Two-judge panels, the impartiality of judges, high court costs and the Court of Strasbourg
JUDGMENT
Pasquini v. San Marino 02.05.2019 (no. 50956/16)
SUMMARY
Composition of a court of two judges. Impartiality of judges. High court costs. Procedures for settlement of the debts of a financial company to a third party. Complaints about the unlawfulness of court formation, lack of impartiality of a judge and inability to gain access to a court due to the high level of court costs. The Court found that the two-judge panel that had examined his case in the Court for Trust was set up in accordance with the law, since two judge panels were not explicitly forbidden. Insufficient link between the substantive issues found in the criminal proceedings and the appeal in civil proceedings, with the result no objective justification for the non-impartiality of the judge judging the refusal to appeal. The amount of the costs of the proceedings did not have the effect of weakening the very substance of the right of access, given the high value of the claim in question. No violation of Article 6 § 1 of the ECHR.
PROVISION
Article 6
PRINCIPAL FACTS
The applicant, Enrico Maria Pasquini, is an Italian national who was born in 1948 and lives in San
Marino.
Mr Pasquini was the owner and director of a fiduciary company called S.M.I. In 1990, acting under a
mandate on behalf of an individual, B., S.M.I. bought shares in a company, which it later sold. B.
complained that he had not received all the proceeds from the sale of the shares which had been
due to him and that he was still owed just over 9.04 billion Italian liras (ITL).
In 2001 B. filed a civil complaint against S.M.I. and another person who had acted on his behalf,
claiming the sums allegedly owed to him.
Under an interlocutory judgment issued in June 2007, B. was asked to swear an oath, known as a
supplementary oath, to back up his evidence concerning the alleged debt. Appeals by the applicant
against the interlocutory judgment were dismissed and the courts also upheld B.’s debt claim.
The applicant filed a criminal complaint against B., alleging that he had committed perjury in taking
the oath. In May 2015, the investigating judge ended the proceedings for lack of evidence of perjury
and in July another judge, Judge L.F., dismissed an appeal by the applicant against that decision.
In October 2014 the applicant, in his own name, applied to reopen the 2001 civil proceedings,
including a “jactitation suit” (azione di iattanza/di accertamento negativo) within his claim, asking the judge to declare that B. had sworn a false oath. The case was referred to the Court for Trusts and
Fiduciary Relationships whose President formed a panel made up of himself and one other judge.
In September 2015 the court decided to accept the action as a “jactitation suit” and held on the
merits that only the first part of the oath sworn by B. had been false. The second part, on the
amount owed, had been true. It dismissed the applicant’s request to reduce the amount of debt, set
court fees at 29,500 euros (EUR) and lawyers’ costs at EUR 37,887. The court fees were based on an
amount of approximately EUR 4.7 million, reflecting the debt the applicant wanted to have set aside.
The President of the Court for Trusts refused leave to appeal, which was upheld by Judge L.F. as a
Judge of Civil Appeals in February 2016. He found that an appeal would raise no issues of law – in
particular, he considered the oath in two parts had not involved the application or interpretation of
a law or legal principle but had concerned the meaning of the words “supplementary oath”.
THE DECISION OF THE COURT
Article 6
Proceedings concerning the supplementary oath
The Court examined Mr Pasquini’s argument that the proceedings before the Court for Trusts, which
had included a “jactitation suit”, had amounted to a “reopening” of the 2001 civil case. However, it
held that the proceedings before the Court for Trusts were separate and autonomous from the civil
action, which had determined a different main issue. Moreover the latter proceedings had been
against S.M.I., whereas those before the Court for Trusts had been brought by the applicant in his
own name.
The Court thus found that the final decision on the supplementary oath was that of June 2011. As Mr
Pasquini had not lodged his application with the Court until 2016, this complaint had been brought
outside the six-month time-limit which applicants had to respect and it had to be rejected.
Proceedings before the Court for Trusts
The Court first held that Article 6 in its civil head applied to the proceedings lodged by the applicant
before the Court for Trusts.
Mr Pasquini complained that the court panel had not been formed in accordance with the law. In
particular, decisions in that court were supposed to be by a majority, but in his case the panel had
only consisted of two judges, making a majority decision impossible. The Government submitted,
among other things, that two-judge panels could be found at international level.
The Court found no flagrant breach of domestic law in the way the panel had been formed, for
instance two-judge formations were not expressly prohibited. It was clear that the key issue was the
complexity of a case, with three variants possible: single judges, panels or a full court.
The Court could not detect any arbitrariness in the way the President of the Court for Trusts had
formed the panel, it therefore had to be considered as a tribunal established by law and there had
been no violation of Article 6.
Alleged lack of impartiality of the President of the Court for Trusts in refusing leave to appeal
Mr Pasquini complained that the President of the Court for Trusts had been part of the panel that
had decided on his “jactitation suit” at first instance and had then refused leave to appeal.
However, the Court found that a request for withdrawal or abstention under section 10(1) of
Qualified Law no. 145 of 2003, as modified by section 9 of Qualified Law no. 2 of 2011, could have
provided a suitable legal avenue to raise his complaint. He had not pursued such an avenue and this
complaint had to be rejected for non-exhaustion of domestic remedies.
Judge L.F’s alleged lack of impartiality
The applicant argued that Judge L.F. had not been impartial when upholding the President’s decision
to refuse leave to appeal as he had already taken a decision on the same set of facts in the earlier
criminal proceedings.
The Court reiterated its case-law concerning subjective and objective impartiality. On the first
aspect, it noted that there were no arguments or findings to show that Judge L.F. had held or
expressed any personal convictions which had cast doubt on his subjective impartiality.
On the second aspect, the Court noted that Judge L.F. had participated in different civil and criminal
proceedings, albeit connected in terms of the facts. It saw no relevant link between the substantive
issues he had determined in either set of proceedings and there was no objective justification to fear
a lack of impartiality. There had therefore been no violation of Article 6.
Alleged violation of right of access to a court owing to refusal of leave to appeal
The Court reiterated that the right of access to a court was not absolute and that appeals on points
of law or appeals to superior courts could have more rigorous requirements than ordinary appeals.
It found that the limitations on appeals on points of law from the Court for Trusts in civil cases were
justified in terms of the efficient administration of justice and had been set down by law in a manner
which lay within the State’s discretion (“margin of appreciation”).
Given the earlier proceedings to which Mr Pasquini had had access – his request for a criminal
investigation and a first-instance Court for Trusts decision – the Court could not find that the
restriction on his leave to appeal had been disproportionate or had impaired the essence of his right
to a court. The complaint was therefore inadmissible as manifestly ill-founded.
Alleged violation of right of access to a court owing to the legal fees
The calculation of the fees by the President of the Court for Trusts had been foreseeable to Mr
Pasquini as he had set them according to criteria established under the applicable regulations.
The amount of fees had been substantial, EUR 17,750 in advance for a total sum of EUR 29,500, but
not unreasonable given the value of the claim, almost EUR 5.0 million, or with Mr Pasquini’s own
financial resources. Indeed, he had not claimed that he had been unable to pay them.
The amount of the fees had not impaired the very essence of Mr Pasquini’s right of access to a court,
nor had they been disproportionate, and there had therefore been no violation of Article 6 § 1.
Article 1 of Protocol No. 1
This part of the application had to be rejected as out of time – the relevant final decision had been
handed down in June 2011 while his application had not been lodged until 2016.
Separate opinions
Judges Wojtyczek, Eicke and Ilievski expressed a joint partly dissenting, partly concurring opinion
which is annexed to the judgment(echrcaselaw.com editing).
