CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 15 décembre 2022

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margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .sE157FEB0 { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-align:justify } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s8773B649 { width:25.2pt; display:inline-block } .sB81C5FD1 { width:141.42pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 }     FIRST SECTION CASE OF GHERARDI MARTIRI v. SAN MARINO (Application no. 35511/20)     JUDGMENT   Art 1 P1 • Positive obligations • Peaceful enjoyment of possessions • Adequate criminal and civil remedies at applicant’s disposal for the protection of her property rights in relation to organised fraud suffered at the hands of a bank and third persons Art 6 § 1 (civil) • Reasonable time • Excessive length of ongoing civil proceedings   STRASBOURG 15 December 2022   FINAL   15/03/2023     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Gherardi Martiri v. San Marino, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Marko Bošnjak , President ,   Péter Paczolay,   Krzysztof Wojtyczek,   Alena Poláčková,   Ivana Jelić,   Gilberto Felici,   Raffaele Sabato , judges , and Renata Degener, Section Registrar, Having regard to: the application (no.   35511/20) 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, Ms Maria Cristina Gherardi Martiri (“the applicant”), on 5 August 2020; the decision to give notice to the San Marinese Government (“the Government”) of the complaints concerning Article 1 of Protocol No. 1 and Article 6 § 1 (in relation to the civil proceedings) and to declare inadmissible the remainder of the application; the decision of the Government of Italy not to make use of their right to intervene in the proceedings (Article 36 § 1 of the Convention); the parties’ observations; Having deliberated in private on 22 November 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the State’s positive obligations under Article 1 of Protocol No. 1 to the Convention in relation to an organised fraud suffered by the applicant at the hands of a bank and third persons, and delays in the proceedings under Article 6 § 1 of the Convention. THE FACTS 2.     The applicant was born in 1952 and lives in Montelibretti, Italy. The application was lodged by Mr. Stefano Davidson (hereinafter S.D.), a journalist, on behalf of the applicant. The applicant was eventually legally represented before the Court by Mr R. Pierro, a lawyer practising in Rome. 3.     The Government were represented by their then Agent, Mr L. Daniele. 4.     The facts of the case may be summarised as follows. BACKGROUND TO THE CASE 5.     In around 2009 the applicant became aware that she had been defrauded by Banca Commerciale San Marinese S.p.A., (hereinafter ‘the bank’), some of its employees, and other persons. 6 .     By means of a registered letter, in July 2011, supplemented by a complaint of 3 August 2011, the applicant, through S.D., her trusted person, reported the matter to the supervising authority for the banking and financial industry in San Marino ( Vigilanza di Banca Centrale della Repubblica di San Marino – hereinafter ‘BA’, whose supervisory role was previously covered by the Office of Banking Supervision ‘OBS’). 7 .     According to the Government, following the complaints which had been received, the BA invited the reporting person (S.D.) (with notes dated 21   July and 5 September 2011) to adopt any useful initiative for the protection of the applicant’s interests, specifying that, pursuant to Article 68 of Law no.   165 of 2015 and Banca Centrale della Republica di San Marino Regulation   1/2007, the BA would acquire from the bank all information and observations on the facts reported, in order to assess their relevance in relation to its tasks and supervisory powers. A request to this effect was made by the BA to the bank on 5 September 2011. 8.     In the same above-mentioned notes, the BA also specified that the power to settle any disputes between supervised parties and their customers was not part of the aforesaid supervisory tasks, since this power fell within the competence of the Judicial Authority. 9 .     On 28 October 2011 the bank was put under extraordinary administration by the BA (Article 78 of Law no. 165 of 2005, see paragraph 61 below). 10.     On 24 February 2012 the bank ceded its relevant branch including its juridical rights and obligations to Asset Banca S.p.a. (hereinafter A.B. S.p.a.). P.D., the deputy director of the bank, was nominated director of A.B. S.p.a. 11.     According to the applicant, in a reply of 21 January 2013 the BA “washed its hands” of her complaint. THE CRIMINAL PROCEEDINGS 12.     On 20 March 2012 criminal proceedings no. 193/RNR/2012 were initiated in San Marino following a complaint lodged by the applicant against the bank, C.G., M.R. and P.D. for fraud (under Article 204 of the Criminal Code), as well as for any other criminal offence emerging from the investigations, also with reference to Article 66 (Rules of Conduct of Licensed Authorities) of Law no. 165 of 2005 and subsequent amendments. The applicant’s criminal complaint 13.     