Mityanin and Leonov v. Russia

FIRST SECTION
CASE OF PASQUINI v. SAN MARINO
(Application no. 50956/16)
JUDGMENT
STRASBOURG
2 May 2019
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
PASQUINI v. SAN MARINO JUDGMENT 1
In the case of Pasquini v. San Marino,

The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Linos-Alexandre Sicilianos, President,
Aleš Pejchal,
Krzysztof Wojtyczek,
Armen Harutyunyan,
Tim Eicke,
Jovan Ilievski,
Gilberto Felici, judges,
and Abel Campos, Section Registrar,
Having deliberated in private on 19 March 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 50956/16) against the
Republic of San Marino lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by an Italian national, Mr Enrico Maria Pasquini (“the
applicant”), on 16 August 2016.
2. The applicant was represented by Mr A. Pagliano, a lawyer practising
in Naples. The Government of San Marino (“the Government”) were
represented by their Agent, Mr L. Daniele.
3. The applicant alleged, under Article 6 § 1 of the Convention, that the
composition of the Court for Trusts had been irregular and not prescribed by
law. He further complained that the fact that he had had to pay substantial
legal costs in order to apply to that court, on the basis of criteria not
specified by law and the refusal of leave to appeal in itself had amounted to
a violation of his right of access to a court. He also complained that the
Judge of Civil Appeals had not been impartial in refusing him leave to
appeal, given his previous expression of opinion on the same facts in a
connected case.
4. On 19 June 2017 notice of the application was given to the
Government.
5. The Italian Government did not make use of their right to intervene in
the proceedings (Article 36 § 1 of the Convention).
2 PASQUINI v. SAN MARINO JUDGMENT
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1948 and lives in San Marino.
A. Background to the case
7. The applicant owned the entire share capital (and at the material time
was also the director) of S.M.I., a fiduciary company operating in
San Marino. Company S.M.I. is currently in compulsory liquidation.
8. On an unspecified date an individual, B., conferred a mandate to Z.
for the latter to open a fiduciary account (conto fiduciario) with
company S.M.I. in his own name but on behalf of the former. Thus, on
2 March 1988 Z. signed a fiduciary management mandate (mandato di
amministrazione fiduciaria) with company S.M.I. on behalf of B.
9. As part of the mandate, company S.M.I. opened fiduciary account
no. 381-AF07701 in order to carry out some financial operations concerning
securities listed on the Italian Stock Exchange.
10. By a contract of 20 March 1990, signed in the context of the
above-mentioned fiduciary mandate (on behalf of B.), company S.M.I. and
another company, K., purchased from company P.A. some shares of its
subsidiary company, A.N. As part of the price for these shares, companies
S.M.I. and K: (i) waived a previous debt owed to them by an owner of
company P.A., and (ii) undertook to reimburse a debt of
11,000,000,000 Italian liras (LIT) that company P.A. owed an Italian bank,
S. (in particular, company S.M.I. undertook to reimburse LIT 9,900,000,000
and company K. LIT 1,100,000,000).
11. Eventually B. complained that company S.M.I. had not returned to
him part of the proceeds (LIT 9,035,264,332) obtained from the purchase
(see paragraph 10 above) and subsequent sale, a few months later, of the
shares of company A.N. Nor had company S.M.I. recorded that sum in the
statement related to the fiduciary account. B. had become aware of the
breach of contract during previous criminal proceedings (ongoing for other
reasons, in Milan) in which company S.M.I. had submitted statements
concerning the above-mentioned fiduciary account.
B. Civil proceedings no. 300/2001
1. First-instance
12. On 4 October 2001 B. filed a civil complaint against Z. and company
S.M.I., represented by its legal representative and director (the applicant), in
order to obtain from them, in solidum, the payment of LIT 9,035,264,332.
13. By an interlocutory judgment of 4 June 2007 the first-instance judge

(Commissario della Legge) found that not all the financial operations
carried out by company S.M.I. on behalf of B. in execution of the fiduciary
mandate had been correctly recorded in the financial statement. The judge
applied the rules governing contracts of mandate as established by the
domestic case-law and practice, relying, in particular, on the duty of the
agent (mandatario  in this case, company S.M.I.) to give evidence of the
operations carried out in execution of a mandate in order to demonstrate that
it had fulfilled its reporting obligation (obbligo di rendiconto). According to
the judge, the only evidence that company S.M.I. had submitted for that
purpose had been the above-mentioned financial statement. However, B.
had demonstrated that the statement was incomplete and therefore
unreliable. Thus, company S.M.I. had failed to discharge its burden of proof
to show that it had returned to B. the sums obtained from the transfer of
company A.N.’s shares.
14. Given the unreliability of the statement, the judge, applying the
domestic practice concerning the assessment of documentary evidence, took
into consideration only the parts of the statement which constituted evidence
against the party which had drafted the document, that is to say, only the
credit entries (the sums of money company S.M.I. admitted to having been
received by B.) but not the debit entries reported therein (indicating what
sums S.M.I. had claimed to have used in execution of the fiduciary
mandate). Thus, the judge considered all the credit entries (amounting to
LIT 34,962,635,382) and deducted from them the sums which B.
acknowledged having received and those which company S.M.I had used on
his instructions (amounting to LIT 25,927,371,050) as also admitted by him.
This left an outstanding debt of LIT 9,035,264,332 (approximately
4,662,778.93 euros (EUR)) which company S.M.I. owed B.
15. However, according to the judge, this was the result of presumptions
being made, and B. had not entirely discharged the relevant burden of proof.
Thus, to compensate for the partial lack of evidence and allow B. to entirely
discharge his burden of proof, the judge in the same aforementioned
interlocutory judgment summoned B. so that he could take a
“supplementary oath” (giuramento suppletorio – an oath of a party on his or
her own behalf as confirmation of otherwise inadmissible or inconclusive
evidence – for more details, see Relevant domestic law, paragraph 68
below). The wording of the “supplementary oath”, as set by the judge, was
as follows:
“I swear and declare that I did not authorise any other withdrawals [of money] as
reported in financial statement no. 381-AF0770l apart from the ones that I have
acknowledged and that [were] indicated in my counsel’s submission of 24 April 2003.
Thus, company S.M.I. must return to me LIT 9,028,398,950.”
16. Consequently, the proceedings continued solely for the purposes of
the taking of the “supplementary oath”.
17. In the same interlocutory judgment the judge also found that Z. had
been a mere agent of B. and removed him from the case.
18. On 30 June 2008, B. took the above-mentioned “supplementary
oath” as set out by the judge.
19. No first-instance judgment on the merits was ever issued.
2. Appeal against the interlocutory judgment

20. On 12 December 2008 company S.M.I. appealed against the
interlocutory judgment of 4 June 2007. B. cross-appealed and requested,
inter alia, that the interlocutory judgment of 4 June 2007 be declared final
and that company S.M.I.’s requests be rejected.
21. By a judgment of 9 June 2011, filed with the registry on 30 June
2011, and served on the applicant on 20 July 2011, the Judge of
Administrative Appeals, in his capacity as Judge of Civil Appeals (Giudice
Amministrativo d’Appello in veste di Giudice delle Appellazioni Civili),
dismissed the appeal. The judge confirmed that company S.M.I. had a
remaining debt to B. of LIT 9,028,398,950 (EUR 4,662,778.93), and
ordered it to pay him that sum of money together with default interest and
currency revaluation.
22. The judge specified that the judgment (against which S.M.I. had
lodged this appeal) had to be considered a “partial interlocutory judgment”
(interlocutoria mista) falling into the category of judgments which
examined the merits in part [and thus could be appealed against, as opposed
to a “mere interlocutory judgment” (interlocutoria mera) which did not
examine the merits and therefore could not be appealed against]. It could
not be regarded as a “mere interlocutory judgment” since the first-instance
judge, finding that B. had partially proven his statements, had partly
examined the case on the merits. Thus, the judgment had become final after
B. had taken the “supplementary oath”, and was amenable to appeal.
3. Third-instance
23. On 6 July 2011 company S.M.I. attempted to further appeal against
the judgment of 30 June 2011, before the Third-Instance Judge (Terza
Istanza). By a judgment of 6 April 2012 the complaint was declared
inadmissible on the grounds that the only role of a Third-Instance Judge was
to decide which one of two non-concordant judgments had to be upheld.
That prerequisite did not exist in the case at hand, since both the first and
second-instance judgments had been concordant on the merits.
C. Joined criminal investigations nos. 312/RNR/2011

and 198/RNR/2012 (for “false oath” and slander)
24. On an unspecified date the applicant (in his own name) filed a
criminal complaint against B. under Article 359 of the Criminal Code,
accusing him of swearing a false oath. He claimed that, by the statements
made under oath on 30 June 2008, B. had committed perjury. A criminal
investigation was subsequently initiated.
25. In turn B. filed a complaint against the applicant, accusing him of
slander. The investigating judge (Commissario della Legge Inquirente)
joined the two investigations.
26. By a decision of 11 May 2015 the investigating judge closed the
proceedings since in his opinion there was no evidence that B. had
committed perjury. The judge considered that since the expert’s report
showed that it was not possible to conclude who had made the payment to
bank S., there was no evidence to show the non-existence of the debt to B.
and consequently the falsity of the statements which he had made under
oath.
27. On an unspecified date the applicant lodged a complaint with the
Judge of Criminal Appeals requesting that the investigation be reopened.
28. By a decision of 31 July 2015, Judge L.F., a Judge of Civil Appeals
in his capacity as Judge of Criminal Appeals (Giudice delle Appellazioni
Civili in veste di Giudice delle Appellazioni Penali) dismissed the complaint
and upheld the decision to close the case. In the opinion of the judge it was
implausible that a reopening of the investigation could lead to the discovery
of new documents able to demonstrate the origin of the funds used to pay
off the debt to bank S. The expert had already analysed all the documents
available, which had been found not only in the headquarters of company
S.M.I., but also in the archives of the court in Milan (where other
proceedings were ongoing). He had not found any records of such a
payment. Moreover, the payment dated back to 1990. Furthermore, the
dispute at hand had arisen because company S.M.I. and B. had decided, by
mutual consent and on purpose, not to record all the operations carried out
in execution of the fiduciary mandate.
D. The institution of proceedings no. 2/2014 (before the Court for

