KENNEDY v. THE UNITED KINGDOM JUDGMENT
57
determined in a public judgment after an inter partes hearing. Further, the
IPT had full powers to obtain any material it considered necessary from
relevant bodies and could call upon the assistance of the Commissioner. It
could appoint an advocate to assist it at closed hearings. Finally, in the event
that the complainant was successful, a reasoned decision would be provided.
The Government accordingly disputed that the very essence of the
applicant's right to a fair trial had been impaired.
b. The Court's assessment
184. The Court reiterates that according to the principle of equality of
arms, as one of the features of the wider concept of a fair trial, each party
must be afforded a reasonable opportunity to present his case under
conditions that do not place him at a substantial disadvantage vis-à-vis his
opponent (see, for example, Jespers v. Belgium, no. 8403/78, Commission
decision of 15 October 1980, Decisions and Reports (DR) 27, p. 61;
Foucher v. France, judgment of 18 March 1997, Reports 1997-II, § 34; and
Bulut v. Austria, judgment of 22 February 1996, Reports 1996-II, p. 380-81,
§ 47). The Court has held nonetheless that, even in proceedings under
Article 6 for the determination of guilt on criminal charges, there may be
restrictions on the right to a fully adversarial procedure where strictly
necessary in the light of a strong countervailing public interest, such as
national security, the need to keep secret certain police methods of
investigation or the protection of the fundamental rights of another person.
There will not be a fair trial, however, unless any difficulties caused to the
defendant by a limitation on his rights are sufficiently counterbalanced by
the procedures followed by the judicial authorities (see, for example,
Doorson v. the Netherlands, judgment of 26 March 1996, § 70, Reports
1996-II; Jasper v. the United Kingdom [GC], no. 27052/95, §§ 51 to 53,
ECHR 2000-II; and A. and Others v. the United Kingdom [GC],
no. 3455/05, § 205, ECHR 2009-....). A similar approach applies in the
context of civil proceedings.
185. The Court notes that the IPT, in its preliminary ruling of 23 January
2003, considered the applicant's complaints regarding the compliance of the
Rules with Article 6 § 1. It found that, with the exception of Rule 9(6)
which required all oral hearings to be held in private, the Rules challenged
by the applicant were proportionate and necessary, with special regard to the
need to preserve the Government's “neither confirm nor deny policy” (see
paragraphs 92 to 95 above).
186. At the outset, the Court emphasises that the proceedings related to
secret surveillance measures and that there was therefore a need to keep
secret sensitive and confidential information. In the Court's view, this
consideration justifies restrictions in the IPT proceedings. The question is
whether the restrictions, taken as a whole, were disproportionate or impaired
the very essence of the applicant's right to a fair trial.