Yakuba v. Ukraine (Application No. 1452/09)

Key paragraph(s) can be found below the document.

33. It appears from the arresting officers’ reports that force was indeed used against the applicant on the day of the arrest (see paragraph 11 above). However, by his own admission (see paragraph 19 above), the applicant had attempted to destroy evidence, and the police deployed force to prevent that destruction and arrest him. Therefore, there is no reason to cast doubt on the domestic authorities’ conclusions in that respect (see paragraph 13 above). The case-file material, in particular the medical evidence, fully supports those findings (see paragraph 12 above). Under such circumstances, the Court finds no reason to doubt that that use of force was made strictly necessary by the applicant’s own conduct.

44. However, the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6 § 1. Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (see Rowe and Davis, cited above, § 61).

51. That procedure was such that it permitted the prosecution to determine the meaning of that incriminating material, outside of any scrutiny not only by the defence but also by the domestic courts (see, mutatis mutandis, Rowe and Davis, cited above, § 63, and contrast Jasper v. the United Kingdom [GC], no. 27052/95, § 56, 16 February 2000). The summary of the video used in the proceedings was prepared by the investigator rather than by an independent party under judicial supervision (contrast Matanović, cited above, § 164). The domestic courts showed no consideration for the interests of the defence, engaged in no apparent examination of the question of whether there was real need to protect P.’s identity, and based the applicant’s conviction, in part, on undisclosed material which the prosecution alone was allowed to see and the meaning of which the prosecution was allowed to determine outside of any control (see paragraphs 18 and 24 above).

53. There has, accordingly, been a violation of Article 6 §§ 1 and 3 of the Convention on account of the admission of P.’s untested pre-trial statements in evidence against the applicant and the non-disclosure of the video recording of the test purchase.