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CASE OF PASQUINI v. SAN MARINO (No. 2) PDF
CASE OF PASQUINI v. SAN MARINO (No. 2) PDF
JUDGMENT
STRASBOURG
20 October 2020
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 (No. 2) JUDGMENT
PROCEDURE
1. The case originated in an application (no. 23349/17) 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 20 March 2017.
2. The applicant was represented by Mr A. Pagliano and Ms L. Conti,
lawyers practising in Naples and San Marino, respectively. The Government
of San Marino (“the Government”) were represented by their Agent,
Mr L. Daniele.
3. The applicant alleged that the presumption of innocence had been
violated in his respect, in so far as in the absence of a finding of guilt, the
judgment of the Judge of Criminal Appeals nevertheless reflected the
judge’s conviction that he was guilty. Moreover, he was made to pay
damages precisely on the basis of this declaration of criminal responsibility
without this having been ascertained in the criminal proceedings.
4. On 4 September 2017 notice of the complaint concerning Article 6 § 2
was given to the Government and the remainder of the application was
declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
5. The Italian Government, who had been notified of their right to
intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44),
did not indicate that they intended to do so.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
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natural persons, as clearly shown by the fact that the payments had been
repeated each year, whereas normally, business brokerage services were
payable as a lump sum paid all at once, not in parts over a period of time.
According to the judge, the payments had not been [real] commissions as
claimed by the applicant, given that, on the one hand, company S.M.I. had
paid large amounts of money and, on the other hand, there had been no real
and documented business relationships between the brokers and company
S.M.I. According to the judge, [the payment of] such large amounts of
money would have required the services to be carried out by well-organised
and, most importantly, active broker companies. This had not been the case,
in the light of the fact that the brokerage companies involved had their
headquarters in countries which were known to be tax havens (paesi a
fiscalita’ privilegiata) and that they did not have the corresponding
administrative structure. Moreover, the evidence had shown that the
applicant and B. had deposited the money (which they had obtained through
the payment of undue commissions) in bank accounts that, despite being
formally registered in the broker companies’ names, were actually traceable
back to the applicant and B., and the latter had repeatedly withdrawn money
from them.
12. According to the judge, the Central Bank had indicated in detail in
its report the amount of the illicit movements [of money], the bank
transfers, their reasons (causali), the dates on which they had been made,
and the individual role of the applicant and B. In the judge’s view, those
elements had shown both the commission of the crime of embezzlement and
the existence of the aggravating circumstances (the latter, in the light of the
management role of the accused person in company S.M.I., which was
indisputable).
13. In the judge’s opinion, the justification put forward by the applicant
(according to whom, given that he was the sole shareholder of company
S.M.I. he had in fact appropriated his own funds) derived from an erroneous
understanding of the term company as a separate legal person. As a
shareholder, the applicant could have appropriated such funds via the
collection of dividends. But on the contrary, he had opted to pay fictitious
commissions in order to pauperise company S.M.I.’s patrimony, namely the
patrimony of a different legal person [separate from the applicant as a
natural person], having an economic patrimony which was distinct from the
one that the shareholders held in their own name. Fictitious invoices and
fictitious reasons for payment (causali) had been used in order to
manipulate and abuse the patrimony of the company, so as to obtain benefits
to the exclusive advantage of the applicant and B. The interest of the
company had been made completely subject to the interests of the applicant
and, to a lesser extent, of B., who made payments lacking any business
logic.
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14. The applicant appealed, arguing, inter alia, that the statutory
limitation period of the offence of embezzlement as provided by the
relevant law had meanwhile expired.
15. By a decision of 1 December 2015 the Judge of Criminal Appeals
(Giudice d’Appello Penale) acknowledged that the limitation period for the
offence of embezzlement had expired. However the judge, of his own
motion, referred the question of the constitutionality of Article 196 of the
Code of Criminal Procedure (concerning the jurisdiction of the judge on
appeal – see relevant domestic law below) to the Constitutional Court
(Collegio Garante della Costituzionalita’ delle Norme). In the judge’s
opinion, the latter provision ran counter to Article 15 §§ 1, 2, and 3 of the
San Marino Fundamental Human Rights Charter (Dichiarazione dei diritti
dei cittadini e dei principi fondamentali dell’ordinamento Sammarinese)
and to Article 6 § 1 of the Convention since it failed to provide that, where
an offence became time-barred, the appeal judge could nevertheless decide
on the merits of the civil claims concerning compensation and restitution (to
the civil party). According to the judge such a lacuna contravened the
principles of reasonable length of proceedings and procedural economy and
the rights of defence of a civil party.
