Pasquini v. San Marino


Information Note on the Court’s case-law 229
May 2019
Pasquini v. San Marino - 50956/16
Judgment 2.5.2019 [Section I]
Article 6
Civil proceedings
Article 6-1
Tribunal established by law
Alleged unlawfulness of decision of President of the Court of Trusts to refer case to panel of two judges: no violation
Facts – The applicant, the director of S.M.I., a fiduciary company operating in San Marino, was involved in multiple connected proceedings. He complained, inter alia, that the composition of the Court for Trusts in one set of the proceedings had been irregular and had not been prescribed by law.
Law – Article 6 § 1: The Court had to first determine by reference to the facts complained of in the applicant’s case whether there had been a flagrant violation of domestic law. To that end, the Court noted that, pursuant to section 4(1a) of the relevant law, 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.
In the applicant’s case the President had decided to refer the case to a panel of two (himself and another judge) and had appointed himself president of that panel.
The domestic law did not explicitly prohibit a two-judge formation. The wording of section 4(1a): “he also decides the members and the President” did not necessarily imply that a panel always had to be made up of at least three members. In that connection, the Court noted that besides being the president of the panel, the latter was also a member. It was 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 catered for the possibility of having a number of other members), did not in itself exclude a two-judge formation. The 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 applicant’s case had not referred to a reassignment of judges once proceedings had already started, which might require reasons for such changes and the possibility for applicants to comment. The case had concerned the first assignment of a judge to the case in question. Bearing in mind that the applicant’s complaint did not concern the impartiality or independence of the assigned judges at that stage of the proceedings, and that the decision had been taken within the limits of domestic law, the Court did not find that in determining the composition the situation was one where the margin of appreciation enjoyed by the domestic authorities in such matters had been exceeded.
As to the alleged contrast with section 10(1b), the Court reiterated that it had to as far as possible confine itself to examining the issues raised by the case before it. While in certain circumstances, a judge formation incapable of reaching a majority might result in a problem of access to a court, in the event that this led to a failure to take a decision, in the circumstances of the present case, the fact that it was decided unanimously did not impinge on the majority rule, and did not lead to an incompatibility with domestic law.
Thus, the Court was satisfied that there had been no flagrant violation of domestic law in relation to the formation of the Court for Trusts.
The Court had then to determine whether the objective of the safeguard enshrined in the concept of “established by law” had been achieved. The designation of a judge had to be independent of the executive and could not be solely dependent on the discretion of the judicial authorities.
The applicant had raised no concerns about the independence of the President of the Court for Trusts and it had not even been claimed that there had been any interference on the part of the executive. Moreover, the Court noted that the actions of the President had been limited in scope, given that they only concerned the choice of formation of the court and the members of the bench, 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.
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 considered that, in the silence of the law and given that the three types of formations differed only in terms of the number of judges, it was sufficiently evident that the main criterion behind the choice was the complexity of a given case. It had not been established that there had been any arbitrariness on the part of the President of the Court for Trusts.
In consequence, the court which heard the applicant’s case had to be considered a tribunal established by law, in the sense of the Convention.
Conclusion: no violation (unanimously).
The Court also held, unanimously, that there had been no violation of Article 6 § 1 in connection with the requirement of impartiality of a judge or as regards the applicant’s complaint of access to court.
(Compare Barberà, Messegué and Jabardo v. Spain, 10590/83, 6 December 1988; and Biagiolo v. San Marino (dec.), 8162/13, 8 July 2014; see also DMD Group, a.s., v. Slovakia, 19334/03, 5 October 2010, Information Note 134)
 
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