FIRST SECTION
\nDECISION<\/p>\n
Application no.23327\/16
\nLivio BACCIOCCHI
\nagainst San Marino<\/p>\n
The European Court of Human Rights (First Section), sitting on 4\u00a0December 2018 as a Chamber composed of:<\/p>\n
Linos-Alexandre Sicilianos, President,
\nAle\u0161Pejchal,
\nKrzysztof Wojtyczek,
\nArmen Harutyunyan,
\nPauliineKoskelo,
\nTim Eicke,
\nGilberto Felici, judges,
\nand Abel Campos, Section Registrar,<\/p>\n
Having regard to the above application lodged on 21 April 2016,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Mr LivioBacciocchi, is a national of San Marino, who was born in 1958 and lives in San Marino. He was represented before the Court by Mr S. Sabattini and Mr A. Campagna, lawyers practising in Bologna and Dogana.<\/p>\n 2.\u00a0\u00a0The Government of San Marino (\u201cthe Government\u201d) were represented by their Agent, Mr L. Daniele.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 1.\u00a0\u00a0Background of the case<\/em><\/p>\n 4.\u00a0\u00a0The applicant was a lawyer and a notary by profession.<\/p>\n 5.\u00a0\u00a0M. was the administrator of company I. He resigned on 5 May 2010.<\/p>\n 6.\u00a0\u00a0On 8 July 2009 a leasing contract was signed between company I. and a leasing and banking institute IBS for the financing of some real estate investments. On the same day, before the applicant as notary, the above\u2011mentioned M., together with F.M. and L.D.G. (business partners at the time of the facts) signed a personal guarantee agreement of 1,800,000\u00a0euros (EUR) in favour of IBS referring to the financial obligations deriving from the above\u2011mentioned leasing contracts.<\/p>\n 2.\u00a0\u00a0The criminal proceedings No. 677-678\/RNR\/2012 (for bribery)<\/em><\/p>\n 7.\u00a0\u00a0In 2012 criminal proceedings were instituted against the applicant and M., together with other five persons, for the offence of bribery (of some inspectors of the public administration).<\/p>\n 8.\u00a0\u00a0The applicant became involved in such proceedings as co\u2011accused following statements made by M. before a commission of inquiry and the inquiring judge respectively. The applicant was described by M. as the de\u00a0facto administrator of the construction companies involved in the bribery episodes as well as the actual brains of the crime, while M. (according to his own declarations before the inquiring judge) had just paid the money as he was ordered to do by the applicant.<\/p>\n 9.\u00a0\u00a0The proceedings were assigned to the first-instance judge A.B. (in his capacity of judge on the merits).<\/p>\n 10.\u00a0\u00a0On 19 September 2014 the first\u2011instance judge found both the applicant and M., together with the other accused persons, guilty of the offence of bribery.<\/p>\n 11.\u00a0\u00a0According to the judgment, the responsibility of the applicant was based, inter alia, on the accusations brought against him by M., which the judge considered trustworthy.<\/p>\n 12.\u00a0\u00a0On 13 February 2015 the applicant lodged an appeal before the Judge of Criminal Appeals (Giudiced\u2019AppelloPenale)against the above\u2011mentioned judgment, claiming, inter alia, the lack of credibility of the accusations of M.<\/p>\n 13.\u00a0\u00a0By a judgment filed in the registry on 12 January 2016 the Judge of Criminal Appeals upheld the first\u2011instance judgment (in the part relating to the applicant), diminishing, however, the punishment.<\/p>\n 14.\u00a0\u00a0On the same day the applicant was arrested.<\/p>\n 3.\u00a0\u00a0The criminal proceedings No. 58\/RNR\/2011 (for corporate crimes)<\/em><\/p>\n 15.\u00a0\u00a0At around the same time, criminal proceedings No.\u00a058\/RNR\/2011 were also pending against, inter alia, the applicant, for some corporate crimes.<\/p>\n 16.\u00a0\u00a0In the context of such proceedings, on 28 May 2011, during police questioning, M. declared that the applicant had made him sign the above\u2011mentioned personal guarantee agreement without his knowledge. Admitting that it was his own signature, he, however, claimed not to have been aware of signing such a document.<\/p>\n 17.\u00a0\u00a0These statements were confirmed at a hearing on 1 December 2014.<\/p>\n 18.\u00a0\u00a0By a judgment of 30 September 2015 the first\u2011instance judge found the applicant guilty of obstructing financial supervisory activities and sentenced him to one year and three months\u2019 imprisonment, two years\u2019 and six months\u2019 prohibition from holding public office and political rights, and a fine.