FIRST SECTION
DECISION
Application no. 24705/16
Paolo BERARDI against San Marino
and 2 other applications
(see appended table)
The European Court of Human Rights (First Section), sitting on 2 May 2017 as a Chamber composed of:
Linos-Alexandre Sicilianos, President,
Kristina Pardalos,
Aleš Pejchal,
Krzysztof Wojtyczek,
Armen Harutyunyan,
Tim Eicke,
Jovan Ilievski, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix. When they lodged their applications they were serving prison sentences. At the time of the facts the first and the second applicant were officials responsible for the supervision of safety on construction sites (Sicurezza Antinfortunistica). The third applicant was a notary and lawyer by profession.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Parliament commission on organised crime
3. By Law No. 107 of 22 July 2011, the parliament of San Marino (Consiglio Grande e Generale) established a commission of inquiry (“the commission”) to investigate organised crime in the country (Commissione consigliare sul fenomeno delle infiltrazioni della criminalita’ organizzata). On 27 September 2011 Parliament gave the commission the specific task of investigating the existence of any collusion between politicians and company F. a fiduciary company which had been traced back to the third applicant.
4. The commission produced a report, chapter two of which was devoted entirely to criminal collusion between company F. and various officials. It highlighted the existence of a well-established corrupt practice of representatives or employees of certain named constructing companies which bribed public officials responsible for overseeing construction site safety (Sicurezza Antinfortunistica) to omit to carry out compulsory safety checks on companies allegedly connected with the above-mentioned company F.
5. The commission interviewed witnesses and published anonymised summaries of their statements in the final report. According to the commission, it had to keep the sources anonymous and make some parts of the testimony secret in order to encourage witnesses to disclose everything they knew.
6. On 12 September 2012 the commission presented the final report to Parliament, which approved it and published the redacted version (in which parts of the text were obscured for legal or security purposes) on its website.
7. On an unspecified date a full version of the recordings and transcripts of the witness testimony were sent to the Chief Justice (Magistrato Dirigente) so she could send the file to an investigating judge. The judge had to ascertain whether the facts which had emerged gave rise to any criminal charges.
2. The investigation
8. After the communication of the commission’s report to the Chief Justice two different criminal investigations were instituted. The first, No. 677/RNR/2012 was instituted ex officio on an unspecified date. The second, No. 678/RNR/2012, was begun on 20 September 2012 after a criminal complaint was lodged on 19 September 2012 by the director of the Social Security Institute (“the ISS”), who, among other responsibilities, was in charge of supervising safety measures at work. The director attached part of chapter two of the commission’s final report to his complaint.
9. The two investigations were assigned to the same investigating judge (Commissario della Legge Inquirente), who ordered both files to be classified under Article 5 of Law No. 93 of 2008. No reasons were given for such decisions. At that stage of the proceedings the case file contained the ISS director’s criminal complaint and sections from the second chapter of the commission’s report.
10. On an unspecified date the investigating judge, who had access to the full version of the commission’s report, complemented the case files with extracts from the testimony to the commission (estratti verbali riassuntivi) of two witnesses, namely I.U. and a co-accused, M.
11. The third applicant became involved in the proceedings after accusations against him by M., who had been the director of one of the construction companies involved. However, M. considered himself to be solely a frontman for the third applicant (prestanome). In particular, M. had testified that the person who had given him the task of bribing the officials had been a certain M.P., but in his view the third applicant must have been aware of the acts of bribery given his de facto leading role in the construction companies involved.
12. On 24 September 2012 the investigating judge questioned Z., a partner in company S., another of the companies allegedly linked to the third applicant (as de facto director). She admitted that she had, on behalf of company S., delivered envelopes containing money to unidentified public officials in exchange for avoiding safety checks. She testified that she had acted under instructions from the third applicant.
13. On 26 September 2012 the investigating judge questioned M., who confirmed all the statements he had made to the commission but stated that he wanted to clarify some issues. In particular, he changed what he had earlier said about the third applicant, saying now that he had received instructions to bribe officials directly from him.
14. The testimony also differed in other respects, including the alleged sums of money that, according to M., had usually been given to bribe the officials. Asked by the judge for the reasons of the differences between the two testimonies M. responded that he had probably got confused during the questioning by the commission. Moreover, he added various details regarding his role in the companies allegedly traceable to the third applicant. He also identified (through some pictures the judge had shown him) the first and the second applicant as being the two public officials who received the money.
15. On 28 September 2012 the investigating judge decided to join the two proceedings.
16. On 10 October 2012 the investigating judge ordered that the transcripts of the testimony of I.U., M. and M.P. to the commission be substituted with redacted copies of them.
17. On 15 October 2012 the investigating judge ordered the declassification of the file, which now contained redacted copies of I.U., M. and M.P.’s testimony to the commission, the full transcripts of M. and Z.’s testimony to the investigating judge, extracts from M. and I.U.’s testimony to the commission and the above-mentioned chapter two. He also summoned the third applicant to be officially charged with bribery.
18. On 18 October 2012 the investigating judge questioned the third applicant. He stated that he had absolutely no involvement with the facts giving rise to the charges of bribery. He noted that his only role in the companies under investigation had been general financial planning.
