Legal summary

December 2022

Gherardi Martiri v. San Marino - 35511/20

Judgment 15.12.2022 [Section I]

Article 1 of Protocol No. 1

Positive obligations

Article 1 para. 1 of Protocol No. 1

Peaceful enjoyment of possessions

Adequate criminal and civil remedies at applicant’s disposal for the protection of her property rights in relation to organised fraud suffered at the hands of a bank and third persons: no violation

Facts – In 2009 the applicant became aware that she had been defrauded by Banca Commerciale San Marinese S.p.A., (‘the bank’), some of its employees, and other persons. The matter was reported to the supervising authority for the banking and financial industry in San Marino (“BA”). The bank was put under extraordinary administration by the BA and. subsequently, ceded its relevant branch including its juridical rights and obligations to Asset Banca S.p.a. (“A.B. S.p.a.”).

In 2012 criminal proceedings were initiated following a complaint for fraud lodged by the applicant against the bank and other persons involved. The investigating judge ordered the discontinuation of these proceedings as they were time-barred, the statutory prescriptive period of three years for the offence of fraud having expired before the complaint was lodged. Although, on appeal the investigation was reopened, after further investigative steps, the original decision was confirmed.

A civil action brought by the applicant against the bank (no. 235/2015), some of its employees and A.B. S.p.a in parallel, was declared inadmissible as in the meantime A.B. S.p.a was put in administrative compulsory winding up and the applicant had claimed that all the defendants were jointly and severally liable. The applicant’s request to continue the proceedings, given that in the meantime the compulsory administrative winding up of A.B. S.p.a. had been declared to be illegal at first instance, was held to be inadmissible as an appeal was pending and thus the winding up procedures were still alive and listed on public registers. Subsequently the illegality of A.B. S.p.a.’s winding up was confirmed on appeal.

The applicant also brought an action (no. 254/2018) against A.B. S.p.a seeking the inclusion of monies she believed to be owed in the statement of liabilities compiled and filed by the liquidators of A.B. S.p.a., since the latter had failed to include her as a creditor. In the context of this action, which is still pending, the applicant claimed that the official bulletin published by the BA had been tampered with.

Law – Article 1 of Protocol No.1:

(a) Abuse of the right of petition – the Government argued that the application should be declared inadmissible for abuse of the right of petition on the basis of press articles alleged to be a “gratuitous attack” against San Marino and disclosing details of the confidential friendly settlement negotiations before the Court. Even assuming that the applicant had been responsible for the articles in question, while the intention to exert pressure could not be excluded, the information disclosed to the press had contained very little other than that which had already been publicly available. In particular, it had not revealed any details of any friendly-settlement negotiations, so as to be capable of prejudicing in any way the proceedings before the Court. Furthermore, although the articles had contained provocative expressions attacking the State and its institutions when discussing the present case, they had related to the latter’s actions which were the subject of these proceedings, and those remarks had not overstepped the acceptable limits to an extent that would have justified rejecting the application on that ground. Moreover the misleading information about the proceedings could have been the result of inadvertence or inexperience of court proceedings by the sources of the information.

Lastly, the articles had also contained uncalled for statements relating to the then Government Agent’s actions before the Court, including that he had been acting “in abuse of process”. While they might have been misunderstood or taken out of contacts, the strict facts which had been related by the press in relation to the Agent’s correspondence with the Court had not been untrue. It would have been inconsistent with the spirit of equality of the parties to consider an allegation that the Agent was acting in abuse of process as gratuitous, given that States had the possibility, without restriction, to argue that an application was inadmissible because an applicant had abused the right of individual petition. Thus, the comments made, and tactics of sensationalism used, in relation to the then Agent had not surpassed the degree of tolerance applicable in such cases.

Conclusion : preliminary objection dismissed (unanimously).

(b) Applicability – the possessions at issue related to the applicant’s assets held in the bank, of which she had been allegedly defrauded. Thus, Article 1 of Protocol No. 1 applied to the present case.

