date of its entry into force. According to the judge, at most, a doubt could arise as to the applicability of the new provision in proceedings in which the oral hearing had already taken place before the entry into force of the new law (which was not the case at hand). In connection with the compensation order, the judge held that the applicant ’ s behaviour amounted to acts of embezzlement and that there was no doubt as to the existence of the subjective element ( dolo ).

3. The execution of the judgment in Italy

By an ex-parte decision of 24 November 2016 the Court of Appeal ( Corte d ’ Appello ) of Rome declared the judgments of the first-instance judge and of the Judge of Criminal Appeals immediately enforceable in Italy.

On 10 January 2017 the applicant was served with an injunction to pay ( atto di precetto ) EUR 2,633,005.77 to company S.M.I.

B. Relevant domestic law

1. San Marino Fundamental Human Rights Charter

Article 15 of Law No. 59 of 8 July 1974, as amended by Law No 36 of 26 February 2002, reads, in so far as relevant, as follows:

“The judicial protection ( tutela giurisdizionale ) of subjective rights ( diritti soggettivi ) and legitimate interests ( interessi legittimi ) is guaranteed before the organs of the ordinary and administrative jurisdictions and before the constitutional court ( Collegio Garante della Costituzionalita ’ delle Norme ).

The right of defence is guaranteed in every phase of the proceedings.

The law guarantees the reasonable duration, procedural economy, publicity and independence of proceedings.

...”

2. Code of Criminal Procedure

Article 196 of the Code of Criminal Procedure reads, in so far as relevant, as follows:

Article 196

“A judge of appeal is competent to decide only on the parts of the [first-instance] judgment to which the pleas put forward refer.”

According to established domestic case-law (before the entry into force of Article 196 bis , see below) in the case that an offence had become time ‑ barred during appeal, all the parts of a first-instance judgment concerning the civil effects (see Article 140 below) deriving from the finding of the accused ’ s criminal responsibility at first instance, were to be revoked ( caducazione ). Thus, a Judge of Criminal Appeals could not deliberate on the civil effects deriving from a time-barred offence (see, among other authorities, the judgments of the Judge of Criminal Appeals of 11 J uly 1994, 13 September 1994, 12 January 1995, 30 November 1995, 30 J uly 1997, 8 Au gust 1997, 18 February 1998, 16 June 1999, 23 August 2000).

Article 196 bis of the Code of Criminal Procedure, introduced by Article 78 of Law No. 189 of 22 December 2015 reads as follows:

Article 196 bis

“When an accused person has been sentenced to restitute items or to pay to a civil party compensation for damages caused by an offence - even if the damages are yet to be quantified - the judge of appeal, who declares the offence time-barred, shall decide on the pleas concerning the obligations deriving from the offence, in accordance with Article 140 of the Criminal Code.”

3. Criminal Code

Articles 54, 59 and 140 of the Criminal Code read, in so far as relevant, 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...”

Article 59

“At every stage of the proceedings and level of jurisdiction the judge shall apply amnesty or prescription, unless it is already established that the alleged facts had never occurred ( il fatto non sussiste ), that the accused had not committed them, or that the alleged facts did not constitute a crime, in which cases the judge must acquit the accused by the prescribed formula.”

Article 140

“A convicted person is responsible with his or her present and future assets for the following obligations:

(2) the compensation of physical and moral, material or non-material damages and the restitution of the items which he had misappropriated or taken possession of.

...”

COMPLAINT

The applicant complains under Article 6 § 2 of the Convention about a violation of the presumption of innocence, in so far as in the absence of a finding of guilt, the judgment nevertheless reflected the judge ’ s convincement as to his guilt. Moreover, he was made to pay damages based precisely on this declaration of criminal responsibility without this having been ascertained in the criminal proceedings.

QUESTION TO THE PARTIES

Was the presumption of innocen ce, guaranteed by Article 6 § 2 of the Convention, respected in the present case, in particular given the statements made by the Judge of Criminal Appeals ?