Trusts)
1. First-instance
29. Meanwhile, on 30 October 2014 the applicant (in his own name) had
lodged an application with the first-instance civil judge to have civil
proceedings no. 300/2001 reopened (istanza di riassunzione del giudizio).
30. Within that application, the applicant submitted a “jactitation suit”
(azione di iattanza /di accertamento negativo) (see paragraph 42 and 74
below), requesting the judge to declare that the supplementary oath sworn
by B. had been false. The applicant argued that after the taking of the
“supplementary oath” new evidence had come into his possession.
According to him, B. had not provided company S.M.I. with the necessary
funds to carry out the purchase of company A.N.’s shares. Thus, the
statement that B. had not authorised any other money withdrawals (except
for the ones he had expressly acknowledged) had been false since he had at
least authorised company S.M.I. to pay off the debt of LIT 9,900,000,000
owed to bank S., in execution of the obligations arising from the contract for
the purchase of company A.N.’s shares. That debt had been paid off by
company S.M.I. with the proceeds deriving from the sale of the shares of
company A.N., since no other funds had been provided by B. for that
purpose, and therefore the sum of LIT 9,900,000,000 had to be subtracted
from the amount of the alleged debt claimed by B.
31. By a decision of 12 November 2014 the Chief Justice (Magistrato
Dirigente), relying on the domestic law on the competence of the courts (see
paragraph 61 below), referred the case to the Court for Trusts and Fiduciary
Relationships (Corte per il Trusts ed i Rapporti Fiduciari - hereinafter “the
Court for Trusts”). The latter had been instituted by Constitutional Law
no. 1 of 26 January 2012 and had competence to hear all cases concerning
trusts and fiduciary relationships (see paragraph 56 below).
32. Thus, proceedings no. 2/2014 were instituted before the Court for
Trusts.
33. By a decision of 3 December 2014, pursuant to the relevant law (see
paragraph 57 below), the President of the Court for Trusts (hereinafter “the
President”) referred the case to a panel composed of two judges (Judge G.
and the President himself). By the same decision, the President calculated
the amount of legal fees. To this end, he relied on the “Rules on Court Fees
and Judicial Remunerations”, which he had issued himself the day before
(2 December 2014). He considered that the claim had an “undetermined
value”, however, the applicant had requested to establish the non-existence
of a debt of EUR 4,662,778.93. Therefore, on the basis of the latter value
and the applicable rules, the President calculated the amount of court fees as
being EUR 6,000 and the variable part of the judge’s remuneration (la parte
variabile del compenso spettante al giudice) as being EUR 23,000
(EUR 20,000 – in accordance with the relevant table – increased by 15%,
given that the case had been referred to two judges) as well as EUR 500 in
reimbursement of judicial expenses. The President ordered the applicant to
pay (i) the court fees in toto and (ii) half of the required payments (for a
total amount of EUR 17,750) at least seven days before the date of the first
hearing, failing which the claim would be barred (see paragraph 57 below).
34. Although he was regularly notified of the reopening of the
proceedings, B. did not respond.
35. In the course of the proceedings, the court ordered some expert
reports to be drawn up. The final liquidation balance sheet of company P.A.
was also added to the case file, amongst other things. The applicant
submitted a consultant’s report aimed at showing that company S.M.I.’s
debt to B. did not exist. That report was also added to the case file.
36. At a hearing of 26 May 2015 the court questioned the applicant and
heard Z. (a witness called by the applicant).
37. On 10 June 2015 the applicant filed written submissions as requested
by the court.
38. On 30 June 2015 the court, having considered the applicant’s
submissions incomplete, heard the applicant again.
39. On 14 July 2015 the applicant submitted further written submissions.
40. By a judgment filed with the registry on 18 September 2015 the
court partly acceded to the applicant’s complaint.
41. The court considered that the applicant had an interest in bringing
proceedings, given the position which he had held in company S.M.I. (see
paragraph 7 above). Notwithstanding the fact that the applicant, in his own
name, had not been a party in the “original” civil proceedings (brought by
B. against company S.M.I.) the outcome of those proceedings (the fact that
company S.M.I. had been ordered to pay a substantial sum of money to B.)
could have been detrimental to his personal property and reputation both
because he would have been liable to pay the sums found to be due, but also
because those sums would have been due as a result of his mismanagement.
42. The court accepted the applicant’s characterisation of the action
lodged against B. as a “jactitation suit” aimed at establishing the falsity of
the statements that B. had made under oath in the course of the civil
proceedings. Addressing the applicant’s claim (that he had brought to the
court’s attention new evidence which had come into his possession after the
taking of the “supplementary oath”, or written evidence which he could not
submit before, on the basis of which he had initiated the “jactitation suit”),
the court found that the applicant had not submitted any such new evidence.
Thus, according to the court, the applicant’s action should have been
rejected on procedural grounds, without the merits of the case being dealt
with. Nevertheless, in the court’s view, the fact that the parties of the case
before it (the applicant and B., the latter in absentia) were different from the
original parties in the “ordinary” civil proceedings (company S.M.I. and B.),
allowed the court to consider the “jactitation suit” procedurally admissible,
even in the absence of new evidence (that is to say, in the absence of the
prerequisites for the admissibility of a “jactitation suit” as established by the
domestic case-law, see paragraph 68 below). The court justified its decision
not to follow the above-mentioned precedent on the basis that the final
judgment in the “ordinary” civil proceedings had to be considered “res inter
alios acta” (a thing involving and affecting different parties).
43. As to the merits, the court declared false only the first part of the
“supplementary oath” (in which B. had declared that he had authorised only
the operations he had explicitly acknowledged in the list submitted by his
lawyer on 24 April 2003 and not the further money withdrawals which had
been recorded in bank statement no. 381-AF0770l – see paragraph 15
above). However, the court held that what he had said under the second part
of the “supplementary oath” (relating to the final amount due) had been
true. It dismissed the applicant’s request to reduce the amount of the debt
and confirmed that company S.M.I. had to pay B. the same sum of money.
44. According to the court, the wording of the “supplementary oath” did
not imply that the second part had to be seen as a consequence of the first
part, despite the use of the word “thus” (per cui). It was therefore preferable
to separate the two parts, since operations could have existed which may not
have had any effect on the amount of the final balance.
45. In connection with the first part, the court noted that the
authorisation of the mandator (in this case, B.) to use the proceeds obtained
from a certain financial operation in order to pay off an obligation arising
from the same operation (as had happened in the case at hand) had to be
considered implicit in a contract of mandate. This was a “natural effect” of
the contract. It followed that the first part of the “supplementary oath” (in
which B. had stated that the only operations which had been authorised
were those listed by B.’s legal representative) had not been exact and the
applicant was thus right on that point and the first part of the
“supplementary oath” had to be considered false.
46. In any case, having examined all the evidence, in the court’s view,
the declaration of falsity of the first part of the statement made by B. under
oath did not necessarily impact upon the quantification of the debt since
(i) all the parties to the contract of 20 March 1990 had acted under the
instructions of the same mastermind (B.), (ii) company P.A. (the seller of
the shares of company A.N., from which company S.M.I. had taken over the
debt owed to bank S. – see paragraph 10 above) belonged to company
S.M.I., and (iii) bank S. had not even been notified of the taking over of the
debt. Thus, there was no risk that company S.M.I. had to actually pay the
debt. In addition, the applicant had not given evidence of any payments
made by company S.M.I. enabling a reduction in the amount which it
owed B.
47. By the same judgment the court also calculated the total amount of
litigation fees to be EUR 29,500 (which included the estimate provided
previously) and approved the fees requested by the lawyers (EUR 37,887).
2. Refusal of leave to appeal

48. On 2 October 2015, relying on section 11 (2) of Delegate Decree
no. 128 of 30 September 2013 (see paragraph 57 below), the applicant (in
his own name) applied to the President of the Court for Trusts for leave to
appeal part of the judgment of 18 September 2015.
49. The applicant claimed, inter alia, that the splitting of the wording of
the “supplementary oath” into two parts, and the finding of falsity of the
first part and not the second, had been illogical and erroneous. According to
the applicant, his “jactitation suit” had aimed at ascertaining the existence of
actual damage arising from the falsity of the “supplementary oath” and such
damage had arisen from the second part of the “supplementary oath” (the
one in which B. had claimed the return of a quantified sum) and not the first
part. Furthermore, the two parts of the “supplementary oath” had to be
considered strictly connected. Thus, the finding that the first part of the
“supplementary oath” had been false should have also automatically led to a
declaration of falsity of the second part since between them a logical causal
link (nesso logico di causalita) existed. In addition, the decision to split the
“supplementary oath” into two parts had not been reasoned and, in the
applicant’s view, he needed not bring any proof of the non-existence of the
debt, it being an automatic result of the falsity of the statement given on
oath.
50. On 19 October 2015 the President dismissed the application for
leave to appeal on the grounds that: (i) most of the applicant’s grounds of
appeal concerned the merits of the case (which, under the relevant law,
cannot constitute a ground of appeal against judgments of the Court for
Trusts, see paragraph 57 below), (ii) in the first-instance proceedings before
the Court for Trusts, the applicant had not given evidence of any payments
made by company S.M.I. able to reduce the amount which it owed B. In this
connection, the judge stated that the applicant did not seem to realise that
the Court for Trusts had given fully detailed reasoning as to its decision to
consider the second part of the “supplementary oath” as true, far more than
had ever been done in the various phases of the proceedings before the
[ordinary] courts. Thus, the court had correctly concluded that the second
part of the “supplementary oath” had been true and that the amount of the
debt had to remain the same.
51. The judge added that had he granted leave to appeal, it would have
certainly been unsuccessful, which showed the quality of the applicant’s
defence in the case at hand. Moreover, according to the judge, leave to
appeal also had to be refused because the applicant had not set out any
reasons as to why the court had been wrong in its reasoning justifying its
decision to split the “supplementary oath” into two parts.
3. Complaint concerning the refusal of leave to appeal

52. On 3 November 2015 the applicant lodged a complaint with the
Judge of Civil Appeals concerning the refusal of leave to appeal, relying on
Section 11 (3) of Delegate Decree no. 128 of 30 September 2013 (see
paragraph 57 below). He essentially reiterated the same requests which he

had already submitted earlier.
53. By a decision of 11 February 2016, Judge L.F., in his capacity as
Judge of Civil Appeals, dismissed the complaint and upheld the decision not
to grant leave to appeal. The decision was served on the applicant’s legal
counsel by email on 16 February 2016.
54. In the opinion of the judge, the complaint did not contain any issues
of law. In particular, whether it had been legitimate for the Court for Trusts
to split the “supplementary oath” into two parts was not a point of law (that
is to say concerning the interpretation or application of a law or legal
principle) and actually concerned the interpretation of the wording of the
“supplementary oath” by the Court for Trusts, which had to be considered a
complaint on the merits.
55. The judge observed that, on the one hand, the court had considered
that the first part of the “supplementary oath” had been false on the basis of
the rules governing contracts of mandate and in the light of the evidence of
the operations carried out by company S.M.I. On the other hand, the second
part of the “supplementary oath” had been held to be true on the basis of the
fact that no evidence had demonstrated that company S.M.I. had made any
relevant payments in B.’s name (namely the reimbursement of the debt).
Thus, the decision to split the “supplementary oath” into two parts had been
a consequence of the court’s finding that the two parts were not logically
connected.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Court for Trusts and Fiduciary Relationships (Corte per il Trust

ed i Rapporti Fiduciari)
56. Section 1 of Law no. 1 of 26 January 2012 reads, in so far as

relevant, as follows:
Section 1
“In the context of the ordinary jurisdiction, the Court for Trusts and Fiduciary
Relationships is instituted. The court has competence to hear all cases concerning
legal relationships arising from entrustment or confidence, such as trusts, fiduciary
agreements, fideicommissum ... and similar legal instruments regulated by any legal
system ...”
57. Delegate Decree no. 128 of 30 September 2013, concerning the
procedure before the Court for Trusts, reads, in so far as relevant, as
follows:
Section 2 (Application)
“... (2) To avoid a claim being barred (improcedibilita), an application shall be filed
with the registry together with evidence of the payment of:
(a) judicial tax,
(b) court fees (diritti di cancelleria) in the amount periodically determined by the
President and, in general, also calculated on the basis of the value of the claim. ...”
Section 4 (Beginning of the proceedings)

