CEDH · CASELAW;COMMUNICATEDCASES;ENG — 30 septembre 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s25D5DE94 { margin-top:66pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:7pt } .s9252AC04 { margin-top:0pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } Published on 21 October 2024   FIRST SECTION Application no. 14396/24 Massimiliano SIMONCINI against San Marino lodged on 9 May 2024 communicated on 30 September 2024 SUBJECT MATTER OF THE CASE The application concerns proceedings related to the applicant’s appointment to Commissario della Legge (CoL – a judicial organ in the ordinary courts with competence in civil or criminal cases) and its consequent withdrawal. The applicant’s appointment to CoL was confirmed by the Judicial Council ( Consiglio Giudiziario Plenario , “CGP”) on 12 February 2019 (composed of, inter alia , Judge C.). On 11 April 2019 X and Y felt aggrieved by the applicant’s appointment and instituted administrative proceedings (no.   13/2019) challenging the relevant procedure and the composition of the CGP in so far as it included Judge C. The applicant was notified of these proceedings but, at that stage, he chose not to participate. Pending the latter proceedings, on 28 September 2020, following a change of government and a legislative intervention (Law no. 1/2020 of 20 February 2020) with retroactive effect, the decision of the CGP appointing the applicant was annulled by the same CGP. It considered that there had been a problem in the composition of the CGP taking the decision of 12 February 2019 in so far as it had included Judge C., who, at the time, had not been under an indefinite mandate, contrary to that established by the new Article 3 of Law no. 1/2020, which had been considered as an interpretative law. At that point, the applicant unsuccessfully tried to intervene in proceedings no. 13/2019, which were eventually discontinued ( archiviazione ) as the actors had lost interest in the case following their appointment to the post. The applicant challenged the decision to discontinue the case and what had gone on in those administrative proceedings by means of an appeal under Article 19 and 20 of Law no. 68/2021 which gave rise to proceedings no.   7/2021, but his application was deemed inadmissible by Judge S. The latter was a judge for the civil responsibility of magistrates who had been appointed to hear these proceedings as an administrative judge ( Giudice per la responsabilità civile dei magistrati in veste di Giudice amministrativo ) following the withdrawal of the competent judge. At the same time, the applicant instituted separate proceedings (no.   37/2020) challenging the CGP decision of 28 September 2020. The merits of the case were dismissed by a judgment of 25 January 2023. It was confirmed on appeal by a judgment of 9 January 2024 notified on 10 January 2024, delivered by Judge S. The applicant’s requests for Judge S. to abstain or withdraw, on the basis that he had already decided proceedings no. 7/2021 (as well as other related proceedings), were rejected by the relevant bodies. Relying on Articles 6 and 8 of the Convention the applicant complains of a legislative intervention of the State with the judiciary, contrary to the rule of law, which had not been cured by means of proceedings no. 37/2020, to the detriment of his civil rights and right to private life given the consequences on his career. He also complained of the impartiality of Judge   S. who 1) had dealt with a case concerning the same matters 2) exercised different judicial functions in the same proceedings and 3) decided the case which was challenging his own decisions.       QUESTIONS TO THE PARTIES 1.     Was Article 6 of the Convention applicable to proceedings no. 37/2020? In particular did the applicant have a civil right recognised by domestic law ( see, inter alia , Baka v. Hungary [GC], no. 20261/12, §§   107 ‑ 11, 23 June 2016, and Grzęda v. Poland [GC], no. 43572/18, §§   265 ‑ 85, 15 March 2022)?   2.     If so, in order to comply with the rule of law, has the applicant had access to an impartial and independent tribunal, as provided by Article 6 § 1 of the Convention (see Grzęda , cited above), particularly bearing in mind that the appeal in proceedings no. 37/2020 had been decided by Judge S. whose impartiality had been challenged? Was the latter impartial in the present case (see, for general principles and their application, inter alia,   Pasquini v. San Marin o , no. 50956/16, §§ 139-53, 2 May 2019, and San Leonard Band Club v. Malta , no. 77562/01, §§ 58-66, ECHR 2004-IX)?   3.     Bearing in mind the findings in proceedings no. 37/2020 that the impugned law, leading to the annulment of the applicant’s appointment as CoL, targeted other pending judicial proceedings (lodged by X and Y) can it be said that the legislative interference which occurred prior to the proceedings brought by the applicant (no. 37/2020), was aimed at circumventing the principle of the rule of law (see Gorraiz Lizarraga and Others v. Spain , no. 62543/00, §   72, ECHR   2004 ‑ III, and Azzopardi and Others v. Malta (dec.), nos. 16467/17 and 24115/17)?   4.     Have proceedings no. 37/2020 respected the reasonable time requirement as required by Article 6 § 1 of the Convention?   5.     Is Article 8 of the Convention applicable in the present case (see Denisov v. Ukraine [GC], no. 76639/11, §§ 115-34, 25 September 2018, and Gumenyuk and Others v.   Ukraine , no. 11423/19, §§ 86-89, 22 July 2021)?   6.     If so, was the interference with the applicant’s private life, namely, the annulment of the applicant’s appointment as CoL, in accordance with a law of sufficient quality and respectful of the rule of law (see Gumenyuk and Others , cited above, §§ 95-97)? Did it pursue a legitimate aim and was it proportionate to the aim pursued?   7.     In particular, the Government should indicate: (a)     How many persons have been affected by the retroactive application of Law no. 1/2020? (b)     Whether there has been any attempt to re-appoint the applicant to CoL by a decision of the Judicial Council composed in conformity with the requirements of Law no. 1/2020? (c)     Whether any challenges have been lodged at the domestic level by litigants whose civil rights or criminal charges had been adjudicated by the applicant while he held his function as CoL? If so, what where the conclusions of the domestic courts in view of the principles set out in Guðmundur Andri Ástráðsson v. Iceland ([GC], no. 26374/18, 1 December 2020)?