CEDH · CASELAW;COMMUNICATEDCASES;ENG — 3 février 2025

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 24 February 2025   FIFTH SECTION Applications nos. 12744/24 and 33586/24 Ingrid CASALI against San Marino lodged on 22 April 2024 and 4 November 2024 respectively communicated on 3 February 2025 SUBJECT MATTER OF THE CASE The applications concern criminal proceedings against the applicant in relation to a Facebook post she authored. On 8 July 2020, X., the Health Minister of San Marino, lodged a criminal complaint against the applicant for defamation, proffering insults, libel, and any other related crime, in relation to a Facebook post in which, undignified that X. had just received a prize, she related that he had been prosecuted for violence against a woman, the outcome of which she could not recall. Criminal proceedings were initiated against the applicant for offending the honour of a person having public authority (Article 344 of the Criminal Code). Her request for a referral to the constitutional jurisdictions concerning this ex officio charge, carrying a mandatory punishment of imprisonment, considering Article 10 of the Convention was refused. Her request to obtain X.’s criminal record for the purposes of her defence, where she meant to explain that she had erroneously referred to a woman, but he had in fact been violent towards men, was accepted only in relation to offences against women and committed in the territory of San Marino. By an appeal judgment of 8 February 2024 confirming a first-instance judgment, the applicant was found guilty of the offence at issue and condemned to a suspended sentence of imprisonment of four months (which was not to be mentioned in her criminal record available to the public on individual request), the payment of costs of the criminal proceedings and the damage suffered by the civil party (to be determined before the civil courts). On 14 March 2024, following the introduction of a new third instance level of jurisdiction, the applicant lodged an appeal before the Judge of Third Instance, invoking Articles 6 and 10 of the Convention. By a judgment of 11   June 2024 filed in the registry on 15 July 2024 the Judge of Third Instance quashed the appeal judgment (without remittance) and declared the applicant innocent as the facts did not amount to a crime. On 23 July 2024, X. lodged a querela nullitatis at the registry of the courts of criminal jurisdiction. By a judgment of 5 October 2024 notified 9 October 2024 the Judge for Extraordinary Remedies, considering that a civil party to criminal proceedings had the right to lodge such a request, quashed the third ‑ instance judgment (without remittance). The applicant thus had to be considered guilty in accordance with the judgment of the Court of Appeal of 8 February 2024. In her application no. 12744/24, the applicant complains under Article   10 that the interference carrying a punishment of imprisonment, could not be justified in the absence of a call for violence. The applicant complained under Article 6 that she had not been given access to crucial evidence (X.’s full criminal record); that she had been found guilty despite providing evidence that the Minister had been found guilty of certain violent acts against men; and that the appeal had not conformed to the requirements of a “public hearing” in so far as she had not even been asked to speak, and her lawyer had been repeatedly interrupted while trying to make oral submissions. In her application no. 33586/24, the applicant complains that she had been found guilty by a tribunal which was not established by law, in so far as it had no jurisdiction to entertain such a challenge. She noted that domestic law and jurisprudence, including of the Constitutional Court, made it clear that the remedy by means of a querela nullitatis was only applicable to the civil sphere. QUESTIONS TO THE PARTIES 1.     Bearing in mind the judgment of the Judge for Extraordinary Remedies, in the determination of her criminal charge, was the applicant tried by a “tribunal established by law”? Did that tribunal have jurisdiction to try the applicant in accordance with the provisions applicable under domestic law? In particular, in establishing jurisdiction was the Judge for Extraordinary Remedies in flagrant violation of domestic law (see Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, § 216, 1 December 2020, and Jorgic v. Germany , no. 74613/01, §§ 64-65, ECHR 2007-III)?   2.     Bearing in mind the failures attributed to the proceedings before the Court of Appeal, did the applicant have a fair hearing in the determination of the criminal charge against her, in accordance with Article   6 §   1 of the Convention?   3.     Has there been a violation of the applicant’s right to freedom of expression contrary to Article   10 of the Convention? Bearing in mind the proceedings before the Judge for Extraordinary Remedies, was the interference suffered by the applicant under Article 10 of the Convention in accordance with a procedure prescribed by law (see for example, Unifaun Theatre Productions Limited and Others v. Malta , no. 37326/13, §§ 77 et seq., 15 May 2018)? If so, was the interference justified, particularly bearing in mind the criminal sanction at issue (see for general principles Kanellopoulou v. Greece , no. 28504/05, §§ 34-37, 11 October 2007, and Otegi Mondragon v. Spain , no. 2034/07, §§ 48-50, ECHR 2011; and in particular Morice v. France [GC], no. 29369/10, § 176, ECHR 2015, and Lutgen v.   Luxembourg , no. 36681/23, § 72, 16 May 2024)?