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Cite as: CE:ECHR:2017:1031JUD002276708, [2017] ECHR 952, ECLI:CE:ECHR:2017:1031JUD002276708

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FOURTH SECTION

CASE OF DRAGOŞ IOAN RUSU v. ROMANIA

(Application no. 22767/08)

JUDGMENT

STRASBOURG

31 October 2017

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Dragoş Ioan Rusu v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          Ganna Yudkivska, President,
          Vincent A. De Gaetano,
          Paulo Pinto de Albuquerque,
          Faris Vehabović,
          Iulia Motoc,
          Marko Bošnjak,
          Péter Paczolay, judges,
and Marialena Tsirli, Section Registrar,

Having deliberated in private on 12 and 19 September 2017,

Delivers the following judgment, which was adopted on the
last-mentioned date:

PROCEDURE

1. The case originated in an application (no. 22767/08) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Dragoș Ioan Rusu (“the applicant”), on 6 May 2008.

2. The applicant was represented by Mr S.C. Finică, a lawyer practising in Bacău. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar from the Ministry of Foreign Affairs.

3. The applicant alleged, in particular, that his right to respect for his correspondence and his right to a fair trial had been breached in so far as letters had been seized on the orders of a prosecutor and had subsequently been used as the main evidence against him at trial.

4. On 12 June 2013 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1974 and lives in Bacău.

A. Investigations into suspicions of drug trafficking

6. On 13 January 2005 the Bacău police division responsible for the fight against organised crime and drug trafficking (“the police”) was informed by the Bacău Regional Division of the Romanian Post Office (“the Post Office”) that it had identified three envelopes containing suspicious items. The envelopes, sent abroad by registered post sometime between 11 April and 13 May 2003, had been returned unopened as the intended recipients had failed to collect them. The people who had sent them could not be identified by postal workers and their addresses had proved to be fictitious. Consequently, the postal workers had opened the envelopes and contacted the police.

7. The police seized and examined the envelopes and found that they contained Diazepam, a prescription medicine which also belonged to one of the categories of prohibited drugs under Law no. 143/2000 on the fight against drug trafficking and illegal drug use (“Law no. 143”).

8. Between January and February 2005 similar envelopes containing similar prescription medicines meant to be sent abroad were discovered by the Post Office and given to the police.

9. On 9 and 14 February 2005 the division for the investigation of organised crime and terrorism from the Bacău Prosecutor’s Office (“the prosecutor”) issued orders authorising the seizure of the suspicious envelopes under the urgent procedure provided for by Article 98 § 1² of the Code of Criminal Procedure (hereinafter “the urgent procedure” and “the CCP” - see paragraph 26 below). The prosecutor sent the orders to the County Court for the court’s information on the next day.

The relevant parts of the orders read as follows:

“The investigation showed that the recipients’ addresses are false.

As it appears that the envelopes contain prohibited substances which are among those listed in Law no. 143,

Bearing in mind the urgency and the well-foundedness [of the measure] under Article 98 § 1² of the CCP

Orders

That the envelopes ... be taken by police officers ...

Items which are of no relevance to the case shall be returned.”

10. On 18 February 2005 the prosecutor started criminal investigations in the matter against unidentified perpetrators.

11. The prosecutor requested audio and video-surveillance of the post offices in Bacău. The measure was authorised by the Bacău County Court on 23 February 2005.

12. With the help of the surveillance material the applicant (who at that point remained unidentified) was seen on 14 March 2005 in two different post offices as he deposited two other suspect envelopes to be sent abroad. The envelopes were seized under the urgent procedure provided for by Article 98 § 1² of the CCP (see paragraph 26 below) and on the next day the prosecutor sent the orders to the court for the court’s information. An examination of the envelopes showed that they contained prescription medicine and that the sender’s address was false. The prosecutor’s orders read as follows:

“... a man brought a parcel with suspicious contents which were of interest to investigators ...

As the correspondence was of interest to investigators and as the situation is urgent and duly justified, under Article 98 § 1² of the CCP

Orders

That the police ... seize the parcel.

Correspondence and items which have been seized but which are of no relevance for the case shall be returned.”

13. On 25 March and 18 April 2005 an expert examined the writing on the envelopes seized by the police and concluded that it belonged to the applicant.

