THIRD SECTION

CASE OF PASQUINI v. SAN MARINO (No. 2)

(Application no. 23349/17)

JUDGMENT

Art 6 § 2 • Presumption of innocence • Judge of Criminal Appeals’ remarks

while deciding compensation to the victim after having discontinued
charges as time-barred •Statements not merely use of unfortunate language
and amounting to imputation of criminal liability • Extra care to be
exercised when formulating reasoning in a civil judgment after
discontinuation of criminal proceedings

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

In the case of Pasquini v. San Marino (no. 2),

The European Court of Human Rights (Third Section), sitting as a
Chamber composed of:
Paul Lemmens, President,
Georgios A. Serghides,
Alena Poláčková,
María Elósegui,
Gilberto Felici,
Erik Wennerström,
Ana Maria Guerra Martins, judges,
and Olga Chernishova, Deputy Section Registrar,
Having deliberated in private on 8 September and 22 September 2020,
Delivers the following judgment, which was adopted on the last-
mentioned date:

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

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

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A. The first-instance proceedings

7. On 1 June 2011, following an inspection of the headquarters of

company S.M.I. (a fiduciary company operating in San Marino), the Central
Bank of San Marino (Banca Centrale) submitted to the investigating judge
(Commissario della Legge Inquirente) a report concerning, inter alia, some
suspicious financial operations carried out by the applicant (at the material
time the chairman and sole shareholder of company S.M.I.) and another
person, B. (at the material time the director of company S.M.I.), in their
respective roles in the company. The report alleged the commission of
various offences on the part of the applicant and B.
8. On an unspecified date criminal proceedings were instituted against
the applicant and B. In particular, the applicant was charged with: i) the
offence of “exercising fiduciary activity without a licence”; ii) three counts
of the offence of “obstruction of surveillance”; iii) the offence of
“misreporting to shareholders and supervisory boards”; and iv) the
continuing offence of embezzlement (aggravated because of his role as
administrator). As to the latter charge, according to the prosecution the
applicant, between April 2009 and 10 March 2010, had personally
withdrawn 2,633,055.77 euros (EUR) from a fiduciary account opened by
company S. and administered by company S.M.I. According to the
prosecution the applicant was the beneficial owner (titolare effettivo) of
company S., and he had withdrawn those funds in order to pay invoices
issued for non-existent services notionally provided to company S.M.I. by
company S. and other named foreign companies. In that way, in the
prosecution’s opinion, the applicant had embezzled the above-mentioned
sums of money, to the detriment of company S.M.I.
9. On an unspecified date company S.M.I., represented by its liquidators,
as it had meanwhile gone into compulsory liquidation (liquidazione coatta
amministrativa), joined the criminal proceedings as a civil party.
10. By a judgment of 8 April 2014 the first-instance judge (Commissario
della Legge Decidente) found the applicant (and B.) guilty of all the
offences as charged, and sentenced the applicant to four years’
imprisonment and a fine, and also ordered him to compensate company
S.M.I. by paying it a sum of money to be quantified in separate civil
proceedings. However, the judge issued an interim compensation order
(provvisionale) of EUR 2,633,055.77 in favour of the civil party.
11. As to the aggravated embezzlement, according to the first-instance
judge the investigation carried out by the Central Bank had shown that the
accused persons had established a complex system consisting in the creation
of multiple foreign companies (acting as brokers) through which they had
misappropriated funds [belonging to company S.M.I.] by means of
simulated business brokerage operations. All those irregular operations were
traceable back to the representatives of company S.M.I. in their capacity as

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 PASQUINI v. SAN MARINO (No. 2) JUDGMENT

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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B. The appeal proceedings and the proceedings before the

constitutional jurisdiction

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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 PASQUINI v. SAN MARINO (No. 2) JUDGMENT

evidence concerning the subjective element (but confirmed the others);

