FIFTH SECTION
CASE OF SIMONCINI v. SAN MARINO
(Application no. 14396/24)
 
JUDGMENT
Art 6 § 1 (civil) • Fair hearing • Annulment ex officio by the Judicial Council (CGP) of the applicant’s appointment to first-instance judge after the application of retrospective legislation • Genuine and serious dispute over arguable civil right under domestic law • Administrative proceedings challenging annulment directly decisive for the applicant’s rights • Art 6 applicable • Legislative intervention occurred during separate proceedings brought by other competing candidates challenging the applicant’s appointment and prior to him instituting proceedings • Insufficient consideration given to the principle of the irremovability of judges during their term of office • Introduction of legislation amounting to an unjustified arbitrary course of action aimed at circumventing the principle of the rule of law and the notion of a fair trial • Equality of arms principle disrupted, making the proceedings instigated by the applicant unwinnable • Absence of any compelling general interest reasons capable of outweighing the inherent dangers in the use of retrospective legislation
Art 6 § 1 (civil) • Length of proceedings did not exceed a reasonable time
Art 8 • Private life • Annulment of the applicant’s appointment to first-instance judge by the CGP unjustified • Art 8 applicable following consequence-based approach • Cumulative effects sufficiently serious and affected the applicant’s right to private life to a very significant degree • Domestic courts’ failure to acknowledge that right or balance it appropriately against other alleged competing interests • Lawfulness requirement not met • Absence of relevant and sufficient reasons justifying the necessity of the impugned measure in a democratic society
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
19 February 2026
 
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. 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 Chamber composed of:
 Kateřina Šimáčková, President,
 María Elósegui,
 Georgios A. Serghides,
 Gilberto Felici,
 Andreas Zünd,
 Diana Sârcu,
 Sébastien Biancheri, judges,
and Victor Soloveytchik, Section Registrar,
Having regard to:
the application (no. 14396/24) 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”) by a San Marinese national, Mr Massimiliano Simoncini (“the applicant”), on 9 May 2024;
the decision to give notice to the San Marinese Government (“the Government”) of the complaints concerning Article 6 and 8 of the Convention (in connection with domestic proceedings no. 37/2020) and to declare inadmissible the remainder of the application;
the parties’ observations;
the decision to reject the Government’s request for the recusal of Mr Gilberto Felici, the judge elected in respect of San Marino, in September 2025 (Rule 28 §§ 3 and 4 of the Rules of Court);
Having deliberated in private on 27 January 2026,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns proceedings related to the annulment of the applicant’s appointment to Commissario della Legge (a judicial organ in the ordinary courts of first instance). It raises complaints under Articles 6 and 8 of the Convention. THE FACTS
2. The applicant was born in 1963 and lives in Montegiardino. He was represented by Mr E. Santi, a lawyer practising in Borgo Maggiore. 3. The Government were represented by their Agent, Ms S. Bernardi, Representative of San Marino to the Court. 4. The facts of the case may be summarised as follows. The CIRCUMSTANCES OF THE CASE
Background to the case
5.  ln the relevant period, the composition of the Judicial Council in plenary session (Consiglio Giudiziario Plenario, hereinafter “CGP”) was governed by Qualified Law no. 145/2003, and subsequent amendments resulting from Qualified Law no. 2/2011 (see paragraph 57 below). The CGP was made up of the Members of Parliament who were members of the Parliamentary Commission for Justice, the Minister of Justice, and judges, including the Chief Justice (Magistrato Dirigente - a judge entrusted with the directorship of the courts and the judiciary). The Heads of State (La Reggenza – who chair the CGP but have no voting rights) convened the judges that would form part of the CGP according to the criteria established in article 7 (5) of Qualified Law no. 145/2003 (see paragraph 57 below). The political and judicial components were to be equal in number. 6. After the retirement of A, a Judge of Appeal - thus leaving only two other ordinary appeal judges in office - A was replaced, as a member of the CGP [at the meeting of 5 March 2018], by B, a Commissario della Legge (hereinafter “CoL”, a first-instance judge, see paragraph 54 below) on the basis of the subsidiary criterion of supplementation by a CoL confirmed on a permanent basis. The Government noted that that was so even though at the time another Judge of Appeal in civil matters was in place on a non‑renewable term of three years i.e. fixed term (in line with a special law to that effect regulating specific assignments). 7. Subsequently, after the appointment of another Judge of Appeal (namely, C, who at the time was in his three-year probationary period and, therefore, not yet confirmed on a permanent basis), on 27 April 2018, the CGP, following the relevant debate concerning the interpretation of article 7 (5) of Qualified Law no. 145/2003 (see paragraph 57 below), provided the interpretation of that provision according to which the supplementation was to be carried out with regard to judges in the same category/functions, irrespective of their permanent status. In other words, the posts of the three Judges of Appeal referred to in the law were to be filled in with the Judges of Appeal in place, including those not yet confirmed on a permanent basis, thus, excluding the CoL B from the composition of the CGP. That interpretation was maintained in the following meetings. 8. On 14 September 2018 the CGP initiated a recruitment procedure for the post of a CoL. Since 2009 (confirmed in office following the relevant probationary period in 2012) the applicant had been an Uditore Commissariale (hereinafter “UD”), one of the judicial organs of San Marino, having limited functions in the assistance of first-instance judges (see article 2 (3) and (6) of Constitutional Law no. 144/2003 as modified by subsequent amendments, at paragraph 54 below). The applicant having more than four years of experience he was qualified to be nominated for the post of CoL. 9. On 30 November 2018 another meeting of the CGP was held where two of its members expressed their concerns in relation to the composition of the CGP, particularly in relation to whether a Chief (Dirigente, a person external to the judiciary, entrusted with the directorship of the courts and judiciary in exceptional circumstances, see article 6 of Qualified Law no. 145/2003 at paragraph 59 below) could sit on the CGP, given that he was not a judge thus could not be one of the members of the judicial component of the CGP (nor one of the politicians mentioned in the law and designated as members of the CGP). On the same day the CGP appointed professor Z as Chief. 10. On 6 February 2019 the Heads of State convened a morning and evening session of the CGP meeting, to be held on 12 February 2019, with two different compositions (the afternoon session had an extra CoL, as well as Z). 11. As a result, at the morning session of 12 February 2019 which was dedicated to “the composition of the CGP” in relation to the position of the Chief who was external to the judiciary (the situation pertaining at the time), B complained about the state of affairs, mainly in so far as it appeared that the Heads of State had already made the relevant decision, despite it being for the CGP to decide on the matter. B further brought to the attention of the CGP that the different interpretations given to the law concerning the composition of the CGP in relation to its judicial component meant that either before 27 April 2018 or thereafter, the CGP had not been in line with the composition required by law. In consequence (according to which interpretation was chosen) any decisions taken on either of those meetings would be null. B also reiterated the concerns raised on 30 November 2018 concerning the position of the Chief (see paragraph 10 above), referring to the incompatibility with international norms of appointing a person as director of the courts and judiciary who was external to the judiciary, as was the case [at the time] in San Marino. B was joined by D in the relevant reflections. At that meeting the Minister of Justice expressed his surprise at learning that the presence of C in prior compositions could be a problem. The rest of the morning session was dedicated to the role of Chief Justice when the person at issue was a Chief external to the judiciary but finally no vote was taken on the matter. 12. At the afternoon session of the CGP meeting of 12 February 2019, prior to the vote on the CoL appointment, various concerns (unrelated to the composition of the CGP) were raised about the procedure to be undertaken for the recruitment of a CoL in reference both to the selection criteria, as well as to the relevant steps to be taken. Comments were made about the unclarity in the law in this respect and some of the members expressed their perplexity as to the way forward. Comments were also made in relation to the absence of a proper report in line with the law including a relevant nomination. 