According to the complaint lodged by the applicant on 13 March 2012, the applicant had suffered economic damage as a result of the actions of the bank, its director and deputy director (C.G. and P.D), and M.R. and considered that she had been the victim of fraud. Her complaint explained as follows. 14.     On 21 March 2005 the applicant had entered into a promise of sale with a certain P.M.L to sell an immovable property she owned in Rimini. During the negotiations, P.M.L set the opening of a current account with the bank as a condition for the purchase since the immovable property had to be acquired by a certain company Z., which had already opened a current account with the same bank. 15.     M.R. (the director of company Z.) who was a well-known person with the bank and its director (C.G.), had been entrusted with the opening of the current account and the payment of the agreed amount for the real estate transaction. 16 .     The current account (no. xxx 6 02) was opened on 10 May 2005 with the simultaneous payment of 200,000 euros (EUR) constituting the advance payment received at the time of the promise of sale contract. It appears from the documents submitted by the Government that on the same day a document was signed to the effect that the bank should hold all correspondence related to the account, that it would be considered received on the date received by the bank, and that the latter was not liable to take any action or responsible for any damage in this connection. 17.     On 21 July 2005, namely the date on which the public deed for the sale of the property was signed, the remaining part of the price agreed, amounting to EUR 1,300,000, was paid by company Z. to the applicant. 18.     On 22 July 2005 the applicant went to the bank in order to issue a personal guarantee for the opening of a current account of a friend of hers who wished to take out a loan of EUR 100,000. In order to grant the afore ‑ mentioned credit, the bank required the applicant to open a joint current account and a securities deposit account (no. xxx 40) as a guarantee for the credit. On the same occasion, after receiving brief explanations from the director of the bank, she signed the documents submitted to her. 19.     On 18 December 2009 she received a registered letter by which the bank asked her to review a credit of EUR 100,000 because its validity had expired. She considered that the credit had been granted to her, without her knowledge, when she opened the current account. Indeed, she had not needed any loans given the substantial amount of money she held at the bank. 20.     Following the verifications carried out by S.D., the applicant, who had been abroad at that time, learnt from P.D., the deputy director of the bank, that the balance of the current account (no. xxx 6 02) - on which she believed there were approximately EUR 800,000 - was equal to zero and that EUR   80,000 of the credit mentioned above had been used. 21.     From the examination of the relevant bank documents, it emerged that, starting from 2005, a series of investments had been made by M.R. by virtue of a power of attorney issued by the applicant. 22.     The applicant denied ever having given such mandate consciously, noting that it had given nearly unlimited powers to a person she had only just met. Moreover, she noted that the mandate, relied on by the bank, was undated, made no reference to a bank account, was not signed by any bank employee nor stamped by the bank and solely consisted of a pre-established form containing a scribbled signature of the applicant whose authenticity she contested. 23.     In confirmation of the fact that the transactions had been carried out without her knowledge, the applicant pointed out to the fact that the securities related to the investments – consisting of very high-risk investments – had inexplicably been purchased by M.R. on a day on which she was at the bank’s premises and could therefore have done so on her own, had she actually intended to do so. In particular, on 22 July 2005, date when she had been to the bank with her friend, M.R. and the bank management had proceeded to three high risk investments for a total amount of EUR 1,100,000. 24.     The applicant further reported that M.R. had carried out other operations, which had been authorised by the deputy director (P.D.), in particular the transfer of shares from a securities portfolio in her name, both to a person unknown to her, namely S.G. (who subsequently turned out to have relations with M.R.), and to S.D. (her trusted person). Lastly, she pointed out that EUR   73,001.42 had been transferred, without her prior authorisation, from the current account in her name to the account jointly held with her friend in order to close it, even though her friend had already proceeded to such payment. She noted further that M.R. had made some payments into the account in 2007 and 2008, presumably to ensure that the account would not be empty and that the bank would not contact her in that regard. 25.     Referring to the numerous alleged misconducts and irregularities committed by the bank and its management, she nevertheless wished to settle the matter amicably, thus, before lodging the criminal complaint, she had instructed her lawyers to enter into negotiations with the above-mentioned bank. Such attempt was unsuccessful as she had been unsatisfied with the only offer made by the bank. 26.     