GUIDI A OSTATNÍ proti San Marinu

FIRST SECTION

DECISION

Application no. 59052/19
Gianni GUIDI against San Marino
and 6 other applications
(see list appended)

The European Court of Human Rights (First Section), sitting on 8 April 2021 as a Chamber composed of:

Ksenija Turković, President,
Krzysztof Wojtyczek,
Alena Poláčková,
Péter Paczolay,
Gilberto Felici,
Lorraine Schembri Orland,
Ioannis Ktistakis, judges,
and Liv Tigerstedt, 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.

The circumstances of the case

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

1. The investigation

3. On an unspecified date the Civil Police (Polizia Civile) instituted an investigation concerning car accidents which had taken place in San Marino. It turned out that, over a period of eight years, members of the Guidi family (most of the applicants and others) had been the victims of nineteen accidents all of which (with one exception) had been settled amicably, without the intervention of the police, and in respect of which they had been reimbursed 277,556.12 euros (EUR). Further investigations revealed that other people involved in the accidents knew or had contacts, or were friends or partners, of the family members and that in most of the accidents the insurance claims had been prepared by the same company specialised in preparing insurance claims on behalf of clients, namely “L.G.R. infortunistica” (hereinafter ‘L.G.R.’). The insurers were almost always different companies (at least ten). According to the police, the cars involved were of little value and suffered little damage which could thus not be reconciled with the physical injuries claimed.

4. On 28 January 2016 the investigating judge called on the applicants and other persons involved in the accidents for questioning in relation to fraud to the detriment of insurance companies, and ordered the seizure of the relevant files from L.G.R.

5. On 15 June 2016, during questioning by the police, C., the driver of the vehicle which caused two of the accidents, started by describing the two accidents (as genuine ones). Later, having decided to cooperate with the police, he admitted that he knew the sixth applicant through work connections at a time when he was licensed with company O., and that the sixth applicant had asked him to fake an accident. C. stated that the sixth applicant had organised the methodology of the accident and that at the end of the working day the sixth applicant was waiting for him in street A. He explained that, when he arrived at the spot, he slightly rear-ended the sixth applicant’s vehicle and then they filled in the accident report (modulo CID). C. stated that he had been approached again for the same purpose by the sixth applicant three years later, in 2011. According to C., the sixth applicant organised the dynamics of the accident, once again it had been slight and they filled in the accident report on the spot. C. stated that he had not received any unjust profit and that he had only acted in such a manner as a favour.

6. On 29 June 2016 (and again on 27 July 2017) R. who was the dominus of L.G.R and Poliambulatorio Nettuno (hereinafter “the lab”), the medical laboratory which dealt with the injuries, was questioned and he denied any involvement.

7. On 7 July 2016, during questioning by the police, T., the driver of the vehicle which caused another two of the accidents admitted to the charges. T. stated that the accidents of 16 March 2010 and 9 April 2011 had been organised together with the sixth applicant, who had approached him suggesting that they simulate the accident given the sixth applicant’s dire financial situation. T. declared that the sixth applicant paid him EUR 100 in advance for the first accident, promising him more money at a later stage, but that nothing else had been paid to him after that. As to the second accident, T. declared that he received EUR 400 in advance and then never heard back from the sixth applicant. T. declared that the sums paid to him were paid in cash on the day of the simulated accident. He further stated that on both occasions it was the sixth applicant who had filled in the accident report at the location of the accident, and that he (T.) had limited himself to signing it. He specified that it had always been the sixth applicant who organised all the dynamics, including finding the passengers of the passive vehicle which T. was meant to bump into. According to T., in the two simulated accidents in which he had been involved, the sixth applicant was not inside any of the vehicles, but he would be at the location as the organiser of the accidents. T. stated that he knew nothing about the two passengers in the passive vehicle of the first accident, who never got out of the vehicle, nor did he know who was inside the vehicles in the second accident. In relation to the second accident, T. declared that the location written in the accident report was not correct. In reality the sixth applicant had made him go to a deserted area where he had bumped into another vehicle (whose brand he could not recall) several times so that the damage would be congruent with the physical damage to be claimed.

8. On 11 July 2016 the investigating judge ordered the seizure of the relevant medical, administrative and financial documentation from the lab.

9. On 26 August 2016 the minutes of the seizures as well as the declarations of the applicants and others, denying the charges, were added to the file.

10. On 3 November 2016 the investigating judge ordered the acquisition of the phone records of the persons involved.

11. Three doctors collaborating with the lab and who took care of the prognosis of the injured parties were also heard. They were not in a position to conclude whether or not the patients had simulated their injuries, as they had to rely on the patients’ input. They also could not recognise certain documents and bills presented to them, and they stated that they had had various problems of outstanding payments with R., but that they never received any payments from the patients themselves, which was not allowed.

12. The confessions of T. and C. were added to the file on 31 January 2017.

13. On the same date the police concluded that some of the accidents did not appear simulated, but this was not the case with the rest of the accidents which: had taken place in local unfrequented roads (where no other accidents had ever taken place); the drivers of the active vehicles were never injured; some of the passive vehicles were scrapped shortly after the accidents; most of the vehicles belonged to either T. or company O. (which was owned by C. and which employed most of the drivers of the active vehicles); the accidents had required the use of medical reports with the resulting profit for the lab – this was so much so that the lab was rendered devoid of activity when the Guidi family stopped its “activity”.

14. The police considered that serious doubts existed in relation to the doctors who assisted the lab and who, contrary to the initial prognosis of the first‑aid services (which never exceeded ten days of sick leave), repetitively increased the sick leave days based on injuries claimed (which did not coincide with the damage suffered by the vehicles). Moreover, those doctors prescribed unnecessary treatments solely to inflate their profits. It also could not go unnoticed that the injured parties often did not collect the medicine prescribed to them by the first‑aid services, showing that they had suffered no injuries if they had indeed been in the vehicles. In this respect they referred to T.’s testimony. It was thus, the view of the police, that there had been an established modus operandi between the lab, L.G.R. and the sixth applicant allowing them to obtain unjust enrichment to the detriment of the insurance companies. They further noted that in San Marino accidents were reimbursed four times as much as in Italy and that all this had come to an end precisely when the investigations had started.

