Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Respondent State to take measures of a general character (Article 46 - Systemic problem;General measures)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in 1977 and lives in Sofia.

On 19 September 1999 the applicant, then a 22-year-old student, left Sofia for Blagoevgrad in a vehicle with two young men, B.Z. and S.P., and another young woman whom she frequented at the time and whose acquaintance she had made through one of her close friends, H.I. During the journey the two men told her that they intended to “sell” her as a prostitute to people with whom they were in contact in Blagoevgrad, and then to “take her back” after receiving the money. The applicant refused, but was threatened by B.Z. On their arrival at Blagoevgrad the group met a number of people in various cafés in the town; those people were apparently involved in prostitution rings abroad and discussed with B.Z. and S.P. sending the applicant to Greece, Italy or Macedonia to work as a prostitute and her alleged experience in the trade. The applicant was told that three of the men they had met were police officers. The applicant was then taken to a flat where she was held against her will and repeatedly beaten and raped by several men for about 48 hours, following which she managed to escape and found refuge in a neighbouring apartment block where occupants called the police.

During her first police interview the applicant attempted to throw herself out of the window and was then admitted to a psychiatric hospital. She subsequently received psychological counselling.

A criminal investigation was instituted by the Blagoevgrad District Public Prosecutor’s Office for abduction and false imprisonment; abduction for the purposes of coercing into prostitution; and rape. The applicant identified some of her assailants and two police officers whom the group had met prior to holding her against her will. She stated that the men were part of a criminal gang involved in human trafficking who wanted to force her into prostitution in western Europe.

In an order of 19 October 1999 the Blagoevgrad military prosecutor considered that there was insufficient evidence to prosecute the two police officers, Z.B. and Y.G., who had been charged with abduction, and discontinued the proceedings against them. The prosecutor observed, in particular, that after initially identifying the police officers, the applicant had not subsequently claimed that they had taken part in her abduction and false imprisonment. The prosecutor’s order was amenable to appeal, but the applicant does not appear to have lodged one.

During 1999 and 2000 several people involved were questioned, and an expert medical report was drawn up. The investigation was closed and the case sent to the prosecutor for a decision regarding committal for trial. However, on 12 April 2001 the prosecutor decided to send the case back for further investigation on the grounds that irregularities had been committed and further evidence was required regarding the involvement of H.I. and another individual, G.M. Subsequently the case was returned three more times for further investigation. In an order of 2 November 2001, the prosecutor found that the investigator had failed to carry out any investigative measures since the case had been sent back. He also noted a number of irregularities in the charges against the various defendants, such as wrong dates, inaccurate legal classifications or inconsistencies between the facts set out and the legal classification retained. The prosecutor also noted that the investigation had been carried out in the absence of one of the defendants without a duty lawyer being appointed and that some of the charges had to be amended, to take account, inter alia, of the fact that the applicant had attempted to commit suicide, which was an aggravating circumstance. In an order of 16 October 2002, the prosecutor noted that no measures had been carried out in accordance with his previous decision. In a further order of 12 March 2004, he observed that the instructions given had not been followed in their entirety, and in particular that the charges had not been amended.

The investigation was closed again and sent to the prosecutor on l3 November 2005. On 23 December 2005 the prosecutor decided to discontinue the proceedings against H.I. and G.M., who had been prosecuted for abduction for the purposes of coercing into prostitution and incitement to prostitution respectively, on the grounds that the offences had not been made out. On appeal by the applicant, that decision was set aside by the court on 29 March 2006.

The investigation was closed in May 2007 and the applicant was served with the investigation file. She then requested that one of the men she had identified from a photo, Y.Y.G., also be charged with rape. Her request was rejected on 7 June 2007 by the district prosecutor, who considered that there was insufficient evidence against him, the applicant’s statement being the only basis for implicating him in the attack. On 26 June 2007 part of the investigation, which concerned the offences of which the applicant accused Y.Y.G. and K.M., was severed from the main proceedings and fresh proceedings brought against persons unknown. On 12 September 2007 the Blagoevgrad appellate prosecutor’s office upheld the decision not to charge Y.Y.G., noting that if new evidence were to emerge, the investigators could bring further charges in the proceedings against persons unknown. On 15 February 2008 those proceedings were stayed, on the ground that the perpetrators had not been identified.

On an unspecified date in 2007 seven defendants were committed for trial in the Blagoevgrad District Court on charges of false imprisonment, rape, incitement to prostitution or abduction for the purposes of coercing into prostitution.

On 5 December 2007 the applicant sought leave to join the proceedings as a private prosecutor and civil party seeking damages. The court granted the application at a hearing held on 9 May 2008.

The Blagoevgrad District Court held 22 hearings. About ten of these were adjourned, mainly because the defendants or witnesses had not been properly summoned. The trial took place in the absence of one of the defendants, S.P., whom the authorities had been unable to find.

In a judgment of 27 March 2012, the court convicted L.D. and M.K. of gang rape, aggravated by the fact that the victim had attempted to commit suicide, and false imprisonment with aggravated circumstances. They were sentenced to six years’ imprisonment. B.Z. and S.P. were convicted of abducting the applicant for the purposes of coercing her into prostitution and sentenced to six and four years’ imprisonment respectively. S.D. was convicted of false imprisonment and sentenced to a fine of 3,000 levs (BGN). The court found that the offence of incitement to prostitution for which G.M. was being prosecuted was time-barred in accordance with the absolute limitation period and discontinued the proceedings against him. Lastly, it found H.I. not guilty of abduction for the purposes of coercing into prostitution on the grounds that the offence had not been made out as H.I. had not been present at the material time. The five defendants who had been convicted were ordered to pay the applicant damages, and the claim against the other two defendants was rejected.

The five defendants who had been convicted appealed. The applicant appealed only against the part of the judgment concerning S.D., requesting the imposition of a heavier sentence and an increase in the amount awarded in damages.

Seven hearings before the Blagoevgrad Regional Court were adjourned on account of the absence of one of the accused or their lawyers. The first hearing on the merits took place on 8 November 2013. As two of the defendants, S.P. and G.M. had not appeared, the court decided to examine the case in their absence.

In a final judgment of 11 February 2014, the court set aside S.D.’s conviction and terminated the proceedings against him on the grounds that they had become irrevocably time-barred. It amended the judgment concerning the other defendants: the classification of the offence of which L.D. and M.K. had been convicted was slightly amended and their sentence reduced to five years’ imprisonment. The sentence imposed on B.Z. was reduced to three years’ imprisonment and S.P.’s four-year prison sentence was upheld.

The court also reduced the amounts awarded to the applicant in non-pecuniary damages. It awarded the applicant a total amount of BGN 39,000, which was the equivalent of approximately 20,000 euros (EUR), ordering L.D. and M.K. to pay the applicant BGN 15,000 each, and B.Z, S.P. and S.D. to pay her BGN 4,000, BGN 3,000 and BGN 2,000 respectively.

During the judicial proceedings the applicant, who was living in Sofia, had to travel to Blagoevgrad on numerous occasions to attend hearings. She was called to the witness stand seven times. According to a medical opinion produced by the applicant, each summons to appear before the court had adversely affected her psychological condition.


Preliminary objection dismissed (Article 35-1 - Six month period);Remainder inadmissible;Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Respondent State to take measures of a general character (Article 46-2 - Legislative amendments);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award

Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant was born in 1951 and lives in Diyarbakır. He is the father of Tarık Ataykaya, born on 25 September 1983, who died on 29 March 2006.

A. Incident of 29 March 2006

Following the death of fourteen members of the PKK (Kurdistan Workers’ Party, an illegal armed organisation) in an armed clash on 24 March 2006, many illegal demonstrations took place in Diyarbakır between 28 and 31 March 2006, during which a number of demonstrators were killed. According to the Government, some 2,000 individuals took part in those demonstrations, in which the police headquarters was bombarded with stones, sticks and petrol bombs, with the police and their vehicles coming under attack around the city. It was reported that, during those incidents, nine people died and over 200 members of the police force and 214 higher-ranking officers, a doctor, a nurse, two journalists and an ambulance driver were wounded. Similarly, a number of offices and public buildings, including the school of medicine of Dicle University and police premises, were damaged.

