DISSENTING OPINION OF JUDGE FELICI

1 . I respect the reasoning of the Chamber and the decision it has reached, with which – however – I do not agree. The reasons, which I will illustrate very briefly, concern both the application of the principles in force in this case and the interpretation given in general terms of the so-called second aspect of Article 6 § 2 of the Convention.

2 . The judgment (in paragraphs 48-54) contains an accurate overview of the principles established by the Court in relation to the second aspect of the protection afforded by the presumption of innocence. The main reference is to the Grand Chamber ’ s judgment in Allen v. United Kingdom ([GC], no. 25424/09, ECHR 2013).

The aim is to protect individuals who have been acquitted of a criminal charge, or in respect of whom criminal proceedings have been discontinued, from being treated by public officials and authorities as if they are in fact guilty of the offence charged. Without protection to ensure respect for the acquittal or the discontinuance decision in any other proceedings, the fair ‑ trial guarantees of Article 6 § 2 could risk becoming theoretical and illusory. Once the criminal proceedings have ended, what is also at stake is the person ’ s reputation and the way in which that person is perceived by the general public. The voicing of suspicions about the possible guilt of a defendant is no longer admissible once a final judgment of acquittal has been handed down; the right to be presumed innocent will be violated in cases concerning statements made after the discontinuance of criminal proceedings where, without the person previously having been proved guilty according to law and, in particular, without his having had an opportunity to exercise defence rights, a judicial decision concerning him reflects an opinion that he is guilty (see, inter alia , Minelli v. Switzerland , 25 March 1983, § 37, Series A no. 62). In cases concerning respect for the presumption of innocence, the language used by the decision ‑ maker will be of critical importance; but consideration has to be given also to the nature and context of the particular proceedings. Having regard to that nature and context, sometimes even the use of “unfortunate” language may not be decisive. The fact that exoneration from criminal liability ought to be respected in civil compensation proceedings should not preclude the establishment of civil liability to pay compensation arising out of the same facts on the basis of a less strict burden of proof: if the domestic decision on compensation were to contain a statement imputing criminal liability to the defendant, an issue falling within the ambit of Article 6 § 2 of the Convention would arise. Even the use of expressions from the sphere of criminal law has not led the Court to find a violation of the right to the presumption of innocence where, read in the context of the judgment as a whole, the use of the said expressions could not reasonably have been understood as an affirmation imputing criminal liability (see Fleischner v. Germany , no. 61985/12, §§ 64-65, 3 October 2019).

3 . In the present case, the applicant had been found guilty at first instance in proceedings in which he had fully participated and in which his defence rights had been secured (contrast Didu v. Romania , no. 34814/02, §§ 40-42, 14 April 2009; Giosakis v. Greece (no. 3), no. 5689/08, § 41, 3 May 2011; and G.I.E.M. S.R.L. and Others v. Italy [GC] , nos. 1828/06 and 2 others, §§ 317-318, 28 June 2018, where the Court found Article 6 § 2 of the Convention to have been breached by the fact that the appeal courts had quashed previous acquittals whereas they had at the same time found the proceedings to be statute-barred; see also Farzaliyev v. Azerbaijan , no. 29620/07, § 62, 28 May 2020). At second instance, the Judge of Criminal Appeals upheld the compensation order issued by the first-instance court which had sentenced the applicant. In respect of the charge of embezzlement, the judge stated that it had to be dropped as the proceedings were time-barred. He also stated that the applicant ’ s conduct could be characterised as the acts of misappropriation of funds with which he had been charged and that there was no doubt as to the existence of deliberate intent ( dolo ). To be precise, he held: “in that way, company S.M.I. [rather than the brokers] had suffered damage from the crime of embezzlement – such conduct indisputably had to be characterised as such, given that the patrimony of a company is distinct from the shareholder ’ s personal patrimony”; also finding that “the fact that the accused persons had appropriated those sums and had disposed of them as though they were their own had thus amounted to the acts of misappropriation of funds, i.e. the conduct with which they had been charged”; and lastly that “there was no doubt as to the existence of deliberate intent”.