15. Further, the police noted in its report that Stefano Guidi (the fifth applicant), a known sportsman in San Marino, had been involved in an accident on 17 October 2008 and granted forty‑five days of sick leave for inability to work and yet only thirty days after the accident he was participating in an international sport competition in Turkey. Similarly, following the accident of 29 January 2008, on 4 February 2008, Gianni Guidi (the first applicant) was prescribed to wear a collar for ten days and to rest for thirty days, yet according to documentation received by the armed forces (Comandante delle Milizie) he was at work the following day, on 5 February 2008.

2. The criminal proceedings
   1. The trial

16. On 5 June 2017 the applicants, T. and C. and other persons were indicted on the charges of fraud (continuous and in co‑operation) under Articles 50, 73 and 204 of the Criminal Code in so far as a certain R., as dominus of L.G.R and the lab, and Leo Guidi (the sixth applicant), as organiser of a group of relatives and friends, – together, and each time with other persons who had been drivers or passengers of the vehicles involved, and sometimes with the aid of third party experts – had operated a criminal scheme consisting of the simulation of car accidents for the purposes of making false claims to defraud the insurance companies, for a total of EUR 210,684.97.

17. In particular, and in so far as relevant, the applicants were charged as follows:

i) R. and the sixth applicant, together, and with, inter alia, Tiziana Guidi (the fourth applicant) who had been a passenger in the passive vehicle, in an accident of 7 July 2007 (hereinafter “accident no. 2”);

ii) R. and the sixth applicant, together, and with Gianni Guidi (the first applicant) as a passenger in the passive vehicle driven by the sixth applicant, and C. the driver of the active vehicle, in an accident of 29 January 2008 (hereinafter “accident no. 3”);

iii) R. and the sixth applicant, together, and with, inter alia, Marco Guidi (the third applicant) as passenger in the passive vehicle driven by the sixth applicant, in an accident of 10 September 2008 (hereinafter “accident no. 4”);

iv) R. and the sixth applicant, together, and with, inter alia, Marina Muscioni (the seventh applicant) as driver of the passive vehicle, Tiziana Guidi (the fourth applicant) and Stefano Guidi (the fifth applicant) as passengers of the passive vehicle, in an accident of 17 October 2008 (hereinafter “accident no. 5”);

v) R. and the sixth applicant, together, and with, inter alia, Gianni Guidi (the first applicant) as passenger in the passive vehicle driven by the sixth applicant, in an accident of 19 August 2009 (hereinafter “accident no. 7”);

vi) R. and the sixth applicant, together, and with, inter alia, T. as driver of the active vehicle in an accident of 16 March 2010 (hereinafter “accident no. 8”);

vii) R., the sixth applicant, together with others in an accident of 5 July 2010 whereby the sixth applicant had been the driver of the passive vehicle (hereinafter “accident no. 9”);

viii) R. the sixth applicant, together with Marco Guidi (the third applicant), driver of the passive vehicle, and Michela Fabbri (the second applicant) passenger of the passive vehicle and T., driver of the active vehicle in an accident of 9 April 2011 (hereinafter “accident no. 11”);

ix) R., the sixth applicant, together with, inter alia, Marina Muscioni (the seventh applicant) and Stefano Guidi (the fifth applicant), driver and passenger respectively of the passive vehicle, in an accident of 11 June 2011 (hereinafter “accident no. 12”);

x) R., the sixth applicant, together with, inter alia, Gianni Guidi (the first applicant) and C., the latter as driver of the active vehicle and the former as driver of the passive vehicle in an accident of 9 December 2011 (hereinafter “accident no. 13”);

xi) R., the sixth applicant, together with, inter alia, Tiziana Guidi (the fourth applicant) as passenger in the passive vehicle driven by the sixth applicant in an accident of 21 June 2012 (hereinafter “accident no. 14”);

xii) R., the sixth applicant, together with others in relation to an accident of 26 July 2012 in which the sixth applicant had been the driver of the passive vehicle (hereinafter “accident no. 15”);

xiii) R., the sixth applicant, together with Gianni Guidi (the first applicant) and I.O., the latter as driver of the active vehicle and the former as driver of the passive vehicle in an accident of 14 August 2013 (hereinafter “accident no. 16”).

18. The applicants received the following sums of money from their insurance:

The first applicant – EUR 7,890; EUR 10,000; EUR 18,700

The second applicant – EUR 6,200

The third applicant – EUR 14,764; EUR 10,205

The fourth applicant – EUR 12,718; EUR 7,100

The fifth applicant – EUR 9,120

The sixth applicant – EUR 16,100; EUR 12,538; EUR 13,735; EUR 5,195; EUR 3,500; EUR 1,547

The seventh applicant – EUR 14,300

19. Four insurance companies joined as civil parties.

20. At a first adversarial hearing on 23 February 2018 preliminary issues were discussed, oral evidence heard and documentary evidence produced.

21. On 12 March 2018 the doctors were heard as well as some of the staff of the lab and L.G.R. and the police officers (B. and P.) who recapitulated the reasons why they considered the accidents to be simulated (see paragraph 13 et sequi above). A certain S. also testified not to have seen the third applicant involved in an accident on 9 April 2011.

22. At the hearings of 29 March 2018 and 13 April 2018 other persons were heard including insurers and liquidators of damages as well as doctors working for insurance companies and other persons involved. A certain G. testified that on 16 March 2010 (date of accident no.8) he had seen two cars which appeared to have collided and two persons at the side of the road, one of whom was the sixth applicant’s brother, but that he had not seen the collision.

23. At the hearing of 9 May 2018 the lawyer for the first, fourth and sixth applicants stated that his clients would limit themselves to confirming their statements made at the investigation stage (denying the charges). A number of other accused, including the second and third applicants, were questioned at the hearing and they also denied the charges. In particular, the third applicant stated that he had filled in the accident report on 29 January 2008, and I.O. (involved in accident no. 16) testified that he knew the sixth applicant by sight, and that he had previously only stated that he had not known him because he had not understood the question. He explained that they were both truck drivers and they sometimes had coffee together and discussed truck‑related issues.

