CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 2 mai 2019

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SAN MARINO   (Application no. 50956/16)                 JUDGMENT         STRASBOURG   2 May 2019       FINAL   02/08/2019   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Pasquini v. San Marino, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Linos-Alexandre Sicilianos, President,   Aleš Pejchal,   Krzysztof Wojtyczek,   Armen Harutyunyan,   Tim Eicke,   Jovan Ilievski,   Gilberto Felici, judges, and Abel Campos, Section Registrar, Having deliberated in private on 19 March 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 50956/16) against the Republic of San Marino lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mr Enrico Maria Pasquini (“the applicant”), on 16 August 2016. 2.     The applicant was represented by Mr A. Pagliano, a lawyer practising in Naples. The Government of San Marino (“the Government”) were represented by their Agent, Mr L. Daniele. 3.     The applicant alleged, under Article 6 § 1 of the Convention, that the composition of the Court for Trusts had been irregular and not prescribed by law. He further complained that the fact that he had had to pay substantial legal costs in order to apply to that court, on the basis of criteria not specified by law and the refusal of leave to appeal in itself had amounted to a violation of his right of access to a court. He also complained that the Judge of Civil Appeals had not been impartial in refusing him leave to appeal, given his previous expression of opinion on the same facts in a connected case. 4.     On 19 June 2017 notice of the application was given to the Government. 5.     The Italian Government did not make use of their right to intervene in the proceedings (Article 36 § 1 of the Convention). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1948 and lives in San Marino. A.     Background to the case 7 .     The applicant owned the entire share capital (and at the material time was also the director) of S.M.I., a fiduciary company operating in San   Marino. Company S.M.I. is currently in compulsory liquidation. 8 .     On an unspecified date an individual, B., conferred a mandate to Z. for the latter to open a fiduciary account ( conto fiduciario ) with company   S.M.I. in his own name but on behalf of the former. Thus, on 2   March 1988 Z. signed a fiduciary management mandate ( mandato di amministrazione fiduciaria ) with company S.M.I. on behalf of B. 9.     As part of the mandate, company S.M.I. opened fiduciary account no.   381 ‑ AF07701 in order to carry out some financial operations concerning securities listed on the Italian Stock Exchange. 10 .     By a contract of 20 March 1990, signed in the context of the above ‑ mentioned fiduciary mandate (on behalf of B.), company S.M.I. and another company, K., purchased from company P.A. some shares of its subsidiary company, A.N. As part of the price for these shares, companies S.M.I. and K: (i) waived a previous debt owed to them by an owner of company P.A., and (ii) undertook to reimburse a debt of 11,000,000,000   Italian liras (LIT) that company P.A. owed an Italian bank, S. (in particular, company S.M.I. undertook to reimburse LIT   9,900,000,000 and company   K. LIT   1,100,000,000). 11.     Eventually B. complained that company S.M.I. had not returned to him part of the proceeds (LIT 9,035,264,332) obtained from the purchase (see paragraph 10 above) and subsequent sale, a few months later, of the shares of company A.N. Nor had company S.M.I. recorded that sum in the statement related to the fiduciary account. B. had become aware of the breach of contract during previous criminal proceedings (ongoing for other reasons, in Milan) in which company S.M.I. had submitted statements concerning the above-mentioned fiduciary account. B.     Civil proceedings no. 300/2001 1.     First-instance 12 .     On 4 October 2001 B. filed a civil complaint against Z. and company S.M.I., represented by its legal representative and director (the applicant), in order to obtain from them, in solidum , the payment of LIT   9,035,264,332. 13 .     By an interlocutory judgment of 4 June 2007 the first ‑ instance judge ( Commissario della Legge ) found that not all the financial operations carried out by company S.M.I. on behalf of B. in execution of the fiduciary mandate had been correctly recorded in the financial statement. The judge applied the rules governing contracts of mandate as established by the domestic case ‑ law and practice, relying, in particular, on the duty of the agent ( mandatario  in this case, company S.M.I.) to give evidence of the operations carried out in execution of a mandate in order to demonstrate that it had fulfilled its reporting obligation ( obbligo di rendiconto ). According to the judge, the only evidence that company S.M.I. had submitted for that purpose had been the above ‑ mentioned financial statement. However, B. had demonstrated that the statement was incomplete and therefore unreliable. Thus, company S.M.I. had failed to discharge its burden of proof to show that it had returned to B. the sums obtained from the transfer of company A.N.’s shares. 14.     