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BYKOV v. RUSSIA - 4378/02 [2009] ECHR 441 (10 March 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/441.html
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[2009] ECHR 441
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GRAND
CHAMBER
CASE OF
BYKOV v. RUSSIA
(Application
no. 4378/02)
JUDGMENT
STRASBOURG
This
judgment is final but may be subject to editorial revision.
In the case of Bykov v. Russia,
The
European Court of Human Rights, sitting as a Grand Chamber composed
of:
Jean-Paul
Costa, President,
Christos
Rozakis,
Nicolas Bratza,
Peer Lorenzen,
Françoise
Tulkens,
Josep Casadevall,
Ireneu Cabral Barreto,
Nina
Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar
Hajiyev,
Ljiljana Mijović,
Dean Spielmann,
David
Thór Björgvinsson,
George Nicolaou,
Mirjana
Lazarova Trajkovska,
Nona Tsotsoria, judges,
and
Michael O'Boyle, Deputy
Registrar,
Having
deliberated in private on 18 June 2008 and on 21 January 2009,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 4378/02) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Anatoliy Petrovich Bykov
(“the applicant”), on 21 December 2001.
The
applicant was represented by Mr D. Krauss, Professor of Law at
Humboldt University, Berlin, and by Mr J.-C. Pastille and Mr G.
Padva, lawyers practising in Riga and Moscow respectively. The
Russian Government (“the Government”) were initially
represented by Mr P. Laptev and Ms V. Milinchuk, former
Representatives of the Russian Federation at the European Court of
Human Rights, and subsequently by their Representative, Mr
G. Matyushkin.
The
applicant complained under Article 6 § 1 and Article 8 of the
Convention about the covert recording made at his home and its use as
evidence in the ensuing criminal proceedings against him. He also
alleged that his pre-trial detention was excessively long and not
justified for the purposes of Article 5 § 3 of the Convention.
The
application was allocated to the First Section of the Court (Rule 52
§ 1 of the Rules of Court). On 7 September 2006 it was declared
partly admissible by a Chamber of that Section composed of the
following judges: Christos Rozakis, Loukis Loucaides, Françoise
Tulkens, Nina Vajić,
Anatoly Kovler, Elisabeth Steiner, Khanlar Hajiyev, and also of Søren
Nielsen, Section Registrar. On 22 November 2007 a Chamber of that
Section, composed of the following judges: Christos Rozakis, Loukis
Loucaides, Nina Vajić,
Anatoly Kovler, Elisabeth Steiner, Khanlar Hajiyev, Dean Spielmann,
and also of Søren Nielsen, Section Registrar, relinquished
jurisdiction in favour of the Grand Chamber, none of the parties
having objected to relinquishment (Article 30 of the Convention and
Rule 72).
The
composition of the Grand Chamber was determined according to the
provisions of Article 27 §§ 2 and 3 of the Convention and
Rule 24 of the Rules of Court.
The
applicant and the Government each filed written observations on the
merits.
A
hearing took place in public in the Human Rights Building,
Strasbourg, on 18 June 2008 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Ms V.
Milinchuk, Agent,
Ms I. Mayke,
Ms Y. Tsimbalova,
Mr A.
Zazulskiy, Advisers;
(b) for the applicant
Mr D. Krauss,
Mr J.-C.
Pastille, Counsel,
Mr G. Padva,
Ms J.
Kvjatkovska, Advisers.
The
applicant was also present.
The
Court heard addresses by Mr Krauss and Ms Milinchuk, as well as the
answers by Mr Pastille and Ms Milinchuk to questions put to the
parties.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1960 and lives in
Krasnoyarsk.
From
1997 to 1999 the applicant was chairman of the board of the
Krasnoyarsk Aluminium Plant. At the time of his arrest in October
2000 he was a major shareholder and an executive of a corporation
called OAO Krasenergomash-Holding and a founder of a number of
affiliated firms. He was also a deputy of the Krasnoyarsk Regional
Parliamentary Assembly.
A. Covert operation
In
September 2000 the applicant allegedly ordered V., a member of his
entourage, to kill S., the applicant's former business associate. V.
did not comply with the order, but on 18 September 2000 he reported
the applicant to the Federal Security Service of the Russian
Federation (“the FSB”). On the following day V. handed in
the gun which he had allegedly received from the applicant.
On
21 September 2000 the Prosecutor of the Severo-Zapadnyy District of
Moscow opened a criminal investigation in respect of the applicant on
suspicion of conspiracy to murder.
On
26 and 27 September 2000 the FSB and the police decided to conduct a
covert operation to obtain evidence of the applicant's intention to
murder S.
On
29 September 2000 the police staged the discovery of two dead men at
S.'s home. They officially announced in the media that one of those
killed had been identified as S. The other man was his business
partner, I.
On
3 October 2000 V., acting on the police's instructions, came to see
the applicant at his estate. He carried a hidden radio-transmitting
device while a police officer outside received and recorded the
transmission. He was received by the applicant in a “guest
house”, a part of the estate connected to his personal
residence. In accordance with the instructions, V. engaged the
applicant in conversation by telling him that he had carried out the
assassination. As proof of his accomplishment he handed the applicant
several objects taken from S. and I.: a certified copy of a mining
project feasibility study marked with a special chemical agent, two
watches belonging to S. and I. and 20,000 United States dollars (USD)
in cash. At the end of the conversation V. took the cash, as
suggested by the applicant. The police obtained a sixteen-minute
recording of the dialogue between V. and the applicant.
On
4 October 2000 the applicant's estate was searched. Several watches
were seized, including those belonging to S. and I. A chemical
analysis was conducted and revealed the presence on the applicant's
hands of the chemical agent which had been used to mark the
feasibility study. The applicant was arrested.
On
27 February 2001 the applicant complained to the Prosecutor of the
Severo-Zapadnyy District of Moscow that his prosecution had been
unlawful because it involved numerous procedural violations of his
rights, including the unauthorised intrusion into his home and the
use of the radio-transmitting device. On 2 March 2001 the prosecutor
dismissed his complaint, having found, in particular, that the
applicant had let V. into his house voluntarily and that therefore
there had been no intrusion. It was also found that no judicial
authorisation had been required for the use of the radio-transmitting
device because in accordance with the Operational-Search Activities
Act, it was only required for the interception of communications
transmitted by means of wire channels or mail services, none of which
had been employed in the covert operation at issue.
B. Pre-trial detention
Following
the applicant's arrest on 4 October 2000, on 6 October 2000 the
Deputy Prosecutor of the Severo-Zapadnyy District of Moscow ordered
his detention during the investigation, having found that it was “in
accordance with the law” and necessary in view of the gravity
of the charge and the risk that the applicant might influence
witnesses. Further extensions were ordered by the competent
prosecutor on 17 November 2000 (until 21 December 2000) and on
15 December 2000 (until 21 March 2001). The reasons for the
applicant's continued detention were the gravity of the charge and
the risk of his influencing the witnesses and obstructing the
investigation. The applicant appealed against each of these decisions
to a court.
On
26 January 2001 the Lefortovskiy District Court of Moscow examined
the applicant's appeal against his continued detention on remand and
confirmed the lawfulness of his detention. The court referred to the
gravity of the charge and noted that this measure had been applied in
accordance with the law. The applicant lodged a further appeal, which
was also dismissed by the Moscow City Court.
In
view of the forthcoming expiry of the term of the applicant's
detention, its further extension was ordered by the competent
prosecutor, first on 15 March 2001, until 4 April 2001, and then on
21 March 2001, until 4 June 2001, still on the grounds of the gravity
of the charge and the risk of his influencing the witnesses and
obstructing the investigation. The applicant challenged the
extensions before the court.
On
11 April 2001 the Lefortovskiy District Court of Moscow declared that
the applicant's detention until 4 June 2001 was lawful and necessary
on account of the gravity of the charge. The applicant lodged an
appeal with the Moscow City Court, which was dismissed on 15 May
2001. The appeal court considered the applicant's detention lawful
and necessary “until the bill of indictment had been submitted
or until the applicant's immunity had been confirmed”.
On
22 May 2001 the Deputy Prosecutor General extended the applicant's
detention on remand until 4 September 2001, still on the grounds of
the gravity of the charge and the risk of his influencing the
witnesses and obstructing the investigation.
On
27 August 2001 the case was referred to the Tushinskiy District Court
of Moscow. On 7 September 2001 the court scheduled the hearing for
26 September 2001 and authorised the applicant's further
detention without indicating any reasons or the length of the
extension. On 3 October 2001 the Moscow City Court examined and
dismissed an appeal by the applicant, upholding his continued
detention without elaborating on the reasons.
On
21 December 2001 the Meshchanskiy District Court of Moscow scheduled
the hearing for 4 January 2002 and authorised the applicant's further
detention, citing no reasons. The court did not indicate the length
of the prospective detention. It again reviewed the lawfulness of the
applicant's detention on 4 January 2002 but found that it was still
necessary owing to the gravity of the charges and the “circumstances
of the case”. An appeal by the applicant to the Moscow City
Court was dismissed on 15 January 2002.
Further
applications by the applicant for release were examined on
23 January, 6 March, 11 March and 23 April 2002. As before, the
Meshchanskiy District Court of Moscow refused his release, citing the
gravity of the charge and the risk of his evading trial and
influencing the witnesses. The applicant was released on 19 June 2002
following his conviction (see paragraph 45 below).
C. Criminal investigation and trial
On
3 October 2000, immediately after visiting the applicant in the
“guest house”, V. was questioned by the investigators. He
reported on the contents of his conversation with the applicant and
submitted that he had handed him the gun, the watches and the
feasibility study. He was subsequently questioned on 12 October, 9
November, 8 December and 18 December 2000.
The
applicant was questioned as a suspect for the first time on 4 October
2000. From October to December 2000 he was questioned at least seven
times.
On
10 October 2000 the applicant and V. were questioned in a
confrontation with each other. The applicant's legal counsel were
present at the confrontation. The statements made by the applicant on
that occasion were subsequently summarised in the indictment, of
which the relevant part reads as follows:
“At the confrontation between A.P. Bykov and [V.]
on 10 October 2000 Bykov altered, in part, certain substantive
details of his previous statements, as follows. [He] claims that he
has been acquainted with [V.] for a long time, about 7 years; they
have normal relations; the last time he saw him was on 3 October
2000, and before that they had been in contact about two years
previously. He has never given any orders or instructions to [V.],
including any concerning [S.]. When [V.] came to see him on 3 October
2000 he began to tell him off for coming to him. When he asked [V.]
who had told him to kill [S.] he replied that nobody had, he had just
wanted to prove to himself that he could do it. He began to comfort
[V.], saying that he could help with his father; [he] did not suggest
that [V.] flee the town [or] the country, and did not promise to help
him financially. He did not instruct [V.] on what to do if [V.] was
arrested; he asked him what was going to happen if he was arrested;
[V.] said that he would tell how it all happened and would confess to
having committed the crime, [and the applicant] approved of that.
Concerning K., Bykov stated that this was his partner who lived and
worked in Switzerland; he admitted de facto that he had spoken
to him on the phone at the beginning of August ... but had given him
no directions about [V.]”
On
13 October 2000 the applicant was charged with conspiracy to murder.
Subsequently the charges were extended to include conspiracy to
acquire, possess and handle firearms.