19. On 15 December 2012 the investigating judge ordered the indictment (rinvio a giudizio) of the applicants and other persons, for continuous bribery under Articles 50, 73 and 373 of the Criminal Code. In particular, the first and the second applicant were charged with periodically receiving sums of money in cash in order to omit to carry out the duties, in particular by failing to inspect the construction sites of the companies controlled by the third applicant and abstaining themselves from sanctioning violations and irregularities found in such companies. The first and second applicant were charged in respect of events up to 1 January 2010 (no start date was mentioned).
20. The investigating judge submitted a list of ten witnesses to be heard in adversarial proceedings (I.U., C.G., M.M., F.M., L.D.G., F.F., C.M., V.C., M.B., and P.M.) along with the indictment.
3. The trial
21. On 19 and 20 June 2013 the first and second applicant’s defence team submitted two written applications to have seventy-five witnesses heard at the trial.
22. On 24 June 2013, during the first hearing, the third applicant applied to have access to the complete transcripts of his statements to the commission, as well as those made by the co-accused (M.B., Z., M., M.P.), S.F., M.F. and by the prosecution witnesses (F.F., F.M., L.D.G., C.G. and I.U.), who had been indicated and summoned in the indictment decision. The third applicant argued that such a measure was necessary in order to test the witnesses’ credibility and the first and the second applicant joined the application. They argued that it was necessary to make sure that the members of the commission had not influenced the witnesses’ testimony. It transpired from the partial transcriptions made available to the applicants that some members of the commission had told some witnesses that they were already in possession of evidence of bribery. However, no such evidence had appeared in the case file.
23. The Attorney General (Procuratore del Fisco) objected to the application, arguing that the redacted transcripts were already in the case file and that the same witnesses had also been questioned by the investigating judge.
24. The trial judge rejected the application for disclosure of the files. He considered that the commission’s conclusions were irrelevant to the proceedings as they had solely had the purpose of notifying the investigating judge that a crime had been committed. He also refused to hear the seventy-five witnesses requested by the first and the second applicant. He considered that they had not substantiated why such witnesses were relevant, which was all the more important because the application had concerned so many of them.
25. During the same hearing the judge allowed an application by the third applicant’s defence to hear oral testimony from other witnesses.
26. On 3 October 2013 the first and the second applicant asked the judge to allow testimony from thirty-seven witnesses, selected from the seventy‑five previously requested, this time explaining their relevance to the case.
27. By a decision of 17 October 2013 the judge decided to hear nine of the witnesses, but rejected the rest as irrelevant to the proceedings and overabundant.
28. On 19 November 2013 Z. was cross-examined before the first‑instance judge. She withdrew the statements against the applicants she had made earlier to the investigating judge. She testified that she had never given money to anyone and that her previous statement had been the result of her being angry with the third applicant for private reasons. Having heard rumours about accusations against the applicant, she had wanted to corroborate them given her personal resentment against him.
29. The prosecution witnesses, I.U., C.G., M.M., F.M., L.D.G., V.C. and M.B., were questioned on the same day and most of them testified that they had worked on the construction sites at issue and had been given shares in the company free of charge. They also testified that they had never seen any inspections being carried out at the sites. Furthermore, I.U., who at the time of the facts was the secretary and accountant at one of the companies involved, testified that she had put various sums of money into envelopes, which she passed on to M., who made arrangements to deliver them to the officials. I.U. also stated that she had kept a record of the various cash withdrawals on a sheet of paper and that she had been told that the money was needed to pay consultancy fees.
30. On 21 and 28 January 2014 twenty defence witnesses called by the third applicant and other defendants (not the other applicants), were questioned in adversarial proceedings.
31. On 14 April 2014, M. gave a third version of the events to the first‑instance judge, which differed in some respects from his earlier statements. He repeated the substance of the accusations against the applicants but changed some details regarding his own position. The third applicant’s defence lawyer asked M. whether he had been questioned by the commission and if so what he had testified. The third applicant testified on the same date.
32. On 30 April 2014 the first and second applicant were questioned.
33. On 19 September 2014 the first-instance judge found all the accused guilty of the continuous offence of bribery, including the applicants. The first and the second applicant were sentenced to five years and six months’ imprisonment, a four-year prohibition on holding public office and exercising political rights and a fine of 25,000 euros (EUR). The third applicant was sentenced to five years’ imprisonment, prohibited from holding public office and exercising political rights for three years and eight months and fined EUR 22,500.
34. In particular, the judge pointed to the third applicant as being the de facto dominus of the companies under investigation and found that he had been responsible for giving orders and instructions to the various formal directors of the companies to bribe the first and the second applicant in order to avoid safety checks at his companies’ construction sites.
35. The judgment referred to: (i) I.U.’s testimony to the first-instance judge in adversarial proceedings; (ii) the statements of the accomplice, M., also made to the first-instance judge in adversarial proceedings, where he confirmed most of his testimony to the commission and the investigating judge; and (iii) Z.’s original statements to the investigating judge before retracting them when speaking to the first-instance judge in adversarial proceedings.
