CONCURRING OPINION OF JUDGE BRATZA

I have voted with the majority of the Chamber on all of the Convention issues raised by the case, but with serious hesitations on the question of the restrictions on the applicants ’ access to the case-file.

It is undisputed that part of the case-file and the written reasons for the bill of indictment were classified as containing information covered by professional secrecy. The President of the 3 rd Criminal Division of the Regional Court authorised the applicants, their counsel and the prosecution to consult the record of the opening of the parcel, the transcript of the secret recordings and the photographic evidence but this had to be done in the secret registry in which the classified material was held. Moreover, the parties were informed that they would be criminally liable in the event of their failure to respect the confidentiality of the information.

What is less clear from the written pleadings of the parties is the extent to which, if at all, the applicants and their counsel were authorised to make notes of the contents of the files in the secret registry. In the observations of the Government it is suggested that, in accordance with Article 156 § 4 of the Code of Criminal Procedure, the applicants were allowed to take notes from the case-file but that they were not permitted to remove those notes from the secret registry of the Court. However, this is difficult to reconcile with the terms of paragraph 10.3 of the Ordinance of the Ministry of Justice of 18 June 2003, set out in paragraph 43 of the judgment, which explicitly prohibits the making of copies of, and the taking of notes from, classified files and documents. It would also appear to be inconsistent with the judgment of the Court of Appeal in the present case, in which it was noted that the consultation of classified evidence meant “accepting certain conditions, including the prohibition on taking notes on the contents of such evidence”. As to the provisions of the Criminal Code referred to by the Government, I have doubts as to its application in a case such as the present, where the case-file is classified as containing information covered by professional secrecy and thus subject to the special provisions in the Ordinance of the Ministry of Justice.

I have great difficulty in seeing a justification for a system which, in addition to enabling hearings in criminal proceedings to be held in camera and requiring the participants, under the threat of penal sanctions, to keep classified information confidential, imposes additional restrictions on defendants and their counsel by obliging them to consult classified files in a secret registry and precluding them from copying or making any notes on their contents for use in defending the proceedings. The Court has, on previous occasions, emphasised that an accused ’ s effective participation in a criminal trial must equally include the right to compile notes in order to facilitate the conduct of his defence, irrespective of whether or not he is represented by counsel (see, for example, Pullicino v. Malta ( dec .), no. 45441/99, 15 June 2000; Matyjek v. Poland , no. 38184/03, § 59, ECHR 2007/05).

The restrictions imposed on the present applicants were more substantial than those considered by the Court to be objectionable in the Matyjek case, in which the applicant had been authorised to make notes when consulting his case-file, although such notes could be made only in special notebooks that were sealed and could not be removed from the secret registry. It is pointed out by the Government that, in contrast to the Matyje k case, in which the Commissioner of the Public Interest was found by the Court to have had privileged access to confidential documents in the lustration proceedings, the prosecution and defence in the present case were subject to the same restrictions as regards access to the case-file, including the lack of possibility of taking notes on its contents. Even accepting this to be the case, it is, in my view, no answer to the principal complaint of the applicants, which is not that the restrictions upset the equality of arms between the parties but that they were an impediment to the effective conduct of the defence in their criminal trial. As the Court observed, in the different context of lustration proceedings in the Matyjek case, when regard is had to what is at stake for defendants in a criminal trial, it is in principle important for the defendant to have unrestricted access to the files and unrestricted use of any notes which they made, including the possibility of obtaining copies of relevant documents.

The Court of Appeal in the present case accepted that the restrictions amounted to “impediments in conducting the defence” but held that they were not to be seen as limitations on the rights of the defence: it was said that counsel could memorise the content of the evidence which they had consulted and use that evidence, while respecting the requirement of confidentiality, either when pleading at the closed hearings or with due diligence in their written submissions.

I am wholly unpersuaded that reliance by counsel on his or her memory of the contents of a file which had previously been read in a secret registry could in general be regarded as an effective substitute for direct access during the trial to the file itself or to notes taken from it; nor can I accept that to require counsel to argue the case on the sole basis of his or her recollection of the contents of the file would not in general be seen as a serious limitation on the rights of the defence.

What, in the end, has persuaded me that there was here no violation of Article 6 is the fact that it has not been convincingly shown that the rights of the defence were in practice prejudiced by the restrictions imposed in the particular circumstances of the present case. In this regard, I place emphasis not merely on the finding of the Court of Appeal, which was able to examine the case as a whole, that the impediments on the conduct of the defence were of a minor degree but on the fact that none of the applicants ’ counsel appear at any stage to have claimed that they had experienced particular difficulty in presenting their defence as a result of having to rely on their memory of the contents of the classified files, which they had examined on 28 May 2003. Indeed, when on 10 September 2003 the first applicant requested the trial court to reverse its earlier decision to conduct the proceedings in camera and complained that her defence rights had been limited because she had not been allowed to make notes from the classified file, her counsel did not take a stand on the request, stating that it was the first applicant ’ s personal view on the matter.

However, as is correctly stressed in the judgment, this conclusion is confined to the specific circumstance of the applicants ’ case. The restrictions currently imposed under domestic law may well in a different case, where the classified case-file is more substantial, lead the Court to a different conclusion. The concerns to which this case gives rise are such that in my view the current system of classification of documents, and the measures restricting effective access to classified material by defendants and their counsel in a criminal trial, should be urgently reviewed to ensure their full compliance with the requirements of a fair trial in Article 6 of the Convention.

[1] . This Ordinance replaced the Ordinance of the Minister of Justice of 1 December 1998 r. on depositing transcripts of questioning related to information covered by state secrecy, professional secrecy or secrecy related to the exercise of a profession or function.