Information Note on the Court’s case-law 18

May 2000

Buscarini v. San Marino (dec.) - 31657/96

Decision 4.5.2000 [Section II]

Article 6

Civil proceedings

Article 6-1

Tribunal established by law

Substitute appeal judge not designated by the competent authority: inadmissible

The applicant brought civil proceedings against one S.V. His case was assigned to Judge P.G.P, who found against the applicant, but the latter appealed. The case was prepared for hearing by the first-instance judge, in accordance with the law in force. Judge P.G.P. then sent the papers to the appellate judge so that the case could be settled. The appellate judge whose name appeared on the roster had died in the meantime. Parliament appointed P.G.P. as his replacement. The latter asked the Council of Twelve (the third-instance judicial body) for leave to stand down in cases where he had either given judgment at first instance or prepared the appeal proceedings. The Council allowed this application in part and assigned the case to P.G., a judge of criminal appeals. The San Marino Bar Council expressed doubts about the way the stand-in judge had been appointed. P.G. gave judgment as a judge of civil appeals and dismissed the applicant’s appeal.

Inadmissible under Article 6 § 1: The lawfulness of a court must necessarily be based on its composition. In the present case, the applicant had merely asserted that the replacement of the appellate judge had contravened domestic law. However, in spite of the doubts expressed by the Bar Council, the problem raised by the fact that Judge P.G.P. could not sit had been sufficiently clear to warrant the conclusion that what had to be done was not to appoint an other judge, as provided in Law no. 83 of 1992, but to replace a judge who was unable to adjudicate in certain well-identified cases. The court had therefore been established by law: manifestly ill-founded.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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