16. Law No. 189 of 22 December 2015 entered into force on
27 December 2015. It introduced Article 196 bis of the Code of Criminal
Procedure, which provided that the Judge of Criminal Appeals, declaring an
offence time-barred, could nonetheless decide on the civil obligations
deriving from that offence. By a judgment of 26 January 2016 the
Constitutional Court ordered the restitution of the case file to the Judge of
Criminal Appeals, in order for the latter to decide whether, in his opinion, in
the light of the above-mentioned new law, the reasons for the constitutional
complaint against Article 196 of the Code of Criminal Procedure still
existed.
17. By a judgment of 19 September 2016, published on 22 September
2016, the Judge of Criminal Appeals rejected the applicant’s argument that
the new provision could not be applied in the case at hand. In the judge’s
view, the new provision had a clearly procedural nature since it empowered
the judge to deliberate on compensation for the damage deriving from an
offence. Thus, on the basis of the tempus regit actum principle, the new
provision had to be applied in all the proceedings which were ongoing on
the date of its entry into force.
18. Further, the Judge of Criminal Appeals (i) acquitted the applicant
and B. of the offence of “exercising fiduciary activity without a licence”, for
lack of evidence concerning deliberate intent (dolo); (ii) acquitted the
applicant of one of the counts of “obstruction of surveillance” for lack of
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A. Criminal Code
24. Articles 54, 59 and 140 of the Criminal Code read, in so far as
relevant, as follows:
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Article 54
“An offence is time-barred:
(2) within three years if it is punished by imprisonment of the second degree, by
prohibition of the third or fourth degree, by a fine...”
Article 59
“At every stage of the proceedings and level of jurisdiction the judge shall apply
amnesty or prescription, unless it is already established that the alleged facts had
never occurred (il fatto non sussiste), that the accused had not committed them, or that
the alleged facts did not constitute a crime, in which cases the judge must acquit the
accused by the prescribed formula.”
Article 140
“The accused is responsible for the following obligations with all his patrimony
present and future:
...
(2) Compensation for physical or moral damage, patrimonial or not, and the
restitution of goods which he or she came into possession of or misappropriated;
...
(5) costs of the proceedings.”
Article 143
“The expiry of the relevant limitation period in relation to an offence extinguishes
solely the obligation arising from Article 140(5)”
Article 146
“The person who is civilly liable is responsible for the obligations arising from
Article 140 (1), (2) and (3) ...”
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Article 196
“A judge of appeal is competent to decide only on the parts of the [first-instance]
judgment to which the pleas put forward refer.”
27. According to established domestic case-law (before the entry into
force of Article 196 bis, see below), where an offence became time-barred
during the appeal proceedings, all the parts of a first-instance judgment
concerning the civil effects (see Article 140 above) deriving from the
finding of the accused’s criminal responsibility at first instance had to be
revoked (caducazione). Thus, a Judge of Criminal Appeals could not
determine the civil effects deriving from a time-barred offence (see, among
other authorities, the judgments of the Judge of Criminal Appeals of 11 July
1994, 13 September 1994, 12 January 1995, 30 November 1995, 30 July
1997, 8 August 1997, 18 February 1998, 16 June 1999, 23 August 2000).
