PARTLY DISSENTING, PARTLY CONCURRING OPINION OF JUDGES WOJTYCZEK, EICKE AND ILIEVSKI

Introduction

1 . Unfortunately, for the reasons set out below, we are unable to agree with the conclusion of the majority set out in paragraph 1 of the operative part of the judgment that the a pplicant ’ s complaints under Article 6 § 1 of the Convention in relation to the tribunal established by law requirement, the impartiality of Judge L.F. and the access to court requirement in the light of the costs are admissible. The majority having, however, decided that these aspects of the applicant ’ s complaint are admissible, we agree that there has been no violation of Article 6 § 1 in the present case.

Piercing the corporate veil

2 . At the heart of the present case are various proceedings before the courts of San Marino arising out of (a) a contract in the form of a fiduciary management mandate concluded on 2 March 1988 between a private individual, B . (acting through his agent Z . ), and a fiduciary company, S.M.I. It appears that the purpose of that contract was for S.M.I. to carry out fiduciary operations concerning securities listed on the Italian Stock Exchange. These operations appear to have included the purchase of (further) shares by means of separate contracts concluded by S.M.I. acting for and on behalf of B.

3 . It was in connection with one of these share purchase contracts concluded by S.M.I. on 20 March 1990 for and on behalf of B . , that B . brought civil proceedings against S.M.I. for (so it appears) breach of fiduciary duty, seeking damages of LIT 9,035 ,264,332 (civil proceedings no. 300/2001). As the judgment records, in these proceedings, S.M.I. was “represented by its legal representative and director (the applicant)” (§ 12).

4 . However, in so far as the present complaint relates to those civil proceedings (no . 300/2001), our first difficulty arises from the fact that the applicant before this Court is not the company S.M.I. but rather the applicant is Mr Enrico Maria Pasquini , who is described in the judgment as having “owned the entire share capital” of S.M.I. (§ 7) as well as having been, at the relevant time, “its legal representative and director” (§ 11).

5 . While the majority concluded (and we agree) that the complaint in relation to these civil proceedings has been lodged outside the period of six months from the date on which the final decision w as taken as required by Article 35 § 1 of the Convention, it would have been preferable to reject this complaint for want of “victim” status under Article 34 of the Convention. After all, not only is the question of the required “victim” status a necessarily prior question going to the Court ’ s jurisdiction ratione personae but, in the circumstances of this case, the absence of “victim” status in relation to the civil proceedings, for the reasons set out below, also informs the admissibility of his complaints in relation to the proceedings before the Court of Trusts.

6 . The majority does not address this issue directly but appears to have assumed that, in the circumstances of this case, it was appropriate for the Court to “pierce the corporate veil” and to treat the applicant, Mr Pasquini , as if he had been a party to the proceedings before the Civil Court and/or that those proceedings were capable of determining his civil rights and obligations rather than those of th e separate legal person, S.M.I.

7 . We profoundly disagree with such an approach.

8 . As the Court has consistently made clear that:

“ ... the piercing of the "corporate veil" or the disregarding of a company ’ s legal personality will be justified only in exceptional circumstances, in particular where it is clearly established that it is impossible for the company to apply to the Convention institutions through the organs set up under its articles of incorporation or - in the event of liquidation - through its liquidators. The Supreme Courts of certain member States of the Council of Europe have taken the same line. This principle has also been confirmed with regard to the diplomatic protection of companies by the International Court of Justice ( Barcelona Traction, Light and Power Company Limited , judgment of 5 February 1970, Reports of judgments, advisor y opinions and orders 1970, pp. 39 and 41, paras. 56 ‑ 58 an d 66). ” ( Agrotexim and Others v. Greece , 24 October 1995, § 66, Series A no. 330 ‑ A; see also Hubert Ankarcrona v . Sweden , ( dec. ), no. 35178/97, 27 June 2000 and Gubiyev v. Russia , no. 29309/03 , § 53, 1 9 July 2011)

9 . While the Court has accepted in the past for the purposes of victim status that the “exceptional circumstances” envisaged in Agrotexim may exist when a sole owner and shareholder brings an application complaining of acts directly affecting the company ( Hubert Ankarcrona v. Sweden ), the Court, in Agrotexim itself, explained the need for caution thus:

“ ... It is a perfectly normal occurrence in the life of a limited company for there to be differences of opinion among its shareholders or between its shareholders and its board of directors as to the reality of an infringement of the right to the peaceful enjoyment of the company ’ s possessions or concerning the most appropriate way of reacting to such an infringement. Such differences of opinion may, however, be more serious where the company is in the process of liquidation because the realisation of its assets and the discharging of its liabilities are intended primarily to meet the claims of the creditors of a company whose survival is rendered impossible by its financial situation, and only as a secondary aim to satisfy the claims of the shareholders, among whom any remaining assets are divided up .” (§ 65)

10 . As § 7 of the judgment makes clear, this latter scenario appears to describe the very circumstances of this case. After all, the company S.M.I. is there described as being “currently in compulsory liquidation” and no information is provided at all as to the existence and/or (potentially competing) interests and/or claims of (potential) creditors (whether other customers of its fiduciary services or other companies with which it had concluded share purchase or other agreements such as that underlying the civil proceedings in issue in the present case).