13. Nevertheless, at that session, following a recommendation of the Chief Justice in his 2017 report - which was reiterated by the subsequent Chief (following the former’s sudden death) by means of a note which also included the names of other UDs who qualified for the post - by eleven votes in favour, the CGP decided to proceed by way of internal recruitment, and then, by eleven votes in favour, appointed the applicant to the post of CoL (another candidate having obtained one vote). On the same day the CGP voted in favour of various recruitment competitions for judges to be launched. 14. A few days later, on 26 February 2019, the legislator intervened by enacting Qualified Law no. 1/2019 (see paragraph 59 below). In the present case the Government explained that this was aimed at resolving the issues raised on 12 February 2019 and granting the Chief, external to the judiciary, voting rights in the CGP. 15. The decision to appoint the applicant as CoL was acknowledged (presa d’atto) by Parliament on 15 March 2019 and he took up service on 22 March 2019. 16. On 11 April 2019, X and Y, who were also UDs at the time and possible candidates for the position attributed to the applicant and felt aggrieved by the applicant’s appointment, instituted administrative proceedings (no. 13/2019) (see paragraph 25 below). 17. On 20 February 2020, following a change of government in November 2019, and pending proceedings no. 13/2019, a further legislative intervention was put in place via Qualified Law no. 1/2020 (see paragraphs 60-61 below). In the present case the Government explained that the modifications to articles 6 and 7 of Qualified Law no. 145/2003, consequent to the legislative intervention, were aimed solely at removing the voting rights of the Chief, external to the judiciary, and excluding him from the judicial component forming part of the CGP (see paragraphs 60 below) leaving the rest unchanged, while article 3 of Qualified Law no. 1/2020 (see paragraph 61 below) (also part of the legislative intervention), provided an interpretative provision to deal with the diverging interpretations concerning the rest of the composition of the CGP. 18. Various deliberations ensued where the different members of the CGP (freshly composed in respect of the political component following the election, and with relevant changes to the judicial component in the light of the legislative intervention, as from the deliberations of 13 July 2020) expressed divergent views in relation to the legislative intervention (Qualified Law no. 1/2020, see paragraphs 60-61 below) and the way forward. Some members called for the annulment of the decisions made by the CGP when composed contrary to the interpretation resulting from the legislative intervention. 19. On 28 September 2020, in view of the legislative intervention and having taken note of the proceedings brought by X and Y, challenging the applicant’s appointment, the decision of the CGP initiating the recruitment procedure and that appointing the applicant as CoL were annulled by the CGP, of its own motion, in an act of self-protection (autotutela decisoria spontanea) (by thirteen votes in favour, three against and two abstentions). The CGP considered that there had been a problem in the composition of the CGP taking those decisions in so far as they had included C, who, at the time, had not been confirmed on a permanent basis, contrary to that established by the new article 3 of Qualified Law no. 1/2020, an interpretative provision with retroactive effect. 20. On this matter the CGP had requested on 31 August 2020 and obtained on 5 September 2020 a pro-veritate opinion issued by a President Emeritus of the Italian Constitution Court. The latter considered, relying on judgments of the Italian Constitutional Court concerning laws of authentic interpretation, that article 3 of Qualified Law no. 1/2020 was a law of authentic interpretation in respect of article 7 of Qualified Law no. 145/2003, allowing for retroactive effect. According to that opinion: in the light of the interpretation set forward in Qualified Law no. 1/2020, the CGP had not been properly composed at those meetings; as a result of that defect in the composition any acts undertaken by that body were unlawful and would remain valid only if they had not been challenged within the relevant time‑limit; the unlawful composition of the CGP prevailed and absorbed any other defects which indeed existed (comunque sussistenti); noting that the pending proceedings (no. 13/2019) had not yet been decided, it was considered that there were public interest reasons to annul the impugned deliberations of the CGP in the interest of legal certainty of the appointments of a judicial nature and to ensure the guarantees of impartiality and independence which also depended on the lawfulness of selection procedures; however, decisions of the CGP which had not been challenged within the peremptory time-limits could remain in place. 21. In the meantime, on 17 July 2020, a majority of judges in San Marino, including the applicant, had written to the Secretary General of the Council of Europe expressing their concerns concerning Qualified Law no. 1/2020, inter alia, in respect of its retroactive application, as well as the resulting nullity of the decisions taken by the CGP as composed prior to the amendments, in the absence of any verification as to whether a different composition would have had any impact on the decisions taken. They considered that Qualified Law no. 1/2020 had been put in place to allow for a reconstitution of the CGP favourable to the Government of the day. In particular it allowed the nullification of the appointments of the Chief Justice (sic.), two appeal judges, and one first-instance judge, already in office (but the confirmation of three other posts of UDs and one Procuratore del Fisco), who had been lawfully appointed according to the law as it stood at the time of their appointment. These would then be replaced by others on the basis of a new CGP composition which, apart from not being in line with international standards in view of its political component, was more favourable to the Government. Thus, undermining the independence of the judiciary and falling foul of Council of Europe Standards. 22. Similar concerns were raised before the Council of Europe Commissioner for Human Rights who in a letter of reply of 8 September 2020[1] (twenty days before the impugned decision) recalled a number of important principles and European standards that underpin the rule of law and the enjoyment of human rights and highlighted the essential role of judicial councils, which must be firmly established in law and made up, in their majority, of members of the judiciary elected by their peers. She invited the Government of San Marino to make full use of the assistance and expertise of the relevant Council of Europe bodies to assess the institutional setup affecting the independence of the judiciary in San Marino, and, if necessary, to reform it in accordance with their recommendations. Aware that the Group of States against Corruption (“GRECO”) was expected to adopt its relevant evaluation report on San Marino imminently, she called on the authorities to refrain from taking any further steps that may fuel such allegations pending the adoption and publication of that report, and before any possible recommendations included in it were properly implemented. 23. The GRECO evaluation report, which identified various shortcomings, inter alia in relation to the judicial council and its operation, was issued on 21-25 September 2020 (see paragraph 66 below). The relevant legislative reform addressing the GRECO recommendations took place in December 2021 (see paragraphs 56, 62 and 67 below). 24. Apart from that relating to the applicant, the decisions to appoint the Chief as well as two other appeal judges were annulled on the basis of article 3 of Qualified Law no. 1/2020. These appointment decisions had been challenged in different ways at the domestic level. The applicant was unsuccessful in the subsequent competition launched in 2020, and another one thereafter, decided by the CGP, which was made up, partly, of other judges. The two judges of appeal whose appointment had been annulled became Judge for Extraordinary Remedies and Judge of Appeal for Civil Liability Actions of Magistrates, respectively. Proceedings no. 13/2019
