SEVERINI v. SAN MARINO
Inadmissible
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos
1. The applicant, Mr Marco Severini, is an Italian national who was born in 1968 and lives in Murata. He was represented before the Court by Mr A. Campagna, a lawyer practising in Dogana. 3. On 4 May 2010 the applicant (a journalist who manages a website, S) was heard under oath as a witness, without the assistance of a lawyer, by an investigating judge. The questioning was in connection with a series of allegedly defamatory articles published on the website about a journalist and a politician, who had complained to the police on 2 February and 4 March 2010 respectively. 4. On an unspecified date a certain C. was questioned by the investigating judge. 5. On 7 December 2010 the investigating judge put the applicant’s name on the list as a suspect and issued a “judicial notice”, informing him of the charges against him being investigated (a step required by San Marino law). 6. On 20 December 2010 the applicant was again questioned by the investigating judge, this time as a person subject to investigation, and he therefore had the assistance of a lawyer. The investigation was concluded on the same day and a bill of indictment was filed against the applicant on charges of insult, defamation and libel in connection with the abovementioned articles. 7. According to the applicant, on an unspecified date before he became aware of the indictment, he had asked that he and his lawyer be allowed to reexamine C. The request was ignored since the bill of indictment had already been issued. 8. By a judgment of 5 November 2012 the applicant was found guilty of the charges. He was fined 5,000 euros (EUR) and ordered to pay damages that had still to be quantified. 9. The applicant appealed on the merits and further argued that the investigating judge had purposely delayed putting his name on the list of suspects, which leads to the issuing of a judicial notice, in order to deny him his defence rights, contrary to Article 4 of Law no. 93/2008. He noted that the judge had only filed the notice after C.’s testimony (which had then been repeated at the trial). 10. On appeal, by a judgment of 9 October 2013, the applicant was acquitted of the charges relating to the politician but found guilty of insulting and libelling the journalist. His fine was reduced to EUR 3,500. 11. In respect of his procedural complaints, the court of appeal considered that all the evidence had been adduced at trial and had thus been legitimate. It further noted that being put late on the list of suspects (which is the basis for a judicial notice being issued within 30 days) and the collection of evidence in relation to an “indagato sostanziale”, against whom such a notice has not yet been filed, could not nullify the actions in question. Indeed, the decision as to when to issue such a notice was a matter of judicial discretion and at worst could only entail disciplinary proceedings against the judge concerned in cases of dolo or culpa grave. The court noted that in the case in question the applicant had repeated his statements in the presence of a lawyer and they had thus been totally legitimate. 12. Moreover, there had been no infringement of the rights of the defence and the earlier questioning of the applicant had allowed him to become aware of the proceedings against the website he was managing. In any event, the court of appeal considered that the applicant had failed to specify which rights had been breached by the late filing of the judicial notice. 13. Law no. 93/2008 concerning criminal procedural rules, in so far as relevant, reads as follows: “Except in the cases mentioned in Article 5 below, the investigating judge carries out all the investigating activity in general, as well as that related to the collection of evidence and particularly its acquisition (formazione), while safeguarding the rights of the accused and the prerogatives of the Attorney General (Procuratore del Fisco) as well as the rights of private parties as protected by criminal law. The accused, assisted by a legal representative, and the Attorney General, have the right to present their defence by means of submissions and pleas. They may also examine and make copies of all the acts in the proceedings, including the report on the crime. The investigating judge must ensure that the parties can participate or be represented at each stage of the investigation proceedings.” “(1) Within thirty days of the crime report ..., save for the exceptions set out in Article 5 below, the investigating judge must personally inform the accused and the Attorney General of the legal and factual elements of the crime in respect of which proceedings are being carried out ...”