(iii) ruled that the offences of “obstruction of surveillance” (the other
counts), “misreporting to shareholders and supervisory boards” and
aggravated embezzlement were time-barred, and discontinued the latter
charges; (iv) upheld the remaining parts of the first-instance judgment,
including the compensation order.
19. In particular, according to the judgment, in relation to the charges
which had become time-barred (including that of embezzlement), in line
with the domestic law requirements (see paragraph 24 below), the Judge of
Criminal Appeals considered that the reasoning of the first-instance
judgment had not indicated that the alleged facts had never occurred or that
the accused had not committed them, thus there was no room for any other
finding save that of declaring the charges discontinued.
20. The Judge of Criminal Appeals then examined the remaining
charges which were not time-barred, and made his findings on the merits in
respect of those charges (see paragraph 17 above).
21. Lastly, the Judge of Criminal Appeals specified that he had to
scrutinise the elements on which the applicant’s first-instance conviction of
the continuing offence of aggravated embezzlement had been based,
exclusively in order to decide on compensation for damage (statuizioni
civili), in the light of the fact that the relevant charges (for aggravated
embezzlement) had been discontinued.
22. Thus, as to the merits of the civil claims, having considered the
submissions made on appeal, the Judge of Criminal Appeals upheld the
first-instance judge’s finding of fact that the applicant and B. had created
multiple foreign companies via which they had misappropriated the funds of
company S.M.I. In particular, they had simulated brokerage services which
had never in fact been provided. According to the Judge of Criminal
Appeals, the elements mentioned below had shown that the payment of
these commissions (provvigioni) covered the misappropriation of company
S.M.I.’s funds – which in the judge’s opinion had allowed the applicant to
obtain a considerable amount of money in a non-transparent way. In
particular, the judge considered: (i) the amount of the sums payable, which
was far greater than the percentage ordinarily payable in commissions, and
in certain cases had amounted to approximately 50% of the sums which had
[notionally] been paid by the fictitious clients; (ii) the fact that the payments
were repeated annually, whereas business brokerage was normally a one-off
service; (iii) the absence of real and documented business relationships
between company S.M.I. and the brokerage companies, which were located
in low-tax jurisdictions and did not have the appropriate administrative
structures; and (iv) the fact that the brokerage companies were, in reality,
traceable back to the applicant and B., to the extent that the latter had made
multiple withdrawals [of money] from the companies’ bank accounts. Such
withdrawals were sometimes made in more or less the same periods as the

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payments made by company S.M.I., as indicated, in detail, in the Central

Bank’s report (inter alia, the withdrawals made by the applicant from the
account in the name of company S.). According to the judge, all the
payments which had been made to the brokerage companies and which had
been indicated in the indictment had concealed the transfer of money from
company S.M.I. to other companies which were traceable back to the
applicant and B. The accused persons, who could have, legitimately, kept
the profits and remuneration for their activity (registered in the accounts as
payments to them from company S.M.I.), had, instead, irregularly disposed
of company S.M.I.’s funds, by registering large sums of money in the name
of foreign brokerage companies, in order to evade taxes and to leave no
trace of the origin of the money in question. In that way, company S.M.I.
(rather than the brokers) had suffered damage from the crime of
embezzlement. In the judge’s view, such conduct indisputably had to be
characterised as such (pacificamente configurabile come tale), given that the
patrimony of a company is distinct from the shareholder’s personal
patrimony. The judge noted that, in order to dispose of a company’s funds,
it was necessary to document, in a legitimate and transparent way, the
various financial movements and the reasons for such movements, in order
to safeguard creditors and third parties. In the judge’s opinion, it was
evident that the accused persons had not made use of the sums in question
to the advantage, or in the interests, of company S.M.I.
23. The fact that the accused persons had appropriated those sums and
had disposed of them as though they were their own had thus amounted to
the acts of misappropriation of funds, i.e. the conduct with which they had
been charged (integra agevolmente gli estremi della condotta appropriativa
contestata). Moreover, there was no doubt as to the existence of deliberate
intent (dolo), since the entire plan (meccanismo) had been put in place in
order to carry out abusive acts in relation to the company’s funds. Nor was
it credible that the applicant and B. had truly believed that they had the right
to use the sums as if they were their own, since, had that been so they would
not have orchestrated the various transfers but would simply have
withdrawn the money directly. It followed that, while the criminal charges
had to be discontinued as being time-barred, the civil claims upheld at first
instance on the presupposition of the [applicant’s] criminal responsibility
had to be maintained in accordance with Article 196 bis of the Code of
Criminal Procedure.

II. RELEVANT DOMESTIC LAW AND PRACTICE

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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 PASQUINI v. SAN MARINO (No. 2) JUDGMENT

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) ...”

B. Code of Criminal Procedure

25. Articles 1 and 3 of the Code of Criminal Procedure read, as follows:

“1. A civil action can be instituted separately, in which case it is regulated by the
norms of civil procedure, or contemporaneously with the criminal action. In the latter
case the claim for damage is registered in the criminal proceedings, and the deciding
judge will decide on the matter as established in Chapter XX1 of this Code.
3. Every crime gives rise to a criminal action. A civil action also arises when the
crime causes damage, physical or moral, to the passive subject of the crime [the
victim] and the civil action may be pursued by anyone having an interest in obtaining
indemnification.”

