BIAGIOLI v. SAN MARINO
Inadmissible
Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra
1. 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. 2. 1. Background of the case 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 3. Interlocutory withdrawal proceedings 15. 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. 16. Judge G.F. referred the request to the judge for extraordinary remedies. 17. 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). 18. 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. 19. 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. 20. 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. 21. 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. 22. 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. 4. Constitutional proceedings 23. 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. 24. 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. 5. Resumption of the criminal proceedings before Judge G.F. 25. 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. 6. Further interlocutory proceedings and the second set of constitutional proceedings 26. 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. 27. 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. 28. 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. 29. In consequence, on 7 June 2011 the criminal file was sent back to Judge G.F. for the resumption of the proceedings. 7. Continuation of the criminal proceedings 30. 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. 31. The judge (G.F.) gave a deadline for the parties to make submissions regarding the admissibility of the issue raised by the applicants. 32. 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. 33. 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. 34. Following their request of 13 October 2011 the applicants obtained a further postponement to 11 January 2012. 35. 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. 36. 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. 8. Criminal appeal proceedings 37. 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. 38. 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. 39. 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. 40. 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. 41. 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. 9. Subsequent events 42. 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. 43. 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. 44. 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. 45. 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. 46. 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. 47. 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. 48. 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 1. Abstention, withdrawals and incompatibility 49. 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. 50. 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.” 51. 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.” 52. 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 ” 53. 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.” 54. 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.” 55. 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.” 56. 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. 57. Section 2 of Law no. 139/2011 (see paragraph 61 below) provides for the procedure for abstentions by and withdrawals of magistrates. 2. Interlocutory requests 58. 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. 3. Prescription 59. 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. 60. 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.” 61. 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). 62. Section 3 provided for the entering into force of this law on the fifth day following its publication. 4. San Marino Fundamental Human Rights Charter 63. 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.” 64. 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. 65. 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”. 66. 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. 67. In consequence, the relevant law was again amended by means of Law no. 139/2011 of 16 September 2011 (see above).