November 05, 2024
By Ola Johan Settem
On 24 September 2024, the European Court of Human Rights (ECtHR) delivered a Grand Chamber judgment in Fabbri and others v. San Marino (6319/21). The judgment concerns the rights of crime victims who attempt to pursue a civil claim against the offender by joining the criminal proceedings. The Grand Chamber clarifies important principles both for the assessment of whether the civil limb of Article 6 ECHR applies to such a claim, and for the assessment of whether the claimant’s right of access to court has been violated on account of the termination of the criminal proceedings.
Read more: Crime victims’ hurdles in access to court claims: The Fabbri Grand Chamber judgment raises the barThe applicants had tried to bring civil claims for damages in the context of criminal proceedings in San Marino.
Two of the applicants, Mr Fabbri and Ms Marro, had, in April 2016, lodged a complaint with the courts against a woman for bodily harm. They reserved their right to join the criminal proceedings as civil parties. A criminal investigation was opened on 15 April 2016. The third applicant, Mr Forcellini, alleged that, in 2015, when he was 12 years old, he had been bullied by two other minors. On 28 March 2018, the authorities opened a criminal investigation. On 26 February 2019, the applicant’s mother submitted, on his behalf, a request to join the proceedings as a civil party.
In both of these criminal cases, the investigating judge did not take any investigative steps. As a consequence, the legally stipulated time-limits for the investigation expired, and the charges themselves became time-barred. For these reasons, both cases were discontinued in November 2020.
The Chamber, in its judgment of 18 October 2022, found that all three applicants’ right of access to court under Article 6 ECHR had been violated as a result of the inactivity of the domestic judicial authorities. The Grand Chamber, for its part, found that in the circumstances of the case, the civil limb of Article 6 ECHR did not apply to the case of Mr Fabbri and Ms Marro, only to the case of the third applicant, Mr Forcellini. On the merits, the Grand Chamber found that his right of access to court had not, however, been violated. There is a dissenting opinion by Judge Bosnjak and 6 others. The minority argues that there had been a violation of Article 6 ECHR in respect of all three applicants, and criticizes the majority’s approach as too inflexible There is also a concurring opinion by Judge Schembri Orland, which emphasises the importance of observing formalised rules of procedure, as an insurance against arbitrariness.
(§§ 76-108 of the judgment)
As regards the issue of when the civil limb of Article 6 applies to a civil claim put forward in the context of criminal proceedings, the Grand Chamber sets out four main elements of the approach (§§ 88-93). First, «an applicant must have a substantive civil right (…) recognised under domestic law» (§ 88). Second, domestic law must grant the crime victim a procedural right to pursue the civil right at issue at the relevant stage of the criminal proceedings (§ 88). As is emphasised, Article 6 does not compel the states to grant victims a right to pursue their claim for damages in the context of criminal proceedings. Third, the «criminal proceedings must be decisive for the civil right» (§ 93). Fourth, «victims must clearly demonstrate the importance they attach to securing the civil right at issue» (§ 89). This tenet can be linked to the general principle that for the civil limb of Article 6 to apply, there must be a dispute, and it must be genuine and serious (see § 76 of the judgment). In this regard, it is specified that the victim must invoke and pursue the civil right via the appropriate channel and in accordance with the tenets of the domestic legal framework.
When applied to the facts of the case, the tenet that the victim must clearly demonstrate the importance of the claim leads to the finding that Article 6 does not apply to the first application, but does apply to the second (§§ 94-108). The decisive difference is that in the former case, the applicants had not at any point formally declared that they wanted to join the criminal proceedings as civil parties, while in the second case, the applicant had done so. A crucial point is that under San Marino law, a victim must make a formal request by means of a specific declaration in order to be admitted to the criminal proceedings as a civil party.
(§§ 124-152 of the judgment)
As regards the issue of when a crime victim’s right of access to court will be violated because the criminal proceedings are terminated, the Grand Chamber emphasises that there may be a conflict between one person’s right of access to court and another person’s right to legal certainty. If so, a balance must be struck, and the state will be accorded a wide margin of appreciation. The main implication in the context of the judgment is that if criminal proceedings are discontinued, with the result that a civil claim is not determined, this does not automatically constitute a violation of the right of access to court.
In respect of such situations, the Grand Chamber clarifies a number of important principles (§§ 137-140). As a main rule, the discontinuance does not constitute a violation, provided that two conditions are met. First, the decision must be «based on lawful grounds which are not applied arbitrarily or unreasonably». Second, the civil claimant must ab initio have had «an alternative avenue of redress» (§ 137).
Even if these two conditions are met, however, there may be a violation «in the exceptional circumstance that the lawful discontinuance of the criminal proceedings is the result of a serious dysfunction of the domestic system» (§ 138). In this regard, the Grand Chamber distinguishes between situations where the serious dysfunction «is the sole or decisive reason leading to the discontinuance», and situations where the serious dysfunction is only partly the reason, «the applicant having contributed to that outcome» (§ 139). In respect of the former situations, it may be that the essence of the right of effective access to a court has been impaired, «irrespective of any other available remedy» (§ 140). In respect of the latter situations, «it would suffice that the applicant had another avenue of redress» (§ 139).
When applying this approach to the circumstances of the case (§§ 141-152), the Grand Chamber finds that the the discontinuance was the result of a serious dysfunction, namely capacity problems. The Grand Chamber then proceeds to put significant weight on the fact that the applicant had remained inactive with regard to the civil claim for a long time after the incident, and also after a criminal investigation had been opened. The request to join the criminal proceedings a a civil party was lodged only a short time before the expiry of the time-limit for the investigation.
