Information Note on the Court’s case-law 31

June 2001

Atlan v. the United Kingdom - 36533/97

Judgment 19.6.2001 [Section III]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Equality of arms

Non-disclosure of material by the prosecution: violation

Facts : Following a surveillance operation by the customs authorities, the applicants were convicted of importing cocaine. They maintained that they had been falsely implicated by a Mr Steiner, who they claimed was an informer. Under cross-examination, customs officers refused to confirm or deny whether an informer had been involved. The prosecution affirmed that there was no undisclosed material. However, whil e an appeal was pending, the applicants' lawyer learned of a Swiss police report in which Mr Steiner was named as an informer of several European police forces. The prosecution declined to confirm or deny the authenticity of the report's contents and repea ted that it held no undisclosed material relevant to the issues at trial. However, the prosecution subsequently admitted that undisclosed material did exist and applied ex parte to the Court of Appeal for a ruling on whether it was entitled not to disclose the material on the ground of public interest immunity. After hearing the applicants’ application to admit new evidence and holding an ex parte hearing in the absence of the defence lawyers, the Court of Appeal ruled that justice did not require disclosur e of the material by the prosecution.

Law : Article 6 § 1 – It is clear that the repeated denials by the prosecution of the existence of undisclosed relevant material and the failure to inform the trial judge of the true position were not consistent with th e requirements of this provision, and the issue is whether the ex parte procedure was sufficient to remedy this unfairness at first instance. Although the nature of the undisclosed material has never been revealed, the sequence of events raises a strong su spicion that it concerned Mr Steiner, his relationship with the British customs authorities and his role in the applicants' arrest. The allegations concerning Mr Steiner were central to the applicants' defence and they expressly asked the prosecution if th ere was undisclosed material relevant to this issue. The trial judge is best placed to decide whether or not the non-disclosure of public interest immunity evidence would be unfairly prejudicial to the defence and, moreover, in this case the trial judge mi ght have chosen a very different form of words for his summing up to the jury had he seen the evidence. The prosecution’s failure to lay the material before the trial judge and let him rule on the question of disclosure deprived the applicants of a fair tr ial.

Conclusion : violation (unanimously).

Article 41 – The Court could not speculate as to whether the applicants would have been convicted had the violation not occurred and considered that the finding of a violation constituted in itself sufficient just satisfaction for any pecuniary or non-pecu niary damage they may have suffered. It made an award in respect of costs and expenses.

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

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