4 . If the above principles are to be applied to the present case, it is my opinion that the most appropriate decision would be one in favour of no violation.

5 . First of all, it must be considered that, following a first-instance finding of guilt, the applicant opted to raise the objection that the relevant charges were time-barred and thus waived his right to defend himself on the merits of those charges at the appeal stage. More importantly, the applicant chose to take that approach, even though he, or his legal representative, was or should have been aware that under domestic law, a judge would not be able to declare a charge statute-barred if the judge was of the view that the accused was innocent of that charge (see paragraph 24 of the judgment). In consequence, having regard to the domestic law as it stood, the applicant was or should have been aware that in order to uphold his plea that the proceedings were statute-barred (owing to the expiry of a limitation period), the judge would have had to consider the possibility that he was not innocent, and thus that the judge would explicitly raise a suspicion as to his guilt. In choosing to proceed with that plea of his own free will, the applicant was thus prepared to cast doubt on his innocence, in so far as it enabled him to avoid punishment. In this connection, the Court recognises that, in the context of any criminal proceedings, decisions must be made as to how best to present an accused ’ s defence at trial. In many cases several options will be available and it is the responsibility of the accused to select, with the advice of counsel, the defence which he wishes to put before the court (see Ebanks v. the United Kingdom , no. 36822/06, § 82, 26 January 2010). However, he or she must then assume the consequences of those choices. This is an element which characterises both the context and the nature of the proceedings in the light of the specificities of the domestic legal framework. It is the applicant who consciously chose not to have the criminal charge against him examined on the merits, even though this would have allowed the applicant, if his guilt was unproven, to avoid any considerations of a civil nature.

6 . In such cases, where proceedings are discontinued following a first-instance judgment finding guilt, and within which the accused ’ s defence rights have been respected, a mere voicing of suspicions may be conceivable and would not necessarily raise an issue under Article 6 § 2.

7 . A close analysis of the words used in the judgment by the Judge of Criminal Appeals shows that he never explicitly stated that the applicant was guilty of the crime of embezzlement, but rather asserted that the applicant had materially behaved in the manner alleged in the indictment. In particular, the statement according to which S.M.I. had sustained damage from the crime of embezzlement must be read in the whole context of the reasoning, from which it can clearly be seen that the Judge intended to underline the distinction between the assets of the company and those of the shareholder, in order to affirm the prohibition on embezzlement by the latter of the company ’ s assets. Thus the misappropriation was the material part of the charge, and the Judge referred exclusively to it when he mentioned “the conduct of which they [the applicant and Mr. B, a co-accused in the domestic proceedings] had been charged”. In other words, there is no clear and indisputable statement that attributes criminal liability in the full sense of the term to Mr Pasquini .

8 . As mentioned above, the Court ’ s case-law considers that such statements have to be seen in their context. Indeed, the statements were made by the Judge of Criminal Appeals in his examination of the facts, and in particular of the conduct at issue, solely for the purposes of determining the applicant ’ s civil liability and not his criminal liability.

9 . In the specific circumstances of the present case, and particularly in view of the relations between S.M.I. and the applicant at the time of the impugned conduct (at the material time the applicant was the chairman of company S.M.I.) it was difficult to determine the applicant ’ s civil liability for the damage sustained by S.M.I. without determining that his actions were likely, at least to the degree necessary in civil proceedings, to constitute misappropriation of funds; indeed, because of this misappropriation, the damage in question existed .

10 . In reality, under domestic law, the judge had to examine the conduct imputed to the applicant, in so far as that was necessary or useful to determine his civil liability, but the examination did not require a finding of guilt. More importantly, under domestic law, compensation for civil damage is provided for by the actio ex lege Aquilia . The actio provides compensation for damage that the plaintiff claims to have suffered as a result of unlawful behaviour by the defendant. The subjective elements of this action are deliberate intent ( dolo ) or negligence ( colpa ), which must exist together with the causal link between the event and the conduct of the injuring party ( damnum and iniuria ). It is therefore the duty of the judge whose role it is to assess the existence of such liability to ascertain the mental attitude of the defendant (the subjective element), which can be either deliberate intent or negligence. In the present case, therefore, an assessment of the mental attitude of the applicant (as defendant), was in any event necessary to establish the existence or not of his civil liability.

