AFFAIRE GHERARDI MARTIRI c. SAINT-MARIN

• Judgment Date: 15 December 2022
• ECLI: ECLI:CE:ECHR:2022:1215JUD003551120
• Counsel: PIERRO R.
• Date: 15 December 2022
• Application Number: 35511/20
• Court: First Section (European Court of Human Rights)
• Respondent State: San Marino
• Applied Rules: 6;6-1;P1-1;P1-1-1;41;35;35-3-a

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

This judgment will become final in the circumstances set out in 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.

1. 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...