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 PASQUINI v. SAN MARINO (No. 2) JUDGMENT

26. Article 196 of the Code of Criminal Procedure reads, in so far as

relevant, as follows:

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:

Article 196 bis

“When an accused person has been sentenced to restitute items or to pay to a civil
party compensation for damages caused by an offence - even if the damages are yet to
be quantified - the judge of appeal, who declares the offence time-barred, shall decide
on the pleas concerning the obligations deriving from the offence, in accordance with
Article 140 of the Criminal Code.”

THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION

29. The applicant complained of a violation of the presumption of

innocence, as provided in Article 6 § 2 of the Convention, which reads as
follows:
“2. Everyone charged with a criminal offence shall be presumed innocent until
proved guilty according to law.”
30. The Government contested that argument.

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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mutatis mutandis, Pasquini v. San Marino, no. 50956/16, § 86, 2 May

2019).

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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after an acquittal, in proceedings concerning, inter alia, the imposition of

civil liability to pay compensation to the victim (see Ringvold v. Norway,
no. 34964/97, § 36, ECHR 2003-II; Y. v. Norway, no. 56568/00, § 39,
ECHR 2003-II; Orr v. Norway, no. 31283/04, §§ 47-49, 15 May 2008;
Erkol v. Turkey, no. 50172/06, §§ 33 and 37, 19 April 2011; Vulakh and
Others v. Russia, no. 33468/03, § 32, 10 January 2012;
Diacenco v. Romania, no. 124/04, § 55, 7 February 2012;
Lagardère v. France, no. 18851/07, §§ 73 and 76, 12 April 2012;
Constantin Florea v. Romania, no. 21534/05, §§ 50 and 52, 19 June 2012;
Vella v. Malta, no. 69122/10, § 44, 11 February 2014; N.A. v. Norway,
no. 27473/11, § 42, 18 December 2014; and Fleischner v. Germany,
no. 61985/12, § 62, 3 October 2019).
37. In Allen (cited above, §§ 103-04) the Grand Chamber formulated the
principle of the presumption of innocence in the context of the second
aspect of Article 6 § 2 as follows:
“[T]he presumption of innocence means that where there has been a criminal charge
and criminal proceedings have ended in an acquittal, the person who was the subject
of the criminal proceedings is innocent in the eyes of the law and must be treated in a
manner consistent with that innocence. To this extent, therefore, the presumption of
innocence will remain after the conclusion of criminal proceedings in order to ensure
that, as regards any charge which was not proven, the innocence of the person in
question is respected. This overriding concern lies at the root of the Court’s approach
to the applicability of Article 6 § 2 in these cases.
Whenever the question of the applicability of Article 6 § 2 arises in the context of
subsequent proceedings, the applicant must demonstrate the existence of a link, as
referred to above, between the concluded criminal proceedings and the subsequent
proceedings. Such a link is likely to be present, for example, where the subsequent
proceedings require examination of the outcome of the prior criminal proceedings
and, in particular, where they oblige the court to analyse the criminal judgment; to
engage in a review or evaluation of the evidence in the criminal file; to assess the
applicant’s participation in some or all of the events leading to the criminal charge; or
to comment on the subsisting indications of the applicant’s possible guilt.”

2. Application to the present case

38. The Court notes that in the present case the criminal proceedings
ended on appeal with a discontinuation of proceedings because they had
become time-barred. As a result of the new law, the same Judge of Criminal
Appeals who had determined the criminal charge was also competent to
decide the compensation due to the victim. In the Court’ view, while the
proceedings were one and the same, the determination of the compensation
to the victim was a stage which was subsequent to the discontinuance of the
criminal proceedings. At that stage, the Judge of Criminal Appeals was
required to analyse the prior criminal findings and to engage in a review or
evaluation of the evidence in the criminal file. He or she also had to assess
the applicant’s participation in some or all of the events leading to the
criminal charge and comment on the subsisting indications of the

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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

