CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 26 novembre 2024

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CYPRUS (Application no. 1618/18)   JUDGMENT   Art 6 § 1 (criminal) • Fair hearing • Applicants’ convictions for money laundering and extortion respectively based on the “most decisive” extent on testimony of accomplice, who was not prompted by any deal but was spared prosecution, not rendering trial unfair Art 6 § 1 (criminal) and Art 6 § 3 (d) • Rights of defence • Adequate facilities • Domestic courts’ refusal to give defence access to prosecution’s disk image not amounting to a breach   Prepared by the Registry. Does not bind the Court.   STRASBOURG 26 November 2024   FINAL   28/04/2025     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Souroullas Kay and Zannettos v. Cyprus, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Pere Pastor Vilanova , President ,   Jolien Schukking,   Georgios A. Serghides,   Darian Pavli,   Peeter Roosma,   Ioannis Ktistakis,   Andreas Zünd , judges , and Milan Blaško, Section Registrar, Having regard to: the application (no.   1618/18) against the Republic of Cyprus lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Cypriot nationals, Mr Gregoris Souroullas Kay and Mr Venizelos Zannettos (“the applicants”), on 3 January 2018; the decision to give notice to the Cypriot Government (“the Government”) of the applicants’ complaints about their inability to access material held by the prosecution and the use of accomplice testimony against them and to declare the remainder of the application inadmissible; the parties’ observations; Having deliberated in private on 13 February 2024 and 15 October 2024, Delivers the following judgment, which was adopted on the last-mentioned date: INTRODUCTION 1.     The case concerns firstly the question whether a criminal trial can be considered to be “fair” within the meaning of Article 6 § 1 of the Convention if it led to a conviction based to a decisive extent on the testimony of an accomplice who had been given immunity from prosecution. Secondly, it concerns the question whether there has been a violation of Article 6 § 3 (b) taken together with Article 6 § 1 of the Convention because the applicants were not afforded adequate facilities for the preparation of their defence. THE FACTS 2.     The applicants were born in 1966 and 1947 respectively and live in Larnaca. They were represented by Mr   C.   Paraskeva and Mr   E.   Stephanou, lawyers practising in Nicosia. 3.     The Government were represented by their Agent, Mr   G.   Savvides, Attorney-General of the Republic of Cyprus. 4.     The facts of the case may be summarised as follows.         THE GOVERNMENT ORDERS AN INQUIRY INTO A LAND DEAL IN DROMOLAXIA 5.     In June 2013 the newly formed Council of Ministers set up a commission of inquiry to investigate complaints about a suspicious land deal in the village of Dromolaxia. The land in question, located near Larnaca airport, had previously belonged to a Turkish Cypriot. He had sold it to a private company, and that company had resold it to the pension fund of CYTA, a State-owned telecommunications provider, for an investment project – the construction of a rental office complex. 6.     The government suspected that the original Turkish Cypriot owner had had no right to sell his land. [1] The government was also alarmed because, among other things, the pension fund seemed to have made a bad investment, to the detriment of its beneficiaries.       THE INQUIRY LEADS TO A CRIMINAL INVESTIGATION 7.     Disclosures made to the commission of inquiry convinced its president that the land deal might have involved the commission of criminal offences. She asked the Attorney-General to investigate and in July 2013 the Attorney ‑ General instructed the police to do so. 8 .     The investigators traced the money involved in the deal to see if bribes had been paid. They searched the offices of the private company that had bought the land and the home of its director, N.L., who was a property entrepreneur and chairman of ALKI Larnaca, a financially troubled football club associated with the AKEL political party. The police also searched the office of N.L.’s financial manager.     SEIZURE AND FORENSIC EXAMINATION OF HARD DRIVES 9 .     During those searches, the police seized computer hard drives. A forensic examiner made their disk-to-disk and disk-to-image copies ( δικανικά αντίγραφα ) and searched the disk images for documents containing terms that interested the investigators, including the term “Poleson” ( sic ).    ARRESTED N.L. PLEDGES COOPERATION WITH THE INVESTIGATION 10 .     On 26 August 2013 the police arrested N.L. and two police officers. They suspected that N.L. had bribed the officers to draft a false report stating that the Turkish-Cypriot owner of the land had lived in the government ‑ controlled areas long enough to be entitled to sell his land. 11.     