24. In his closing arguments the Attorney General considered that there was not sufficient evidence to show that R. was aware of the scheme, but that there was enough evidence, including the two confessions, to show that the sixth applicant was fully aware and it was he who had organised all the accidents. As for T. and C., he noted that in view of their useful and spontaneous confessions, and therefore the reduction of their penalty, the charges in their respect had become statute-barred. He noted that other charges in respect of some of the applicants had also become statute‑barred, namely, charges no. i and iv in relation to Tiziana Guidi (the fourth applicant), charges no. ii and v in respect of Gianni Guidi (the first applicant), charge no. iii in respect of Marco Guidi (the third applicant), and charge no. iv in respect of Stefano Guidi and Maria Musconi (the fifth and seventh applicants);

25. In his closing arguments the lawyer of the second, third, fifth and seventh applicants argued that there had been no detailed investigation into each accident and that apart from the two confessions of persons involved in the crimes, which he considered questionable, the evidence was weak in respect of his clients, and solely based on clues and anomalies. As to the confession of T., he stated that the latter had falsely declared that the accident report had been filled in by the sixth applicant. They had wished to bring proof of that but the court had not allowed it. He complained that since T. and C. did not appear for trial they had not been cross-examined to assess, for example, if there had been any hard feelings between them and the other accused persons, or as to why they had changed their position. He also referred to the third applicant’s statement that S. had been present at the scene recorded on the accident report, and that while S. testified that he did not remember the accident, he admitted to working in that location at that time, thus, contradicting the testimony of T. Their other lawyer also noted that the other accident had occurred before the existence of company O. (which was a different legal person to its predecessor). Further, he argued that the fact that C. claimed to know other involved persons was not relevant as it was quite common to know each other in the transport industry.

26. The lawyer for the first, fourth and sixth applicants also considered that not every accident had been properly investigated and that the testimonies of the co-accused were questionable.

2. The first-instance judgment

27. By a judgment of 9 May 2018 filed in the registry on 21 May 2018 the first‑instance judge acquitted R. of all the charges; acquitted the sixth applicant of charge no. xii, found him guilty of the remainder and sentenced him to three years’ imprisonment and a two-years’ ban on holding public office; discontinued the charges against T. and C. as they had become statute‑barred; discontinued the following charges against the applicants as they had become statute-barred (see paragraph 24 above), namely no. i and iv in relation to the fourth applicant, no. ii and v in respect of the first applicant, no. iii in relation to the third applicant, and no. iv in relation to the fifth and seventh applicants; found the second, third, fourth, fifth and seventh applicants guilty, each one of the one remaining charge against them (see paragraph 17 above) - sentencing them to two years’ imprisonment and a one-year’s ban on holding public office for each offence (suspended); and found the first applicant guilty of the two remaining charges against him (no. x and xiii) - sentencing him to two years’ and three months’ imprisonment and a one‑year’s ban on holding public office. The applicants and the other co‑accused were also ordered to pay, in solidum, civil damages (provisionally EUR 10,000 to each civil party) and costs in relation to the upheld charges.

28. The judge noted that in respect of the charges no. ii, vi, viii, and x there had been a confession of one of the persons involved in the accidents (T. and C.). While the defence lawyers had tried to discredit those confessions, the judge considered that they had not substantiated their challenge, in particular no reasons were advanced as to why there should have been any animosity between T. or C. and the accused persons; nor was there any reason why T. and C. would have lied, exposing themselves to a criminal conviction as well as to the payment of civil damages. Moreover, those confessions were coherent, in so far as both had stated that Leo Guidi (the sixth applicant) was the organiser and were compatible with the multiple other anomalies detected by the police, including the fact that the accidents had occurred in unfrequented streets which were not accident-prone.

29. In that light the judge considered that the arguments of the defence seemed immaterial – the fact that T. had declared that the accident report had been filled in by Leo Guidi (the sixth applicant) and not Marco Guidi (the third applicant – who claimed to have done so) was of little relevance, which was why no expert handwriting analysis of the photo copy had been ordered. In the judge’s view even assuming the accused Marco Guidi said the truth, and T. had been incorrect, such confusion was justified given that five years had passed between the incident and the police questioning, or else that he had got confused with the other accident (of 16 March 2010). Moreover, the question of who signed the accident report was a minor detail when compared to the rest of T.’s statement that “Leo Guidi made him go to a deserted area where he had bumped into another vehicle several times so that the damage would be congruent with the physical damages to be claimed”. Furthermore, the fact that S. confirmed to have been working at the location on the day of the accident was also irrelevant, not only had he not remembered the incident but, even assuming he had seen the two stationary cars, this did not deduct from the credibility of T.’s testimony. According to the judge, it could not be excluded that Marco Guidi (the third applicant) and Michela Fabbri (the second applicant) could have been on the location in order to be seen by S. and call him as a witness in case the insurance company enquired. The same applied to the testimony of G. to the effect that on 16 March 2010 he had seen two stationary cars at the location, but not the accident. Indeed, even assuming that there had been an impact between two cars, this would have been voluntary and not accidental, and thus G.’s testimony did not discredit T.’s testimony. Also the fact that C. had not mentioned the co-accused F., involved in the same accident of 9 December 2011, could be explained by the fact that F. had not been the organiser.

30. The judge considered that it was also irrelevant that the insurance companies had not realised they were being defrauded. What appeared to be significant was that following the accident of 29 January 2008, on 4 February 2008 Gianni Guidi (the first applicant) was prescribed to wear a collar for ten days and to rest for thirty days, yet the following day he reported to work. In the judge’s view, the fallaciousness of the accidents referred to in charges no. ii, vi, viii, and x was, thus, established.