<\/p>\n 4.\u00a0\u00a0The criminal proceedings No.62\/RNR\/2015 (for slander)<\/em><\/p>\n (a)\u00a0\u00a0Inquiry stage<\/p>\n 19.\u00a0\u00a0On 29 January 2015 the applicant filed a report against M. for the offence of slander. The applicant reported that M. had made false declarations to the police and judicial authorities in stating that he (M.) had been deceived and defrauded by the applicant. The applicant argued, inter\u00a0alia, that M. had willingly signed the personal guarantee agreement, knowing exactly what he was signing and its consequences.<\/p>\n 20.\u00a0\u00a0On the basis of the above\u2011mentioned report, criminal proceedings No.\u00a062\/RNR\/2015 were instituted against M. for the offence of slander and the investigation was assigned to judge A.B., in his capacity as inquiring judge (CommissariodellaLeggeInquirente).<\/p>\n 21.\u00a0\u00a0On 13 February 2015 the applicant requested to join the proceedings as a civil party, claiming reparation for the damage incurred by him as a result of the offence.<\/p>\n 22.\u00a0\u00a0By a decision issued on the same day the inquiring judgeordered the temporary secrecy \/ classification of the proceedings.<\/p>\n 23.\u00a0\u00a0By a decision of 17 August 2015, while the proceedings were suspended for judicial holidays (see Relevant domestic law, paragraph\u00a036 below) and the case\u2011file was still classified, the inquiring judge archived the proceedings. He considered, inter alia, that the evidence collected in the investigation did not demonstrate that M. was aware of having signed a personal guarantee contract.<\/p>\n (b)\u00a0\u00a0Interlocutory request<\/p>\n 24.\u00a0\u00a0In the meantime, on 30 July 2015,the applicant had filed a request for the abstention of the inquiring judge. The applicant addressed such a request to the same inquiring judge (A.B.) and unusually also brought it to the attention of the Chief Justice, who had no powers to intervene in such case. He argued that serious and evident reasons existed so as to consider that the inquiring judge\u2019s free judgment (serenit\u00e0 di giudizio) was compromised on the basis that the same judgehad been the first\u2011instance judge (in his capacity of judge on the merits) in the proceedings for bribery (see paragraph 9 above). In that case the finding of guilt had derived, inter\u00a0alia, from the accusations brought against him by M. (see paragraph\u00a011 above). Thus, A.B., in his capacity of judge on the merits, had already expressed his opinion about the truthfulness of the statements made by\u00a0M. against the applicant and such statements had been considered the primary evidence against the applicant in his conviction for bribery (see paragraph\u00a011 above). The applicant argued that a possible indictment of M. in the criminal proceedings for slander would have represented a direct endorsement of the defence he had put forward (concerning the lack of credibility of M.) and which had already been rejected by the same judge in the judgment of the criminal proceedings for bribery.<\/p>\n 25.\u00a0\u00a0By a handwritten decision of 3 August 2015 the inquiring judge stated that there was no need to decide the matter (non luogo a provvedere) since a request to \u201cencourage\u201d a judge\u2019s abstention was procedurally incorrect. Although he had no competence to decide on the merits of the request, he further noted that none of the reasons set out in the law for the withdrawal of a judge were fulfilled (see Relevant domestic law, paragraph\u00a033 below).<\/p>\n 26.\u00a0\u00a0The judge ordered the communication of the decision (\u201csi\u00a0comunichi\u201d). The outcome, the date and the means of such \u201ccommunication\u201d are unknown.<\/p>\n 27.\u00a0\u00a0According to the applicant, he had only obtained knowledge of the judge\u2019s decision on his request for abstention on 7 September 2015, namely when he had had access to the case\u2011file and after the decision of 17\u00a0August 2015 to archive the case.<\/p>\n (c)\u00a0\u00a0The appeal against the decision to archive<\/p>\n 28.\u00a0\u00a0On 5 October 2015 the applicant lodged a complaint before the Judge of Criminal Appeals against the decision to archive, requesting, inter alia, that a new investigation be opened and assigned to a different investigating judge, since judge A.B. was not impartial.<\/p>\n 29.