In 2022 the Institutional Secretariat Office put something in writing, quite unambiguously, in response to an Arengo petition asking to restrict councillors who leave their own list: a binding mandate cannot be introduced in San Marino even through an ordinary state law, because it would require a provision of constitutional rank.
That binding clause, however, is written into the statute of DOMANI – Motus Liberi, which on that basis is now claiming up to 50,000 euros from Councillor Michela Pelliccioni, who left the movement on 16 July 2025 and has remained in the Council as an independent. And here lies the knot that neither side can sidestep: if the law of the state cannot do something, can a private contract do it instead?
The matter has already reached the Council’s Bureau of the Presidency, which discussed it and then postponed it — a sign that this is no longer a dispute between two parties, but a rule that will affect all sixty seats.
It is worth adding what this newspaper had already documented, because it shifts the ground entirely: the Venice Commission, the Council of Europe body to which San Marino has belonged since 1988, regards the ban on imperative mandates as a cornerstone of European democratic constitutionalism, and has condemned as deplorable systems in which a party can strip a member of office for switching group.
This is not an editorial stance: it is the standard of the club we belong to, and of the one we are currently knocking on the door of through the Association Agreement.
The lawsuit, it must be said with precision, has been built cleverly, staying carefully within the boundaries of private law.
No one is asking for the seat back, because a party has no such power, and forcing the issue would raise a matter of public order. What is being sought is money: damages for breach of a signed agreement.
Freedom remains written into the Charter, while the wallet does the dirty work. Whether this route is legitimate, or simply a way of obtaining by contract what the law cannot create, will be for a judge to decide. But the consequences, in either direction, need to be examined now.
If the clause holds up, it becomes a free, copyable model: within a single legislature, every party will have one, because no party will unilaterally give up a tool the others possess.
The binding mandate would enter the legal system through the back door of private law, after having been barred from the front door of constitutional law — without a vote in the Chamber, without a referendum, without anyone ever having deliberated on it. And it would bring with it a consequence no one in San Marino much wants to say out loud: political dissent becomes a luxury of income.
Those with deep pockets can afford it; an ordinary employee cannot. Political conscience becomes a matter of wealth, as in the nineteenth century.
If the clause is void, the lawsuit collapses and the matter appears to end there.
But it does not end there, because an uncomfortable question remains: that clause sat in a statute for years and no one ever checked it.
In San Marino, party statutes undergo no conformity review whatsoever: they are filed, published, and from that point on they stand as a contract between those who sign them. The state disburses public funding without anyone checking whether that party’s founding document is compatible with the principles of the very legal order those funds are meant to support.
This is not an individual failing — it is a systemic gap, and this case has made it visible.
There is also a part of the story no one is discussing, and it concerns those who stayed.
The party’s published statute does not merely state that whoever leaves the group must give up their office.
It also states that members of the council group are duty-bound to express their statements and cast their votes according to the political line set by the party, with an exception carved out for issues of high ethical content, such as end-of-life care and abortion.
In other words: on three topics, conscience is allowed; on budgets, banks, reforms, labour, healthcare and the Agreement with Europe, conscience is a matter for the group to decide.
And it should be remembered that this party has not always been in opposition: in the previous legislature it sat in the majority and held a Secretariat of State.
Which means that for years, in that chamber, part of the votes that produced this Republic’s laws came from councillors who had signed a document telling them how to vote.
Let this be said with the utmost clarity, so the point is not misused: those votes are valid and no one can challenge them.
A vote cast in the Chamber stands as it is; a councillor answers only to the voters, and no court will ever go back to re-examine a vote from three years ago to determine what was going through the mind of whoever raised their hand.
The precedent set here is not a legal one — it is of a different kind, and in some ways it weighs more heavily: from now on, every time a group votes as a bloc, citizens have every right to ask whether that group genuinely agreed, or was simply in compliance. It is a doubt no ruling can dispel, and it does not concern one party alone: it concerns the very notion of knowing how many independent minds truly sit in a chamber of sixty.
Even Pelliccioni’s request that the Institutions cover her legal defence has no easy way out.
The paradox is glaring, and it is fair to point it out: a party is demanding public money back, an elected official is asking for other public money to defend herself, and the bill lands on taxpayers either way.
But the institutional knot is different.
If the Council pays, it is effectively saying that freedom of mandate is a matter of state interest.
If it does not pay, it is saying that defending that freedom is the elected official’s own private problem, to be paid for out of pocket.
There is no option of simply not deciding: even postponement, over time, becomes a rule in itself.
One final consequence, for anyone willing to look.
The largest item in the claim is the public funding tied to the seat, roughly 28,000 euros.
If that contribution is recognised as compensable damage to the party, an interesting principle is established: that money follows the symbol, not the elected individual.
From that point on, anyone who leaves a group becomes a potential debtor, and in a Council where groups have reshuffled more than once within a single legislature, the list of possible targets for a legal notice is long — and it is not made up solely of political opponents.
This is precisely why the Chamber is the right place to settle this, far more so than a courtroom.
The problem is not solved by rooting for one side or the other: it is solved with a single line of law.
Anyone accessing public party funding must have a statute compliant with the principles of the legal order, subject to prior verification before disbursement, just as with any other body receiving citizens’ money.
It costs nothing, does not touch the Declaration of Rights, and permanently removes the notion that an elected official’s freedom can depend on a private document no one has ever read. And if lawmakers wish to enshrine the principle where it truly belongs — in a provision of constitutional rank — that is a debate the Council can open right away.
A country can afford to have one of its elected officials change their mind.
It cannot afford to discover the price of that change through a court ruling.