25. In the meantime, as mentioned above, on 11 April 2019 (prior to the enactment of Qualified Law no.1/2020), X and Y, who were also UDs at the time and possible candidates in the same appointment procedure, instituted administrative proceedings (no. 13/2019). They challenged the appointment procedure on various grounds: i) The CGP composition which included judge C had not been lawfully constituted; ii) the report required by article 3 (6) of Qualified Law no. 145/2003 to launch the recruitment procedure had not been prepared; iii) the subsequent report necessary to the assessment of the professional characteristics of UDs eligible for the position, required by article 5 (6) of the same law, had been missing; iv) the Chief at the time had no competence to draw up a qualitative assessment of the candidates; v) the appointment was made in the absence of relevant information on the qualification of candidates and uniform criteria for their assessment given that it was based on the findings of the 2017 Report on the State of Justice, established for other purposes and which had made no qualitative assessment of the other candidates; vii) absence of reasons for such an appointment; viii) absence of notification of the procedure to other interested candidates; and ix) participation at the relevant CGP meeting of E, who had been incompatible in view of past events to participate in the procedure at issue. 26. The applicant was notified of these proceedings but, at that stage, he chose not to participate. 27. Following the turn of events (see paragraph 17 et seq. above), on 26 November 2020, the applicant unsuccessfully (due to the expiry of the relevant time-limits) tried to intervene in proceedings no. 13/2019. His contemporaneous request to join these proceedings to others lodged by him in parallel (no. 37/2020, see paragraph 33 below) was also rejected, despite a lack of objection by the representative of the State. 28. Proceedings no. 13/2019 were eventually discontinued (archiviazione) on 16 March 2021 as the actors had lost interest in the case following their appointment to the post of UD. The applicant’s challenge (before the same CoL) against the decision to discontinue the case, as well as a request for the judge to abstain, were rejected on 12 April 2021. Proceedings no. 7/2021
29. The applicant lodged an appeal against the decisions of 16 March and 12 April 2021 (referred to in the previous paragraph) pointing out that the CoL deciding that case should have abstained on the grounds of manifest incompatibility, since he had taken part, as member and minute‑taker, in the CGP meeting appointing X and Y as CoLs. 30. On 27 May 2022 the appeal was rejected by Judge S, the Judge of Appeal for Civil Liability Actions of Magistrates (hereinafter “JACLM”), acting as an Administrative Judge of Appeal pursuant to Article 4 of Constitutional Law no. 2/2021. Querela nullitatis (1)
31. The applicant asked for the annulment of the decision of 27 May 2022 (referred to in the previous paragraph) by means of an action for querela nullitatis before the Judge for Extraordinary Remedies in civil matters. 32. The latter having abstained, the appeal was assigned to the Judge for Extraordinary Remedies in criminal matters who declared it inadmissible, because such an action was not provided for in the domestic legal order. Proceedings no. 37/2020
33. In parallel with his attempt to intervene in proceedings no. 13/2019, on 26 November 2020 the applicant also brought administrative proceedings (no. 37/2020) against the ex officio decision of the CGP dated 28 September 2020, annulling his appointment[2]. He unsuccessfully requested these proceedings to be joined to those no. 13/2019 mentioned above and later to proceedings nos. 14/2021 and 25/2021 (see paragraph 51 below). 34. The CoL competent to decide the case abstained and all the other CoLs declared reasons for incompatibility to sit on the case – either because they had participated in the impugned sitting of the CGP or because they had been summoned to appear before the court as a party with an interest in the proceedings. In consequence, the Chief Justice ordered that the case be assigned to the Judge of First Instance of Civil Liability Actions of Magistrates (hereinafter “FCLM”) pursuant to Article 1 of Constitutional Law no. 2/2020. The latter position was, at the time, vacant and awaiting an ongoing recruitment competition. 35. The position was filled on 1 June 2021, and on 8 June 2021 the FCLM set the date for the preliminary hearing to 29 June 2021. On 2 December 2021 the FCLM dismissed the applicant’s preliminary objection concerning the lack of competence and jurisdiction of the FCLM to hear the case. After adversarial proceedings on the matter, it found that the subsidiary and surrogate competence of that judge was in line with article 2 (5) of Constitutional Law no. 144/2003 as amended by Constitutional Law no. 2/2020. The applicant’s request concerning a precautionary suspension of the effects of the impugned decision was also rejected on 14 March 2022. 36. Both interlocutory decisions were confirmed on appeal on 20 June 2022. First-instance judgment
37. By a judgment of 25 January 2023 the FCLM rejected the applicant’s claims considering them unfounded. 38. Reconfirming his competence to decide the case, the FCLM refused to join the proceedings to others which had been discontinued (no. 13/2019) or had been lodged against various public bodies and not solely the CGP as in the present case. He further rejected the applicant’s plea about the incompleteness of the documents supplied to him, noting that all the documents he had requested, concerning meetings which actually took place and within the temporal interests of the case, had been supplied to him. 39. As to the constitutionality of articles 3 and 4 of Qualified Law no. 1/2020, which amended Qualified Law no. 145/2003 as amended in 2019, concerning laws on the judicial system, the judge noted that article 3 of Qualified Law no. 1/2020, an interpretative provision, explained that in deciding the composition of the CGP priority had to be given to the criterion of being confirmed on a permanent basis. Given, inter alia, the formulation of article 4 of Qualified Law no. 1/2020 for future situations, there was no doubt that article 3 of Qualified Law no. 1/2020 had retroactive effect. According to the FCLM this in itself did not breach the applicant’s rights under Articles 6, 8 and 13 of the Convention. Indeed, even the more restrictive ECtHR jurisprudence (compared to the domestic one) allowed for legislative intervention in civil matters if a fair balance had been reached in the light of compelling public interest reasons. In the present case all relevant domestic and ECHR criteria had been met: i) Qualified Law no. 145/2003 had not been unclear about the hierarchy of the relevant criteria to be applied in determining the CGP composition; ii) the new interpretation was not only one of the possible interpretations given to that law but also the most probable one, and most reasonable one; iii) the unclear law requiring interpretation was a crucial provision upon which the legal certainty of the entire legal system in San Marino depended, it followed that the need to clarify it was imperative and compelling and certainly not arbitrary. It could also not be ignored that the intervention did not take place pending proceedings within which the applicant had been a party since his request to join those proceedings had been made out-of-time, and lastly the legislative intervention had taken place only a year after the unclarity arose. 40. As to the impugned CGP decision, the FCLM noted that the applicant had challenged it on various grounds not all of which had been fully comprehensible, and some of which overlapped. According to the FCLM, the CGP had acted of its own motion in order to correct an error (autotutela decisoria spontanea) and thus annulled the decision, as allowed by Law no. 160/2011 (ex officio annulment) in relation to administrative decisions such as that of a judge’s nomination. Therefore, contrary to that argued by the applicant, the CGP had not taken over the competence of the administrative court deciding case no. 13/2019; nor that of Parliament whose competence was solely to acknowledge certain steps in the procedure (presa d’atto), without having any substantive role in the nomination; nor that of the Constitutional Court; nor had the act been in contrast with the law. 41. The FCLM further rejected the applicant’s claims of breaches of domestic law, as follows: i) unlike for the process of a nomination, the law did not provide for a report by the Chief Justice in the case of a contrarius actus such as the annulment of that nomination; ii) unlike articles 42 and 43 of Law no. 160/20, its article 44 concerning annulment, as in the present case, did not provide that the rules of ordinary procedures (such as the principle of adversarial proceedings) should apply – moreover it was open to the applicant to challenge the decision subsequently, as in fact he did; iii) the CGP could act of its own motion, and there was no requirement of a complaint by a party; iv) while it was open to the CGP to correct the error (sanare via convalida) as opposed to annulling the decision, this was not obligatory and subject to discretion; v) there had been nothing arbitrary in the CGP decision which gave reasons explaining the compelling public interest behind it, in particular in so far as an illegitimate composition would have created a tribunal which was not in line with ECtHR case-law; Furthermore the applicant had been aware of the development, which moreover came to be eighteen months after his taking office and thus the annulment decision had been taken within a reasonable lapse of time, and therefore was in line with domestic law; vi) the presence of C at the deliberations of the CGP which voted upon the applicant’s nomination was enough to consider the nomination decision as vitiated and subject to annulment; vi) the delay in giving access to all relevant documents to the applicant did not lead to the unlawfulness of the impugned decision; vii) the CGP was correctly composed on the date of the annulment decision; viii) all the appeal grounds raised by the applicant having been rejected, it could not be said that the CGP acted in abuse of power. Moreover, while the annulment certainly affected the applicant, there was no indication of a grave or manifest injustice nor was there proof that the administration intended to favour X and Y. The appeal proceedings