The applicant reserved her right to join the criminal proceedings as a civil party and requested to be informed if the proceedings were to be discontinued. The investigation 27.     Following the complaint lodged by the applicant, a judicial notice was forwarded to M.R. pursuant to Article 4 of Law no. 93 of 2008 for fraud. 28 .     By means of a decree dated 5 September 2014, the Investigating Judge ordered the discontinuation of the proceedings. He pointed out that the investigations had brought to light the fact that the sale and purchase of securities had taken place between 9 August 2005 and 14 September 2005, for a total amount of EUR 1,100,679.41, and that, following the sale of such securities, a sum of EUR 397,877.06 had been collected, thus causing the applicant to lose approximately EUR 700,000. It also appeared that M.R. had repaid to the applicant the sum of EUR 40,300 through transfers in several instalments made between 13 September 2006 and 29 November 2007. 29 .     According to the Investigating Judge, the loss of the applicant’s money was due to the bad outcome of high-risk investments that the person apparently delegated to operate on the current account, namely M.R., had made without her consent. The inquiry found that there had been no mandate for such risky investments, and it was likely that M.R. had willingly hidden the nature of such dealings, signalling that the undertaking of such dealings had not been agreed upon. It emerged from the relevant elements that his conduct had been negligent as well as that, although indirectly, of the bank. However, the overall investigations had not fully proven neither the profit obtained by M.R. nor the wilful intent of the conduct; for this reason, the Investigating Judge considered that the case could only be assessed in civil proceedings, where both of them could be held liable. Moreover, the Investigating Judge found that the statute of limitations for the offence of fraud had already expired before the complaint was lodged, since the conduct of the defendant M.R. had lasted until 14 September 2005. 30.     The applicant appealed under Article 135 of the Criminal Code. She asked for additional investigations to be carried out through the hearing of witnesses and the acquisition of bank documents. She was of the view that the elements constituting the alleged criminal offence existed. 31 .     On 7 November 2014, the Judge of Appeals upheld the appeal and ordered the reopening of the investigations considering that the investigation was incomplete and deficient as it had not focused on the bank, nor on the persons who allowed M.R. to act without a mandate, nor the relationship between all the persons involved. Moreover, that decision was contradictory in so far as, on the one hand, it found that M.R.’s conduct had been abusive, and, on the other hand, it found that it had been due to negligence ( colpa ). The Judge of Appeals considered that if it had to be established, as appeared probable from the inquiry, that the mandate had been irregular and obtained by deception, then the profit did exist (in so far as M.R. used that money) as well as the malicious intent ( dolo ) as nothing indicated that the resulting situation was due to recklessness or inexperience. A more detailed inquiry was therefore necessary, including, inter alia , an examination of relevant bank documents by the supervising authority [BA] and investigations concerning the relations between M.R. and the directors of the bank and the other persons involved. It was further considered that the expiry of the statute of limitations could be established only once the necessary investigations were carried out, since the latter could reveal more serious criminal offences than the one alleged or since the alleged offence could acquire a different legal nature. 32.     The Investigating Judge, to whom the case file had been assigned following the reopening of the investigations, carried out further investigations in accordance with the indications given by the Judge of Appeals and, on 7 March 2017, ordered the discontinuation of the proceedings. 33 .     In the decree, the Investigating Judge described the investigation activities carried out after the reopening of the investigations, consisting of examinations of witnesses and activities delegated to the BA. In particular, having acquired relevant documentation, it noted that M.R. had acted on all the transactions despite not having a regular mandate. Indeed, the bank’s information system had not registered any such mandate. The transactions carried out, without the applicant’s knowledge, by M.R., had concerned at least a part of her economic resources but it could not be excluded that, for the remaining part, the operations of M.R. had generated profits to the benefit of related parties such as R.R. (the applicant’s former spouse) and S.D. (her trusted person), although the latter persons were not indicated among the people allegedly responsible for such conduct. 34.     