“(1) The President shall decide, by a final decision not amenable to appeal:
(a) whether the case has to be referred to a single judge, panel (collegio) (of which
he also decides the members and the President), or the full court (piena corte),
(b) [the amount of] the variable part of the remuneration payable to the single judge
or panel,
(c) [the amount of] legal fees (which may vary depending on the complexity of the
case and/or its value and in conformity with the general criteria) that the applicant
shall pay within seven days, to avoid the claim being barred, ... the total amount of
remuneration and expenses payable to the judge[s]. This sum shall be determined by
the President, applying a variable increase between 10 and 20% to the cost incurred
by the State for the remuneration of judges and the expenses payable to them, as well
as for court fees. (applicando una maggiorazione, nella percentuale variabile dal
10% al 20%, sugli oneri sostenuti dall’Erario per i compensi ed i rimborsi spese in
favore dei Giudici nonché per le spese di cancelleria) ...”
Section 10 (Decision)
“(1) If a case is to be decided by a panel:
...
(b) the court shall adopt its decisions by a majority. ...”
Section 11 (Appeal)
“(1) Appeals shall only concern issues of law without any prejudice to the factual
findings made by the court, as long as [leave to] appeal has been previously granted in
accordance with the following paragraphs:
(2) The unsuccessful party may, within fifteen days of the filing of the judgment
with the registry, request leave to appeal from the President. The President, by a
reasoned decision, shall only grant leave to appeal if the case raises uncertainty in
respect of the legal issues determined or if such issues are of general importance.
(3) If leave is refused, the applicant may, within fourteen days of the refusal of the
President, lodge a complaint with the Judge of Civil Appeals requesting leave to
appeal.
(4) Appeals:
(a) are lodged before a Judge of Appeal within fourteen days of leave to appeal
[being granted];
...
(5) Within fourteen days of the submission of the pleas (motivi) the Judge of Appeal
shall request the opinion of an expert (consilium sapientis), selecting the expert in the
register provided pursuant to section 7(4) of Law no. 1 of 26 January 2012. The Judge
of Appeal shall select one expert if the first-instance proceedings were decided by a
single judge, or a panel composed of three experts if they were decided by a panel or
the full court.
(6) The Judge of Appeal shall be bound by the principles of law given by the expert
(si attiene ai principi di diritto enunciati dal sapiente). The subsequent use of
extraordinary remedies shall be precluded. ...”
58. In a sitting of 4 June 2014, Parliament (Consiglio Grande e
Generale) appointed the President and six members of the Court for Trusts
and Fiduciary Relationships for a mandate of five years.
59. By a Decree of 2 December 2014, entitled “Rules on Court Fees and
Judicial Remuneration” (Decreto sui Diritti di Cancelleria e il Compenso
del Giudice), the President of the Court for Trusts, having regard to the
domestic law concerning proceedings before that court, established specific
criteria to determine the amount of legal fees and remuneration payable to
judges in proceedings before the Court for Trusts.
60. On 10 September 2015 the President of the Court for Trusts, “having
taken note of the fact that it was opportune to enhance some procedural
aspects [of the former Rules]” amended some parts slightly.
B. Law no. 145 of 30 October 2003
61. Section 6 of Law no. 145 of 30 October 2003 attributes power to the
Chief Justice to organise and distribute the workload of the courts. It reads,
in so far as relevant, as follows:
Section 6
“... (2) The Chief Justice shall have the power to organise and distribute the judicial
workload in accordance with pre-established criteria, as well as the duty to supervise
(without interfering with the free decision-making of each judge) and to coordinate
and manage the judicial office, with the exception of merely administrative functions.
(3) The Chief Justice shall attribute the workload to first-instance civil judges,
first-instance administrative judges and trainee judges in accordance with their
professional competencies, experience and academic background (titoli). He shall also
establish criteria for the purpose of distributing the workload between judges of
appeal, with their agreement.
(4) The Judicial Council (Consiglio Giudiziario) shall approve the criteria drawn up
by the Chief Justice for the workload distribution, during its next [available] session.
(5) First-instance judges [mentioned above] shall fulfil on time the duties of their
office and adapt to the orders given by the Chief Justice, save for any
incompatibilities provided for by law – any other possible function may be undertaken
only in accordance with the needs of the office and upon authorisation of the Judicial
Council in its ordinary session.
(6) The Chief Justice shall submit to Parliament (Consiglio Grande e Generale),
through the Secretary of State for Justice, an annual report concerning the state of
justice, including details of the work carried out by magistrates and judges at every
level.”
C. Incompatibility, abstention and withdrawal of judges
62. Section 1 of Law no. 145 of 30 October 2003, following

amendments in 2011 reads, in so far as relevant, as follows:
“The courts shall be divided into the following sections, civil, criminal,
administrative and protection of minors and family. First-instance judges shall be
assigned to each section by the Chief Justice.
Judges of each specialised section shall have full competence and therefore may be
substituted in the exercise of [their] functions and competence.
Appeal judges may replace each other in the event of impediment or
incompatibility.
Substitutions shall be decided in accordance with predetermined criteria, established
by the Judicial Council, in respect of the principle of the tribunal established by law
...”
63. Point 2 of Part VI of the regulations on the distribution of work
amongst single judges and their substitutions, entitled “General Regulations
for Magistrates of Single Judge Tribunals”, approved by the Judicial
Council, and dated November 2003, provides as follows:
“Incompatibility arises when a judge has already dealt with a case concerning the
same facts, during which he or she has in some way expressed his or her opinion - and
therefore the reason for abstention will already have existed when the case was
assigned. Thus, it is a duty (onere) of the magistrate in case of incompatibility, and a
legal obligation under section 10 of Law no. 45/2003 in the case of abstention, for the
magistrate to speedily withdraw from the case. The deadlines for abstention are the
same as applicable for withdrawals ... but there are no deadlines for the purposes of
incompatibility, which depends on the powers of the Chief Justice to assign the case
to another judge in the relevant field. For the correct functioning of the system, a
judge who considers that he or she has reason to declare his incompatibility should, no
later than five days after the case has been assigned to him, write a letter giving
reasons to the Chief Justice. On the expiry of this time-limit, the judge must proceed
by means of abstention as provided for by law. In the event that abstention is upheld
or incompatibility recognised, a new judge competent in the relevant field must be
assigned, in accordance with the criteria set out in the list of competencies.”
64. Section 10 of Qualified Law no. 145 of 30 October 2003, as
modified by Section 9 of Qualified Law no. 2 of 16 September 2011,
concerning abstention and withdrawal, in so far as relevant, reads as
follows:
“A judge or magistrate must abstain when serious reasons exist, due to personal
interests in the proceedings, existing relationships of family, marriage, cohabitation
more uxorio, friendship, hostility, existing business or working relationships, between
the judge himself or one of his close relatives and one of the parties or their lawyers in
civil or administrative proceedings, or the accused person, the victim of the crime or
their lawyers, in criminal proceedings.
The judge must likewise abstain himself if he gave advice and opinions, or, prior to
the proceedings and in the exercise of his functions he or she illegitimately expressed
his opinion on the facts object of the proceedings.
In all such cases, if the judge does not abstain of his own motion, the parties may
request his withdrawal.
The judge could also abstain himself where it would be appropriate if circumstances
exist which would compromise his impartiality and free judgment.
A request for the withdrawal of the judge competent to decide a request for
withdrawal shall not be admitted.
In criminal proceedings a request for the withdrawal of the Attorney General
(Procuratore del Fisco) shall not be admitted.
The procedures regarding the abstention and withdrawal of judges shall be
established by an ordinary law on the matter.
Any judge who fails to comply with his duty of abstention, despite the existence of
clear and objective reasons specified by the present Section..., shall be sanctioned with
the measures provided for by a dedicated law.”
65. In judgment no. 6 of 16 November 2015 by the Third-Instance
Judge, in criminal proceedings no. 154/RNR/2015, that court considered
that the statements made by judges in judgments or decisions could not be
considered illegitimate expressions of opinion (mentioned in section 10(2)
of Qualified Law no. 145 of 30 October 2003, see paragraph 64 above), the
latter constituting one’s opinions expressed in the exercise of his duties.
66. By a decision of 19 September 2015, in separate civil proceedings
no. 1/2015 (to which the applicant was a party), the Judge of Civil Appeals
(Judge L.F.) rejected a “request for abstention” which the applicant had
filed on the grounds that Judge L.F. had already sat as a judge in different
civil and criminal proceedings concerning the same parties (the applicant
and B.). The judge specified that none of the grounds for abstention under
section 10 of Law no. 145 of 2003 existed in that case. In particular, he had
not given advice or opinions, nor had he illegitimately expressed his opinion
on the facts which were the subject of the proceedings. He excluded that he
had made any statements concerning those facts in his previous decisions
and judgments (in different proceedings concerning the applicant), but even
assuming that he had done so, that would have happened while he had been
exercising his legitimate jurisdictional functions, thus it could not have been
considered an illegitimate expression of opinion. The judge also considered
that not even the ground for facultative abstention under section 10(4) (that
is to say, abstention for “reasons of appropriateness”) was applicable to the
applicant’s case.
67. Section 2 of Law no. 139 of 16 September 2011, in so far as
relevant, reads as follows:
“Any judge who is affected by one of the grounds of mandatory abstention under
section 10 of Qualified Law no.145 of 30 October 2003, as modified by section 9 of
Qualified Law No. 2 of 16 September 2011, shall declare so and request the
competent judge to exempt him from the proceedings in which incompatibility has
occurred.
The request, once it has been served on the parties, shall be transmitted to the
competent judge, together with the documents of the proceedings. The evidence shall
be mentioned and attached to the request.
The decision shall be filed with the registry together with the case file of the
proceedings and shall be served on the parties and to the judge on the merits of the
main proceedings.
The same disposition shall apply also in cases of non-mandatory abstention.
A request for withdrawal (istanza di ricusazione) may be submitted in every phase
of the proceedings.
The request for withdrawal shall be added to the case file and indicate in detail the
grounds for withdrawal as specified by law, and the related evidence substantiating
the challenge.
Once the judge hearing the main proceedings receives the request, he shall inform
the Chief Justice and request the registry to transmit it to the competent judge,
together with a copy of the case file. If the request is submitted in the pleading stage
of the criminal proceedings, the judge shall carry out the tasks set out for such hearing
but desist from delivering the judgment.
The request for withdrawal shall be submitted by a lawyer practicing in
San Marino...
If following a request for withdrawal, the judge chooses to abstain, the provisions
related to abstention shall apply and the withdrawal proceedings are extinguished.
Once the withdrawal request is received by the competent judge he shall, within the
next three days, assign to the parties and the judge who has been challenged a period
of ten days for submitting evidence and submissions which shall be at the disposal of
the parties and the judge, who may make copies thereof. If there is a request to hear
witnesses, the competent judge shall set a hearing. On expiry of the [ten day] period
and once evidence has been collected, a further period of ten days shall be provided
for the concluding submissions.
Once the latter period expires, the case file shall be held for the decision, which
shall be filed with the registry within thirty days.
The judgment shall be filed with the registry together with the case file and shall be
served automatically on the parties and the judge.
The judgment which accedes to the withdrawal request shall also order which
specific acts of the proceedings must be renewed in the light of the decision.
In the judgment rejecting a request the party who made the request may be ordered
to pay a sum of money from EUR 1,000 to 10,000, as legal costs, without prejudice to
any available civil or criminal actions ...”
D. “Supplementary oath”
68. A “supplementary oath” is a sworn oath that confirms a statement of