On
8 December 2000 two appointed linguistic experts examined the
recording of the applicant's conversation with V. of 3 October 2000
and answered the following questions put to them:
“1. Is it possible to establish, on the
basis of the text of the conversation submitted for examination, the
nature of relations between Bykov and [V.], the extent of their
closeness, sympathy for each other, subordination; how is it
expressed?
2. Was Bykov's verbal reaction to [V.]'s
statement about the 'murder' of [S.] natural assuming he had ordered
the murder of [S.]?
3. Are there any verbal signs indicating that
Bykov expressed mistrust about [V.]'s information?
4. Is it possible to assess Bykov's verbal
style as unequivocally aiming at closing the topic, ending the
conversation?
5. Are there any identifiable stylistic,
verbal signs of fear (caution) on Bykov's part in relation to [V.]?”
In respect of the above questions the experts found:
– on
question 1, that the applicant and V. had known each other for a long
time and had rather close and generally sympathetic relations; that
V. had shown subordination to the applicant; that the applicant had
played an instructive role in the conversation;
– on
question 2, that the applicant's reaction to V.'s information about
the accomplished murder was natural and that he had insistently
questioned V. on the technical details of its execution;
– on
question 3, that the applicant had shown no sign of mistrusting V.'s
confession to the murder;
– on
question 4, that the applicant had not shown any clear signs of
wishing to end or to avoid the conversation;
– on
question 5, that the applicant had not shown any fear of V.; on the
contrary, V. appeared to be afraid of the applicant.
On
11 January 2001 the investigation was completed and the applicant was
allowed access to the case file.
On
27 August 2001 the case was referred to the Tushinskiy District Court
of Moscow.
On
22 October 2001 the Tushinskiy District Court declined jurisdiction
in favour of the Meshchanskiy District Court of Moscow, having
established that the venue of the attempted murder lay within that
court's territorial jurisdiction.
On
16 December 2001 V. made a written statement certified by the Russian
consulate in the Republic of Cyprus repudiating his statements
against the applicant. He submitted that he had made those statements
under pressure from S. Two deputies of the State Duma, D. and Y.S.,
were present at the consulate to witness the repudiation. On the same
day they recorded an interview with V. in which he explained that S.
had persuaded him to make false statements against the applicant.
On
4 February 2002 the Meshchanskiy District Court of Moscow began
examining the charges against the applicant. The applicant pleaded
not guilty. At the trial he challenged the admissibility of the
recording of his conversation with V. and of all other evidence
obtained through the covert operation. He alleged that the police
interference had been unlawful and that he had been induced into
self-incrimination. Furthermore, he claimed that the recording had
involved unauthorised intrusion into his home. He contested the
interpretation of the recording by the experts and alleged that
nothing in his dialogue with V. disclosed prior knowledge of a murder
conspiracy.
During
the trial the court dismissed the applicant's objection to the covert
operation and admitted as lawfully obtained evidence the recording
with its transcript, the linguistic expert report, V.'s statements,
and the evidence showing that the applicant had accepted the
feasibility study and the watches from V. It dismissed the argument
that there had been an unauthorised intrusion into the applicant's
premises, having found, firstly, that the applicant had expressed no
objection to V.'s visit and, secondly, that their meeting had taken
place in the “guest house”, which was intended for
business meetings and therefore did not encroach on the applicant's
privacy. The court refused to admit as evidence the official records
of the search at the applicant's estate because the officers who had
conducted the search on 4 October 2000 had not been covered by the
authorisation.
The
following persons were examined in the oral proceedings before the
court:
S.
explained his relations with the applicant and their conflict of
interests in the aluminium industry. He confirmed that he had
participated in the covert operation; he also confirmed that in 2001
V. had told him that he had been paid off to withdraw his statements
against the applicant.
Twenty-five
witnesses answered questions concerning the business links of the
applicant, V. and S. with the aluminium plant and other businesses in
Krasnoyarsk; the relations and connections between them; the
existence of the conflict of interests between the applicant and S.;
the events of 3 October 2000, namely the arrival of V. at the
“guest house”, his conversation with the applicant and
the handing of the documents and the watches to the applicant; and
the circumstances surrounding V.'s attempted withdrawal of his
statements against the applicant.
Seven
experts were examined: a technical expert gave explanations about the
recording of data received by way of a radio-transmitting device; a
sound expert explained how a transcript of the recording of the
applicant's conversation with V. had been produced; two expert
linguists submitted that they had used both the tape and the
recording transcript in their examination; an expert psychologist
answered questions concerning his findings (evidence subsequently
excluded as obtained unlawfully – see paragraph 43 below); and
two corroborative experts upheld the conclusions of the expert
linguists and the sound experts.
Seven
attesting witnesses answered questions concerning their participation
in various investigative measures: the receipt of the gun handed in
by V., the copying of the video and audio tapes, the treatment of the
material exhibits with a chemical agent, the “discovery of the
corpses” in the operative experiment, and the house search.
Four
investigation officers were examined: an FSB officer submitted that
on 18 September 2000 V. had written a statement in his presence that
the applicant had ordered him to kill S., and had handed in the gun;
he also explained how the operative experiment had been carried out;
two officers of the prosecutor's office and one officer of the
Interior Ministry also described the operative experiment and
explained how the copies of the recording of the applicant's
conversation with V. had been made.
On
15 May 2002 during the court hearing the prosecutor requested to read
out the records of the questioning of five witnesses not present at
the hearing. The statements made by V. during the pre-trial
investigation were among them.
The
applicant's counsel said that he had no objections. The court decided
to grant the request, having noted that “the court took
exhaustive measures to call these witnesses to the court hearing and
found that ... V.'s whereabouts could not be established and he could
not be called to the courtroom even though a number of operational
search measures were taken by the FSB and an enquiry was made to the
National Central Bureau of Interpol by the Ministry of the Interior
...”. These statements were admitted as evidence.
The
court also examined evidence relating to V.'s attempted withdrawal of
his statements against the applicant. It established that during the
investigation V. had already complained that pressure had been
exerted on him to repudiate his statements against the applicant. It
also established that the witness D., who was present at the
consulate when V. had repudiated his statements, was a close friend
of the applicant. The other witness, Y.S., had arrived at the
consulate late and did not see the document before it was certified.
It
was also noted that both the applicant and V. had undergone a
psychiatric examination during the investigation and both had been
found fit to participate in the criminal proceedings.
Other
evidence examined by the court included: expert reports produced by
chemical, ballistics, linguistic, sound and technical experts;
written reports on the operative experiment; V.'s written statement
of 18 September 2000; a certified description of the gun handed
in by V.; and records of the applicant's confrontation with V. on 20
October 2000.
The applicant challenged a number of items of
evidence, claiming that they had been obtained unlawfully. The court
excluded some of them, in particular the expert report by a
psychologist who had examined the recording of the applicant's
conversation with V. and the police report on the search carried out
on 4 October 2000. The attempt to challenge the audio tape containing
the recording of the applicant's conversation with V., and the copies
of the tape, was not successful and they were admitted as lawfully
obtained evidence.
On
19 June 2002 the Meshchanskiy District Court of Moscow gave judgment,
finding the applicant guilty of conspiracy to murder and conspiracy
to acquire, possess and handle firearms. The finding of guilt was
based on the following evidence: the initial statement by V. that the
applicant had ordered him to kill S.; the gun V. had handed in; the
statements V. had made in front of the applicant when they had been
confronted during the questioning on 10 October 2000; numerous
witness statements confirming the existence of a conflict between the
applicant and S.; and the physical evidence obtained through the
covert operation, namely the watches and the feasibility study.
Although the recording of the applicant's conversation with V. was
played at the hearing, its contents did not feature among the
evidence or as part of the court's reasoning. In so far as the record
was mentioned in the judgment, the court relied solely on the
conclusions of the linguistic experts (see paragraph 30 above) and on
several reports confirming that the tape had not been tampered with.
The court sentenced the applicant to six and a half
years' imprisonment and, having deducted the time already spent in
pre-trial detention, conditionally released him on five years'
probation.
The
applicant appealed against the judgment, challenging, inter alia,
the admissibility of the evidence obtained through the covert
operation and the court's interpretation of the physical evidence and
the witnesses' testimonies.
On
1 October 2002 the Moscow City Court upheld the applicant's
conviction and dismissed his appeal, including the arguments relating
to the admissibility of evidence.
On
22 June 2004 the Supreme Court of the Russian Federation examined the
applicant's case in supervisory proceedings. It modified the judgment
of 19 June 2002 and the appeal decision of 1 October 2002, redefining
the legal classification of one of the offences committed by the
applicant. It found the applicant guilty of “incitement to
commit a crime involving a murder”, and not “conspiracy
to murder”. The rest of the judgment, including the sentence,
remained unchanged.
II. RELEVANT DOMESTIC LAW
A. Pre-trial detention
Until
1 July 2002 criminal-law matters were governed by the Code of
Criminal Procedure of the Russian Soviet Federative Socialist
Republic (CCrP).
“Preventive
measures” or “measures of restraint” included an
undertaking not to leave a town or region, personal security, bail
and detention on remand (Article 89). A decision to detain someone on
remand could be taken by a prosecutor or a court (Articles 11, 89 and
96).
1. Grounds for detention on remand
When
deciding whether to remand an accused in custody, the competent
authority was required to consider whether there were “sufficient
grounds to believe” that he or she would abscond during the
investigation or trial or obstruct the establishment of the truth or
reoffend (Article 89). It also had to take into account the gravity
of the charge, information on the accused's character, his or her
profession, age, state of health, family status and other
circumstances (Article 91).
Before
14 March 2001, detention on remand was authorised if the accused was
charged with a criminal offence carrying a sentence of at least one
year's imprisonment or if there were “exceptional
circumstances” in the case (Article 96). On 14 March 2001 the
CCrP was amended to permit defendants to be remanded in custody if
the charge carried a sentence of at least two years' imprisonment or
if they had previously defaulted or had no permanent residence in
Russia or if their identity could not be ascertained. The amendments
of 14 March 2001 also repealed the provision that permitted
defendants to be remanded in custody on the sole ground of the
dangerous nature of the criminal offence committed.
2. Time-limits for detention on remand
The
CCrP provided for a distinction between two types of detention on
remand: the first being “during the investigation”, that
is, while a competent agency – the police or a prosecutor's
office – was investigating the case, and the second being
“before the court” (or “during the judicial
proceedings”), at the judicial stage. Although there was no
difference in practice between them (the detainee was held in the
same detention facility), the calculation of the time-limits was
different.
From
the date the prosecutor referred the case to the trial court, the
defendant's detention was classified as “before the court”
(or “during the judicial proceedings”).
Before
14 March 2001 the CCrP did not set any time-limit for detention
“during the judicial proceedings”. On 14 March 2001 a new
Article 239-1 was inserted which established that the period of
detention “during the judicial proceedings” could not
generally exceed six months from the date the court received the
file. However, if there was evidence to show that the defendant's
release might impede a thorough, complete and objective examination
of the case, a court could – of its own motion or on a request
by a prosecutor – extend the detention by no longer than three
months. These provisions did not apply to defendants charged with
particularly serious criminal offences.
B. Operative experiments
The
Operational-Search Activities Act of 12 August 1995 (no. 144 FZ)
provides, in so far as relevant, as follows:
Section 6: Operational-search activities
“In carrying out investigations the following
measures may be taken:
...
9. supervision of postal, telegraphic and
other communications;
10. telephone interception;
11. collection of data from technical
channels of communication;
...
