There was no legal basis for overturning the third-instance decision and reinstating Ingrid Casali’s conviction. This is the central point in the reasoning behind the European Court of Human Rights’ finding that San Marino violated the right to be tried by a tribunal established by law.
The ruling’s details were reconstructed by L’Informazione di San Marino, which examines the grounds for the sanction already imposed on the Republic for violating Articles 6 and 10 of the Convention, concerning fair trial guarantees and freedom of expression.
The case stems from a comment posted on Facebook in July 2021 targeting Roberto Ciavatta, who was then Secretary of State for Health. After being convicted at first instance and having that conviction upheld on appeal, Casali had won a favourable ruling from third-instance judge Oliviero Mazza, who had upheld her appeal after identifying deficiencies in the reasoning and violations of the right to a defence.
Subsequently, at the request of the civil party, the judge for extraordinary remedies, Gianfranco Iadecola, annulled that ruling and directly reinstated the original conviction.
According to Strasbourg, that intervention fell outside the powers granted to the judge by law. In the translation cited by the newspaper, the Court states: “The Judge for Extraordinary Remedies clearly went beyond the powers conferred on him by law, exceeding the limits of the competences assigned to that judicial body.”
The issue identified by the European judges therefore concerns the very foundation of the intervention. The remedy used to overturn the third-instance decision, the Court found, lacked adequate legislative grounding.
“The Court cannot but note that this remedy is not provided for by any law passed by Parliament and therefore cannot be considered to reflect the will of the legislature,” reads the passage cited by L’Informazione di San Marino.
The reasoning thus invokes the principle of the rule of law: even the powers of judicial bodies must be established by law. The possibility of overturning a ruling cannot be derived from an interpretation that grants a judge powers not provided for by the legislature.
A decisive passage concerns the querela nullitatis, the legal tool used to challenge the validity of the ruling favourable to Casali. The Court criticises its extension from the civil to the criminal sphere, to the detriment of the defendant.
According to the newspaper’s account, Strasbourg does not consider it compatible with the Convention to interpret the meaning of “civil” so broadly as to include “criminal” matters, to the detriment of the defendant and legal certainty.
The guarantee of a tribunal established by law therefore also concerns the powers exercised in each individual proceeding. In the Casali case, the Court found that the judge for extraordinary remedies did not have the authority to rule on that action or to reinstate the conviction.
These are the grounds on which the Court found a violation of Article 6, paragraph 1, of the Convention, concerning the right to be tried by a tribunal established by law.