31. As to the other accidents in respect of which there existed no confession, the judge considered that, on the one hand, it was true that an accident could take place in a deserted road amongst relatives or friends, with the use of old vehicles, which could - despite a slight impact - induce serious consequences only for the passengers in the passive vehicle, even if no prescribed medicines were collected, and in the absence of police presence. However, on the other hand, it was difficult to believe that such multiple accidents could occur with the same anomalies as those for which confessions existed.

32. The judge thus shared the considerations of the police, namely:

- The actors privileged unfrequented local crossroads, with low speed limits and a good view of the roads, where no other accidents took place (according to the database). It was therefore highly improbable that the same family had a series of accidents with severe consequences;

- The vehicles involved in seven of the accidents were driven or owned by T. or company O. (which was owned by C. and which employed most of the drivers of the active vehicles);

- The failure to collect the prescribed medicines, including pain killers which were free, could only mean that there had been no physical injuries and that the passengers had simulated their pains;

- The fact that in San Marino reimbursements were four times higher than in Italy;

- The police were not called to the scene of the accidents;

- Stefano Guidi (the fifth applicant), a known sportsman in San Marino, had been involved in an accident on 17 October 2008 and granted forty-five days of sick leave for inability to work and yet only thirty days after the accident he was participating in an international sporting competition in Turkey, during which he faired very well. Such a performance did not correspond to the physical injuries claimed;

- Gianni Guidi (the first applicant) was, on 4 February 2008, prescribed to wear a collar for ten days and to rest for thirty days, yet the following day he reported to work;

- Furthermore, the precarious employment held by some of the accused must have played a role in favouring such an illicit activity, which allowed them to make easy money. Indeed, Leo Guidi (the sixth applicant), involved in most accidents, repeatedly changed jobs, opening and closing undertaken activities.

33. In the judge’s view, the above considerations were equally valid in relation to charges no. i, iii, iv, v, vii, xi, and xiii. In relation to the defence arguments regarding the latter charge, the judge noted that I.O had first denied knowing Leo Guidi and then had changed his version. The judge considered that it was not credible that I.O. had not understood the question. Firstly, because he had not claimed during the interrogation that he could not understand Italian. Secondly, because he had shown the ability to use the verb “to know”. Lastly, because the financial difficulties he faced were a valid motive for his agreement with Leo Guidi.

34. In respect of charge no. xii, the judge was of the view that despite the presence of Leo Guidi, the accident could have been real, since it had occurred on the highway and caused severe damage to the cars involved.

35. In relation to everyone’s role in the fraud, the judge considered that there was no doubt about the participation of all the accused, apart from R., irrespective of the extent of their contribution to the organisation of the crime. There was also no doubt about the role of Leo Guidi as instigator and organiser of all the frauds but one (see paragraph 34 above). This was not solely dependent on the confessions of T. and C. designating him as the organiser of four accidents even though he had not been in those cars, but also by the fact that he himself had been involved in five accidents and by the fact that he knew the vast majority of the drivers of the vehicles involved. In view of his role and the chronological distance between each offence, as well as the same methodology and interest, the judge considered that Leo Guidi must have committed fraud in execution of an organised criminal plan (i.e. continuous offence of fraud), which was not the case for the other applicants. As a result, the charges in relation to the earlier accidents had to be discontinued as they had become statute-barred.

36. Similarly, in view of their useful and spontaneous confession, and the consequent decrease of eventual punishment, the charges against T. and C. had to be discontinued as they had become statute-barred.

3. Appeal

37. The applicants appealed. By a judgment of 17 April 2019 published on 29 April 2019 and notified to the applicants’ representatives on 9 May 2019, the Judge of Criminal Appeals confirmed the first-instance judgment only in part. It discontinued charge no. xiii in respect of the second and third applicant, and charge no. ix in respect of the fifth and seventh applicant, as they had become statute-barred. It confirmed, however, the order to pay costs and civil damages in connection with such charges as decided by the first‑instance court. It further upheld the remainder of the judgment, ordering inter alia, the first, fourth and sixth applicants to pay further costs in relation to their unsuccessful appeal.

38. On the merits, in so far as relevant, the Judge of Criminal Appeals considered that the first-instance court had examined in detail the confessions of T. and C., both in relation to the accidents they had taken part in, and in relation to the modus operandi of Leo Guidi, addressing any inconsistencies and finding that they did not taint their validity. In particular, the first-instance court gave reasons as to why the imprecisions contained in the confessions were irrelevant and replied to the defence arguments. As to the other charges, the first‑instance court had clearly examined the situation in a global manner, noting, however, the anomalies of each accident (other than those related to the confessions) which corroborated the prosecution’s case, particularly in the absence of any valid arguments by the defence. The Judge of Criminal Appeals shared the first‑instance court’s reasoning which it confirmed.

39. As to specific matters raised by each appellant, in so far as relevant, in respect of the claim by the sixth applicant that it was unlikely that the police had obtained the confessions only on 15 June 2016 and 7 July 2016, after all the other co-accused had made their statements, the Judge of Criminal Appeals considered such an argument to be inconclusive, and that the arguments in relation to the confessions were inadmissible in so far as they had already been examined and rejected at first instance. In respect of the challenge by the second, third, fifth and seventh applicants to the credibility of the confessions (given the imprecisions), the Judge of Criminal Appeals considered such a claim to be unfounded, in so far as it was possible and logical to rely on parts of such a statement, given that not all were of equal importance. Even assuming that certain statements made by C. had not been true, those statements were of no consequence to the crux of his admission that he arranged the accidents with Leo Guidi. It was credible even though he had only admitted once he realised that there would be no point to continue to deny the charges given the multiple clues (indizi) against him. Moreover, those confessions corroborated in a decisive way the series of clues against the sixth applicant, becoming of evidentiary value even in relation to the other accidents in respect of which there was not the same crushing evidence (blindatura probatoria).

40. The Judge of Criminal Appeals considered that while it was true that the sole fact that a person did not collect the prescribed medicine, or that the driver of the active vehicle was known to Guidi, was not sufficient on its own, given the connection between all the accidents they clearly had to be seen together in such a context. Moreover, the defence had not brought arguments against most of the anomalies indicated. Similar considerations were made in respect of the other accidents impugned on appeal where the arguments brought forward by the defence were found to be inconsequential.