14. operative experiments.
...
Operational-search activities involving supervision of
postal, telegraphic and other communications, telephone interception
through [telecommunication companies], and the collection of data
from technical channels of communication are to be carried out by
technical means by the Federal Security Service and the agencies of
the Interior Ministry in accordance with decisions and agreements
signed between the agencies involved.
...”
Section 8: Conditions governing the performance of
operational-search activities
“Operational-search activities involving
interference with the constitutional right to privacy of postal,
telegraphic and other communications transmitted by means of wire or
mail services, or with the privacy of the home, may be conducted,
subject to a judicial decision, following the receipt of information
concerning:
1. the appearance that an offence has been
committed or is ongoing, or a conspiracy to commit an offence whose
investigation is mandatory;
2. persons conspiring to commit, or
committing, or having committed an offence whose investigation is
mandatory;
...
Operative experiments may only be conducted for the
detection, prevention, interruption and investigation of a serious
crime, or for the identification of persons preparing, committing or
having committed it.
...”
Section 9: Grounds and procedure for judicial
authorisation of operational-search activities involving interference
with the constitutional rights of individuals
“The examination of requests for the taking of
measures involving interference with the constitutional right to
privacy of correspondence and telephone, postal, telegraphic and
other communications transmitted by means of wire or mail services,
or with the right to privacy of the home, shall fall within the
competence of a court at the place where the requested measure is to
be carried out or at the place where the requesting body is located.
The request must be examined immediately by a single judge; the
examination of the request may not be refused.
...
The judge examining the request shall decide whether to
authorise measures involving interference with the above-mentioned
constitutional right, or to refuse authorisation, indicating reasons.
...”
Section 11: Use of information obtained through
operational-search activities
“Information gathered as a result of
operational-search activities may be used for the preparation and
conduct of the investigation and court proceedings ... and used as
evidence in criminal proceedings in accordance with legal provisions
regulating the collection, evaluation and assessment of evidence.
...”
C. Evidence in criminal proceedings
Article
69 of the CCrP provided as follows:
“...
Evidence obtained in breach of the law shall be
considered to have no legal force and cannot be relied on as grounds
for criminal charges.”
The
2001 Code of Criminal Procedure of the Russian Federation, which
replaced the CCrP of the Russian Soviet Federative Socialist Republic
from 1 July 2002, provides as follows, in so far as relevant:
Article 75: Inadmissible evidence
“1. Evidence obtained in breach of this
Code shall be inadmissible. Inadmissible evidence shall have no legal
force and cannot be relied on as grounds for criminal charges or for
proving any of the [circumstances for which evidence is required in
criminal proceedings].
...”
Article 235
“...
5. If a court decides to exclude evidence,
that evidence shall have no legal force and cannot be relied on in a
judgment or other judicial decision, or be examined or used during
the trial.
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The
applicant complained that his pre-trial detention had been
excessively long and that it had been successively extended without
any indication of relevant and sufficient reasons. He relied on
Article 5 § 3 of the Convention, which provides as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
The
Government submitted that the applicant's detention had not been
excessively long and argued that the investigation of his case had
taken time because of its complexity and scale. They also claimed
that, given his personality, there had been an obvious risk that the
applicant might evade prosecution, influence witnesses and obstruct
the course of justice, which justified his continued detention.
The
applicant maintained his complaint, claiming that the grounds given
for his detention and its repeated extension had been unsupported by
any reasoning or factual information.
According
to the Court's settled case-law, the presumption under Article 5 is
in favour of release. As established in Neumeister v. Austria
(27 June 1968, § 4, Series A no. 8), the second limb of
Article 5 § 3 does not give judicial authorities a choice
between either bringing an accused to trial within a reasonable time
or granting him provisional release pending trial. Until conviction,
he must be presumed innocent, and the purpose of the provision under
consideration is essentially to require his provisional release once
his continuing detention ceases to be reasonable.
Continued
detention therefore can be justified in a given case only if there
are specific indications of a genuine requirement of public interest
which, notwithstanding the presumption of innocence, outweighs the
rule of respect for individual liberty laid down in Article 5 of the
Convention (see, among other authorities, Kudła v. Poland
[GC], no. 30210/96, §§ 110 et seq., ECHR 2000-XI).
The
responsibility falls in the first place to the national judicial
authorities to ensure that, in a given case, the pre-trial detention
of an accused person does not exceed a reasonable time. To this end
they must, paying due regard to the principle of the presumption of
innocence, examine all the facts arguing for or against the existence
of the above-mentioned demand of public interest justifying a
departure from the rule in Article 5 and must set them out in their
decisions on the applications for release. It is essentially on the
basis of the reasons given in these decisions and of the established
facts stated by the applicant in his appeals that the Court is called
upon to decide whether or not there has been a violation of Article 5
§ 3 (see, for example, Weinsztal v. Poland, no. 43748/98,
§ 50, 30 May 2006, and McKay v. the United Kingdom [GC],
no. 543/03, § 43, ECHR 2006 X).
The
persistence of reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the
lawfulness of the continued detention, but with the lapse of time
this no longer suffices and the Court must then establish whether the
other grounds given by the judicial authorities continued to justify
the deprivation of liberty. Where such grounds were “relevant”
and “sufficient”, the Court must also be satisfied that
the national authorities displayed “special diligence” in
the conduct of the proceedings (see, among other authorities,
Letellier v. France, 26 June 1991, § 35, Series A no.
207, and Yağcı and Sargın v. Turkey, 8
June 1995, § 50, Series A no. 319-A). In this connection, the
Court reiterates that the burden of proof in these matters should not
be reversed by making it incumbent on the detained person to
demonstrate the existence of reasons warranting his release (see
Ilijkov v. Bulgaria, no. 33977/96, § 85, 26 July
2001).
Turning
to the instant case, the Court observes that the applicant spent one
year, eight months and 15 days in detention before and during his
trial. In this period the courts examined the applicant's application
for release at least ten times, each time refusing it on the grounds
of the gravity of the charges and the likelihood of his fleeing,
obstructing the course of justice and exerting pressure on witnesses.
However, the judicial decisions did not go any further than listing
these grounds, omitting to substantiate them with relevant and
sufficient reasons. The Court also notes that with the passing of
time the courts' reasoning did not evolve to reflect the developing
situation and to verify whether these grounds remained valid at the
advanced stage of the proceedings. Moreover, from 7 September 2001
the decisions extending the applicant's detention no longer indicated
any time-limits, thus implying that he would remain in detention
until the end of the trial.
As
regards the Government's argument that the circumstances of the case
and the applicant's personality were self-evident for the purpose of
justifying his pre-trial detention, the Court does not consider that
this in itself absolved the courts from the obligation to set out
reasons for coming to this conclusion, in particular in the decisions
taken at later stages. It reiterates that where circumstances that
could have warranted a person's detention may have existed but were
not mentioned in the domestic decisions it is not the Court's task to
establish them and to take the place of the national authorities
which ruled on the applicant's detention (see Panchenko v. Russia,
no. 45100/98, §§ 99 and 105, 8 February 2005, and Ilijkov,
cited above, § 86).
The
Court therefore finds that the authorities failed to adduce relevant
and sufficient reasons to justify extending the applicant's detention
pending trial to one year, eight months and 15 days.
There has therefore been a violation of Article 5 §
3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant complained that the covert operation had involved an
unlawful intrusion into his home and that the interception and
recording of his conversation with V. had interfered with his private
life. He alleged a violation of Article 8 of the Convention, which
reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
The
Government maintained that the covert operation, and in particular
the interception and recording of the applicant's conversation with
V., had been conducted in accordance with the Operational-Search
Activities Act. They claimed that it constituted an “operative
experiment” within the meaning of the Act. They further argued
that no judicial authorisation had been required for the purposes of
the present case because pursuant to section 8 of the Act, it was
only required for the interception of communications transmitted by
means of wire channels or mail services, none of which had been
employed in the covert operation at issue. They also denied that
there had been an intrusion into the applicant's home since the
“guest house” could not be considered his home, and in
any case he had let V. in voluntarily. They further claimed that in
the circumstances of the case the covert operation had been
indispensable because without the interception of the applicant's
conversation with V. it would have been impossible to verify the
suspicion that he had committed a serious crime. They contended that
the measures taken to investigate the crime had been proportionate to
the seriousness of the offence in question.
The
applicant maintained, on the contrary, that the covert operation had
involved an unlawful and unjustified interference with his right to
respect for his private life and home. He claimed that there had been
an unlawful intrusion into his home and contested the Government's
argument that he had not objected to V.'s entry because his consent
had not extended to accepting a police agent on his premises. He also
claimed that the recording of his conversation with V. had interfered
with his privacy and had therefore required prior judicial
authorisation.
The
Court notes that it is not in dispute that the measures carried out
by the police in the conduct of the covert operation amounted to an
interference with the applicant's right to respect for his private
life under Article 8 § 1 of the Convention (see Wood v. the
United Kingdom, no. 23414/02, § 29, 16 November 2004;
M.M. v. the Netherlands, no. 39339/98, §§
36-42, 8 April 2003; and A. v. France, 23 November 1993,
Series A no. 277 B). The principal issue is whether this
interference was justified under Article 8 § 2, notably whether
it was “in accordance with the law” and “necessary
in a democratic society”, for one of the purposes enumerated in
that paragraph.
In
this connection, the Court notes that the domestic authorities put
forward two arguments in support of the view that
the covert operation had been lawful. The
first-instance court found that there had been no “intrusion”
or
breach of the applicant's privacy because of the
absence of objections to V.'s entry into the premises and because of
the “non-private” purpose of these premises. The
prosecutor's office, in addition to that, maintained that the covert
operation had been lawful because it had not involved any activity
subject to special legal requirements and the police
had thus remained within the domain of their own
discretion.
The
Court observes that the Operational-Search Activities Act is
expressly intended to protect individual privacy by requiring
judicial authorisation for any operational-search activities that
could interfere with it. The Act specifies two types of protected
privacy: firstly, privacy of communications by wire or mail services
and, secondly, privacy of the home. As regards the latter, the
domestic authorities, notably the Meshchanskiy District Court of
Moscow, argued that V.'s entering the “guest house” with
the applicant's consent did not constitute an intrusion amounting to
interference with the privacy of the applicant's
home. As to the question of privacy of
communications, it was only addressed as a separate issue in the
prosecutor's decision dismissing the applicant's complaint. In his
opinion, the applicant's conversation with V. remained outside the
scope of protection offered by the Act because it did not involve the
use of “wire or mail services”. The same argument was put
forward by the Government, who considered that the requirement of
judicial authorisation did not extend to the use of the
radio transmitting device and that the covert operation could
not therefore be said to have breached domestic law.
Having
regard to the above, it is clear that the domestic authorities did
not interpret the Operational-Search Activities Act as requiring
prior judicial authorisation in the circumstances of the case at
hand, since the case was found not to involve the applicant's “home”
or the use of wire or mail services within the meaning of section 8
of the Act. The measure was considered to be an investigative step
within the domain of the investigating authorities' own discretion.
The
Court reiterates that the phrase “in accordance with the law”
not only requires compliance with domestic law but also relates to
the quality of that law, requiring it to be compatible with the rule
of law. In the context of covert surveillance by public authorities,
in this instance the police, domestic law must provide protection
against arbitrary interference with an individual's right under
Article 8. Moreover, the law must be sufficiently clear in its terms
to give individuals an adequate indication as to the circumstances in
which and the conditions on which public authorities are entitled to
resort to such covert measures (see Khan v. the United Kingdom,
no. 35394/97, § 26, ECHR 2000-V).