Given the unreliability of the statement, the judge, applying the domestic practice concerning the assessment of documentary evidence, took into consideration only the parts of the statement which constituted evidence against the party which had drafted the document, that is to say, only the credit entries (the sums of money company S.M.I. admitted to having been received by B.) but not the debit entries reported therein (indicating what sums S.M.I. had claimed to have used in execution of the fiduciary mandate). Thus, the judge considered all the credit entries (amounting to LIT   34,962,635,382) and deducted from them the sums which B. acknowledged having received and those which company S.M.I had used on his instructions (amounting to LIT   25,927,371,050) as also admitted by him. This left an outstanding debt of LIT   9,035,264,332 (approximately 4,662,778.93   euros (EUR)) which company S.M.I. owed B. 15 .     However, according to the judge, this was the result of presumptions being made, and B. had not entirely discharged the relevant burden of proof. Thus, to compensate for the partial lack of evidence and allow B. to entirely discharge his burden of proof, the judge in the same aforementioned interlocutory judgment summoned B. so that he could take a “supplementary oath” ( giuramento suppletorio – an oath of a party on his or her own behalf as confirmation of otherwise inadmissible or inconclusive evidence – for more details, see Relevant domestic law, paragraph   68 below). The wording of the “supplementary oath”, as set by the judge, was as follows: “I swear and declare that I did not authorise any other withdrawals [of money] as reported in financial statement no. 381-AF0770l apart from the ones that I have acknowledged and that [were] indicated in my counsel’s submission of 24   April 2003. Thus, company S.M.I. must return to me LIT 9,028,398,950.” 16.     Consequently, the proceedings continued solely for the purposes of the taking of the “supplementary oath”. 17.     In the same interlocutory judgment the judge also found that Z. had been a mere agent of B. and removed him from the case. 18 .     On 30 June 2008, B. took the above-mentioned “supplementary oath” as set out by the judge. 19.     No first ‑ instance judgment on the merits was ever issued. 2.     Appeal against the interlocutory judgment 20 .     On 12 December 2008 company S.M.I. appealed against the interlocutory judgment of 4 June 2007. B. cross-appealed and requested, inter alia , that the interlocutory judgment of 4 June 2007 be declared final and that company S.M.I.’s requests be rejected. 21 .     By a judgment of 9 June 2011, filed with the registry on 30   June 2011, and served on the applicant on 20 July 2011, the Judge of Administrative Appeals, in his capacity as Judge of Civil Appeals ( Giudice Amministrativo d’Appello in veste di Giudice delle Appellazioni Civili ), dismissed the appeal. The judge confirmed that company S.M.I. had a remaining debt to B. of LIT   9,028,398,950 (EUR   4,662,778.93), and ordered it to pay him that sum of money together with default interest and currency revaluation. 22.     The judge specified that the judgment (against which S.M.I. had lodged this appeal) had to be considered a “partial interlocutory judgment” ( interlocutoria mista ) falling into the category of judgments which examined the merits in part [and thus could be appealed against, as opposed to a “mere interlocutory judgment” ( interlocutoria mera ) which did not examine the merits and therefore could not be appealed against]. It could not be regarded as a “mere interlocutory judgment” since the first ‑ instance judge, finding that B. had partially proven his statements, had partly examined the case on the merits. Thus, the judgment had become final after B. had taken the “supplementary oath”, and was amenable to appeal. 3.     Third ‑ instance 23.     On 6 July 2011 company S.M.I. attempted to further appeal against the judgment of 30 June 2011, before the Third ‑ Instance Judge ( Terza Istanza ). By a judgment of 6 April 2012 the complaint was declared inadmissible on the grounds that the only role of a Third ‑ Instance Judge was to decide which one of two non ‑ concordant judgments had to be upheld. That prerequisite did not exist in the case at hand, since both the first and second-instance judgments had been concordant on the merits. C.     Joined criminal investigations nos.   312/RNR/2011 and   198/RNR/2012 (for “false oath” and slander) 24 .     On an unspecified date the applicant (in his own name) filed a criminal complaint against B. under Article   359 of the Criminal Code, accusing him of swearing a false oath. He claimed that, by the statements made under oath on 30 June 2008, B. had committed perjury. A criminal investigation was subsequently initiated. 25.     In turn B. filed a complaint against the applicant, accusing him of slander. The investigating judge ( Commissario della Legge Inquirente ) joined the two investigations. 26 .     By a decision of 11 May 2015 the investigating judge closed the proceedings since in his opinion there was no evidence that B. had committed perjury. The judge considered that since the expert’s report showed that it was not possible to conclude who had made the payment to bank S., there was no evidence to show the non ‑ existence of the debt to B. and consequently the falsity of the statements which he had made under oath. 27 .     On an unspecified date the applicant lodged a complaint with the Judge of Criminal Appeals requesting that the investigation be reopened. 28 .     