Information Note on the Court’s case-law 206

April 2017

Matanović v. Croatia - 2742/12

Judgment 4.4.2017 [Section II]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Absence of effective judicial procedure for determining whether evidence held by prosecution should be disclosed to defence: violation

Facts – The applicant, a public official, was placed under special surveillance during an investigation int o alleged corruption. Following his trial with a number of other accused, he was convicted of various offences and sentenced to eleven years’ imprisonment. The evidence against him included recordings of conversations made during the special surveillance o peration. In the Convention proceedings, the applicant alleged, inter alia , that he had been denied a fair trial (Article 6 § 1 of the Convention) because he had not been given access to the original recordings and because some of the recordings had not be en disclosed to him at all on the grounds that they were not relevant to his case and touched upon the private lives of third parties.

Law – Article 6 § 1 ( non-disclosure and use of evidence obtained by special investigative measures ): The applicant’s comp laints of procedural unfairness related to his impaired access to three main categories of evidence obtained by the use of secret surveillance measures.

The first category concerned surveillance recordings submitted in evidence and relied upon for the appl icant’s conviction. The Court noted that the applicant had had access to transcripts of the recordings commissioned by the investigating judge and the trial court and prepared by an expert whose independence and impartiality were never called into question . The recordings were played back at the trial, the applicant was given an ample opportunity to compare the transcripts against the played material and his objections concerning the discrepancies between the transcripts and the recordings were duly attende d to and further expert reports were commissioned in order to clarify those discrepancies. The applicant had also availed himself of the opportunity to question the validity of the evidence at issue and the domestic courts had given thorough answers to his objections. The applicant had never contested that the recorded conversations took place or challenged the authenticity of the recordings. The Court therefore concluded that there had been no unfairness as regards the recordings falling into the first cat egory.

The second category concerned recordings of the applicant and the other accused that were not relied upon for the applicant’s conviction. As regards this category, the Court noted that, despite being given access to sufficiently detailed reports on his conversations with third parties, the applicant had failed to make any specific argument concerning the possible relevance of the evidence at issue at any point during the domestic proceedings. The Court was thus not able to conclude that his alleged i mpossibility to access the recordings belonging to this category was of itself sufficient to find a breach of his right to a fair trial. Nevertheless, in its assessment of the overall fairness of the proceedings, it would remain mindful of this restriction on the applicant’s defence rights.

The third category of evidence comprised recordings concerning other individuals who were not ultimately prosecuted and were not relied on in the applicant’s conviction. The applicant was denied access to any information on the grounds that he had no right of access to the recordings as they were not relevant to his case and touched upon the private lives of others. However, no procedure was put in place which would allow the competent court to assess, upon the applicant’s application, their relevance to th e case, specifically whether they contained such particulars as could enable the applicant to exonerate himself or to have his sentence reduced or whether they bore relevance to the admissibility, reliability and completeness of the evidence adduced during the proceedings. The Supreme Court’s finding that the State Attorney had been in a position to make a selection of the evidence to be used in the proceedings was at variance with the Court’s case-law according to which a procedure whereby the prosecuting authorities themselves attempt to assess what may be relevant, without any further procedural safeguards for the rights of the defence, cannot comply with the requirements of Article 6 § 1.

It was therefore evident that, in view of the deficient procedure for the disclosure of the evidence under consideration, the applicant had not been in a position to form a specific argument as to the relevance of the evidence in question and to have the competent court examine his application in the light of his right t o effectively prepare his defence. He was thus prevented from having a procedure whereby it could be established whether the evidence in the possession of the prosecution that had been excluded from the file might have reduced his sentence or put into doub t the scope of his alleged criminal activity.

Conclusion : violation (unanimously).

Article 41: EUR 1,500 in respect of non-pecuniary damage (four votes to three); claim in respect of pecuniary damage dismissed.

The Court also held, unanimously, that there had been no violation of Article 8 of the Convention and no violation of Article 6 § 1 with regard to the applicant’s plea of entrapment.

© Council of Europe/European Court of Human Rights This summary by the R egistry does not bind the Court.

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