42. On 23 February 2023 the applicant appealed (no. 3/2023) and requested the suspension of the enforceability of the first-instance judgment pending the proceedings. 43. On 15 March 2023 the applicant lodged a request for abstention and objection of the JACLM. His challenge was rejected by the Constitutional Court on 4 July 2023. On 14 November 2023 he filed a new request for abstention of the JACLM and raised an issue of constitutional legitimacy in relation to the intervening Qualified Law no. 1/2020 concerning the composition of the CGP. 44. By judgment of 9 January 2024 notified on 10 January 2024, delivered by Judge S, the JACLM rejected the applicant’s appeal and ordered the applicant to pay the costs of the appeal proceedings. 45. In so far as relevant, the JACLM noted the incongruent and dysfunctional nature of the appeal which could even be considered as abusive and which already on the basis of the way in which it was presented could be considered inadmissible. It also referred to what it considered delaying tactics to prolong proceedings. In any event the appeal was to be rejected on the merits in so far as the action of the CGP had been justified given the umbrella consideration (assorbente considerazione) related to the defective composition of the CGP when it had appointed the applicant. Indeed, article 44 of Law no. 160/2011 provided that every administrative act (as was at issue in the present case) could be annulled ex officio. Moreover, the impugned legislative action, having retroactive effect, had been necessary, reasonable, and proportionate in the light of the interests at play, and could not amount to a breach of Article 6 of Convention. This was even more so since the intervention occurred during proceedings no. 13/2019 to which the applicant was not a party. The necessity of any interference had also to be seen in the light of the rights of X and Y, who had been affected by the unclear interpretation of the rules at issue. Moreover, the uncertainty was clarified within a short time span. 46. The JACLM further considered that the acknowledgement by Parliament was not a nomination and the applicant’s claim that his nomination by the CGP of 12 February 2019 had become intangible and irretractable was unfounded, as were his complaints in this regard under the Convention. The act in self-protection was not a punitive act and thus Article 7 of the Convention did not apply, nor was it discriminatory, thus, it did not raise an issue under Article 14 of the Convention. The impugned decision was not based on the applicant’s exercise of his judicial function (neither in relation to the functional nature of his appointment nor the exercise of the functions inherent to that position) but solely on the unlawfulness of his appointment on 12 February 2019, due to the defective composition of the CGP, which was already evident at the time (so much so that it had been challenged by X and Y on this basis), and was further clarified by the legislator’s intervention; It was not related to his behaviour or beliefs, nor was it hateful or politically oriented, contrary to other cases decided by the ECtHR. In the view of the JACLM there was no issue under Article 8 of the Convention as the matter was of a public not private nature, and in any event any interference was justified for the coherence of the judicial system, as well as the legal certainty and the tranquillity of people who had the right to be judged by a tribunal constituted according to law. Lastly, the applicant’s rights under Article 6 and 13 had also been respected, the applicant having had ample opportunity to challenge these decisions, including via these same proceedings. 47. In conclusion, the JACLM considered that what was in issue was the interest of the public, the fundamentals of democracy and the public trust in the judiciary which prevailed over the interests of one individual, who had a right to a review of the administrative act at issue, but not a subjective right if the appointment was found to be unlawful. It was inappropriate and pretentious of the applicant to invoke fundamental human rights in such a context only because he imagined that his appointment was intangible, despite it being unlawful. The composition of the CGP had been vitiated by the presence of C who was still on probation (therefore not confirmed on a permanent basis) and having judges on probation sit on such a body could give rise to conflicts of interest. It was in that context that, rationally and with a view to make its application more foreseeable, articles 3 and 4 of Qualified Law no. 1/2020 clarified that article 7 (5) of Qualified Law no. 145/2003 had to be interpreted as referring to members of the judiciary who were confirmed on a permanent basis – an interpretation not applied, on 12 February 2019, when the applicant had been appointed. Thus, in the light of the doubts about the relevant interpretation and the new amendments, as well as their interpretation resulting from the pro-veritate opinion issued on the matter, the CGP’s act of self-protection had been reasoned and the San Marino authorities had had the duty to make right the situation. 48. It considered that all the other arguments raised by the applicant were manifestly ill-founded, including i) that in relation to the failure to join the proceedings to others, particularly noting that these proceedings concerned the annulment decision and not the decision to appoint him; and ii) that about the composition of the CGP on the date of the annulment decision, which deliberated in the absence of the Chief Justice (seat at the time vacant), and which correctly included amongst its eighteen members C, who by then had completed his probationary period, and excluded the applicant who was at the time still in his probationary period of three years. 49. The JACLM ordered the costs of the proceedings to be paid by the applicant, bearing in mind his behaviour during the proceedings which – it considered – verged on abuse of process and included his instrumentalization of proceedings, multiple complaints and claims of inexistant breaches of human rights aimed at prolonging proceedings at the expense of the taxpayer. Querela nullitatis (2)
50. On 8 February 2024 the applicant filed a further request by means of an action for querela nullitatis against the judgment of 10 January 2024 which was declared inadmissible on 17 November 2024 by the Judge for Extraordinary Remedies, since such action could not be brought against administrative judgments. Other proceedings
51. The applicant also unsuccessfully brought two further administrative sets of proceedings (nos. 14/2021 and 25/2021), which were joined, challenging the procedure appointing X and Y, in which he had also participated unsuccessfully. 52. Three different sets of disciplinary proceedings were also issued against the applicant in relation to incidents which occurred subsequent to the above facts. In the first of these proceedings, he was issued with the disciplinary sanction of a warning (ammonimento) (these proceedings being subject of application no. 3106/24 before this Court), in the second to a reprimand (censura), and in the third to a fine in the form of a suspension from his pay (sospensione della retribuzione) for a month. RELEVANT LEGAL FRAMEWORK
Domestic law and practice
53. For the purposes of the present text, it is noted that the term Magistratura, translated as “judiciary”, includes all the judicial organs of San Marino as enlisted in Article 2 (3) (4) and (5) of Constitutional Law no. 2/2011, set out at paragraph 54 below, namely those having ordinary, extraordinary and special jurisdictions, and the Procuratore del Fisco. The term magistrati which has been translated as “magistrates” for the purposes of the present case, refers to all those persons forming part of the judiciary, in the sense, as explained above. Constitutional Law
54. Constitutional Law no. 2/2011 (16 September 2011), concerning new rules applicable to the judicial system, modified Article 2 of Constitutional Law no. 144/2003 (30 October 2003) to read as follows:
Article 2 (Judicial bodies – Organi del potere giudiziario)
“[1] In accordance with the Statutes and the Declaration of Fundamental Rights and Principles of the San Marino Legal System, the magistrates of the Republic exercise judicial power, perform institutional duties without subordination and are accountable under the law.