3. Relevant domestic law

41. The relevant domestic law pertaining to the case is set out in Oddone and Pecci v. San Marino (nos. 26581/17 and 31024/17, §§ 57 and 61, 17 October 2019).

COMPLAINTS

42. The applicants complain under Article 6 §§ 1 and 3 (d) of the Convention that they had not had the opportunity to cross-examine T. and C. They also complain, relying on Article 6 § 1, that the domestic courts’ finding of criminal responsibility in relation to the charges for which there had been no confessions was based solely on clues, alleged anomalies and coincidences, which had no evidential value. They relied on Oddone and Pecci (cited above).

THE LAW

1. Joinder of the applications

43. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications given their similar factual and legal background.

2. Article 6 §§ 1 and 3 (d) of the CONVENTION

44. The applicants complain under Article 6 §§ 1 and 3 (d) of the Convention that they had not had the opportunity to cross-examine T. and C., whose confessions had been relied on by the domestic courts, either directly in the case of the sixth applicant or indirectly in the case of the other applicants. The applicants also complain, relying on Article 6 § 1, that the domestic courts held that criminal responsibility for charges no. ii, iv, vi and xiii had been grounded on those confessions (despite the applicants’ inability to cross-examine T. and C.) while in respect of the other charges it was based solely on clues, anomalies and coincidences. The latter had no evidential value and would not have been sufficient in the absence of the above-mentioned testimony, even more so concerning those applicants which had nothing to do with the charges in respect of which the confessions were made. They relied on Oddone and Pecci v. San Marino (nos. 26581/17 and 31024/17, 17 October 2019).

45. The provision, in so far as relevant, reads as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

3. Everyone charged with a criminal offence has the following minimum rights:

(d) to examine or have examined witnesses against him.”

46. The Court reiterates at the outset that the guarantees in paragraph 3 (d) of Article 6 of the Convention are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision (see Al‑Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011); it will therefore consider the applicants’ complaint under both provisions taken together (see Schatschaschwili, v. Germany, [GC], no. 9154/10, § 100, ECHR 2015).

47. The Court observes that, at the end of the proceedings, the domestic courts’ judgments resulted in:

- the first applicant’s being found guilty of charge no. x and xiii;

- the fourth applicant’s being found guilty of charge no. xi, the proceedings in relation to charge no. i having been discontinued at first instance as confirmed on appeal;

- the sixth applicant’s being found guilty of all the charges against him but one (no. xii);

- all the criminal charges against the second, third, fifth and seventh applicants being discontinued at first-instance (confirmed on appeal) or on appeal, following a finding that they were statute-barred (see paragraphs 27‑37).

1. Applications no. 59052/19, 59152/19 and 59157/19 (the first, fourth and sixth applicant respectively)
   1. General principles

48. The Court’s primary concern under Article 6 § 1 of the Convention is to evaluate the overall fairness of the criminal proceedings. In making this assessment, the Court will look at the proceedings as a whole, including the way in which the evidence was obtained, having regard to the rights of the defence but also to the interest of the public and the victims in seeing crime properly prosecuted and, where necessary, to the rights of witnesses (see Al‑Khawaja and Tahery, cited above, § 118, with further references and Schatschaschwili, cited above, § 101).

49. The Court reiterates that Article 6 § 3 (d) of the Convention enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. However, the use as evidence of statements obtained at the stage of a police investigation and judicial investigation is not in itself inconsistent with Article 6 §§ 1 and 3 (d), provided that the rights of the defence have been respected (see Al‑Khawaja and Tahery, cited above, § 118, and Schatschaschwili, cited above, §§ 103‑05).

50. According to the principles developed in Al-Khawaja and Tahery (cited above, § 152), it is necessary to examine in three steps the compatibility with Article 6 §§ 1 and 3 (d) of the Convention of proceedings in which statements made by a witness, who had not been present and questioned at the trial, were used as evidence. The Court must examine whether:

(i) there was a good reason for the non-attendance of the witness and, consequently, for the admission of the absent witness’s untested statements in evidence (ibid., §§ 119-25);

(ii) the evidence of the absent witness was the sole or decisive basis for the defendant’s conviction (ibid., §§ 119 and 126-47); and

(iii) there were sufficient counterbalancing factors, including strong procedural safeguards, to compensate for the handicaps caused to the defence as a result of the admission of the untested evidence and to ensure that the trial, judged as a whole, was fair (ibid., § 147).

51. In Schatschaschwili, the Grand Chamber clarified that all three steps of the test were interrelated and, taken together, served to establish whether the criminal proceedings at issue had, as a whole, been fair (cited above, § 118). At the same time, it noted in respect of the first step that while the absence of good reason for the non-attendance of the witness cannot of itself be conclusive of the unfairness of the applicant’s trial, it is a very important factor to be weighed in the balance when assessing the overall fairness of a trial, and one which may tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (d) of the Convention (ibid., § 113). Expounding on the interplay of the second and third steps, the Grand Chamber highlighted the importance of sufficient counterbalancing factors not only in cases in which the absent witness’s testimony was the sole or the decisive basis for the conviction, but also in those cases where, in the domestic courts’ assessment, that evidence, without clearly reaching the threshold of “sole or decisive”, carried significant weight and its admission may have handicapped the defence (ibid., § 116, and Seton v. the United Kingdom, no. 55287/10, § 59, 31 March 2016).

52. The Court reiterates that the term “witness” has an “autonomous” meaning in the Convention system. Thus, where a deposition may serve, to a material degree, as the basis for a conviction, then, irrespective of whether it was made by a witness in the strict sense or by a co-accused, it constitutes evidence for the prosecution to which the guarantees provided by Article 6 §§ 1 and 3 (d) of the Convention apply (see Lucà v. Italy, no. 33354/96, § 41, ECHR 2001 II, and Rudnichenko v. Ukraine, no. 2775/07, § 102, 11 July 2013). Alleged accomplices in an offence (convicted in prior proceedings) are also to be regarded as witnesses, for the purposes of Article 6 § 3 (d), when their statements are brought before the court who takes account of them in deciding the case against the applicants (see Mild and Virtanen v. Finland, nos. 39481/98 and 40227/98, § 43, 26 July 2005).