In these circumstances, the applicant could not be said to have acted diligently in pursuing his civil claim, and it was therefore decisive what other avenues of redress that had been available. As it had been open to him to lodge separate civil proceedings both ab initio as well as after the decision to discontinue the proceedings, the very essence of the applicant’s right of access to court had not been impaired.
It is a main feature of Fabbri that when it comes to access to court complaints from crime victims who have attempted to pursue a civil claim in the context of criminal proceedings, it can be of decisive significance, in several ways, how diligently the victim, or civil claimant, had pursued the claim.
As regards the question of the applicability of Article 6, the focus of the judgment is on whether the claimant clearly demonstrated the importance to him or her of pursuing the civil claim. In order to demonstrate this importance, the claimant’s intention to pursue the civil claim in the criminal proceedings must be made clear in the light of the tenets of the domestic system. What specific procedural actions the claimant must take will therefore depend on domestic law, and can vary significantly between systems which formalises the status of a «civil party» in criminal proceedings, and systems with a more flexible approach, as underscored in § 90.
In this regard, Fabbri signifies a certain tightening of the approach to the question of when the civil limb of Article 6 applies to criminal proceedings, compared to a string of earlier Chamber judgments. Specifically, there are judgments where it is not regarded as decisive that domestic law did not provide for a formal «civil party» status at the stage the complaint relates to, or that a formal declaration for such status had not been made. In Fabbri § 90, however, the Grand Chamber states as follows: «where domestic law provides for a formal status of “civil party” Article 6 will apply only if, and from the time when, the applicant has lodged a formal request to obtain such status». This approach can be contrasted with, eg, Arnoldi v. Italy (35637/04) § 30 and Petrella v. Italy (24340/07) §§ 22-23.
The dissenting opinion criticises the majority’s approach as too inflexible, in the sense that it puts too much emphasis on whether the applicants had observerd formal procedural rules. On this point, there is an illustrative contrast between the dissenting opinion and the concurring opinion. The concurring opinion underscores the importance of respecting procedural formalities established by domestic legislation, both because of the margin of appreciation, and in order to protect against uncertainty and arbitrariness in the criminal process.
The contrast between the approaches of the majority and minority in Fabbri echoes a tension between two aspects of the overarching ideal of the rule of law. On the one hand, there is the view that the ideal of the rule of law can be undermined by excessive formalism in procedural matters, as such formalism can obstruct an effective protection of the fundamental right to a fair trial. On the other hand, there is the view that obeisance to formal procedural rules is a condition for a proper implementation of the ideal of the rule of law, as such obeisance is necessary to protect against legal uncertainty and arbitrariness. As US Supreme Court Justice Scalia put it: «The rule of law is about form. (…) Long live formalism.» (Antonin Scalia, A matter of interpretation, Princeton University Press 1997 p. 25). It is a recurrent theme of the case law on Article 6 that the ECtHR tries to combine and accomodate both these aspects of the ideal of the rule of law (see, eg, Ola Johan Settem, Applications of the «Fair Hearing» Norm, Springer 2016 pp. 76-83 and 203-209).
Fabbri can be read as a step in a more formalistic direction in certain respects.
Turning to the the question of when a crime victim’s right of access to court will be violated because the termination of criminal proceedings led to the victim’s civil claim not being decided on, the Grand Chamber in Fabbri attempts to clarify what the approach should be for a specific category of cases, namely those where criminal proceedings have been discontinued because of a serious dysfunction of the domestic legal system.
When relating the reasoning in Fabbri to prior case law on the right of access to court for civil claimants in criminal proceedings, it is of importance, as the Grand Chamber itself highlights (§§ 128-131), that separate lines of case law have developed. As emphasised by the concurring opinion, the reasoning of the majority in Fabbri should be understood as an attempt to resolve some of the tensions in the existing case law, particularly regarding the importance of alternative avenues of redress.
In respect of cases where criminal proceedings have been discontinued because of a serious dysfunction of the domestic system, the Grand Chamber attempts to resolve the tension by distinguishing between those instances where the dysfunction was the sole or decisive reason for the discontinuance, and those instances where the dysfunction was only partly the reason, the claimant having contributed to the outcome. It is particularly in the latter type of situations that the availability of alternative venues is relevant.
As a consequence, it is regarded as decisive in the Fabbri judgment that the applicant had remained passive for a period of time after the alleged violence, instead of diligently pursuing the civil claim.
It is a possible reason for criticism of the majority’s reasoning in this respect that it is hard to see how the applicant had actually contributed to the outcome that the criminal proceedings were discontinued. The investigating judge’s total inactivity, which led to the expiry of time-limits, does not appear to have been influenced in any way by when the applicant requested to join the proceedings as a civil party. There is therefore a certain tension between the general principles enunciated in §§ 139-140 and the application of those principles to the applicant’s case. This point of criticism is echoed in the dissenting opinion, where it is claimed that «the serious dysfunction of the domestic system is the sole reason for the discontinuance».
In order to properly understand the reasoning of the Grand Chamber, one must therefore read into §§ 139-140, where the general approach is formulated, a clarifcation or addition. It is relevant to ask not only whether the claimant had contributed to the outcome that the criminal proceedings themselves were discontinued, but also whether he or she had contributed to the outcome that the civil claim was not decided on by the domestic legal authorities. This understanding is, however, not evident from the Grand Chamber’s own elaboration of the approach (see, for example, the first sentence of § 140).
The judgment signals that in cases concerning the right of access to court of crime victims who attempt to pursue a civil claim in criminal proceedings, it is of increased significance how diligently the claimant pursued the claim. This is of importance both for the question of whether the civil limb of Article 6 ECHR applies at all, and for the question of whether the state had fulfilled its obligation to provide the applicant with an effective access to court. The judgment thus signifies, in certain respects, a stricter approach on the part of the ECtHR to such complaints.
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