(c) Merits – The applicant had suffered significant losses as result of the bank, its employees and third persons. Although it was not for the State to bear civil liability for the unlawful actions committed by third parties, it had to ensure that the applicant’s property rights had been duly protected by law and that adequate remedies were available to her, including an effective criminal investigation and, if appropriate prosecution, given the criminal element in her case.

The Court did not find it necessary to assess the legislative framework as a whole as the applicant had not indicated any specific failures in the law at the relevant time. Further, while the BA might have had the relevant powers in law, it appeared that in practice, as supervisory authority, it had left much to be desired in relation to its actions in the present case. However, insufficient detail had been submitted in this connection and the Court would not speculate on the sequence of events in the present case, nor about the alleged tampering with the Official Bulletin and the consequences that might have had on creditors including the applicant.

The question to be determined was thus whether the applicant had had any remedial action to protect her property rights. She had been able to file a criminal complaint to have criminal proceedings opened against the alleged perpetrators. Despite dismissing those proceedings as being time-barred, the investigating judge had reached conclusions on the merits of the case. The case had been reopened as the appeal judge had considered that more thorough investigation had been necessary and that more serious crimes with a longer prescriptive period might have come to light. Subsequent investigative steps had been taken and the investigating judge’s conclusions had provided serious indications that a crime had been committed. However, as the crime had related solely to fraud, the original decision had been confirmed. Given that the criminal proceedings lodged by the applicant had been discontinued only because she herself had lodged the complaint once the time-limit had expired, it could not be said that the failure to bring those proceedings to a successful conclusion had been the result of flagrant and serious deficiencies in the authorities’ conduct. There had been a lack of diligence on her part in that, even accepting that she had only became aware of the impugned conduct in 2009, she had waited until 2012 to lodge her criminal complaint.

Furthermore, since the domestic law had not required a final conviction in criminal proceedings to claim damages in civil proceedings, the applicant had been able to pursue a civil action for damages against the bank and others involved. For reasons beyond her control, namely the winding up of A.B. S.p.a which had intervened in the meantime, her claim against it had become unactionable before the civil courts. However, if she had not sought joint liability, she would have been able to pursue her claim in respect of the other individual defendants. Moreover, it had not been argued that after the final decision on the illegality of A.B. S.p.a’s winding up the applicant would have been unable to lodge fresh proceedings against all the defendants or that such proceedings would be time-barred. In addition, she had been able to intervene in the liquidation proceedings, ask for her dues to be listed in the statement of liabilities and challenge that refusal by means of an objection. It was not for the Court to determine whether she had done so in a timely manner, given the allegations related to a manipulation of the publications of the Official Bulletin. Those arguments could have been (and had been) made before the court in the proceedings concerning the objections to the statement of liabilities and those proceedings could have satisfied her claims. Even though, they had come to nothing given that the decision to put A.B. S.p.a. in compulsory winding up had been annulled, the applicant could once again institute civil proceedings against the latter. It could not thus be established that a civil action for damages had not (had it been lodged otherwise) and would not have (if re-lodged or re-opened) constituted an appropriate means whereby the State could fulfil its positive obligations under Article 1 of Protocol No. 1. Accordingly, given the criminal and civil avenues which had been or still were open to the applicant, the State had discharged its positive obligations under that provision.

Conclusion: no violation (unanimously).

The Court also found, unanimously, a violation of Article 6 § 1 on account of the length of the ongoing civil proceedings - action no. 235/2015 being considered as concomitant to action no. 254/2018 (lasting at least seven years, at two levels of jurisdiction).

Article 41: EUR 4,000 in respect of non-pecuniary damage.

(See also Blumberga v. Latvia , 70930/01, 14 October 2008, Legal Summary ; Kotov v. Russia [GC], 54522/00, 3 April 2012, Legal Summary ; Zagrebačka banka d.d. v. Croatia , 39544/05, 12 December 2013)

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

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