36. The court found that the testimony of those three people had been corroborated by bank accounts showing disbursements, the sums of money deposited by the first and second applicant in their bank accounts in the relevant years (2005-2012), and the testimony of another person, M.M., who had stated that she had often seen the officials come to the office to meet M. for very brief periods. Moreover, M. and Z.’s original testimony had been coherent and mutually corroborative. The statements had also been concordant with the testimony of I.U. and her expenditure sheet, as well as with M.M.’s statements. According to the trial judge the fact by itself that Z. had retracted her statements did not nullify her previous submission if there was nothing to show that her statements at the pre-trial stage had been false. He noted that the version of events she had given during the trial did not tally with other witness statements and her excuse -that she had lied the first time because of a grudge against the third applicant- was very vague and contrasted with the detailed statements she had made at pre-trial.
37. The judge held that the offence had to be classified as direct bribery (corruzione propria) under Article 373 § 1 of the Criminal Code as the first and second applicant had been exercising discretionary powers arising from their office while carrying out the criminal acts. In particular, the exercise of discretion while consciously violating the rules pertaining to it had to be considered as acts that were contrary to the duties arising from their office. The fact therefore that the first and second applicants had agreed to refrain from exercising their discretionary powers or to do so in an aberrant way in exchange for money constituted direct bribery.
38. The judgment also found as incomprehensible and irrelevant the defence request to ascertain whether the commission had respected the rules of criminal procedure during the hearing of the witnesses. According to the judge, the alleged illegitimacy of the commission hearings could only have had an effect on the criminal proceedings if they had been relied on as evidence, however, they had been used solely to initiate the criminal proceedings (notitia criminis).
4. The appeal proceedings
39. On 10 October 2014 the third applicant lodged an appeal against the first-instance judgment, inter alia, on the basis that the trial had failed to comply with his right of defence and the principle of equality of arms. According to the applicant, the fact that almost all the investigation had been kept secret from the defence had frustrated his right to know of and to take part in the examination of witnesses whose declarations had been considered essential in order to find him guilty. He also complained of not having had access to the full transcripts of his statements to the commission and to those made by some other witnesses (see paragraph 22 above). The applicant argued that disclosure of such evidence had been relevant in order to test the credibility of the testimony to the investigating judge and first‑instance judge. In that connection, he noted that the statements to the commission had been made at a much earlier date, when criminal proceedings had not yet been instituted, and thus were more reliable. Moreover, he asked to have access to the second chapter of the commission’s final report (containing, inter alia, a summary of the statements made by the anonymous witnesses), the full transcript of those statements and the disclosure of those people’s identities.
40. On 13 February 2015, the first and second applicant also appealed, requesting access to the commission’s files in their entirety and the questioning of various witnesses, including all the commissioners. They further questioned the credibility of M.’s testimony and the fact that Z. had retracted the statements which had been relied on by the trial judge. They complained that before the passing of Law no. 92 of 17 June 2008 there had been no provision for the crime of “bribery inducing omission” (corruzione per omissione, that is, a form of bribery where an official is paid to omit to carry out or to delay a legitimate act arising from his or her office, hereinafter referred to as “bribery inducing omission”), thus at most they should have been charged with indirect bribery (corruzione impropria), which carried a lighter penalty (by one degree/punishment bracket). However, they had been accused of bribery inducing omission in relation to facts which had arisen before the law had come into force.
41. In a submission of 2 April 2015 the third applicant, inter alia, specified the reasons for his disclosure request. He criticised the fact that some of the testimony to the commission that had been only partially disclosed had become part of the criminal proceedings. That had occurred because such statements had been explained and confirmed by witnesses during the proceedings. Moreover, he lamented the fact that the lack of disclosure had deprived the defence of detailed knowledge of certain items of evidence, resulting in a violation of the right of defence.
42. By a judgment filed in the registry on 12 January 2016 the Judge of Criminal Appeals (Giudice d’Appello Penale) upheld the first-instance judgment in the part relating to the applicants, but reduced the sentence. The first and second applicant had their sentences reduced to five years’ imprisonment, a four-and-a-half-year prohibition on holding public office and exercising political rights and a fine of EUR 20,000. The third applicant’s sentence was reduced to four years and six months’ imprisonment, a prohibition on holding public office and exercising political rights of three years and six months and a fine of EUR 15,000. The judge did not apply the increased penalty provided for by Article 50 of the Criminal Code (for a continuous offence), which had been applied by the first-instance judge, because the first-instance judge had not indicated the specific extent of the increased penalty he had applied, solely stating that the penalty had been determined with regard to the several acts of corrupt conduct.
43. The Judge of Criminal Appeals acknowledged the applicants’ right, in general, to have access to the complete transcripts of the commission’s sessions in order to object to possible abuses of procedure concerning the witnesses and other persons involved. However, he refused to give the applicants access to all the documents because the gathering of such evidence was no longer possible at the appeal stage, when the judge had to balance the accused’s right of defence and his or her right to a fair hearing within a reasonable time. In doing so, the judge had to consider the concrete effect that the information requested would have on the proceedings and could admit only new evidence which could possibly have an impact on the final decision of the case on the merits. However, in the case at hand, all the applicants had requested a “merely exploratory activity”, namely a general integration of all the evidence, without specifying the reasons. In conclusion, the judge considered that the commission’s file was irrelevant to the proceedings since M. and I.U.’s testimony had been subjected to cross‑examination at trial. The applicants had thus been able to reconstruct the process of gathering the witness statements. It was unclear in what way the disclosure of other transcripts or parts of statements made to the commission could influence the statements made at trial. The judge further considered that M. and Z.’s accusations against the applicants had been credible and coherent and had not been contradicted by any of the other witness statements during the proceedings.