Recalling the outcome of the verifications carried out on company Z., which had purchased the immovable property in question, the Investigating Judge pointed out that M.R., company Z., P.M.L. and the bank were all closely connected in the operations for the payment of the immovable property sold by the applicant, and such operations had been coordinated by M.R. However, the investigations carried out had not revealed any issues concerning the nature of the sums used for the purchase, despite them having passed through P.M.L.’s bank account in cash. The investigations had also revealed the existence of a collaboration between M.R. and the bank whose officials were supposed to be aware of the type of operations the former had carried out. Notwithstanding the obvious irregularities, the bank had not objected to M.R.’s high-risk investment transactions on behalf of the applicant. 35 .     On the basis of the foregoing findings, the Investigating Judge considered credible the allegation that M.R. had gained the applicant’s trust by means of deception and devices aimed, at least, at failing to inform the applicant in good time about his activities and, presumably, at operating outside the scope of the mandates legitimately conferred on him, thereby deriving direct and indirect profits from the availability of sums to be used in financial investments. In particular, it was pointed out that the lack of timely information about the use of the funds in high-risk transactions was due to the trust placed in M.R. At the time he had included the applicant among the bank’s “high standing” customers, thus providing a further advantage both to M.R. and the bank. 36 .     Since no more serious offences than the offence of fraud had emerged the Investigating Judge confirmed the original decision to discontinue the case since the offence was time-barred. THE (PARALLEL) CIVIL PROCEEDINGS The ordinary civil action (no. 235/2015) 37 .     In the meantime,   pending further criminal investigations, by application for summons dated 16 April 2015, the applicant sued M.R. as the author of the investments, G.C., P.D., S.B. – in their capacity as officials employed by the bank – as well as the bank and A.B. S.p.a., who had taken over the bank’s legal relationships en bloc (see paragraph 9 above). She asked the court to ascertain their liability for the unauthorised use and misappropriation of the sums on the bank accounts in her name and, consequently, that they be ordered jointly and severally to reimburse such sums and pay compensation for any further damage suffered by her, including nօո-pecuniary damage. Based on the considerations made by the first Investigating Judge in the decision of 5 September 2014, she complained of the defaulting and negligent conduct of the accused banks and therefore their liability for all the damage she suffered as a result of the disappearance of the sums of money belonging to her. She also specified that the banks were to be held vicariously liable as employers of the bank officials, who were also sued. 38.     All the defendants appeared before the judge with the exception of M.R. (who was imputed in the criminal proceedings). In their defence the defendants relied on the alleged mandate. The applicant contested such mandate noting the findings of the Investigating Judge in the criminal proceedings, as well as the expert report drawn up by the BA showing that on the bank’s information system no such mandate had been recorded. 39 .     According to the Government, during these proceedings, the applicant had brought interlocutory proceedings on 13 October 2016 - actio ad exhibendum - in order to obtain some documents held by A.B. S.p.a. to be used as evidence. The latter proceedings were inexplicably waived on 6 April 2017. The applicant had also submitted a request for the admission of a court ‑ appointed technical consultant, which was found to be manifestly inadmissible due to the fact that the questions raised related to matters naturally falling within the jurisdiction of the Judge and not of the technical consultant. 40.     By means of a decree dated 4 July 2018, the Judge ( Commissario della Legge ), to whom the case had been assigned, acknowledged the revocation of the licence to operate in the financial sector and the administrative compulsory winding up of A.B. S.p.a. adopted on 12 June 2017 by the BA (see paragraph 41 below). In consequence, he declared the inadmissibility ( improcedibilita’ ) of the action against A.B. S.p.a., which had been placed in administrative compulsory winding up. According to Article 85 et seq. of Law no. 165 of 2005, from the date of establishment of the bodies responsible for the administrative compulsory winding up, no proceedings concerning the company’s assets could be initiated or continued, since all matters relating to the company’s assets and liabilities had to be dealt with together before the same judge. He also found that it was impossible to continue the proceedings against the other parties, since the applicant had claimed that all the defendants were jointly and severally liable. The liquidation proceedings before judge X 41 .     In the meantime, by decision of 12 June 2017, A.B. S.p.a’s license to operate was revoked and it was put in administrative compulsory winding up (Article 85 of Law no. 165 of 2005, see paragraph 62 below). According to the Government, this decision had wide media coverage given the adoption of several urgent regulatory measures aimed at containing its effects on the financial sector. 