CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 octobre 2020

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margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }     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   FINAL   08/03/2021     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 (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 THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1948 and lives in San Marino. 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 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. 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 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 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. RELEVANT DOMESTIC LAW AND PRACTICE Criminal Code 24 .     Articles   54, 59 and 140 of the Criminal Code read, in so far as relevant, as follows: 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) ...” 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.” 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 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. 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, mutatis mutandis , Pasquini v. San Marino , no. 50956/16, §   86, 2   May 2019). 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 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.” 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 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. Merits 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. (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 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). 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 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 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). 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.   &