44. In addition, it was of no relevance that I.U. had always referred to the two public officials without identifying the first and the second applicants since, according to all the relevant testimony, she had never had direct contact with them.
45. It was further noted that the bank account deposits made by the first and second applicant indirectly indicated their guilt. The evidence adduced by the first and second applicant, or that which they had applied to submit but which had not been allowed at first instance, was not sufficient to disprove any inferences based on that situation. Indeed, there was no explanation as to why the first and second applicant had regularly deposited money in their bank accounts when there had been a real estate and construction boom or why the deposits had then declined after a crisis in the sector in general, and more specifically after one that had affected the companies concerned. In the light of the clear evidence of payments having been made to the first and second applicants, there was no need to enter into a detailed analysis of their role on the construction sites.
46. In connection with the first and second applicants’ complaint concerning the principle of nullum crimen sine lege, the Judge of Criminal Appeals noted that the case did not concern multiple crimes. The only crime at issue was bribery resulting from the pact struck (patto corruttivo) between the third applicant and the first and the second applicant. That pact had involved, on the one hand, a promise not to create problems for the construction companies in question, that is, favourable treatment for friends, and, on the other hand, it had been done in exchange for the making and receipt of regular payments of money. Such favouritism had had specific corresponding rewards according to comparative tables adjusted for the purpose. Indeed the duration of the pact had required various amendments to the applicable tariffs, which had also depended on the rotation of the people and companies involved. However, it had consisted of one crime (unicita’ di reato) perpetrated over time, as each payment resulting from the original pact meant the renewal of the pact. In connection with the date on which the punishable act had been committed (tempus commissi delicti), with all the elements of the offence being present, the court considered that the period in question was the whole time from the initial pact and lasting throughout the execution of each act constituting its renewal. The prolonged nature of the act in question had had various consequences: (i) third persons who had not been involved in the original pact had nevertheless become accomplices in the offence of bribery; (ii) limitation periods had to start running from the date of the last payment involving the accused and (iii) as in the case of continuing offences, an amendment to the relevant law during the period of the crime had to be applied also to the continuous offence of bribery of which the applicants had been accused.
47. The court noted that if the acts ascribed to the first and second applicants had amounted to bribery inducing omission (that is a private “corruptor” had paid the public officials to fail to do their duty), then it was true that such acts could have been considered as not constituting a crime at the time, or more precisely, that they had constituted the offence of indirect bribery, covered by paragraph 2 of the old law. However, that was not the case as the applicants had also carried out acts which were contrary to the duties of their office, which was covered by the “old” Article 373. According to the Judge of Criminal Appeals, the amended Article 373, which expressly provided for the crime of direct bribery to include the promise of an omission or payment for a past omission, did not create a new crime but amounted solely to a more serious legal classification of acts which already constituted a crime. The change in the law was therefore irrelevant in the first and second applicants’ case.
48. In conclusion, the judge dismissed the idea that the acts for which the first and second applicants had been found guilty should have been classified merely as bribery inducing omission (formerly indirect bribery then qualified as direct bribery after the entry into force of the new law). That was because the applicants had not only been found guilty of omission of acts arising from their office, but also of having a general attitude of favouritism towards the companies de facto controlled by B. by sometimes not carrying out the necessary safety checks, doing fewer than necessary or ignoring possible irregularities. In doing so, they had been acting contrary to the duties related to their office in the interests of a private corruptor. It followed therefore that the more limited formulation of Article 373 before 2008 also covered the facts of the applicants’ case.
B. Relevant domestic law and practice
1. San Marino fundamental human rights charter
49. Article 15 § 4 of Law No. 59 of 8 July 1974, as amended by law No. 36 of 26 February 2002, the San Marino Charter of Fundamental Human Rights (Dichiarazione dei Diritti dei Cittadini e dei Principi Fondamentali dell’Ordinamento Sammarinese), in so far as relevant, reads as follows:
“Punishments ... may only be handed down by a judge established by law, on the basis of non-retroactive laws. The retroactive application of a law is only provided for when such a law is more favourable.”
2. The Criminal Code
50. The provisions of the Criminal Code pertinent to the present case, in so far as relevant, read as follows:
Article 3 (non-retroactivity of the criminal law)
“Nobody can be punished for an act which, at the time it was committed, did not constitute an offence, or by a penalty harsher than the one provided for by the law in force at that time...”
Article 50 (continuous offence)
“Whosoever, through one or more acts or omissions, commits multiple violations of the same criminal provision, connected by the same criminal plan, shall be punished by the penalty provided for the most serious violation, increased as appropriate, taking into account the number and the entity of the offences, but not exceeding the maximum of the sentencing bracket (grado). However, if the most serious violation is already punishable by the maximum penalty, then the maximum penalty by which it can be increased is that of the maximum of the next sentencing bracket.