fact. A party may be requested to take such an oath by the judge, who draws
up wording to that effect. The “supplementary oath” can be requested by
means of an interlocutory discretionary decision of the judge in order to
decide the case if the facts were not fully established at the probative stage.
According to domestic case-law and legal literature, a “supplementary oath”
is only admissible in the case of a partial lack of evidence (semiplena
probatio) and should preferably be requested from the party who partially
gave evidence of his or her statement in the course of the proceedings. The
factual findings which derive from statements made under oath cannot be
examined any further by the judge. Thus, the sworn statement of facts
creates an unrebuttable presumption of truth (legal proof). According to the
domestic practice, the only admissible ways to contrast the factual findings
arising from statements made under oath are: (i) a declaration of falsity in
criminal proceedings for perjury (“false oath” - Article 359 of the Criminal
Code), and (ii) the submission of new evidence concerning facts of which
the party had knowledge after the taking of the oath or written evidence
which would have been impossible to submit earlier (“jactitation suit” -
azione di iattanza).
69. In a final judgment of 8 April 1924 (published in Giurisprudenza
Sammarinese, 1924, p.7) the Judge of Civil Appeals stated that “when a
testimony has not given indisputable results, a “supplementary oath” can be
requested. When doubts exist as to the plaintiff’s submissions, it is more
appropriate to request the oath from the defendant.”
70. In a judgment of 16 June 1928 (Giurisprudenza Sammarinese, 1928,
p.13) the first-instance judge stated that: Jus commune (diritto commune),
on the basis of [Justinian’s] Law no. 31 (ff. de jurejurando - Digesto, book
no. 22, title no. 2) and [Justinian’s] Law no. 3 (Cod. De rebus cred. Et
jurejurando - Digesto, book no. 4, title no. 1) provides that: (i) a judge has
the possibility (but not an obligation) to request a “supplementary oath” of
his own motion in “doubtful” cases and in cases showing an “inopia
probationum”, that is to say in cases in which evidence is insufficient or
partial; (ii) such an oath may be requested either from the plaintiff
(“supplementary oath”) or from the defendant (negative oath), although, in
an equally non-conclusive context, the latter [party] shall be preferred.”
71. In a judgment of 16 February 1935 (Giurisprudenza Sammarinese,
1935-36, p. 33) the first-instance judge stated that “a supplementary oath
can be requested only when the plaintiff’s claim is supported by a semiplena
probatio [a partial lack of evidence] or by valid presumptions.”
72. In a final judgment of 12 March 1962 (Giurisprudenza
Sammarinese, 1965, No. 1, p. 1) the Judge of Civil Appeals stated that “a
supplementary oath is admissible under jus commune and the local judicial
customary law. It shall be requested in order to supplement evidence

(supplementum probationis) from the party who has given partial evidence
[of his or her statements], provided that such evidence is not partially
rebutted by contrary evidence. The aim [of a “supplementary oath”] is to
verify circumstances which are not fully established or to complete and
corroborate sure evidentiary elements which have been already collected by
a judge.”
73. In other relevant case-law it was stated that “only a judge can request
a supplementary oath” (judgment of the first-instance judge of 12 June
1925, Giurisprudenza Sammarinese, 1925, p.18), “it shall be requested from
the party who has given partial evidence” (judgment of 8 August 1929 of
the Judge of Civil Appeals, Giurisprudenza Sammarinese, 1929, p. 5) and
“[it shall be requested] from the party who has already given partial
evidence of his claim” (judgment of 19 July 1954 of the Judge of Civil
Appeals, Giurisprudenza Sammarinese, 1963, No. 1, p. 42).
E. “Jactitation suit” (“azione di iattanza” or “azione di accertamento

negativo”)
74. According to the domestic case-law and legal literature a “jactitation

suit” is a civil action afforded to an alleged victim of slander. The aim of the
action is to obtain a declaration of falsity of statements made by the
counterparty and “the cessation of the slander”. The interest in bringing
proceedings exists if the alleged false statements of the defendant have
damaged the reputation (buon nome), status, rights or patrimony of the
plaintiff. In the course of the civil proceedings the defendant has to
demonstrate that his statements were true. If this burden of proof is not
satisfied the judge declares the statements false (see the judgment of the
Commissario della Legge of 4 June 1966, Giurisprudenza Sammarinese,
1964-1969, p. 316, in relation to the alleged falsity of a “supplementary
oath” and the judgment of the Commissario della Legge of 25 August 1962,
Giurisprudenza Sammarinese, 1965, p. 196; see also G. Chiovenda, Azioni e
sentenze di mero accertamento, Rivista di diritto processuale, p. 33 et seq.).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
75. The applicant raised multiple complaints under Article 6 § 1. The

relevant Article reads, in so far as relevant, as follows:
“1. In the determination of his civil rights and obligations... everyone is entitled to a
fair...hearing...by an independent and impartial tribunal established by law.”
A. Civil proceedings before the Civil Court
1. The parties’ submissions

76. The applicant complained that the requirement to take a
“supplementary oath” had amounted to a breach of his right to a fair trial.
77. The Government observed that the parties had been granted an equal
opportunity to present their case and the related evidence to the
first-instance court and that none of them had been provided with the
opportunity to unilaterally influence the decision.
2. The Court’s assessment

78. The Court considers at the outset that it must examine if the
complaint complies with the six month rule. In this connection, the Court
points out that it is not open to it to set aside the application of the
six-month rule solely because the respondent Government in question have
not made a preliminary objection to that effect, since the said criterion,
reflecting as it does the wish of the Contracting Parties to prevent past
events being called into question after an indefinite lapse of time, serves the
interests not only of respondent Governments, but also of legal certainty as
a value in itself. It marks out the temporal limits of the supervision carried
out by the organs of the Convention and signals to both individuals and
State authorities the period beyond which such supervision is no longer
possible (see Blečić v. Croatia [GC], no. 59532/00, § 68, ECHR 2006-III;
Peňaranda Soto v. Malta, no. 16680/14, § 43, 19 December 2017, and the
case-law cited therein). Lastly, it ensures that, in so far as possible, matters
are examined while they are still fresh, before the passage of time makes it
difficult to ascertain the pertinent facts and renders a fair examination of the
question at issue almost impossible (see Jeronovičs v. Latvia [GC],
no. 44898/10, § 74, 5 July 2016).
79. In assessing whether an applicant has complied with Article 35 § 1,
it is important to bear in mind that the requirements contained in that Article
concerning the exhaustion of domestic remedies and the six-month period
are closely interrelated (ibid., § 75). The Court has consistently rejected
applications in which the applicants have submitted their complaints within
six months of the decisions rejecting their requests to have the proceedings
reopened on the grounds that such decisions could not be considered “final
decisions” for the purpose of Article 35 § 1 of the Convention. However,
the Court has also accepted that situations in which a request to reopen the
proceedings is successful and actually results in a reopening may be an
exception to this rule (see Sapeyan v. Armenia, no. 35738/03, § 23,
13 January 2009, and the cases cited therein).
80. Turning to the circumstances of the present case, the Court notes that
the “supplementary oath” was requested by means of a partial interlocutory
judgment of 4 June 2007 in the course of the first-instance proceedings

before the “ordinary” civil court (see paragraph 15 above). The applicant
appealed against that judgment on 12 December 2008 and the appeal was
dismissed by a judgment of 9 June 2011, which was served on the applicant
on 20 July 2011 (see paragraphs 20 and 21 above). Given the findings made
by the Third-Instance Judge, the appeal judgment became final and,
inter alia, confirmed the amount which company S.M.I. owed B.
81. The Court further notes that the applicant subsequently tried to rebut
the evidence obtained by means of the “supplementary oath”, attempting
both avenues provided for that purpose by domestic law, namely by means
of a criminal complaint against B. for “false oath” (which were closed on
11 May 2015, see paragraphs 24 and 26 above) and through a “jactitation
suit” before the Court for Trusts (see paragraph 29 above).
82. While it is evident that the decision to close the applicant’s criminal
complaint was not successful and therefore cannot be considered to be the
final decision in respect of the proceedings complained of, it is necessary to
determine whether the decision of the Court for Trusts, taken on the basis of
the applicant’s lodging of a “jactitation suit”, restarted the running of the
six-month period connected to the civil proceedings complained about.
83. In this connection the Court notes that, as appears from the facts (see
paragraph 29 above), the applicant was of the view that the proceedings he
had instituted before the Court for Trusts had constituted a “reopening” of
the original civil proceedings, brought against S.M.I, before the ordinary
civil court. However, the Court considers that the proceedings before the
Court for Trusts were instead a different and autonomous civil action, which
had to determine a different main issue i.e., whether B. had lied under oath,
and then consequently, whether the sums, which S.M.I. had been ordered to
pay in the civil proceedings, be diminished or set-off. Moreover, while the
proceedings before the Court for Trusts concerned the same set of facts,
they had been brought by a different party (the applicant in his own name
instead of company S.M.I.). Most importantly, even had it been considered
as a “reopening”, which is not the case, the Court notes that, while the
applicant had been successful in part, the final outcome of the proceedings
before the Court for Trusts had no impact on the impugned decision in the
ordinary civil proceedings and did not lead to a reopening of those
proceedings (see, mutatis mutandis and a contrario, Dicle and Sadak
v. Turkey, no. 48621/07, § 55, 16 June 2015), nor did they consist of a
review of that decision (see, a contrario, Sapeyan, cited above, § 24). Thus,
in any event, the decision in the “jactitation suit” brought by the applicant
before the Court for Trusts cannot be considered an exception to the rule
mentioned in paragraph 79 above. It follows that the starting point for the
running of the six-month rule is the final judgment of the Court of Appeal
of 9 June 2011 which was filed with the registry on 30 June 2011 and
served on the applicant on 20 July 2011 (see paragraph 21 above).
84. Given that the complaint was only lodged on 16 August 2016, the
Court finds that it was lodged more than six months after the relevant
starting point.
85. It follows that this part of the application has been lodged out of time
and must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention.
B. Civil proceedings before the Court for Trusts
1. Applicability of Article 6 to the proceedings before the Court for

Trusts and subsequent appeals
86. The Court observes that the Government have not raised any
objection ratione materiae. However, it notes that competence ratione
materiae is a matter which goes to the Court’s jurisdiction and which it is
not prevented from examining of its own motion (see, by implication,
Tănase v. Moldova [GC], no. 7/08, § 131, ECHR 2010 and mutatis
mutandis, Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 70,
5 July 2016).
(a) General principles
87. The Court has reiterated time and again that for Article 6 § 1 in its
“civil” limb to be applicable, there must be a dispute over a “right” which
can be said, at least on arguable grounds, to be recognised under domestic
law, irrespective of whether that right is protected under the Convention.
The dispute must be genuine and serious; it may relate not only to the actual
existence of a right but also to its scope and the manner of its exercise; and,
finally, the result of the proceedings must be directly decisive for the right
in question, mere tenuous connections or remote consequences not being
sufficient to bring Article 6 § 1 into play (see, among many other
authorities, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 42,
ECHR 2015, and Denisov v. Ukraine [GC], no. 76639/11, § 44,
25 September 2018).
88. While Article 6 § 1 is not normally applicable to extraordinary
appeals seeking the reopening of terminated judicial proceedings, the
nature, scope and specific features of the proceedings on a given
extraordinary appeal in the particular legal system concerned may be such
as to bring the proceedings on that kind of appeal within the ambit of
Article 6 § 1 and of the safeguards of a fair trial that it affords to litigants
(see Bochan, cited above, § 50).
89. Further, the Court notes that the prevailing approach in its case-law
is that Article 6 § 1 is applicable also to leave-to-appeal proceedings and
that the manner of its application depends on the special features of the
proceedings involved, account being taken of the entirety of the proceedings
conducted in the domestic legal order and of the role of the appellate or
cassation court therein (see Hansen v. Norway, no. 15319/09, § 55,