1. The parties’ submissions

(a) The applicant
40. The applicant argued that, for the purposes of Article 6 § 2, a
judgment dismissing a case owing to the expiry of a limitation period was
comparable to a judgment of acquittal on the merits, and that neither type of
judgment could contain a declaration of the defendant’s criminal
responsibility, in the abstract or in practice. The applicant noted that, for the
purposes of Article 6 § 2, in Lagardère v. France (no. 18851/07, 12 April
2012) the Court had distinguished between judgments of conviction and
judgments of dismissal, while in Allen (cited above, § 94) it had compared
an acquittal on the merits to the dismissal of a case. In particular, in Allen,
cited above, the Court had found that the fact that a judgment of acquittal
which had also decided on compensation had contained a declaration of
criminal responsibility had violated the presumption of innocence.
Moreover, in Ringvold and Y. v. Norway (both cited above) the Court had
held that the fact that a domestic decision on compensation contained a
statement imputing criminal liability to an applicant could raise an issue in
connection with Article 6 § 2.
41. According to the applicant, the Judge of Criminal Appeals, while
discontinuing the charges on the grounds of expiry of the relevant limitation
period (therefore, in the absence of a final judgment of conviction) had not
only raised a mere suspicion concerning his criminal liability, but had
clearly stated that he had committed the offence of embezzlement to the
detriment of company S.M.I. The latter finding had been the result of an
assessment carried out by that court, in the same criminal proceedings,
while deciding on compensation for damage. Thus, as in Garycki v. Poland
(no. 14348/02, § 67, 6 February 2007) the declaration of the applicant’s
criminal liability by the judge had been made outside the context of a
conviction, which had therefore violated Article 6 § 2.

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(b) The Government

42. The Government emphasised that at both first and second instances
the domestic courts had fully established the applicant’s criminal
responsibility for the offence of embezzlement, and that, on appeal, the
applicant’s case had been discontinued in part solely because the relevant
limitation period had expired.
43. The Government noted that, in accordance with Article 59 of the
Criminal Code (see paragraph 24 above), when the relevant limitation
period had expired, at any stage in the proceedings, the judge had to apply
the statute of limitation, unless, up to that point, it was already clearly
established that the defendant was innocent. Only in the latter case was the
judge obliged to acquit the defendant on the merits without dismissing the
case on the grounds of expiry of the limitation period. Thus, in the
Government’s view, a judgment dismissing a case on the grounds of expiry
of the relevant limitation period was not the same as an acquittal on the
merits but, on the contrary, was equivalent to a “hypothetical judgment of
conviction” (sentenza di condanna in ipotesi), given that the latter judgment
had assessed the defendant’s criminal liability for a given crime in the
abstract (even without applying the relevant punishment).
44. In the Government’s opinion, the fact that the Judge of Criminal
Appeals had decided to discontinue the charges on the grounds of expiry of
the limitation period and had not acquitted the applicant on the merits (in
the absence of the conditions required by law for an acquittal at that stage)
implied that the judge, de facto, had found the applicant guilty of the
offence as charged, even without applying the relevant penalty in
accordance with the statute of limitations.
45. According to the Government, it followed that, in the light of the
above-mentioned Article 59 of the Criminal Code, the presumption of
innocence had not been violated (and could not even be applied to the
appeal judgment) since the applicant’s innocence had been clearly excluded
by the Judge of Criminal Appeals.
46. In addition, the Government noted that, pursuant to Article 196 bis
of the Code of Criminal Procedure (see paragraph 26 above) (a provision
which is similar to Article 578 of the Italian Code of Criminal Procedure)
the Judge of Criminal Appeals had assessed and rejected all the pleas
submitted by the applicant only in order to decide on the compensation of
the damage deriving from the offence.
47. Relying on Allen, and Y. v. Norway (both cited above), the
Government acknowledged that the Court had found a violation of the
presumption of innocence if, in the absence of a final judgment of
conviction, a judicial decision had given the idea that the defendant was
guilty, and, likewise, if a judgment establishing non-contractual negligence
had contained statements attributing criminal liability to the defendant.
However, they considered that the Court had drawn a distinction between

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 PASQUINI v. SAN MARINO (No. 2) JUDGMENT

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).