By a decision of 31 July 2015, Judge L.F., a Judge of Civil Appeals in his capacity as Judge of Criminal Appeals ( Giudice delle Appellazioni Civili in veste di Giudice delle Appellazioni Penali ) dismissed the complaint and upheld the decision to close the case. In the opinion of the judge it was implausible that a reopening of the investigation could lead to the discovery of new documents able to demonstrate the origin of the funds used to pay off the debt to bank S. The expert had already analysed all the documents available, which had been found not only in the headquarters of company S.M.I., but also in the archives of the court in Milan (where other proceedings were ongoing). He had not found any records of such a payment. Moreover, the payment dated back to 1990. Furthermore, the dispute at hand had arisen because company S.M.I. and B. had decided, by mutual consent and on purpose, not to record all the operations carried out in execution of the fiduciary mandate. D.     The institution of proceedings no. 2/2014 (before the Court for Trusts) 1.     First-instance 29 .     Meanwhile, on 30 October 2014 the applicant (in his own name) had lodged an application with the first-instance civil judge to have civil proceedings no.   300/2001 reopened ( istanza di riassunzione del giudizio ). 30 .     Within that application, the applicant submitted a “jactitation suit” ( azione di iattanza / di accertamento negativo ) (see paragraph 42 and   74 below), requesting the judge to declare that the supplementary oath sworn by B. had been false. The applicant argued that after the taking of the “supplementary oath” new evidence had come into his possession. According to him, B. had not provided company S.M.I. with the necessary funds to carry out the purchase of company A.N.’s shares. Thus, the statement that B. had not authorised any other money withdrawals (except for the ones he had expressly acknowledged) had been false since he had at least authorised company S.M.I. to pay off the debt of LIT 9,900,000,000 owed to bank S., in execution of the obligations arising from the contract for the purchase of company A.N.’s shares. That debt had been paid off by company S.M.I. with the proceeds deriving from the sale of the shares of company A.N., since no other funds had been provided by B. for that purpose, and therefore the sum of LIT   9,900,000,000 had to be subtracted from the amount of the alleged debt claimed by B. 31 .     By a decision of 12 November 2014 the Chief Justice ( Magistrato Dirigente ), relying on the domestic law on the competence of the courts (see paragraph 61 below), referred the case to the Court for Trusts and Fiduciary Relationships ( Corte per il Trusts ed i Rapporti Fiduciari ‑ hereinafter “the Court for Trusts”). The latter had been instituted by Constitutional Law no.   1 of 26 January 2012 and had competence to hear all cases concerning trusts and fiduciary relationships (see paragraph   56 below). 32.     Thus, proceedings no. 2/2014 were instituted before the Court for Trusts. 33 .     By a decision of 3 December 2014, pursuant to the relevant law (see paragraph 57 below), the President of the Court for Trusts (hereinafter “the President”) referred the case to a panel composed of two judges (Judge G. and the President himself). By the same decision, the President calculated the amount of legal fees. To this end, he relied on the “Rules on Court Fees and Judicial Remunerations”, which he had issued himself the day before (2   December 2014). He considered that the claim had an “undetermined value”, however, the applicant had requested to establish the non ‑ existence of a debt of EUR 4,662,778.93. Therefore, on the basis of the latter value and the applicable rules, the President calculated the amount of court fees as being EUR 6,000 and the variable part of the judge’s remuneration ( la parte variabile del compenso spettante al giudice ) as being EUR   23,000 (EUR   20,000 – in accordance with the relevant table – increased by 15%, given that the case had been referred to two judges) as well as EUR   500 in reimbursement of judicial expenses. The President ordered the applicant to pay (i) the court fees in toto and (ii) half of the required payments (for a total amount of EUR 17,750) at least seven days before the date of the first hearing, failing which the claim would be barred (see paragraph 57 below). 34.     Although he was regularly notified of the reopening of the proceedings, B. did not respond. 35.     In the course of the proceedings, the court ordered some expert reports to be drawn up. The final liquidation balance sheet of company P.A. was also added to the case file, amongst other things. The applicant submitted a consultant’s report aimed at showing that company S.M.I.’s debt to B. did not exist. That report was also added to the case file. 36.     At a hearing of 26 May 2015 the court questioned the applicant and heard Z. (a witness called by the applicant). 37.     On 10 June 2015 the applicant filed written submissions as requested by the court. 38.     On 30 June 2015 the court, having considered the applicant’s submissions incomplete, heard the applicant again. 39.     On 14 July 2015 the applicant submitted further written submissions. 40.     By a judgment filed with the registry on 18 September 2015 the court partly acceded to the applicant’s complaint. 41 .     The court considered that the applicant had an interest in bringing proceedings, given the position which he had held in company S.M.I. (see paragraph   7 above). Notwithstanding the fact that the applicant, in his own name, had not been a party in the “original” civil proceedings (brought by B. against company S.M.I.) the outcome of those proceedings (the fact that company S.M.I. had been ordered to pay a substantial sum of money to B.) could have been detrimental to his personal property and reputation both because he would have been liable to pay the sums found to be due, but also because those sums would have been due as a result of his mismanagement. 