CONCURRING OPINION OF JUDGE KARAKAÅž

1. I do not share the Court ’ s assessment concerning the second category of evidence, namely 194 CD and 4 DVD recordings of the secret surveillance of the applicant and the other accused (see paragraphs 175-77).

2. According to the Court, in respect of this category of evidence the applicant had access to the reports on his conversations with third parties prepared in the course of the use of secret surveillance measures. The Court notes that “it appears from the material before it that these reports were sufficiently detailed so as to allow the applicant to form specific arguments as to the possible relevance of the particular parts of the recordings for his case” (see paragraph 175).

3. At this point I should observe that the information provided in these reports was in the hands of the prosecuting authorities and their reliability and completeness were never verified by the trial court or any other independent body, as had been the case with the recordings used as evidence in the proceedings in respect of which an independent and impartial expert had prepared the relevant transcripts (see paragraph 164).

4. Moreover, at no point was the applicant given an effective opportunity to examine the secret surveillance recordings themselves. The findings by the Zagreb County Court that the applicant could have examined the relevant recordings in the court-house conflict with the fact that the applicant ’ s repeated applications to secure him that opportunity were never attended to. Defence counsel asked the Zagreb County Court for access to and the possibility to examine the secret surveillance recordings. They stressed that the CD and DVD material had never been made available to the defence and that there were no technical means available in the court-house which would allow for the examination of the recordings by the defence . They also pointed out that, because of the technical impossibility of examining the recordings in the court-house, the practice of the Zagreb County Court in several other cases had been to make copies of the CD and DVD recordings and to send them to the defence (see paragraph 47).

5. It was impossible for the defence to obtain access to and examine the secret surveillance recordings by any means whatsoever. The arguments of the defence lawyers that the Zagreb County Court was unable to facilitate access to the recordings were arguably never refuted. Moreover, the applicant ’ s argument regarding the existence of discrepancies between the transcripts and the recordings was also accepted by the lead prosecutor (see paragraph 50).

6. “The right to an adversarial trial means, in a criminal case, that both the prosecution and the defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In addition, Article 6 § 1 requires that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused” (see Edwards and Lewis v. the United Kingdom [GC], nos. 39647/98 and 40461/98, ECHR 2004 ‑ X ).

7. Therefore I am unable to accept that access to the recordings in the facilities of the Zagreb County Court was a viable possibility for the defence to assess the contents of the relevant recordings. In these circumstances, their ability to prepare their defence concerning the secret surveillance measures falling within the second category of evidence was seriously impaired.

8. According to the majority, due to the applicant ’ s failure to make any specific argument concerning the possible relevance of the evidence at issue, “the Court is not able to conclude that the alleged impossibility for the applicant to gain access to the recordings belonging to the second category of evidence is of itself sufficient to find a breach of his right to a fair trial” (see paragraph 177). This assessment is highly problematic. The defence cannot gain access to the content of the CDs and DVDs belonging to the second category which may contain evidence capable of affecting the determination of the applicant ’ s culpability. Without having access to all relevant evidentiary material, how can the applicant form a specific argument about the relevance of material which remained unavailable to him throughout the entire proceedings? The limitations on access to the relevant evidence prevented the defence from forming specific arguments as to the relevance of the evidence in question and from having an opportunity to prepare the defence effectively.

9. Moreover, it is difficult to see how the majority ’ s assessment squares with the principle according to which unrestricted access to the case file and unrestricted use of any notes, including, if necessary, the possibility of obtaining copies of relevant documents, are important guarantees of a fair trial. The Court has already found in its case-law that the failure to afford such access has weighed in favour of the finding that the principle of equality of arms had been breached. This is because importance is attached to appearances as well as to increased sensitivity to the fair administration of justice. Respect for the rights of the defence requires that limitations on access by an accused or his lawyer to the court file must not prevent the evidence being made available to the accused before the trial and the accused being given an opportunity to comment on it through his lawyer in oral submissions (see paragraph 159 of the judgment, with further references). None of this, in my view, is properly appreciated in the majority ’ s assessment of the applicant ’ s right of access to the second category of evidence.

10. Even though the majority remain mindful of this restriction for the applicant ’ s defence rights (see paragraph 177 in fine ), I think that the lack of effective access to the second category of evidence was of such importance that it significantly prejudiced the applicant ’ s right to a fair trial.