FIRST SECTION
DECISION
Application no. 3698/23
Eva ZANOTTI
against San Marino
The European Court of Human Rights (First Section), sitting on 3 October 2023 as a Committee composed of:
Péter Paczolay, President,
Gilberto Felici,
Raffaele Sabato, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 3698/23) 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 16 December 2022 by a San Marinese national, Ms Eva Zanotti, who was born in 1946 and lives in Domagnano (“the applicant”) and was represented by Ms E. Zaghini, a lawyer practising in Borgo Maggiore;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns proceedings before the courts of voluntary jurisdiction whereby a third party (with interest) asked the judge (Commissario della Legge, “CoL”) to issue a time-limit for the applicant to decide whether she would or not accept her mother’s inheritance.
2. The CoL issued a time-limit of one hundred days for the applicant to state her position. The applicant asked the CoL to extend that time-limit until a determination was made in other civil proceedings, the outcome of which could have considerably increased her mother’s estate. The CoL, thus, opened adversarial proceedings in respect of the applicant’s request and the parties started making submissions.
3. In the meantime, the hundred days having elapsed, the CoL declared that the applicant had refused her inheritance. The applicant appealed.
4. By a judgment of 24 April 2020, published on 27 July 2020 and notified to the applicant on 6 August 2020, the Court of Appeal rejected the applicant’s appeal considering that the procedure had been in line with common law having its origin in roman law. It further held that it was not for the Court of Appeal to examine whether there had been any procedural failings, in relation to, for example, the adversarial principle, which were the competence of the Judge for Extraordinary Remedies (“JER”), acting on a querela nullitatis, in the event that the relevant requirements were fulfilled.
5. On 10 September 2020 the applicant pursued a querela nullitatis asking the JER to annul the impugned decision on the basis that it was generic, insufficient and illogical.
6. By a judgment of the JER of 20 July 2022, notified to the applicant on 7 September 2022, her request was rejected. The JER noted that a querela nullitatis was an extraordinary remedy available only in cases of grave errors in judgment (errores in iudicando) and breaches of fundamental rights but excluded mere breaches of procedural norms. This had not been the situation in the present case. In any event domestic law did not provide an obligation on the CoL to deliver a decision before the expiry of the time-limit, nor had the applicant requested such a decision to be suspended.
7. The applicant complained under Article 6 § 1 of the Convention that she had been denied access to court and adversarial proceedings.
THE COURT’S ASSESSMENT
8. The Court observes that before the entry into force of Protocol No. 15 to the Convention (1 August 2021), Article 35 § 1 of the Convention referred to a period of six months, from the final domestic decision, within which an applicant could lodge application with the Court. Article 4 of Protocol No. 15 has amended Article 35 § 1 to reduce the period from six to four months. According to the transitional provisions of the Protocol (Article 8 § 3), this amendment applies only after a period of six months following the entry into force of the Protocol (as from 1 February 2022), in order to allow potential applicants to become fully aware of the new deadline. Furthermore, the new time-limit does not have a retroactive effect, since it does not apply to applications in respect of which the final decision within the meaning of Article 35 § 1 of the Convention was taken prior to the date of entry into force of the new rule (see the Explanatory Report to Protocol No.15, § 22).
9. The Court reiterates that the requirements contained in Article 35 § 1 concerning the exhaustion of domestic remedies and the six-month (now four-month) period are closely interrelated (see Jeronovičs v. Latvia [GC], no. 44898/10, § 75, ECHR 2016). As a rule, the six-month (now four-month) period runs from the date of the final decision in the process of exhaustion of domestic remedies (see Blokhin v. Russia [GC], no. 47152/06, § 106, ECHR 2016).
10. However, an applicant is not normally required to avail himself of an extraordinary remedy for the purposes of the exhaustion rule under Article 35 § 1 (see Coniac v. Romania, no. 4941/07, § 36, 6 October 2015; Kiiskinen v. Finland (dec.) no. 26323/95, ECHR 1999-V; and Oddone and Pecci v. San Marino, nos. 26581/17 and 31024/17, § 68, 17 October 2019). The Court refers, further, to the extensive case-law to the effect that an application for retrial or similar extraordinary remedies such as requesting a court to review its decision, or requesting the reopening of proceedings, cannot, as a general rule, be taken into account for the purpose of applying Article 35 of the Convention (see, for example, R. v. Denmark, no. 10326/83, Commission decision of 6 October 1983, Decisions and Reports 35, p. 218; Tumilovich v. Russia (dec.), no. 47033/99, 22 June 1999; Prystavska v. Ukraine (dec.), no. 21287/02, 17 December 2002; Berdzenishvili v. Russia (dec.), no. 31697/03, 29 January 2004; and Çinar v. Turkey (dec.), no. 28602/95, 13 November 2013) except in special circumstances where, for example, it is established under domestic law that such a request does in fact constitute an effective remedy (see, for example, Shibendra Dev v. Sweden (dec.), no. 7362/10, 21 October 2014).
11. Indeed, Article 35 § 1 allows only remedies which are normal and effective to be taken into account as an applicant cannot extend the strict time‑limit imposed under the Convention by seeking to make inappropriate or misconceived applications to bodies or institutions which have no power or competence to offer effective redress for the complaint in issue under the Convention (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 132, 19 December 2017). It follows that the pursuit of inadequate or ineffective remedies will have consequences for the identification of the “final decision” and, correspondingly, for the calculation of the starting point for the running of the six-month (now four-month) rule (see Toniolo v. San Marino and Italy, no. 44853/10, § 34, 26 June 2012, and the case-law cited therein).
12. As noted by the JER, a querela nullitatis is an extraordinary remedy available only in exceptional circumstances. It follows that it is not an adequate remedy for the purposes of the Convention. In that light, the Court considers that the final decision in the applicant’s case was that of 24 April 2020 notified to the applicant on 6 August 2020 (that is prior to the date of entry into force of the new rule in accordance with Protocol No. 15, and thus the relevant period is that of six months), while her application was introduced on 16 December 2022, that is more than six months later.
13. It follows that this complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 26 October 2023.
Liv Tigerstedt Péter Paczolay
Deputy Registrar President
Full & Egal Universal Law Academy