[2] Magistrates, bound by the duties and entitled to the rights indicated by law, in order to guarantee the objectivity and impartiality with which they are required to perform their functions, are entitled to the special personal, economic and status guarantees provided for by law and by international treaty and customary law.
[3] The organs of jurisdiction (organi della giurisdizione) are the Judge of the Third Instance, the Appeal Judge, the Commissario della Legge, and the Uditore Commissariale.
[4] Extraordinary judicial functions in cases provided for by law are assigned to the Judge for Extraordinary Remedies.
[5] Civil liability actions against magistrates are assigned to the jurisdiction of the Judges for Civil Liability Actions (Giudici per l’azione di responsabilità civile).
[6] Judges exercise all the judicial functions expressly assigned to them by law. The Uditore Commissariale assists the Commissario della Legge in his activities; the Commissario della Legge may assign or delegate to him investigative functions in civil, criminal and administrative matters.
[7] Several judges may be assigned to individual judicial offices, each of whom is guaranteed the fullness of judicial functions. The Qualified Law on the judicial system provides for the substitution of judges of the same level.”
55. Subsequently, Constitutional Law No. 2/2020 (3 December 2020) further amended Article 2 (5) of Constitutional Law no. 144/2003 to read as follows:
“[5] Civil liability actions against magistrates are assigned to the jurisdiction of the Judges for Civil Liability Actions (Giudici per l’azione di responsabilità civile). The Judges for Civil Liability Actions of Magistrates shall also be competent to rule on civil, criminal or administrative proceedings if all competent judges have lawfully abstained or have been legitimately objected to or are otherwise unable to rule because they have already ruled.”
56. The relevant articles of Constitutional Law no. 1/2021 (7 December 2021) concerning the Judiciary, the Judicial System and the Judicial Council, in so far as relevant, read as follows. Article 8
“... (4) A magistrate appointed by career advancement shall not be subject to any probationary period. (5) Magistrates who, following career advancement, are subject to a probationary period at the time of the entry into force of this law shall be confirmed on a permanent basis.
...”
Article 9
“(1) Once they have completed their probationary period, career magistrates shall remain in office until they reach the age of 70. (2) Magistrates shall not be removed from office, except in the event of reaching retirement age, dismissal following the establishment of disciplinary liability or permanent incapacity to perform their duties, which shall be verified by the Judicial Council in consultation with the Magistrate. (3) Career magistrates who have exercised judicial functions for at least ten years may request, for serious personal or family reasons, to be transferred to the Public Administration. The Judicial Council shall decide on the request. If the Judicial Council accepts the request, Parliament shall decide on the magistrate’s placement. (4) Career magistrates shall be subject to professional evaluations every five years, with regard to the balance, productivity and professional qualities demonstrated in the exercise of their judicial duties. The evaluation shall be carried out by the Judicial Council, on the basis of a reasoned and documented report by the Chief Justice and in consultation with the magistrate concerned.”
Law no. 145/2003 and its subsequent amendmentsAs modified in 2011

57. In so far as relevant, Qualified Law no. 2/2011 (16 September 2011), concerning the new rules on the judicial system, modified the relevant articles of Qualified Law no. 145/2003 (30 October 2003), concerning provisions on the judicial system, to read as follows:
Article 3 (Recruitment of magistrates)
 “... The starting of procedures to appoint magistrates shall be requested to the Parliament with a reasoned report drawn up by the Chief Justice (Magistrato Dirigente) with the consent of the Judicial Council. After having taken note of the request, the Parliament shall decide [on the appointment] by absolute majority. New magistrates shall preferably be recruited through internal career progression. The judges on an indefinite term position who are appointed to perform higher functions are not required to serve a probationary period.”
Article 4 (Duration of mandates)
“...
[2] After their appointment, Judges of Appeal, Commissari della Legge, and Uditori Commissariali are subject to a probationary period of three years. The Judicial Council assesses their performance on the basis of a detailed report prepared by the Chief Justice and decides whether to confirm them in their position for an indefinite period or to terminate their appointment, notifying the Parliament for their acknowledgement (presa d’atto).
[3] Magistrates who have been confirmed in their position for an indefinite period remain in service until the age of sixty-eight years; this period may be extended for two years by the Judicial Council at the request of the person concerned in case of proven service needs attested by a detailed report of the Chief Justice. The magistrates cease their function, by resignation, end of the mandate (decadenza), exemption or having joined the public administration.”
Article 5 (Requirements for the appointment of magistrates)
 “... Uditori Commissariali having served for at least four years may be appointed as Commissarrii della Legge. The assessment of the professional skills acquired is carried out by the Judicial Council in plenary session, to which the Chief Justice submits a relevant report.
...”
Article 7 (The Judicial Council)
“...
[5] The Judicial Council in plenary session shall be composed of the members of the Parliamentary Commission for Justice, the Minister (Segretario di Stato) of Justice, the Third Instance Judges, three Judges of Appeal, five Commissari della legge and the Chief Justice. The Commissari della legge and the three Judges of Appeal are chosen from among those confirmed in office on a permanent basis with the highest seniority in that position; in the event of equal seniority, age prevails. In any case, the number of magistrates must always be equal to that of the other members; if, due to specific requirements, their number is lower, the Council shall be supplemented with magistrates of the same instance as that of the absence or, if the number continues to be lower, with Commissari della legge, even if not yet confirmed in office on a permanent basis, on the basis of seniority; in the event of equal seniority, age prevails.
...”
58. Qualified Law No. 2/2011, concerning the new rules on the judicial system, also contained a transitory provision (Article 10) which read as follows:
“... The Uditori Commissariali currently serving may be appointed as Commissari della legge and Procuratori del Fisco by the Judicial Council based on the report of the Chief Justice. They are subject to the ordinary probationary period. The provision of article 4 (2) [of Qualified Law no. 145/2003 as amended in 2011] concerning the probationary period shall apply only to the magistrates who will take office after the approval of this Law.
...”
As modified in 2019
59. Article 2 and 3 of Qualified Law no. 1/2019 (26 February 2019) amended Qualified Law no. 145/2003 to read as follows:
Article 6 (Chief Justice)
“[1] The Chief Justice is appointed for a term of five years by the Judicial Council in plenary session from among the Commissari della legge with at least five years of service and Appeal Judges confirmed in their positions, or from among the Third Instance Judges.
[2] On the proposal of the Chief Justice, the Judicial Council in plenary session appoints, from among the magistrates, a Deputy Chief Justice who replaces the Chief Justice in any case where the latter is prevented from performing his or her duties. The Chief Justice may delegate the Deputy Chief Justice to exercise his or her powers. In the event of the death or permanent incapacity of the Chief Justice, the Deputy Chief Justice shall perform his or her duties until a successor is appointed.
[3] lf, in exceptional circumstances, the sphere of the administration of justice urgently requires particular and specific professional skills and experience, the Judicial Council may appoint a Chief (Dirigente) being a person, external to the San Marino Judiciary, of the highest repute and possessing outstanding competence in the direction of judicial structures and organs, for periods of time to be defined by the Judicial Council itself, including for less than five years.