42 .     On 2 February 2018 the liquidators of A.B. S.p.a. submitted to the domestic courts the statement of liabilities ( stato passivo – a published list of debts pertaining to a company in liquidation) of A.B. S.p.a. as stood on 12   June 2017. The applicant was not included in that list. 43.     By a registered letter of 26 April 2018, the applicant asked to be included as creditor in the statement of liabilities of A.B. S.p.a. 44.     On 2 May 2018 the liquidators refused her request noting that the statement of liabilities had already been published in the official bulletin of 8   February 2018. 45.     According to the applicant, the official bulletin updated on 29 March 2018 still did not show the statement of liabilities of A.B. S.p.a., therefore she was still in time to register her credit. 46.     No details were submitted as to the continuation of these proceedings. However, in view of the decision of 23 February 2022 (see paragraph 52 below) it can be presumed that these proceedings were or will be struck out. The objection to the statement of liabilities (no. 254/2018) ( opposizione allo stato passivo ) 47 .     On 10 May 2018 the applicant, considering that she was owed EUR   7,496,285, brought an action against A.B. S.p.a. represented by its liquidators. She asked the court to order the inclusion of that sum in the statement of liabilities compiled and filed by the liquidators of A.B. S.p.a., since the latter, on 2 February 2018, had failed to include her as a creditor of the aforementioned bank. She argued that the liquidators should have put her on the list even if only in a precautionary manner. Indeed, there had been no legal impediment as the statement of liabilities of A.B. S.p.a. as stood on 12   June 2017, had not yet been published. She thus asked the court to order her insertion in the list pending a final finding on the validity of her credit. 48 .     During the proceedings, the applicant further claimed that the official bulletin published by the BA had been tampered with. In particular, the bulletin exhibited by the defendants showed the date of the statement of liabilities of A.B. S.p.a. as being 29 March 2018, while that published on the relevant website showed the date as being 18 May 2018. Furthermore, the deposit of the statement of liabilities, released by the BA in terms of Article   90 of Law no. 165 of 2005 (see paragraph 65 above), was dated 8   February 2018. 49.     On   4 December 2019, Judge Y ( Commissario della Legge ) to whom the case file had been assigned, upheld the defendants’ objection and held that the court lacked competence to give a decision on the matter. Indeed, the assignment of the case file had taken place in violation of Article 91 (3) of Law no. 165 of 2005, according to which only one judge has jurisdiction over cases relating to the administrative compulsory winding up of a company. However, since this violation was not attributable to the plaintiff, the Judge also ordered that the declaration of lack of competence be followed by the reopening of the proceedings, by the plaintiff, before Judge X. 50 .     According to the Government, following the reopening of the proceedings before the competent judge, the proceedings were continued and were at the date of their observations (28 February 2022) still pending and awaiting a decision with regard to the preliminary admissibility issues raised. Extraordinary action before the Magistrate 51 .     In 2021 the applicant lodged a request to continue the proceedings no.   235/2015 (set out at paragraph 37 et seq . above), given that in the meantime the administrative compulsory winding up of A.B. S.p.a. had been declared illegal on 17 February 2021 (see paragraph 52 below). However, the Magistrate (Uditore Commissariale) confirmed the inadmissibility of the applicant’s civil action since, as things stood then, the administrative compulsory winding up procedure was still alive and listed on the public registers given that an appeal against the judgment declaring the illegitimacy of the administrative compulsory winding up had been lodged and was still pending. OTHER PROCEEDINGS 52 .     On a request by A.B. S.p.a., by a final appeal judgment of 23   February 2022, confirming a first-instance judgment of 17 February 2021, the compulsory administrative winding up of A.B. S.p.a. was found to be illegal by the domestic courts. However, according to the applicant A.B. S.p.a. remains inoperative, and reimbursement of funds remains impossible. RELEVANT LEGAL FRAMEWORK CONSTITUTIONAL LAW 53.     According to Article 10 of the Declaration on the Citizen’s Rights and Fundamental Principles of the San Marino Constitutional Order private property and entrepreneurship shall be secured. Limitations shall be determined by law for the purpose of protecting the general interest. CRIMINAL LAW 54.     Article 54 of the Criminal Code, in so far as relevant, reads as follows: “An offence is time-barred:.... 