14. During the investigation, the prosecutor identified two pharmacies where the drugs had been procured without prescription. The pharmacists identified the applicant as the person to whom they had sold the medicine.

15. Based on the evidence that had been gathered, the prosecutor concluded that between 2003 and 2005 the applicant had obtained medical products classified as drugs without prescription and had tried to sell them abroad.

B. The first set of proceedings

16. On 2 June 2005 the prosecutor committed the applicant for trial on a charge of dealing in drugs. Five of the envelopes seized on 9 February, 14 February and 14 March 2005 (see paragraphs 9 and 12 above) were attributed to the applicant and used as evidence.

17. The applicant contested the lawfulness of the interception of his correspondence before the Bacău County Court and argued that the prosecutor had not obtained authorisation from the court to seize it, as required by the relevant provision of the CCP. As for the contents of the seized envelopes, he stated that he had sent scientific papers and samples abroad in relation to his research work and that he had used a fake identity to protect his private life and reputation in case the quality of the scientific work was considered as poor. He denied any involvement in drug trafficking.

18. On 27 February 2007 the applicant was acquitted. The County Court excluded the prosecution’s main evidence, considering that the seized envelopes had been obtained unlawfully as the prosecutor had failed to ask the court to approve the measure. As for the remaining evidence in the file, it noted that the audio and video-recordings were not relevant for the accusations brought against the applicant and that the witnesses were unreliable as they had changed their statements in court.

19. On 18 September 2007 the Bacău Court of Appeal upheld the above judgment.

20. However, on 28 January 2008 the High Court of Cassation and Justice allowed an appeal on points of law by the prosecutor. It found that the lower courts had erred when they had set aside the evidence obtained from the seized correspondence. It considered that the provisions of the CCP meant that the prosecutor had been obliged to inform the courts about the seizure orders but not to seek their approval. It therefore sent the case back to the County Court and recommended that the court check whether the prosecutor’s orders had been sent as information to the court and to examine the accusation in the light of all the evidence in the file. The decision of the High Court of Cassation and Justice was final.

C. The second set of proceedings

21. On 12 February 2009 the Bacău County Court convicted the applicant of drug trafficking and gave him a three-year suspended sentence. The County Court relied on the evidence in the file, namely the seized envelopes and the expert evaluation of their content and of the writing on them. It also relied on transcripts of the audio and video-surveillance in the post office and of the applicant’s telephone; statements by seven pharmacists that they had sold the medicine in question to the applicant without prescription; and testimony by two doctors who had been asked by the applicant or pharmacists to write prescriptions to cover up for the medicine sold without prescription. There was also testimony from the family doctor, who denied prescribing any medicine to the applicant’s parents, as the applicant had asserted. The County Court also had at its disposal statements from other witnesses, notably nine post office workers who remembered the applicant sending between one and five envelopes a week abroad, starting from 2003; four fellow researchers from the University, who worked or had worked in the same research team as the applicant; and a bus driver who said he had delivered an envelope for the applicant. The court heard evidence from twenty-three witnesses who had participated in various procedural acts as independent witnesses at the request of the police (martori asistenţi). The court further relied on the results of checks on the addresses abroad used by the applicant; Interpol information about the recipients of the envelopes; and police reports about checks on the two pharmacies used by the applicant, notably concerning bills and permits for selling prescription medicine which constituted drugs (see paragraph 14 above). In addition, it referred to the police report concerning the applicant’s activity on the Internet related to his alleged scientific work abroad (see paragraph 17 above). The court also had at its disposal reports from seven banks, attesting to the fact that between 2003 and 2005 the applicant had received more than a hundred money transfers from abroad for small sums, amounting to more than 41,000 United States dollars (USD) and 10,000 euros (EUR).

22. The court dismissed the applicant’s argument of the unlawfulness of the interception of the correspondence. Relying on Article 8 of the Convention, it found that the interference with the applicant’s right to respect for his privacy had been provided for by law and had been proportionate to the legitimate aim pursued.

23. It also reiterated that as the situation had been urgent, the prosecutor had been allowed by law to intercept the correspondence without court authorisation, provided that he informed the court afterwards, which he had done.