42.     The court accepted the applicant’s characterisation of the action lodged against B. as a “jactitation suit” aimed at establishing the falsity of the statements that B. had made under oath in the course of the civil proceedings. Addressing the applicant’s claim (that he had brought to the court’s attention new evidence which had come into his possession after the taking of the “supplementary oath”, or written evidence which he could not submit before, on the basis of which he had initiated the “jactitation suit”), the court found that the applicant had not submitted any such new evidence. Thus, according to the court, the applicant’s action should have been rejected on procedural grounds, without the merits of the case being dealt with. Nevertheless, in the court’s view, the fact that the parties of the case before it (the applicant and B., the latter in absentia ) were different from the original parties in the “ordinary” civil proceedings (company S.M.I. and B.), allowed the court to consider the “jactitation suit” procedurally admissible, even in the absence of new evidence (that is to say, in the absence of the prerequisites for the admissibility of a “jactitation suit” as established by the domestic case-law, see paragraph   68 below). The court justified its decision not to follow the above-mentioned precedent on the basis that the final judgment in the “ordinary” civil proceedings had to be considered “ res inter alios acta ” (a thing involving and affecting different parties). 43 .     As to the merits, the court declared false only the first part of the “supplementary oath” (in which B. had declared that he had authorised only the operations he had explicitly acknowledged in the list submitted by his lawyer on 24   April 2003 and not the further money withdrawals which had been recorded in bank statement no.   381 ‑ AF0770l – see paragraph   15 above). However, the court held that what he had said under the second part of the “supplementary oath” (relating to the final amount due) had been true. It dismissed the applicant’s request to reduce the amount of the debt and confirmed that company S.M.I. had to pay B. the same sum of money. 44.     According to the court, the wording of the “supplementary oath” did not imply that the second part had to be seen as a consequence of the first part, despite the use of the word “thus” ( per cui ). It was therefore preferable to separate the two parts, since operations could have existed which may not have had any effect on the amount of the final balance. 45 .     In connection with the first part, the court noted that the authorisation of the mandator (in this case, B.) to use the proceeds obtained from a certain financial operation in order to pay off an obligation arising from the same operation (as had happened in the case at hand) had to be considered implicit in a contract of mandate. This was a “natural effect” of the contract. It followed that the first part of the “supplementary oath” (in which B. had stated that the only operations which had been authorised were those listed by B.’s legal representative) had not been exact and the applicant was thus right on that point and the first part of the “supplementary oath” had to be considered false. 46 .     In any case, having examined all the evidence, in the court’s view, the declaration of falsity of the first part of the statement made by B. under oath did not necessarily impact upon the quantification of the debt since (i)   all the parties to the contract of 20 March 1990 had acted under the instructions of the same mastermind (B.), (ii) company P.A. (the seller of the shares of company A.N., from which company S.M.I. had taken over the debt owed to bank S. – see paragraph 10 above) belonged to company S.M.I., and (iii) bank S. had not even been notified of the taking over of the debt. Thus, there was no risk that company S.M.I. had to actually pay the debt. In addition, the applicant had not given evidence of any payments made by company S.M.I. enabling a reduction in the amount which it owed   B. 47.     By the same judgment the court also calculated the total amount of litigation fees to be EUR 29,500 (which included the estimate provided previously) and approved the fees requested by the lawyers (EUR 37,887). 2.     Refusal of leave to appeal 48 .     On 2 October 2015, relying on section 11 (2) of Delegate Decree no.   128 of 30 September 2013 (see paragraph 57 below), the applicant (in his own name) applied to the President of the Court for Trusts for leave to appeal part of the judgment of 18 September 2015. 49.     The applicant claimed, inter alia , that the splitting of the wording of the “supplementary oath” into two parts, and the finding of falsity of the first part and not the second, had been illogical and erroneous. According to the applicant, his “jactitation suit” had aimed at ascertaining the existence of actual damage arising from the falsity of the “supplementary oath” and such damage had arisen from the second part of the “supplementary oath” (the one in which B. had claimed the return of a quantified sum) and not the first part. Furthermore, the two parts of the “supplementary oath” had to be considered strictly connected. Thus, the finding that the first part of the “supplementary oath” had been false should have also automatically led to a declaration of falsity of the second part since between them a logical causal link ( nesso logico di causalita) existed . In addition, the decision to split the “supplementary oath” into two parts had not been reasoned and, in the applicant’s view, he needed not bring any proof of the non ‑ existence of the debt, it being an automatic result of the falsity of the statement given on oath. 50 .     