2) after three years, if the offence is punished with second degree imprisonment, third or fourth degree disqualification, a fine [in lira], alone, combined with each other or any other punishment.” 55.     Article 204 of the Criminal Code reads as follows: “Anyone who, deceiving another by means of a trick or artifice, secures an unjust profit for himself or for a third party is punished by terms of second-degree imprisonment, as well as a second-degree daily fine or disqualification. The punishments indicated in the above paragraph also apply to anyone who, imposing on a physically or mentally disabled or minor person, has such person perform acts detrimental to himself or to another. The punishments indicated above are increased by one degree; 1) if the conduct occurred to the detriment of the Republic of San Marino or public bodies; 2) if the conduct occurred to secure the price of insurance or induce someone to purchase an insurance policy; 3) if the conduct occurred by influence peddling involving a public official or power of the Republic of San Marino. Where the conduct under the first paragraph occurred dissimulating a state of insolvency, the offender is punished, following action brought by the offended, by terms of first degree imprisonment or a daily fine. In the event envisaged in the preceding paragraph, fulfilment of the obligation by the offender, before a first-degree judgment is rendered, extinguishes the offence.” LAW NO. 96 OF 2005 56 .     The relevant provisions of Law No. 96 of 2005 read as follows: Article 30 (Powers of the Central Bank) “In order to achieve the objectives and carry out the functions it is assigned by the present Law, the Central Bank, through its organs and in its respective areas of competence, may adopt measures, to include those in the form of regulations, orders, circulars, standard letters, recommendations and instructions, which will, besides being of a cogent nature in dealings with supervised parties, also perform the function of explaining and interpreting the tasks assigned to the Central Bank by law. The Central Bank will, adopting the methods regarded as most appropriate, make public the measures referred to in the previous paragraph if they are of general relevance and addressed to the public. Central Bank instruments pertaining to matters of supervision and anti-money laundering unit, as resolved by the Supervision Committee, will be issued by the Director General.” Article 33 (Supervision and investor protection functions) “For the attainment of its objectives, the Central Bank will be assigned the functions of: a. regulation, monitoring and supervision of intermediaries and their activities and services and of financial, banking and insurance instruments; b. management, regulation and administration of the systems of guarantee to protect depositors; c. custody and administration of deposits in securities and in cash in respect of the compulsory reserve by banks in escrow; d. granting of credit to supervised parties operating in the territory of the Republic provided that it has adequate backing in the form of guarantees; e. anti-money laundering unit.” Article 35 (Notification of serious irregularities) “The Supervision Committee of the Central Bank, in the person of the Director General, will forward, on a confidential basis, the information and data acquired in the exercise of its supervision function and pertaining to ascertained serious irregularities to the Congress of State, through the Credit and Savings Committee. The information and data referred to in paragraph 1 will also be forwarded to the judicial authority in those cases specified by law. The exhibits in proceedings brought further to that notification will be treated as strictly confidential.” LAW NO. 165 OF 2005 57.     Law no. 165 of 2005 concerns companies as well as banking, financial and insurance services. It sets out the duties and powers of the BA as supervisory authority which have been strengthened by means of this law. It further sets out relevant procedures, including those related to winding up. The law has been amended repeatedly since 2005 [1] . 58.     In particular, the most relevant articles are the following. 59.     Its Article 37, concerning supervision, reads as follows: “1. In exercising its supervisory function, the supervisory authority shall pursue the following objectives: a) The stability of the financial system of the Republic, the protection of savings and investors, as well as the adequate protection of the insured and those entitled to insurance benefits, including through the supervision of the sound and prudent management of authorised parties; b) The transparency and correctness of the conduct of authorised parties; c) The fight against financial crime in cooperation with other competent authorities; d) The protection of the image and reputation of and of confidence in the San Marino financial system. 1-bis. Supervision shall be based on a prospective and risk-based approach and shall include the verification on a continuous basis of the proper operation of reserve activities and of compliance with supervisory provisions. 1-ter. In carrying out its tasks, the supervisory authority shall take into account the convergence of supervisory instruments and practices recommended by the competent institutions and bodies of the European Union.” 