The
Court further observes that the Operational-Search Activities Act
permitted so-called “operative experiments” to be
conducted for the investigation of serious crime. While the law
itself did not define what measures such “experiments”
could involve, the national authorities took the view that there
existed no statutory system in Russian law regulating the
interception or recording of private communications through a
radio transmitting device. The Government argued that the
existing regulations on telephone tapping were not applicable to
radio transmitting devices and could not be extended to them by
analogy. On the contrary, they emphasised the difference between the
two by indicating that no judicial authorisation for the use of a
radio transmitting device was required, for the reason that this
technology fell outside the scope of any existing regulations. Thus,
the Government considered that the use of technology not listed in
section 8 of the Operational-Search Activities Act for the
interception was not subject to the formal requirements imposed by
the Act.
The
Court has consistently held that when it comes to the interception of
communications for the purpose of a police investigation, “the
law must be sufficiently clear in its terms to give citizens an
adequate indication as to the circumstances in which and the
conditions on which public authorities are empowered to resort to
this secret and potentially dangerous interference with the right to
respect for private life and correspondence” (see Malone v.
the United Kingdom, 2 August 1984, § 67, Series A no.
82). In particular, in order to comply with the requirement of the
“quality of the law”, a law which confers discretion must
indicate the scope of that discretion, although the detailed
procedures and conditions to be observed do not necessarily have to
be incorporated in rules of substantive law. The degree of precision
required of the “law” in this connection will depend upon
the particular subject-matter. Since the implementation in practice
of measures of secret surveillance of communications is not open to
scrutiny by the individuals concerned or the public at large, it
would be contrary to the rule of law for the legal discretion granted
to the executive – or to a judge – to be expressed in
terms of an unfettered power. Consequently, the law must indicate the
scope of any such discretion conferred on the competent authorities
and the manner of its exercise with sufficient clarity to give the
individual adequate protection against arbitrary interference (see,
among other authorities, Huvig v. France, 24 April 1990,
§§ 29 and 32, Series A no. 176 B; Amann
v. Switzerland [GC], no. 27798/95, § 56, ECHR 2000 II;
and Valenzuela Contreras v. Spain, 30 July 1998, § 46,
Reports of Judgments and Decisions 1998 V).
In
the Court's opinion, these principles apply equally to the use of a
radio transmitting device, which, in terms of the nature and
degree of the intrusion involved, is virtually identical to telephone
tapping.
In
the instant case, the applicant enjoyed very few, if any, safeguards
in the procedure by which the interception of his conversation with
V. was ordered and implemented. In particular, the legal discretion
of the authorities to order the interception was not subject to any
conditions, and the scope and the manner of its exercise were not
defined; no other specific safeguards were provided for. Given the
absence of specific regulations providing safeguards, the Court is
not satisfied that, as claimed by the Government, the possibility for
the applicant to bring court proceedings seeking to declare the
“operative experiment” unlawful and to request the
exclusion of its results as unlawfully obtained evidence met the
above requirements.
It
follows that in the absence of specific and detailed regulations, the
use of this surveillance technique as part of an “operative
experiment” was not accompanied by adequate safeguards against
various possible abuses. Accordingly, its use was open to
arbitrariness and was inconsistent with the requirement of
lawfulness.
The
Court concludes that the interference with the applicant's right to
respect for private life was not “in accordance with the law”,
as required by Article 8 § 2 of the Convention. In the light of
this conclusion, the Court is not required to determine whether the
interference was “necessary in a democratic society” for
one of the aims enumerated in paragraph 2 of Article 8. Nor is it
necessary to consider whether the covert operation also constituted
an interference with the applicant's right to respect for his home.
Accordingly,
there has been a violation of Article 8.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant complained that he had been tricked by the police into
making self-incriminating statements in his conversation with V. and
that the court had admitted the record of this conversation as
evidence at the trial. He alleged a violation of Article 6 § 1,
which provides, in so far as relevant:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
The
Government submitted that the criminal proceedings against the
applicant had been conducted lawfully and with due respect for the
rights of the accused. They pointed out that the applicant's
conviction had been based on an ample body of evidence of which only
part had been obtained through the covert operation. The evidence
relied on by the courts had included statements by more than 40
witnesses, expert opinions, and various items of physical and
documentary evidence which provided a broad and consistent basis for
the finding of guilt. The Government pointed out that it had been
open to the applicant to challenge in adversarial proceedings the
evidence obtained through the covert operation and that he had
availed himself of this possibility.
The
Government further maintained that the collection and the use of
evidence against the applicant had involved no breach of his right to
silence, or oppression, or defiance of his will. They pointed out
that at the time when the recording was made the applicant had not
been in detention and had not known about the investigation. In his
conversation with V. he had acted freely and had been on an equal
footing with his interlocutor, who had not been in a position to put
any pressure on him. The Government contended that the evidence
obtained through the covert operation had been perfectly reliable and
that there had been no grounds to exclude the recording or other
related evidence. In this connection, they argued that the present
case should be distinguished from the case of Allan v. the United
Kingdom (no. 48539/99, ECHR 2002 IX), where the covert
operation had taken place in a detention facility at a time when the
applicant had been particularly vulnerable, and the Court had
described this as “oppressive”.
The
applicant, on the contrary, maintained that his conviction had been
based on illegally obtained evidence, in breach of his right to
remain silent and the privilege against self-incrimination. He
alleged that his conversation with V. had in fact constituted a
concealed interrogation, unaccompanied by any procedural guarantees.
Finally, he denied that the record of this conversation had any
probative value and claimed that it should not have been admitted as
evidence at trial.
A. General principles established in the Court's
case-law
The
Court reiterates that, in accordance with Article 19 of the
Convention, its only task is to ensure the observance of the
obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. While Article 6 guarantees the right to a fair hearing,
it does not lay down any rules on the admissibility of evidence as
such, which is primarily a matter for regulation under national law
(see Schenk v. Switzerland, 12 July 1988, § 45, Series A
no. 140; Teixeira de Castro v. Portugal, 9 June 1998, §
34, Reports 1998 IV; and Jalloh v. Germany
[GC], no. 54810/00, §§ 94-96, ECHR 2006 IX).
It
is therefore not the role of the Court to determine, as a matter of
principle, whether particular types of evidence – for example,
evidence obtained unlawfully in terms of domestic law – may be
admissible or, indeed, whether the applicant was guilty or not. The
question which must be answered is whether the proceedings as a
whole, including the way in which the evidence was obtained, were
fair. This involves an examination of the “unlawfulness”
in question and, where a violation of another Convention right is
concerned, the nature of the violation found (see, among other
authorities, Khan, cited above, § 34; P.G. and J.H. v.
the United Kingdom, no. 44787/98, § 76, ECHR 2001 IX;
Heglas v. the Czech Republic, no. 5935/02, §§
89-92, 1 March 2007; and Allan, cited above, § 42).
In
determining whether the proceedings as a whole were fair, regard must
also be had to whether the rights of the defence were respected. It
must be examined in particular whether the applicant was given the
opportunity of challenging the authenticity of the evidence and of
opposing its use. In addition, the quality of the evidence must be
taken into consideration, including whether the circumstances in
which it was obtained cast doubt on its reliability or accuracy.
While no problem of fairness necessarily arises where the evidence
obtained was unsupported by other material, it may be noted that
where the evidence is very strong and there is no risk of its being
unreliable, the need for supporting evidence is correspondingly
weaker (see, among other authorities, Khan, cited above, §§
35 and 37, and Allan, cited above, § 43).
As
regards, in particular, the examination of the nature of the
Convention violation found, the Court observes that notably in the
cases of Khan (cited above, §§ 25-28) and P.G.
and J.H. v. the United Kingdom (cited above, §§ 37-38)
it found the use of covert listening devices to be in breach of
Article 8 since recourse to such devices lacked a legal basis in
domestic law and the interferences with those applicants' right to
respect for their private life were not “in accordance with the
law”. Nonetheless, the admission in evidence of information
obtained thereby did not in the circumstances of the cases conflict
with the requirements of fairness guaranteed by Article 6 § 1.
As
regards the privilege against self-incrimination or the right to
remain silent, the Court reiterates that these are generally
recognised international standards which lie at the heart of a fair
procedure. Their aim is to provide an accused person with protection
against improper compulsion by the authorities and thus to avoid
miscarriages of justice and secure the aims of Article 6 (see John
Murray v. the United Kingdom, 8 February 1996, § 45,
Reports 1996-I). The right not to incriminate oneself is
primarily concerned with respecting the will of an accused person to
remain silent and presupposes that the prosecution in a criminal case
seeks to prove the case against the accused without resorting to
evidence obtained through methods of coercion or oppression in
defiance of the will of the accused (see Saunders v. the United
Kingdom, 17 December 1996, §§ 68 69, Reports
1996-VI; Allan, cited above, § 44; Jalloh, cited
above, §§ 94-117; and O'Halloran and Francis v. the
United Kingdom [GC], nos. 15809/02 and 25624/02, §§
53-63, ECHR 2007-...). In examining whether a procedure has
extinguished the very essence of the privilege against
self-incrimination, the Court must examine the nature and degree of
the compulsion, the existence of any relevant safeguards in the
procedures and the use to which any material so obtained is put (see,
for example, Heaney and McGuinness v. Ireland, no. 34720/97,
§§ 54-55, ECHR 2000 XII, and J.B. v. Switzerland,
no. 31827/96, ECHR 2001-III).
The
general requirements of fairness contained in Article 6 apply to all
criminal proceedings, irrespective of the type of offence at issue.
Public-interest concerns cannot justify measures which extinguish the
very essence of an applicant's defence rights, including the
privilege against self-incrimination guaranteed by Article 6 of the
Convention (see, mutatis mutandis, Heaney and McGuinness,
cited above, §§ 57-58).
B. Application of those principles to the present case
The
Court observes that in contesting at his trial the use of the
material obtained through the “operative experiment”, the
applicant put forward two arguments. Firstly, he argued that the
evidence obtained from the covert operation, in particular the
recording of his conversation with V., was unreliable and open to a
different interpretation from that given by the domestic courts.
Secondly, he alleged that the use of such evidence ran counter to the
privilege against self-incrimination and his right to remain silent.
As
regards the first point, the Court reiterates that where the
reliability of evidence is in dispute the existence of fair
procedures to examine the admissibility of the evidence takes on an
even greater importance (see Allan, cited above, § 47).
In the present case, the applicant was able to challenge the covert
operation, and every piece of evidence obtained thereby, in the
adversarial procedure before the first-instance court and in his
grounds of appeal. The grounds for the challenge were the alleged
unlawfulness and trickery in obtaining evidence and the alleged
misinterpretation of the conversation recorded on the tape. Each of
these points was addressed by the courts and dismissed in reasoned
decisions. The Court notes that the applicant made no complaints in
relation to the procedure by which the courts reached their decision
concerning the admissibility of the evidence.