On 29 March 2006, at around 13.30 p.m. to 2 p.m., on leaving his workplace, Tarık Ataykaya found himself in the middle of a demonstration. The Government accepted the argument that Tarık Ataykaya had not taken part in the demonstration but had just been passing by, and explained that the police had fired a large number of tear-gas grenades to disperse the demonstrators. Tarık Ataykaya was struck on the head by one of the grenades and died a few minutes later.

On 30 March 2006, at 11.15 a.m., an autopsy was carried out at the public hospital of Diyarbakır. The report’s conclusions read as follows:

“1. Death was caused by a haemorrhage and brain damage inflicted by a firearm projectile (tear-gas grenade – gaz fişeği).

The characteristics of the projectile’s point of entry show that it had not been fired from a short distance ...”

On 3 April 2006, I.D., an eyewitness and colleague of Tarık Ataykaya, went with M.S.D., another eyewitness and colleague of the latter, to the office of the Human Rights Association in Diyarbakır. I.D. stated in particular as follows:

“... On 29 March 2006, at around 1.30 p.m. to 2 p.m., we closed the workshop with Tarık Ataykaya, one of the workers, and returned home on foot. We saw tanks go past. People were very worried. Six or seven members of the security forces, armed and wearing the uniform of special teams (they were wearing special military uniforms with mixed colours, they were not ordinary policemen or soldiers), arrived. They started shooting at random. There was a great pandemonium. While we were running we heard gunfire ... We saw Tarık Ataykaya fall to the ground unconscious (the security force personnel were firing with one knee on the ground and taking aim. That means they were not firing in the air but towards people). ... I realised that [Tarık Ataykaya] was wounded in the head. M.S.D. also realised this. We carried Tarık Ataykaya to an empty space near a building and called an ambulance ...”

Following a request by the Diyarbakır public prosecutor’s office on 4 April 2006, a forensic report was drawn up on 12 April 2006 by the presidency of the criminal investigation department’s forensic laboratories attached to the Diyarbakır police headquarters. It showed that the object extracted from Tarık Ataykaya’s head was a plastic cartridge (muhimmat) from a tear-gas grenade of type no. 12. The report also stated that the cartridge did not bear any characteristic markings from which the firearm in question could have been identified.

B. Administrative and criminal investigations

The applicant’s complaint

On 19 April 2006 the applicant filed a criminal complaint. Referring to the statements of I.D. and M.S.D. to the Human Rights Association in Diyarbakır (see paragraph 9 above), he asked the public prosecutor of Diyarbakır to identify the police officer who had fired at his son and to bring criminal proceedings against him for murder. He also asked that the object extracted from the deceased’s head be examined by a panel of experts from the forensic institute.

Attempts by the public prosecutor’s office to determine the identity and number of members of the security forces authorised to use grenade launchers

On 3 May 2006 the Diyarbakır public prosecutor’s office responsible for investigating organised crime declined jurisdiction to examine the case. It stated, inter alia, as follows:

“... the autopsy carried out on the deceased showed that death had been caused by a cartridge striking [the deceased’s head]. [Subsequently], the forensic report established that this cartridge came from a tear-gas grenade of type no. 12, a type used by the security forces ... Consequently, the investigation must be carried out by the public prosecutor [responsible for investigating ordinary crimes].”

On 23 May 2006 the public prosecutor of Diyarbakır dealing with the case, following the decision to decline jurisdiction on 3 May 2006, sent a letter to the Diyarbakır police headquarters. He asked for information on the police units which had been equipped with tear-gas grenade launchers during the incident of 29 March 2006 and for the identification numbers of the personnel who had used them. However, it can be seen from the answers given by the Diyarbakır police headquarters, as summarised below, that it was not possible to establish with certainty the identity or number of all the members of the security forces who had been authorised to use that type of weapon.

First, in June 2006, the Diyarbakır police informed the Diyarbakır public prosecutor that during the incident in question three police officers from the special forces (özel harekat), whose identification numbers were indicated in the letter, had used grenade launchers in order, according to them, to disperse demonstrators who had been throwing stones and petrol bombs at the security forces.

In a letter of 13 July 2006 the head of the Anti-Terrorist Branch of the Diyarbakır police informed the Diyarbakır public prosecutor that it had not been possible to identify the individuals responsible for the death of Tarık Ataykaya.

On 30 October 2006 the Diyarbakır public prosecutor asked the Diyarbakır police headquarters to inform him of the positions to which the three police officers concerned had been assigned on the date of the incident in question.

On 1 December 2006 a document concerning the assignment of the three police officers was added to the file. It showed that these officers had been assigned to various zones during the incident.

In a letter of 10 April 2007, the head of the Anti-Terrorist Branch of the Diyarbakır police in turn informed the Diyarbakır public prosecutor’s office that twelve tear-gas grenade launchers had been listed in the names of twelve officers of the special forces, that those officers had not been posted to Goral avenue (near the site of the incident) and that, in the course of the incident, those teams had been assigned to various zones on the instructions of the police chiefs. In addition, it stated that eleven other police officers of the Rapid Response Force (çevik kuvvet) had used grenade launchers and that they had been assigned to different zones during the incident. He lastly concluded that grenade launchers had been used by a total of twenty-three police officers attached to the Anti-Terrorist Branch.

Testimony obtained by the public prosecutor’s office

On 1 November 2006 the applicant was heard by the public prosecutor’s office. He requested the identification and punishment of those responsible for his son’s death.

On 14 February 2007, B.A., one of the three police officers whose identification numbers had been communicated previously (see paragraph 14 above), gave evidence to the public prosecutor’s office. He stated that, on the day of the incident, some 500 police officers and soldiers had used tear-gas grenade launchers and that, if Tarık Ataykaya had died as a result of a tear-gas grenade fired by the security forces, any one of those 500 police officers and soldiers could have fired it. He added that, during the incident, some 4,000 to 5,000 tear-gas grenades had been used by police officers from the special forces in order to disperse the demonstrators.

On 5 November 2007 the applicant was again heard by the public prosecutor’s office. He repeated his request for the identification and punishment of those responsible for his son’s death.

On 15 November 2007, I.D., an eyewitness and a colleague of Tarık Ataykaya, gave evidence to the public prosecutor’s office. He stated in particular as follows:

“... On 29 March 2006 we were working with Tarık Ataykaya in the joinery workshop on Medine boulevard in Bağlar. Around noon, a large crowd had gathered on Medine boulevard because of the demonstrations ... We had to close the workshop. There were about 50-60 demonstrators and 5-6 police officers, wearing camouflage clothing and balaclavas. As we were locking up the workshop, I saw that masked policemen, with one knee on the ground (yere diz çökerek), were firing guns unremittingly towards the demonstrators. Tarık Ataykaya was with us. He did not take part in the demonstrations. After leaving the workshop Tarık Ataykaya went back there because the demonstrators were heading towards us. [At that moment], Tarık Ataykaya, hit by a bullet fired by one of the policemen, fell to the ground, which means that he was shot by police gunfire. Supporting him, we took him to an empty space near a building and called an ambulance. Tarık Ataykaya had been struck on the head and small pieces of his brain had come out. We took Tarık Ataykaya to hospital with a pick-up truck as there was no sign of the ambulance. As the policemen were masked, I am unable to identify them.”

I.D. added that, on the day of the incident, some of his friends had said that they had seen footage of the incident, probably on the private television channel NTV.

On the same day, M.S.D., an eyewitness and colleague of Tarık Ataykaya, also gave evidence to the public prosecutor’s office. He confirmed I.D.’s statements.

Also on 15 November 2007, R.K., a resident of the district where the incident had taken place was interviewed by the Diyarbakır public prosecutor’s office. She stated in particular:

“... on 29 March 2006, at my home on Medine boulevard, I was waiting for my son to come home from school. It was about 1 p.m. The demonstrations had begun in the streets. My son was late and I went to look for him on Medine boulevard. I saw my son coming back from school. Tarık Ataykaya, with three of his colleagues, had closed the workshop and I think he was on his way home. The street was full of people. The policemen were advancing in our direction. They were firing their guns continuously towards the demonstrators. When I got home with my son, I saw that a masked policeman, with one knee on the ground, was firing towards Tarık Ataykaya, who had his back to the policeman. I saw Tarık Ataykaya fall to the ground. He was carried to the door of a building. An ambulance was called. When I checked Tarık Ataykaya’s heart, I realised that he was dead. The policemen who had come towards us were masked, so I would not be able to identify them. As my attention was totally focussed on Tarık Ataykaya, I did not see what the policeman was doing. The individuals present during the incident were I.D. and M.S.D. ...”