60.     Its Article 41 and 42 concern its powers to request information and undertake investigations. 61 .     Its Article 78, concerning extraordinary administration, reads as follows: “1. By means of a decision adopted by the Supervision Committee, the bodies with governing and control functions may be dissolved when one or more of the following situations occur: a) There are serious irregularities in the administration or serious breaches of the sound and prudent management of the authorised party or of the legislative, administrative or statutory provisions or measures of the supervisory authority governing its activities; b) Serious losses of the company’s assets are expected; c) There is a serious and persistent lack of liquidity; d) There are false statements or serious omissions in record keeping or alterations of accounting documents; e) Dissolution is invoked by means of a reasoned request by the governing bodies or by an extraordinary shareholders’ meeting. 2. The supervisory authority shall be responsible for managing the extraordinary administration procedure. 3. The decision referred to in the first paragraph shall suspend all functions of the shareholders’ meetings. 4. An abstract of the decision referred to in the first paragraph shall be published in the Official Bulletin. 5. The decision referred to in the first paragraph shall be communicated by the extraordinary administrators to the persons concerned, who so request, only after they take office pursuant to Article 81. 6. Extraordinary administration shall last for one year unless a shorter period is specified in the decision referred to in the first paragraph. Only in exceptional and duly motivated cases may the supervisory authority extend extraordinary administration for a further period of six months.” 62 .     Its Article 85, concerning administrative compulsory winding up, reads as follows: “1. By decision of the Supervision Committee, even when an extraordinary administration or ordinary winding-up procedure is in progress, it shall be possible to order the revocation of the authorisation to carry out reserved activities and the administrative compulsory winding-up of the authorised parties, if the facts referred to in Article 78, paragraph 1, are exceptionally serious. 2. Administrative compulsory winding-up may be ordered, through the same procedure indicated in paragraph 1 of this Article, on the basis of a reasoned request by the governing bodies or by an extraordinary shareholders’ meeting of the authorised party, as well as by the administrators or liquidators. 3. The decision of the Supervision Committee shall be notified by the liquidators to the persons concerned, who so request, only after they take office pursuant to Article 89. 4. An abstract of the decision referred to in paragraph 1 above shall be published in the Official Bulletin. 5. From the date on which the decision referred to in paragraph 1 is issued, the functions of the governing and control bodies, shareholders’ meetings and any other body of the authorised party shall cease. 6. For all matters not expressly governed by this Chapter, the provisions in force on bankruptcy matters shall apply, if compatible.” 63 .     Its Article 87, concerning the effects of the decision declaring the administrative compulsory winding-up procedure, reads as follows: “1. From the date of establishment of the competent bodies, the payment of liabilities of any kind and the return of assets to third parties shall be suspended. 2. After the date indicated in paragraph 1 of this Article, no proceedings concerning the company’s assets shall be initiated or carried on against the authorised party subject to compulsory administrative winding-up and without prejudice to the provisions of Articles 91 and 96, paragraph 3, below. Similarly, no enforcement acts or precautionary measures shall be initiated or carried on. The other rules in force on bankruptcy matters governing the divestment of assets, the nullity or ineffectiveness of the disposals affecting creditors, the maturity of all debts and the suspension of interest during the procedure, the setting-off and ranking of credits, privileges, pending contracts, and any other rules of a non-procedural nature insofar as compatible shall apply.” 64.     Its Article 88, concerning the powers and functioning of the bodies responsible for the administrative compulsory winding-up procedure, reads as follows: “1. Liquidators shall have the legal representation of the authorised party subject to administrative compulsory winding up, shall exercise all actions that should be carried out by the authorised party and shall conduct winding-up operations. Liquidators shall be public officials in the performance of their duties. 2. The oversight committee shall assist the liquidators in the performance of their duties, monitor their actions and give opinions on the cases provided for in this Chapter or in the measures of the supervisory authority. 