The
Court further observes that the impugned recording, together with the
physical evidence obtained through the covert operation, was not the
only evidence relied on by the domestic court as the basis for the
applicant's conviction. In fact, the key evidence for the prosecution
was the initial statement by V., who had reported to the FSB that the
applicant had ordered him to kill S., and had handed in the gun (see
paragraph 10 above). This statement, which gave rise to the
investigation, was made by V. before, and independently from, the
covert operation, in his capacity as a private individual and not as
a police informant. Furthermore, he reiterated his incriminating
statements during his subsequent questioning on several occasions and
during the confrontation between him and the applicant at the
pre-trial stage.
While
it is true that V. was not cross-examined at the trial, the failure
to do so was not imputable to the authorities, who took all necessary
steps to establish his whereabouts and have him attend the trial,
including by seeking the assistance of Interpol. The trial court
thoroughly examined the circumstances of V.'s withdrawal of his
incriminating statements and came to a reasoned conclusion that the
repudiation was not trustworthy. Moreover, the applicant was given an
opportunity to question V. on the substance of his incriminating
statements when they were confronted during the questioning on 10
October 2000. Some importance is also to be attached to the fact that
the applicant's counsel expressly agreed to having V.'s pre-trial
testimonies read out in open court. Finally, V.'s incriminating
statements were corroborated by circumstantial evidence, in
particular numerous witness testimonies confirming the existence of a
conflict of interests between the applicant and S.
In
view of the above, the Court accepts that the evidence obtained from
the covert operation was not the sole basis for the applicant's
conviction, corroborated as it was by other conclusive evidence.
Nothing has been shown to support the conclusion that the applicant's
defence rights were not properly complied with in respect of the
evidence adduced or that its evaluation by the domestic courts was
arbitrary.
It
remains for the Court to examine whether the covert operation, and
the use of evidence obtained thereby, involved a breach of the
applicant's right not to incriminate himself and to remain silent.
The applicant argued that the police had overstepped the limits of
permissible behaviour by secretly recording his conversation with V.,
who was acting on their instructions. He claimed that his conviction
had resulted from trickery and subterfuge incompatible with the
notion of a fair trial.
The
Court recently examined similar allegations in the case of Heglas
(cited above). In that case the applicant had admitted his
participation in a robbery in the course of a conversation with a
person who had been fitted by the police with a listening device
hidden under her clothes. The Court dismissed the applicant's
complaint under Article 6 of the Convention concerning the use of the
recording, finding that he had had the benefit of adversarial
proceedings, that his conviction had also been based on evidence
other than the impugned recording, and that the measure had been
aimed at detecting a serious offence and had thus served an important
public interest. The applicant, before the recording was made, had
not been officially questioned about, or charged with, the criminal
offence.
The
circumstances of the covert operation conducted in the Heglas
case were essentially different from those of the Allan case
(cited above), where a violation of Article 6 was found. In the
latter case the applicant was in pre-trial detention and expressed
his wish to remain silent when questioned by the investigators.
However, the police primed the applicant's cellmate to take advantage
of the applicant's vulnerable and susceptible state following lengthy
periods of interrogation. The Court, relying on a combination of
these factors, considered that the authorities' conduct amounted to
coercion and oppression and found that the information had been
obtained in defiance of the applicant's will.
The
Court notes that in the present case the applicant had not been under
any pressure to receive V. at his “guest house”, to speak
to him, or to make any specific comments on the matter raised by V.
Unlike the applicant in the Allan case (cited above), the
applicant was not detained on remand but was at liberty on his own
premises attended by security and other personnel. The nature of his
relations with V. – subordination of the latter to the
applicant – did not impose any particular form of behaviour on
him. In other words, the applicant was free to see V. and to talk to
him, or to refuse to do so. It appears that he was willing to
continue the conversation started by V. because its subject matter
was of personal interest to him. Thus, the Court is not convinced
that the obtaining of evidence was tainted with the element of
coercion or oppression which in the Allan case the Court found
to amount to a breach of the applicant's right to remain silent.
The
Court also attaches weight to the fact that in making their
assessment the domestic courts did not directly rely on the recording
of the applicant's conversation with V., or its transcript, and did
not seek to interpret specific statements made by the applicant
during the conversation. Instead they examined the expert report
drawn up on the conversation in order to assess his relations with V.
and the manner in which he involved himself in the dialogue.
Moreover, at the trial the recording was not treated as a plain
confession or an admission of knowledge capable of lying at the core
of a finding of guilt; it played a limited role in a complex body of
evidence assessed by the court.
Having
examined the safeguards which surrounded the evaluation of the
admissibility and reliability of the evidence concerned, the nature
and degree of the alleged compulsion, and the use to which the
material obtained through the covert operation was put, the Court
finds that the proceedings in the applicant's case, considered as a
whole, were not contrary to the requirements of a fair trial.
It
follows that there has been no violation of Article 6 § 1 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
The
applicant claimed compensation for the pecuniary and non pecuniary
damage sustained as a result of the alleged violations of the
Convention.
As
regards pecuniary damage, the applicant claimed 4,059,061.80 Russian
roubles (119,089.25 euros (EUR)), which represented his loss of
earnings during his pre trial detention. As regards
non-pecuniary damage, the applicant claimed that he had suffered
emotional distress and a diminished quality of life and requested
compensation for this in an amount to be determined by the Court.
The
Government contested these claims as manifestly ill-founded. They
considered that any finding by the Court of a violation would
constitute sufficient just satisfaction in the present case.
The
Court notes that the applicant's claim for pecuniary damage relates
to the complaint about his pre-trial detention, in respect of which a
violation of Article 5 § 3 has been found (see paragraph 68
above). It reiterates that there must be a clear causal connection
between the damage claimed by the applicant and the violation of the
Convention (see Barberà, Messegué and Jabardo v.
Spain (Article 50), 13 June 1994, §§ 16-20, Series A
no. 285-C; see also Berktay v. Turkey, no. 22493/93, §
215, 1 March 2001). The Court does not discern any causal link
between the authorities' failure to adduce relevant and sufficient
reasons for the applicant's continued detention and the loss of
income he alleged (see Dzelili v. Germany, no. 65745/01, §§
107-13, 10 November 2005).
On
the other hand, it considers that the applicant has suffered
non-pecuniary damage which is not sufficiently compensated by the
finding of a violation of the Convention. Considering the
circumstances of the case and making its assessment on an equitable
basis, the Court awards the applicant EUR 1,000 under this head.
B. Costs and expenses
In
the proceedings before the Chamber the applicant claimed
EUR 93,246.25 in respect of costs and expenses. For his legal
representation before the domestic courts the applicant paid the
equivalent of EUR 60,691.61 to Mr G. Padva, his defence
counsel in the criminal proceedings. He submitted a full set of
receipts confirming the payment of this sum to Mr Padva's office. In
the proceedings before the Court, the applicant was also represented
by Mr Krauss and Mr J. Pastille, to whom he paid an aggregate amount
of EUR 69,839.64 (EUR 32,554.64 in the proceedings before the
Chamber and EUR 37,285 before the Grand Chamber). In
respect of their services he provided an invoice for 25,583.70 United
States dollars, indicating the number of hours and the hourly rates
used as a basis, plus various expenses. Two further invoices –
by Mr Pastille for EUR 5,000 and by a law firm, “Rusanovs,
Rode, Buss”, for EUR 7,500 – did not contain any
particulars. Following the public hearing before the Grand Chamber
the applicant supplemented the claims and provided an invoice for EUR
37,285 which comprised EUR 30,600 in respect of lawyers' fees,
indicating the number of hours spent by each counsel
and adviser, and EUR 6,685 for travel expenses.
113. The
Government claimed that these expenditures had not been incurred
necessarily and were unreasonable as to quantum. They considered that
the number of legal counsel engaged in the case was not justified by
the circumstances or the complexity of the case. Commenting on
specific sums, they pointed out that Mr Padva's invoice contained no
itemised list of services rendered to the applicant under the legal
services agreement. They also disputed the hourly rates charged by Mr
Krauss, Mr Pastille and their associates, claiming that they were
unreasonable and in excess of the average legal rates. They also
challenged the invoices for EUR 5,000 and for EUR 7,500, claiming
that in the absence of any itemised list of services or financial
receipts there was no proof that these expenses had actually been
incurred. The Government considered that a sum of EUR 3,000 would be
sufficient under this head.
According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and are reasonable as to
quantum. Furthermore, legal costs are recoverable only in so far as
they relate to the violation found (see, for example, I.J.L. and
Others v. the United Kingdom (just satisfaction), nos. 29522/95,
30056/96 and 30574/96, § 18, 25 September 2001). In the
instant case, the Court considers the amount claimed excessive, given
that a number of the applicant's complaints were either declared
inadmissible or did not result in a finding of a violation of the
Convention (see Bykov v. Russia (dec.), no. 4378/02,
7 September 2006, and paragraph 105 above). Moreover, the
applicant's submissions contain no information on the specific
services covered by the invoices. Thus, the Court considers that a
significant reduction is necessary on both accounts. Having regard to
all relevant factors, the Court considers it reasonable to award the
sum of EUR 25,000 in respect of costs and expenses, plus any tax that
may be chargeable on that amount.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
Holds unanimously that there has been a
violation of Article 5 § 3 of the Convention;
Holds unanimously that there has been a
violation of Article 8 of the Convention;
Holds by eleven votes to six that there has been
no violation of Article 6 of the Convention;
Holds
(a) (i) by twelve votes to five that the
respondent State is to pay the applicant, within three months, EUR
1,000 (one thousand euros) in respect of non-pecuniary damage, to be
converted into the national currency of the respondent State at the
rate applicable at the date of settlement, plus any tax that may be
chargeable on that amount;
(ii) unanimously
that the respondent State is to pay the applicant, within three
months, EUR 25,000 (twenty-five thousand euros) in respect of costs
and expenses, to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement
plus any tax that may be chargeable to the applicant on that amount;
(b) unanimously
that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 10 March 2009.
Michael O'Boyle Jean-Paul Costa
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following opinions are annexed to
this judgment:
(a) concurring
opinion of Judge Cabral Barreto;
(b) concurring
opinion of Judge Kovler;
(c) partially
dissenting opinion of Judge Costa;
(d) partially
dissenting opinion of Judge Spielmann, joined by Judges Rozakis,
Tulkens, Casadevall and Mijović.
J.-P.C.
M.O'B.
CONCURRING OPINION OF JUDGE CABRAL BARRETO
(Translation)
I
agree with the majority's finding that there was no violation of
Article 6 of the Convention in the present case.
However,
to my mind it is not enough to say, as the majority do, that the
proceedings, considered as a whole, were not contrary to the
requirements of a fair trial.
I
find it regrettable that the Grand Chamber missed the opportunity to
clarify once and for all an issue on which the Court has long been
divided: whether the use in criminal proceedings of evidence obtained
in breach of Article 8 of the Convention undermines the fairness of a
trial as protected by Article 6.
The
Court's case-law on this subject dates back to Schenk
v. Switzerland (12 July 1988, Series A no. 140).
In
concluding by a majority that the use of the disputed recording in
evidence had not deprived the applicant of a fair trial, the Court
mainly relied on the fact that the rights of the defence had not been
disregarded.
This
finding shaped the development of our case-law; even where the manner
in which evidence has been obtained has breached Article 8, a
violation of Article 6 has been ruled out if the trial as a whole has
been fair, and in particular if the rights of the defence have been
respected.
Moreover,
in principle, whether the evidence was the sole or a subsidiary basis
for the conviction is not in itself decisive (see Khan v. the
United Kingdom, no. 35394/97, § 26, ECHR 2000-V).