[4] The Chief, appointed in accordance with the preceding paragraph, shall be an ex officio member of the Judicial Council, both in ordinary and in plenary session. He/she shall fulfil the functions and duties that the laws of the judicial system and other laws of the State assigned to the Chief Justice including the prerogatives referred to in this article.
...”
Article 7
“[5] The composition of the Judicial Council in plenary session shall be the following: the Minister of Justice, the Chief Justice, ten parliamentarians who are members of the Permanent Parliamentary Commission for Justice and a number of magistrates equal to the number of parliamentarians who are members of the Permanent Parliamentary Commission for Justice. The magistrates participating in the Judicial Council in plenary session shall be: two Third Instance Judges, three Judges of Appeal and five Commissari della Legge. The Judges of Appeal and the Commissari della Legge shall be chosen from among those confirmed in office on a permanent basis with the highest seniority in that position, in the event of equal seniority, old age prevails. To comply with the provisions of this paragraph, if the number of magistrates is lower than that of the parliamentarians who are members of the Permanent Parliamentary Commission for Justice, the Council shall be supplemented by magistrates of the same instance as the absence, or, if the number continues to be lower, with Commissari della legge, even if not yet confirmed in office on a permanent basis, on the basis of seniority; in the event of equal seniority, age prevails.”
As modified in 2020
60. In so far as relevant, article 2 and 4 of Qualified Law no. 1/2020 (20 February 2020) concerning the composition of the Judicial Council in plenary session, further amended article 6 and 7 of Qualified Law no. 145/2003 to read as follows:
Article 6 (Chief Justice)
“[4] The Chief who is not a magistrate, appointed in accordance with the preceding paragraph, shall participate in the Judicial Council without the right to vote, both in ordinary and in plenary session. He/she shall fulfil the functions and duties that the laws of the judicial system and other laws of the State assign to the Chief Justice, including the prerogatives referred to in this article.”
Article 7
“[5] The Judicial Council in plenary session shall be composed of the members of the Parliamentary Commission for Justice, the Minister of Justice, the Third Instance judges, three Judges of Appeal, five Commissari della Legge and the Chief Justice. The Judges of Appeal and the Commissari della Legge shall be chosen from among those confirmed in office on a permanent basis with the highest seniority in that position, in the event of equal seniority, old age prevails. If there are no three Judges of Appeal appointed on a permanent basis, the composition of the Council shall be supplemented by Commissari della Legge confirmed in office on a permanent basis. The number of magistrates with voting rights shall always be equal to the number of other members with voting rights. In the absence of magistrates confirmed in office on a permanent basis, the Council shall be supplemented by magistrates employed for a definite duration, preferring those of the same instance [as the absence], chosen from among those with the highest seniority in that position; in the event of equal seniority, age prevails.”
61. Article 3 of Qualified Law no. 1/2020, named a provision of authentic interpretation, also provided that the fifth paragraph of article 7 of Qualified Law no. 145/2003 and successive amendments was to be interpreted in the sense that:
“The Judicial Council in plenary session is composed primarily of magistrates confirmed in office on a permanent basis, that is to say, that they have passed the probationary period, where applicable. Only in the event that the number of magistrates confirmed in office on a permanent basis is lower than that of other members, the Judicial Council in plenary session shall be supplemented according to the other criteria laid down in the law.”
62. Qualified Law no. 1/2020 is no longer in force (except for its Article 10), it having been abrogated by means of Constitutional Law no. 1/2021 (see paragraph 56 above) in the context of a further legislative reform. Law no. 55/2003
63. Law no. 55/2003, concerning proceedings before the Constitutional Court, in so far as relevant reads as follows:
Article 11 (judicial review of constitutionality)
“1. The review of constitutionality referred to in Article 16 of the Declaration on the Citizens’ Rights may be carried out through direct action or interlocutory action in the context of proceedings pending before judicial bodies.
...”
Article 12 (direct action)
“1. A direct review of legitimacy may be requested by at least twenty Councillors, by the Executive Government (Congresso di Stato), by five Regional Councils (Giunte di Castello), by the Equal Opportunities Commission, or by a number of citizens representing at least 1.5% of the electorate, as determined by the latest and definitive annual revision of the electoral rolls.
...”
Article 13 (interlocutory referral)
“1. Applications for review of constitutionality may be lodged through interlocutory (incidentale) action in the context of proceedings pending before the jurisdictional bodies of the Republic by the parties or the Procuratore del Fisco by means of an ad hoc written application, or ex officio by the judge with a reasoned order.
... 4. The application shall be included in the files of the judicial proceedings and notified to any interested party by the applicant. The Judge shall grant the parties and the Procuratore del Fisco if involved in the case, twenty days to submit their observations and arguments. After such period, the Judge shall reject, by means of an order, manifestly unfounded or dilatory applications.
...”
Law no. 160/2011
64. Law no. 160/2011 concerning administrative procedures and access to administrative documents, in so far as relevant reads as follows:
Article 44
“An unlawful administrative measure tainted with violation of the law, abuse of powers or lack of competence may be annulled ex officio, for reasons of public interest, by the body that has adopted it or by another body provided for by the law, within a reasonable time-limit and taking into account the interests of the addressees. The possibility to validate a measure that may be annulled for reasons of public interest and within a reasonable time shall not be affected.”
Law no. 68/1989
65. Law no. 68/1989 concerning administrative jurisdictions, in so far as relevant, reads as follows:
Article 9
“The bodies of administrative jurisdiction are called upon to decide on challenges for lack of competence, excess of power or violation of the law against actions or decisions of institutional bodies of the Public Administration in general, including actions of administrative bodies of the Social Security Institute and of the Autonomous State Bodies and Companies, when they concern an interest of a natural or legal person. The latter without prejudice (fatte salve) to the different provisions of law on access to a court for the determination of a person’s rights and interests (tutela giudiziaria). Acts relating to public employment are subject to the administrative jurisdiction provided for by this law. Conflicts of jurisdiction are decided pursuant to article 37.”
Article 15
“The Administrative Judge of first instance has jurisdiction to decide at first instance. When upholding the application, it pronounces the annulment of the contested administrative act. It also orders the losing party to reimburse the legal costs incurred by the other parties, unless it is considered that there are justifiable grounds for ordering the sharing of costs. In proceedings relating to the public service it also pronounces, in case of approval of the application, an order to the Public Administration to pay the employee’s entitlements, without prejudice to the jurisdiction of the ordinary judge for the decision on possible compensation of damage.
...”