28. Article 196 bis of the Code of Criminal Procedure, introduced by
Article 78 of Law No. 189 of 22 December 2015 reads as follows:
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION
A. Admissibility
31. The Court observes that the Government have not raised any
objection ratione materiae. However, it reiterates that the applicability of a
provision relates to the Court’s competence ratione materiae to assess a
complaint, and therefore is a matter which goes to the Court’s jurisdiction
and which it is not prevented from examining of its own motion (see,
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1. General principles
32. Article 6 § 2 safeguards “the right to be presumed innocent until
proved guilty according to law”. Viewed as a procedural guarantee in the
context of a criminal trial itself, the presumption of innocence imposes
requirements in respect of, inter alia, the burden of proof, legal
presumptions of fact and law, the privilege against self-incrimination,
pre-trial publicity and premature expressions, by the trial court or by other
public officials, of a defendant’s guilt (see Allen v. the United Kingdom
[GC], no. 25424/09, § 93, ECHR 2013 and the case-law cited therein for
examples of the above situations).
33. However, in keeping with the need to ensure that the right
guaranteed by Article 6 § 2 is practical and effective, the presumption of
innocence also has another aspect. Its general aim, in this second aspect, is
to protect individuals who have been acquitted of a criminal charge, or in
respect of whom criminal proceedings have been discontinued, from being
treated by public officials and authorities as though they are in fact guilty of
the offence charged (ibid., § 94).
34. As expressly stated in the terms of the Article itself, Article 6 § 2
applies where a person is “charged with a criminal offence”. The Court has
repeatedly emphasised that this is an autonomous concept and must be
interpreted according to the three criteria set out in its case-law, namely the
classification of the proceedings in domestic law, their essential nature, and
the degree and severity of the potential penalty (see, among many other
authorities on the concept of a “criminal charge”, Engel and Others
v. the Netherlands, 8 June 1976, § 82, Series A no. 22, and Phillips
v. the United Kingdom, no. 41087/98, § 31, ECHR 2001-VII). To evaluate
any complaint under Article 6 § 2 arising in the context of judicial
proceedings, it is first of all necessary to ascertain whether the impugned
proceedings involved the determination of a criminal charge, within the
meaning of the Court’s case-law (see Allen, cited above, § 95).
35. However, in cases involving the second aspect of the protection
afforded by Article 6 § 2, which arises when criminal proceedings have
terminated, it is clear that the application of the foregoing test is
inappropriate. In these cases, the criminal proceedings have, by necessity,
been concluded and unless the subsequent judicial proceedings give rise to a
new criminal charge within the Convention’s autonomous meaning, if
Article 6 § 2 is engaged, it must be engaged on different grounds (ibid.,
§ 96).
36. The Court has in the past been called upon to consider the
application of Article 6 § 2 to judicial decisions taken following the
conclusion of criminal proceedings, either by way of discontinuation or
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applicant’s possible guilt. It follows that there is no doubt that there existed
a link between the two determinations (see, a contrario, Martìnez Agirre
and Others v. Spain, (dec.), nos. 75529/16 and 79503/16, § 52, 25 June
2019), which in the present case occurred in the same set of proceedings,
and that therefore Article 6 § 2, under its second limb, is applicable to the
present proceedings.
39. The Court notes that this 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
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cases where criminal proceedings had been simply discontinued and cases
where a final judgment of acquittal had been delivered (see Sekanina
v. Austria, 25 August 1993, Series A no. 266-A). Moreover, the
Government pointed out that the Court had not adopted one single approach
to ascertaining an alleged violation of Article 6 § 2, since much depended
on the nature and context of the proceedings in which the impugned
decision had been adopted (as the Court had established in Allen, cited
above, § 125).
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in that regard, and Allen, cited above, § 122 with further references). In
contrast, the Court has previously considered that the presumption of
innocence will be violated in cases concerning statements after the
discontinuation of criminal proceedings if, without the accused’s having
previously been proved guilty according to law and, in particular, without
his having had an opportunity to exercise the rights of the defence, a judicial
decision concerning him reflects an opinion that he is guilty (see, inter alia,
Minelli v. Switzerland, 25 March 1983, § 37, Series A no. 62, and Englert
v. Germany, 25 August 1987, § 37, Series A no. 123; see also, most
recently, G.I.E.M. S.R.L. and Others, cited above, §§ 315-16, and Stirmanov
v. Russia, no. 31816/08, § 45, 29 January 2019).