On 21 January 2008 the Diyarbakır public prosecutor asked the Ankara public prosecutor’s office to take testimony from police officers N.O. and H.A., to establish whether they had been present on Medine boulevard or Goral avenue during the incident.

On 18 February 2008 N.O. and H.A. were interviewed by the public prosecutor’s office. They stated that they had not been assigned to those two places at the time the incident had taken place and had not witnessed it.

Administrative investigation

In the meantime, in a letter of 2 November 2007, the public prosecutor asked the Diyarbakır provincial governor’s office to open an administrative investigation and to transmit the relevant file to the public prosecutor’s office. He pointed out that in the context of that investigation it would be appropriate to take statements from the eleven police officers of the Rapid Response Force and the three police officers of the special forces.

It can be seen from the file that an administrative investigation was opened by the Diyarbakır provincial governor’s office in order to determine the responsibility of fourteen police officers in the incident. Following that investigation, on 30 January 2008, the police disciplinary board of the provincial governor’s office made up of the governor, the head of the health department and three police superintendents, decided not to impose any sanction on the police officers who had used tear gas during the demonstration of 29 March 2006. The board made the following observations in particular:

“... It is appropriate to close the case having regard [to the following points:] it was a major incident. According to the witness statements, the face of the officer who fired the tear-gas grenade which caused the death of the deceased was not visible because he was wearing a balaclava. All officers have undergone training in which they learned that the firing [of grenades] must be carried out in such a way as not to hit the target directly. There is no document, evidence, sign or circumstantial evidence (emare) from which it could be established that the officers under investigation committed the offence in question ...”

Permanent search notice

On 3 April 2008 the Diyarbakır public prosecutor’s office issued a permanent search notice for the purposes of tracing the person who fired the grenade in question, with effect until 29 March 2021, when the offence would become time-barred. Referring, inter alia, to the decision taken by the police disciplinary board to close the case, it found in particular as follows:

“... The autopsy carried out on 30 March 2006 showed that the death was caused by a tear-gas grenade of type no. 12 which struck [the deceased’s head] ... This projectile was used by the forces on duty at the time of the incident ...

... Under Article 6 appended to Law no. 2559 on the duties and powers of the police, the police are entitled to use physical force, material force and weapons in order to immobilise offenders, in a gradual manner and in proportion to the particularities and degree of resistance and aggressiveness of the offender. In those circumstances, it will be for the superior to determine the degree of force to be used ... [Moreover], under Article 24 of the Criminal Code, a person who complies with statutory obligations cannot be punished and a person who obeys an order given by a competent authority in the exercise of its power cannot be held responsible for his action.

In the registers of the security forces, there is no information concerning the manner in which the death occurred.

The deceased Tarık Ataykaya found himself among the demonstrators during the social demonstrations which took place on 29 March 2006 in the centre of Diyarbakır, either because he was taking part in those demonstrations or because he had just left the workshop where he was working. During the incidents, demonstrators were clashing with the police and throwing sticks and stones. The police intervened against the demonstrators using tear-gas grenades and rubber bullets. The casing of a tear-gas grenade thrown against the moving demonstrators struck the head [of Tarık Ataykaya] and caused his death. This incident is not mentioned in the police documents. The witnesses to the incident stated that they could not identify the person who had fired it because his face was masked. It was not possible to determine which weapon had been used. The casing did not bear any characteristic mark of the weapon from which it was fired. Even though there is no tangible evidence to show that the person who fired was definitely a police officer, as no register suggested that other armed individuals had used tear-gas grenades [it can be concluded that] this grenade was probably used by the security forces which were operating at that time. [However,] it is not possible to identify the perpetrator, whether from the autopsy report, the statements of the complainant and witnesses, the forensic report or the case file as a whole ...”

This decision was notified to the applicant on 17 April 2008.


Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra

The applicants, Mr Marcello Biagioli and Mr Carlo Biagioli, are Italian nationals, who were born in 1942 and 1969 respectively and live in San Marino. They were represented before the Court by Ms Francesca Massari, a lawyer practising in Forli’, Italy and Ms Antonella Mascia, a lawyer practising in Strasbourg, France.

Background of the case

The first applicant, Colonel Marcello Biagioli, was Commander in Chief of the San Marino Police. The second applicant, Mr Carlo Biagoli, is the first applicant’s son, who was a lawyer and notary by profession before being disbarred as a result of the criminal proceedings at issue in the present case.

In 2005 criminal proceedings were instituted against the applicants for making false declarations in public documents (reato di falso in atto pubblico) under Articles 73 and 295 of the Criminal Code on 1 March 2002. It was alleged that they had altered the content of the police daily record (foglio di servizio) of 16 June 1999 by adding that they had carried out a check-up on a specific car and person, whereas such a check-up had never been undertaken.

The applicants were brought before Judge V.C., who heard the case over a number of sittings during which witnesses and experts were called to testify.

On an unspecified date, by means of the relevant procedure, Judge V.C. lodged a request before the judge for extraordinary remedies (Giudice per i rimedi straordinari) to abstain (astensione) from hearing the case. On 25 February 2009, the request was accepted and the file was sent back to the Chief Justice (Magistrato Dirigente), whose duty it was to organise and distribute the case load within the courts (see Relevant domestic law and practice), in order for him to assign the case to another judge.

Although the Chief Justice was abroad at the time, on 3 March 2009, by means of a fax (fonogramma), the case was assigned to Judge B., as the only judge practising in the criminal field who had not had any dealings with the proceedings at issue. However, following his request, Judge B. was dispensed of hearing the case on grounds of “incompatibility”, as he had previously, in another case, manifested his opinion about the facts object of these proceedings.

By another fax of the same date, the Chief Justice assigned the case to Judge G.F., who usually dealt with civil and commercial cases, on the grounds that all the criminal judges had reasons for claiming incompatibility. The case was set to be heard on 30 March 2009.

On 30 March 2009 the applicants challenged the procedure and the decision to assign Judge G.F. to the case. They did so by means of (i) an application to the judge of criminal appeals; (ii) a complaint of nullity (querela nullitatis) to the constitutional jurisdictions; (iii) an administrative application accompanied by a provisional request to suspend the execution of the impugned proceedings; and (iv) pleadings before the first-instance court, namely Judge G.F., to the effect that his appointment was null, reiterating the same challenges as in the above-mentioned applications and referring, inter alia, to the principle that a tribunal had to be established by law.

On the same date, Judge G.F. ordered the transfer of the applicants’ challenges to the relevant bodies to be decided with urgency, but considered that it was not necessary to suspend the case.

Also on the same date, the judge of criminal appeals declared the applicants’ challenge inadmissible on the grounds that the law did not provide that such actions could be challenged autonomously before the criminal jurisdictions or, more specifically, the Criminal Appeal Court.

On 2 April 2009 the applicants’ complaint of nullity was also declared inadmissible for lack of competence of the above-mentioned court. It was observed that under San Marino law the impugned measures were provided for by means of internal regulations of the Judicial Council and orders of the Chief Justice, and did not amount to a res judiciata in civil matters or an arbitration decision (not subject to appeal), which would fall under the relevant legal provisions relating to a complaint of nullity.

The applicants’ provisional request before the administrative jurisdiction to suspend the execution of the proceedings was also rejected on 6 April 2009. However, the decision on the merits of the administrative request was not delivered until 8 November 2012, that is, after the decision on the criminal proceedings had become final. The Administrative Court considered that the decisions of the Chief Justice had been internal actions of a general nature, and as such had had no prejudicial effects on the applicants, who therefore had no standing to challenge them. Moreover, the Chief Justice’s decision had been based on section 6(4) of Law no. 145 of 30 October 2003 and had followed the usual practice of the San Marino courts. The court failed to comprehend how the applicants had been prejudiced by that practice, the aim of which was to expedite proceedings Nor could it understand how the applicants would have benefited from the nullification of the above-mentioned actions.