Similarly,
it is immaterial whether the violation of Article 8 results from
failure to comply with “domestic law” or with the
Convention.
More
recently, the Court applied these principles in Heglas v. the
Czech Republic (no. 5935/02, 1 March 2007).
The
case-law on this subject was last refined in Jalloh v. Germany
([GC], no. 54810/00, ECHR 2006-IX).
In
that judgment the Court ruled that the use in criminal proceedings of
evidence obtained through torture raised serious issues as to the
fairness of such proceedings, even if the admission of the evidence
in question had not been decisive in securing the suspect's
conviction.
Consequently,
the use of evidence obtained through torture will always breach
Article 6 of the Convention, regardless of whether or not the
evidence was a decisive factor in the conviction.
However,
the Court has never really stated a position on the question of
evidence obtained by means of inhuman or degrading treatment.
In
certain circumstances, for example if an applicant is in detention,
improper compulsion by the authorities to obtain a confession will
contravene the principles of the right not to incriminate oneself and
the right to remain silent (see Allan v. the United Kingdom,
no. 48539/99, ECHR 2000-IX).
As
regards the question of direct concern to us – and the Heglas
judgment is a very recent example of this – where Article 8 is
breached as a result of the way in which evidence was gathered, the
decisive factor for a finding of a violation or no violation of
Article 6 is whether the proceedings as a whole were fair, whether
the rights of the defence were respected.
I
personally would have liked the Grand Chamber to have adopted a new
approach revising and clarifying its case-law.
Firstly,
the Grand Chamber should have reaffirmed the position taken in Jalloh
regarding evidence obtained through torture.
The
mere recourse to torture is sufficient in itself to render the trial
unfair, even if the evidence thereby obtained is not decisive in
securing the accused's conviction; Article 15 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, adopted by the United Nations, lends sufficient force to
this argument.
However,
we should also go a step further by stating unequivocally that the
use of evidence obtained by means of an act classified as inhuman or
degrading treatment automatically undermines the fairness of a trial,
since the difference between torture and inhuman treatment is often
difficult to establish and the nuances are sometimes tiny;
furthermore, as a rule, both situations – torture and inhuman
and degrading treatment – involve blunders by the authorities
against an individual in a position of inferiority.
The
Grand Chamber should in my opinion state firmly that any evidence
obtained in breach of Article 3 in the course of a trial –
through torture or ill-treatment – will always infringe Article
6 of the Convention, even if such evidence did not play a decisive
part in the conviction, and even if the accused was able to challenge
the evidence thus obtained, without leaving open the possibility of
relying on the weight of public interest and the seriousness of the
offence.
We
must banish conduct that offends against civilised values and ensure
that there is some form of severe punishment for acts which undermine
our society's most deeply held values as protected by Article 3 of
the Convention.
The
four dissenting judges in the Schenk case (cited above), whose
opinion was more or less followed by Judges Loucaides (in Khan,
cited above) and Tulkens (in P.G. and J.H. v. the United Kingdom,
no. 44787/98, ECHR 2001 IX), considered that a trial could not
be described as “fair” where evidence obtained in breach
of a fundamental right guaranteed by the Convention had been
admitted.
The
“dissenters” could not accept that a trial could be
“fair”, as required by Article 6, if a person's guilt for
any offence was established through evidence obtained in breach of
the human rights guaranteed by the Convention.
The
fairness required by Article 6 of the Convention also entails a
requirement of lawfulness; a trial which has been conducted in breach
of domestic law or the Convention can never be regarded as “fair”.
The
exclusion of evidence obtained in breach of, for example, the right
to respect for private life guaranteed by the Convention should be
considered an essential corollary of that right.
In
the “dissenters'” view, evidence amounting to
interference with the right to privacy can be admitted in court
proceedings and can lead to a conviction for a crime only if the
securing of such evidence satisfies the requirements of the second
paragraph of Article 8, including the one at issue in the present
case, that of being “in accordance with the law”.
However,
what is prohibited under one provision (Article 8) cannot be accepted
under another (Article 6).
Lastly,
there is a real danger to be averted, as Judge Loucaides stressed in
the Khan case (cited above), and I quote: “If violating
Article 8 can be accepted as 'fair' then I cannot see how the police
can be effectively deterred from repeating their impermissible
conduct.”
I
must say that I have a good deal of sympathy with this approach,
which has the merit of clarity since the violation of Article 6 will
be “automatic” once the violation of Article 8 has been
found.
Nevertheless,
I believe that if such an approach is adopted, certain considerations
will arise as regards the consequences of the finding of a violation
of Article 6.
Following
this approach, once a violation has been found in cases where the
accused's conviction was not solely or mainly based on the evidence
in dispute, inferences will have to be drawn regarding the execution
of the judgment if the evidence in question played only a subsidiary
role in the conviction.
Furthermore,
as regards the execution of judgments, not all violations of Article
6 will carry the same weight.
I am
thinking of violations arising from a failure to comply with
provisions concerning substantive rights as opposed to procedural
rules.
Here,
with regard to unlawful evidence, I wish to emphasise the distinction
made by some legal experts between prohibited evidence –
which relates to substantive law – and improper evidence –
which relates to procedural rules.
We
must distinguish between what strikes at the heart of a fair trial,
what shocks the sensibilities of a democratic society, what runs
counter to the fundamental values embodied in a State based on the
rule of law, and a breach of procedural rules in the gathering of
evidence.
For
example, a breach of the right to confer freely with one's lawyer
seems to me to be completely different from a breach resulting from
the lack of judicial authorisation for telephone tapping of a
suspect, where this flaw is subsequently redressed.
If a
recording of the accused's conversation with his lawyer is used as a
basis for convicting him, a more serious violation will result,
calling for a more forceful attitude on the part of the Court, which
may, for example, demand a new trial at which the use of the evidence
in issue will be prohibited, and also award an appropriate sum for
the damage sustained.
In
the other scenario mentioned above, however, the finding of a
violation should in itself be sufficient.
These
considerations lead me to a more detailed examination of other
aspects of the procedure, moving away from an “automatic”
finding of a violation of Article 6 once a violation of Article 8 has
been found: a violation of the latter provision does not
automatically entail a violation of Article 6, but simply the
presumption of a violation.
A
finding of a violation or no violation will depend on the particular
circumstances of the case at hand and the weighing up of the values
protected by domestic law and the Convention and those in issue in
the criminal proceedings.
It is
true that such an approach would weaken the notion of a fair trial,
which would become a variable-geometry concept.
However,
this approach would have the advantage of not treating all situations
on the same footing, since, as I have already observed, some
violations of Article 8 are worse than others.
I
will readily admit that there are risks in such an approach; the
choice of the right criteria for finding a violation, and their
subsequent application to the particular case, especially where the
factual circumstances are difficult to establish, will be a hazardous
exercise.
Situations
will thus arise when the presumption could be rebutted where the
rights of the defence have been respected and where the weight of
public interest in the applicant's conviction or other relevant
grounds so require.
However,
limits will always have to be set.
I
would again refer to everything that strikes at the heart of a fair
trial, shocks the sensitivities of a democratic society or runs
counter to the fundamental values embodied in a State based on the
rule of law. Once these values have been undermined, the presumption
must be confirmed and a violation of Article 6 found; the public
interest at stake or the question whether the rights of the defence
have been respected will be immaterial.
The
case-law of the Supreme Court of the United States refers in this
connection to the falsehoods crucial to the facts of the case that
can always result from interrogation techniques “so offensive
to a civilized system of justice” that “they must be
condemned” in the name of due process.
The
Supreme Court of Canada makes a distinction between “dirty
tricks” (which the community finds shocking) and mere “ruses”,
concluding that “What should be repressed vigorously is
conduct on [the authorities'] part that shocks the community. That a
police officer pretend to be a lock-up chaplain and hear a suspect's
confession is conduct that shocks the community; so is pretending to
be the duty legal-aid lawyer eliciting in that way incriminating
statements from suspects or accused; injecting Pentothal into a
diabetic suspect pretending it is his daily shot of insulin and using
his statement in evidence would also shock the community; but
generally speaking, pretending to be a hard drug addict to break a
drug ring would not shock the community; nor would ... pretending to
be a truck driver to secure the conviction of a trafficker”
(Judge Lamer, individual opinion, in R. v. Rothman, [1981]
1 SCR 640; approved by the majority of the Supreme Court in R. v.
Collins, [1987] 1 SCR 265, § 52, and R. v. Oickle,
[2000] 2 SCR 3, § 66).
I
must acknowledge, nevertheless, that all this involves a somewhat
empiricist approach and a perhaps excessively discretionary power;
however, I wonder how we can draw a firm, clear and distinct line
between what might be acceptable and what cannot.
Here,
I would return to the distinction between substantive and procedural.
I
would say, generally speaking, that the use of any evidence that is
not admissible under the member States' domestic law and the
Convention will “automatically” entail a violation of the
right to a fair trial.
The
question whether or not the rights of the defence have been
respected, the public interest at stake and all other circumstances
are immaterial: a trial in which evidence thus obtained has served as
a basis for a conviction will always be an unfair trial.
In
that connection I would cite the example of the recording of the
accused's conversation with his lawyer.
The
gathering of evidence by this means must be discouraged at all costs,
even where the evidence in question was merely additional or
subsidiary and where a new trial is perhaps not warranted.
On
the other hand, where procedural rules have not been complied with in
respect of evidence that is normally admissible in member States and
under international law – either because domestic law does not
provide for such evidence or because, notwithstanding the fact that
such evidence is admissible at domestic level, the conditions
governing its use in the case at hand were not observed – in
certain circumstances, particularly where the rights of the defence
have been respected, and where the public interest must prevail over
the interests of the individual, in view of the nature and
seriousness of the offence, I would tend to conclude that there has
been no breach of the rules of a fair trial.
In
the present case, I consider that there was no violation because
there was only a formal breach (“in accordance with the
law”) in obtaining evidence that, in principle, was
admissible in a democratic society and the rights of the defence
were, moreover, respected.
CONCURRING OPINION OF JUDGE KOVLER
(Translation)
I
agree with the conclusions reached by the majority. I should
nevertheless like to clarify my position on the complaints under
Article 8 of the Convention as submitted by the applicant.
Before
relinquishing jurisdiction on 22 November 2007 in favour of the Grand
Chamber, the Chamber of seven judges, of which I was a member,
summarised the complaints under Article 8 as follows in its
admissibility decision of 7 September 2006: “The applicant
complained that the police conducting the covert operation unlawfully
intruded into his home and interfered with his private life and
correspondence by intercepting and recording his conversation with V.
in violation of Article 8 of the Convention ...” This
complaint was declared admissible in its entirety.
According
to the text of the Grand Chamber's judgment, “the applicant
complained ... about the covert recording made at his home”
(see paragraph 3). The statements of the facts (see paragraphs
35-36) and, above all, of the applicant's allegations thus portray
the intrusion into his home as an unlawful and unjustified
interference with his right to respect for his private life and home
(see paragraphs 70-71). However, to my regret the Grand Chamber
confines its conclusions to the finding that an “operative
experiment” was not accompanied by adequate legal safeguards
(see paragraph 81), before stating quite simply: “Nor is it
necessary to consider whether the covert operation also constituted
an interference with the applicant's right to respect for his
home”(see paragraph 82). This was a missed opportunity to
undertake a more nuanced assessment of all the applicant's complaints
under Article 8, on the basis of the Court's substantial body of
case-law in this area.