2 October 2014, and the case-law cited therein).
(b) The Court’s assessment
90. The Court notes that it has already held at paragraph 83 above that
the “jactitation suit” was not a “reopening procedure” and that it was an
autonomous civil action. That action was aimed at establishing the falsity of
the statements that B. had made under oath in the course of the prior civil
proceedings and, subsequently, whether the amount (debt) which S.M.I. had
been ordered to pay (see paragraph 30 above) was to be diminished or
set-off. The Court for Trusts ultimately dismissed the applicant’s request to
reduce the amount of the debt and confirmed that company S.M.I. had to
pay B. the same sum of money (see paragraph 43 above).
91. In view of the above, the Court considers that there is no obstacle to
the application of Article 6 to the proceedings before the Court for Trusts
which cannot be considered extra-ordinary proceedings. Further, the Court
observes that part of the decision of the Court for Trusts consisted in
determining whether the sums which S.M.I. had been ordered to pay had to
be diminished or set-off. That court had further found that the applicant,
who was the owner of the entire share capital, had an interest in bringing
those proceedings for multiple reasons (see paragraph 41 above). Thus, the
Court considers that the Court for Trusts was also called on to decide on the
applicant’s rights of a patrimonial nature, as well as on matters related to his
civil rights such as the right to a “good reputation”.
92. It follows that Article 6 in its civil limb is applicable to the
proceedings before the Court for Trusts, including the subsequent appeals.
2. Alleged violation of the applicant’s right to a tribunal established by

law
93. The applicant complained that the first-instance Court for Trusts
hearing his case could not be a tribunal established by law since it had not
been appointed in accordance with the domestic law.
(a) Admissibility
94. The Court notes that the complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
(b) Merits
(i) The parties’ submissions
(α) The applicant

95. Relying on Biagioli v. San Marino ((dec.), no. 8162/13, § 71, ECHR
8 July 2014) and Savino and Others v. Italy (nos. 17214/05 and 2 others,
§ 94, 28 April 2009) the applicant submitted that a tribunal had to be
established by law, so that the latter did not depend on the discretion of the
executive or the judicial authorities. The same applied to the modalities of
the composition of a court, which also had to be prescribed by law (as the
Court had reiterated in Piersack v. Belgium, 1 October 1982, § 33, Series A
no. 53 and Buscarini and Others v. San Marino, (dec.), no. 24645/94,
4 May 2000).
96. Invoking Article 6 § 1 of the Convention, the applicant submitted
that the composition of the Court for Trusts which had decided his case had
not been prescribed by law. Primarily section 10 of Delegate Decree no. 128
of 30 September 2013 required decisions to be taken by a majority, while
the panel in his case had been composed of two judges. In the applicant’s
view, a two-judge panel had to be considered “ontologically incapable” of
taking its decisions by a majority; in reality it could only take its decisions
by unanimity.
97. Secondly, section 4 of the same law provided that in the event that
the President decided to refer the case to a panel, he also had to select the
“members” and the President thereof (thus at least three people in total).
However, in his case, the President of the court had appointed himself
president of the panel and had chosen just one further member.
Furthermore, the applicant noted that section 4 of Delegate Decree no. 128
gave too much discretion to the President with respect to the choice of
composition of the court in a given case and did not contain any guidelines
as to which of the different formations of the court (single judge, panel or
full court) were appropriate in a specified case. Thus, that decision was left
to the complete discretion of the President. Moreover, under the above-
mentioned provision, the President did not have to provide reasons to justify
his choice and the decision was not amenable to appeal before a judicial
body.
(β) The Government
98. In the Government’s view, the composition of the Court for Trusts
had been prescribed by law, since a deciding panel was one of the possible
formations of that court, as provided for by the Relevant domestic law (see
paragraph 57 above).
99. As to the alleged incompatibility of a panel of two judges with the
majority rule in decision-making, under domestic law, the Government
pointed out that the purpose of the latter principle was to eliminate
uncertainty concerning decision-making modalities. Had it not been
specified by law, one could have assumed that unanimity was necessary or
that decisions could be adopted in the light of different criteria. Considering
the purpose of the majority rule, the Government noted that the decision in
question had been adopted by the majority of the deciding panel, which, in
the case at hand had equated to unanimity. Indeed, panels composed of two
judges were nothing new at international level, for example, the Divisional
Courts and the British courts of appeal, were normally composed of two
judges.
(ii) The Court’s assessment
(α) General principles

100. The Court reiterates that, according to its case-law, the object of the
term “established by law” in Article 6 of the Convention is to ensure “that
the judicial organisation in a democratic society [does] not depend on the
discretion of the Executive, but that it [is] regulated by law emanating from
Parliament”. Nor, in countries where the law is codified, can the
organisation of the judicial system be left to the discretion of the judicial
authorities, although this does not mean that the courts do not have some
latitude to interpret the relevant national legislation (see Sokurenko and
Strygun v. Ukraine, nos. 29458/04 and 29465/04, § 24, 20 July 2006).
101. The Court further reiterates that, as it has previously held, the
phrase “established by law” covers not only the legal basis for the very
existence of a “tribunal”, but also compliance by the tribunal with the
particular rules that govern it (ibid., § 25) and the composition of the bench
in each case (see Richert v. Poland, no. 54809/07, § 43, 25 October 2011,
and Ezgeta v. Croatia, no. 40562/12, § 38, 7 September 2017).
102. The Court also reiterates that, in principle, a violation by a tribunal
of domestic legal provisions relating to the establishment and competence of
judicial organs gives rise to a violation of Article 6 § 1. The Court may
therefore examine whether the domestic law has been complied with in this
regard. However, having regard to the general principle that it is, in the first
place, for the national courts themselves to interpret the provisions of
domestic law, the Court finds that it may not question their interpretation
unless there has been a flagrant violation of domestic law (see
DMD GROUP, a.s., v. Slovakia, no. 19334/03, § 61, 5 October 2010)
103. Lastly, the Court reiterates that it is the role of the domestic courts
to manage their proceedings with a view to ensuring the proper
administration of justice. The assignment of a case to a particular judge or
court falls within the margin of appreciation enjoyed by the domestic
authorities in such matters. There is a wide range of factors, such as, for
instance, resources available, qualification of judges, conflict of interests,
accessibility of the place of hearings for the parties and so forth, which the
authorities must take into account when assigning a case. Although it is not
the role of the Court to assess whether there were valid grounds for the
domestic authorities to assign a case to a particular judge or court, the Court
must be satisfied that the reassignment concerned was compatible with
Article 6 § 1, and, in particular, with the requirements of objective
independence and impartiality (see Sutyagin v. Russia, no. 30024/02, § 187,
3 May 2011 and the case-law cited therein).
(β) Application to the present case
104. Turning to the present case, the Court will first determine by
reference to the facts complained of in the instant case whether there has
been a flagrant violation of domestic law.
105. To that end, the Court notes that, pursuant to section 4 (1a) of the
relevant law (see paragraph 57 above), at the beginning of the proceedings
the President of the Court for Trusts had to decide, by a decision – not
amenable to appeal – whether the case had to be referred to a single judge,
to a panel (of which he also had to decide the members and the President),
or to the full court (plenary). Moreover, pursuant to section 10 (1b) of the
same law, if a case had to be decided by a panel, decisions had to be taken
by a majority.
106. In the instant case the President decided to refer the case to a panel
made up of two persons (himself and another judge) and appointed himself
president of the panel (see paragraph 33 above).
107. Firstly, the Court notes that the domestic law does not explicitly
prohibit a two-judge formation. The wording of the above-mentioned
section 4 (1a): “he also decides the members and the President” (see
paragraph 57 above), does not necessarily imply that a panel always has to
be made up of at least three members. In this connection, the Court notes
that besides being the president of the panel, the latter was also a member. It
is conceivable that only after choosing the members of the panel would the
President of the Court for Trusts choose its president, thus, the use of the
term “members” in the plural (which also caters for the possibility of having
a number of other members), does not in itself exclude a two-judge
formation. Moreover, the Court notes that the above-mentioned provision
did not oblige the President to provide any reasons for his decision on the
composition of the panel, whereas it unambiguously provided that the
decision was not amenable to appeal. The Court considers that this in itself
does not contravene the Convention. Indeed, the instant case does not refer
to a reassignment of judges once proceedings had already started, which
may require reasons for such changes and the possibility for applicants to
comment (compare Bochan v. Ukraine, no. 7577/02, § 71, 3 May 2007 and
Barberà, Messegué and Jabardo v. Spain, 6 December 1988, § 78, Series A
no. 146). The present case concerns the first assignment of a judge to the
case in question. Bearing in mind that the applicant’s complaint does not
concern the impartiality or independence of the assigned judges at that stage
of the proceedings, and that the decision was taken within the limits of
domestic law, the Court does not find that in determining the composition in
the present case the situation was one where the margin of appreciation
enjoyed by the domestic authorities in such matters was exceeded.
108. As to the alleged contrast with section 10 (1b), the Court reiterates
that it must as far as possible confine itself to examining the issues raised by
the case before it (see Ahmed v. the United Kingdom, no. 59727/13, § 72,
2 March 2017). While in certain circumstances, a judge formation incapable
of reaching a majority may result in a problem of access to a court, in the
event that this led to a failure to take a decision (see Marini v. Albania,
no. 3738/02, §§ 118-22, 18 December 2007), in the circumstances of the
present case, the fact that it was decided unanimously, does not impinge on
the majority rule, and does not lead to an incompatibility with domestic law.
109. Thus, the Court is satisfied that there was no flagrant violation of
domestic law.
110. Having determined that there has been no flagrant violation of any
provision of domestic law in relation to the formation of the Court for
Trusts, the Court must determine whether the objective of the safeguard
enshrined in the concept of “established by law” has been achieved. As
transpires from the general principles set out in paragraphs 100-102 above,
the designation of a judge must be independent of the executive and cannot
be solely dependent on the discretion of the judicial authorities (see, mutatis
mutandis, Biagioli, cited above, § 79).
111. In the present case, the applicant raised no concerns about the
independence of the President of the Court for Trusts and it has not even
been claimed that there was any interference on the part of the executive.
Moreover, the Court notes that the actions of the President were limited in
scope, given that they only concerned the choice of formation of the court
(from three different kinds of formations potentially provided for by law)
and the members of the bench (from a list of judges, expert in the specific
field of trusts and fiduciary relationships, also provided for by law, see
paragraph 58 above), and that those actions had to be in accordance with the
general legal framework, including the specific rules concerning the
formation of the Court for Trusts (see paragraph 57 above).
112. As to the fact that the law did not specify any criteria in order to
guide the choice between the three different formations of that court (single
judge, panel or full court), the Court considers that, in the silence of the law
and given that the three types of formations differed only in terms of the
number of judges (see paragraph 57 above), it is sufficiently evident that the
main criterion behind the choice was the complexity of a given case. It
follows that, in the present case, the Court does not find it established that
there was any arbitrariness on the part of the President of the Court for
Trusts (compare Biagioli, cited above, § 80).
113. In consequence, the court which heard the applicant’s case must be
considered a tribunal established by law, in the sense of the Convention and
there has therefore been no violation of Article 6 of the Convention in that
respect.
3. Alleged lack of impartiality of the President of the Court for Trusts

deciding on leave to appeal
114. The applicant complained that the President of the Court for Trusts
had been a member of the panel which had decided his “jactitation suit” at
first-instance and had also decided whether or not to allow him to appeal
against that judgment. For that reason he could not be considered impartial,
as required by Article 6 of the Convention.
The Government’s objection of non-exhaustion of domestic remedies

115. The Government explained that under the relevant law (see
paragraph 64 above) a request for the withdrawal of a judge was the
ordinary domestic remedy in cases of alleged partiality of a judge. The
applicant had not made use of that remedy which, in their opinion, had to be
considered effective.
116. According to the applicant, the domestic system did not provide for
an effective remedy in the event that a judge who had already dealt with the
facts of a case was called to assess those same facts in different proceedings.
Relying on the domestic law on abstention/withdrawal (see paragraph 64
above), the applicant pointed out that the specific situation causing
incompatibility in the present case was not encompassed in any of the
grounds for compulsory abstention specified by law. The applicant
submitted a judgment of the Court of Appeal (in a different case concerning
him and B., see paragraph 66 above), noting that the court had stated that
the fact that the same judge had already expressed his opinion on facts
which were the subject of different proceedings was not an illegitimate
expression of opinion and therefore was not covered by section 10 (2) of the
law on abstention/withdrawal.