N.L. refused to answer any questions, as advised by his lawyer. He said only that his business had been legal and that he mistrusted the investigators. 12.     On 2 September 2013, after consulting his lawyer, N.L. promised the investigators that, once his detention had ended and he had been released, he would provide a written statement about the events that interested the investigators and that he would be ready to clarify that statement, if need be. 13.     The investigators went on with their work and had N.L.’s detention extended. 14 .     On 10 September 2013 the police released N.L. and charged him with bribing the police officers.      N.L. IMPLICATES THE APPLICANTS 15.     About two days after being released, N.L. telephoned one of the investigators and reaffirmed his intention to cooperate. The investigator made it clear to N.L. that he expected him to tell them everything he knew about the land deal, no matter who might be affected. Only if N.L.’s statements proved to be true would the investigator consider suggesting that N.L. be used as a prosecution witness instead of being charged. Nevertheless, as the investigator could make no promises about that, he advised N.L. to consult his lawyer. 16 .     Between 23   September and 20 November 2013 N.L. made four written statements to the investigators suggesting, overall, that bribes had been given as part of a conspiracy to sell the land to CYTA’s pension fund at an inflated price. He admitted complicity in the conspiracy and implicated seven other people and one company. Among those were Gregoris Souroullas (the first applicant), Venizelos Zannettos (the second applicant), and Polleson Holdings Ltd (a company for whose accounts Gregoris Souroullas was the sole authorised signatory). 17 .     N.L. stated that Gregoris Souroullas had been complicit in laundering bribe money paid to a representative of the trade union at CYTA for letting the deal go through. He also alleged that Venizelos Zannettos, the financial director of the AKEL party, had threatened to block the deal unless N.L. paid off personal loans taken out by former executives of ALKI   FC to shore up the club’s finances. 18.     The applicants were arrested, charged, and committed for trial in the Larnaca Assize Court together with the six co-accused. Gregoris Souroullas was accused of conspiracy to commit extortion, extortion, and money laundering. Venizelos Zannettos was accused of extortion. 19.     The investigators recommended to the Attorney-General not to prosecute N.L. because his statements appeared to be true and contained valuable information. On 5   November 2013 the Attorney-General decided not to prosecute N.L. 20.     The applicants were informed of the contents of N.L.’s statements and of the Attorney-General’s decision.    PROCEEDINGS BEFORE THE LARNACA ASSIZE COURT 21.     At the start of the trial in March 2014 the applicants pleaded not guilty. Gregoris Souroullas put forward an innocent explanation for his actions. Venizelos Zannettos denied any detailed knowledge of the land deal, claimed that his prosecution was politically driven, and suggested that the court shift its attention to the role played in the deal by another member of AKEL.    The examination of N.L. before the Assize Court 22.     The prosecution relied mainly on the testimony of N.L. 23.     Five different defence lawyers cross-examined N.L. during five full days. 24.     They sought to discredit N.L. by referring to his past wrongdoing and alleging that he had let himself be used by the politically motivated investigators. They pointed out that he had made his revelations to the investigators piecemeal, that he had failed to mention all his visits to the police headquarters to the court, and that he had frequently talked to the investigators on the telephone both before and after making his written statements. The lawyers insinuated that the investigators had dictated to N.L. what to write in those statements. 25.     N.L. denied those claims and explained that in the beginning his lawyer had advised him against testifying and that he had been wary of the investigators because he suspected that they were politically motivated. But after his release from custody he had made a clear-headed decision to tell the truth. The prosecution added that not all of N.L.’s visits to the police could be officially recorded and that by staying in telephone contact with N.L. the investigators had simply tried to win his trust. 26 .     After N.L. had testified in the applicants’ trial, the proceedings in his own criminal case (see paragraph 14 above) were discontinued.    Request to access the disk image on which the police examiner had worked 27 .     