\u00a0\u00a0By a decision of 20 November 2015 the judge of civil appeals in his capacity of judge of criminal appeals (GiudicedelleAppellazioniCivili in veste di GiudicedelleAppellazionipenali), dismissed the applicant\u2019s request to re\u2011open the investigation.<\/p>\n 30.\u00a0\u00a0The judge of appeal also decided not to express his opinion about the claimed incompatibility of the investigating judge since the same investigating judge had considered that no reasons for his \u201cspontaneous\u201d abstention subsisted (see paragraph 25 above). At the same time he noted that if the applicant meant to challenge the inquiring judge he should have submitted a request under Section 10 (3) of the qualified Law No.145 of 2003 (see Relevant domestic law, paragraph 35 below) on time and to the inquiring judge (namely, judge A.B.). Since he had not done so and the proceedings had come to an end, it was not for the appeal judge to look into the matter.<\/p>\n B.\u00a0\u00a0Relevant domestic law and practice<\/strong><\/p>\n 1.\u00a0\u00a0The injured\/civil party<\/em><\/p>\n 31.\u00a0\u00a0Sections 3 and 4 of Law No. 93 of 17 June 2008 read, in so far as relevant, as follows:<\/p>\n \u201c(3) Save for judicial acts covered by banking secrecy according to law …, the\u00a0injured party who has become a party to the proceedings has the right to receive on his request a copy of the acts of the proceedings and to submit in any phase of the proceedings memorials, submissions or documentation; he can request to take part, possibly only through his defence counsel or expert (perito), during the investigations, to any on site examination (accessi), searches and or other expert examination (perizie). The inquiring judge, to whom the request is made must give reasons for his decision. The inquiring judge shall deny the authorisation in case the request of the joined civil party represents a serious breach of the right of defence of the accused as well as if it is in contrast with fundamental requirements of confidentiality of the investigations or with bank secrecy…<\/p>\n (4) the injured party (parte lesa) is obliged to participate in confrontations with the accused set by the inquiring judge.\u201d<\/p>\n 32.\u00a0\u00a0Article 8 of the Criminal Code reads, in so far as relevant, as follows:<\/p>\n \u201cOnce the CommissariodellaLegge receives a request by a party to join proceedings as a civil party, he shall by decision admit the civil party to join the proceedings.<\/p>\n Such decision gives the civil party the right to be served with the communication of the acts of the proceedings after its publication [indictment], as well as the right to appoint a lawyer who can make written submissions on his behalf…\u201d<\/p>\n 2.\u00a0\u00a0Abstention and withdrawal of judges<\/em><\/p>\n 33.\u00a0\u00a0Section 10 of the Qualified Law No. 145 of 30 October 2003, as modified by Section 9 of the Qualified Law No. 2 of 16 September 2011, concerning abstention and withdrawal, reads, in so far as relevant as follows:<\/p>\n \u201c(1) A Judge must abstain when serious reasons exist, due to personal interests in the proceedings, existing relationships of family, marriage, cohabitation more uxorio, friendship, hostility, existing business or working relationship, between the judge himself or one of his close relatives and one of the parties or their attorneys in civil or administrative proceedings, or the accused person, the victim of the crime or their lawyers, in criminal proceedings.<\/p>\n (2) A Judge must likewise abstain in case he or she had given advice and opinions, or, prior to the proceedings and in the exercise of his functions he or she had illegitimately manifested his opinion on the facts object of the proceedings.<\/p>\n (3) In all such cases, if the Judge does not abstain of his own motion, the parties may request his withdrawal.<\/p>\n (4) The Judge could also abstain where it would be appropriate if circumstances exist which would compromise his impartiality and free judgment….\u201d<\/p>\n 34.\u00a0\u00a0In the judgment No. 6 of 16 November 2015 by the Third\u2011Instance Judge, in the criminal proceedings No. 154\/RNR\/2015, that court considered that the statements made by judges in judgments or decisions cannot be considered as an illegitimate manifestation of opinion (mentioned in Section\u00a010 subparagraph 2 of the Qualified Law No. 145 of 30\u00a0October 2003, see paragraph 33 above), the latter constituting ones opinions manifested in the exercise of their duties. In that same judgment, the judge also noted that the defence had not raised any timely complaint, namely a formal request for withdrawal or a call for abstention, in the act of appeal or before the decision of the impugned judge.