51. In cases concerning compliance with the presumption of innocence,
the language used by the decision-maker will be of critical importance in
assessing the compatibility of the decision and its reasoning with
Article 6 § 2. However, when regard is had to the nature and context of the
particular proceedings, even the use of some unfortunate language may not
be decisive (see Allen, cited above, §§ 125-26 with further references).
52. In cases involving civil compensation claims lodged by victims,
regardless of whether the criminal proceedings ended in discontinuation or
acquittal, the Court has emphasised that while exoneration from criminal
liability ought to be respected in the civil compensation proceedings, it
should not preclude the establishment of civil liability to pay compensation
arising out of the same facts on the basis of a less strict burden of proof.
However, if the national decision on compensation were to contain a
statement imputing criminal liability to the respondent party, this would
raise an issue falling within the ambit of Article 6 § 2 of the Convention
(see Allen, cited above, § 123 and the case-law cited therein, and more
recently N.A. v. Norway, cited above, § 30).
53. Extra care ought to be exercised when formulating the reasoning in a
civil judgment after the discontinuation of criminal proceedings (see
Fleischner, cited above, §§ 64 and 69). While use of some unfortunate
language may not necessarily be incompatible with Article 6 § 2 depending
on the nature and context of the particular proceedings (see paragraph 51
above), the Court has found that the presumption of innocence was violated
in situations where the civil courts held that it was “clearly probable” that
the applicant had committed a criminal offence or expressly indicated that
the available evidence was sufficient to establish that a criminal offence had
been committed (see Allen, cited above, §§ 125-26, with further references
to the relevant precedents, including Y. v. Norway, cited above, § 46, and
Diacenco, cited above, § 64).
54. When assessing the impugned statements, the Court must determine
their true sense, having regard to the particular circumstances in which they
were made (see Bikas v. Germany, no. 76607/13, § 46, 25 January 2018).
Even the use of expressions from the sphere of criminal law has not led the
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acts of misappropriation of funds with which he had been charged, and that
there was no doubt as to the existence of the deliberate intent (dolo), went
too far and amounted to statements imputing criminal liability to him
(compare, Y. v. Norway, cited above, § 46; Diacenco, cited above § 64,
Panteleyenko v. Ukraine, no. 11901/02, § 70, 29 June 2006, and Farzaliyev
v. Azerbaijan, no. 29620/07, § 67, 28 May 2020). Indeed, that terminology
went beyond a reference to the constitutive elements of an offence - which
could be relevant both for civil as well as criminal responsibility - but
expressly found that the applicant’s actions had amounted to the acts with
which he had been charged. Those words thus amounted to an unequivocal
pronouncement that the applicant had committed a criminal offence (see
Lagardère, cited above, § 81, Farzaliyev, cited above, § 67 and, a contrario,
Fleischner, cited above, § 63). Therefore, those findings were inconsistent
with the discontinuance of the relevant charges owing to the expiry of a
limitation period. It follows that the wording used by the Judge of Criminal
Appeals violated the applicant’s right to the presumption of innocence.
65. There has accordingly been a violation of Article 6 § 2.
A. Damage
67. The applicant claimed the restitution of all the sums of money that
he had been sentenced to pay in respect of pecuniary damage, and a sum
between EUR 10,000 and EUR 20,000 in respect of non-pecuniary damage,
owing to the distress and the moral suffering resulting from the violation of
his Convention rights.
68. Referring to the Court’s case-law the Government noted that damage
had to be in a relationship of cause and effect with the established violation.
In the Government’s opinion, in the instant case there was no causal link
between the alleged violation and the pecuniary damage alleged by the
applicant. Moreover, the applicant had presented his claims in a generic
way. The applicant had not even indicated the precise amount of money that
he claimed in respect of pecuniary damage, nor had he provided evidence
that he had actually returned to company S.M.I. the money that he had been
sentenced to pay. Moreover, as to non-pecuniary damage, the applicant had
based his request on a generic and not substantiated “distress and moral
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70. The applicant claimed EUR 139,360.35 for legal costs and expenses
in the proceedings before the domestic courts and EUR 20,000 in the
proceedings before the Court.