The applicants appealed. By a judgment of 20 March 2013 the administrative appeal court judge upheld the first-instance judgment and emphasised that such complaints were the competence of the criminal courts, rather than the administrative courts.

Interlocutory withdrawal proceedings

On 6 April 2009, before the start of what was to be the second hearing, the first applicant made a formal request for Judge G.F. to withdraw from the case (ricusazione) on the basis of section 10(2) of Law no. 145/2003 (see Relevant domestic law and practice) because Judge G.F. had, amongst his colleagues, said that “had the case been assigned to him, he would have, speedily and without doubt, found both applicants guilty”. The first applicant had been informed of this by means of an anonymous letter and it was later confirmed by Judge R.F. (Giudice Conciliatore), who had heard it from other persons (de relato). The first applicant also complained that Judge G.F. had been the victim of political and media pressure.

Judge G.F. referred the request to the judge for extraordinary remedies.

In the interlocutory proceedings regarding the request for withdrawal (ricusazione) before the judge for extraordinary remedies, the first applicant requested that a number of witnesses be heard to determine the factual basis of the request for withdrawal, namely whether they had actually been present and had heard the impugned statement viva voce or whether they had become aware of it through hearsay (de relato).

The Attorney General argued that the circumstances highlighted by the applicant were generic and that the facts exposed could not amount to situations provided for under section 10(2) of Law no. 145/2003. Judge G.F. also declared that he had never made such a statement.

On 4 May 2009 the judge for extraordinary remedies rejected the application for withdrawal, holding that even if its factual basis were true, it would not correspond to the reasons for withdrawal provided for by law (section 10(2) of Law no. 145/2003) and put forward by the applicant. The Court considered that the term “opined” in that provision had to be interpreted in the light of the right to freedom of expression and that judges could express general opinions that were not specifically informed opinions, among friends and colleagues, particularly when the latter were aware of the importance of maintaining the confidentiality of their conversations. It followed that in this respect it was superfluous to hear any witnesses. The court further explained that the letter produced as evidence by the applicants was highly unreliable, given that it was anonymous. While the evidence of Judge R.F. could have been of relevance, it was hearsay evidence and its origin or source had not been indicated, save that it appeared to have been heard in the courts. Given that G.F. had denied making the alleged statement, the court found no reason to conduct an investigation merely on the grounds of the vague and generic indications presented by the applicant. The court further noted that there was no reason to consider that the atmosphere of media pressure, or the prosecution’s zeal in conducting the proceedings speedily, could have had any effects on the serenity of G.F.

No appeal lay against such a decision.

In the criminal proceedings on 8 June 2009 the first applicant reiterated his request for G.F.’s withdrawal. He raised the matter of the unconstitutionality of section 10(2) of Law no. 145/2003 as interpreted by the judge for extraordinary remedies and the established jurisprudence, in so far as it was in contrast with that established in Law no. 59 (the San Marino Human Rights Charter). Section 1 provided for the recognition of human rights as guaranteed in international treaties, particularly the European Convention on Human Rights and Fundamental Freedoms, specifically in relation to the right to be judged by an impartial tribunal. The first applicant further requested that the listed witnesses be heard.

By a judgment of 16 July 2009 the judge for extraordinary remedies declared the request inadmissible. Confirming that the law had been correctly interpreted in the judgment of 4 May 2009, he noted that the request, which was clearly a delaying tactic, was inadmissible both because it had already been the subject of a decision and because it was out of time. It followed that the court could not proceed to examine the merits of the constitutional complaint. It was, however, worth noting that in its decision of 4 May 2009 the court had taken into account the relevant human rights at issue.

The same request was reiterated a number of times, but was always rejected. Such action, together with a number of requests for the withdrawal of other judges in the proceedings (twelve requests in total), which also caused an unreasonable delay in the main proceedings, led to criminal proceedings being instituted against the first applicant for misdeeds towards public office (misfatto di attentato contro i poteri pubblici). By a final judgment of 30 January 2013 the latter was acquitted. The court considered that there were no statutory limits to the rights of the defence, thus no misdeed had objectively taken place.

Constitutional proceedings

During the criminal proceedings on 19 May 2010 (that is, after the prescriptive period for the charge at issue, as interpreted until then, had elapsed) Judge G.F. referred a constitutional question on prescriptive periods to the Constitutional Court. The issue raised concerned the interpretation of the legislation on prescriptive periods, which was introduced in 2003 pending proceedings, in particular in respect of section 17 of Law no. 83 of 28 October 1992, section 23(3) of Law no. 55/2003, and section 10 in fine of Law no. 145/2003 (see Relevant domestic law and practice), taken together.

By judgment no. 2/2010 of 19 July 2010 the Constitutional Court held that in the absence of an express will of the legislator, section 10 of Law no. 145/2003 had to be interpreted as meaning that the running of prescription is suspended (ie. prescription stops running) from the moment of the filing of any request for withdrawal or abstention, “filed (prodotte) following the entry into force of the law”, up to the date on which the requesting party was notified of the decision on the matter, irrespective of the date on which the offence was committed. Having noted the relevant international jurisprudence, it considered that the principle of lex mitior was being invoked in the present case in respect of procedural law. Indeed, Law no. 145/2003 did not change the prescription regime but simply intervened in an immediate manner in respect of withdrawal applications lodged after its entry into force. Given that such a law affected solely the procedural aspect of the proceedings, it was appropriate to apply the principle of tempus regit actum and not lex mitior. Moreover, the latter principle had to be seen against the background of other constitutionally protected rights, such as the right of access to court for civil parties, the economy of proceedings, and the right to have proceedings dealt with within a reasonable time and by an impartial tribunal. In that light it was only reasonable to interpret the relevant provisions as suspending prescription in respect of all withdrawal requests lodged after the coming into force of the law.

Resumption of the criminal proceedings before Judge G.F.

In the light of the constitutional pronouncement, the prosecution in the applicants’ case was continued, as according to the novel interpretation given to the law it was no longer time-barred.

Further interlocutory proceedings and the second set of constitutional proceedings

On 13 September 2010 the first applicant again requested the withdrawal of Judge G.F., and the latter again sent the file to the judge for extraordinary remedies.

On 28 March 2011 the judge for extraordinary remedies, of his own motion, referred the case to the Constitutional Court to determine the constitutionality of section 23 of Law no. 55/2003 and section 10 of Law no. 145/2003, in so far as they provided that the judge in the main proceedings must suspend the proceedings pending a decision on an interlocutory request. Thus, the inability of the judge to dismiss such a request on the basis that it had already been decided was hindering the defendants’ right to have proceedings heard within a reasonable time.

By judgment no. 7/2011 of 31 May 2011 the Constitutional Court found the above-mentioned provisions to be unconstitutional in so far as they did not allow for the continuation of the proceedings when a withdrawal application had been lodged on grounds already aired in a previous request, to the detriment of the principle that proceedings had to be heard within a reasonable time. To deem otherwise would allow proceedings to stall or even to become paralysed. It was therefore reasonable to come to such a finding, particularly because if the application were eventually rejected, no harm would ensue for the accused, and if it were accepted the newly assigned judge could carry out any necessary steps afresh, if so requested, thus guaranteeing the impartiality of the tribunal and without prejudice to the accused.

In consequence, on 7 June 2011 the criminal file was sent back to Judge G.F. for the resumption of the proceedings.

Continuation of the criminal proceedings

The main proceedings were resumed on 12 September 2011, on which date the applicants raised a constitutional plea concerning the interpretation of section 10 of Law no. 145/2003 as interpreted by the Constitutional Court in its judgment no. 2/2010 and in particular in the light of section 23 of Law no. 55/2003 as amended by the Constitutional Court’s judgment no. 7/2011.

The judge (G.F.) gave a deadline for the parties to make submissions regarding the admissibility of the issue raised by the applicants.

At the end of the hearing the applicants’ lawyers refused to continue representing the applicants. The applicants were assigned duty lawyers (difensore d’ufficio) who, following their request of 14 September 2011 obtained the postponement of the case to 21 September 2011. Following a subsequent request for a longer period to prepare their defence dated 15 September 2011, they obtained a postponement to 19 October 2011.