On 19 October 2015 the President dismissed the application for leave to appeal on the grounds that: (i) most of the applicant’s grounds of appeal concerned the merits of the case (which, under the relevant law, cannot constitute a ground of appeal against judgments of the Court for Trusts, see paragraph   57 below), (ii) in the first-instance proceedings before the Court for Trusts, the applicant had not given evidence of any payments made by company S.M.I. able to reduce the amount which it owed B. In this connection, the judge stated that the applicant did not seem to realise that the Court for Trusts had given fully detailed reasoning as to its decision to consider the second part of the “supplementary oath” as true, far more than had ever been done in the various phases of the proceedings before the [ordinary] courts. Thus, the court had correctly concluded that the second part of the “supplementary oath” had been true and that the amount of the debt had to remain the same. 51 .     The judge added that had he granted leave to appeal, it would have certainly been unsuccessful, which showed the quality of the applicant’s defence in the case at hand. Moreover, according to the judge, leave to appeal also had to be refused because the applicant had not set out any reasons as to why the court had been wrong in its reasoning justifying its decision to split the “supplementary oath” into two parts. 3.     Complaint concerning the refusal of leave to appeal 52 .     On 3 November 2015 the applicant lodged a complaint with the Judge of Civil Appeals concerning the refusal of leave to appeal, relying on Section   11 (3) of Delegate Decree no. 128 of 30 September 2013 (see paragraph   57 below). He essentially reiterated the same requests which he had already submitted earlier. 53 .     By a decision of 11 February 2016, Judge L.F., in his capacity as Judge of Civil Appeals, dismissed the complaint and upheld the decision not to grant leave to appeal. The decision was served on the applicant’s legal counsel by email on 16   February 2016. 54 .     In the opinion of the judge, the complaint did not contain any issues of law. In particular, whether it had been legitimate for the Court for Trusts to split the “supplementary oath” into two parts was not a point of law (that is to say concerning the interpretation or application of a law or legal principle) and actually concerned the interpretation of the wording of the “supplementary oath” by the Court for Trusts, which had to be considered a complaint on the merits. 55 .     The judge observed that, on the one hand, the court had considered that the first part of the “supplementary oath” had been false on the basis of the rules governing contracts of mandate and in the light of the evidence of the operations carried out by company S.M.I. On the other hand, the second part of the “supplementary oath” had been held to be true on the basis of the fact that no evidence had demonstrated that company S.M.I. had made any relevant payments in B.’s name (namely the reimbursement of the debt). Thus, the decision to split the “supplementary oath” into two parts had been a consequence of the court’s finding that the two parts were not logically connected. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Court for Trusts and Fiduciary Relationships ( Corte per il Trust ed i Rapporti Fiduciari ) 56 .     Section 1 of Law no. 1 of 26 January 2012 reads, in so far as relevant, as follows: Section 1 “In the context of the ordinary jurisdiction, the Court for Trusts and Fiduciary Relationships is instituted. The court has competence to hear all cases concerning legal relationships arising from entrustment or confidence, such as trusts, fiduciary agreements, fideicommissum ... and similar legal instruments regulated by any legal system ...” 57 .     Delegate Decree no. 128 of 30 September 2013, concerning the procedure before the Court for Trusts, reads, in so far as relevant, as follows: Section 2 (Application) “... (2) To avoid a claim being barred ( improcedibilita ), an application shall be filed with the registry together with evidence of the payment of: (a) judicial tax, (b) court fees ( diritti di cancelleria ) in the amount periodically determined by the President and, in general, also calculated on the basis of the value of the claim. ...” Section 4 (Beginning of the proceedings) “(1) The President shall decide, by a final decision not amenable to appeal: (a) whether the case has to be referred to a single judge, panel ( collegio ) (of which he also decides the members and the President), or the full court ( piena corte ), (b) [the amount of] the variable part of the remuneration payable to the single judge or panel, (c) [the amount of] legal fees (which may vary depending on the complexity of the case and/or its value and in conformity with the general criteria) that the applicant shall pay within seven days, to avoid the claim being barred, ... the total amount of remuneration and expenses payable to the judge[s]. This sum shall be determined by the President, applying a variable increase between 10 and 20% to the cost incurred by the State for the remuneration of judges and the expenses payable to them, as well as for court fees. ( applicando una maggiorazione, nella percentuale variabile dal 10% al 20%, sugli oneri sostenuti dall’Erario per i compensi ed i