53. In that light, the Court has applied the Al-Khawaja test, by analogy, in cases where the absent witnesses were, at the same time, co-defendants in the case (see, for example, Kuchta v. Poland, no. 58683/08, § 44, 23 January 2018, and, by implication, Dimović v. Serbia, no. 24463/11, 28 June 2016) as well as in cases where a witness’s privilege against self‑incrimination was at play (see Seton, § 60, cited above, concerning an available but reluctant witness who could be accused of related crimes and Cabral v. the Netherlands, no. 37617/10, § 33, 28 August 2018, where the witness, an accomplice, was presented for cross‑examination but remained silent).

2. Application to the present case

54. It follows from the above‑mentioned principles that the fact that the incriminating statements had been made, as in the present case, by co‑accused persons rather than by an ordinary witness, is of no relevance and the principles established in such cases apply mutatis mutandis to the facts of the present case (see Oddone and Pecci, cited above, § 95).

55. In this connection, the Court reiterates that the wording of Article 6 § 3 (d) provides “for an accused to examine or have examined witnesses against him”. In the Court’s view once a co‑accused or other accomplice makes statements incriminating another person (i.e. the accused), the former inevitably becomes “a witness against him” and should expect to be confronted by the accused as well as to be compelled to appear at trial for such purpose. However, the Court emphasises that the status of “witness” given to a co-accused or an alleged accomplice (tried separately) does not detract from their own rights as accused persons or criminal suspects, including that of the privilege against self‑incrimination (see Oddone and Pecci, cited above, § 96). Indeed such witnesses may be compelled to appear for the purposes of cross‑examination but they cannot be compelled to give evidence (ibid.).

56. The Court notes that while the statements of T. and C. directly incriminated the sixth applicant, they did not directly incriminate the first and fourth applicants. Nevertheless, bearing in mind the circumstances of the case and the reasoning developed below, without prejudice to any future findings in similar situations, the Court considers that for the purposes of the present case, it can be considered that those statements “incriminated” all three applicants, although to different extents.

(a) Whether there was good reason for not securing the attendance of the witnesses at the trial

57. The Court refers to its general principles on the matter as set out in Schatschaschwili (cited above, §§ 119-22). In particular, the Court reiterates that good reason for the absence of a witness must exist from the trial court’s perspective, i.e., the court must have had good factual or legal grounds not to secure the witness’s attendance at the trial. If there was a good reason for the witness’s non-attendance in that sense, it follows that there was a good reason, or justification, for the trial court to admit the untested statements of the absent witness as evidence. There are a number of reasons why a witness may not attend a trial, such as absence owing to death or fear, absence on health grounds, or the witness’s unreachability (ibid.).

58. Turning to the present case, the Court notes that T. and C. in their capacity as accused persons did not attend the trial and, although represented by counsel, they did not withdraw their statements, which had been admitted to the file. No steps were taken by the domestic authorities to have them cross‑examined as witnesses. While it is true that there is no suggestion that T. and C. were absent witnesses in the sense that they were dead, sick, or unreachable (see Schatschaschwili, cited above, § 119), they were absent witnesses in so far as they did not attend the trial in person while their untested evidence was admitted for use by the trial courts.

59. The Court considers that, even if under domestic law the domestic courts could admit evidence not collected at the trial, and an accused person was prevented from cross‑examining a co‑accused, this could not deprive the applicants of the right which Article 6 § 3 (d) afforded them, to examine or have examined in adversarial proceedings any evidence against them. This is even more so where the co‑accused, whose statements were being used, had admitted to the charges and not retracted their testimonies via counsel present at the hearing, and thus had no apparent reason to remain silent at trial. Indeed, in the present case, precisely on the basis of their confession, T. and C. benefitted from mitigating circumstances which led to the discontinuation of the charges against them. The Court reiterates that the absence under national legislation of any means to ensure the attendance of the accusers (charged with the same crime), for the purposes of examination, can be considered inadequate and can contribute to a finding of a violation of the rights of the accused (see, for example, Mild and Virtanen, cited above, §§ 46-48). However, the Court notes that, unlike in the case of Oddone and Pecci (cited above, § 98), the applicants’ made no request to reopen the investigation in order to cross-examine T. and C., nor did they request any further steps from the domestic courts to allow them to cross‑examine them. The Court considers that while it may well be the case that, given the San Marino legal framework, such a request would have had no prospects of success, the absence of such a request could surely not have encouraged the domestic courts to make any significant efforts to hear T. and C. in adversarial proceedings.

60. In light of the above the Court considers that, in the circumstances of the present case, save for the inaction of the applicants in this respect which nevertheless has to be seen against the applicable legal framework, there was no good reason for not securing the attendance of the witnesses at the trial. While this cannot of itself be conclusive of the unfairness of a trial, it is a very important factor to be weighed in the balance when assessing the overall fairness of a trial and one which may tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (d) (see Schatschaschwili, cited above, § 113).

(b) Whether the evidence of the absent witnesses was the sole or decisive basis for the applicants’ conviction

61. As regards the question whether the evidence of the absent witness whose statements were admitted in evidence was the sole or decisive basis for the defendant’s conviction (second step of the Al-Khawaja and Tahery test), the Court reiterates that “sole” evidence is to be understood as the only evidence against the accused (see Al-Khawaja and Tahery, cited above, § 131). “Decisive” evidence should be narrowly interpreted as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case. Where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supporting evidence; the stronger the corroborative evidence, the less likely that the evidence of the absent witness will be treated as decisive (ibid; and Schatschaschwili, cited above, § 123).

