Background
Ingrid Casali was prosecuted over a Facebook comment concerning a San Marino health minister who had received an award for combating domestic violence. Her post criticized his management of the COVID-19 vaccination campaign and stated that he had been tried for violence against a woman. Domestic courts found that assertion false and convicted her of damaging the honor of a person vested with public powers, imposing a suspended four-month prison sentence and related financial liabilities.
A newly introduced Third Instance Judge upheld Casali’s further appeal, finding deficiencies in the appellate court’s reasoning, recognizing her comment as political criticism with a sufficient factual basis, and identifying a violation of her defense rights. The injured politician then sought an extraordinary declaration of nullity. The Judge for Extraordinary Remedies annulled the third-instance judgment without remitting the case, thereby reviving Casali’s conviction.
The Court’s Holding
The European Court of Human Rights unanimously held that the Judge for Extraordinary Remedies was not a “tribunal established by law” for purposes of Article 6 § 1. Neither an action to nullify an “abnormal” criminal judgment nor the use of the civil-law remedy of querela nullitatis in criminal proceedings had a basis in legislation enacted by Parliament. Moreover, the Judge for Extraordinary Remedies exceeded the criminal jurisdiction conferred by San Marino law.
The Court also unanimously found a violation of Article 10. Although the substantive criminal offense had a legal basis, the procedure that restored Casali’s conviction had not been prescribed by law. Because that defect was sufficient to make the interference with her expression unlawful, the Court did not decide whether the domestic courts had otherwise struck a fair balance between freedom of expression and protection of reputation.
The Court found it unnecessary to examine separately Casali’s remaining Article 6 complaints concerning the proceedings through the ordinary appeal stage. It awarded her EUR 5,000 for non-pecuniary damage and EUR 19,000 for costs and expenses.
Key Takeaways
- A judicial body may exist lawfully yet still fail the “tribunal established by law” requirement when it acts beyond its legislatively assigned jurisdiction.
- Courts in a codified system cannot create an unspecified extraordinary criminal remedy without a statutory basis, particularly where doing so operates against the accused.
- An interference with expression is not “prescribed by law” when serious defects in the decision-making procedure—including restoration of a conviction by an unauthorized tribunal—undermine its lawfulness.
Why It Matters
The judgment reinforces that criminal remedies, judicial competence, and procedural safeguards must be fixed by law rather than created through expansive judicial analogy. Legal certainty is especially important when an extraordinary proceeding overturns an acquittal and restores a conviction.
For expression cases, the decision also confirms that Article 10 scrutiny extends beyond the wording of the substantive offense to the legality of the procedure producing the interference. The Court resolved the case on that threshold ground without deciding whether Casali’s Facebook statement itself warranted criminal punishment.