Published on 14 March 2022

SECOND SECTION

Application no. 31338/21 Cristina BRACCI against San Marino lodged on 4 June 2021 communicated on 25 February 2022

STATEMENT OF FACTS

The applicant, Ms Cristina Bracci, is an Italian national, and an advocate by profession in Italy. She was born in 1969 and lives in Rimini, Italy.

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 5 April 2021 (Easter Monday) at 15.25 hours (hrs), while in a bar/restaurant in San Marino, with her partner (resident in San Marino) and their children, the applicant was fined 500 euros for breaching Article 2 of Legislative decree no. 62 of 31 March 2021, which determined that movements within San Marino, on Easter weekend, were to be limited to between 5.00 and 20.00 hrs in light of the Covid-19 pandemic (see Relevant Legal Framework below). According to the written record ( verbale ) drafted on the spot (as well as the typed record signed by the police dated 15 April 2021), the applicant had violated the aforementioned provision because she had no substantiated valid reason to be there. Other Italian residents present at the same venue were also fined accordingly. The applicant’s driving licence was also seized as a result of her being foreign (until she affected payment of the fine on 3 June 2021).

The applicant considered that no rule forbade her (an Italian resident) from being present in a bar/restaurant open to the public, with her family. Indeed, reuniting with family and partner fell under the notion of “necessity” under the Covid-19 rules, and she was fined despite respecting the curfew limits referred to in Article 2 of Legislative decree no. 62 of 31 March 2021; there had therefore been no basis for the fine.

On 15 April 2021 she thus lodged an administrative challenge with the police, which was rejected by default since no reply ensued within the relevant time-limit. A later reply dated 22 April 2021, notified on 5 May 2021, stated that there were no formal errors on the written record related to her fine. It explained that the unlawful behaviour attributed to her was not that she was visiting her family, but that she was a foreigner in a bar/restaurant, which was not considered as an “accommodation facility” ( strutture ricettive ).

She then lodged an application before the Administrative Appeal Judge, in her own name and signing it off herself as advocate (since she was a warranted advocate in Italy). To do so, in accordance with San Marino law (Article 51 of Legislative decree no. 56 of 26 April 1995 - the Statute of the Chamber of Advocates), the applicant had consulted a warranted lawyer based in San Marino with whom she had elected her address for service ( domiciliata presso ) and it was the latter who registered her appeal with the Court Registry in San Marino.

Two days later her application was declared inadmissible on the basis that it had not been lodged by a lawyer from San Marino, or in any event that it had not been signed by a lawyer from San Marino. The decision referred to the prerequisites of Article 51 of Legislative decree no. 56 of 26 April 1995, as well as Article 5 (1) and (2) of Legislative decree no. 68 of 1989 concerning proceedings before the administrative jurisdictions (see Relevant Legal Framework below). No further appeal was available.

RELEVANT LEGAL FRAMEWORK

Legislative decree no. 62 of 31 March 2021 – Strengthening and further extension of the measures against the proliferation of the Covid-19 epidemic – in so far as relevant reads as follows:

Article 2

(Further measures related to limited movement)

“In partial amendment of the measures set out in Article 3, point 1, of the legislative decree no. 57 of 23 March 2021, on 3, 4 and 5 April 2021 movements within the Republic of San Marino shall be allowed between 5.00 and 20.00 hrs. Beyond those hours movements are only allowed for substantiated reasons related to work, health or situations of urgency. Except for the reasons just mentioned or for the purpose of visiting a family member of the first degree, on 3,4, and 5 April one must return to his or her domicile (home or residence) before 20.00 hrs.”

Article 4

(Economic activities with the administration of food and drinks to the public)

“1. Each venue open to the public where food and drink is to be served has the obligation to close to the public by 18.00 hrs and only reopen to the public no earlier than 5.00 hrs, with the exception of 3, 4 and 5 April 2021 where the obligation to close to the public is by 15.30 hrs with reopening no earlier than 5.00 hrs.

