EHRM, 01-06-2017, nr. 24705/16, nr. 24818/16, nr. 33893/16

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

On 28 September 2012 the investigating judge decided to join the two proceedings.

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.

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.

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.

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).

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.

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.

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.

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.

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.

During the same hearing the judge allowed an application by the third applicant's defence to hear oral testimony from other witnesses.

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.

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.

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.

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.

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.

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.

On 30 April 2014 the first and second applicant were questioned.

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.

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.

The judgment referred to:

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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:

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.

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.

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:

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)

Article 50 (continuous offence)

Article 55 (time of commission of the offence)

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)

Article 82 (prohibitions)

Article 85 (daily fine)

Article 373 (bribery (corruzione)) (prior to 2008)

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)

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)

Article 5 (investigation and acts and results of inquiry in connection with the temporary secrecy/classification regime or the urgency regime)

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.

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).

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)).

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).

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).

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).

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.

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.

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).

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.

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.

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.

In conclusion, the complaint must be rejected as manifestly ill-founded pursuant to Article 35 § 3 of the Convention.