Article 55 (time of commission of the offence)
“For the purposes of the period of limitation ... an offence shall be considered as having been committed at the time the criminal activity ends or on the day on which ... its continuation ends ...”
51. In judgment no. 5 of 4 November 2015 (criminal proceedings no. 25/RNR/2015), the Third-Instance Criminal Judge stated that the rule under Article 55 on the limitation period also applied for the purposes of the non-retroactivity of a criminal provision and the retroactivity of more favourable criminal provisions.
Article 81 (imprisonment)
“Imprisonment has the following degrees:
(3) from two to six years;
(4) from four to ten years.”
Article 82 (prohibitions)
“Prohibitions have the following degrees:
(3) from one to three years;
(4) from two to five years.”
Article 85 (daily fine)
“As to the daily fine (multa a giorni), the sum (of money) to be paid is provided by law with reference to a number of days between a minimum and a maximum. It is up to the judge to determine in the specific case the sum of money corresponding to one day of fine, on the basis of how much the person found guilty can save daily while living frugally and fulfilling the possible burdens for his family’s upkeep.
The daily fine has the following degrees:
(2) from ten to forty days;
(3) from twenty to sixty days.”
Article 373 (bribery (corruzione)) (prior to 2008)
“(1) A public official who receives, for his own benefit or that of others, any undue profit or a promise of such in order to carry out an action contrary to the duties arising from his functions is to be punished by imprisonment and a prohibition on holding public office and exercising political rights of the fourth degree as well as by a fine of the third degree.
(2) The punishment shall be reduced by one degree if the act carried out was one arising from his functions.
(3) The punishment indicated in the previous paragraphs shall also be applied to those who give or promise undue profit.”
52. According to domestic legal literature, bribery inducing omission was covered by the old wording of Article 373 § 1 of the Criminal Code (direct bribery) (see Alvaro Selva, Commento al Codice Penale della Repubblica di San Marino, p. 430, Istituto Giudirico Sammarinese, Studi e Ricerche 3, 2007).
53. Paragraph 1 of Article 373 of the Criminal Code, as amended by Article 79 § 1 of Law No. 92 of 17 June 2008, reads in so far as relevant as follow:
Article 373 (bribery (corruzione)) (post-2008)
“A public official who receives, for his own benefit or that of others, any undue profit or a promise of such in order to omit or delay or after having omitted or delayed any duty pertaining to his office (function), and thus to carry out or to have carried out an action contrary to the duties arising from his functions, is to be punished by imprisonment and prohibition on holding public office and exercising political rights of the fourth degree as well as by a fine of the third degree.”
3. Law No. 93/2008
54. Law No. 93/2008 concerning criminal procedural rules and the confidentiality of criminal investigations, in so far as relevant, reads as follows:
Article 3 (right to defence)
“Except in the cases mentioned in Article 5 below, the investigating judge carries out all the investigating activity in general, as well as that related to the collection of evidence and, particularly, its composition (formazione), while safeguarding the rights of the accused and the prerogatives of the Attorney General (Procuratore del Fisco) as well as the rights of private parties as protected by criminal law.
The accused, assisted by a legal representative, and the Attorney General have the right to present their defence by means of submissions and pleas. They may also examine, and make copies of all the acts in the proceedings, including the criminal complaint. The investigating judge must ensure that the parties can participate or be represented at each stage of the investigative proceedings.”
Article 5 (investigation and acts and results of inquiry in connection with the temporary secrecy/classification regime or the urgency regime)
“(1) Where there are specific reasons of an exceptional nature which may lead to the conclusion that the whole investigation can only be carried out successfully if carried out under a regime of secrecy/classification, the investigating judge may by means of a reasoned decision order that the regime of temporary secrecy be applied, thus derogating from the provisions of Article 3 and 4 above.”
(2) The same procedure applies when only some of the acts should be subject to a temporary secrecy regime, or when the necessity for such a regime appears subsequently.
(3) The temporary secrecy regime applied to the investigation and the acts of inquiry ... may last only for as long as is strictly necessary for the performance of the relevant acts; in any event, it may not exceed six months from the registration of the criminal complaint, which may be extended only once, by a period of three months maximum, if there exist serious reasons for so doing.
(4) In cases where the secrecy regime has been applied to an investigation, the time limits for the judicial notice start to run after the ending of such a regime.
(5) When the secrecy regime applies only in part, the judge, through the registrar, provides for the reserved custody of such documents, as well as the order providing for such a regime, in a separate file, until they have been completed (completamento degli atti).
(6) In the event of the acquisition of urgent evidence to which the secrecy regime does not apply, and in respect of which notification of the parties is mandatory, the investigating judge must notify the judicial notice to the accused and the Attorney General if that has not already been done ....
(7) In the event of the secrecy regime being applied to an investigation in which the investigating judge has called for judicial assistance from foreign authorities, the time limit for a regime of the kind mentioned in paragraph 3 is suspended from the day the letter of request has been sent until receipt of the reply.”