International INSTRUMENTSThe Group of States against Corruption (“GRECO”)

66. The report of the Group of States against Corruption (“GRECO”) – Corruption prevention in respect of members of parliament, judges and prosecutors (Evaluation Report – Republic of San Marino, 85th Plenary Meeting 21-25 September 2020), in particular, the chapter entitled “Corruption prevention in respect of judges”, which related to the period relevant to the present case, in so far as relevant, reads as follows:
“Overview of the System
... Judicial Council
... [summary of the legal framework with its amendments including Qualified law no. 1/2020]
85. The GET [GRECO evaluation team] considers that substantial amelioration must follow with regard to the Judicial Council composition and operation. The current system has important flaws as compared to international standards. Regarding the composition of the Judicial Council in ordinary session, the presence of the Minister of Justice, although without voting rights, in sittings of all-judges where the organisation of work is discussed, looks problematic, particularly, by virtue of the key democratic principle of separation of powers. GRECO has repeatedly advised abolishing the ex officio membership of the Minister of Justice in judicial councils. 86. The problems are, however, more acute in relation to the Judicial Council in plenary. At the start, the GET notes that mixed membership in judicial councils is not a problem per se. However, when this is the case, there should be a majority of judges. Furthermore, caution should be exerted in order to ensure that the real and perceived independence of the judiciary is not only safeguarded, but also strengthened at all times. Particular attention must be paid to political membership. In this connection, the functioning of judicial councils should allow no concession at all to the interplay of parliamentary majorities and be free from any subordination to political party consideration. This is a particularly relevant concern in the case of San Marino where the number of active politicians appointed automatically to the Judicial Council equals the number of judges. 87. Furthermore, the GET underscores that the election of members of judicial councils is a crucial moment to infuse transparency and accountability to this central body within the judiciary. When non-judicial members are appointed by Parliament, the procedure related to this appointment must be conducted in a transparent and non-political manner. The GET finds these requirements difficult to reconcile with the current procedure where members of a parliamentary committee, i.e. the Permanent Parliamentary Committee for Justice, are automatically made members of the Judicial Council. Thus, in practice, election criteria are more connected to parliamentarian activities (politically driven and motivated) than to judicial duties and knowledge. 88. Moreover, the GET stresses that standards call for members, whether judges or not, to be selected on the basis of their competence, experience, understanding of judicial life, capacity for discussion and culture of independence. Besides, regarding the selection of judges, these should be elected by their peers aiming at ensuring widest representation of the judiciary at all levels; all interference of the judicial hierarchies in the process should be avoided. In San Marino, the primary criterion for the appointment to the plenary of the Judicial Council is confirmation in office on a permanent basis. As for non-judicial members, in addition to the concerns already expressed in the preceding paragraphs, nothing is said on their merits and qualities, other than that they cannot be lawyers, notaries or accountants. 89. Regarding the operation of the Judicial Council in San Marino, no rules of procedure have been adopted ...
... 91. In light of the shortcomings identified above, the GET is of the firm view that a comprehensive reform of the Judicial Council’s architecture must be taken as a matter of priority. Accordingly, in order to enshrine the role of the Judicial Council as a guarantor of the independence of judges and the judiciary, GRECO recommends (i) changing the composition of the Judicial Council by providing that at least half of its members are judges elected by their peers, and, for non-judicial members, by excluding ex officio membership of members of the executive and the legislative; (ii) establishing objective and measurable selection criteria and a transparent selection procedure to endorse the professional qualities and impartiality of all members; and (iii) putting in place operational arrangements to ensure the effective performance of its functions in an institutionalised manner. Recruitment career and conditions of service
Selection and appointment
... [summary of the legal framework with its amendments]
98. The GET considers that the recruitment system [of judges] by means of competition is sound: it depends upon objective success in competitive examination. Further improvements could, however, be taken as regards appointments through internal career progression. Both the requirements of the post and the selection procedure would benefit from further articulation. The law requires a law degree, a number of years of experience and undisputed reputation. In the GET’s view, the current set of selection criteria can be further refined and developed to define more clearly the qualities required for the post so that integrity, ability and efficiency are best met. That would also allow for an easier scrutiny of candidates’ qualifications, i.e. the manner in which the various skills and qualities are assessed and balanced against each other, during the evaluation process. When career advancement/recruitment to higher positions are not exclusively based on seniority, but also on other qualities and merits, these must be clearly defined and objectively assessed. 99. Appointment follows through a qualified majority decision of the Judicial Council (on the basis of a report from the head of the court, when the appointment is made through internal career progression). However, aside from the cases when a prior report from the head of the court is required, nothing is said in law or regulation as to how this decision is reached (e.g. evaluation criteria), nor is the appointment decision required to be reasoned. The considerations made before in this report as to the composition and operation of the Judicial Council are of critical importance in this area. Additional steps must be taken to fully ensure an appointment process which is vested (both in reality and in appearance) with sufficient guarantees of objectivity, transparency, independence and impartiality. 100. Furthermore, the GET has concerns as to the deviation from the principle of permanent tenure for the highest ranks of the judiciary (Highest Judges of Appeal, the Judges of Extraordinary Remedies and the Judges for the Civil Liability of Magistrates). Permanent tenure until retirement constitutes a fundamental protection for the independence of all judges, according to international standards and GRECO practice. Consequently, GRECO recommends ensuring that the appointment of judges, as well as the confirmation of permanent employment after the completion of a probationary period, as applicable, are thoroughly regulated according to clear and objective criteria, based on merit having regard to qualification, integrity, ability and efficiency, following a transparent procedure, which is sufficiently reasoned.
...
103. ... GRECO recommends thoroughly regulating the system of selection, appointment, mandate renewal and revocation, as well as the responsibilities of the head of the court (whether s/he comes from inside or outside the judicial career).
... V. RECOMMENDATIONS AND FOLLOW-UP
170. In view of the findings of the present report, GRECO addresses the following recommendations to San Marino:
... Regarding judges and prosecutors
vii. (i) changing the composition of the Judicial Council by providing that at least half of its members are judges elected by their peers, and, for non-judicial members, by excluding ex officio membership of members of the executive and the legislative; (ii) establishing objective and measurable selection criteria and a transparent selection procedure to endorse the professional qualities and impartiality of all members; and (iii) putting in place operational arrangements to ensure the effective performance of its functions in an institutionalised manner (paragraph 91);
viii. ensuring that the appointment of judges, as well as the confirmation of permanent employment after the completion of a probationary period, as applicable, are thoroughly regulated according to clear and objective criteria, based on merit having regard to qualification, integrity, ability and efficiency, following a transparent procedure, which is sufficiently reasoned (paragraph 100);
ix. thoroughly regulating the system of selection, appointment, mandate renewal and revocation, as well as the responsibilities of the head of the court (whether s/he comes from inside or outside the judicial career) (paragraph 103);
...”
67. In their subsequent report, Corruption prevention in respect of members of parliament, judges and prosecutors (Compliance Report – Republic of San Marino, 91st Plenary Meeting 13-17 June 2022), GRECO concluded that following a thorough legislative reform (in 2021) to address the various flaws identified above, the three recommendations above had been implemented satisfactorily or dealt with in a satisfactory manner[3]. The European Commission for Democracy through Law (“the Venice Commission”)
68. The Compilation of Venice Commission opinions and reports concerning courts, Strasbourg 7 January 2025[4], in its part concerning judicial councils, in so far as relevant reads as follows:
“4.2 Composition of the Councils of Justice
4.2.1 General approach
“There is no standard model that a democratic country is bound to follow in setting up its Supreme Judicial Council so long as the function of such a Council fall within the aim to ensure the proper functioning of an independent Judiciary within a democratic State. Though models exist where the involvement of other branches of power (the legislative and the executive) is outwardly excluded or minimised, such involvement is in varying degrees recognised by most statutes and is justified by the social content of the functions of the Supreme Judicial Council and the need to have the administrative activities of the Judiciary monitored by the other branches of power of the State. It is obvious that the Judiciary has to be answerable for its actions according to law provided that proper and fair procedures are provided for and that a removal from office can take place only for reasons that are substantiated. Nevertheless, it is generally assumed that the main purpose of the very existence of a Supreme Council of the Judiciary is the protection of the independence of judges by insulating them from undue pressures from other powers of the State in matters such as the selection and appointment of judges and the exercise of disciplinary functions.”
