The Court for Trusts and Fiduciary Relations

Contentious proceedings

 

We can think of the first instance before the Court for Trusts as consisting of three consecutive stages:

1.    First stage: initiation of the proceedings by the lawyer
2.    Second stage: issuance of the initial decree by the President of the Court
3.    Third stage: hearings and judgement

 

1. FIRST STAGE: INITIATION OF THE PROCEEDINGS

The local professional, interested in lodging an application before the Court, shall have an agreed address for service . The address for service is the email address of the lawyer, where he/she wishes to receive communications and notifications by the Court. If the San Marino lawyer has no agreed address for service, before the first hearing of the parties before the Court he/she must show up at the Secretariat of the Court to fill-in a pre-printed form. In case the lawyer is unable to show up at the Secretariat, he/she can visit the internet site www.cortetrust.sm and comfortably download the appropriate form from his/her office, fill it in and send it as an attachment to an email to the address of the Secretariat: segreteria.cortefiducia@istituzioni.sm.

    
A foreign lawyer can lodge an appeal before the Court. In this case, it is necessary that the lawyer regularly establishes an address for service at the office of a San Marino lawyer, according to the Regulations of the Professional Register of Lawyers and Notaries of the Republic of San Marino. Foreign lawyers shall not fill-in the form indicating the agreed address for service since the Court will send communications to him/her through the San Marino lawyer where he/she has his/her address for service.

The lawyer, now having the agreed address for service, shall file the document instituting the proceedings with the Registry of the Court. The filing of the document instituting the proceedings shall be both electronic and in paper form.

A) Electronic filing: The electronic filing shall be prior to the paper filing. The filing is made by means of an e-mail sent to the address of the Registry of the Court: cancelleria.cortefiducia@istituzioni.sm. By writing a very simple e-mail, the lawyer shall type in the field "subject" the number zero followed by a hyphen and the current year, indicate the name of the party represented and the keyword "document instituting the proceedings" (for example, 0 - 2017/Marco Rossi/document instituting the proceedings). The document instituting the proceedings is transmitted as an attachment to the e-mail in .doc format protected from any modifications.

B) Paper filing: only after having sent the e-mail with the document instituting the proceedings as an attachment, the lawyer can show up at the Registry and file the paper document. In addition to the filing of the document instituting the proceedings, the plaintiff shall demonstrate the payment of the judicial fee and of Registry fees (Art. 2, paragraph 2 of Delegated Decree no. 128 of 30 September 2013).

CAUTION! The Registry of the Court does not accept the paper filing of the document if the electronic filing has not been made before. It is therefore necessary to demonstrate to the staff of the Registry that the electronic filing has been made (for example, by printing the e-mail sent for the electronic filing of the document).
For all substantive and procedural effects, the date and time of the filing are those of the paper filing.

The document instituting the proceedings shall contain: the application or applications, the pleas of fact and law supporting the application(s), the specific indication of evidence and the documents that the plaintiff intends to produce.  

CAUTION: when the lawyer makes the electronic filing of the document instituting the proceedings, he/she may attach to the mail the documents he/she intends to use during the proceedings. The documents shall be in .pdf format or other graphic format in the case of maps, photographs or drawings. The documents are progressively numbered by the lawyer during the entire proceedings, starting with number 001 (written with three digits).

Once it receives the document instituting the proceedings, the Registry creates the case-file both in paper and in electronic format. The case-file is then transmitted without delay to the President of the Court.
The lawyer initiating the proceedings shall obtain the credentials for access to the electronic case-file after communicating to the Registry or the Secretariat of the Court, by e-mail or through a different written statement, the existence of a proxy to represent a specific party referred to in the case-file.
A foreign lawyer representing the party, together with the San Marino lawyer, shall obtain the credentials to have access to the electronic case-file. The San Marino lawyer, with whom the foreign lawyer has established his/her address for service, shall request the specific credentials for the foreign lawyer by means of an e-mail to the Registry or the Secretariat of the Court.
If the President establishes the total or partial non-payment of the judicial fee or the Registry fees, he grants to the defaulting party a time-limit of 20 days to make the payment. In case of prolonged failure to make the payment, the proceedings shall stop.

CAUTION! The calculation of any time-limit is in current days. Time-limits expiring on a day when the Court offices are closed shall expire on the first working day after the expiring of the time-limit.

 

FOCUS. How is the electronic case-file made?

The electronic case-file can be accessed from the internet website of the Court: www.cortetrust.sm The access credentials shall be entered in the section "Lawyers’ reserved area". Once the system has been accessed, the case number shall be entered to search the case-file. At this point, it is possible to download the folder of interest and take copies of any document therein. The electronic case-file is composed of two folders: a) Court, b) Parties. The folder "Court" contains the initial decree of the President, acknowledgements of service, receipts of payment of sums, minutes of the hearings, measures of the Court and reports of experts. The folder "Parties" contains in the subfolder "Application and memories": the document instituting the proceedings, the observations and requests made to the Court; the subfolder "Documents" contains all documents filed electronically, preceded by a table of contents compiled by the Secretariat of the Court. Each Party has a folder.