4. Relevant domestic case-law
55. By final judgment no. 26 of 2013 (criminal proceedings no. 765/RNR/2010) in a case concerning ongoing money laundering, the Judge of Criminal Appeals stated that a continuous offence had to be considered as a single offence (at least in respect of the effects it had). According to the judge, that opinion had been confirmed by the fact that in San Marino, as distinct from other systems of criminal law which provided for continuous offences (for instance, in Italy), a continuous offence could be constituted only from multiple violations of the same criminal provision (and not by the commission of different offences). Moreover, while the relevant Article of the Italian Criminal Code provided for the existence of the same criminal scheme (medesimo disegno criminoso), in San Marino the actions had to be connected by the same criminal plan. Behaviour constituting a continuous offence had to be considered by the accused as the execution of a deliberate, previous plan, while actions which had not been regarded by the accused as being components of the plan should not be covered by the classification of a continuous offence.
COMPLAINTS
56. The first and second applicants complained under Article 6 § 3 (b) of the Convention and the third applicant complained under Article 6 § 1 taken in conjunction with Article 6 § 3 (b) that they had been denied equality of arms since they had not been granted full disclosure of the commission’s file in the course of the proceedings.
57. All the applicants also complained under Article 6 § 3 (d) of the Convention that they had been denied the right to examine witnesses in adversarial proceedings.
58. The first and second applicant complained under Article 6 § 3 (d) that their requests to question witnesses had been denied by the domestic courts on the grounds that they had not explained how those witnesses had been relevant to the case.
59. The third applicant complained under Article 13 that he had been denied the right to an effective remedy because the Judge of Criminal Appeals had acknowledged in his judgment that had had the right to full disclosure of the commission’s file, but had nevertheless failed to protect that right as he had not ordered such disclosure.
60. The first and the second applicant, invoking Article 7 of the Convention, complained that the law had been applied retroactively to their disadvantage as they had been found guilty of bribery in accordance with the wording of a criminal provision that had not yet been in force at the time of the facts.
THE LAW
A. Joinder of the applications
61. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join application nos. 24705/16 and 24818/16, given their similar factual and legal background.
B. Article 6 § 1 in conjunction with Article 6 § 3 (b) of the Convention
62. The applicants complained that they had not been granted a fair hearing and had not had adequate facilities for the preparation of their defence. The relevant provision reads as follows:
“1. In the determination ...of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
3. Everyone charged with a criminal offence has the following minimum rights:
(b) to have adequate time and facilities for the preparation of his defence”
63. The applicants complained they had been denied equality of arms with the prosecution since the commission’s investigation file had not been made available to them in full, despite it being the basis for the charges against them. In particular, their applications to have access to it during the criminal proceedings had been denied at both first and second instance. They argued that they had not had the possibility to attend the commission’s questioning of the witnesses who had later testified against them. Furthermore, since they had not been able to have full knowledge of what the witnesses had testified exactly, because the full transcripts of the commission’s hearings had been classified, they had not been able to make submissions in that regard. Moreover, the applicants noted that during the questioning of M. and Z. the investigating judge and the judge on the merits had referred on various occasions to statements to the commission made by witnesses, which had not been disclosed to the applicants.
64. The Court reiterates that the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1. The Court will therefore examine the relevant complaints under both provisions taken together (see Kornev and Karpenko v. Ukraine, no. 17444/04, § 63, 21 October 2010).
65. Article 6 § 3 (b) of the Convention secures to everyone charged with a criminal offence the right to have adequate time and facilities for the preparation of his defence. The “facilities” to be provided include the right to an adversarial trial which means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of, and comment on, the observations filed and the evidence adduced by the other party. In addition, Article 6 § 1 requires that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused (see Rowe and Davis v. the United Kingdom [GC], no. 28901/95, § 60, ECHR 2000 II).
66. Nevertheless, the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6 § 1. Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (see Simon Price v. the United Kingdom, no. 15602/07, § 100, 15 September 2016 and Fitt v. the United Kingdom [GC], no. 29777/96, §§ 45-46, ECHR 2000 II).
67. In cases where evidence has been withheld from the defence on public interest grounds, it is not the role of this Court to decide whether or not such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them. In any event, in many cases, where the evidence in question has never been revealed, it would not be possible for the Court to attempt to weigh the public interest in non-disclosure against that of the accused in having sight of the material. It must therefore scrutinise the decision-making procedure to ensure that, as far as possible, it complied with the requirements to provide adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused (see Natunen v. Finland, no. 21022/04, § 41, 31 March 2009).
68. Turning to the present case, the Court notes that the decisions on the application for the full disclosure of the commission’s work were taken by the first-instance judge and the Judge of Criminal Appeals. The applicants were therefore accorded a regular judicial procedure to decide on the disclosure request and they were able to file submissions in that regard.
69. The Court is thus satisfied that during the trial the defence were kept informed and were permitted to make submissions and participate in the above decision-making process as far as was possible without revealing to them the material which the prosecution (represented by the investigating judge and later the Attorney General) sought to keep secret. The fact that the need for disclosure was at all times under assessment by the trial judge provided an important safeguard in that it was his duty to monitor throughout the trial the fairness or otherwise of withholding the evidence (see Fitt, cited above, §§ 48-49, and P.G. and J.H. v. the United Kingdom, no. 44787/98, § 71, ECHR 2001‑IX).