This does not consist in a new position; indeed, civil liability also, even though levissima culpa venit , rarely takes the form of merely objective liability. In the present case, therefore, it was up to the judge to establish whether the action that caused the damage stemmed from a mental attitude, be it negligence or wilful misconduct ( dolo ). The above-mentioned legal framework does not dispense the respondent State, and specifically the courts ruling on the matter, from respecting the rights arising under Article 6 § 2 of the Convention. Thus the Court must nevertheless assess the language used by the decision-maker, which is of critical importance in assessing the compatibility of the decision and its reasoning with Article 6 § 2. However, it should do so bearing in mind the relevant context and the requirements imposed by the domestic law, as well as the fact that the civil determination was being made in the same proceedings as those brought to determine criminal liability.

11 . Firstly, in deciding on the civil claim, the judge found that S.M.I. had sustained damage as a result of the offence of embezzlement and that the impugned conduct had clearly amounted to the acts of misappropriation of funds with which the applicant had been charged (the objective element). It also excluded any good faith on the part of the applicant, holding that there had been the necessary dolo (subjective element). While relevant to an assessment of criminal liability, both these elements also had a direct incidence on the assessment of civil liability, and were therefore part of the normal exercise of the judge ’ s duty to determine both the existence of civil liability and the amount of the damages due (the an and quantum ). Further, the Judge of Criminal Appeals never examined the applicant ’ s guilt for the offence of embezzlement and never ruled that the applicant was guilty (see above, paragraph 7). Moreover, in his conclusion, the Judge of Criminal Appeals explicitly held that while the relevant criminal charges (including embezzlement) had to be discontinued as being time-barred, the civil claims upheld in the first-instance judgment, by which the applicant had been sentenced, had to be maintained. It follows that, when reading the appellate judgment in its entirety, there is no doubt that the applicant was not declared guilty, but that he was nevertheless held civilly liable for the damage sustained by S.M.I. based on the considerations made by the Judge of Criminal Appeals. This particular context in the present case is a central element in making a correct assessment of the measure, which as a whole does not contain any finding of guilt. In particular, it should be stressed that the finding of dolo does not contain any reference to criminal liability: the judge is referring, in fact, to “deliberate intent” and not to “criminal intent”.

12 . The reading of the judgment does not affect the public ’ s perception of the applicant ’ s reputation, namely that of a person who was charged with acts of embezzlement in proceedings that have since been declared statute-barred and who is required to compensate for the damage caused by the misappropriation of funds belonging to others. From this standpoint, the close proximity and concomitance of the two outcomes – declaration of statute-barred proceedings, and award of damages for the same acts – constitute a guarantee that no one should be led to believe that the applicant was found guilty under the criminal law. The representation of the applicant resulting from the judgment is that determined by the reality of the case: a person who has not been declared criminally liable because the charge became time-barred during the proceedings, and who has been sentenced to pay compensation for damage resulting from the misappropriation of which he was accused.

13 . It is necessary to reiterate, in this connection, that if the mere finding of liability for payment of damages, in spite of an acquittal or discontinuance, were to raise an issue under Article 6 § 2, one would have to abolish such civil liability actions, which are in fact present and common in many judicial systems and which are in principle compatible with the Convention, as evidenced by case-law (see, mutatis mutandis , Vella v. Malta , no. 69122/10, § 60, 11 February 2014).