In the meantime, and before the deadline of 19 October 2011, the law regarding prescriptive periods was amended by means of Law no. 139 of 16 September 2011 (see Relevant domestic law and practice). In consequence, Judge G.F. declared the applicants’ referral request inadmissible, considering the new interpretation of the law (ius supervienens) applicable also to interlocutory requests for withdrawal which had been lodged before the entry into force of the law, but which were still pending decision.

Following their request of 13 October 2011 the applicants obtained a further postponement to 11 January 2012.

On 28 December 2012 the first applicant appointed a new lawyer, who asked the court to postpone the hearing scheduled for 11 January 2012 to allow him time to familiarise himself with the case before the final pleadings. The request was unsuccessfully reiterated on 3 and 5 January and again at the hearing of 11 January 2012, the judge having considered that the applicant had been duly represented by a duty lawyer and subsequently by his chosen lawyer. At that hearing the first applicant’s lawyer limited his defence to a plea of nullity of that hearing on the grounds that the applicant’s defence rights had been breached.

By a judgment of 4 April 2012 no. 81/2012, filed in the registry on 11 May 2012, Judge G.F. found both applicants guilty. The first applicant was sentenced to three years’ imprisonment and prohibited from holding public office for eighteen months, and the second applicant was sentenced to two years’ imprisonment and prohibited from holding public office for eighteen months.

Criminal appeal proceedings

The applicants lodged an appeal on the merits, also raising constitutional complaints. They complained that the assignment of the case to Judge G.F. had not been in accordance with the law, and that he had not been impartial. They asked (istanza istruttoria) the Appeal Court to hear at least two witnesses in relation to the matter. They further complained about the refusal to postpone the hearing following the change of lawyer. Lastly, they complained about the retroactive application of the laws of 2003 and subsequently 2011 relating to prescriptive periods.

By judgment no. 154/2012 of 28 September 2012 the Appeal Court upheld the first-instance judgment, reducing, however, the punishment, and dismissed the applicants’ appeal. Having confirmed the judgments on the merits, it also rejected the applicants’ specific pleas. It fully shared the Constitutional Court’s findings (in its judgment no. 2 of 2010) that Law no. 145 of 2003, prescribing limitation periods, was applicable to the case, which had started in 2005 according to the principle tempus regit actum. In addition, having regard to the amendments made in 2011 and having carried out a detailed re-examination of all the relevant suspensions, it confirmed that the prosecution of the offence had not become time-barred.

The Appeal Court noted that in San Marino the procedure for appointing a judge to a case was provided for not by statutory law but by the internal regulations of the Judicial Council and orders of the Chief Justice. Such a process did not therefore violate any European or San Marino constitutional principles, which did not provide that appointments under the single-judge formation be established by law. Even without considering any other reasons, it sufficed to look at the provisions of section 2(10) of Law no. 139/2011, which provided that, subject to a request to that effect, the Chief Justice could decide whether a substitution was necessary by means of an internal order, without any formalities, while a request for withdrawal was pending before the relevant judicial organ. However, even assuming that the procedure applied was not correct, and that the formal abstention procedure should have been carried out before designating Judge G.F., the fact that the Chief Justice had opted for a speedy decision to designate G.F. did not have any effect on the acts undertaken by the said GF. Indeed, in the absence of a procedure prescribed by law, the term “established by law” referred to the criteria related to a judge’s competence to hear a case, and not to the procedure used to assign a judge to a specific case. Even the Italian Constitutional Court had considered that such a principle only applied to the suitability of a judge to give judgment and to his capacity to hold such a function, and not to the internal organisation of the body in question. It followed that Judge G.F. had carried out perfectly lawful, legitimate and valid acts, in the full exercise of his judicial functions.

As to whether the judge was impartial, the question had already been repeatedly dismissed by the judge for extraordinary remedies during the first-instance proceedings and it would therefore be arbitrary and abusive to reassess the matter. It followed that the request to hear further witnesses could not be granted.

Regarding the refusal to postpone the hearing, the Appeal Court considered that there was no such right and that the judge had the discretion to decide whether to grant such a request – in the present case the judge had rightly considered the request as being a delaying tactic and had consequently done well to reject it. Moreover, in the present case, the first applicant had had a substantial amount of time to replace the duty lawyer, and therefore his request for a further three months had been exorbitant visà-vis the needs of the defence, which had not been limited by such a refusal.

Subsequent events

Following the above-mentioned finding of guilt, whereby the second applicant was sentenced to two years imprisonment and interdiction from public office for a year, sentence suspended for two years, the applicant was subject to disciplinary proceedings, in which he participated represented by his lawyers.

By a decision of 23 October 2012 the San Marino Chamber of Advocates and Notaries (CAN) disbarred the second applicant. It noted that Article 51 of Law no. 28 of 20 February 1991, provided that disbarment applied (importa, di diritto) in cases of a final finding of guilt under Article 295 (relevant to the present case), thus, the CAN had no room for evaluation, discretion or decision making, save for the determination of whether an irrevocable criminal judgment finding guilt actually existed. In the present case that fact had been ascertained and the judgment had been submitted by the applicant himself. It followed that the CAN’s finding applying such a sanction was simply declaratory, having the legislator provided for disbarment to be mandatory in such cases. It further rejected the applicant’s plea concerning prescription in respect of the disciplinary action and his request for suspension of the disciplinary proceedings due to pending administrative proceedings. It also considered that the disciplinary punishments provided by law were justified by a general principle, namely that of behaving in line with the duties of correctness, dignity and honour for the profession, even beyond the exercise of the professional activity, in so far as such behaviour may harm the common beliefs of the community. Indeed the law (Article 39 of Law no. 56 of 1995) could only be interpreted in the sense that actions undertaken outside the scope of one’s activity must be subject to disciplinary action if they affected society’s values, reflected on the professional reputation of lawyers or notaries, or compromised the image of the forensic and notarial categories. The correctness of this interpretation was evident given that according to the law the finding of guilt brought about disbarment mandatorily, as well as from the wording of Article 5 of Decree no. 105 of 2011 concerning the statute of the Chamber of Advocates and Notaries, and the correlation between Law no. 28 of 1991 and Decree no. 56 of 1995.

Its decision was confirmed in its entirety by the National Commission of Liberal Professions (libere professioni) on 16 January 2013, which rejected the applicant’s challenges, including that concerning the proportionality of the measure.

That decision was challenged before the Administrative Court. Pending those proceedings a request to suspend the effects of the Chamber’s decision pending a decision in the administrative proceedings was rejected on 3 May 2013, on the grounds that the second applicant had not shown what prejudice he had suffered and bearing in mind the interest of third parties and the crimes with which the second applicant had been found guilty by means of a final judgment.

By a judgment of 10 October 2013 the Administrative Court dismissed the applicant’s claims. The court recalled that in respect of disciplinary proceedings against lawyers, its role was limited to verifying that the decision in the disciplinary proceedings was in accordance with the law and not in abuse of power. The second applicant’s disbarment was in accordance with the law, namely Article 51 of Law no. 28 of 20 February 1991, which stated that such a measure applied (importa, di diritto) in cases of a final finding of guilt under Article 295 (relevant to the present case), irrespective of the punishment imposed. In the present case, the measure had not been applied “automatically” but following disciplinary proceedings which had respected the rights of due process. The organ deciding the matter had been composed as provided for by law, and no irregularities had transpired in respect of the reasons given by that organ, which was moreover free not to follow the expert’s view on the case, it not being mandatory by law, even though it would appear that such advice had in fact been taken on. Moreover, the court agreed with the findings in the disciplinary proceedings that the action had not been time-barred. Neither could it be of relevance that the applicant had been found guilty of actions performed in his “private life” and not in his professional life, as the law clearly did not exclude such a sphere. The court did not find the decision in the disciplinary proceedings to be unreasonable, indeed it had been dictated by law and therefore it had been the legislator that applied the specific sanction to the specific circumstances.

That judgment was confirmed on appeal on 24 March 2014. It highlighted that the law distinguished between minor crimes and more grave crimes when regulating the application of disbarment from a profession and that the application of such a serious sanction in the applicant’s case was wilfully decided by the legislator, leaving no discretion to the disciplinary commission. It was worth noting that in San Marino lawyers also carried out the functions of notaries, and a criminal conviction for making false declarations in public documents is objectively incompatible with the function of a public official which was by definition the guarantor of the truthfulness and veracity of documents. Thus, the fact that the law provided an automatic application of the sanction could not be considered unreasonable or disproportionate.