2. Deliveries and home service remain permitted without time limitations. The takeaway service is allowed until 22.00 hrs, with the exception of the days of 3, 4 and 5 April 2021 when the takeaway service is allowed only until 20.00 hrs.

3. In accommodation facilities, the administration of food and drinks in the restaurant areas dedicated to resident customers is allowed until 22.00 hrs. After 22.00 hrs service to resident customers can only take place via room service. Guests of accommodation facilities that do not offer a restaurant service may use the same service offered at another accommodation facility.

4. In accommodation facilities, the administration of food and drinks in the restaurant areas to non-resident customers is allowed until 18.00 hrs with the exception of 3, 4 and 5 April 2021 where it is allowed only until 15.30 hrs.”

Article 51 of Legislative decree no. 56 of 25 April 1995 – Statute of the Chamber of Advocates – concerning the exercise of the profession by foreign advocates reads as follows:

“Provided they are duly authorized to exercise the profession in their State of origin, foreign advocates and attorneys can temporarily perform, in San Marino territory, the functions referred to in Article 4, letter b) under the following conditions:

a) that the State from which they originate grants a corresponding right to advocates from San Marino;

b) that they act in concert with a lawyer from San Marino who is enrolled with the Chamber of Advocates, with whom they must elect an address for service ( ellegere domicilio );

c) that, before the start of the activity, they have sent to the President of the Council of the Chamber, by registered letter with acknowledgment of receipt, a specific communication in which they must be indicate the personal and professional details and the name of the lawyer from San Marino with whom they have elected an address of service;

d) that they respect the ethical rules dictated by this Statute.”

Article 5 of Legislative decree no. 68 of 1989 - Administrative jurisdiction, legitimacy control and administrative sanctions - in so far as relevant reads as follows, concerning representation in court:

“Anyone who appeals to the Administrative Court both in administrative judicial matters and in matters of administrative violations referred to in the following Title IV, must be represented by an advocate warranted to practise in the Republic [of San Marino]. The mandate must appear at the bottom or in the margin of the procedural document or be conferred by means of a separate document, duly authenticated by the advocate or a notary.”

COMPLAINTS

The applicant complains under Article 6 that she was denied access to a court to challenge the fine issued against her, due to a restrictive interpretation of the law which in no way specified that an appeal application had to be signed by a lawyer from San Marino.

She further complains that she suffered discrimination as she was fined only because she was Italian.

QUESTIONS TO THE PARTIES

1. Bearing in mind the discrepancy between the fine record (written and typed) which refers to Article 2 of Legislative decree no. 62 of 31 March 2021 and the police reply of 22 April 2021 referring to accommodation facilities (‘ strutture ricettive’) , what behaviour led to the applicant being fined on 5 April 2021 at 15.25 hrs, and under which provision of law was she actually fined?

2. According to the offence at issue and the related penalty, is the criminal limb or the civil limb of Article 6 § 1 applicable in the present case? In particular, does the offence at issue amount to a criminal charge in view of the “Engel criteria” (see Jussila v. Finland [GC], no. 73053/01, §§ 30 ‑ 31, ECHR 2006 ‑ XIV, and Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, §§ 82-86, ECHR 2003 ‑ X)?

3. Did the applicant have the possibility of review by a court which satisfies the requirements of Article 6 § 1 (see, inter alia , Julius Kloiber Schlachthof GmbH and Others v. Austria , nos. 21565/07 and 3 others, §§ 28 ‑ 34, 4 April 2013)?

4. Has there been a restrictive application of the law by the Administrative Appeal Judge, impairing the applicant’s right to access to court guaranteed by Article 6 § 1 (see, for example, Willems and Gorjon v. Belgium , nos. 74209/16 and 3 others, §§ 76-89, 21 September 2021, and the case-law cited therein)?

5. When being issued with the fine on 5 April 2021 at 15.25 hrs, was the applicant discriminated against by a public authority on the basis of her nationality in breach of Article 1 of Protocol No. 12 to the Convention (see Savez crkava “Riječ života” and Others v. Croatia , no. 7798/08, § 104, 9 December 2010?)