<\/p>\n 35.\u00a0\u00a0Section 2 of Law No. 139 of 16 September 2011 reads, in so far as relevant, as follows:<\/p>\n \u201c(1) The judge who is affected by one of the grounds of mandatory abstention provided by Section 10 of the Qualified Law No.145 of 30 October 2003, as modified by Section 9 of the Qualified Law No. 2 of 16 September 2011 shall declare so and request the competent judge to exempt him from the proceedings in which the incompatibility had occurred.<\/p>\n (2) The request, once it has been notified to the parties shall be transmitted to the competent judge, together with the documents of the proceedings. The evidence shall be mentioned and attached to the request.<\/p>\n (3) The decision shall be filed in the registry together with the case\u2011file of the proceedings and shall be notified to the parties and to the judge on the merits of the main proceedings.<\/p>\n (4) The same disposition shall apply also in cases of non-mandatory abstention.<\/p>\n (5) The request for withdrawal (istanza di ricusazione) can be submitted in every phase of the proceedings.<\/p>\n (6) The request for withdrawal shall be added to the case\u2011file and shall indicate in detail the reasons for withdrawal as provided by the law, and the related evidence substantiating the challenge.<\/p>\n (7) Once the judge hearing the main proceedings receives the request, he shall inform the Chief Justice and shall request the registry to transmit it to the competent judge, together with a copy of the case-file. If the request is submitted in the pleading stage of the criminal proceedings, the judge shall carry out the tasks set out for such hearing but desist from delivering the judgment.<\/p>\n …<\/p>\n (15) In the judgment rejecting a request the party who made such request can be ordered to pay a sum of money from EUR 1,000 to EUR 10,000, as legal costs, without any prejudice to any available civil or criminal actions…\u201d<\/p>\n 36.\u00a0\u00a0Section 29 of Law No. 55 of 17 June 1994, in so far as relevant, reads as follows:<\/p>\n \u201cCriminal proceedings shall be subject to a period of judicial holidays in the months of July and August of each year, during which the terms of the proceedings are suspended. All the terms provided for the acts of judges, parties and their counsels, even in the case that they are acts to be carried out or submitted in the registry, whenever they expire during judicial holidays, are therefore delayed to the first day subsequent to the end of the holidays. Nevertheless, in the case of urgent matters and in any case concerning parole, the judge orders the continuation of the proceedings also during the period of judicial holidays…\u201d<\/p>\n COMPLAINT<\/strong><\/p>\n 37.\u00a0\u00a0The applicant complained under Article 6 \u00a7 1 of the Convention that the fact that the same person had had the role of first\u2011instant judge in the criminal proceedings No. 58\/RNR\/2011 on the one hand and the role of inquiring judge in the criminal proceedings No.62\/RNR\/2015 on the other hand, had violated the principle of impartiality of the judge since the two proceedings were substantially connected and related to the same persons.<\/p>\n THE LAW<\/strong><\/p>\n A.\u00a0\u00a0Article 6 \u00a7 1 of the Convention<\/strong><\/p>\n 38.\u00a0\u00a0The applicant complained, under Article 6 \u00a7 1 of the Convention, about the impartiality of the inquiring judge. The relevant provision reads, in so far as relevant, as follows:<\/p>\n \u201cIn the determination of … any criminal charge against him, everyone is entitled to a … hearing … by an … impartial tribunal…\u201d<\/p>\n 1.\u00a0\u00a0Compatibility rationemateriae<\/em><\/p>\n 39.\u00a0\u00a0The Government accepted that Article 6 \u00a7 1 was applicable to the slander proceedings and to the applicant as a civil party in the criminal proceedings.<\/p>\n 40.\u00a0\u00a0The applicant submitted that Article 6 \u00a7 1 of the Convention was applicable since he enjoyed civil party status in the proceedings for slander. The applicant noted that he had submitted a request to join the criminal proceedings as a civil party on 13 February 2015, seeking compensation for damages (see paragraph 21 above). Thus, the proceedings had not solely been aimed at securing a \u201cprivate revenge\u201d.