PARTLY DISSENTING OPINION OF JUDGE COSTA
(Translation)
I
consider that there was a breach of Article 6 § 1 of the
Convention in this case. The applicant's complaint that the criminal
proceedings resulting in his conviction were unfair was mainly based
on two arguments:
– that
police trickery had caused him to incriminate himself; and
– that
the instrument of such trickery – the recording of his
conversation with V. – had been admitted in evidence.
Both
these points may give rise to some uncertainty.
The
police and the Federal Security Service (FSB) conducted a covert
operation in which the central agent was V., who had allegedly been
ordered by the applicant to kill the latter's former business
associate, S., but had not carried out the murder, instead reporting
the applicant to the FSB. The covert operation, aimed at obtaining
evidence against the applicant, consisted in sending V. to the
applicant's home and instructing V. to say that he had carried out
the order to kill; at the same time, their conversation would be
secretly recorded by a police officer stationed outside the house.
V.'s
visit was itself preceded by the macabre staging several days earlier
of the discovery of two dead bodies at S.'s home, spuriously
identified as S. and his business partner, I. This was widely
publicised.
This
ploy, despite its specific characteristics, is not in itself far
removed from the ruses, traps and stratagems used by the police to
obtain confessions from persons suspected of criminal offences or to
establish their guilt, and it would be naïve, indeed
unreasonable, to seek to disarm the security forces, faced as they
are with the rise in delinquency and crime.
Even
so, not all methods used by the police are necessarily compatible
with the rights guaranteed by the Convention. Thus, in a different
context, the Court did not accept that a police ruse (nevertheless
described by the Government as a “little ruse”) was
compatible with the right to liberty within the meaning of Article 5
(see Čonka v. Belgium, no. 51564/99, §§ 41-46,
ECHR 2002 I). And in the present case the Court found that the
unlawful interception of Mr Bykov's conversation with V. breached
Article 8 of the Convention.
With
regard to Article 6 § 1, I would not go so far as to take the
view that the use of any evidence breaching the Convention as a basis
for establishing the accused's guilt renders the trial unfair (as was
argued by Judge Loucaides in his separate opinion in Khan v. the
United Kingdom, no. 35394/97, ECHR 2000 V). However, I
do believe that the Court should undertake a careful examination of
whether a trial based on such evidence complies with Article 6 §
1, a point to which I shall return later.
As
regards the right not to incriminate oneself, an inherent aspect of
the rights of the defence as affirmed in John Murray v. the United
Kingdom (8 February 1996, Reports of Judgments and Decisions
1996 I), it normally entails the right for a person suspected of
an offence to remain silent, including during police questioning.
Although the Court accepts that the right not to contribute to
incriminating oneself is not absolute, it attaches considerable
importance to it and has sometimes pointed out that it originates in
Article 14 of the International Covenant on Civil and Political
Rights (see Funke v. France, 25 February 1993, § 42,
Series A no. 256 A).
The
right to remain silent would be truly “theoretical and
illusory” if it were accepted that the police had the right to
“make a suspect talk” by using a covert recording of a
conversation with an informer assigned the task of entrapping the
suspect.
Yet that was exactly the case here. V. was in practice
an “agent” of the security forces, and I can see
similarities between the Bykov case and that of Ramanauskas
v. Lithuania ([GC], no. 74420/01, ECHR 2008 ...), in which
the Grand Chamber unanimously found a violation of Article 6 §
1. The facts were different, but both cases involved simulation and
provocation instigated by the security forces. By telling the
applicant that he had carried out the killing, V. sought to induce
the applicant, who was unaware that his conversation could be heard,
to confirm that he had entered into a “contract” with
him, in the criminal sense of the term.
The
Court is obviously not, and should not become, a fourth-instance
court. It does not have to decide (that is the task of the national
courts) whether Mr Bykov was guilty of incitement to commit murder.
Nor does it have to speculate on what the outcome of the trial would
have been had it been fair. But it is precisely its task to rule on
the fairness issue; and the use of this elaborately staged ploy
(including the “fake” corpses) causes me to harbour
strong doubts as to whether the presumption of innocence, the rights
of the defence and, ultimately, the fairness of the trial were
secured.
My
doubts are entirely dispelled when I note that the evidence obtained
in breach of Article 8 of the Convention played a decisive role in
this context. I shall not expand on this point, which I consider is
addressed very eloquently in the partly dissenting opinion of Judge
Spielmann joined by Judges Rozakis, Tulkens, Casadevall and Mijović.
In
my view, this decisive aspect is very important in law. If, besides
the recording in issue (and the initial complaint against Mr Bykov by
V., but that could have been one man's word against another), the
Russian judges had based their findings on other evidence, there
would still have been cause for uncertainty. A criminal trial is
often complex, and the large number of items of evidence on which the
judges' verdict is based may sometimes decontaminate the dubious
evidence by absorbing it. That was not the case in this instance.
All
in all, while I fully understand the reasons why the Court did not
find a violation of Article 6, I was unable to make the leap that
would have allowed me to share the majority's view.
PARTLY DISSENTING OPINION OF JUDGE SPIELMANN JOINED BY
JUDGES ROZAKIS, TULKENS, CASADEVALL AND MIJOVIĆ
(Translation)
I
do not agree with the Court's conclusion that there was no violation
of Article 6 of the Convention.
The
question of respect for the right to a fair hearing arises in my
opinion under two headings: the admission in criminal proceedings of
evidence obtained in breach of Article 8, and the right to remain
silent and not to incriminate oneself.
I. Admission in criminal proceedings of evidence
obtained in breach of Article 8
I
would observe that, having regard to the general principles set out
in paragraphs 88-93 of the judgment, the Court reached a unanimous
finding that the covert operation was conducted in breach of Article
8 of the Convention.
The
simulation staged by the authorities, described in more detail in the
part of the judgment concerning the circumstances of the case under
the heading “Covert operation”, was unlawful. As the
Court observed in paragraph 80, the applicant enjoyed very few, if
any, safeguards in the procedure by which the interception of his
conversation with V. was ordered and implemented. It accordingly
found a violation of Article 8 of the Convention.
(a) The question of principle and the
missed opportunity to strengthen practical and effective rights
After
the Chamber had relinquished jurisdiction, the present case was sent
to the Grand Chamber, which was afforded the opportunity to clarify
and spell out its case-law on the use of unlawful evidence at a
trial. The question of the admission in criminal proceedings of
evidence obtained in breach of Article 8 is a question of principle
that deserved an answer of principle, particularly as regards the
need to ensure consistency between the Court's findings under the two
Articles of the Convention (what is prohibited under Article 8 cannot
be permitted under Article 6) and the need to stress the importance
of the Article 8 rights at stake (bearing in mind the growing need to
resort to unlawful investigative methods, especially in fighting
crime and terrorism). As far as this question of principle is
concerned, I would reiterate the arguments which my colleague
Françoise Tulkens put forward in her partly dissenting opinion
in P.G. and J.H. v. the United Kingdom.
In
the present case the violation of Article 8 was a particularly
serious one, representing a manifest infringement of the fundamental
rights protected by that provision. The use during a trial of
evidence obtained in breach of Article 8 should have called for an
extremely rigorous examination by the Court of the fairness of the
proceedings. As the Court has already had occasion to emphasise, the
Convention is to be read as a coherent whole.
I agree with the partly concurring, partly dissenting opinion
expressed by Judge Loucaides in Khan v. the United Kingdom
and reiterated by Judge Tulkens in her above-mentioned partly
dissenting opinion in P.G. and J.H. v. the United Kingdom:
“It is my opinion that the term 'fairness', when
examined in the context of the European Convention on Human Rights,
implies observance of the rule of law and for that matter it
presupposes respect of the human rights set out in the Convention. I
do not think one can speak of a 'fair' trial if it is conducted in
breach of the law.”
In
the present case the violation of Article 8 of the Convention found
by the Court results, and indeed results exclusively, from the
unlawfulness of the evidence in issue (see paragraph 82 of the
judgment). Yet the fairness required by Article 6 of the Convention
also entails a requirement of lawfulness.
Fairness presupposes respect for lawfulness and thus also, a
fortiori, respect for the rights guaranteed by the Convention,
which it is precisely the Court's task to supervise.
As
regards the nature and scope of the Court's supervision, the Court
rightly notes in the judgment that “in accordance with
Article 19 of the Convention, its only task is to ensure the
observance of the obligations undertaken by the Parties in the
Convention” (see paragraph 88). It follows, and I strongly
agree with this observation, that
“it is not competent to deal with an application
alleging that errors of law or fact have been committed by domestic
courts, except where it considers that such errors might have
involved a possible violation of any of the rights and freedoms set
out in the Convention”.
Similarly,
while it is not the role of the Court
“to determine, as a matter of principle, whether
particular types of evidence – for example, evidence obtained
unlawfully in terms of domestic law – may be admissible”
(see paragraph 89 of the judgment),
the
position is, however, different where, as in the present case, the
evidence was obtained in breach of a right guaranteed by the
Convention, seeing precisely that, where the taking of evidence is
concerned, the Court must ensure observance by the Contracting States
of their obligations under the Convention.
The
judgment in the present case could have dispelled the uncertainties
resulting from the Court's case-law on the subject by making clear
that what is prohibited by one provision (Article 8) cannot be
accepted under another (Article 6).
In
finding that there was no violation of Article 6, the Court has
undermined the effectiveness of Article 8. Yet the rights enshrined
in the Convention cannot remain purely theoretical or virtual, since
“the Convention must be interpreted and applied in
such a way as to guarantee rights that are practical and effective”.
The
majority's view seems to me, moreover, to entail a real danger, one
which has already been noted in the above-mentioned separate opinion
in Khan
and reiterated in the above-mentioned separate opinion in P.G.
and J.H. v. the United Kingdom:
“If violating Article 8 can be accepted as 'fair'
then I cannot see how the police can be effectively deterred from
repeating their impermissible conduct.”
However,
the Court has itself emphasised
“the need to ensure that the police exercise their
powers to control and prevent crime in a manner which fully respects
the due process and other guarantees which legitimately place
restraints on the scope of their action ..., including the guarantees
contained in Articles 5 and 8 of the Convention”.
The
judgment fails to provide a response to the questions raised in the
partly dissenting opinion cited above:
“Will there come a point at which the majority's
reasoning will be applied where the evidence has been obtained in
breach of other provisions of the Convention, such as Article 3, for
example? Where and how should the line be drawn? According to which
hierarchy in the guaranteed rights? Ultimately, the very notion of
fairness in a trial might have a tendency to decline or become
subject to shifting goalposts.”
So
much, then, for the principles and for the (missed) opportunity
afforded to the Grand Chamber to strengthen practical and effective
rights.
(b) The decisive influence of the evidence
obtained in breach of Article 8 of the Convention
Beyond
the question of principle addressed above, I consider that the
evidence obtained in breach of Article 8 caused the proceedings to be
fatally flawed, since it decisively influenced the guilty verdict
against the applicant.