In the course of the applicants’ trial, the prosecution asked its forensic examiner to carry out another search of the hard drives that had been seized (see paragraph 9 above). From one of the disk images in her possession, the examiner extracted two documents containing unsigned draft contracts between N.L.’s company and Polleson Holdings Ltd (“Polleson” – see paragraph   16 above). The prosecution referred to those documents to bolster N.L.’s claim that the conspirators had prepared documents that would cover for the bribe and that Gregoris Souroullas had therefore been aware of the illicit origin of the money that he had parked in Polleson’s account. 28.     Wondering why that evidence had not been referred to earlier, the applicants’ lawyer put it to the investigators that they must have seen those documents earlier but were concealing that. 29.     The investigators explained that they would have liked to have disclosed those documents earlier but that they had overlooked them in the mass of other documents, in particular because the list of the search terms initially given to the examiner had contained a misspelling in Polleson’s name (see paragraph   9 above). 30 .     Not satisfied with the above explanation, the lawyer asked the court to allow his expert to inspect the disk image that the police examiner had worked on. Although the lawyer had been given a copy of the disk image, he claimed that that copy was inexact since it had a different hash value [2] from the original. He insisted that only by examining the prosecution’s disk image would his expert be able to prove that the investigators had opened the documents and, more crucially, at what moment. In their submissions to the Court, the applicants argued that if their lawyer were able to prove that the investigators had seen the documents, the court might believe that there had been collusion between N.L. and the prosecution since knowledge of those documents would have enabled the investigators to dictate N.L.’s testimony. 31.     The prosecution objected, arguing that the police examiner had already testified and had been cross-examined, and that allowing the defence expert to question the quality of her work this late in the trial would give the defence an unfair advantage over the prosecution. 32 .     The Assize Court agreed with the prosecution and denied the request.    The judgment of the Larnaca Assize Court 33.     The court reminded itself to assess N.L.’s witness testimony with caution, since he was an accomplice of the defendants. The court nevertheless found it possible to believe him because “[he] answered with exemplary consistency and detail, about every aspect he was questioned on, with the demeanour of someone who was clearly telling the truth. He remained ... firm during his long, strenuous and exhaustive cross-examination. He was disarmingly genuine, vivid and illustrative in his descriptions. Even when he declared that he did not remember precisely (or at all) details about which he was being cross-examined, he gave satisfactory and convincing explanations for his inability to do so. He referred to facts and details that only someone who had actually experienced the events could have talked about so precisely and to such an extent, thereby excluding any possibility that they could be a figment of his imagination or, as he was often asked in cross-examination, the product of collaboration and an improper deal with the investigators and the prosecution. His testimony was characterised by spontaneity and willingness.” 34.     The court considered that this Court’s case-law authorised the use of accomplice testimony, citing X. v.   the United Kingdom (no.   7306/75, Commission decision of 6   October 1976, Decisions and Reports   7, p.   115). 35 .     The court rejected the defence’s allegation that N.L. and the prosecution had colluded and traded favours to falsely implicate the defendants. It found that N.L. had decided to tell the truth on his own, for justice’s sake, regardless of the cost to himself personally and no matter who might be implicated. The court also found nothing unlawful or immoral in the Attorney-General’s decision to grant N.L. immunity from prosecution because those involved in corruption had to realise that their accomplices might turn them in. 36 .     The court found no evidence that would corroborate ( ενισχύω ), that is, independently confirm, N.L.’s testimony. The court nevertheless found it “absolutely safe” to rely on N.L.’s “indestructible and sincere” testimony to a “most decisive” ( καθοριστικότερο ) extent. 37 .     In addition, the court relied on the testimony of three other witnesses whom it described as “important” ( σημαντικοί ). 38.     The first of those witnesses, N.L.’s assistant, had testified that N.L. had issued cheques in that witness’s name and that the witness had cashed them and passed the money to N.L. The court found that N.L. had used that money to bribe one of the applicants’ co-defendants (E.K.). 39.     