117. The Court reiterates that the rule of exhaustion of domestic
remedies is based on the assumption – reflected in Article 13 of the
Convention, with which it has close affinity – that there is an effective
remedy available in respect of the alleged violation. The rule is therefore an
indispensable part of the functioning of this system of protection (see

Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11
and 29 others, § 69, 25 March 2014).
118. The obligation to exhaust domestic remedies therefore requires an
applicant to make normal use of remedies which are available and sufficient
in respect of his or her Convention grievances. The existence of the
remedies in question must be sufficiently certain not only in theory but in
practice, failing which they will lack the requisite accessibility and
effectiveness (ibid., § 71).
119. To be effective, a remedy must be capable of remedying directly
the impugned state of affairs and must offer reasonable prospects of success.
However, the existence of mere doubts as to the prospects of success of a
particular remedy which is not obviously futile is not a valid reason for
failing to exhaust that avenue of redress (ibid., § 74).
120. The Court has, however, also frequently pointed out the need to
apply the exhaustion rule with some degree of flexibility and without
excessive formalism. It would, for example, be unduly formalistic to require
the applicants to exercise a remedy which even the highest court of their
country would not oblige them to exhaust (ibid., § 76).
121. In the light of the above-mentioned principles, the Court notes that
the applicant did not raise the issue of the alleged impartiality of the
President of the Court for Trusts before the competent domestic authority,
namely the Judge for Extraordinary Remedies, by means of a “request for
withdrawal” in accordance with the procedure provided for in section 2 of
Law no. 139 of 16 September 2011 (see paragraph 67 above).
122. In this connection, the Court notes that, from the outset, the
applicant was perfectly aware of the fact that the decision on leave to appeal
would have been delivered by the President of the Court for Trusts, as
clearly provided for in section 11 of the relevant law (see paragraph 57
above). Given that the formation of the court when deciding on leave to
appeal was fixed (since such decisions were always referred to the
President), the applicant could have made an ordinary “request for
withdrawal” of the President together with his request for leave to appeal.
123. As to the issue of whether the specific reason of the alleged
impartiality of the President of the Court for Trusts was encompassed in any
of the grounds for compulsory abstention/withdrawal specified by law, the
Court notes that the Government did not contest the applicant’s claim that
he could not rely on section 10 (2). However, the Court considers that the
applicant could have applied to the competent judge, relying on
section 10 (1) of the relevant law (see paragraph 64 above), arguing that the
fact that the President had sat on the bench which had delivered the
first-instance judgment had determined an “interest in the proceedings’ on
the part of President. The applicant has not argued that relying on this
ground would have had no prospects of success. Nor has he submitted any
reason as to why he could not pursue such an avenue. Thus, the Court
considers that, in the particular circumstances of the present case, the
applicant should have at least tried this avenue and given the domestic
authorities an opportunity to put matters right through their own legal
system (see, mutatis mutandis, Di Giovanni v. Italy, no. 51160/06, § 46,
9 July 2013 and Bacciocchi v. San Marino, (dec.), no. 23327/16,
4 December 2018).
124. It follows that this complaint must be rejected for non-exhaustion
of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
4. Alleged lack of impartiality of the Judge of Civil Appeals upholding

the refusal of leave to appeal
125. The applicant complained that the Judge of Civil Appeals who had
heard his complaint concerning the refusal of leave to appeal had not been
impartial, since he had previously taken a decision on the same facts in
another set of proceedings.
(a) Admissibility
(i) The Government’s objection of non-exhaustion of domestic remedies

126. According to the Government the applicant had not exhausted the
effective domestic remedies provided for by law (see paragraph 115 above).
127. The applicant reiterated the arguments already set out in
paragraph 116 above.
128. The Court notes that the situation of this complaint is different to
the previous one for various reasons. Primarily, it observes that the ground
for challenging the partiality of the judge in the previous complaint refers to
the fact that the same judge decided both the first-instance decision and the
refusal of leave to appeal against that decision, while the complaint at issue
here is the fact that the same judge who decided his complaint concerning
the refusal of leave to appeal had also expressed an opinion on the same
facts, albeit in a different set of proceedings (for “false oath” and slander).
However, the Court does not need to determine whether in the
circumstances of the present complaint a request for withdrawal under any
of the relevant subsections would have had any prospects of success, as it
considers that in any event in the situation at hand the applicant would not
have had a practical opportunity to lodge such a request for the following
reasons.
129. Section 11 (3) of Delegate Decree no. 128 of 30 September 2013
(see paragraph 57 above) provides that if leave to appeal is refused by the
President of the Court for Trusts, the unsuccessful party can lodge a
complaint with the Judge of Civil Appeals, requesting once again leave to
appeal. The procedure before the Judge of Civil Appeals does not provide
for any oral hearings and the judgment of that judge is delivered without
any further act of procedure.
130. In the present case, the applicant lodged his complaint concerning
the decision refusing him leave to appeal on 3 November 2015. The relevant
judgment was filed with the registry on 11 February 2016 and was served
on him on 16 February 2016 (see paragraphs 52 and 53 above). No acts of
procedure under notification occurred during that time.
131. In the light of the above, and in the absence of a fixed formation of
the court of appeal, the Court considers that the applicant could not have
known in advance that the Judge of Civil Appeals to whom his case had
been assigned was Judge L.F., the same judge who had already dealt with
the issue of the “supplementary oath” in the criminal proceedings for “false
oath” in his capacity as Judge of Criminal Appeals (see paragraph 28
above). The applicant only became aware of that fact when the judgment
upholding the President’s refusal of leave to appeal was served on him, that
is to say when it was too late to lodge a “request for withdrawal”.
132. It follows that, unlike in the above-mentioned situation (see
paragraph 121 above), in this respect, the applicant, having no knowledge of
who the judge would have been, did not have the possibility to lodge a
“request for withdrawal” of Judge L.F. prior to the delivery of the judgment
and could not reasonably have been expected to take any different course of
action.
133. It follows that this complaint cannot be rejected for non-exhaustion
of domestic remedies and that the Government’s objection is therefore
dismissed.
(ii) Conclusion
134. The Court notes that the complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
(b) Merits
(α) The applicant

135. In the applicant’s opinion, Judge L.F., in his capacity as Judge of
Civil Appeals, had not been impartial, given that he had expressed his
opinion twice on the same facts. In particular, the first time was in his
capacity as Judge of Criminal Appeals, in the criminal case for “false oath”,
where he had taken the decision to close the investigation on the basis that,
in his opinion, evidence confirming the payment of the debt to B. did not
exist, thus B.’s testimony could not be considered false. The second time
had been in his capacity as Judge of Civil Appeals, where he had upheld the
refusal of leave to appeal. On the latter occasion he had also found that
whether it had been legitimate for the Court for Trusts to split the
“supplementary oath” into two parts was not a point of law and concerned
the interpretation given to the “supplementary oath” by the Court for Trusts.
Moreover, according to the applicant, on the latter occasion Judge L.F. had
stated that the evidence collected in the proceedings before the Court for
Trusts had led him to exclude that company S.M.I. had paid a substantial
part of the debt owed to B. The applicant pointed out that on both occasions,
Judge L.F. had acted as a single judge and had dismissed his claims. In the
applicant’s opinion a close link existed between the issues dealt with by
Judge L.F. in the two different sets of proceedings, thus his doubts
concerning his impartiality were justified. He relied on Indra v. Slovakia
(no. 46845/99, § 53, 1 February 2005).
(β) The Government
136. According to the Government, there had not been any violation of
Article 6 in terms of a lack of impartiality of Judge L.F. They noted that the
issues on which the judge had ruled on the two occasions had been totally
different. The first time, Judge L.F., in his capacity as Judge of Criminal
Appeals, had confirmed the investigating judge’s decision to close the
criminal proceedings for slander and “false oath”, having established that a
reopening of the investigation would not have been useful for the collection
of new evidence, since the useful methods of investigation had already been
exhausted. The Government acknowledged that in that decision Judge L.F.
had therefore assessed the material facts of the case.
137. However, in the impugned proceedings Judge L.F., in his capacity
as Judge of Civil Appeals, had just upheld the refusal of leave to appeal
decided by the President of the Court for Trusts. Thus he had merely
assessed whether the case raised uncertainty in respect of the legal issues
determined or if those issues were of general importance. Therefore, with
this second judgment, Judge L.F. had made only abstract legal
considerations, without examining the material facts of the case.
138. In the light of the different subjects of assessment carried out by
Judge L.F. on the two above-mentioned occasions, the Government
considered that the applicant’s approach (that impartiality had arisen from
the fact that in both cases the same judge had dismissed his claims) was not
in line with the approach of this Court, since a lack of impartiality could not
be inferred solely from the content of the decisions adopted against the
applicant. They relied on Bracci v. Italy (no. 36822/02, 13 October 2005).

139. The Court reiterates that impartiality normally denotes the absence
of prejudice or bias and that its existence or otherwise can be tested in
various ways. According to the Court’s settled case-law, the existence of
impartiality for the purposes of Article 6 § 1 must be determined according
to a subjective test where regard must be had to the personal conviction and
behaviour of a particular judge, that is, whether the judge held any personal
prejudice or bias in a given case; and also according to an objective test, that
is to say by ascertaining whether the tribunal itself and, among other
aspects, its composition, offered sufficient guarantees to exclude any
legitimate doubt in respect of its impartiality (see, among other authorities,
Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13
and 2 others, § 145, 6 November 2018; Micallef v. Malta [GC],
no. 17056/06, § 93, ECHR 2009, with further references; and Denisov, cited
above, § 61).
140. In the vast majority of cases raising impartiality issues the Court
has focused on the objective test. However, there is no watertight division
between subjective and objective impartiality since the conduct of a judge
may not only prompt objectively held misgivings as to impartiality from the
point of view of the external observer (objective test), but may also go to the
issue of his or her personal conviction (subjective test). Thus, in some cases
where it may be difficult to procure evidence with which to rebut the
presumption of the judge’s subjective impartiality, the requirement of
objective impartiality provides a further important guarantee (see
Ramos Nunes de Carvalho e Sá, § 146; Denisov, § 62; and Micallef, § 95;
all cited above).
141. As to the objective test, it must be determined whether, quite apart
from the judge’s conduct, there are ascertainable facts which may raise
doubts as to his impartiality. This implies that, in deciding whether in a
given case there is a legitimate reason to fear that a particular judge or a
body sitting as a bench lacks impartiality, the standpoint of the person
concerned is important but not decisive. What is decisive is whether this
fear can be held to be objectively justified (see Ramos Nunes de Carvalho
e Sá, § 147, and Micallef, § 96, both cited above).
142. In itself, the objective test is functional in nature: for instance, the
exercise of different functions within the judicial process by the same
person (see Piersack, cited above), or hierarchical or other links with
another actor in the proceedings (see cases regarding the dual role of a
judge, for example, Wettstein v. Switzerland, no. 33958/96, § 47,
ECHR 2000-XII and Mežnarić v. Croatia, no. 71615/01, 15 July 2005,
representing the applicant’s opponents and subsequently judging in a single
set of proceedings and overlapping proceedings respectively), give rise to
objectively justified misgivings as to the impartiality of the tribunal, which