71. As to the claim for reimbursement of legal costs incurred at national
level, the Government considered that the applicant had provided no
evidence of having actually paid such costs. Moreover, the latter referred to
services that would in any case have been provided for the applicant’s legal
assistance in the domestic proceedings. In this connection, the Government
noted that in such proceedings the applicant had not only been charged with
aggravated embezzlement, but also with the offences of unlawful exercise
of fiduciary activity, false corporate reporting and obstacle to the exercise of
fiduciary functions. Thus, the applicant’s claim was not directly related to
the alleged violation, given that he had not specified which part of such
sums had been devoted to remedying the alleged violation. In any case, it
was undisputed that the alleged violation had solely concerned the appeal
proceedings and not the proceedings in their entirety, while the sums
claimed by the applicant appeared to refer to his legal assistance at both
instances.
72. The Government also rejected the claim for reimbursement of the
costs for the proceedings before the Court because the applicant had
provided no evidence that he had actually paid them.
73. According to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are reasonable as
to quantum. Regard being had to the documents in its possession and the
above criteria, the Court rejects the claim for costs and expenses in the
domestic proceedings which would in any event have been incurred and
have not arisen as a result of the violation as upheld, and considers it
reasonable to award the sum of EUR 5,000 for the proceedings under the
Convention.
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C. Default interest
74. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
2. Holds, by six votes to one, that there has been a violation of Article 6 § 2
of the Convention;
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PASQUINI v. SAN MARINO (No. 2) JUDGMENT
P.L.
O.C.
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Appeals explicitly held that while the relevant criminal charges (including
embezzlement) had to be discontinued as being time-barred, the civil claims
upheld in the first-instance judgment, by which the applicant had been
sentenced, had to be maintained. It follows that, when reading the appellate
judgment in its entirety, there is no doubt that the applicant was not declared
guilty, but that he was nevertheless held civilly liable for the damage
sustained by S.M.I. based on the considerations made by the Judge of
Criminal Appeals. This particular context in the present case is a central
element in making a correct assessment of the measure, which as a whole
does not contain any finding of guilt. In particular, it should be stressed that
the finding of dolo does not contain any reference to criminal liability: the
judge is referring, in fact, to “deliberate intent” and not to “criminal intent”.
12. The reading of the judgment does not affect the public’s perception
of the applicant’s reputation, namely that of a person who was charged with
acts of embezzlement in proceedings that have since been declared statute-
barred and who is required to compensate for the damage caused by the
misappropriation of funds belonging to others. From this standpoint, the
close proximity and concomitance of the two outcomes – declaration of
statute-barred proceedings, and award of damages for the same acts –
constitute a guarantee that no one should be led to believe that the applicant
was found guilty under the criminal law. The representation of the applicant
resulting from the judgment is that determined by the reality of the case: a
person who has not been declared criminally liable because the charge
became time-barred during the proceedings, and who has been sentenced to
pay compensation for damage resulting from the misappropriation of which
he was accused.
13. It is necessary to reiterate, in this connection, that if the mere finding
of liability for payment of damages, in spite of an acquittal or
discontinuance, were to raise an issue under Article 6 § 2, one would have
to abolish such civil liability actions, which are in fact present and common
in many judicial systems and which are in principle compatible with the
Convention, as evidenced by case-law (see, mutatis mutandis, Vella
v. Malta, no. 69122/10, § 60, 11 February 2014).