The second witness had testified about other cheques drawn by N.L. and about the pressure put on N.L. by Venizelos Zannettos and another co-defendant (A.I.) in the context of the land deal. 40.     The third witness, N.L.’s associate, had testified that A.I. had told him that AKEL had hoped to get its share from the land deal and that the party would halt the deal if N.L. did not pay. He had also described how N.L. had passed the above-mentioned cash to E.K. 41 .     However, the court found that the above three witnesses could be considered to have “a purpose of their own to serve” ( με δικό τους σκοπό να εξυπηρετήσουν ), without explaining what that purpose might be. It said that it would therefore approach their evidence with caution. 42.     On 22 December 2014 the Larnaca Assize Court convicted Gregoris Souroullas of money laundering and Venizelos Zannettos of extortion, by judgment no.   693/14. It sentenced them to six and a half and three and a half years’ imprisonment, respectively. THE JUDGMENT OF THE SUPREME COURT 43.     In their subsequent appeals to the Supreme Court both applicants complained that the Assize Court had relied on N.L.’s testimony despite all its flaws. They repeated their allegations of collusion between the witness and the prosecution. In addition, Gregoris Souroullas complained that, by denying the defence expert an opportunity to inspect the disk image as he had wanted, the Assize Court had upset the “equality of arms”. 44.     On 4   July 2017 the Supreme Court rejected those arguments and upheld the applicants’ conviction (judgment on appeals nos.   14/2015 and 15/2015). 45 .     The Supreme Court described N.L.’s testimony as the “foundation” ( θεμέλιο ) of the conviction. It found no evidence of improper dealings between the prosecution and N.L. It further held that neither the criminal charges brought against N.L. on the day of his release (see paragraph   14 above) nor the discontinuance of the relevant proceedings after N.L. had testified in the Assize Court (see paragraph 26 above) suggested that there had been any shortcomings in the investigative work. The court had taken note of the interconnection between a company in which N.L. held a controlling interest and “Polleson Holdings Ltd” (linked to Gregoris Souroullas, see paragraph 16 above). Further, it noted the “indisputable existence” of evidence of transactions in line with N.L.’s account of the facts, thus referring to bank data (i.e. statements, receipts, cheques, transfer orders, withdrawals) presented in cross-examination at the trial (Documents D and   E) and found by the Assize Court as corresponding inter alia to transactions made by N.L. as a result of Venizelos Zannettos’ pressure. The Supreme Court found that the above confirmed some of N.L.’s essential allegations and justified the Assize Court’s finding that N.L. was a credible witness notwithstanding that he was an accomplice of the accused. The Supreme Court therefore held that there was no reason to overturn the Assize Court’s findings. 46 .     The Supreme Court agreed with the Assize Court that the second and third of the three witnesses mentioned above could be considered to have had “a purpose of their own to serve”, while the first witness was not mentioned at all in the Supreme Court judgment. The court held that the Assize Court had therefore rightly approached these witnesses’ statements with caution and had given sufficient reasoning as to why it found them to be credible. 47 .     As to the disk image, the Supreme Court found that the refusal of access to it had not disadvantaged the defence since the defence had had its own copy of the image, which contained all the documents used in the trial. The Supreme Court considered that if the defence expert had been allowed to inspect the prosecution’s disk image, he could have altered the data. Besides, earlier in the trial the defence had been able to put questions to the forensic examiner so as to test the quality of her work. 48.     The Supreme Court commuted the sentence of Gregoris Souroullas to four and a half   years’ imprisonment so that it was in proportion with the sentence of a co-accused which had also been commuted. THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 49.     The applicants complained that their trial had been unfair because they had been convicted solely on the testimony of an accomplice who had been granted immunity from prosecution. They relied on Article   6 §   1 of the Convention, which reads as relevant: “1.     In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ...” Admissibility 50.     The Government did not contest the admissibility of this complaint. 51.     The Court considers this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.    Merits      The parties’ submissions 52.     The applicants submitted that the authorities had been under pressure to dispense rapid justice in a much-publicised affair. 