2. The Court’s assessment

(a) General principles
48. The second aspect of the protection afforded by the presumption of
innocence aims 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 (see, generally, Allen, cited above,
§§ 93-94, and G.I.E.M. S.R.L. and Others v. Italy [GC], nos. 1828/06 and
2 others, § 314, 28 June 2018).
49. The second aspect of the protection of the presumption of innocence
comes into play when the criminal proceedings end with a result other than
a conviction (see, for example, Tendam v. Spain, no. 25720/05, §§ 35-41,
13 July 2010, and Vlieeland Boddy and Marcelo Lanni v. Spain,
nos. 53465/11 and 9634/12, §§ 38-49, 16 February 2016). Without
protection to ensure respect for the acquittal or the discontinuation decision
in any other proceedings, the fair-trial guarantees of Article 6 § 2 could risk
becoming theoretical and illusory (see Allen, cited above, § 94). The Court
has found that “following discontinuation of criminal proceedings the
presumption of innocence requires that the lack of a person’s criminal
conviction be preserved in any other proceedings of whatever nature” (see
Allen, cited above, § 102). What is also at stake once the criminal
proceedings have ended is the person’s reputation and the way in which that
person is perceived by the public. To a certain extent, the protection
afforded under Article 6 § 2 in this respect may overlap with the protection
afforded by Article 8 (see, for example, Zollman v. the United Kingdom
(dec.), no. 62902/00, ECHR 2003‑XII, and Taliadorou and Stylianou
v. Cyprus, nos. 39627/05 and 39631/05, §§ 27 and 56-59, 16 October 2008).
50. The Court reiterates that in defining the requirements for compliance
with the presumption of innocence, it has previously drawn a distinction
between cases where a final acquittal judgment had been handed down and
those where criminal proceedings had been discontinued. In cases
concerning statements made after an acquittal had become final, it has
considered that the voicing of suspicions regarding an accused’s innocence
was no longer admissible (see Sekanina, cited above, § 30, for the standards

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 PASQUINI v. SAN MARINO (No. 2) JUDGMENT

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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 PASQUINI v. SAN MARINO (No. 2) JUDGMENT

Court to find a violation of the presumption of innocence where, read in the

context of the judgment as a whole, the use of the said expressions could not
reasonably have been understood as an affirmation imputing criminal
liability (see Fleischner, cited above, §§ 64-65).

(b) Application to the present case

55. The Court notes that, following the discontinuance of the relevant
charges including that of aggravated embezzlement, in deciding on
compensation, the Judge of Criminal Appeals confirmed the compensation
order which had been based on the presupposition of the applicant’s
criminal responsibility as resulted from the first-instance judgment which
sentenced the applicant. The Judge of Criminal Appeals held, inter alia, that
company S.M.I. had suffered damage from the crime of embezzlement; that
the applicant’s conduct amounted to the 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) (see paragraphs 22 and 23 above).
56. The Court takes note of the Government’s submission that,
according to domestic law, the judge would not have been able to
pronounce the discontinuance of the case had the applicant been innocent
(see paragraph 43 above). However, without prejudice to whether or not
Article 59 of the Criminal Code is of itself compatible with Article 6 § 2 of
the Convention, the Court notes that the impugned wording in the present
case does not relate to the conclusion reached for the purposes of the
discontinuance of the criminal proceedings, but to the wording uttered for
the purposes of the civil aspect of the proceedings, namely the
compensation payable to the victim. Thus, the Government’s questionable
defence relying on Article 59 of the Criminal Code has no bearing on the
complaint as submitted by the applicant.
57. The question for the Court in the present case is whether the wording
used by the Judge of Criminal Appeals at that stage (see paragraphs 22
and 23 above) should be construed as imputing criminal liability to the
applicant. Accordingly, the Court will look at the context of the proceedings
as a whole and their special features in order to determine whether by using
such a statement the court determining the civil claim breached Article 6 § 2
of the Convention (compare Fleischner, cited above, § 65).
58. Firstly, the Court notes that the civil claim was dealt with in the
ambit of the criminal proceedings (compare Lagardère, cited above, § 46
and see, a contrario, Fleischner, cited above, § 66). Thus, while the Judge
of Criminal Appeals had to determine the compensation claim on the basis
of the applicant’s civil responsibility and therefore the applicable civil law,
it was not undertaken within a different framework from that of the criminal
proceedings (see, a contrario, Fleischner and Vella, both cited above, §§ 66
and 60 respectively).