24. The applicant appealed. In the main, he argued that the interception of his correspondence had been unlawful and had breached his Article 8 rights. The court dismissed his arguments, making reference to the interpretation of the law given by the High Court of Cassation and Justice in its decision of 28 January 2008 (see paragraph 20 above). He also contested the manner in which one of the postal workers had been interviewed by the prosecutor (see paragraph 21 above). He did not contest the lawfulness of the remaining evidence. In his defence, he explained that he had received money from abroad for experiments he had performed for foreign scientists’ research work (see paragraph 21 above).

25. The applicant reiterated his arguments in an appeal on points of law lodged with the High Court of Cassation and Justice. He did not contest the remaining evidence in the file. The High Court dismissed the case in a final decision on 22 June 2010.

II. RELEVANT DOMESTIC LAW AND PRACTICE

26. The relevant provisions of the CCP concerning the interception of correspondence read as follows:

Article 98

“1. During a criminal prosecution, the court, at the prosecutor’s request, ... may order any post office to withhold and hand over [to investigators] any correspondence ... sent by the person under investigation or addressed to him ...

1¹. The measure in paragraph 1 will be ordered if the requirements of Article 91¹ § 1 are met and the procedure provided by that Article has been followed.

1². In urgent situations and where duly justified, correspondence ... may be withheld and handed over [to investigators] by a written order given by the prosecutor; the prosecutor is under an obligation to inform the court of that measure immediately.”

27. The legislation in force at the relevant time concerning telephone tapping, including the provisions of Article 91¹§ 1 of the CCP, and its development after 1 January 2004 is described in Blaj v. Romania (no. 36259/04, §§ 62-65, 8 April 2014; see also Dumitru Popescu v. Romania (no. 2), no. 71525/01, §§ 39-46, 26 April 2007).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

28. The applicant complained that the interception of his correspondence had been unlawful and had breached his rights guaranteed by 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.”

A. Admissibility

29. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ observations

30. The applicant reiterated that only an interference with the rights guaranteed by Article 8 which is lawful can be accepted under the Convention. He argued that in his case the procedure used by the prosecutor had failed to offer the requisite safeguards. Relying on Calmanovici v. Romania (no. 42250/02, 1 July 2008), he argued that the order issued by the prosecutor should have been approved by a court. He also submitted that no record of those orders had been kept in the court registry and thus it was impossible to check whether the court had been informed of the measures without delay.

31. The Government argued at the outset that the applicant had merely reiterated his Article 6 complaint (see paragraph 45 below). In any event, any interference that might have occurred in the case had been prescribed by law: under the provisions of Article 98 § 1² of the CCP the prosecutor had had to inform the court about the measures taken, but had not been obliged to obtain confirmation of those measures. Imposing such an obligation on the authorities, as the applicant alleged was necessary, would go beyond the legal framework. In the case at hand, the prosecutor had informed the court about the order to seize the correspondence. Moreover, the procedure whereby the order had been issued by the prosecutor had respected the legal requirements: it had been urgent and based on a solid justification. Furthermore, the measures taken by the prosecutor had been necessary in a democratic society for uncovering criminal activity regarding serious crimes of drug trafficking.

2. The Court’s assessment

(a) General principles

32. The Court notes at the outset that the applicant complained about the alleged unlawfulness of the interception of his correspondence by the prosecutor in the case.

33. It reiterates that in establishing the right of “everyone” to respect for his “correspondence”, Article 8 of the Convention protects the confidentiality of “private communications”, whatever the content of the correspondence concerned, and whatever form it may take. This means that what Article 8 protects is the confidentiality of all the exchanges in which individuals may engage for the purposes of communication (see Michaud v. France, no. 12323/11, § 90, ECHR 2012; see also, mutatis mutandis, Frérot v. France, no. 70204/01, §§ 53 and 54, 12 June 2007).

34. The interception of correspondence amounts to an interference with the exercise of the rights under Article 8. Such an interference is justified by the terms of paragraph 2 of Article 8 only if it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” in order to achieve the aim or aims pursued (see, amongst many others, Dragojević v. Croatia, no. 68955/11, § 79, 15 January 2015).