rimborsi spese in favore dei Giudici nonché per le spese di cancelleria ) ...” Section 10 (Decision) “(1) If a case is to be decided by a panel: ... (b) the court shall adopt its decisions by a majority. ...” Section 11 (Appeal) “(1) Appeals shall only concern issues of law without any prejudice to the factual findings made by the court, as long as [leave to] appeal has been previously granted in accordance with the following paragraphs: (2) The unsuccessful party may, within fifteen days of the filing of the judgment with the registry, request leave to appeal from the President. The President, by a reasoned decision, shall only grant leave to appeal if the case raises uncertainty in respect of the legal issues determined or if such issues are of general importance. (3) If leave is refused, the applicant may, within fourteen days of the refusal of the President, lodge a complaint with the Judge of Civil Appeals requesting leave to appeal. (4) Appeals: (a) are lodged before a Judge of Appeal within fourteen days of leave to appeal [being granted]; ... (5) Within fourteen days of the submission of the pleas ( motivi ) the Judge of Appeal shall request the opinion of an expert ( consilium sapientis ), selecting the expert in the register provided pursuant to section 7(4) of Law no. 1 of 26   January 2012. The Judge of Appeal shall select one expert if the first ‑ instance proceedings were decided by a single judge, or a panel composed of three experts if they were decided by a panel or the full court. (6) The Judge of Appeal shall be bound by the principles of law given by the expert ( si attiene ai principi di diritto enunciati dal sapiente ). The subsequent use of extraordinary remedies shall be precluded. ...” 58 .     In a sitting of 4 June 2014, Parliament ( Consiglio Grande e Generale ) appointed the President and six members of the Court for Trusts and Fiduciary Relationships for a mandate of five years. 59 .     By a Decree of 2 December 2014, entitled “Rules on Court Fees and Judicial Remuneration” ( Decreto sui Diritti di Cancelleria e il Compenso del Giudice ), the President of the Court for Trusts, having regard to the domestic law concerning proceedings before that court, established specific criteria to determine the amount of legal fees and remuneration payable to judges in proceedings before the Court for Trusts. 60 .     On 10 September 2015 the President of the Court for Trusts, “having taken note of the fact that it was opportune to enhance some procedural aspects [of the former Rules]” amended some parts slightly. B.     Law no. 145 of 30 October 2003 61 .     Section 6 of Law no. 145 of 30 October 2003 attributes power to the Chief Justice to organise and distribute the workload of the courts. It reads, in so far as relevant, as follows: Section 6 “... (2) The Chief Justice shall have the power to organise and distribute the judicial workload in accordance with pre-established criteria, as well as the duty to supervise (without interfering with the free decision ‑ making of each judge) and to coordinate and manage the judicial office, with the exception of merely administrative functions. (3) The Chief Justice shall attribute the workload to first-instance civil judges, first ‑ instance administrative judges and trainee judges in accordance with their professional competencies, experience and academic background ( titoli ). He shall also establish criteria for the purpose of distributing the workload between judges of appeal, with their agreement. (4) The Judicial Council ( Consiglio Giudiziario ) shall approve the criteria drawn up by the Chief Justice for the workload distribution, during its next [available] session. (5) First ‑ instance judges [mentioned above] shall fulfil on time the duties of their office and adapt to the orders given by the Chief Justice, save for any incompatibilities provided for by law – any other possible function may be undertaken only in accordance with the needs of the office and upon authorisation of the Judicial Council in its ordinary session. (6) The Chief Justice shall submit to Parliament ( Consiglio Grande e Generale ), through the Secretary of State for Justice, an annual report concerning the state of justice, including details of the work carried out by magistrates and judges at every level.” C.     Incompatibility, abstention and withdrawal of judges 62.     Section 1 of Law no. 145 of 30 October 2003, following amendments in 2011 reads, in so far as relevant, as follows: “The courts shall be divided into the following sections, civil, criminal, administrative and protection of minors and family. First ‑ instance judges shall be assigned to each section by the Chief Justice. Judges of each specialised section shall have full competence and therefore may be substituted in the exercise of [their] functions and competence. Appeal judges may replace each other in the event of impediment or incompatibility. Substitutions shall be decided in accordance with predetermined criteria, established by the Judicial Council, in respect of the principle of the tribunal established by law ...” 63.     