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 PASQUINI v. SAN MARINO (No. 2) JUDGMENT

59. Secondly, the determination of the Judge of Criminal Appeals which

concerned precisely the same facts imputed to the applicant during the
criminal proceedings (see, a contrario, Fleischner, cited above, § 68) -
namely, whether the applicant had or had not embezzled funds to the
detriment of S.M.I. - was carried out without any distinction as to the legal
characterisation of those acts (in this connection see paragraph 22 above
with reference to the “crime of embezzlement”).
60. Thirdly, the Judge of Criminal Appeals had to rely on the same
evidence which existed in the criminal case-file, and no new evidence had
been submitted (see, a contrario, Fleischner and Vella, both cited above,
§§ 67 and 59 respectively).
61. Further, the Judge of Criminal Appeals, albeit making his own
assessment of those facts, ultimately confirmed the criminal court’s finding
of fact at first-instance, and proceeded to confirm the interim compensation
order (which had originally to be decided definitively in a separate civil
court) without undertaking any relevant considerations as to the amount of
that damage which was now being awarded definitively (see, a contrario,
Fleischner, cited above, § 67). Thus, on this matter the Judge of Criminal
Appeals relied entirely on the first-instance judgment.
62. Moreover, in the context of deciding on the civil claims, the Judge of
Criminal Appeals based his decision on a clear finding that S.M.I. had
suffered damage from the crime of embezzlement and that the conduct of
the accused (the applicant and B.) amounted to the acts of misappropriation
of funds with which they had been charged. Thus, the Judge of Criminal
Appeals established unequivocally that the applicant’s actions amounted to
the criminal acts of which he had been charged (see Lagardère, cited above,
§ 46), going even further by explicitly finding that the applicant had
committed those acts with deliberate intent (dolo) (see paragraph 23 above).
In 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.
63. It is true that, in the present case, the applicant had already been
found guilty at first-instance. However, the Court’s case-law does not
distinguish between cases where charges are discontinued (because they
become time-barred) before any criminal determination is made, or those
which are discontinued (for the same reason) after an initial finding of guilt.
It follows that first-instance findings, which are not final, cannot taint
subsequent determinations and the Court reiterates that 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).
64. In the present case the impugned statements cannot be considered
solely as the use of unfortunate language. The Court considers that the
words used by the Judge of Criminal Appeals when deciding on the matter
of compensation, finding that the applicant’s behaviour had amounted to the

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 PASQUINI v. SAN MARINO (No. 2) JUDGMENT

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.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

66. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”

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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 PASQUINI v. SAN MARINO (No. 2) JUDGMENT

suffering” and had failed to indicate on the basis of which parameters he

had calculated the amount of the alleged damage.
69. The Court considers that it cannot speculate as to what the outcome
of the proceedings relating to the civil claim would have been had the Judge
of Criminal Appeals not disregarded the applicant’s right to the presumption
of innocence. It therefore considers that no award can be made in respect of
the applicant’s claim for pecuniary damage. The Court, however, awards the
applicant EUR 10,000 in respect of non-pecuniary damage.

B. Costs and expenses

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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 PASQUINI v. SAN MARINO (No. 2) JUDGMENT

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.

FOR THESE REASONS, THE COURT

1. Declares, unanimously, the application admissible;

2. Holds, by six votes to one, that there has been a violation of Article 6 § 2
of the Convention;

3. Holds, by six votes to one,

(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 10,000 (ten thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR 5,000 (five thousand euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;

4. Dismisses, unanimously, the remainder of the applicant’s claim for just

satisfaction.

Done in English, and notified in writing on 20 October 2020, pursuant to

Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova Paul Lemmens

Deputy Registrar President

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 PASQUINI v. SAN MARINO (No. 2) JUDGMENT

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

the Rules of Court, the separate opinion of Judge Felici is annexed to this
judgment.

P.L.
O.C.

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 PASQUINI v. SAN MARINO (No. 2) JUDGMENT – SEPARATE OPINION

DISSENTING OPINION OF JUDGE FELICI

1. I respect the reasoning of the Chamber and the decision it has
reached, with which – however – I do not agree. The reasons, which I will
illustrate very briefly, concern both the application of the principles in force
in this case and the interpretation given in general terms of the so-called
second aspect of Article 6 § 2 of the Convention.
2. The judgment (in paragraphs 48-54) contains an accurate overview of
the principles established by the Court in relation to the second aspect of the
protection afforded by the presumption of innocence. The main reference is
to the Grand Chamber’s judgment in Allen v. United Kingdom ([GC],
no. 25424/09, ECHR 2013).
The aim 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 if they are in fact
guilty of the offence charged. Without protection to ensure respect for the
acquittal or the discontinuance decision in any other proceedings, the
fair-trial guarantees of Article 6 § 2 could risk becoming theoretical and
illusory. Once the criminal proceedings have ended, what is also at stake is
the person’s reputation and the way in which that person is perceived by the
general public. The voicing of suspicions about the possible guilt of a
defendant is no longer admissible once a final judgment of acquittal has
been handed down; the right to be presumed innocent will be violated in
cases concerning statements made after the discontinuance of criminal
proceedings where, without the person previously having been proved
guilty according to law and, in particular, without his having had an
opportunity to exercise defence rights, 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). In cases concerning respect for the
presumption of innocence, the language used by the decision-maker will be
of critical importance; but consideration has to be given also to the nature
and context of the particular proceedings. Having regard to that nature and
context, sometimes even the use of “unfortunate” language may not be
decisive. The fact that exoneration from criminal liability ought to be
respected in civil compensation proceedings 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: if the domestic decision on
compensation were to contain a statement imputing criminal liability to the
defendant, an issue falling within the ambit of Article 6 § 2 of the
Convention would arise. Even the use of expressions from the sphere of
criminal law has not led the Court to find a violation of the right to the
presumption of innocence where, read in the context of the judgment as a
whole, the use of the said expressions could not reasonably have been