CDL-INF(1999)005, Opinion on the reform of the judiciary in Bulgaria, §28
See also CDL-AD(2015)042, Opinion on the Laws on the Disciplinary Liability and Evaluation of Judges of "The Former Yugoslav Republic of Macedonia", §61
“The composition of the SJC is in line with the recommendations of the Venice Commission. The majority of the members would be judges (ten out of fifteen), and eight judicial members would be elected from various levels of courts. The Presidents of the Supreme Court of Cassation and Supreme Administrative Court would be members ex officio. The non-judicial members would be elected by the National Assembly with a two-thirds majority, no dead-lock mechanism is provided for. It is recommended to foresee such an anti-deadlock mechanism (for which examples can be taken from the several possibilities presented previously by the Venice Commission).”
CDL-AD(2023)039, Opinion on the Draft Amendments to the Constitution of Bulgaria, §123
“[...] Involving only judges carries the risk of raising a perception of self-protection, self-interest and cronyism. As concerns the composition of the judicial council, both politicisation and corporatism must be avoided. An appropriate balance should be found between judges and lay members. The involvement of other branches of government must not pose threats of undue pressure on the members of the Council and the whole judiciary.”
CDL-AD(2016)007, Rule of Law Checklist, §82
See also CDL-AD(2017)018, Opinion on the Judicial System Act of Bulgaria, §§17, 20, 21 and 23; CDL-INF(1998)009, Opinion on recent amendments to the law on major constitutional provisions of the Republic of Albania, §9
“[...] [T]he election by high quorums needed in the National Assembly for the election of prominent lawyers to the HJC (five members) and to the HPC (four members) may lead to deadlocks in the future. There is a danger that the anti-deadlock mechanism meant to be an exception becomes the rule and allows politicized appointments. In order to encourage consensus and move away from the anti-deadlock mechanism of a five‑member commission, the composition of the latter should be reconsidered [...].”
CDL-AD(2021)032, Opinion on the draft Constitutional Amendments on the Judiciary and draft Constitutional Law for the Implementation of the Constitutional Amendments of Serbia, §110
“[...] [P]oliticisation can be avoided if Parliament is solely required to confirm appointments made by the judges.”
CDL-AD(2002)021, Supplementary Opinion on the Revision of the Constitution of Romania, §22
See also CDL-AD(2002)026, Opinion on the Draft Law on Judicial Power and Corresponding Constitutional Amendments of Latvia, §13; CDL-INF(1998)009, Opinion on recent amendments to the law on major constitutional provisions of the Republic of Albania, §§9, 19; CDL-INF(1999)005, Opinion on the reform of the judiciary in Bulgaria, §29
“[...] [A] substantial element or a majority of the members of the Judicial Council should be elected by the Judiciary itself. In order to provide for democratic legitimacy of the Judicial Council, other members should be elected by Parliament among persons with appropriate legal qualification taking into account possible conflicts of interest.”
CDL-AD(2007)028, Report on Judicial Appointments by the Venice Commission, §29
See also CDL-AD(2018)003, Opinion on the Law on amending and supplementing the Constitution (Judiciary) of the Republic of Moldova, §54; CDL-AD(2008)006, Opinion on the Draft Law on the High Judicial Council of the Republic of Serbia, §76
“In addition, the Constitution does not define precisely the number of members of the HJC. [...] [I]t is quite unusual for a constitutional body to exist without the number of its members being clearly fixed (or at least without having a clear method of defining this number). The very idea of an “institution” implies that its composition is defined either in the law or in the Constitution, and is not left to the discretion of one person, even if this is the head of the State. Absence of a fixed composition undermines the legitimacy of the decisions taken by the body.”
CDL-AD(2018)032, Opinion on the Concept Paper on the reform of the High Judicial Council of Kazakhstan, §22
“[...] [W]hen using its legislative power to design the future organisation and functioning of the judiciary, Parliament should refrain from adopting measures which would jeopardise the continuity in membership of the High Judicial Council. Removing all members of the Council prematurely would set a precedent whereby any incoming government or any new Parliament, which did not approve of either the composition or the membership of the Council could terminate its existence early and replace it with a new Council. In many circumstances such a change, especially on short notice, would raise a suspicion that the intention behind it was to influence cases pending before the Council”. CDL-AD(2013)007, Opinion on the draft amendments to the organic law on courts of general jurisdiction of Georgia, §§ 69-72. “[...] The Venice Commission and the Directorate consider that as a matter of principle, the security of the fixed term of the mandates of members of constitutional bodies serves the purpose of ensuring their independence from external pressure. Therefore, measures which would jeopardise the continuity in membership and interfere with the security of tenure of the members of this authority would raise a suspicion that the intention behind those measures was to influence its decisions.”
CDL-AD(2020)001, Joint opinion of the Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe on the draft law on amending and supplementing the constitution with respect to the Superior Council of Magistracy of Moldova, §57”
THE LAW
PRELIMINARY REMARKSThe scope of the case

69. Given the extensive and at times unclear submissions by both parties to the case, the Court finds it opportune to note that the scope of the case is limited to the complaints notified to the Government under application no. 14396/24, namely the complaints concerning Articles 6 and 8 of the Convention in connection with proceedings no. 37/2020, the remainder of that application having been declared inadmissible by the President of the Section acting in a single-judge formation (see Rule 27A § 2(a) and Rule 54 § 3 of the Rules of Court), and other applications brought before the Court having been dealt with separately and independently of this case. The Government’s objection of abuse of petition
70. The Court reiterates that an application may be rejected as an abuse of the right of application under Article 35 § 3 (a) of the Convention, which provides, as far as relevant:
“The Court shall declare inadmissible any individual application submitted under Article 34 which it considers ... an abuse of the right of application.”
The parties’ submissions
71. The Government submitted that the application was inadmissible for abuse of petition. They pointed out to i) the applicant’s confused presentation of facts, which also contained untrue facts (in relation to the appointment procedure and the relevant legislation) and matters extraneous to this application (some of which referring to other applications brought by him before the Court); ii) the absence of certain documents (or pages therein) related to proceedings no. 37/2020 and the excessive documentation concerning other proceedings he undertook at the domestic level, for the sole purposes of creating confusion and difficulties; iii) the publication on the Court’s online case-law database (Hudoc) of the notification to the Government of the present application which was reported in the press and could potentially put pressure on judges in other pending proceedings, as well as the reference to it by the applicant in other proceedings to his advantage, which the Government considered was not in conformity with confidentiality rules; and iv) the applicant’s complaints being of a fourth instance nature. 72. The applicant rebutted by stating that the Government had been abusing the system by trying to mislead the Court, submitting an incomplete statement of facts and legislative legal framework, as well as excessively lengthy observations, relying on arguments which had never been determined by the domestic courts. Moreover, this objection had been based on irrelevant, baseless and inaccurate assertions. He argued that by omitting facts and confusing their chronology the Government was failing in its duty to cooperate fully in the conduct of the proceedings (Rule 44A of the Rules of Court). Furthermore, he clarified that there had been no divulging of friendly settlement negotiations, nor had this been claimed by the Government, which appeared solely to suggest that the Court should remain silent upon cases communicated to the Government, that national judges should remain uninformed about developments occurring before the ECtHR, and that the press (for whom the applicant was not responsible) should have no interest in such cases.

Article of the Convention at issue: Article 6
Outcome: violation