Point 2 of Part VI of the regulations on the distribution of work amongst single judges and their substitutions, entitled “General Regulations for Magistrates of Single Judge Tribunals”, approved by the Judicial Council, and dated November 2003, provides as follows: “Incompatibility arises when a judge has already dealt with a case concerning the same facts, during which he or she has in some way expressed his or her opinion ‑ and therefore the reason for abstention will already have existed when the case was assigned. Thus, it is a duty ( onere ) of the magistrate in case of incompatibility, and a legal obligation under section 10 of Law no. 45/2003 in the case of abstention, for the magistrate to speedily withdraw from the case. The deadlines for abstention are the same as applicable for withdrawals ... but there are no deadlines for the purposes of incompatibility, which depends on the powers of the Chief Justice to assign the case to another judge in the relevant field. For the correct functioning of the system, a judge who considers that he or she has reason to declare his incompatibility should, no later than five days after the case has been assigned to him, write a letter giving reasons to the Chief Justice. On the expiry of this time ‑ limit, the judge must proceed by means of abstention as provided for by law. In the event that abstention is upheld or incompatibility recognised, a new judge competent in the relevant field must be assigned, in accordance with the criteria set out in the list of competencies.” 64 .     Section 10 of Qualified Law no. 145 of 30 October 2003, as modified by Section 9 of Qualified Law no. 2 of 16 September 2011, concerning abstention and withdrawal, in so far as relevant, reads as follows: “A judge or magistrate must abstain when serious reasons exist, due to personal interests in the proceedings, existing relationships of family, marriage, cohabitation more uxorio , friendship, hostility, existing business or working relationships, between the judge himself or one of his close relatives and one of the parties or their lawyers in civil or administrative proceedings, or the accused person, the victim of the crime or their lawyers, in criminal proceedings. The judge must likewise abstain himself if he gave advice and opinions, or, prior to the proceedings and in the exercise of his functions he or she illegitimately expressed his opinion on the facts object of the proceedings. In all such cases, if the judge does not abstain of his own motion, the parties may request his withdrawal. The judge could also abstain himself where it would be appropriate if circumstances exist which would compromise his impartiality and free judgment. A request for the withdrawal of the judge competent to decide a request for withdrawal shall not be admitted. In criminal proceedings a request for the withdrawal of the Attorney General ( Procuratore del Fisco ) shall not be admitted. The procedures regarding the abstention and withdrawal of judges shall be established by an ordinary law on the matter. Any judge who fails to comply with his duty of abstention, despite the existence of clear and objective reasons specified by the present Section..., shall be sanctioned with the measures provided for by a dedicated law.” 65.     In judgment no. 6 of 16 November 2015 by the Third ‑ Instance Judge, in criminal proceedings no. 154/RNR/2015, that court considered that the statements made by judges in judgments or decisions could not be considered illegitimate expressions of opinion (mentioned in section 10(2) of Qualified Law no. 145 of 30 October 2003, see paragraph 64 above), the latter constituting one’s opinions expressed in the exercise of his duties. 66 .     By a decision of 19 September 2015, in separate civil proceedings no.   1/2015 (to which the applicant was a party), the Judge of Civil Appeals (Judge L.F.) rejected a “request for abstention” which the applicant had filed on the grounds that Judge L.F. had already sat as a judge in different civil and criminal proceedings concerning the same parties (the applicant and B.). The judge specified that none of the grounds for abstention under section   10 of Law no. 145 of 2003 existed in that case. In particular, he had not given advice or opinions, nor had he illegitimately expressed his opinion on the facts which were the subject of the proceedings. He excluded that he had made any statements concerning those facts in his previous decisions and judgments (in different proceedings concerning the applicant), but even assuming that he had done so, that would have happened while he had been exercising his legitimate jurisdictional functions, thus it could not have been considered an illegitimate expression of opinion. The judge also considered that not even the ground for facultative abstention under section 10(4) (that is to say, abstention for “reasons of appropriateness”) was applicable to the applicant’s case. 67 .     Section 2 of Law no. 139 of 16 September 2011, in so far as relevant, reads as follows: “Any judge who is affected by one of the grounds of mandatory abstention under section   10 of Qualified Law no.145 of 30 October 2003, as modified by section   9 of Qualified Law No. 2 of 16 September 2011, shall declare so and request the competent judge to exempt him from the proceedings in which incompatibility has occurred. The request, once it has been served on the parties, shall be transmitted to the competent judge, together with the documents of the proceedings. The evidence shall be mentioned and attached to the request. The decision shall be filed with the registry together with the case file of the proceedings and shall be served on the parties and to the judge on the merits of the main proceedings. The same disposition shall apply also in cases of non-mandatory abstention. A request for withdrawal ( istanza di ricusazione ) may be submitted in every phase of the proceedings. The request for withdrawal shall be added to the case file and indicate in detail the grounds for withdrawal as specified by