35. Furthermore, the Court has established the following general principles concerning the requirement of lawfulness in the interception of communications (see, notably, Dragojević, cited above, §§ 80-84):

“80. The expression ‘in accordance with the law’ under Article 8 § 2 in general requires, first, that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be compatible with the rule of law and accessible to the person concerned, who must, moreover, be able to foresee its consequences for him, and compatible with the rule of law (see, for example, Kruslin v. France, 24 April 1990, § 27, Series A no. 176-A).

81. In particular, in the context of secret measures of surveillance as the interception of communications, the requirement of legal “foreseeability” cannot mean that an individual should be able to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. However, where a power of the executive is exercised in secret the risks of arbitrariness are evident. Thus, the domestic 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 empowered to resort to any such measures (see, for example, Malone [v. the United Kingdom, 2 August 1984, § 67, Series A no. 82]; Huvig v. France, 24 April 1990, § 29, Series A no. 176-B; Valenzuela Contreras v. Spain, 30 July 1998, § 46, Reports of Judgments and Decisions 1998-V; Weber and Saravia v. Germany (dec.), no. 54934/00, § 93, ECHR 2006 XI; and Bykov v. Russia [GC], no. 4378/02, § 76, 10 March 2009).

82. The Court has also stressed the need for safeguards in this connection (see Kvasnica [v. Slovakia, no. 72094/01, § 79, 9 June 2009]). In particular, 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 Bykov, cited above, § 78, and Blaj [v. Romania, no. 36259/04, § 128, 8 April 2014]).

83. Furthermore, in view of the risk that a system of secret surveillance for the protection of national security may undermine or even destroy democracy under the cloak of defending it, the Court must be satisfied that there exist guarantees against abuse which are adequate and effective. This assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to permit, carry out and supervise them, and the kind of remedy provided by the national law (see Klass and Others v. Germany, 6 September 1978, § 50, Series A no. 28; Weber and Saravia, cited above, § 106; Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, § 77, 28 June 2007; and Kennedy v. the United Kingdom, no. 26839/05, § 153, 18 May 2010).

84. This in particular bears significance as to the question whether an interference was ‘necessary in a democratic society’ in pursuit of a legitimate aim, since the Court has held that powers to instruct secret surveillance of citizens are only tolerated under Article 8 to the extent that they are strictly necessary for safeguarding democratic institutions (see Kennedy, cited above, § 153). In assessing the existence and extent of such necessity the Contracting States enjoy a certain margin of appreciation but this margin is subject to European supervision. The Court has to determine whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the ‘interference’ to what is ‘necessary in a democratic society’. In addition, the values of a democratic society must be followed as faithfully as possible in the supervisory procedures if the bounds of necessity, within the meaning of Article 8 § 2, are not to be exceeded (see Kvasnica, cited above, § 80; and Kennedy, cited above, § 154).”

(b) Application of those principles to the case

36. Turning to the facts of the present case, the Court notes, at the outset, that the applicant relied on the provisions of Article 8 of the Convention in his submissions before the domestic courts, thus effectively bringing his complaint to their attention (see paragraph 24 above). The present complaint is therefore separate from that raised under Article 6 of the Convention and cannot be seen, as argued by the Government (see paragraph 31 above), as a mere reiteration of the latter.

37. The Court further notes that according to Article 98 § 1¹of the CPP (see paragraph 26 above), the interception of correspondence in Romania normally follows the procedure provided by Article 91¹ of the CCP, whereby a request made by the prosecutor must be upheld by a court. The Court has already had the opportunity to examine the procedure put in place by this Article and found that it offered sufficient guarantees against arbitrary actions (see, notably, Blaj v. Romania, no. 36259/04, §§ 132-141, 8 April 2014).

38. However, the Court notes that the interception of correspondence in “urgent situations”, allowed under Article 98 § 1² of the CCP, and which was used in the present case (see paragraphs 9 and 12 above), does not fall under the requirements of Article 91¹ of the CCP. The procedure followed in the present case is identical to that used for telephone tapping before 2004, which the Court found to be in breach of the requirements of Article 8. It made that finding because the measure lacked proper safeguards as the prosecutor authorising surveillance was not independent of the executive; the prosecutor’s decision to intercept communications was not subject to a judge’s approval before being carried out; a person under surveillance could not challenge the merits of the interception before a court; and there was no mention in the law of the circumstances in which transcripts should be destroyed (see Bălteanu v. Romania, no. 142/04, § 42, 16 July 2013). That in itself raises doubts as to whether the interception of the applicant’s correspondence was “in accordance with the law” within the meaning of Article 8 § 2 of the Convention.