The decision to disbar the second applicant was communicated to the Employment Office, which in turn and in accordance with Articles 12, 13, 49 and 50 of Law No. 28 of 20 February 1991, namely the legal framework concerning the exercise of the liberal professions, struck him out from its list of liberal professionals. That entailed the automatic cancelling of his VAT number (codice operatore economico) as from 18 February 2013. According to the second applicant, that meant that he could no longer bill services rendered before 18 February 2013, nor could he take advantage of certain tax-related benefits.

B. Relevant domestic law and practice

Abstention, withdrawals and incompatibility

Law no. 145 of 30 October 2003 (hereinafter “Law no. 145/03”) provides for the nomination of the judiciary, their terms of office and required competencies, as well as their different roles and obligations.

Section 1 of Law no. 145/2003 concerns the institution of the singlejudge tribunal. In so far as relevant it reads as follows:

“[First-instance magistrates (Commissario della Legge) are assigned to specific courts] in accordance with the relevant legal provisions and the criteria relevant to the distribution of work approved by the Judicial Council.

The magistrates of each specialised section have full competence and may be substituted in the exercise of the functions or jurisdiction of the section. If necessary, and without prejudice to the judicial work already assigned, the Chief Justice in accordance with the criteria established by the Judicial Council, may assign to judges in one specialised section, competencies relevant to another section.

Appeal judges, whether in criminal, civil or administrative courts, may replace each other in the event of impediment or incompatibility. Substitution is automatic if there is an explicit provision to that effect, in the event that the position is vacant, or where there is more than one judge for each function. In all other cases replacement must be based on the criteria determined by the Judicial Council.”

Section 2 of Law no. 145/2003 provides for the nomination and “incompatibility” of judges or magistrates. In so far as relevant it reads as follows:

“The position of magistrate is incompatible with the carrying out of any activities which are related to political parties or movements or any unions, as well as with presenting oneself as an election candidate, be it administrative or political. Nor is it compatible with exercising commercial or industrial activities or taking up the role of administrator or director of a company (sindaco in societa`). Moreover, in respect of first-instance judges as well as trainee judges, their role is incompatible with exercising a liberal profession, undertaking any other office or private or public employment, except for teaching in the tertiary sector.”

Section 6 of Law no. 145/03 attributes the power to organise and distribute the workload within the courts to the Chief Justice. In so far as relevant it reads as follows:

“ (2) The Chief Justice has the power to organise and distribute the judicial workload according to pre-established criteria, as well as the duty to supervise (without interfering with the free decision making of each judge) and to co-ordinate and direct the judicial office, with the exception of merely administrative functions.

(3) The Chief Justice attributes work to the ordinary, administrative, and lower competence first-instance judges as well as to trainee judges (Commissario della legge, giudici amminisrtivi di primo grado, giudici conciliatori, uditori commissariali) in accordance with their professional competencies, experience and academic background (titoli). He or she also establishes criteria for the purposes of distributing work between the appeal judges, with their agreement.

(4) The Judicial Council (Consiglio Giudiziario) approves the criteria drawn up by the Chief Justice for the distribution of work, at its next session.

(5)The first-instance judges [mentioned above] must fulfil in a timely manner the duties of their office and adapt to the orders given by the Chief Justice, save for any incompatibilities provided for by law – any other possible function may be undertaken only in accordance with the needs of the office and upon authorisation of the Judicial Council in its ordinary session.

(6) The Chief Justice must present to parliament (il Consiglio Grande e Generale), through the Secretary of State for Justice, an annual report about the state of justice, including details about the work carried out by the magistrates and judges of every level ”

Section 9 of Law no. 145/2003 (before amendment in 2011), in so far as relevant, read as follows:

“The Judicial Council may definitely remove a magistrate whose state of health or personal condition is such as to render his or her incompatibility with the exercise of his functions absolute and permanent.

Otherwise it may suspend a magistrate temporarily, for an amount of time deemed absolutely necessary and for not more than six months, if the incompatibility is temporary.”

Section 10 of Law no. 145/2003 (before amendment in 2011), concerning abstentions and withdrawals, read as follows:

“(1) A judge or magistrate must abstain when serious reasons exist related to relationships by descent or ascent (parentela), affinity, friendship or enmity, together with economic or work-related connections, between the judge or magistrate (or his or her close relative) and one of the parties or the lawyers in an administrative or civil case, or the accused or suspect or the victim or the lawyers in a criminal case.

(2) A judge or magistrate must also abstain in the event that he or she has given advice or his or her opinion or has unnecessarily manifested his or her own informed conviction about the facts object of the criminal proceedings, as well as in the event of other instances of conflicts of interest.

(3) In the circumstances referred to in the above subsections, if the judge does not abstain he can be requested to withdraw by the parties.

(4) The judge or magistrate must also abstain where there exist circumstances which may compromise his impartiality or free judgment.

(5) Save for when it is proved that the cause for abstention became known at a later date, a request to withdraw must, ... in criminal proceedings be lodged within 20 days from the notification of the first act by the impugned judge.

(6) Prescription does not run and is therefore suspended from the date on which a request for a judge to abstain or withdraw is lodged, until the date on which the requesting party is notified of the decision on the matter.”

Point 2 of Part VI of the regulations on the distribution of work amongst the judges of single-judge tribunals and their substitutions, entitled “General Regulations for Magistrates of Single Judge Tribunals”, approved by the Judicial Council, and dated November 2003 provides as follows:

“Incompatibility arises when a judge has already dealt with a case concerning the same facts, during which he or she has in some way expressed his or her opinion – and therefore the reason for abstention will already have existed when the case was assigned. Thus, it is a duty (onere) of the magistrate in case of incompatibility, and a legal obligation under section 10 of Law no. 45/2003 in the case of abstention, for the Magistrate to speedily withdraw from the case. The deadlines for abstention are the same as applicable for withdrawals [...] but there are no deadlines for the purposes of incompatibility, which depends on the powers of the Chief Justice to assign the case to another judge in the relevant field. For the correct functioning of the system, a judge who considers that he or she has reason to declare his incompatibility should, not later than five days after the case has been assigned to him, write a letter giving reasons to the Chief Justice. On the expiry of such time-limit, the judge must proceed by means of abstention as provided for by law. In the event that abstention is upheld or incompatibility recognised, a new judge competent in the relevant field must be assigned, in accordance with the criteria set out in the list of competencies.”

For the purposes of Law no. 145/2003 the Judicial Council is a representative council whose function is to provide guarantees in respect of the judicial system. It is usually composed of all the judges and presided by the two Captains-Regent (Capitani Reggenti – exercising the function of Head of State and Government) represented by the Chief Justice. The Secretary of State for Justice also attends but has no vote.

Section 2 of Law no. 139/2011 (see paragraph 61 below) provides for the procedure for abstentions by and withdrawals of magistrates.

Interlocutory requests

Section 23 of Law no. 55/2003 provided that when a request for the withdrawal of a judge was submitted, the judge before whom the case was being heard had to send the acts of the proceedings to the judge for extraordinary remedies to determine the matter, during which time the main proceedings would be suspended.

Prescription

At the time of the commission of the offence in the present case, namely 2002, section 17 of Law no. 83 of 28 October 1992 provided that prescription continues to run even pending an interlocutory proceedings concerning the withdrawal of a judge.

The legislation concerning the issue was amended in 2003 by the enactment of Law no. 145/2003, section 10 (cited in paragraph 54 above) which introduced a new rule regarding prescription, namely that:

“Prescription does not run and is therefore suspended from the date on which a request for a judge to abstain or withdraw is lodged, until the date on which the requesting party is notified of the decision on the matter.”