14 . In the present judgment, the Chamber refers repeatedly to the case of Fleischner ( cited above ). In that case the charges against the applicant were also time-barred. In subsequent civil proceedings, however, the civil judge stated that the applicant ’ s actions had “fulfilled the constitutive elements of deprivation of liberty under Article 239 of the Criminal Code and of coercion under Article 240 of the Criminal Code”. The judgment goes on to establish that: “this was not a statement about the applicant ’ s guilt”, explaining that “[t]he District Court [had] deliberately used the technical legal term ‘ constitutive elements ’ ( Tatbestand ) to make it clear that it had solely assessed certain elements of a penal provision that could be the basis for both criminal and civil liability. It [had] limited itself to that finding and [had] not expressly [found] that the applicant had committed the offences” (ibid., § 63). The judgment then underlines the fact that the civil claim had not been brought in the criminal proceedings, but separately and subsequently before another judge. It will be difficult for national judicial authorities in general to understand the reason why a direct statement relating to the fulfilment of the elements – objective and subjective – of the offence should not be equated with the statements made in the judgment of the Judge of Criminal Appeals; there being no direct statement of criminal liability in the judgment of the latter either (as explained above in paragraph 7). The act of embezzlement, and the existence of a certain mental attitude, are constitutive elements of both civil and criminal liability also in the San Marino system (as explained above in paragraph 10). Even the Judge of Criminal Appeals confined himself to saying that the applicant misappropriated the sums (as is clear from the subsequent reference to the need to distinguish between the assets of the company and those of the shareholder; see paragraph 3 above), and to ascertaining his mental attitude in doing so, without any criminal characterisation (“deliberate intent”, not “criminal intent”). There was no reasoning suggesting that the court regarded the accused as “guilty” (see Bikas v. Germany , no. 76607/13 , 25 January 2018). The claim for civil relief and the related assessment were actually part of the same criminal proceedings. However, as mentioned in paragraph 12 above, this circumstance can rather be regarded as an element that reinforces the impression that the applicant did not commit any crime, precisely because at the same time, and alongside the civil award of damages, the discontinuance of the criminal proceedings was established. Paragraph 62 of the judgment states that “[ i ]n other words, the Judge of Criminal Appeals did not only determine the actus reus but went further and stated that the applicant ’ s acts were made with the requisite mens rea – which in this case he considered to be dolo ”. The same thing can be found in paragraph 63 of the Fleischner judgment (cited above), where it refers to “constitutive elements ” in the plural. Therefore, the objective element, with the subjective element ( Tatbestand , in San Marino law fattispecie ), are insufficient to entail criminal guilt in both cases. The assessment as to a violation of the presumption of innocence principle should perhaps consider whether the judgment in question imputes criminal liability in a more global, less sophisticated, way. The impact on a person ’ s reputation and public perception are the most important elements, which the Court ’ s jurisprudence has long identified, in this connection. In the light of the above, in my opinion, the present judgment appears not to be completely consistent with the Court ’ s previous case-law.

15 . From a general point of view, therefore, the type of mental attitude held by the injuring party, already at a purely logical level, does not constitute a neutral circumstance with respect to the existence and quantification of the non-pecuniary damage. The consequences for the injured party, from this perspective, change significantly if the damage was inflicted with the will to cause damage or as a result of mere negligence. For example, the moral impact and suffering caused by a deliberate punch to a person ’ s face will be different if the same blow comes from a sudden and involuntary movement. It is therefore relevant, also for the civil judge, to carry out an assessment, even a detailed one, of the defendant ’ s mental attitude.

16 . It is also necessary to take into account the fact that the laws of some countries – see, for example, the combined provisions of Article 2059 of the Italian Civil Code and Article 185 of the Italian Criminal Code – provide that non-pecuniary damage can be compensated for only where the commission of a criminal offence is established. In such cases, the civil judge is not only entitled to ascertain the existence of the crime, but must do so every time criminal proceedings have not taken place, as well as when they have not reached a decision on the merits. It is important for the judge also to rule on this latter aspect. The civil judge can legitimately, in my opinion, and without incurring any violation of Article 6 § 2, establish, while respecting certain procedural safeguards, that a person has committed or has not committed a criminal offence, in order to decide – among other things – on the existence of, and compensation for, the damage deriving from that offence. This is a conclusion that does not appear to be in contrast with what was established by the Grand Chamber in the Allen case (cited above) – which does not contain any prohibition for the civil judge to proceed with a verification of the existence of the offence as such – but one on which there does not seem to be a clear position in the Court ’ s jurisprudence, which tends rather towards a very detailed assessment of the language used.