law, and the related evidence substantiating the challenge. Once the judge hearing the main proceedings receives the request, he shall inform the Chief Justice and request the registry to transmit it to the competent judge, together with a copy of the case file. If the request is submitted in the pleading stage of the criminal proceedings, the judge shall carry out the tasks set out for such hearing but desist from delivering the judgment. The request for withdrawal shall be submitted by a lawyer practicing in San   Marino... If following a request for withdrawal, the judge chooses to abstain, the provisions related to abstention shall apply and the withdrawal proceedings are extinguished. Once the withdrawal request is received by the competent judge he shall, within the next three days, assign to the parties and the judge who has been challenged a period of ten days for submitting evidence and submissions which shall be at the disposal of the parties and the judge, who may make copies thereof. If there is a request to hear witnesses, the competent judge shall set a hearing. On expiry of the [ten day] period and once evidence has been collected, a further period of ten days shall be provided for the concluding submissions. Once the latter period expires, the case file shall be held for the decision, which shall be filed with the registry within thirty days. The judgment shall be filed with the registry together with the case file and shall be served automatically on the parties and the judge. The judgment which accedes to the withdrawal request shall also order which specific acts of the proceedings must be renewed in the light of the decision. In the judgment rejecting a request the party who made the request may be ordered to pay a sum of money from EUR   1,000 to 10,000, as legal costs, without prejudice to any available civil or criminal actions ...” D.     “Supplementary oath” 68 .     A “supplementary oath” is a sworn oath that confirms a statement of fact. A party may be requested to take such an oath by the judge, who draws up wording to that effect. The “supplementary oath” can be requested by means of an interlocutory discretionary decision of the judge in order to decide the case if the facts were not fully established at the probative stage. According to domestic case-law and legal literature, a “supplementary oath” is only admissible in the case of a partial lack of evidence ( semiplena probatio ) and should preferably be requested from the party who partially gave evidence of his or her statement in the course of the proceedings. The factual findings which derive from statements made under oath cannot be examined any further by the judge. Thus, the sworn statement of facts creates an unrebuttable presumption of truth (legal proof). According to the domestic practice, the only admissible ways to contrast the factual findings arising from statements made under oath are: (i) a declaration of falsity in criminal proceedings for perjury (“false oath” - Article 359 of the Criminal Code), and (ii) the submission of new evidence concerning facts of which the party had knowledge after the taking of the oath or written evidence which would have been impossible to submit earlier (“jactitation suit” ‑ azione di iattanza ). 69.     In a final judgment of 8 April 1924 (published in Giurisprudenza Sammarinese , 1924, p.7) the Judge of Civil Appeals stated that “when a testimony has not given indisputable results, a “supplementary oath” can be requested. When doubts exist as to the plaintiff’s submissions, it is more appropriate to request the oath from the defendant.” 70 .     In a judgment of 16 June 1928 ( Giurisprudenza Sammarinese , 1928, p.13) the first ‑ instance judge stated that: Jus commune ( diritto commune ), on the basis of [Justinian’s] Law no. 31 (ff. de jurejurando - Digesto , book no.   22, title no. 2) and [Justinian’s] Law no. 3 ( Cod. De rebus cred. Et jurejurando ‑ Digesto , book no. 4, title no. 1) provides that: (i) a judge has the possibility (but not an obligation) to request a “supplementary oath” of his own motion in “doubtful” cases and in cases showing an “ inopia probationum ”, that is to say in cases in which evidence is insufficient or partial; (ii) such an oath may be requested either from the plaintiff (“supplementary oath”) or from the defendant (negative oath), although, in an equally non ‑ conclusive context, the latter [party] shall be preferred.” 71 .     In a judgment of 16 February 1935 ( Giurisprudenza Sammarinese , 1935 ‑ 36, p. 33) the first-instance judge stated that “a supplementary oath can be requested only when the plaintiff’s claim is supported by a semiplena probatio [a partial lack of evidence] or by valid presumptions.” 72 .     In a final judgment of 12 March 1962 ( Giurisprudenza Sammarinese , 1965, No. 1, p. 1) the Judge of Civil Appeals stated that “a supplementary oath is admissible under jus commune and the local judicial customary law. It shall be requested in order to supplement evidence ( supplementum probationis ) from the party who has given partial evidence [of his or her statements], provided that such evidence is not partially rebutted by contrary evidence. The aim [of a “supplementary oath”] is to verify circumstances which are not fully established or to complete and corroborate sure evidentiary elements which have been already collected by a judge.” 73 .     In other relevant case-law it was stated that “only a judge can request a supplementary oath” (judgment of the first-instance judge of 12   June 1925, Giurisprudenza Sammarinese , 1925, p.18), “