SIMONCINI proti San Marinu

FIFTH SECTION

CASE OF SIMONCINI v. SAN MARINO

(Application no. 3106/24)

JUDGMENT

STRASBOURG

9 April 2026

This judgment is final but it may be subject to editorial revision.

In the case of Simoncini v. San Marino,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Mykola Gnatovskyy, President,
Gilberto Felici,
Vahe Grigoryan, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 3106/24) against the Republic of San Marino lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 January 2024 by a San Marinese national, Mr Massimiliano Simoncini (“the applicant”), who was born in 1963 and lives in Montegiardino, and was represented by Mr A. Masiello, a lawyer practising in Borgo Maggiore;

the decision to give notice of the complaints raised under Article 6 § 1 concerning the right to a tribunal established by law and the right to a reasoned decision to the San Marinese Government (“the Government”), represented by their Agent, Ms S. Bernardi, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 19 March 2026,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1. The application concerns disciplinary proceedings against the applicant, who is a member of the San Marino judiciary, for misconduct that he committed in February 2023.

2. By a judgment of 13 July 2023, the Judicial Council (Consiglio Giudiziario), deciding as a court of first instance, established the applicant’s disciplinary liability under section 12 of Constitutional Law no. 1/2021 and issued the disciplinary sanction of a warning (ammonimento).

3. On 4 September 2023 the applicant lodged an appeal with the Constitutional Court (Collegio garante della costituzionalità delle norme), under section 16(10) of Constitutional Law no. 1/2021.

4. By a decree of 12 September 2023, the President of the Constitutional Court declared the appeal inadmissible because the applicant was not represented by a lawyer, as required by section 9(1) of Qualified Law no. 55/2003 and by section 12(1) of the Internal Regulations of the Constitutional Court.

5. On 15 September 2023 a lawyer appointed by the applicant submitted a brief declaring that he was formally ratifying the applicant’s appeal, thus remedying the initial lack of representation. He also argued that the applicant had initially lodged the appeal without a representative on account of the difficulty of finding a lawyer during the summer holidays and that he had been entitled to do so under certain provisions of the Code of Criminal Procedure, which applied also to disciplinary proceedings.

6. By a decree of 22 September 2023, the President of the Constitutional Court held that the appeal was inadmissible, reiterating that representation was mandatory pursuant to section 9(1) of Qualified Law no. 55/2003 and under section 12(1) of the Internal Regulations of the Constitutional Court and stating that the lawyer’s brief had been submitted after the expiry of the 30-day time-limit for appeal.

7. The applicant subsequently filed a plea of nullity (querela nullitatis), asking for the annulment of the two decrees, and a constitutional complaint in respect of several provisions regulating the disciplinary proceedings. To the Court’s knowledge, no decision has been delivered in respect of those applications.

• THE COURT’S ASSESSMENT
  1. ADMISSIBILITY

8. The Government contested the admissibility of the application, which, in their view, constituted an abuse of the right of individual application under Article 35 § 3 (a) of the Convention. They complained of the applicant’s behaviour before the Court, of a breach of confidentiality and of his behaviour before domestic courts.

9. The relevant principles concerning the abuse of the right of application are set out in, for example, Mamić and Others v. Croatia ((dec.), nos. 21714/22 and 2 others, §§ 115-19, 9 July 2024). The Court stresses that, for behaviour to qualify as an abuse of the right of application, it must be intentional, and this intention must be established with sufficient certainty (ibid., § 119, with further references).

10. The Court does not find any indication in the case-file of an attempt by the applicant to intentionally mislead or deceive the Court or any evidence that he disclosed confidential information. As regards the abuse of the right of application allegedly committed before domestic courts, the Court does not consider that the applicant’s behaviour constituted such a serious obstruction or misuse of the domestic proceedings as to constitute an abuse of the right of application.

11. The Government did not claim that the Judicial Council could not have imposed sanctions more severe than a warning, nor did they raise any other objection to the admissibility of the application.

12. The Court therefore rejects the Government’s preliminary objection and, finding that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds, it declares it admissible.

2. MERITS
   1. Alleged violation of Article 6 § 1 of the Convention concerning the right to a tribunal established by law

13. The applicant, relying on Article 6 § 1 of the Convention, complained that the issuance of the inadmissibility decrees by the President of the Constitutional Court in a single-judge composition, rather than by the panel, had breached the requirement that his claims should be determined by a “tribunal established by law”.

14. The general principles concerning the right to a tribunal established by law have been summarised in Pasquini v. San Marino (no. 50956/16, §§ 101-03, 2 May 2019). The Court stresses that the phrase “established by law” covers also the number of judges deciding on the case (ibid., §§ 105-07; see also Momčilović v. Serbia, no. 23103/07, §§ 32-33, 2 April 2013, and Jenița Mocanu v. Romania, no. 11770/08, §§ 41-43, 17 December 2013).

15. Pursuant to domestic law, appeals against judgments delivered by the Judicial Council in disciplinary matters must be addressed to the Constitutional Court (section 16(10) and (12) of Constitutional Law no. 1/2021) and, in particular, to a panel formation (section 47(1) of the Internal Regulations of the Judicial Council).

16. In the present case, the decrees issued on 12 and 22 September 2023 were issued by the President of the Constitutional Court.

17. The Government argued that the attribution to the President of the power to issue inadmissibility decrees was set out in section 19 of the Internal Regulations of the Constitutional Court, which reads as follows:

“The President convenes the panel, sets the agenda, directs the works, issues the decrees that are within his or her competence, and performs all other functions provided by law and by these regulations, or other functions which are necessary for the effective organisation of the panel and the orderly performance of its functions.”

