80
A. AND OTHERS v. THE UNITED KINGDOM JUDGMENT
Doorson v. the Netherlands, 26 March 1996, § 70, Reports 1996-II; Van
Mechelen and Others v. the Netherlands, 23 April 1997, § 58, Reports
1997-III; Jasper v. the United Kingdom [GC], no. 27052/95, §§ 51-53,
16 February 2000; S.N. v. Sweden, no. 34209/96, § 47, ECHR 2002-V; and
Botmeh and Alami v. the United Kingdom, no. 15187/03, § 37, 7 June
2007).
206. Thus, while the right to a fair criminal trial under Article 6 includes
a right to disclosure of all material evidence in the possession of the
prosecution, both for and against the accused, the Court has held that it
might sometimes be necessary to withhold certain evidence from the
defence on public-interest grounds. In Jasper (cited above, §§ 51-53), it
found that the limitation on the rights of the defence had been sufficiently
counterbalanced where evidence which was relevant to the issues at trial,
but on which the prosecution did not intend to rely, was examined ex parte
by the trial judge, who decided that it should not be disclosed because the
public interest in keeping it secret outweighed the utility to the defence of
disclosure. In finding that there had been no violation of Article 6, the Court
considered it significant that it was the trial judge, with full knowledge of
the issues in the trial, who carried out the balancing exercise and that steps
had been taken to ensure that the defence were kept informed and permitted
to make submissions and participate in the decision-making process as far
as was possible without disclosing the material which the prosecution
sought to keep secret (ibid., §§ 55-56). In contrast, in Edwards and Lewis v.
the United Kingdom ([GC], nos. 39647/98 and 40461/98, §§ 46-48, ECHR
2004-X), the Court found that an ex parte procedure before the trial judge
was not sufficient to secure a fair trial where the undisclosed material
related, or may have related, to an issue of fact which formed part of the
prosecution case, which the trial judge, rather than the jury, had to
determine and which might have been of decisive importance to the
outcome of the applicants’ trials.
207. In a number of other cases where the competing public interest
entailed restrictions on the rights of the defendant in relation to adverse
evidence, relied on by the prosecutor, the Court has assessed the extent to
which counterbalancing measures can remedy the lack of a full adversarial
procedure. For example, in Lucà v. Italy (no. 33354/96, § 40, ECHR
2001-II), it held that it would not necessarily be incompatible with Article 6
§ 1 for the prosecution to refer at trial to depositions made during the
investigative stage, in particular where a witness refused to repeat his
deposition in public owing to fears for his safety, if the defendant had been
given an adequate and proper opportunity to challenge the depositions,
either when made or at a later stage. It emphasised, however, that where a
conviction was based solely or to a decisive degree on depositions that had
been made by a person whom the accused had had no opportunity to
examine or to have examined, whether during the investigation or at the
Sélectionner le paragraphe cible3
Se connecter à un paragraphe
Connect to an entity
Disable highlights
Ajouter à la table des matières