 

2. SECOND STAGE: ISSUANCE OF THE DECREE BY THE PRESIDENT OF THE COURT

Once the President has received the case-file from the Registry, by means of a non-challengeable decree, he:

1. admits the document instituting the proceedings,

2. fixes:

a) the first hearing of the parties before the Court,

b) the hearing for the oral complaint of the dispute;

3. indicates the language or languages of the proceedings,

4. decides to whom the case shall be entrusted: a single judge, a panel of judges or the Court in its full composition,

5. decides the variable amount of the remuneration due to the judge or to the panel of judges, besides other economic issues,

6. establishes the ways in which the case-file shall be kept and consulted,

7. invites the defendant to appear before the Court, informing him/her that, failing to do this, any subsequent notification will be validly made by public posting (“ad valvas”).

The proceedings provides for three hearings. After the three hearings there is a closed session of the Court and then the publication of the judgement.

 

3. THIRD STAGE: HEARINGS AND JUDGEMENT

A)    FIRST HEARING OF THE PARTIES BEFORE THE COURT

The President fixes the first hearing of the parties by means of a decree. On that day:  

- the plaintiff: shall confirm the contents of the application,

- the defendant: may file his/her observations to dispute the applicant’s arguments and respond, indicating, in addition to his/her arguments in fact and in law, the evidence and documents he/she intends to use. He/She can also lodge a counterclaim.

 

B)    SECOND HEARING

Following the first hearing of the parties before the Court on the date fixed by the decree, in the second hearing:

- the Court:

a) decides on any issue raised by the parties with respect to the regularity of the cross-examination,

b) asks for clarifications to the parties on the facts,

c) indicates what issues deserve a more in-depth examination;

- guided by the Court, the parties:

a) submit the documents,

b) formulate in a complete and final way their questions and objections,

c) request the admission of evidence.

At the end of the hearing for the oral discussion of the dispute, the Court:

- by means of a decree, which can always be modified during the proceedings:

a) delivers its opinion on the requests for evidence,

b) fixes the timing and procedures for the taking of evidence,

c) fixes the timing and procedures for the questioning of one or more parties, in case it deems it necessary.

- the Court can decide that the proceedings are ready for a decision or it shall fix the date for a supplementary oral hearing. If the Court fixes a third supplementary hearing, each party shall electronically file, at least seven days before the hearing, a structured draft of the arguments that he/she intends to submit during the hearing.

CAUTION! The documents shall be submitted also through electronic filing. Therefore, the lawyer shall send an e-mail to the Registry with the documents deemed useful as an attachment. The subject field shall contain three data, under penalty of nullity: the case number, the name of the party represented and the keyword "documents" (for example, 2025/010/CO - Marco Rossi - documents). The documents shall be attached to an e-mail in .pdf format or other graphic format. They shall be numbered progressively and described by the lawyer.
If the size of the documents does not allow to send the e-mail, the lawyer may physically deposit a USB stick with the Secretariat or the Registry of the Court, after sending an e-mail whose "subject" will consist of the following: the case number, the name of the party represented, the keyword "documents" and the wording: "a USB stick will be provided" (for example, 2025/010/CO - Marco Rossi - documents - a USB stick will be provided). Once the Registry has received the documents, it updates the electronic and paper case-file and  sends a message to the agreed address of the depositing lawyer to notify him/her of the deposit.

Under penalty of exclusion, each party shall electronically file, at least sevend days before the hearing, a structured draft of the arguments he/she intends to submit during the hearing.

C)    JUDGEMENT

After the hearing for the oral discussion of the case, the Court meets in closed session.
If the Court meets as a panel, the decisions are adopted by majority. The Court may also validly meet in video-conference.
In the event that one or more judges making up the panel do not share the reasons for the decision or the decision is not adopted unanimously, the dissenting judge(s) may express his/her/their opinion at the end of the judgement. The judgement is electronically filed with the Registry, which publishes it.
The judgement is always immediately enforceable.

IMPORTANT! Notification regime.
According to Art. 6 of Delegated Decree no. 128/2013, the President decides on notification modalities. This means that, apart from the ordinary procedure, the President of the Court may order - for example - that the notification be served by means of a telegram with acknowledgement of receipt or by international carrier with the proof of receipt as an attachment, or by registered letter with acknowledgement of receipt or in other appropriate ways.
When are notifications served under Art. 6 of Delegated Decree no. 128/2013?
a)    When the person to be served is not resident or domiciled in the Republic of San Marino;
b)    When this is necessary for reasons of greater promptness, confidentiality or to protect the dignity of the person.
The President of the Court may order that the notification be served according to the specific modalities of the State in which the notification shall be served.
The parties instituting the proceedings are considered as having an address for service at the office of their lawyer in San Marino. Notifications served at this address will have the same effect as notifications served personally to the party concerned.