Resolution ResDH (2004)4

concerning the judgment of the European Court of Human Rights of 8 February 2000 (final on 8 May 2000) in the case of Stefanelli against San Marino

(Adopted by the Committee of Ministers on 24 February 2004 at the 871st meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the Stefanelli case delivered on 8 February 2000 and transmitted to the Committee of Ministers once it had become final under Articles 44 and 46 of the Convention;

Recalling that the case originated in one application (No. 35396/97) against San Marino, lodged with the European Commission of Human Rights on 13 January 1997 under former Article 25 of the Co n vention by Ms Sylviane Stefanelli , a San Marino national, and that the Court, seised of the case under Article 5, paragraph 2, of Protocol No. 11, declared admissible the applicant’s complaint relating to the unfairness of certain criminal proceedings because of the lack of a public hearing at first instance and on appeal;

Whereas in its judgment of 8 February 2000 the Court, unanimously:

- held that there had been a violation of Article 6, paragraph 1, of the Convention in that the applicant’s case was not heard in public by the relevant courts;

- held

a) that the government of the respondent state was to pay the applicant, within three months from the date at which the judgment became final, 10 000 000 Italian lire in respect of non-pecuniary damage and 9 000 000 Italian lire in respect of costs and expenses;

b) that simple interest at an annual rate of  2,5% would be payable on those sums from the expiry of the above-mentioned three months until settlement;

- dismissed the remainder of the applicant’s claim for just satisfa c tion;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the mea s ures which had been taken in consequence of the judgment of 8 February 2000, having regard to San Marino’s obligation under Article 46, paragraph 1, of the Conve n tion to abide by it;

Whereas during the examination of the case by the Committee of Ministers the government of the respondent state gave the Committee information about the measures taken and the means available to the applicant under San Marino law in order to erase, as far as possible, the consequences of the impugned proceedings for her and about the measures taken to prevent new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that on 8 August 2000, within the time-limit set, the government of the respondent state had paid the a p plicant the sums provided for in the judgment of 8 February 2000,

Declares, after having taken note of the information supplied by the Government of San Marino, that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case.

Appendix to Resolution ResDH (2004)4

Information provided by the Government of San Marino during the examination of the Stefanelli case by the Committee of Ministers

With regard to the individual measures , the Government points out that the applicant, who was given a 3-year prison sentence in 1996 as a result of the impugned proceedings, has served her sentence. In order to erase the consequences of the violation, a reference to the violation found by the European Court of Human Rights with regard to the unfair nature of the conviction was introduced in the applicant’s criminal record and, on 12 March 2001, the restrictions still applying to her civil and political rights were lifted. The Government stresses that, in conformity with San Marino’s obligations under Article 46, paragraph 1, of the Convention, the applicant can at any moment obtain the erasure of all remaining consequences of the contested proceedings through the rehabilitation procedure before Parliament ( Consiglio Grande e Generale ), should she decide to apply for it. As the applicant has not availed herself of this right since the violation was established, the Government is of the opinion that it is not necessary for the Committee of Ministers to pursue its examination of the issue of individual measures.

With regard to the general measures , in order to inform the public and to ensure that the courts will be able to give a direct effect to the requirements emerging from the Stefanelli judgment in implementing San Marino law, this judgment was published on 19 July 2000 by posting the whole text in Italian, French and English on the doors of the Public Palace ( ad valvas palatii ) – as is traditionally done in San Marino for all important official information (such as new laws, etc.) – in order to enable anybody to obtain, upon request, a copy of the judgment.

As regards the appeal, a new law adopted on 27 June 2003 amended Article 198, paragraph 2, of the Code of Criminal Procedure, as amended by Law No. 20 of 24 February 2000, by explicitly confirming the possibility, already recognised in practice by the case-law, for an accused to be heard in person, if he or she so requests, by the court during the public appeal hearing. In addition, the Government points out that, since the entry into force of Law No. 83 of 1992, accused persons are entitled to plead their case before the deciding judge in first instance.

Laws Nos. 144 and 145 of 30 October 2003 (concerning the organisation of the judiciary system) have not modified the legislative provisions as regards the right of the accused to be personally heard by the deciding judge in first instance and appeal proceedings.

The government concludes that these individual and general measures provide reparation for the applicant, that they prevent the risk of new violations similar to those found in the present case and that, accordingly, the Republic of San Marino has, in the instant case, fulfilled its obligations under Article 46.

* * *

In addition, the government draws attention to the fact that, further to Recommendation R(2000)2 of the Committee of Ministers to member states on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights, on 27 June 2003 the San Marino Parliament ( Consiglio Grande e Generale ) passed a law which makes it possible to reopen  criminal proceedings in which the European Court of Human Rights has found a violation of the Convention before national courts.