70. Furthermore, the applicants were not left totally unaware of the material since they had been provided with a summary or redacted versions of the witnesses’ statements to the commission and a summary of the anonymised form of the report (see paragraph 17 above). They were not given full access to the commission’s documentation, however, that documentation had never been part of the case file and was therefore external to the proceedings – its sole purpose had been to start the investigation as confirmed by the trial judge and Judge of Criminal Appeals (see paragraphs 38 and 43 above). More importantly, the Court notes that none of the undisclosed material was used against the applicants by the prosecution or the deciding judge (see, mutatis mutandis, Jasper v. the United Kingdom [GC], no. 27052/95, § 55, 16 February 2000, and P.G. and J.H., cited above, § 71) and that the judgment was based to a great extent on the testimony made during the trial in adversarial proceedings (see paragraph 35 above). The relevant evidence on which the prosecution and judge had relied had been only the statements the co-accused and the witnesses had made before the trial judge and Z.’s statement to the investigating judge. However, they had been provided to the applicants in full (see paragraph 17 above).
71. In reply to the applicants’ argument, the Court notes that it is true that at times during the investigation stage the investigating judge referred to the hearing before the commission, requesting confirmation of certain statements (see paragraph 13 above). However, the applicants’ defence had the possibility to comment on all of the above when examining the relevant witnesses at the trial. The same allegation was made against the deciding judge, but the Court observes that from its reading of the transcript of the trial it emerges that it was only the defence which at times referred to the commission file during the questioning of M. (see paragraph 31 above).
72. In conclusion, the Court considers that the proceedings complied with the requirements of adversarial proceedings and the principle of equality of arms, and that the applicants’ legal representatives had all the relevant material for the preparation of their defence. It follows that this complaint must be rejected as being manifestly ill-founded pursuant to Article 35 § 3 of the Convention.
C. Article 6 § 3 (d) of the Convention
73. All the applicants complained under Article 6 § 3 (d) of the Convention that Z. had retracted her statements during the trial, but that the judge had nevertheless taken account of her previous statements, which had been made during the investigation rather than in adversarial proceedings. Moreover, the first and the second applicant complained that their right to examine witnesses in their defence had not been granted under the same conditions as witnesses against them. The relevant provision reads as follows:
“3. Everyone charged with a criminal offence has the following minimum rights:
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”
1. Z.’s retraction
74. The Court reiterates that all the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to that principle, but they must not infringe the rights of the defence. As a general rule, Article 6 §§ 1 and 3 (d) requires that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage (see Manucharyan v. Armenia, no. 35688/11, § 46, 24 November 2016). Furthermore, Article 6 § 3 (d) leaves it to the internal courts to assess the credibility of witnesses. The Court’s task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair. This means that the Court cannot hold in the abstract that evidence given by a witness in open court and on oath should always be relied on in preference to other statements made by the same witness in the course of proceedings, even when the two are in conflict (see Doorson v. the Netherlands, 26 March 1996, § 78, Reports of Judgments and Decisions 1996‑II, and Bulfinsky v. Romania, no. 28823/04, § 46, 1 June 2010).
75. The Court further reiterates that normally, issues such as the weight attached by the national courts to given items of evidence or to findings or assessments in issue before them for consideration are not for the Court to review. The Court should not act as a fourth instance and will not therefore question under Article 6 § 1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 90, ECHR 2016 (extracts)).
76. With these principles in mind, the Court notes that even if the first‑instance judge based his judgment on Z.’s statements to the investigating judge (without the guarantees of adversarial proceedings), the applicants had the chance to cross-examine Z. at the trial (see paragraph 28 above).
77. The Court notes that when Z. retracted her accusations at the trial, the applicants’ defence were, at that stage, well aware of her conflicting statements (which had been disclosed to the applicants, see paragraph 17 above) and so they had the possibility to confront Z. in adversarial proceedings on the specific point of her retraction and to question her about the reasons for her making the incriminating statement. In the Court’s opinion the opportunity allowed to the applicants to undermine the probative value of that statement more than compensated for any alleged disadvantage which may have resulted from the fact that the statement had been made in circumstances in which they had been unable to challenge its veracity (see, in similar circumstances, Camilleri v. Malta (dec.), no. 51760/99, ECHR 2000).
78. In the light of the evidence before it, the Court considers that the first-instance judge’s decision to rely on Z.’s earlier statements and not on her retraction was not arbitrary or manifestly unreasonable since the domestic courts fully justified such a conclusion on the basis of the factual findings, the convergent statements of other witnesses and the lack of credibility of her retraction (see paragraph 36 above).
79. It follows that the domestic courts’ decisions on this point cannot be regarded as arbitrary or manifestly unreasonable. The complaint must therefore also be rejected as being manifestly ill-founded pursuant to Article 35 § 3 of the Convention.
2. The hearing of witnesses for the first and second applicant
80. The first and the second applicant complained that their application to question witnesses had been partly denied by the courts on the basis that they had not explained the relevance of those witnesses. In their view, that had been discriminatory as all the prosecution witnesses had been questioned, on the basis of a list presented in the bill of indictment which had not specified the reasons why those persons’ testimony had to be considered relevant. On appeal, the applicants had reiterated their request in respect of some of the witnesses and the Judge of Criminal Appeals had again rejected all the requests. Moreover, the first-instance court’s decisions not to question witnesses had been delivered without hearing the parties.