3. The supervisory authority may issue measures for the conduct of the administrative compulsory winding-up procedure and may also establish that certain categories of transactions or actions be authorised by the supervisory authority and a preliminary opinion of the oversight committee be obtained thereon. The members of the winding-up bodies shall be personally liable for non-compliance with the measures issued by the supervisory authority; such measures shall not be enforceable against third parties who have no knowledge thereof. 4. Within 180 days of their appointment, liquidators shall submit to the supervisory authority a report on the accounting situation and the assets and liabilities of the authorised party and on the development of the administrative compulsory winding up, accompanied by a report drafted by the oversight committee. The supervisory authority shall lay down the terms and conditions of the report on the developments of the procedure, which the administrators shall provide to creditors on a regular basis, 5. Any liability action against the members of the bodies of the authorised party undergoing administrative compulsory winding up shall be brought by the liquidators, after consulting the oversight committee and subject to the prior authorisation of the supervisory authority. [...]” 65 .     Its Article 90, concerning the assessment of liabilities, reads as follows: “1. Within two months of taking office, the liquidators shall notify the creditors, by registered letter with acknowledgement of receipt, of the sums due to each of them, based on the records and documents of the authorised party subject to administrative compulsory winding up. 2. A similar notification shall be sent to those who are holders of rights in rem over the assets and financial instruments held by the authorised party subject to administrative compulsory winding up, as well as to customers entitled to be returned such financial instruments. 3. The supervisory authority may establish further forms of publicity with a view to disclosing the expiry of the deadline for filing claims under paragraph 5 of this Article. 4. Within fifteen days of receipt of the registered letter referred to in paragraphs 1 and   2, the creditors and holders of the rights mentioned above may submit or send, by registered letter with acknowledgement of receipt, their claims to the liquidators, attaching supporting documentation. Failure to exercise the above option shall not affect the right to object to the statement of liabilities provided for in Article 91. 5. Within sixty days of publication of the decision providing for the administrative compulsory winding up in the Official Bulletin, the creditors and holders indicated in paragraph 2, who have not received the notification referred to in paragraphs 1 and 2, shall request the liquidators, by registered letter with acknowledgement of receipt, to recognise their credits and return their assets, submitting documents proving the existence, type and extent of their rights. 6. After the expiry of the deadline provided for in paragraph 5 above and no later than thirty days thereafter, the liquidators shall submit to the supervisory authority, after hearing the authorised party’s removed directors, the list of admitted creditors and the sums granted to each of them, indicating their pre-emptive rights and their ranking, as well as the lists of the holders of the rights indicated in paragraph 2 of this Article and of those whose claims have been rejected. Customers entitled to the return of financial instruments shall be recorded in a specific and separate section of the liabilities. 7. Within the same deadlines provided for in paragraph 6 above, the liquidators shall deposit with the Single Court, at the disposal of the persons entitled thereto, the lists preferential creditors, the holders of the rights indicated in paragraph 2 of this Article as well as the parties belonging to the same categories, whose claims have been rejected. 8. Subsequently, by registered letter with acknowledgement of receipt, the liquidators shall inform, without delay, those whose claims have been rejected, in whole or in part, of the decision taken in their regard. Notice of filing of the statement of liabilities shall be published in the Official Bulletin. 9. Once the requirements provided for in paragraphs 6 and 7 above have been fulfilled, the statement of liabilities shall become enforceable.” 66 .     Its Article 91, concerning the objection to the statement of liabilities, reads as follows: “1. The parties whose claims have not been accepted, in whole or in part, may lodge an objection to the statement of liabilities in respect of their position and against the recognition of rights in favour of the persons included in the lists referred to in Article   90, paragraph 7, within fifteen days of receipt of the registered letter referred to in Article   90, paragraph 8. Such objection may also be lodged by the parties admitted within the same period running from the date of publication of the notice referred to in Article   90, paragraph 8. 2. The objection shall be lodged with the Single Court ( Tribunale Unico ). 3. A single Law Commissioner ( Commissario della Legge ) shall have jurisdiction over all cases relating to the administrative compulsory winding-up procedure.” THE LAW PRELIMINARY OBJECTIONS The parties’ submissions 67.     The Government submitted that the application should be declared inadmissib