11 . Furthermore, there is, here, no reason why S.M.I. could not, itself, have brought these proceedings before the Court, either through its organs or through its liquidators.

12 . Consequently and absent clear evidence that (a) there are no (potentially) conflicting claims or interests arising out of the situation of the company in question and (b) there are the required “exceptional circumstances”, it seems to us wholly inappropriate for this Court to “pierce the corporate veil” and to accept that Mr Pasquini should be treated as a “victim” of the alleged violation of Article 6 § 1 in relation to the proceedi ngs brought against S.M.I. (In so far as this approach appears potentially at odds with the recent Committee decision in Le Bridge Corporation LTD S.R.L. v the Republ ic of Moldova , no. 48027/10, 27 March 2018, we would urge caution in treating that decision as reflecting “well established case law” beyond the specific facts of that case.)

Determination of “his” civil rights and obligations

13 . The remainder of the applicant ’ s complaints declared admissible by the majority concern proceedings before the Court for Trusts in which the applicant, this time applying in his own name sought “to have civil proceedings no. 300/2001 reopened” (§ 29).

14 . It is telling, and this is not affected by the conclusions of the majority in § 83, that the applicant characterised these proceedings as a “reopening” of the said civil pro ceedings brought against S.M.I. Whether this is the appropriate label or whether the proceedings are better described as different and autonomous proceedings concerning the question whether B . had lied on the proceedings brought against S.M.I., a “different party” (as the majority suggests in § 83), their very nature is crucial in determining whether they are, in fact, capable of determining the applicant ’ s (as compared to S.M.I. ’ s) civil rights and obligations.

15 . In light of the distinct (legal) personalities of the applicant and the company S.M.I., it is not clear to us that they could have been so determinative and that therefore, in rela tion to this applicant, Article 6 § 1 had any application. The summary of the basis on which the domestic courts accepted the “ jactation suit” (see § 42) also provides no real indication of any basis on which it would be appropriate for this Court to assume that the dispute before the Court for Trusts would be “determinative” of the applicant ’ s “civil rights” so as to engage Article 6 § 1. Any indirect consequences of the proceedings before the Court of Trusts on the applicant ’ s pecuniary position would not, in our view, be sufficient to engage Article 6 § 1; this is even more so where, in light of the fact that S.M.I. is in “compulsory liquidation”, any pecuniary/proprietary interest this applicant may have in relation to S.M.I. may well have to be assessed in the context of and in competition with any pecuniary claim or inte rest of any possible creditors. Finally, we can also not see how these proceedings could have been determinative of his “civil right” to a “good reputation” sufficiently to engage Article 6 § 1. After al l, as the majority suggest in § 83, the primary purpose of these proceedings was to establish whether B . (not the applicant) had lied under oath in the civil pro ceedings brought against S.M.I. It is not clear to us how even a conclusion that B . had lied in the context of his “supplementary oath” would have been directly and necessarily “determinative” of the applicant ’ s “good reputation”.

Exhaustion of domestic remedies

16 . Finally, it appears to us that his complaint about the Court for Trusts not being established by law raises an obvious and very real question as to whether the applicant has exhausted the available domestic r emedies, as required by Article 35 § 1 of the Convention. After all, there is no evidence at all that the applicant ever raised this point either before the Court for Trusts itself or on appeal.

17 . By failing to raise this issue before the domestic courts, the applicant has therefore completely denied the domestic courts t he opportunity to consider and/ or rectify the alleged Convention breach. While we are, of course, aware that the respondent Government has not expressly raised any objection to the present application on the basis of exhaustion of domestic remedies, it seems to us that, in particular in this “age of subsidiarity” (see , for example , the Copenhagen Declaration of 13 April 2 018, in particular at paragraph 10), it would be inappropriate to consider the merits of a complaint in circumstances such as the present, where it is obvious on the face of the application that the applicant has failed to exhaust domestic remedies (see , mutatis mutandis , Laidin v. France (no. 1) , no. 43191/98, 8 January 2002). After all, just like the six-months requirement ( Blečić v. Croatia [GC], no. 59532/00, § 68, ECHR 2006 ‑ III), the exhaustion requirement on its face goes to the very jurisdiction of the Court (as compared to the “mere” admissibility of the complaint) and:

“ ... the two rules contained in Article 26 [now Article 35 § 1] are closely interrelated, since not only are they combined in the same Article, but they are also expressed in a single sentence whose grammatical construction implies such correlation; and whereas the term ‘ final decision ’ , therefore, in Ar ticle 26 refers exclusively to the final decision concerned in the exhaustion of domestic remedies according to the generally recognised rules of international law, so that the six months period is operative only in this context; whereas furthermore, the preparatory work of the Convention, in particular the report prepared in June 1950, by the Conference of Senior Officials , confirms this interpretation.” (Comm ission Decision in De Becker v. Belgium , no. 214/56, 9 June 1958, Yearbook 2, p. 214 at p. 242.)