CASE OF BYKOV v. RUSSIA
(Application no. 4378/02)
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:
Ireneu Cabral Barreto,
David Thór Björgvinsson,
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:
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.
I. THE CIRCUMSTANCES OF THE CASE
A. Covert operation
B. Pre-trial detention
C. Criminal investigation and trial
“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.]”
“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.]?”
– 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.
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.
II. RELEVANT DOMESTIC LAW
A. Pre-trial detention
1. Grounds for detention on remand
2. Time-limits for detention on remand
B. Operative experiments
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
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].
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.
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
“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.”
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“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.”
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. General principles established in the Court's case-law
B. Application of those principles to the present case
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and 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.
C. Default interest
FOR THESE REASONS, THE COURT
(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;
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.
CONCURRING OPINION OF JUDGE CABRAL BARRETO
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.
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).
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.
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 “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.”
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.
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,  1 SCR 640; approved by the majority of the Supreme Court in R. v. Collins,  1 SCR 265, § 52, and R. v. Oickle,  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
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
– 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.
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.
PARTLY DISSENTING OPINION OF JUDGE SPIELMANN JOINED BY JUDGES ROZAKIS, TULKENS, CASADEVALL AND MIJOVIĆ
I. Admission in criminal proceedings of evidence obtained in breach of Article 8
(a) The question of principle and the missed opportunity to strengthen practical and effective rights
“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.”
“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”.
“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 Convention must be interpreted and applied in such a way as to guarantee rights that are practical and effective”.1
“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.”
“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”.4
“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.”5
(b) The decisive influence of the evidence obtained in breach of Article 8 of the Convention
(c) The need for the subsequent use of anonymous sources to be accompanied by adequate and sufficient guarantees
“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).”2
II. Respect for the right to remain silent and not to incriminate oneself
“... the right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent”.4
“... 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.”5
“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.”
“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.”1
“[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.”
“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”.1 (my italics)
III. Article 41 of the Convention
11. P.G. and J.H. v. the United Kingdom, no. 44787/98, ECHR 2001 IX.
22. Klass and Others v. Germany, 6 September 1978, §§ 68-69, Series A no. 28.
33. Khan v. the United Kingdom, no. 35394/97, ECHR 2000 V.
44. Cited above.
55. Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 102, ECHR 2000-VII.
11. See Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 35, ECHR 2000-IV; Beer and Regan v. Germany [GC], no. 28934/95, § 57, 18 February 1999; García Manibardo v. Spain, no. 38695/97, § 43, ECHR 2000-II; and Salduz v. Turkey [GC], no. 36391/02, § 51, ECHR 2008-....
22. Partly concurring, partly dissenting opinion of Judge Loucaides in Khan, cited above.
33. Partly dissenting opinion of Judge Tulkens in P.G. and J.H., cited above.
44. See Osman v. the United Kingdom, 28 October 1998, § 116, Reports of Judgments and Decisions 1998-VIII.
11. See Lucà v. Italy, no. 33354/96, § 40, ECHR 2001 II, and the references therein to Unterpertinger v. Austria, 24 November 1986, §§ 31-33, Series A no. 110; Saïdi v. France, 20 September 1993, §§ 43-44, Series A no. 261-C; Van Mechelen and Others v. the Netherlands, 23 April 1997, § 55, Reports 1997-III; Dorigo v. Italy, application no. 33286/96, Commission’s report of 9 September 1998, § 43, and, on the same case, Committee of Ministers Resolution DH (99) 258 of 15 April 1999.
11. Ramanauskas v. Lithuania [GC], no. 74420/01, ECHR 2008-....
11. Jalloh v. Germany [GC], no. 54810/00, ECHR 2006 IX.
22. Allan v. the United Kingdom, no. 48539/99, ECHR 2002 IX.
33. Cited above.
44. Jalloh, cited above, § 101.
55. Ibid., §§ 116-17.
66. Compare with the concurring opinion of Sir Nicolas Bratza in Jalloh, cited above:
“... the scale of the drug dealing involved seems to me to be immaterial to the Convention issues raised under Article 6. The public interest in securing the applicant’s conviction could not in my view in any circumstances have justified the use in evidence of drugs obtained by the treatment to which he was subjected.”
77. Allan, cited above, § 52.
88. R. v. Hebert ( 2 Supreme Court Reports 151).
11. Per McLachlin J.
11. Ramanauskas, cited above, § 73.
22. See, mutatis mutandis, Allan, cited above.