thus fail to meet the Convention standard under the objective test (see
Kyprianou v. Cyprus [GC], no. 73797/01, § 121, ECHR 2005-XIII). It must
therefore be decided in each individual case whether the connection in
question is of such a nature and degree as to indicate a lack of impartiality
on the part of the tribunal (see Pullar v. the United Kingdom, 10 June 1996,
§ 38, Reports of Judgments and Decisions 1996-III).
143. In this connection, even appearances may be of certain importance
or, in other words, “justice must not only be done, it must also be seen to be
done”. What is at stake is the confidence which the courts in a democratic
society must inspire in the public (see Denisov, cited above, § 63). Thus,
any judge in respect of whom there is a legitimate reason to fear a lack of
impartiality must withdraw (see Micallef, cited above, § 98).
144. Moreover, in order that the courts may inspire in the public the
confidence which is indispensable, account must also be taken of questions
of internal organisation. The existence of national procedures for ensuring
impartiality, namely rules regulating the withdrawal of judges, is a relevant
factor. Such rules manifest the national legislature’s concern to remove all
reasonable doubts as to the impartiality of the judge or court concerned and
constitute an attempt to ensure impartiality by eliminating the causes of
such concerns. In addition to ensuring the absence of actual bias, they are
directed at removing any appearance of partiality and so serve to promote
the confidence which the courts in a democratic society must inspire in the
public. The Court will take such rules into account when making its own
assessment as to whether a tribunal was impartial and, in particular, whether
the applicant’s fears can be held to be objectively justified (ibid., § 99).
145. The Court notes that Judge L.F. exercised the function of Judge of
Criminal Appeals in the criminal investigation for “false oath” and in this
capacity he decided to uphold the investigating judge’s decision to close the
case, in the light of the absence of evidence as to the alleged perjury of B.
under oath (see paragraph 28 above). Subsequently, in his capacity as Judge
of Civil Appeals, Judge L.F. decided to uphold the decision of the President
of the Court for Trusts to refuse the applicant leave to appeal (see
paragraph 53 above) on the basis that the applicant’s appeal did not raise
any issues of law – the case did not raise uncertainty in respect of the legal
issues determined, nor were such issues of general importance (see
paragraph 54 above). Hence, Judge L.F. exercised the function of judge in
two different sets of proceedings, where the complainant was the same
person, and which related to the same facts (the alleged falsity of the
statements made by B. under oath) (compare Indra, cited above, § 53).
146. As regards the subjective test, it has not been shown or argued that
Judge L.F. when ruling on the admissibility of the applicant’s complaint
held or expressed any personal convictions which would cast doubt on his
subjective impartiality.
147. As regards the objective test, the Court reiterates that the
requirements of a fair hearing as guaranteed by Article 6 § 1 of the
Convention do not automatically prevent the same judge from successively
performing different functions within the framework of the same case (see
Warsicka v. Poland, no. 2065/03, § 40, 16 January 2007 and, a contrario,
San Leonard Band Club v. Malta, no. 77562/01, §§ 63-64, ECHR 2004-IX).
148. The Court, reiterates that it is not prima facie incompatible with the
requirements of Article 6 § 1 if the same judge is involved, first, in a
decision on the merits of a case and, subsequently, in proceedings in which
the admissibility of an appeal against that decision is examined. The
assessment of whether the participation of the same judge in different stages
of a civil case complies with the requirement of impartiality laid down by
Article 6 § 1 is to be made on a case-to-case basis, regard being had to the
circumstances of the individual case and, importantly, to the characteristics
of the relevant rules of civil procedure applied to the case. In particular, it is
necessary to consider whether the link between substantive issues
determined in a decision on the merits and the admissibility of an appeal
against that decision is so close as to cast doubt on the impartiality of the
judge (see Warsicka, cited above, § 40).
149. In this connection, the Court is of the view that the same
considerations apply in the case at hand where the same judge did not
perform different functions in various stages of the same civil proceedings
but rather participated in different, albeit factually connected, criminal and
civil proceedings. The Court notes that the applicant requested the Judge of
Civil Appeals to review whether the decision of the President of the Court
for Trusts to refuse him leave to appeal had been compliant with the
grounds specified by law for the admissibility of appeals (see paragraph 52
above). Accordingly, the Judge of Civil Appeals examined the decision of
the President on the admissibility of the applicant’s appeal and, like the
President, concluded that the applicant had failed to show the existence of
any of the grounds for granting leave to appeal clearly specified by law
(namely that the appeal raised issues of law, that the case raised uncertainty
in respect of the judicial issues determined, or that such issues were of
general importance, see paragraph 57 above). At no point did the judge at
that stage assess the evidence itself, its weight, credibility or otherwise.
150. The Court therefore considers that the specific question for
determination by Judge L.F. when reviewing, in his capacity as Judge of
Civil Appeals, the decision of the President of the Court for Trusts to refuse
the applicant leave to appeal, was not the same as the question which
Judge L.F. had determined in his capacity as Judge of Criminal Appeals
(namely whether to reopen the investigation into whether B. had made a
false oath). Also, in the Court’s view, the scope of the examination as to
whether or not to grant leave to appeal against the decision of the Court for
Trusts, did not amount to an assessment of the merits of the appeal (see,
mutatis mutandis, R.M.B. v. the United Kingdom, (dec.), no. 37120/97,
ECHR 16 January 2007, and Central Mediterranean Development
Corporation Limited v. Malta (no. 2), no. 18544/08, §§ 35-36, 22 November
2011), which, had leave been granted, would have been determined in line
with the opinion of a different judicial body, namely a panel of experts (see
paragraph 57 above) (see, mutatis mutandis, Warsicka, cited above, § 44).
While it is true that the judge expressed his opinion as to the approach taken
by the Court for Trusts for assessing the “supplementary oath” (see
paragraph 55 above), that consideration, which went beyond the scope of
the review requested from him, can nevertheless be considered to be one not
affecting the actual merits of the case decided in the criminal proceedings,
namely the truth or not of the statement made under oath. Thus, there was
no substantive link between both sets of proceedings (see Warsicka, cited
above, § 45) nor can it be considered an issue intrinsically linked to the
original proceedings (see Central Mediterranean Development Corporation
Limited (no. 2), cited above, § 35) nor a reconsideration of the previous
decision in the criminal proceedings (compare and contrast Indra, cited
above, § 53).
151. It follows that there was no relevant link between the substantive
issues determined by Judge L.F.’s decision in the criminal proceedings and
the review of the President’s decision to refuse leave to appeal in the civil
proceedings which would cast doubt on the impartiality of Judge L.F.
152. Thus, having regard to the circumstances of the case, the Court is of
the view that it cannot be said that the applicant’s fears as to the impartiality
of the Judge of Civil Appeals when reviewing the admissibility of his
appeal at second instance were objectively justified.
153. It follows that there has been no violation of the invoked provision.
5. Alleged violation of the applicant’s right to access to court in

connection with the refusal of leave to appeal
(a) The parties’ submissions
(i) The applicant

154. The applicant complained that the leave to appeal procedure in
itself had constituted a refusal of his right to a court. He considered that the
existence of a filter (filtro) on the admissibility of appeals, which,
furthermore, was substantially entrusted to the same judicial authority who
had delivered the impugned judgment, was an undue restriction of his right
to a court, which was not justified on the grounds of an overriding public
interest.
(ii) The Government

155. In the Government’s opinion, the need to seek leave to appeal from
the President of the Court for Trusts had not violated the applicant’s right to
a court. They explained that its purpose was to ensure that only those
appeals deserving to be heard were selected, to ensure an efficient allocation
of judicial resources. Moreover, it had to be noted that often appeal
proceedings ended up being de facto second proceedings, which were not
justified since they were not instituted immediately after the gathering of
evidence. They pointed out that, in this connection, the domestic law was
definitely in line with the legislation in force in other European and
non-European countries, such as the United Kingdom, Finland, Sweden, the
United States of America and Canada. In particular, under the law
applicable in the United Kingdom, in order to lodge an appeal before the
civil division of the Court of Appeal against decisions of local or higher
courts, prior permission of the judge was necessary. Moreover, the judge
was not obliged to grant such leave, the latter being granted only when
strong reasons existed as to why the appeal should be heard or when the
judge considered that the appellant had a real chance of success. Relying on
the case Dobrić v. Serbia (nos. 2611/07 and 15276/07, 21 June 2011) the
Government considered that leave to appeal a judgment of the Court for
Trusts had the legitimate aim of providing for a simplified procedure to deal
with appeals without a reasonable chance of success and to rationally
allocate judicial resources.
(i) General principles

156. The right of access to the courts is not absolute but may be subject
to limitations; these are permitted by implication since the right of access by
its very nature calls for regulation by the State, regulation which may vary
in time and in place according to the needs and resources of the community
and of individuals (see Stanev v. Bulgaria [GC], no. 36760/06, § 230,
ECHR 2012). In laying down such regulation, the Contracting States enjoy
a certain margin of appreciation. Whilst the final decision as to observance
of the Convention’s requirements rests with the Court, it is no part of the
Court’s function to substitute for the assessment of the national authorities
any other assessment of what might be the best policy in this field.
Nonetheless, the limitations applied must not restrict the access left to the
individual in such a way or to such an extent that the very essence of the
right is impaired. Furthermore, a limitation will not be compatible with
Article 6 § 1 if it does not pursue a legitimate aim and if there is not a
reasonable relationship of proportionality between the means employed and
the aim sought to be achieved (see Lupeni Greek Catholic Parish
and Others v. Romania [GC], no. 76943/11, § 89, 29 November 2016, and
Zubac v. Croatia [GC], no. 40160/12, § 78, 5 April 2018).
157. The Court has ruled that in some cases, in particular where the
limitations in question related to the conditions of admissibility of an
appeal, or where the interests of justice required that the applicant, in
connection with his appeal, provide security for costs to be incurred by the
other party to the proceedings, various limitations, including financial ones,
may be placed on the individual’s access to a “court” or “tribunal” (Kreuz
v. Poland, no. 28249/95, § 54, ECHR 2001-VI). The Court has also
accepted that there can be cases where the prospective litigant must obtain
prior authorisation before being allowed to proceed with his claim (see
Ashingdane v. the United Kingdom, 28 May 1985, § 59, Series A no. 93).
(ii) Application to the present case
158. The Court reiterates that conditions for the admissibility of appeals
on points of law or of appeals to a superior appeal court – such as a supreme
court – may be more rigorous than those for ordinary appeals (see Zubac,
cited above, § 82). It should in addition be noted that, in this as in other
domains, the Contracting States have a greater latitude in relation to cases
concerning “civil rights and obligations” than to criminal cases (see Valchev
and Others v. Bulgaria, (dec.), no. 47450/11 and 2 other applications, § 84
in fine, 21 January 2014).
159. The Court notes that, pursuant to section 11 (1 and 2) of Delegate
Decree no. 128 of 30 September 2013 (see paragraph 57 above), the
domestic courts refused the applicant leave to appeal, given that in his
appeal he had not raised any issues of law. That fact was established by the
President of the Court for Trusts (see paragraphs 50 and 51 above) and
confirmed by the Judge of Civil Appeals (see paragraphs 53 and 54 above)
in, moreover, fully reasoned decisions. The Court reiterates that, according
to its settled case-law, the fact that an appeal lies only when it is certified by
a court that the decision appealed against involved a point of law does not,
as such, amount to an unjustified denial of right of access to a court (see,
mutatis mutandis, R.M.B. v. the United Kingdom, (dec.)., cited above). In
the present case, the Court is satisfied that the limitation on the admissibility
of appeals on points of law in civil cases before the Court for Trusts pursues
a legitimate aim, namely the effective and speedy administration of justice.
The Court further accepts that the manner in which that limitation is set out
in section 11 (1 and 2) of Delegate Decree no. 128 of 30 September 2013 is
within the State’s margin of appreciation (see, mutatis mutandis, Valchev
and Others, cited above, § 87). Finally, bearing in mind that the applicant
had been able to request a criminal investigation which in fact ensued, as
well as the fact that the applicant’s claim had already been examined by the
first-instance Court for Trusts, having full jurisdiction, three years after the
end of the original proceedings giving rise to the applicant’s complaint, the
Court cannot find that the restriction was disproportionate or that it impaired
the very essence of the applicant’s right to a court.
160. It follows that the complaint is inadmissible as being manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the Convention.
6. Alleged violation of the applicant’s right to access to a court in

connection with legal costs incurred before the Court for Trusts
(a) The parties’ submissions
(i) The applicant

