CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 30 mai 2017

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He was represented before the Court by Mr   A.   Campagna, a lawyer practising in Dogana. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 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 above ‑ mentioned 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 re ‑ examine 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. B.     Relevant domestic law 13.     Law no. 93/2008 concerning criminal procedural rules, in so far as relevant, reads as follows: Article 3 (right to defence) “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.” Article 4 (judicial notice) “(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 ...” COMPLAINTS 14.     The applicant complained under Article 6 §§ 1 and 3 (a) and (b) of the Convention of violations of his defence rights. THE LAW 15.     The applicant appears to complain, albeit in unclear terms, under Article   6 §§ 1 and 3 (a) and (b) of the Convention. He complained under Article   6 § 1 and 3 (a) that the decision to file the judicial notice should not have been left to a judge and that the notice in his case had not been issued until 7   December 2010, fifteen months after the last impugned article had been published. The applicant was of the view that the delay, which had implications for the preservation of evidence, had been unnecessary and had aimed only at depriving him of his defence rights. Instead of classifying him as a suspect he had been interviewed as a witness, thus making the proceedings flawed from the start. The applicant further complained under Article   6 § 1 and 3 (a) that he had not been able to take full advantage of the investigation stage as the investigating judge had only taken eleven days to file the indictment and the applicant’s request to re-examine C. at that stage had thus been ignored as the indictment had already been filed. He argued that the judicial authorities had accorded greater importance to legal time ‑ limits than to his defence rights. The relevant provision reads as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; ...(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.” 16.     The Court can only note, as did also the domestic authorities, that the applicant’s complaints are presented in a confused manner and that any explanation is barely compatible with the specific limbs of the invoked provision. The Court notes that applications may be brought before it in the languages of the Member States of the Council of Europe and in the initial stages of the Court procedure there is no obligation to make use of the Court’s official languages, English or French. To ensure any prospect of success for an application it is up to the applicant to conform with the requirements of Rule 47 and to present a complaint in the best way possible, substantiating it with relevant and clear arguments. It is not for the Court to make out any possible issues in a given scenario. 17.     Having said that, the Court reiterates that, being master of the characterisation to be given in law to the facts of the case (see Castravet v.   Moldova , no. 23393/05, § 23, 13   March 2007; Marchenko v.   Ukraine , no.   4063/04, § 34, 19 February 2009; and Berhani v. Albania , no.   847/05, §   46, 27 May 2010), it is not bound by the characterisation given by the parties. By virtue of the jura novit curia principle, it has, for example, considered of its own motion complaints under Articles or paragraphs not relied on by the parties (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, §   54, 17 September 2009, and Anusca v. Moldova , no. 24034/07, §   26, 18   May   2010). A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see, for instance, Guerra and Others v.   Italy , 19 February 1998, §   44, Reports of Judgments and Decisions 1998-I). Thus, in the present case the Court considers that the applicant’s complaint is to be examined under Article 6 §§ 1 and 3   (c) which reads as cited above, in connection with the right to legal assistance. 18.     The Court reiterates that the protections afforded by Article 6 §§   1 and 3 apply to a person subject to a “criminal charge”, within the autonomous Convention meaning of that term. A “criminal charge” exists from the moment that an individual is officially notified by the competent authority of an allegation that he has committed a criminal offence, or from the point at which his situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him (see Deweer v.   Belgium , 27 February 1980, §§ 42-46, Series A no. 35; Eckle v.   Germany , 15   July 1982, § 73, Series A no. 51; McFarlane v. Ireland   [GC], no.   31333/06, § 143, 10 September 2010; and Simeonovi v. Bulgaria   [GC], no. 21980/04, § 110, 12 May 2017). Thus, for example, a person arrested on suspicion of having committed a criminal offence (see, among other authorities, Heaney and McGuinness v. Ireland , no. 34720/97, §   42, ECHR   2000 ‑ XII, and Brusco v.   France , no. 1466/07, §§ 47-50, 14   October 2010), a suspect questioned about his involvement in acts constituting a criminal offence (see Aleksandr Zaichenko v. Russia , no.   39660/02, §§   41 ‑ 43, 18 February 2010; Yankov and Others v. Bulgaria , no.   4570/05, §   23, 23 September 2010; and Ibrahim and Others v. the United Kingdom   [GC], nos. 50541/08 and 3 others, § 296, ECHR 2016) and a person who has been formally charged, under a procedure set out in domestic law, with a criminal offence (see, among many other authorities, Pélissier and Sassi v.   