In 2011 the law was again amended by means of section 9 of Law no. 2/2011 (amending section 10 of Law no. 145/2003, cited above) and section 2 of Law no. 139/2011. The latter provided that, pending interlocutory proceedings in respect of abstention or withdrawal, the main proceedings should be suspended, and that prescription would stop running, save in the event of any requests for withdrawal which appeared to be repetitive or used as a delaying tactic, in which case the impugned judge could continue to hear the main proceedings and prescription would continue to run. In criminal proceedings the impugned judge could also continue to hear the case but could not deliver a judgment. The relevant parts of that provision read as follows:

“(1) A judge who comes across a situation of obligatory abstention as indicated in section 10 of Law no. 145 of 30 October 2003, as amended by section 9 of Law no. 2 of 16 September 2011, shall make a declaration to that effect, requesting the competent judge to dispense him or her from hearing and deciding the case in which the incompatibility exists.

(2) Following notification to the parties, the request together with the acts of the proceedings shall be transferred to the competent judge. The request shall be accompanied by the relevant evidence.

(4) The same applies for non-obligatory abstentions.

(5) A request for withdrawal of a judge may be lodged at any time during the main proceedings.

(7) Having received the request, the judge shall inform the Chief Justice and send the request to the registry for transmission to the judge with the relevant competence. If the request is made during the adversarial stage of criminal proceedings, the criminal-court judge should continue to hear the case but not deliver a judgment.

(10) A request for withdrawal of a judge suspends the proceedings. Nevertheless, if such a request appears to be a delaying tactic or a repetition of previous requests, the impugned judge may continue to hear the case, or may ask the Chief Justice to replace him or her in order to allow for a speedy disposal of the case, despite considering the request to be unfounded.

(11) In the event that, following a request for withdrawal, the judge declares his intention to abstain, the procedure concerning abstention should prevail.

(17) Save for the circumstances described in subsection (10) above, in criminal proceedings prescription stops running from the time a request for abstention or withdrawal is lodged until the date when the relevant decision is notified to the requesting party if the case is still at the inquiry stage (istruttoria) or until the next hearing if the case is at the stage of judicial assessment (fase decidente).

Section 3 provided for the entering into force of this law on the fifth day following its publication.

San Marino Fundamental Human Rights Charter

Article 15 (4) of the San Marino Fundamental Human Rights Charter reads as follows:

“Punishment may only be handed down by a judge established by law, on the basis of non-retroactive laws. The retroactive application of the law is only provided for when such law is more favourable.”

The above-mentioned article was interpreted by the San Marino single-judge tribunal (Giudice Unico) (judgment of the Criminal Appeal Court no. 105 of 7 October 2005) as prohibiting the retroactive application of the law in criminal matters, including those concerning prescription.

To the contrary, the Constitutional Court (Collegio Garante della costituzionalita` delle norme) in its judgment no. 2/2010 of 19 July 2010 held that “in the absence of an express will of the legislator, section 10 of Law no. 145/2003 must be interpreted as meaning that the running of prescription is suspended from the time at which a request for withdrawal or abstention is lodged, following the entry into force of the law, until the date on which the requesting party is notified of the decision on the matter, irrespective of the date of the commission of the offence”.

Section 10 of Law no. 145/2003 (together with section 23(3) of Law no. 55/2003), in so far as it concerned the suspension of the running of prescription, was subsequently found to be unconstitutional by the Constitutional Court in its judgment no. 7/2011 of 31 May 2011 as it ran contrary to the principle that proceedings should be conducted within a reasonable time.

In consequence, the relevant law was again amended by means of Law no. 139/2011 of 16 September 2011 (see above).


No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Russia)

Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant was born in 1942 and lives in Espoo.

The applicant had a husband and two daughters in Russia. In 1988 one of the daughters moved to Finland and has lived there permanently since then. She is a Finnish citizen. The other daughter went missing in 2003 and is probably dead. The applicant raised her granddaughter, who was born in 1986, from the age of 3 or 4, when the child’s mother went missing.

In November 2006 the applicant suffered a stroke in Russia. Apparently her right side was then paralysed. At the time, she lived with her husband, until he died in 2007. Thereafter the applicant apparently lived with her granddaughter and her family near Vyborg.

On 7 December 2008 the applicant arrived in Finland with a tourist visa issued for a period of 30 days, without having lodged a prior application for a residence permit at a Finnish Representation. Since then she has been living with her daughter in Espoo.

On 17 December 2008 the applicant applied for a residence permit on the basis of family ties to her daughter.

On 31 July 2009 the Finnish Immigration Service (Maahanmuuttovirasto, Migrationsverket) refused the applicant a residence permit and ordered her removal to Russia.

The applicant appealed to the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen), presenting new medical evidence about her state of health.

On 8 April 2010 the Helsinki Administrative Court quashed the Immigration Service’s decision and referred the case back to it for reexamination as new evidence had been presented in the matter on which it could not take a stand as a first instance.

On 29 April 2010 the Immigration Service again refused the applicant a residence permit and ordered her removal to Russia. It found that, according to the domestic law, the applicant was not entitled to a residence permit on the basis of family ties as she was not a family member (a spouse or a minor child) of a person living in Finland. Other relatives than family members were issued a residence permit only in exceptional circumstances, mainly if the purpose was to continue close family life in Finland or if the relative was completely dependent on a Finnish citizen living in Finland. The applicant and her daughter had not had any family life since 1988 when the daughter had moved to Finland. A residence permit could not be granted on the basis of health reasons either. It did not appear that the applicant could not receive proper medical treatment or care in Russia. The applicant’s age, her state of health and the fact that her relative lived in Finland were not sufficient reasons to issue her a residence permit.

The applicant appealed to the Helsinki Administrative Court, requesting that the Immigration Service’s decision be quashed. She claimed, inter alia, that she had not received proper treatment in Russia and that such treatment could not be provided. She had no relatives in Russia who could take care of her. This meant that she would have to be put in a nursing home, the standard of which was generally poor in Russia. Her daughter could not move back to Russia either as she would have to leave her job in Finland and take her daughter with her. It was not even certain that they would be issued a residence permit in Russia. The applicant’s mental condition was such that she could not endure removal and separation from her daughter. Separation would lead to her death either through sickness or suicide.

On 27 May 2010 the Helsinki Administrative Court ordered a stay on removal for the duration of the proceedings before it.

On 16 September 2011 the Helsinki Administrative Court rejected the applicant’s appeal. In its reasons the court noted that the essential question was whether the applicant was completely dependent on her daughter who lives in Finland. The applicant’s state of physical and mental health was attested by proper medical certificates. However, it was not shown that the applicant could not receive proper medical treatment or care in Russia, in her own language. The applicant was thus not completely dependent on her daughter in Finland, nor did she have any close ties to Finland. The applicant had close ties to Russia where she could also receive treatment. The fact that treatment would be more expensive there was not a ground to grant a residence permit. The applicant’s daughter could help her financially and could also visit her in Russia.

The applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting that she be granted leave to appeal and that the court order a stay on removal.

No stay on removal was ordered by the Supreme Administrative Court.

On 14 June 2012 the Supreme Administrative Court refused the applicant leave to appeal.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

André Potocki;Mārtiņš Mits;Síofra O’Leary

The relevant details of the application are set out in the appended table.


The applicant, Mrs Maria Carmela Maniscalco, is an Italian national, who was born in 1952 and lives in Reggio Emilia. She was represented before the Court by Mr L. Golino, a lawyer practising in Rome.

The Italian Government (“the Government”) were represented by their Agent, Mrs E. Spatafora, and their Co-agent Mr G. Mauro Pellegrini.

The facts of the case are disputed by the parties and may be summarised as follows on the basis of the information available to the Court, without prejudice to the merits of the case.

The applicant worked as a director in a subsidiary company of UNICREDIT Bank, until the date she resigned pending disciplinary proceedings brought against her following claims made by the bank in respect of misappropriation of funds by her. The bank also instituted proceedings against the applicant claiming damages and requested precautionary measures (namely, a conservatory seizure - to be distinguished from a precautionary seizure for the purposes of Italian legislation), particularly in connection with transfers to a certain Mr S.

Following her resignation the applicant was owed (by UNICREDIT bank) work-related credits including, amongst other things, salary arrears and TFR (spettanza di fine rapporto), a lump sum awarded in compensation at the end of an employment relationship.