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 PASQUINI v. SAN MARINO (No. 2) JUDGMENT – SEPARATE OPINION

understood as an affirmation imputing criminal liability (see Fleischner

v. Germany, no. 61985/12, §§ 64-65, 3 October 2019).
3. In the present case, the applicant had been found guilty at first
instance in proceedings in which he had fully participated and in which his
defence rights had been secured (contrast Didu v. Romania, no. 34814/02,
§§ 40-42, 14 April 2009; Giosakis v. Greece (no. 3), no. 5689/08, § 41,
3 May 2011; and G.I.E.M. S.R.L. and Others v. Italy [GC], nos. 1828/06 and
2 others, §§ 317-318, 28 June 2018, where the Court found Article 6 § 2 of
the Convention to have been breached by the fact that the appeal courts had
quashed previous acquittals whereas they had at the same time found the
proceedings to be statute-barred; see also Farzaliyev v. Azerbaijan,
no. 29620/07, § 62, 28 May 2020). At second instance, the Judge of
Criminal Appeals upheld the compensation order issued by the first-instance
court which had sentenced the applicant. In respect of the charge of
embezzlement, the judge stated that it had to be dropped as the proceedings
were time-barred. He also stated that the applicant’s conduct could be
characterised as the acts of misappropriation of funds with which he had
been charged and that there was no doubt as to the existence of deliberate
intent (dolo). To be precise, he held: “in that way, company S.M.I. [rather
than the brokers] had suffered damage from the crime of embezzlement –
such conduct indisputably had to be characterised as such, given that the
patrimony of a company is distinct from the shareholder’s personal
patrimony”; also finding that “the fact that the accused persons had
appropriated those sums and had disposed of them as though they were their
own had thus amounted to the acts of misappropriation of funds, i.e. the
conduct with which they had been charged”; and lastly that “there was no
doubt as to the existence of deliberate intent”.
4. If the above principles are to be applied to the present case, it is my
opinion that the most appropriate decision would be one in favour of no
violation.
5. First of all, it must be considered that, following a first-instance
finding of guilt, the applicant opted to raise the objection that the relevant
charges were time-barred and thus waived his right to defend himself on the
merits of those charges at the appeal stage. More importantly, the applicant
chose to take that approach, even though he, or his legal representative, was
or should have been aware that under domestic law, a judge would not be
able to declare a charge statute-barred if the judge was of the view that the
accused was innocent of that charge (see paragraph 24 of the judgment). In
consequence, having regard to the domestic law as it stood, the applicant
was or should have been aware that in order to uphold his plea that the
proceedings were statute-barred (owing to the expiry of a limitation period),
the judge would have had to consider the possibility that he was not
innocent, and thus that the judge would explicitly raise a suspicion as to his
guilt. In choosing to proceed with that plea of his own free will, the

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 PASQUINI v. SAN MARINO (No. 2) JUDGMENT – SEPARATE OPINION