14. In the present judgment, the Chamber refers repeatedly to the case of
Fleischner (cited above). In that case the charges against the applicant were
also time-barred. In subsequent civil proceedings, however, the civil judge
stated that the applicant’s actions had “fulfilled the constitutive elements of
deprivation of liberty under Article 239 of the Criminal Code and of
coercion under Article 240 of the Criminal Code”. The judgment goes on to
establish that: “this was not a statement about the applicant’s guilt”,
explaining that “[t]he District Court [had] deliberately used the technical
legal term ‘constitutive elements’ (Tatbestand) to make it clear that it had
solely assessed certain elements of a penal provision that could be the basis
for both criminal and civil liability. It [had] limited itself to that finding and
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[had] not expressly [found] that the applicant had committed the offences”
(ibid., § 63). The judgment then underlines the fact that the civil claim had
not been brought in the criminal proceedings, but separately and
subsequently before another judge. It will be difficult for national judicial
authorities in general to understand the reason why a direct statement
relating to the fulfilment of the elements – objective and subjective – of the
offence should not be equated with the statements made in the judgment of
the Judge of Criminal Appeals; there being no direct statement of criminal
liability in the judgment of the latter either (as explained above in paragraph
7). The act of embezzlement, and the existence of a certain mental attitude,
are constitutive elements of both civil and criminal liability also in the San
Marino system (as explained above in paragraph 10). Even the Judge of
Criminal Appeals confined himself to saying that the applicant
misappropriated the sums (as is clear from the subsequent reference to the
need to distinguish between the assets of the company and those of the
shareholder; see paragraph 3 above), and to ascertaining his mental attitude
in doing so, without any criminal characterisation (“deliberate intent”, not
“criminal intent”). There was no reasoning suggesting that the court
regarded the accused as “guilty” (see Bikas v. Germany, no. 76607/13, 25
January 2018). The claim for civil relief and the related assessment were
actually part of the same criminal proceedings. However, as mentioned in
paragraph 12 above, this circumstance can rather be regarded as an element
that reinforces the impression that the applicant did not commit any crime,
precisely because at the same time, and alongside the civil award of
damages, the discontinuance of the criminal proceedings was established.
Paragraph 62 of the judgment states that “[i]n other words, the Judge of
Criminal Appeals did not only determine the actus reus but went further and
stated that the applicant’s acts were made with the requisite mens rea –
which in this case he considered to be dolo”. The same thing can be found
in paragraph 63 of the Fleischner judgment (cited above), where it refers to
“constitutive elements” in the plural. Therefore, the objective element, with
the subjective element (Tatbestand, in San Marino law fattispecie), are
insufficient to entail criminal guilt in both cases. The assessment as to a
violation of the presumption of innocence principle should perhaps consider
whether the judgment in question imputes criminal liability in a more
global, less sophisticated, way. The impact on a person’s reputation and
public perception are the most important elements, which the Court’s
jurisprudence has long identified, in this connection. In the light of the
above, in my opinion, the present judgment appears not to be completely
consistent with the Court’s previous case-law.
15. From a general point of view, therefore, the type of mental attitude
held by the injuring party, already at a purely logical level, does not
constitute a neutral circumstance with respect to the existence and
quantification of the non-pecuniary damage. The consequences for the
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PASQUINI v. SAN MARINO (No. 2) JUDGMENT – SEPARATE OPINION
injured party, from this perspective, change significantly if the damage was
inflicted with the will to cause damage or as a result of mere negligence. For
example, the moral impact and suffering caused by a deliberate punch to a
person’s face will be different if the same blow comes from a sudden and
involuntary movement. It is therefore relevant, also for the civil judge, to
carry out an assessment, even a detailed one, of the defendant’s mental
attitude.
16. It is also necessary to take into account the fact that the laws of some
countries – see, for example, the combined provisions of Article 2059 of the
Italian Civil Code and Article 185 of the Italian Criminal Code – provide
that non-pecuniary damage can be compensated for only where the
commission of a criminal offence is established. In such cases, the civil
judge is not only entitled to ascertain the existence of the crime, but must do
so every time criminal proceedings have not taken place, as well as when
they have not reached a decision on the merits. It is important for the judge
also to rule on this latter aspect. The civil judge can legitimately, in my
opinion, and without incurring any violation of Article 6 § 2, establish,
while respecting certain procedural safeguards, that a person has committed
or has not committed a criminal offence, in order to decide – among other
things – on the existence of, and compensation for, the damage deriving
from that offence. This is a conclusion that does not appear to be in contrast
with what was established by the Grand Chamber in the Allen case (cited
above) – which does not contain any prohibition for the civil judge to
proceed with a verification of the existence of the offence as such – but one
on which there does not seem to be a clear position in the Court’s
jurisprudence, which tends rather towards a very detailed assessment of the
language used.
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