53 .     The sole evidence on which their conviction had been based was N.L.’s testimony. The distinction between corroborating and supporting evidence drawn by the Government had been irrelevant. That testimony had been directed by the investigators and had been unreliable. 54.     The Assize Court’s self-admonition to be cautious about N.L.’s testimony had had no real effect on its decision-making. 55.     The applicants claimed that the country’s prosecution authorities routinely elicited testimonies from criminal masterminds like N.L. by offering them the hope of immunity from prosecution. The Attorney ‑ General’s power to grant immunity was unregulated and unchecked. Courts would not hesitate to issue convictions relying on such compromised evidence. 56.     The applicants accused the Government of misrepresenting the facts of the case to align with precedents from the Court’s case-law that were favourable to them, despite the facts being more aligned with precedents where a violation had been found. 57.     The Government argued that recourse to N.L.’s testimony had not violated the applicants’ right to a fair trial. 58 .     They disagreed that N.L.’s testimony had been the sole damning evidence. If the Assize Court had held that it had found no “corroborating” ( ενισχυτική , literally “reinforcing”) evidence, it was only because the court had used that term in the narrow sense in which it was used in the domestic law. In reality, in addition to N.L., the court had relied on three other witnesses (see paragraph 36 above), information about bank transactions, and the sham contracts (see paragraph 27 above). That evidence could be classified as “supporting” ( υποστηρικτική ) evidence under domestic law, which aligned with the broader understanding of “corroborating” evidence familiar to the Court. 59.     Relying on the Court’s case-law, the Government submitted that the immunity granted to N.L. had not undermined the overall fairness of the applicants’ trial. N.L. had not been the mastermind of the conspiracy. He had been driven by a selfless and sincere desire to reveal the truth. The immunity granted to him had served the worthy cause of fighting corruption. The defence had known before the trial that he would not be prosecuted and had been able to cross-examine him at will. 60.     The Convention did not, in the Government’s opinion, oblige the State to formalise plea bargaining or to provide a means of seeking review of decisions not to prosecute. If some States had chosen to do this, it was to protect the witnesses themselves and not those whom they implicated. Be that as it may, the Attorney-General’s decision had been reviewed by the Assize Court in the course of the trial.      The Court’s assessment 61.     The Court reiterates that Article 6 § 1 of the Convention does not set out any rules on how evidence should be assessed. The Court may interfere in this field only if a domestic court assesses evidence arbitrarily or manifestly unreasonably (see Bochan v. Ukraine (no. 2) [GC], no.   22251/08, §   61, ECHR 2015). 62.     The Convention does not prohibit a domestic court from relying on incriminating testimony given by an accomplice, even if that witness has been known to move in criminal circles. However, reliance on the testimony of an accomplice which has been given in exchange for immunity from prosecution may render a trial unfair. This is because such testimony by its very nature is open to manipulation and may be given purely to obtain advantage or for personal revenge (see Xenofontos and Others v. Cyprus , nos. 68725/16 and 2   others, §§ 76-78, 25 October 2022, with further references). The Court further reiterates that its primary concern under Article 6 § 1 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, taking into account the procedural rights of the defence, but also the interests of the public and the victims, in seeing crime properly prosecuted (see   Schatschaschwili v. Germany   [GC], no.   9154/10, §§   100 and 101, 15   December 2015; Paić v. Croatia , no.   47082/12, §   27, 29   March 2016; and   Ibrahim and Others v. the United Kingdom   [GC], nos.   50541/08 , 50571/08 , 50573/08 and 40351/09 , §§ 250-251, ECHR   2016 ) and, where necessary, the rights of witnesses (see, for example,   Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011). When assessing the effect of incriminating testimony given by an accomplice on the fairness of the proceedings as a whole, the Court has taken in account, inter alia , whether: – the defence knew the witness’s identity; – the defence knew about the existence of an arrangement with the prosecution; – a domestic court had reviewed the arrangement; – the domestic court had considered all the possible advantages received by the witness; – the arrangement was discussed at the trial; – the defence had the opportunity to test the evidence of the witness; – the defence had the opportunity to test the evidence of the members of the prosecution team involved; – the domestic court was aware of the pitfalls of relying on the evidence of an accomplice; – the domestic court approached the testimony cautiously; – the domestic court explained in detail why it believed the witness; – untainted corroborating evidence existed; – an appeal court reviewed the trial court’s findings in respect of the witness; and – the question was addressed by all the courts dealing with the various appeals (see Xenofontos and others , cited above, § 79, with further references). 