applicant was thus prepared to cast doubt on his innocence, in so far as it

enabled him to avoid punishment. In this connection, the Court recognises
that, in the context of any criminal proceedings, decisions must be made as
to how best to present an accused’s defence at trial. In many cases several
options will be available and it is the responsibility of the accused to select,
with the advice of counsel, the defence which he wishes to put before the
court (see Ebanks v. the United Kingdom, no. 36822/06, § 82, 26 January
2010). However, he or she must then assume the consequences of those
choices. This is an element which characterises both the context and the
nature of the proceedings in the light of the specificities of the domestic
legal framework. It is the applicant who consciously chose not to have the
criminal charge against him examined on the merits, even though this would
have allowed the applicant, if his guilt was unproven, to avoid any
considerations of a civil nature.
6. In such cases, where proceedings are discontinued following a first-
instance judgment finding guilt, and within which the accused’s defence
rights have been respected, a mere voicing of suspicions may be
conceivable and would not necessarily raise an issue under Article 6 § 2.
7. A close analysis of the words used in the judgment by the Judge of
Criminal Appeals shows that he never explicitly stated that the applicant
was guilty of the crime of embezzlement, but rather asserted that the
applicant had materially behaved in the manner alleged in the indictment. In
particular, the statement according to which S.M.I. had sustained damage
from the crime of embezzlement must be read in the whole context of the
reasoning, from which it can clearly be seen that the Judge intended to
underline the distinction between the assets of the company and those of the
shareholder, in order to affirm the prohibition on embezzlement by the latter
of the company’s assets. Thus the misappropriation was the material part of
the charge, and the Judge referred exclusively to it when he mentioned “the
conduct of which they [the applicant and Mr. B, a co-accused in the
domestic proceedings] had been charged”. In other words, there is no clear
and indisputable statement that attributes criminal liability in the full sense
of the term to Mr Pasquini.
8. As mentioned above, the Court’s case-law considers that such
statements have to be seen in their context. Indeed, the statements were
made by the Judge of Criminal Appeals in his examination of the facts, and
in particular of the conduct at issue, solely for the purposes of determining
the applicant’s civil liability and not his criminal liability.
9. In the specific circumstances of the present case, and particularly in
view of the relations between S.M.I. and the applicant at the time of the
impugned conduct (at the material time the applicant was the chairman of
company S.M.I.) it was difficult to determine the applicant’s civil liability
for the damage sustained by S.M.I. without determining that his actions
were likely, at least to the degree necessary in civil proceedings, to

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 PASQUINI v. SAN MARINO (No. 2) JUDGMENT – SEPARATE OPINION

constitute misappropriation of funds; indeed, because of this

misappropriation, the damage in question existed.
10. In reality, under domestic law, the judge had to examine the conduct
imputed to the applicant, in so far as that was necessary or useful to
determine his civil liability, but the examination did not require a finding of
guilt. More importantly, under domestic law, compensation for civil damage
is provided for by the actio ex lege Aquilia. The actio provides
compensation for damage that the plaintiff claims to have suffered as a
result of unlawful behaviour by the defendant. The subjective elements of
this action are deliberate intent (dolo) or negligence (colpa), which must
exist together with the causal link between the event and the conduct of the
injuring party (damnum and iniuria). It is therefore the duty of the judge
whose role it is to assess the existence of such liability to ascertain the
mental attitude of the defendant (the subjective element), which can be
either deliberate intent or negligence. In the present case, therefore, an
assessment of the mental attitude of the applicant (as defendant), was in any
event necessary to establish the existence or not of his civil liability.
This does not consist in a new position; indeed, civil liability also, even
though levissima culpa venit, rarely takes the form of merely objective
liability. In the present case, therefore, it was up to the judge to establish
whether the action that caused the damage stemmed from a mental attitude,
be it negligence or wilful misconduct (dolo). The above-mentioned legal
framework does not dispense the respondent State, and specifically the
courts ruling on the matter, from respecting the rights arising under Article
6 § 2 of the Convention. Thus the Court must nevertheless assess the
language used by the decision-maker, which is of critical importance in
assessing the compatibility of the decision and its reasoning with
Article 6 § 2. However, it should do so bearing in mind the relevant context
and the requirements imposed by the domestic law, as well as the fact that
the civil determination was being made in the same proceedings as those
brought to determine criminal liability.
11. Firstly, in deciding on the civil claim, the judge found that S.M.I.
had sustained damage as a result of the offence of embezzlement and that
the impugned conduct had clearly amounted to the acts of misappropriation
of funds with which the applicant had been charged (the objective element).
It also excluded any good faith on the part of the applicant, holding that
there had been the necessary dolo (subjective element). While relevant to an
assessment of criminal liability, both these elements also had a direct
incidence on the assessment of civil liability, and were therefore part of the
normal exercise of the judge’s duty to determine both the existence of civil
liability and the amount of the damages due (the an and quantum). Further,
the Judge of Criminal Appeals never examined the applicant’s guilt for the
offence of embezzlement and never ruled that the applicant was guilty (see
above, paragraph 7). Moreover, in his conclusion, the Judge of Criminal

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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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 PASQUINI v. SAN MARINO (No. 2) JUDGMENT – SEPARATE OPINION

[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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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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