PROCEDURE

The case originated in an application (no. 35396/97) against the Republic of San Marino lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a San Marinese national, Mrs Sylviane Stefanelli (“the applicant”), on 13 January 1997. The applicant was represented by Mr A. Selva, a lawyer practising in San Marino, and the San Marinese Government (“the Government”) were represented by their co-Agent, Mr G. Ceccoli. The applicant complained under Article 6 §§ 1 and 3 of the Convention of the unfairness of criminal proceedings that had been brought against her on the grounds that the preparatory stages of the proceedings at both first instance and on appeal had been directed by the same person, the public prosecutor had not been appointed in accordance with domestic law and there had been no public hearing either at first instance or on appeal.

On 21 October 1998 the Commission (First Chamber) decided to give notice of the application to the Government and to invite them to submit observations in writing on its admissibility and merits.

Following the entry into force of Protocol No. 11 to the Convention on 1 November 1998 and in accordance with Article 5 § 2 thereof, the application was examined by the Court. The Government submitted their observations on 12 February 1999 and the applicant replied on 15 March 1999.

In accordance with Rule 52 § 1 of the Rules of Court, the President of the Court, Mr L. Wildhaber, assigned the case to the Second Section. The Chamber constituted within that Section included ex officio Mr L. Ferrari Bravo, the judge elected in respect of San Marino (Article 27 § 2 of the Convention and Rule 26 § 1 (a)), and Mr C.L. Rozakis, President of the Section (Rule 26 § 1 (a)). The other members designated by the latter to complete the Chamber were Mr M. Fischbach, Mr G. Bonello, Mrs V. Strážnická, Mr A.B. Baka and Mr E. Levits (Rule 26 § 1 (b)).

On 1 June 1999 the Chamber declared the application admissible as regards the lack of a public hearing at first instance and on appeal and inadmissible as to the remainder.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant is a San Marinese national. She was born in 1950 and lives in the Republic of San Marino. She works as a clerk.

On 24 February 1992 the public prosecutor’s office in Bologna (Italy) sent letters rogatory to the San Marino Court requesting it to carry out a search at the applicant’s office. She was suspected of offences connected with the illegal sale of milk for zootechnical use.

The San Marinese judicial authority decided to start its own investigations and the task of making the inquiries was assigned to an investigating judge (Commissario della Legge), E. On 28 February 1992 the applicant was questioned and arrested.

On 2 April 1993 the Council of the XII appointed Mrs Z. as the public prosecutor (public prosecutor’s office). As she was unable to perform her duties owing to a conflict of interest she was replaced on 15 April 1993 by Mr S. The applicant maintained that the public prosecutor should have been appointed by the General Grand Council and not by the Council of the XII.

On 15 December 1993 the investigating judge preferred final charges. After the witnesses had given evidence and the defence lawyers lodged their memorials, the case file was sent to Mr G., a first-instance judge. Public hearings at which witnesses gave evidence before the investigating judge were held on 19, 20 and 25 April and 3 and 4 May 1994.

On 19 June 1996 the first-instance judge delivered his verdict without holding a public hearing and in the accused’s absence. He sentenced her to four years and six months’ imprisonment. He also ruled that she was dangerous and imposed a court supervision order as a security measure.

The applicant appealed and lodged her grounds of appeal on 12 August 1996. The preparatory stage of the appeal was conducted by the same investigating judge, E., who had led the investigation at first instance.

On 17 September 1996 the applicant lodged a complaint alleging a violation of fundamental principles of domestic law and of the European Convention on Human Rights. On 26 September she lodged a memorial.

On 31 October 1996 Mr N., a criminal appeal court judge (Giudice delle Appellazioni penali), delivered the final judgment of the court of appeal, which was made public on 18 November 1996. In his decision, he rejected the allegation of a violation of fundamental principles on the ground that the legislation in issue had been amended in November 1992 and it was for the legislature to decide whether or not the reform applied to pending proceedings or, as it in fact decided, only to new proceedings. The judge upheld the conviction on the merits but reduced the sentence to three years’ imprisonment. He also quashed the declaration that the applicant was dangerous and the security measure.