62. As it is not for the Court to act as a court of fourth instance, its starting‑point for deciding whether an applicant’s conviction was based solely or to a decisive extent on the depositions of an absent witness is the judgments of the domestic courts. The Court must review the domestic courts’ evaluation in the light of the meaning it has given to “sole” and “decisive” evidence and ascertain for itself whether the domestic courts’ evaluation of the weight of the evidence was unacceptable or arbitrary. It must further make its own assessment of the weight of the evidence given by an absent witness if the domestic courts did not indicate their position on that issue or if their position is not clear (see Schatschaschwili, cited above, § 124, and the case‑law cited therein).

63. The Court notes that both the first-instance judge and the Judge of Criminal Appeals held that, in addition to T. and C.’s statements, further corroborating evidence existed. Indeed, the first‑instance court set out an entire list of circumstances corroborating the offences at issue (see paragraph 32 above) and, in its review, the Judge of Criminal Appeals confirmed that assessment. While it is true that at one point the Judge of Criminal Appeals implicitly referred to the testimonies of T. and C. as crushing evidence (see paragraph 39 above) in respect of the charges they related to, it did so precisely to find that the other corroborating elements were sufficient in relation to the other charges despite the absence of the direct incriminating statements.

64. In the circumstances of the present case, unlike those of Oddone and Pecci which concerned solely two car accidents, the Court agrees with the domestic courts, that the assessment of evidence had to be global, especially in relation to the sixth applicant who had been charged with all the accidents, but also in connection with the first and fourth applicants who had also been involved and charged in relation to more than one accident.

65. It follows that the testimony of T. and C. were not the sole evidence. As to the strength of the additional incriminating evidence available in the present case, the Court notes that apart from the statements of T. and C., the corroborating factors consisted of the general circumstances of the accidents which presented an entire list of similarities. Quite apart from that, it could not go unnoticed that the accidents happened between family members and their acquaintances. Moreover, in respect of the first applicant it had been established that in connection with one of the accidents - charge (no. ii) which was eventually discontinued - he had reported to work on the following day despite a medical diagnosis prescribing otherwise, a matter which in the judge’s view amounted to a substantial indication of the fallaciousness of the accidents in which he had been involved (see paragraph 30 above).

66. The Court considers that in a penal system where there are no rules of evidence as in San Marino, and where the assessment of evidence is solely left to the discretion of the judge, the available corroborative evidence, even if made up of multiple “coincidences”, could have been considered conclusive as to the fact that the accidents had been fictitious and as to the fraud with which the applicants were charged. This is even more so where, although relied on and considered as “crushing” by the Judge of Criminal Appeals in relation to the charges (against the sixth applicant) in respect of which those confessions were made (see paragraph 39 above), the confessions of T. and C. had not concerned the other accidents with which the sixth applicant had been charged, nor the accidents with which the first and fourth applicants were charged (see paragraph 56 above). Thus, in the Court’s view, in the circumstances of the present case, their testimonies could not be considered decisive for the determination of the charges of which these three applicants had been found guilty. However, given the domestic court’s reliance on T. and C.’s statements in the global assessment of the charges, it can be said that they carried a certain weight in relation to the first and fourth applicant and significant weight in relation to the sixth applicant. Thus, their admission in evidence undermined the defence to different extents.

(c) Whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured

67. The Court must further determine whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured as a result of the admission in evidence of the statements made by T. and C. The following elements are relevant in this context: the trial court’s approach to the untested evidence, the availability and strength of further incriminating evidence, and the procedural measures taken to compensate for the lack of opportunity to directly cross-examine the witnesses at the trial (see Schatschaschwili, cited above, §§ 125‑31 and 145).

68. In particular, the fact that the domestic courts approached the untested evidence of an absent witness with caution has been considered by the Court to be an important safeguard (compare Al-Khawaja and Tahery, cited above, § 161; Gani v. Spain, no. 61800/08, § 48, 19 February 2013; and Brzuszczyński v. Poland, no. 23789/09, §§ 85‑86, 17 September 2013). The courts must have shown that they were aware that the statements of the absent witness carried less weight (compare, for instance, Al-Khawaja and Tahery, cited above, § 157). In that context, the Court has taken into account whether the domestic courts provided detailed reasoning as to why they considered that evidence to be reliable, while having regard also to the other evidence available (see Brzuszczyński, cited above, §§ 85‑86 and 89 and Prăjină, v. Romania, no. 5592/05, § 59, 7 January 2014).

69. The Court considers that, unlike the case of Oddone and Pecci, in the present case the domestic courts, at both levels of jurisdiction, adopted a cautious and prudent approach with respect to the statements and that the first, fourth and sixth applicants had had the possibility of providing an alternative version of the facts, which they did and their statements had also been added to the file (see paragraph 9 above). The first, fourth and sixth applicants could also have testified at trial (as was the case with other applicants), but chose to simply confirm their statements given in the investigation (see paragraph 23 above).

70. In connection with the testimonies of T. and C., the Court reiterates that the use of statements made by witnesses in exchange for immunity or other advantages is an important tool in the domestic authorities’ fight against serious crime. However, the use of such statements may put in question the fairness of the proceedings against the accused and is capable of raising delicate issues as, by their very nature, such statements are open to manipulation and may be made purely in order to obtain the advantages offered in exchange or for personal revenge. The sometimes ambiguous nature of such statements and the risk that a person might be accused and tried on the basis of unverified allegations that are not necessarily disinterested must not, therefore, be underestimated (see Habran and Dalem v. Belgium, nos. 43000/11 and 49380/11, § 100, 17 January 2017, and Shiman v. Romania (dec.), no. 12512/07, § 33, 2 June 2015). However, the use of these kinds of statements does not in itself suffice to render the proceedings unfair. This depends on the particular circumstances in each case (ibid. § 34, and Cornelis v. the Netherlands (dec.), no. 994/03, ECHR 2004–V (extracts), and the cases cited therein). The Court notes in this connection that in the present case T. and C. did not obtain immunity from suit, but qualified for a benefit in law which led to their proceedings being discontinued as statute‑barred, a situation which occurred in respect of other charges, and in particular in respect of one charge against the fourth applicant, irrespective of any acquired benefit. Other than this benefit, there was no indication as to any manipulation of, or personal vengeance by, T. and C.