France [GC], no.   25444/94, § 66, ECHR 1999 ‑ II, and Pedersen and Baadsgaard v.   Denmark [GC], no. 49017/99, §   44, ECHR   2004 ‑ XI) can all be regarded as being “charged with a criminal offence” and claim the protection of Article 6 of the Convention. It is the actual occurrence of the first of the aforementioned events, regardless of their chronological order, which triggers the application of Article 6 in its criminal aspect (ibid. §   111). 19. The Court has already considered as formal and inoperative the argument that an applicant was heard as a witness when the circumstances showed that there were enough elements to allow the police or investigators to suspect the applicant of having participated in a crime (see Brusco , cited above, §   47). However, in the present case, the Court considers that there are no factors that lead it to doubt that the authorities had planned to question the applicant as anything other than a witness at the first session. Nor has it been shown that his status changed from witness to accused during that questioning (see, a contrario , Ibrahim and Others , cited above, §   296, in fine ). On the contrary, the applicant himself stated that the judicial notice of his being a person who had been “charged” only came about after C.’s testimony. Neither has it been shown that at any point during that questioning his situation was substantially affected by actions taken by the authorities as a result of suspicion against him (see paragraph 18 above). In such circumstances, the guarantee invoked does not apply to the first questioning of the applicant. 20.     However, even when the person is subject to a “criminal charge”, the manner in which Article 6 §§ 1 and 3 are to be applied during the investigation stage depends on the special features of the proceedings involved and on the circumstances of the case (see Imbrioscia v.   Switzerland , 24 November 1993, § 38, Series A no. 275, and Ibrahim and Others , cited above, § 253). 21.     The right to a fair trial under Article 6 § 1 is an unqualified right. However, what constitutes a fair trial cannot be the subject of a single unvarying rule but must depend on the circumstances of the particular case (see O’Halloran and Francis v. the United Kingdom [GC], nos.   15809/02 and 25624/02, § 53, ECHR 2007 ‑ III). The Court’s primary concern under Article   6   § 1 is to evaluate the overall fairness of the criminal proceedings (see, among many other authorities, Taxquet v. Belgium [GC], no.   926/05, §   84, ECHR 2010; and Schatschaschwili v. Germany [GC], no.   9154/10, §   101, ECHR 2015). 22.     The absence of compelling reasons for restricting access to legal advice at the pre-trial stage does not lead in itself to a finding of a violation of Article   6 (see Ibrahim and Others, cited above, § 263). Where there are no compelling reasons for restricting access to legal advice, the Court must apply a very strict scrutiny to its fairness assessment (ibid. § 265). 23.     When examining the proceedings as a whole in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings, the following non-exhaustive list of factors, drawn from the Court’s case ‑ law, should, where appropriate, be taken into account: (a)     Whether the applicant was particularly vulnerable, for example, by reason of his age or mental capacity; (b)     The legal framework governing the pre-trial proceedings and the admissibility of evidence at trial, and whether it was complied with; where an exclusionary rule applied, it is particularly unlikely that the proceedings as a whole would be considered unfair; (c)     Whether the applicant had the opportunity to challenge the authenticity of the evidence and oppose its use; (d)     The quality of the evidence and whether the circumstances in which it was obtained cast doubt on its reliability or accuracy, taking into account the   degree and nature of any compulsion; (e)     Where evidence was obtained unlawfully, the unlawfulness in question and, where it stems from a violation of another Convention Article, the nature of the violation found; (f)     In the case of a statement, the nature of the statement and whether it was promptly retracted or modified; (g)     The use to which the evidence was put, and in particular whether the evidence formed an integral or significant part of the probative evidence upon which the conviction was based, and the strength of the other evidence in the case; (h)     Whether the assessment of guilt was performed by professional judges or lay jurors, and in the case of the latter the content of any jury directions; (i)     The weight of the public interest in the investigation and punishment of the particular offence in issue; (j)     Other relevant procedural safeguards afforded by domestic law and practice (see Ibrahim and Others, cited above, § 274). 24.     In this context, the Court notes that at his second interview – by which time he was a person subject to a “criminal charge” within the autonomous Convention meaning of that term since he had been officially notified by means of the judicial notice – the applicant was represented by a lawyer. 25.     Accordingly, this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible.   Done in English and notified in writing on 22 June 2017.   Abel Campos   Linos-Alexandre Sicilianos   Registrar   President