They argued that a decision of inadmissibility was not a truly jurisdictional measure, but pertained to the administration of the proceedings, thus falling within the President’s competence; they added that an inadmissible appeal did not constitute an appeal as such and thus did not call for the designation of a panel. Furthermore, they relied on the previous Decree no. 5 of 2017 of the President of the Constitutional Court which, in a different context than disciplinary proceedings, relied on a general rule which attributed to him the power to conduct a preliminary assessment of admissibility.

18. The Court is not convinced by the Government’s arguments. Decisions of inadmissibility are not explicitly mentioned in section 19 of the above-mentioned Internal Regulations, and they substantially exceed functions concerning the mere organisation of proceedings, since they entail the final rejection of an appeal. As to the reference to Decree no. 5 of 2017, not only was it issued in a different context than disciplinary proceedings, but it referred to a general rule without pointing to any specific provision attributing such power to the President.

19. Therefore, the Court considers that the decrees declaring the applicant’s appeal inadmissible were issued by a judicial formation that was not provided for by domestic law.

20. There has accordingly been a violation of Article 6 § 1 of the Convention in that regard.

2. Alleged violation of Article 6 § 1 of the Convention concerning the reasoning of domestic decisions

21. The applicant complained of a breach of Article 6 § 1 of the Convention due to the insufficient reasoning of the domestic decisions in respect of the possibility to remedy the initial lack of representation, of his right to lodge an appeal in person and of the suspension of time-limits during the holidays; the applicant also complained of an incorrect application of domestic law in respect of those complaints.

22. The Court reiterates that it is not its task to deal with alleged errors of law or fact committed by the national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention. Nevertheless, domestic decisions should adequately state the reasons on which they are based, providing a specific and explicit reply to the arguments that are decisive for the outcome of the proceedings (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, §§ 83-84, 11 July 2017).

23. The Court notes that, with a brief submitted on 15 September 2023, the applicant’s lawyer asked the Court to consider that the lack of representation in respect of the appeal submitted on 4 September 2023 had been remedied by his subsequent appointment; he further argued that the applicant had had the right to lodge the appeal in person on the basis of certain provisions of the Code of Criminal Procedure and had had difficulties in finding a representative during the holiday period (see paragraph 5 above). The Court considers that the decisive argument he made was that the applicant’s initial lack of representation was justified and could, in the circumstances of the case, be remedied by the subsequent filing of the lawyer’s brief.

24. The Court notes that the decree of 22 September 2023 contains no explicit answer in that regard. It was, in fact, based on a reiteration of the provisions on compulsory representation before the Constitutional Court (without examining whether the references made by Constitutional Law no. 1/2021 to the Code of Criminal Procedure could render the provisions relied on by the applicant applicable, or whether the alleged difficulties in finding a lawyer were well-founded and could justify his initial lack of representation) and on the fact that the brief had been filed after the expiry of the time-limit for the appeal (without examining whether a lawyer’s appointment ex post facto could remedy the initial lack of representation).

25. The Court takes note of the Government’s arguments to the effect that the lack of representation could not be remedied ex post facto under domestic law and the provisions of the Code of Criminal Procedure were inapplicable; nevertheless, the failure by the domestic courts to provide reasons for their decisions cannot be remedied by the Government’s subsequent explanations. As to the Government’s argument that the applicant had known the admissibility requirements and had failed to comply with them, the Court considers that this has no bearing on the question of whether the decisions were duly reasoned in respect of his decisive arguments.

26. The Court therefore considers that the decree of 22 September 2023 was not sufficiently reasoned in respect of the decisive arguments put forward by the applicant.

27. There has accordingly been a violation of Article 6 § 1 of the Convention also in that connection.

• APPLICATION OF ARTICLE 41 OF THE CONVENTION

28. The applicant asked the Court to order the reopening of the disciplinary proceedings, while expressing doubt that such reopening was possible under domestic law. In respect of pecuniary damage, he claimed 1,462,24 euros (EUR) for each year that he allegedly suffered as a consequence of not having a higher judicial post and EUR 20,000 in respect of non-pecuniary damage. He also claimed EUR 2,200 in respect of the costs and expenses incurred before the Constitutional Court and EUR 4,950 for those incurred before the Court.

29. The Government argued that, in the event that a violation was found, the applicant could obtain a new assessment by the Constitutional Court. They further pointed out that the pecuniary damage allegedly suffered by the applicant, as well as the costs and expenses claimed in respect of domestic proceedings, had not been caused by the violations complained of. In respect of non-pecuniary damage, they argued that the amount claimed by the applicant was unsubstantiated and excessive.

30. With regard to the request to order the reopening of proceedings, the Court has clearly stated that it does not have jurisdiction to order such measures, although in cases of a violation of Article 6 of the Convention the reopening of the proceedings may represent the most appropriate way of redressing the violation (see Yüksel Yalçınkaya v. Türkiye [GC], no. 15669/20, § 406, 26 September 2023).

31. In the present case, the Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. Nevertheless, it awards the applicant EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.

32. Furthermore, the Court awards the applicant EUR 7,000 covering costs under all heads, plus any tax that may be chargeable to the applicant.

• FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds
   1. that the respondent State is to pay the applicant, within three months, the following amounts:
      1. EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
      2. EUR 7,000 (seven thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
   2. that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 9 April 2026, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller Mykola Gnatovskyy
Deputy Registrar President