161. The applicant submitted that he had been made to pay legal costs
not established by law, which in his view had constituted a violation of his
right to a court. In this connection, the applicant noted that the President had
only adopted criteria for calculating the legal costs of proceedings before
the Court for Trusts in a decree of 10 September 2015, when the
proceedings concerning him had already begun. He alleged that in his case
the President of the Court for Trusts had established the amount of costs
payable without referring to any pre-set criteria and relying uniquely on his
discretion. Thus, when the applicant had applied to the Court for Trusts he
could not anticipate the costs of the proceedings in the absence of any
previous judicial or legislative provisions on that point.
(ii) The Government
162. According to the Government, the legislation concerning legal
costs and expenses before the Court for Trusts had been absolutely
accessible, precise and foreseeable. As to accessibility, the Government
noted that Delegate Decree no. 128 of 30 September 2013 (see paragraph 57
above) had been circulated in line with the ordinary procedure for the
publication of laws, which required not only the posting of the legislative
texts in the Government building but also their publication in the Official
Gazette (Bollettino Ufficiale) and on Parliament’s website, the latter being
permanently accessible to anyone. The predictability of such a general
provision had been further ensured through the adoption of the Rules of
2 February 2014 by the President of the Court for Trusts. Both those rules
and subsequent rules adopted by the President of the Court for Trusts on
10 September 2015 had been published on the website of the court, in a
section specifically devoted to legislation and regulatory measures.
Therefore, all the relevant law and regulations had been constantly
accessible and (i) had provided for precise criteria concerning the
calculation of legal costs before the Court for Trusts; (ii) had linked the
amount of such costs with the value of a given claim and the costs normally
paid by the State for the remuneration and expenses of judges, as well as
court fees; and (iii) had required that part of the legal costs be paid in
advance. In the light of the content of that legislation, the Government

considered that the applicant had been perfectly able to foresee the
economic burden of the proceedings before the Court for Trusts, thus,
according to the Government, the relevant legal basis, from a qualitative
point of view, had also been predictable. Moreover, the costs payable had
been proportionate to the high value of the claim (approximately
EUR 4,662,778.93).
163. Having regard to the above-mentioned statement of principles
arising from its case-law (see paragraph 156 above), the Court reiterates that
it has never ruled out the possibility that the interests of the fair
administration of justice may justify imposing a financial restriction on an
individual’s access to a court (see Kreuz, cited above, § 59).
164. The Court accordingly reiterates that the requirement to pay fees to
civil courts in connection with claims they are asked to determine cannot be
regarded as a restriction on the right of access to a court that is incompatible
per se with Article 6 § 1 of the Convention. It further reiterates, however,
that the amount of the fees assessed in the light of the particular
circumstances of a given case, including the applicant’s ability to pay them,
and the phase of the proceedings at which that restriction has been imposed
are factors which are material in determining whether or not a person
enjoyed his right of access and had “a ... hearing by [a] tribunal” (ibid.,
§ 60).
165. The Court notes that the applicant’s complaint concerns the fees he
was made to pay at first-instance. He primarily complained that the rule
applied to him had been unforeseeable, in particular the fact that the
President had established the amount of costs payable without referring to
any pre-set criteria and relying uniquely on his discretion. In this
connection, the Court notes that section 2 (2b) of Delegate Decree no. 128
of 30 September 2013 (see paragraph 57 above) provides that to avoid the
claim being barred, an application must be filed with the registry together
with evidence of payment of court fees in the amount periodically
determined by the President and, in general, also calculated on the basis of
the value of the claim. In addition, section 4 (1b and c) of the same law (see
paragraph 57 above) provide that, at the beginning of the proceedings, the
President decides, by a final decision not amenable to appeal, the amount of
the variable part of the remuneration of the single judge or panel and the
amount of legal fees (which can vary depending on the complexity of the
case and/or its value). Moreover, pursuant to that same provision, the
applicant must pay, within seven days, to avoid the claim being barred, a
part thereof, which is calculated in relation to the total amount of
remuneration and expenses payable to the judges. Such a sum is determined
by the President applying a variable increase between 10 and 20% to the
cost incurred by the State for the remuneration and expenses payable to
judges, as well as court fees.
166. The Court further notes that, contrary to what was alleged by the
applicant (who complained about the President’s reliance on the “Rules”
issued on 10 September 2015, see paragraph 60 above) in his decision of
3 December 2014 containing the calculation of legal costs and expenses (see
paragraph 33 above) the President relied on the “Rules” issued by him on
2 December 2014 (see paragraph 59 above). Indeed, these rules had not
been issued prior to the applicant lodging his claim. Thus, the President, in
calculating the legal costs and expenses in the specific case of the applicant,
relied on a detailed series of criteria which he had established himself the
day before in his (administrative) capacity as President of the Court for
Trusts. In this connection, however, the Court considers that such criteria
were perfectly in line with the above-mentioned sections 2 (2b) and 4
(1b and c) of Delegate Decree no. 128 of 30 September 2013, which, as
stated above, constituted the more general legal basis of the President’s
request to the applicant to pay, in advance, legal costs and expenses. There
is no doubt that the latter general basis was foreseeable at the time the
applicant lodged his claim.
167. The Court must next determine whether, in the particular
circumstances of the present case, the fees actually charged constituted a
restriction that impaired the very essence of the applicant’s right of access to
a court (ibid., § 61). Admittedly, the sum required in advance (EUR 17,750)
as well as the total amount of litigation fees (EUR 29,500), were substantial,
and the time-limit for providing the sum required in advance (at least seven
days before the first hearing) was relatively short. However, there is nothing
to suggest that the figure was unreasonable in connection with the high
value of the claim (almost EUR 5,000,000) or the applicant’s financial
resources. Indeed, the applicant did not claim that he had been unable to pay
the costs.
168. In view of the above circumstances it cannot be said that the
amount of litigation fees in the instant case impaired the very essence of the
applicant’s right of access to a court or were disproportionate for the
purposes of Article 6.
169. It follows that there has been no violation of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
170. The applicant complained under Article 1 of Protocol No. 1 that the
deprivation of his property had been disproportionate and not adequately
reasoned.
171. For the same reasons as those set out earlier (see paragraphs 78
to 85 above), the Court considers that the final decision concerning the
deprivation of the applicant’s property is that of 9 June 2011, which was

filed with the registry on 30 June 2011 and served on the applicant on 20
July 2011. It follows that this part of the application has been lodged out of
time and must be rejected, pursuant to Article 35 §§ 1 and 4 of the
Convention.
FOR THESE REASONS, THE COURT

1. Declares, by a majority, the complaints under Article 6 § 1 in connection
with the tribunal established by law requirement, the impartiality of
Judge L.F. and the access to court requirement in the light of costs,
admissible;
2. Declares, unanimously, the remainder of the application inadmissible;
3. Holds, unanimously, that there has been no violation of Article 6 § 1 of

the Convention in connection with the tribunal established by law
requirement in relation to the Court for Trusts;

the Convention in connection with the requirement of impartiality on the
part of Judge L.F.;

the Convention in connection with the applicant’s complaint of access to
court.
Done in English, and notified in writing on 2 May 2019, pursuant to

Rule 77 §§ 2 and 3 of the Rules of Court.
Abel Campos Linos-Alexandre Sicilianos

Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of

the Rules of Court, the separate opinion of Judges Wojtyczek, Eicke
and Ilievski is annexed to this judgment.
L.A.S.
A.C.
PASQUINI v. SAN MARINO JUDGMENT - SEPARATE OPINION 41
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 applicant’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 was 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
42 PASQUINI v. SAN MARINO JUDGMENT - SEPARATE OPINION
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 the 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, advisory opinions and orders 1970, pp. 39
and 41, paras. 56-58 and 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, 19 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
PASQUINI v. SAN MARINO JUDGMENT - SEPARATE OPINION 43
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
proceedings 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 Republic 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 proceedings 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 relation 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
44 PASQUINI v. SAN MARINO JUDGMENT - SEPARATE OPINION
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 interest 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 all, 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 proceedings 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 remedies, 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 the 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 2018, 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 Article 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.” (Commission Decision in De Becker
v. Belgium, no. 214/56, 9 June 1958, Yearbook 2, p. 214 at p. 242.)

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FIRST SECTION

CASE OF PASQUINI v. SAN MARINO

(Application no. 50956/16)

In the case of Pasquini v. San Marino,

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1948 and lives in San Marino.

A. Background to the case

B. Civil proceedings no. 300/2001

13. By an interlocutory judgment of 4 June 2007 the first-instance judge

2. Appeal against the interlocutory judgment

C. Joined criminal investigations nos. 312/RNR/2011

D. The institution of proceedings no. 2/2014 (before the Court for

2. Refusal of leave to appeal

3. Complaint concerning the refusal of leave to appeal

paragraph 57 below). He essentially reiterated the same requests which he

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Court for Trusts and Fiduciary Relationships (Corte per il Trust

56. Section 1 of Law no. 1 of 26 January 2012 reads, in so far as

Section 4 (Beginning of the proceedings)

B. Law no. 145 of 30 October 2003

C. Incompatibility, abstention and withdrawal of judges

62. Section 1 of Law no. 145 of 30 October 2003, following

68. A “supplementary oath” is a sworn oath that confirms a statement of

customary law. It shall be requested in order to supplement evidence

E. “Jactitation suit” (“azione di iattanza” or “azione di accertamento

74. According to the domestic case-law and legal literature a “jactitation

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

75. The applicant raised multiple complaints under Article 6 § 1. The

A. Civil proceedings before the Civil Court

1. The parties’ submissions

2. The Court’s assessment

judgment of 4 June 2007 in the course of the first-instance proceedings

B. Civil proceedings before the Court for Trusts

1. Applicability of Article 6 to the proceedings before the Court for

cassation court therein (see Hansen v. Norway, no. 15319/09, § 55,

2. Alleged violation of the applicant’s right to a tribunal established by

(i) The parties’ submissions

(α) The applicant

(α) General principles

3. Alleged lack of impartiality of the President of the Court for Trusts

(i) The parties’ submissions

(α) General principles

indispensable part of the functioning of this system of protection (see

4. Alleged lack of impartiality of the Judge of Civil Appeals upholding

(i) The Government’s objection of non-exhaustion of domestic remedies

(i) The parties’ submissions

(α) The applicant

(ii) The Court’s assessment

(α) General principles

objectively justified misgivings as to the impartiality of the tribunal, which

5. Alleged violation of the applicant’s right to access to court in

(i) The applicant

(ii) The Government

(i) General principles

6. Alleged violation of the applicant’s right to access to a court in

(i) The applicant

advance. In the light of the content of that legislation, the Government

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1

deprivation of the applicant’s property is that of 9 June 2011, which was