<\/p>\n 41.\u00a0\u00a0The Court notes that the parties do not contest the applicability of the provision and the Court does not consider it necessary to examine the issue since, even assuming that it was applicable the complaint is in any event inadmissible for the reasons explained below.<\/p>\n 2.\u00a0\u00a0The Government\u2019s objection of non-exhaustion of domestic remedies<\/em><\/p>\n (a)\u00a0\u00a0The parties\u2019 submissions<\/p>\n (i)\u00a0\u00a0The Government<\/p>\n 42.\u00a0\u00a0The Government submitted that the applicant had failed to exhaust the appropriate domestic remedy, namely a \u2018request for withdrawal\u2019 of the judge as he had, instead, made a \u2018request for abstention\u2019, which in the Government\u2019s view was unusual, irregular and an ineffective remedy in relation to the objective pursued by the applicant.<\/p>\n 43.\u00a0\u00a0They explained that, on the one hand, \u2018abstention\u2019 (astensione) was a legal instrument through which a judge, of his own motion, requested the Judge for Extraordinary Remedies (Giudice per iRimediStraordinari) to exempt him from dealing with a case on the basis of the compulsory grounds provided by law (see paragraph\u00a033 above) or for \u201creasons of appropriateness\u201d (motivi di opportunit\u00e0). On the other hand, a request for withdrawal (ricusazione) allowed a party questioning the impartiality of a judge, to raise the issue and gave him or her, the possibility to submit such a complaint to the competent Judge for Extraordinary Remedies.<\/p>\n 44.\u00a0\u00a0According to the Government, a request for withdrawal addressed to the competent Judge for Extraordinary Remedies was the ordinary remedy specifically available in cases of alleged partiality of a judge. They considered that the applicant, an experienced lawyer by profession, was perfectly aware of the correct procedure to follow.<\/p>\n 45.\u00a0\u00a0The Government did not agree with the applicant\u2019s submission that his request was not encompassed in any of the cases for compulsory withdrawal and abstention provided by the law and thus that his only option was to rely on the criterion of serious \u201creasons of appropriateness\u201d only envisaged in the case of abstention. In the Government\u2019s view the applicant could have lodged a request for withdrawal, addressed to the Judge for Extraordinary Remedies, relying on Section 10 \u00a7 1\u00a0(see paragraphs\u00a033 and\u00a035 above) which provided for compulsory abstention or withdrawal in the case of \u2018the judge\u2019s interest in the proceedings\u2019. This was so because, in their view, the situation complained of concerned precisely one of interest of the inquiring judge in the proceedings, in so far as the latter could not change the outcome of the criminal proceedings for bribery, which he had previously decided in his capacity as first-instance judge.<\/p>\n 46.\u00a0\u00a0However, even if the applicant\u2019s argument had been correct, and that abstention was his only means of complaining, the Government noted that abstention was not obligatory and depended on the discretion of the sitting judge, thus the parties were not entitled to object if the latter decided not to abstain of his own motion. Moreover, the Government noted that, contrary to the applicant\u2019s allegation and irrespective of the fact that the case\u2011file was classified, the judge had ordered that his decision to reject the request for abstention be communicated to the applicant. Thus, the latter could have adopted any appropriate countermeasures and could have exercised his right of defence, following such communication.<\/p>\n 47.\u00a0\u00a0In the opinion of the Government, irrespective of the fact that the relevant jurisdiction was attributed to a judge defined \u2018for extraordinary remedies\u2019, a request for withdrawal could not be considered an extraordinary remedy, being the only ordinary remedy specifically available in San Marino in case of alleged partiality of a judge.<\/p>\n (ii)\u00a0\u00a0The applicant<\/p>\n 48.