Admittedly,
it appears that the court in the present case based its decision on
other items of evidence. Besides the evidence obtained by means of
the covert operation, the following items unconnected with the
operation seem to have been taken into account: the initial statement
by V. that the applicant had ordered him to kill S.; the gun V.
handed in to the FSB; and the records of the questioning of V. on
subsequent occasions during the investigation. These items of
evidence – all produced by V. – were challenged during
the trial by the applicant, who for his part relied on V.'s
subsequent withdrawal of his statements. However, the doubts as to
the reliability of V.'s statements could not be dispelled since V.
was absent and the authorities were unable to trace him and call him
to appear in court, with the result that he could not be
cross-examined during the trial (see paragraphs 38-40 of the
judgment). The court eventually admitted the statements by V. as
written evidence and, after examining the contradictory remarks he
had made, concluded that the withdrawal appeared to have resulted
from a subsequent arrangement between V. and the applicant.
Accordingly – leaving aside the evidence obtained in breach of
Article 8 of the Convention – the court reached its finding
solely on the basis of V.'s initial statements incriminating the
applicant.
Admittedly,
the applicant had the opportunity to examine V. when they were
brought face to face during the investigation, but I must emphasise
that this meeting took place before V. withdrew his statements.
Consequently, the applicant's lawyer was unable to cross-examine V.
in the light of his withdrawal of the statements, either during the
investigation or during the court hearings. However, as the Court
emphasised in Lucà v. Italy, where a
conviction is based solely or to a decisive degree on depositions
that have been made by a person whom the accused has had no
opportunity to examine or to have examined, whether during the
investigation or at the trial, the rights of the defence are
restricted to an extent that is incompatible with the guarantees
provided by Article 6.
(c) The need for the subsequent use of
anonymous sources to be accompanied by adequate and sufficient
guarantees
The
fact that it was impossible to cross-examine V. in court also raises
an issue in terms of the procedural right to challenge the evidence
obtained as a result of the covert operation.
As
the Court pointed out in the Ramanauskas judgment,
admittedly in an entirely different context, involving police
incitement,
“the Convention does not preclude reliance, at the
preliminary investigation stage and where the nature of the offence
may warrant it, on sources such as anonymous informants. However, the
subsequent use of such sources by the trial court to found a
conviction is a different matter and is acceptable only if adequate
and sufficient safeguards against abuse are in place, in particular a
clear and foreseeable procedure for authorising, implementing and
supervising the investigative measures in question (see Khudobin
v. Russia, no. 59696/00, § 135, 26 October 2006, and,
mutatis mutandis, Klass and Others v. Germany, 6
September 1978, §§ 52-56, Series A no. 28). While the
rise in organised crime requires that appropriate measures be taken,
the right to a fair trial, from which the requirement of the proper
administration of justice is to be inferred, nevertheless applies to
all types of criminal offence, from the most straightforward to the
most complex. The right to the fair administration of justice holds
so prominent a place in a democratic society that it cannot be
sacrificed for the sake of expedience (see Delcourt v. Belgium,
17 January 1970, § 25, Series A no. 11).”
Admittedly,
the other evidence used during the trial included numerous witness
statements referring to the existence of a conflict of interests
between the applicant and S., and other items confirming the accuracy
of the description of the covert operation set out in the reports on
the investigation. However, the probative value of such evidence was
relatively minor. The fact that it was impossible to cross-examine V.
in court therefore prevented the applicant from having full enjoyment
of his procedural right to challenge the evidence obtained through
the covert operation.
In
short, I consider that the use of the evidence in issue irreparably
impaired the applicant's defence rights. Such a conclusion would in
itself have justified the finding of a violation of Article 6 of the
Convention.
II. Respect for the right to remain silent and not to
incriminate oneself
Lastly,
the covert operation in my opinion infringed the applicant's right to
remain silent and not to incriminate himself. None of the Court's
case-law corresponds exactly to the facts of the present case. Once
again, I regret that the Grand Chamber did not seize the opportunity
to clarify the principles emerging, in particular, from its judgments
in the cases of Jalloh,
Allan
and, to a lesser extent, Ramanauskas.
In
its Jalloh judgment of 11 July 2006 the Court reiterated the
principle that
“... the right not to incriminate oneself is
primarily concerned with respecting the will of an accused person to
remain silent”.
In
the case of Jalloh the authorities obtained real evidence
against the applicant's will. The Court declared that the privilege
against self-incrimination was applicable, stating the following:
“... the principle against self-incrimination is
applicable to the present proceedings.
In order to determine whether the applicant's right not
to incriminate himself has been violated, the Court will have regard,
in turn, to the following factors: the nature and degree of
compulsion used to obtain the evidence; the weight of the public
interest in the investigation and punishment of the offence at issue;
the existence of any relevant safeguards in the procedure; and the
use to which any material so obtained is put.”
These
criteria are applicable in the present case, given that the substance
of the matter concerns the recording of evidence obtained in breach
of the privilege against self-incrimination. Concerning more
specifically the public interest in securing the applicant's
conviction, I do not consider that this can in any circumstances
justify the use in evidence of recordings found to have been unlawful
for the purposes of Article 8 of the Convention.
The
present case is similar to the case of Allan, in which the
Court found a violation of Article 6.
Admittedly, unlike in Allan, the applicant in the present case
was not in pre-trial detention but at liberty in his own property. It
is also true that in Allan the applicant chose to remain
silent.
However,
those particular aspects are in my opinion not decisive, seeing that
the informer V. was de facto an agent working for the
authorities at the time when he recorded the conversation in issue.
In
paragraph 51 of the Allan judgment the Court stated the
following, referring to the case-law of the Supreme Court of Canada:
“Whether the right to silence is undermined to
such an extent as to give rise to a violation of Article 6 of the
Convention depends on all the circumstances of the individual case.
In this regard, however, some guidance may be found in the decisions
of the Supreme Court of Canada, ... in which the right to silence, in
circumstances which bore some similarity to those in the present
case, was examined in the context of section 7 of the Canadian
Charter of Rights and Freedoms. There, the Canadian Supreme Court
expressed the view that, where the informer who allegedly acted to
subvert the right to silence of the accused was not obviously a State
agent, the analysis should focus on both the relationship between the
informer and the State and the relationship between the informer and
the accused: the right to silence would only be infringed where the
informer was acting as an agent of the State at the time the accused
made the statement and where it was the informer who caused the
accused to make the statement. Whether an informer was to be regarded
as a State agent depended on whether the exchange between the accused
and the informer would have taken place, and in the form and manner
in which it did, but for the intervention of the authorities. Whether
the evidence in question was to be regarded as having been elicited
by the informer depended on whether the conversation between him and
the accused was the functional equivalent of an interrogation, as
well as on the nature of the relationship between the informer and
the accused.”
In
the present case the informer who acted on State instructions,
subverting the applicant's right to remain silent, was obviously a
State agent. The question arises whether the conversation between him
and the accused would have taken place, and in the form and manner in
which it did, but for the intervention of the authorities. The answer
is no, and the recorded conversation was thus was the functional
equivalent of an interrogation. The purpose of this ruse was, in
particular, to reveal the existence of a particular offence, namely
“conspiracy to murder”. Among the constituent elements of
this offence, the mens rea or element of intent plays a
crucial, if not predominant, role. The grossly unlawful ruse staged
by the authorities was aimed precisely at “uncovering”
this essential element of the offence.
The
fact that the applicant had not been charged is not decisive in my
opinion either. In the R. v. Hebert decision (cited above) the
Supreme Court of Canada stated the following:
“The protection conferred by a legal system which
grants the accused immunity from incriminating himself at trial but
offers no protection with respect to pre-trial statements would be
illusory. As Ratushny writes (Self-Incrimination in the Canadian
Criminal Process (1979), at p. 253):
'Furthermore, our system meticulously provides for a
public trial only after a specific accusation and where the accused
is protected by detailed procedures and strict evidentiary rules.
Ordinarily he is represented by a lawyer to ensure that he in fact
received all of the protections to which he is entitled. The accused
is under no legal or practical obligation to respond to the
accusation until there is an evidentiary case to meet. There is a
hypocrisy to a system which provides such protections but allows them
all to be ignored at the pre-trial stage where interrogation
frequently occurs in secret, after counsel has been denied, with no
rules at all and often where the suspect or accused is deliberately
misled about the evidence against him.'
...
The guarantee of the right to consult counsel confirms
that the essence of the right is the accused's freedom to choose
whether to make a statement or not. The state is not obliged to
protect the suspect against making a statement; indeed it is open to
the state to use legitimate means of persuasion to encourage the
suspect to do so. The state is, however, obliged to allow the suspect
to make an informed choice about whether or not he will speak to the
authorities.”
However,
in the present case, the applicant spoke without having given his
free and informed consent.
I
would add that to deny the right to remain silent and the right not
to incriminate oneself simply because the applicant had not been
charged or had not undergone initial questioning would leave the way
open for abuses of procedure. The person concerned would be deprived
of the opportunity to choose to speak or to remain silent at a later
stage, for example during such questioning, and the principle would
thus become devoid of all substance.
It
is true that in the R. v. Hebert decision the Supreme Court of
Canada also based its ruling on the fact that the person concerned
was in detention:
“[The rule] applies only after detention.
Undercover operations prior to detention do not raise the same
considerations. The jurisprudence relating to the right to silence
has never extended protection against police tricks to the
pre-detention period. Nor does the Charter extend the right to
counsel to pre-detention investigations. The two circumstances are
quite different. In an undercover operation prior to detention, the
individual from whom information is sought is not in the control of
the state. There is no need to protect him from the greater power of
the state. After detention, the situation is quite different; the
state takes control and assumes the responsibility of ensuring that
the detainee's rights are respected.”
However,
I consider that the criterion applied by the Supreme Court in the
context of detention is applicable mutatis mutandis to a
situation where the person concerned is de facto under the
authorities' control. This was so in the present case; the applicant
was an unwitting protagonist in a set-up entirely orchestrated by the
authorities. I would draw attention here to the very particular
circumstances of the covert operation, which began with the staged
discovery of two bodies and the announcement in the media that S. and
I. had been shot dead. By the time V. arrived at the applicant's
“guest house”, the applicant was already under the
influence of the erroneous information that a serious crime had been
committed, and his belief was reinforced by V.'s admission that he
had been the perpetrator. The applicant's conduct was therefore not
solely, or mainly, guided by events which would have taken place
under normal circumstances, but above all by the appearances created
by the investigating authorities. To that extent, seeing that he was
the victim of a ruse, his statements and reaction cannot reasonably
be said to have been voluntary or spontaneous.
In
the case of Ramanauskas, concerning police incitement, the
Court reached the conclusion in its judgment of 5 February 2008 that
“the actions ... had the effect of inciting the
applicant to commit the offence of which he was convicted[,]
that there is no indication that the offence would have been
committed without their intervention [and that i]n view of such
intervention and its use in the impugned criminal proceedings, the
applicant's trial was deprived of the fairness required by Article 6
of the Convention”.
(my italics)
In
the present case the purpose of the staged events was to make the
applicant talk. The covert operation undermined the voluntary nature
of the disclosures to such an extent that the right to remain silent
and not to incriminate oneself was rendered devoid of all substance.
As in the Ramanauskas case, the applicant was entrapped by a
person controlled from a distance by the authorities, who staged a
set-up using a private individual as an undercover agent. I thus
consider that the information thereby obtained was disclosed through
entrapment, against the applicant's will.
III. Article 41 of the Convention
Lastly,
I voted against point 4 (a) of the operative provisions. I consider
that the award of 1,000 euros for non-pecuniary damage is
insufficient, given the Court's finding of two violations.