On 9 October 2009, upon an ex parte request of the bank, the labour judge within the Bologna tribunal (Il Giudice del Lavoro), considered that there existed both a “presumption of sufficient legal basis” (fumus boni iuris) and a “danger in delay” (periculum in mora): the applicant having resigned from her work, could easily dispose of or hide her possessions. It therefore ordered the conservatory seizure (sequestro conservativo) of the applicant’s assets up to a value of EUR 5 million (amounting to the damage claimed by the bank), which reflected any prejudice in connection with transfers made to Mr S. The court fixed a date to hear the parties, namely 23 October 2009, and fixed the deadline for notification of the order at 16 October 2009 (notification occurred on 15 October 2009).

According to the enforcement act of the conservatory seizure, dated 15 October 2009, the judicial officer executing the order attached, “within the limits of the law, the sums owed by Unicredit to Mrs Maniscalco, under any title including those connected with the termination of her employment, as well as any deposits, shares, obligations or investment funds, that is any movables up to the amount in respect of which she appears to be a debtor, that is EUR 5 million.”

On 23 October 2009 the applicant challenged the labour judge’s decision of 9 October 2009. However, the order was confirmed on 9 December 2009. The court considered in detail the results obtained from the investigation to that date, namely that most suspicious dealings (transfer of funds) had been signed by the applicant. Nevertheless, the court noted that the applicant had not transferred any funds to herself, but to third parties, particularly Mr S. It considered that the bank’s contention that such funds had been transferred on the applicant’s own initiative was ill-founded.

Nevertheless, it was clear that the applicant had misappropriated funds contrary to internal bank rules, abusing her power as director of the bank branch. It followed that there was a real risk that the bank would lose such money, and therefore the requisite of fumus boni iuris persisted together with that of periculum in mora.

The court also considered that it could not accept the applicant’s request to hear Mr S. (whose relation with the applicant was also of relevance, but that was not a matter to be assessed at that stage). It considered that although Mr S. was the beneficiary of the misappropriated funds, he had an interest in being a party to the proceedings, but he had not been summoned to intervene by any of the parties. Under Italian law a person who has an interest in being a party to the proceedings cannot be heard as a witness.

The applicant further challenged the measure on 22 December 2009, asking the court, inter alia, to revoke the conservatory seizure order, in so far as the requisites under Article 671 of the Code of Civil Procedure [COCP] had not been fulfilled, and in the absence of such revocation to limit the conservatory seizure order, in respect of her TFR to the amounts which might be attached according to Article 545 of the COCP.

After having heard the parties at a hearing on 10 February 2010, the labour court dismissed the applicant’s challenge by a decision of 19 February 2010 filed in the relevant registry on 24 February 2010. It noted that the applicant had failed to disprove the findings referring to her involvement. Neither did the court accept her contention that only 20% of her TFR could be attached. It rejected the applicant’s argument that in view of Article 545 of the COCP and Article 1246 of the Civil Code (“CC”), it was not possible to attach more than a fifth of her TFR, in the context of the legal relationship between the employer and the employee. The court held that it was so possible in accordance with constant case-law arising from a number of judgments (inter pluribus, the following Court of Cassation judgments: nos. 6214/2004; 9904/2003; 3564/1999; 6387/1997; 6033/1997; 12905/19954873/1995; 10447/1991; 1245/1987), and it had not been disproved by the one, one-off, case cited by the applicant (judgment of the Court of Cassation no. 10629/2006), which was more recent.

The attachment of her assets remained in place.

On 29 July 2010 the Brescia Tribunal (competent for the enforcement proceedings in the case) upheld the applicant’s plea concerning the limitations on the attachment of her pension fund. The court noted that the fund had been funded partly through voluntary contributions by the employee of part of her salaries (which had to be considered as a voluntary transfer), partly through the TFR, and partly through the obligatory contributions of the employer. Thus, the part of the fund which referred to the sums voluntarily transferred by the applicant could be attached in its entirety but the other two parts which were made up of salaries and pension contributions could only be attached up to a limit of 20%. In practice, this decision unblocked some of the fund and reduced the attachment of the applicant’s pension fund to the global amount of approximately EUR 20,000.

This decision was notified on 3 September 2010 and on 8 September 2010 the applicant requested the liquidation of the relevant amount. Such funds were only released six months later, namely on 8 March 2011.

In the meantime the labour judge within the Bologna tribunal in the main proceedings had requested the parties to go through mediation with the aim of reaching a settlement. The latter not having been successful, the proceedings were continued and the rest of the assets remained attached.

On 13 June 2013 the labour judge within the Bologna tribunal issued a first-instance judgment on the merits of the case, which was filed in the registry on 15 October 2013. It found that the applicant had not been responsible for any misconduct in the transfer of funds to Mr S. Thus, the precautionary interim measure connected with this matter had no longer any useful effect. It further found both the applicant and the bank responsible for damage caused in connection with other matters and ordered the applicant to pay half of the damage incurred, namely EUR 1,626,429.

Pending the appeal proceedings, the applicant proceeded to donate part of her immovable property to her children. In June 2014 UNICREDIT bank lodged an application before the domestic court challenging such a donation.

The applicant claimed that following the interim measure of 9 October 2009 all her assets were attached. However, no documentation has been submitted to this Court specifying which movable and/or immovable assets had in fact been attached. From vague documentation, namely a mortgage history search on the basis of names (ispezione ipotecaria per dati anagrafici) issued by the land registry, it would appear that an unspecified apartment registered in the applicant’s name was affected by the order of 9 October 2009. The application to the courts lodged by UNICREDIT bank, dated June 2014 (see paragraph 17 above), also makes reference to an enforcement act of the conservatory seizure of 14 October 2009 by which three immovable properties co-owned by the applicant were attached – however, the original enforcement act has not been provided.

The Government contested the applicant’s allegations, claiming that she had not substantiated that all her assets had been frozen. According to the Government it was not for them to prove what had not been attached. They conceded, however, that on the basis of the enforcement of the order of 9 October 2009 approximately EUR 75,000 consisting of the applicant’s pension fund had originally been attached. Despite certain documentation, the Government appeared to doubt whether an apartment, where the applicant lived with her family, and of which she owned 50%, had been attached. Even if that were so, the apartment at issue was subject to a mortgage in connection with a loan and thus could in any case not be sold.

The relevant articles of the COCP, in so far as relevant, read as follows:

“Sums such as salaries, allowances or benefits, including termination of employment sums (TFR), owed by private individuals to their employees, may be seized to the extent allowed by a tribunal or judge. Only one fifth of such sums may be seized for the purposes of taxes owed to the state, province or commune, and in the same measure for any other credit.

Seizure in respect of more than one of the abovementioned purposes jointly cannot exceed half the mentioned sums.

Without prejudice to any other limitation expressly provided for in specialized legal provisions.”

“Once seized the debtor becomes the custodian of the items seized as well as any accessories [...]”

“Having heard the parties and omitting any formality which is not essential for an adversarial procedure, the judge proceeds to examine the requirements necessary for the purposes of the requested measure, before accepting or rejecting the request by means of an order. If notification to the defendant may prejudice the coming to be of the measure, the judge may proceed by means of a reasoned decision or if necessary summary reasons. In such a case, by means of the same decision the judge shall fix a date to hear the parties, not later than fifteen days later, and award the applicant a peremptory time period of a maximum of eight days within which to carry out the notification of the application and the decision. At the hearing the judge may, by means of an order, confirm, modify or revoke the measures ordered in the decision.”

“On the request of the creditor who has a well-founded fear of losing any guarantee over his claim, the judge may authorise a conservatory seizure of movable or immovable property belonging to the debtor, or of any sums due to the creditor, within the limits allowed by the law for such seizures.”

“A conservatory seizure over immovable property is enforced by registering the measure ordered at the relevant land registry (l’ufficio del conservatore dei registri immobiliari del luogo in cui i beni sono situati). Article 559 applies in respect of the custody of the immovable property.”

Article 1246 of the Civil Code provides for exceptions to what assets can be set-off, and includes under sub-article 3 “assets which cannot be seized”.

Other relevant articles of the CC read as follows:

“A creditor may request a conservatory seizure over the debtor’s assets in accordance with the rules of the code of civil procedure.

Such a seizure may also be requested in respect of a third party acquirer of the debtor’s assets, in so far as an appropriate action to declare the ineffectiveness of the transfer has been lodged.”

“Transfers or any other acts concerning the affected assets may not prejudice the creditor requesting the measure, as provided in the rules for seizure (pignoramento).”