\u00a0\u00a0Relying on domestic case\u2011law (see paragraph 34 above), the applicant noted that such case\u2011law had considered a request for abstention, together with the request for withdrawal, as one of the possible remedies in order to raise the issue of the partiality of a judge. In the present case he had not based his request for abstention on one of the grounds for compulsory abstention provided by the relevant law (in respect of which, if a judge does not abstain, the parties can request his withdrawal) but on the basis of \u201creasons of appropriateness\u201d (which was subject to a judge\u2019s discretion, and if a judge did not abstain of his own motion, parties were not allowed to request his withdrawal) (see paragraph 33 above). Therefore, the applicant\u2019s request for abstention had been perfectly regular in the light of the reasons for which it had been submitted, and no further action could be undertaken.<\/p>\n 49.\u00a0\u00a0However, even if that were not so, the applicant noted that the decision to dismiss the request for abstention had been taken by the inquiring judge while the case file was classified, and during judicial holidays when the criminal proceedings were suspended (without any decision to continue the proceedings during holidays as provided by the domestic law in the case of urgency). This had prevented the applicant from promptly knowing the judge\u2019s decision on the abstention request before the archiving of the case\u2011file. Thus, in his view, at that point a formal request for the judge\u2019s withdrawal would have been useless.<\/p>\n 50.\u00a0\u00a0The applicant also submitted that a request for abstention or withdrawal could not be considered an effective and accessible remedy within the meaning of Article 35 \u00a7 1 of the Convention since it was of an extraordinary nature, on the grounds that it had to be decided by the Judge for Extraordinary Remedies.<\/p>\n (b)\u00a0\u00a0The Court\u2019s assessment<\/p>\n (i)\u00a0\u00a0General principles<\/p>\n 51.\u00a0\u00a0The Court reiterates that it is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It should not take on the role of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is based on the assumption \u2013 reflected in Article 13 of the Convention, with which it has close affinity \u2013 that there is an effective remedy available in respect of the alleged violation. The rule is therefore an indispensable part of the functioning of this system of protection (see Vu\u010dkovi\u0107 and Others v.\u00a0Serbia (preliminary objection) [GC], nos. 17153\/11 and 29 others, \u00a7 69, 25\u00a0March 2014).<\/p>\n 52.\u00a0\u00a0The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (ibid., \u00a7 71).<\/p>\n 53.\u00a0\u00a0Article 35 \u00a7 1 also requires that the complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time\u2011limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. Where an applicant has failed to comply with these requirements, his or her application should in principle be declared inadmissible for failure to exhaust domestic remedies (ibid.,\u00a7 72).<\/p>\n 54.\u00a0\u00a0However, there is, as indicated above, no obligation to have recourse to remedies which are inadequate or ineffective. In addition, according to the \u201cgenerally recognised rules of international law\u201d there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his or her disposal. (ibid.,\u00a7 73).<\/p>\n 55.\u00a0\u00a0To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success. However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (ibid., \u00a7 74).<\/p>\n 56.\u00a0\u00a0As regards the burden of proof, it is incumbent on the Government claiming non\u2011exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (ibid., \u00a7 77).<\/p>\n (ii)\u00a0\u00a0Application to the present case<\/p>\n 57.\u00a0\u00a0The Court considers that there is no reason to doubt that a request for withdrawal of a judge is the general remedy applicable in the San Marino domestic system to challenge a judge\u2019s partiality (see, for example, Diamante and Pelliccioni v. San Marino, no.\u00a032250\/08, \u00a7\u00a0191, 27\u00a0September 2011). As to the issue raised by the applicant, in connection with the specific circumstances of this case, namely that none of the grounds for compulsory withdrawal (and compulsory abstention) envisaged in Section\u00a010 of the Qualified Law No. 145 of 30 October 2003 (as modified by Section\u00a09 of the Qualified Law No. 2 of 16 September 2011) applied to him, the Court observes that there appears to be no doubt, as claimed by the applicant, that he could not rely on Section 10 \u00a7 2 given the interpretation attributed to it by the domestic case-law (see paragraph\u00a034 above). However, the Court notes that the applicant could have relied on Section 10 \u00a7 1 of the relevant law (see paragraph 33 above), arguing that the circumstance that judge A.B. had been the judge on the merits who had delivered the first\u2011instance judgment in the bribery case amounted to an \u2018interest in the proceedings\u2019 for slander on the part of judge\u00a0A.B. (see, mutatis mutandis, Di\u00a0Giovanni v.