63.     In the present case, the Court notes that, first and foremost, as was established by the domestic courts, there was no deal between N.L. and the prosecution. N.L. had confessed and given evidence against the applicants voluntarily. The Attorney General’s decisions to grant him protection and not to charge him involved the exercise of discretion rather than keeping a promise he had been given (see paragraphs 35 and 45 above). Even though the applicants alleged that there was some inappropriateness in the interaction between the prosecution and the witness, they failed to provide any evidence of a deal between N.L. and the prosecution. The Court must therefore accept that the circumstances of N.L.’s confession were as established by the domestic courts. 64.     The Court further notes that the applicants knew N.L.’s identity, the contents of his statement and that he had been granted immunity from prosecution. At the trial, the applicants were able to examine both N.L. and the members of the prosecution team extensively. The trial court was fully aware of the dangers inherent in using the evidence of an accomplice, cautioned itself accordingly and took pains to explain in detail why it believed N.L. The Supreme Court, the only appellate court available, subsequently reviewed the trial court’s assessment of N.L., thus addressing the question of relying on the testimony of a witness who was also an accomplice. 65.     As to the parties’ disagreement about whether other evidence incriminating the applicants existed, the Court reiterates that its role in that regard is limited. It therefore relies on the domestic courts’ findings (see Xenofontos and Others , cited above, § 85). While it relied to the “most decisive” extent on N.L.’s testimony, this being the “foundation” of the conviction (see paragraphs 36 and 45 above), the Assize Court also considered the evidence of three other witnesses that it found “important” and who supported N.L.’s testimony (see paragraph 37 above). The Supreme Court held that N.L.’s testimony was further supported by “indisputable evidence” of financial transactions which were in line with N.L.’s account of the facts (see paragraph 45 above). The Court therefore finds that the domestic courts relied on evidence that corroborated N.L.’s testimony, regardless of the question of whether this evidence satisfied the domestic law definition of “corroborating evidence”. 66.     There is some room for doubt as to whether the corroborating evidence was untainted, given that the domestic courts held that the three “important” witnesses could be considered to have had their own purpose to serve and expressed caution as to how they would approach their testimony (see paragraph 46 above). However, that doubt is not sufficient to compromise the overall fairness of the impugned proceedings given the procedural safeguards examined above. The Court observes, notably, that the applicants were able to cross-examine N.L. extensively before the Assize Court, which considered the allegations of collusion in detail, took a careful stance on N.L.’s testimony, and explained the reasons why it was prepared to believe him. 67.     In the light of the above considerations, the Court finds that the overall fairness of the impugned proceedings was not compromised as a result of the courts’ reliance on testimony given by the applicants’ accomplice. 68.     There has accordingly been no violation of Article 6 § 1 of the Convention.       ALLEGED VIOLATION OF ARTICLE 6 § 3 ( b ), taken together with Article 6 § 1 OF THE CONVENTION 69.     The applicants complained that they had not been allowed to search the prosecution’s disk image for traces of collusion between the prosecution and the accomplice. They relied on Article   6 of the Convention, and in particular, paragraph 3 (b) of that Article, which reads: “3.     Everyone charged with a criminal offence has the following minimum rights: ... (b)     to have adequate time and facilities for the preparation of his defence ...” 70.     The Court reiterates that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision; it will therefore consider the applicant’s complaint under both provisions taken together (see Schatschaschwili   v. Germany [GC], no.   9154/10, § 100, 15 December 2015). Admissibility 71.     