71. As regards the domestic courts’ treatment of the evidence provided by T. and C., the Court observes that the first-instance judge considered that the defence had not substantiated their challenge to those confessions. In particular, the judge held that no reasons were advanced as to why there should have been any animosity between T. or C. and the accused persons; nor was there any reason why T. and C. would have lied, exposing themselves to a criminal conviction as well as to the payment of civil damage (see paragraph 28 above).

72. Moreover, those confessions were coherent in so far as both stated that the sixth applicant was the organiser. In this connection the Court notes that it has previously considered as an important factor supporting an absent witness’s statement the fact that there were strong similarities between the absent witness’s description of the alleged offence committed against him or her and the description, given by another witness with whom there was no evidence of collusion, of a comparable offence committed by the same defendant (see Schatschaschwili, cited above, § 126).

73. Furthermore, those testimonies were compatible with the multiple other anomalies detected by the police, including the fact that the accidents occurred in unfrequented streets which were not accident‑prone (see paragraph 28 above).

74. The first‑instance court then went on to assess each and every inconsistency pointed out by the defence team, giving reasons as to why it considered that such inconsistencies were irrelevant or banal, and concluding that they could not taint the credibility of those confessions (see paragraph 29 above).

75. The Judge of Criminal Appeals shared the first-instance court’s reasoning in this respect which it confirmed and made its own (see paragraph 38 in fine above). Replying to the applicants’ specific arguments, it again went on to assesses each inconsistency relied on and concluded that those confessions were credible (see paragraph 39 above).

76. It follows that the applicants had been afforded the opportunity both at first‑instance and on appeal to cast doubt on the credibility of the absent witnesses, pointing out any incoherence or inconsistency with the statements of other witnesses. Further, since the identity of the witnesses was known to the defence, the latter was able to identify and investigate any motives the witnesses may have had for lying and could therefore contest effectively the witness’s credibility, albeit that to a lesser extent than in a direct confrontation (see Schatschaschwili, cited above, § 131 and the case‑law examples cited therein).

77. The Court thus considers that in the present case the domestic courts carried out a detailed assessment of the confessions and the challenges thereto in order to evaluate the credibility, weight or veracity of the witness testimony. Unlike in the case of Oddone and Pecci, in the present case the domestic judgments contain a clear indication that those courts were aware of the reduced evidentiary value of the untested witness statements and, in that light, they examined the reliability of the absent witnesses’ statements in a careful manner. Thus, the Court considers that the manner in which the domestic courts examined T. and C.’s credibility, and the reliability of their statements, was sufficiently cautious.

78. The Court has already observed that the domestic courts had before them additional circumstantial evidence supporting the existence of a criminal scheme see paragraphs 63-65 above)

79. As to any procedural measures taken to compensate for the lack of opportunity to directly cross‑examine the witnesses at the trial, the Court notes that although the applicants did have the possibility to give their own version of the events, and to submit their challenges, they had no chance to put questions to T and C., indirectly, for instance in writing, nor were the applicants’ or their counsel given an opportunity to question those witnesses during the investigation (see Oddone and Pecci, cited above, § 111). Having said that, and as mentioned previously (see paragraph 59 in fine above), the three applicants did not even attempt to make such a request.

80. In view of the foregoing and the limited significance of the statements by C. and T, in the light of the numerous other elements presented to the domestic courts, the counterbalancing measures taken by the domestic courts in the present case appear to have been sufficient to permit a fair and proper assessment of the reliability of the untested evidence.

(d) Conclusion

81. In assessing the overall fairness of the proceedings and having regard to any counterbalancing factors, in the light of the weight of the evidence given by T. and C. the Court considers that the trial courts had sufficient additional incriminating evidence before them, regarding the offences of which these three applicants were found guilty, and that sufficient procedural measures were taken to compensate for the lack of opportunity to directly cross‑examine the witnesses at the trial.

82. In those circumstances, the Court is of the view that the absence of an opportunity for the applicants to examine or have examined witnesses T. and C. at any stage of the proceedings did not render the trial as a whole unfair.

83. As to the ancillary complaint raised (see paragraph 44 above), even assuming it can be considered separate from the one examined above, 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, for example, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I, and Perić v. Croatia, no. 34499/06, § 17, 27 March 2008). On the other hand, whilst acknowledging the domestic judicial authorities’ prerogative to assess the evidence and decide what is relevant and admissible, the Court reiterates that Article 6 § 1 places the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties (see Khamidov v. Russia, no. 72118/01, § 173, 15 November 2007) without prejudice to its assessment of whether they are relevant to its decision (see Van de Hurk v. the Netherlands, 19 April 1994, § 59, Series A no. 288, and Dulaurans v. France, no. 34553/97, § 33, 21 March 2000).

84. In line with its above considerations, the Court concludes that there is nothing arbitrary in the domestic courts’ assessment, as they took account of all the evidence, heard the submissions of the defence and gave reasons for their decisions.

85. It follows that the complaint in its entirety must be rejected as manifestly ill‑founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

2. Applications nos. 59145/19, 59149/19, 59155/19 and 59164/19

86. The Court reiterates that a person may not claim to be a victim of a violation of his right to a fair trial under Article 6 of the Convention which, according to him, took place in the course of proceedings in which he was acquitted or which were discontinued (see inter alia, Osmanov and Husseinov v. Bulgaria (dec.), nos. 54178/00 and 59901/00, 4 September 2003; Witkowski v Poland (dec.), no. 53804/00, 3 February 2003; and Bouglame v. Belgium (dec.), no. 16147/08, 2 March 2010).

87. The Court notes that all the charges against the second, third, fifth and seventh applicants were discontinued following a finding that they were statute-barred (see paragraphs 27-37).

88. It follows that these applicants have not been directly affected by the impugned measure and therefore they are not victims of Article 6 in its criminal limb invoked by the applicants.

89. It follows that their complaint must be rejected as manifestly ill‑founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 29 April 2021.

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Liv Tigerstedt Ksenija Turković
Deputy Registrar President

APPENDIX