81. The Court reiterates that while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Garcia Ruiz v. Spain (GC) no. 30544/96 § 28 ECHR 1999‑I). Moreover, the above-mentioned article does not require the attendance and examination of every witness on the accused’s behalf, and it is accordingly not sufficient for a defendant to complain that he has not been allowed to question certain witnesses; he must, in addition, support his request by explaining why it is important for the witnesses concerned to be heard, and their evidence must be necessary for the establishment of the truth (see Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003‑V) and that the refusal to call witnesses was prejudicial to his defence rights (see Kapustyak v. Ukraine, no. 26230/11, § 89, 3 March 2016).
82. The Court notes that the first and second applicant asked at first instance for seventy-five witnesses to be questioned (see paragraph 21 above). The judge initially rejected the request in toto, considering that the applicants had not provided any reasons that could be used to assess the relevance of those witnesses (see paragraph 24 above). However, when the first and second applicants submitted a new request for thirty‑seven witnesses (out of the seventy-five) and explained their relevance, the judge agreed to hear nine of them (see paragraph 27 above), considering the others irrelevant to the facts of the case and overabundant. The Court notes that the two applicants gave no indication, either before the domestic authorities or this Court, as to whether the witnesses the judge declined to call would have had any impact on the final decision of the case, or why their evidence was necessary to establish the truth.
83. In the light of the evidence adduced by the applicants and given the fact that no useful information was provided to the Court in order to assess the relevance of the witnesses in question, and whether the refusal to hear them caused the applicants any prejudice, there is no room for questioning the domestic courts’ discretion.
84. As to the rest of the first and second applicants’ complaint, that prosecution witnesses were heard on the basis of a list attached to the bill of indictment, but that their relevance had not been specified, the Court observes that the prosecution called ten witnesses, at least five of whom had already been heard by the commission (see paragraph 20 above). It is not for the Court to speculate on the utility of those witnesses. It suffices to note that the applicants failed to indicate, why, if at all, the limited witness testimony called on by the prosecution was irrelevant. Furthermore, the Court notes that the applicants were allowed to call nine witnesses (and other witnesses were allowed on behalf of other parties). The circumstances thus do not disclose any appearance of inequity in the judge’s decision and it has not been shown that such a decision placed the accused at a disadvantage regarding the defence of their interests.
85. In conclusion, the complaint must be rejected as manifestly ill‑founded pursuant to Article 35 § 3 of the Convention.
D. Article 13 of the Convention
86. The third applicant complained that he had been denied the right to an effective remedy as the Judge of Criminal Appeals had acknowledged that the applicants had had the right to full access to the transcripts of the commission’s hearings, but had nevertheless failed concretely to protect that right by ordering the file to be disclosed to them. The relevant provision reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
87. The Court reiterates that the role of Article 6 § 1 in relation to Article 13 is that of a lex specialis, the requirements of Article 13 being absorbed by the more stringent requirements of Article 6 § 1 (see, for example, Société Anonyme Thaleia Karydi Axte v. Greece, no. 44769/07, § 29, 5 November 2009; Dauti v. Albania, no. 19206/05, § 58; 3 February 2009; Jafarli and Others v. Azerbaijan, no. 36079/06, § 55, 29 July 2010, and Urbanek v. Austria, no. 35123/05, § 70, 9 December 2010).
88. The Court has already examined above (paragraph 62 to 73) the complaint in connection with Article 6, and it follows that it is not necessary to examine the complaint under Article 13.
E. Article 7 of the Convention
89. The first and the second applicant complained that the law had been applied retroactively to their disadvantage as they had been found guilty of bribery and punished in accordance with the wording of a criminal provision that had not yet been in force at the time of the events. The relevant provision of the Convention, in so far as relevant, reads as follows:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”
90. The applicants argued that at the material time (before 2008) the specific crime of bribery inducing omission, namely a form of bribery in which an official illicitly received undue profit in order to refrain from or delay fulfilling a duty pertaining to his office, had not yet been provided for in domestic law. The offence of bribery inducing omission was introduced by the amendment of Article 79 of Law no. 92 of 17 June 2008.
91. The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of it to the respondent Government.
For these reasons, the Court, unanimously,
Decides to join application nos. 24705/16 and 24818/16;
Decides to adjourn the examination of the first and second applicants’ complaints under Article 7 of the Convention;
Declares the remainder of the above applications and application no33893/16 inadmissible;
Done in English and notified in writing on 1 June 2017.
Renata DegenerLinos-Alexandre Sicilianos
Deputy RegistrarPresident
APPENDIX
No.
Application no.
Lodged on
Applicant
Date of birth
Place of residence
Nationality
Represented by
24705/16
26/04/2016
Paolo BERARDI
27/08/1963
Dogana, San Marino
San Marinese
Alessandro Francesco PETRILLO
24818/16
27/04/2016
Davide MULARONI
23/12/1965
Faetano, San Marino
San Marinese
Alessandro Francesco PETRILLO
33893/16
07/06/2016
Livio BACCIOCCHI
23/06/1958
San Marino, San Marino
San Marinese
Simone SABATTINI
Full & Egal Universal Law Academy