The Government argued that the applicants had not exhausted domestic remedies, as required by Article 35 § 1 of the Convention. They claimed that the applicants should have requested access to the disk image before the police examiner had given her evidence, raised their concerns during her cross ‑ examination, or asked the Assize Court to recall her. 72.     The applicants contested this, arguing that they had requested access to the disk image at the proper points during the trial. 73.     The Court rejects the Government’s objection. It may well be that, from the point of view of domestic procedural law, the applicants should have made their request at a different moment. Nevertheless, the Supreme Court rejected the ground of appeal pertaining to the dismissal of that request by the applicants, after examining it on its merits (see paragraphs 32 and 47 above). The Court therefore finds that this complaint cannot be dismissed for failure to exhaust domestic remedies (see, mutatis mutandis , Verein Gegen Tierfabriken Schweiz (VgT) v. Switzerland (No. 2) [GC], no. 32772/02, §§   43 ‑ 45, 30 June 2009, with further references). 74.     The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. Merits      The parties’ submissions 75.     The applicants claimed that they had requested access to the disk image at the proper points during the trial. They stressed that they had needed to inspect the image not to call into question the work of the police examiner but to expose the investigators’ dishonesty. The inspection of the image by their expert would not have inconvenienced the Assize Court or delayed the trial. The applicants contended that the Assize Court should have given its own reasons for the refusal instead of merely adopting the reasons put forward by the prosecution. The applicants also argued that, at the time of their request, it had been premature for the Assize Court to concern itself with procedural equality between the parties. 76.     Citing, among other authorities, Natunen v.   Finland , no.   21022/04, §   43, 31 March 2009, the Government argued that the prosecution did not have to disclose to the defendant material evidence that might exonerate him or her unless the defendant had given “specific reasons” for wishing to see it. However, the disk image requested by the applicants’ lawyer had not been “evidence” – the true evidence had been the documents it contained. The lawyer had had his own copy of the image and thus its full contents. The Government struggled to see the relevance of document-access timestamps for aiding the defence. They argued that the lawyer’s intention had been to launch a “fishing expedition” and go through the prosecution’s disk image in the hope of finding material that appeared to compromise the investigative work. Since that hope had been groundless, the lawyer’s reasons for requesting the disk image had not been “specific”. The lawyer had also failed to make it plain to the Assize Court his idea that the disk image could help him discredit N.L. (see paragraph   30 above). The applicants had themselves to blame for the refusal, since they had requested access to the disk image so late in the trial that allowing them that access would have created a disparity between the parties. Further, the defence expert could have compromised the integrity of the prosecution’s disk image. Lastly, the question of the disk image was not directly related to the charges faced by Venizelos Zannettos.      The Court’s assessment 77.     The Court reiterates that failure to disclose to the defence material evidence which contains such particulars as could enable the accused to exonerate him or herself or   have his or her sentence reduced would constitute a refusal of the facilities necessary for the preparation of the defence, and therefore a violation of the   right guaranteed in Article 6 of the Convention. The accused may, however, be expected to give specific reasons for his request and the domestic courts are entitled to examine the validity of these reasons (see Matanović v. Croatia , no. 2742/12, § 157, 4 April 2017, with further references). An issue with regard to access to evidence may arise under Article 6 in so far as the evidence at issue is relevant to the applicant’s case, specifically if it had an important bearing on the charges held against the applicant. It should be also noted that the relevant evidence in this context is not only evidence directly relevant to the facts of the case but also other evidence that might relate to the admissibility, reliability and completeness of the former (ibid . , § 161, with further references). 78.     The Court observes that, in the present case, contrary to the Government’s argument, the data requested constituted in principle “evidence” for the purposes of Article 6 § 3 (b) of the Convention, as it related to the reliability of the evidence of a material witness, that is, N.L. 79.     