\u00a0Italy, no. 51160\/06, \u00a7\u00a046, 9\u00a0July 2013, concerning a similar provision in Italian law). The applicant has not substantiated why relying on this ground would have had no prospects of success. Nor has he submitted any other reason as to why he should not have pursued such an avenue. Thus, the Court considers that, in the particular circumstances of the present case, the applicant should have at least tried this avenue giving the domestic authorities an opportunity to put matters right through their own legal system.<\/p>\n 58.\u00a0\u00a0The Court observes that, in reply to the Government\u2019s argument, the applicant claimed that he was no longer in time to submit a request for withdrawal, once his abstention request was rejected (moreover during judicial holidays and when the case\u2011file was classified). The Court notes however that there was no reason why the applicant should not have lodged the former remedy in the first place, given that at least on 30\u00a0July 2015 (when he submitted his request for abstention), he had been perfectly aware of the fact that judge A.B. was the inquiring judge in the slander case. Thus, on that date, the applicant had the same information which led him to lodge the request for abstention (see paragraph 24 above) and could have made a timely use of the appropriate and effective remedy provided by law, namely a request for withdrawal.<\/p>\n 59.\u00a0\u00a0In any event, the Court will examine whether the remedy undertaken by the applicant, could amount to an effective remedy, given that, under its established case\u2011law, when a remedyhasbeenpursued, use of anotherremedy which hasessentially the sameobjectiveisnotrequired (see, inter alia, Micallef v. Malta [GC], no. 17056\/06, \u00a7 58, ECHR 2009).<\/p>\n 60.\u00a0\u00a0To this end, the Court observes that Section 10 \u00a7 1 of the Qualified Law No. 145 of 30 October 2003, as modified by Section 9 of the Qualified Law No. 2 of 16 September 2011, is clear in characterising abstention as an action which a judge would carry out ofhis own motion, as opposed to a \u201crequest for withdrawal\u201d, which according to Section 10 \u00a7 3 of the same law, shall be submitted by the parties (see paragraph 33 above). Similarly, pursuant to Section 2 \u00a7 1 of Law No. 139 of 16 September 2011, in the presence of one of the grounds for abstention provided by law, where the judge considers that he should abstain, he shall submit such matter to the Judge for Extraordinary Remedies. Indeed, the latter provision does not make any reference to a request for abstention lodged by a private party (see paragraph\u00a035 above). The same was confirmed by the Government (see paragraph\u00a042 above). Thus, it does not seem that the request for abstention submitted by the applicant had a legal basis in the relevant law.<\/p>\n 61.\u00a0\u00a0As to the domestic case\u2011law which, in the opinion of the applicant, had considered a request for abstention, together with a request for withdrawal, as possible remedies provided by law (see paragraph 34 above), the Court considers that the latter statement had been a mere obiterdictum in that decision. In any event, the Court notes that the applicant has not relied on any other situation where such a request was made by a party and had been successful. Thus, in these circumstances, the Court has no element to consider a request for abstention as an appropriate and effective remedy under the domestic law.<\/p>\n 62.\u00a0\u00a0In these circumstances, the Court considers that the applicant did not exhaust the available domestic remedy provided by law. It follows that this complaint must be rejected for non\u2011exhaustion of domestic remedies pursuant to Article 35 \u00a7\u00a7 1 and 4 of the Convention.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Declares the application inadmissible.<\/p>\n Done in English and notified in writing on 10 January 2019.<\/p>\n Abel Campos\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Linos-Alexandre Sicilianos
\nRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n