The Court notes that the domestic courts duly examined the applicants’ arguments and gave reasoned decisions for rejecting them. The Assize Court dismissed the applicants’ request on the grounds that granting it would unduly disadvantage the prosecution, given that the request had been submitted at a late stage of the proceedings (see paragraph 32 above). Further, the Supreme Court, on reviewing the applicants’ appeal, held that the rejection of the request had not disadvantaged the defence as the defence had had its own copy of the image containing all the crucial documents and disclosure of the exact disk image might allow tampering with the evidence, while the defence had been able to put questions to the forensic examiner so as to test the quality of her work (see paragraph 47 above). 80.     The Court also notes that it is not disputed between the parties that the applicants had access to all the contents of the disk drive in question, including all the documents that were relied upon by the prosecution. The only “reason” raised by the applicants for wanting access to the evidence in question was that it would show collusion between N.L. and the prosecution. In particular, the defence alleged that if it had access to the disk image used by the prosecution, it might be able to prove that the investigators had accessed the documents in question earlier than the prosecution claimed: that would in turn have allowed it to show that the prosecution had directed N.L.’s testimony (see paragraph 30 above). 81.     The Court finds it difficult to see why knowing the time at which the documents in question were accessed by the investigators was crucial for demonstrating collusion between N.L. and the prosecution. Even if the investigators had accessed the documents earlier than they had admitted, it is not clear how those documents could have been used to direct N.L.’s testimony. The documents in question concerned a company controlled by N.L. and it is therefore reasonable to suppose that N.L. would have been aware of their content even without the prosecution bringing them to his attention (see paragraphs 8, 9 and 27 above). The Court therefore considers that obtaining the prosecution’s disk image would not in itself have been of any assistance to the defence and finds that, in any event, the reasons given by the applicants and their overall arguments are entirely hypothetical (see, mutatis mutandis, M v. the Netherlands , no. 2156/10, § 68-69, 25 July 2017). 82.     There has accordingly been no violation of Article   6 §§ 1 and 3 (b) of the Convention. FOR THESE REASONS, THE COURT Declares , unanimously, the application admissible; Holds , by five votes to two, that there has been no violation of Article   6   §   1 of the Convention on account of the courts’ reliance on the testimony given by the applicants’ accomplice; Holds , by five votes to two, that there has been no violation of Article   6   §§   1 and 3 (b) of the Convention. Done in English, and notified in writing on 26 November 2024, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Milan Blaško   Pere Pastor Vilanova   Registrar   President   In accordance with Article   45 §   2 of the Convention and Rule   74 §   2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a)     Joint dissenting opinion of Judges Serghides and Zünd; (b)     Dissenting opinion of Judge Serghides.     JOINT DISSENTING OPINION OF JUDGES SERGHIDES AND ZÜND         Introduction 1.     The applicants complained that their trial, which led to their conviction and imprisonment, had been unfair. Firstly, they argued that their conviction was unsafe because it relied on the testimony of a key prosecution witness (N.L.) who was an accomplice and had been granted immunity from prosecution. Secondly, they claimed that they had not been allowed to search the prosecution’s disk image for traces of collusion between the prosecution and the accomplice who had implicated them. They relied on Article 6 § 1 of the Convention, which, inter alia , provides that “in the determination of any criminal charge against him, everyone is entitled to a fair and public hearing” and also on Article 6 § 3 (b) of the Convention, which provides that “everyone charged with a criminal offence has the following minimum rights: ... (b) to have adequate time and facilities for the preparation of his defence”. 2.     We respectfully disagree with the judgment that there has been no violation of Article 6 § 1 of the Convention on account of the courts’ reliance on the testimony given by the applicants’ accomplice. We also respectfully disagree with the judgment that there has been no violation of Article 6 § 3 (b) taken together with Article 6 § 1 of the Convention. This is why we have voted against points 2 and 3 of the operative provisions of the judgm