39. Moreover, the Court observes that Article 98 § 1² of the CCP imposes an obligation on prosecutors to inform the domestic courts immediately when a surveillance measure has been taken (see paragraphs 20 and 26 above). However, it is not possible in this case to determine whether the courts examined the prosecutor’s orders. The Court reiterates on that point that supervision procedures must follow the values of democratic societies as faithfully as possible, in particular the rule of law, which is expressly referred to in the Preamble to the Convention. The rule of law implies, inter alia, that interference by the executive authorities with an individual’s rights should be subject to effective supervision, which should normally be carried out by the judiciary, at least in the last resort, since judicial control affords the best guarantees of independence, impartiality and a proper procedure (see Volokhy v. Ukraine, no. 23543/02, § 52, 2 November 2006).

40. Admittedly, the applicant challenged the lawfulness of the interception in the main criminal proceedings. However, the Court must remark that those proceedings, which started on 2 June 2005 (see paragraph 16 above) and ended on 22 June 2010 (see paragraph 25 above), lasted more than five years, which, in itself, casts doubts on the effectiveness of this remedy for the purpose of challenging the lawfulness of the interception of correspondence which took place in February and March 2005 (see, mutatis mutandis, Modestou v. Greece, no. 51693/13, § 52, 16 March 2017).

41. Lastly, the Court reiterates that the legal discretion granted to the executive should not be expressed in terms of an unfettered power (see Dragojević, cited above, § 82). In other words, even assuming that the urgent procedure which allows prosecutors to circumvent judicial control could pass as legitimate, it should under no circumstances be abused. Consequently, recourse to that procedure should be justified and the justification should be examined by the domestic courts. However, nothing in the case at hand indicates such urgency. Indeed, the police became aware that suspect envelopes were being sent abroad in January 2005 (see paragraph 6 above). There is no explanation why the prosecutor could not use the normal procedure for the secret surveillance between 9 February and 14 March 2005 (see paragraphs 9 and 12 above). Moreover, the domestic courts did not examine whether and to what extent it was legitimate for the prosecutor to have recourse to the urgent procedure over a period of two months.

42. It follows that the use of the urgent procedure for confiscating the applicant’s correspondence was not accompanied by adequate safeguards against possible abuses. Accordingly, its use was open to arbitrariness and was inconsistent with the requirement that an interference be “in accordance with the law” within the meaning of Article 8 § 2 of the Convention.

43. Therefore, there has been a violation of that provision.

44. In the light of the above conclusion, the Court is not required to determine whether the interference was “necessary in a democratic society” for one of the aims listed in paragraph 2 of Article 8.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

45. The applicant complained under Article 6 § 1 of the Convention that he had not benefited from a fair trial, in so far as the main evidence for his conviction, namely the intercepted correspondence, had been obtained unlawfully, in the absence of any court approval for the prosecutor’s orders. Article 6 § 1 reads as follows, in so far as relevant:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. Admissibility

46. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ observations

47. The applicant contended that the intercepted correspondence had constituted the main evidence for his conviction; however, it had been unlawfully obtained and had thus tainted the conviction.

48. The Government reiterated that it is primarily for the national courts to assess evidence. Moreover, the applicant’s conviction had been founded on a substantial and consistent body of evidence, and had not been based exclusively on the results of the interception of the correspondence.

2. The Court’s assessment

(a) General principles

49. The Court reiterates the general principles established in its case-law concerning the use in trial of unlawfully obtained evidence (see Bykov v. Russia [GC], no. 4378/02, §§ 88-91, 10 March 2009):

“88. 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).

89. 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 [v. the United Kingdom, no. 35394/97, § 34, ECHR 2000-V]; 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 [v. the United Kingdom, no. 48539/99, § 42, ECHR 2002-IX]).

90. 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).”

50. The Court has already found in the particular circumstances of various cases that the fact that domestic courts had used evidence which had been deemed to have been unlawfully obtained for the purposes of Article 8 did not conflict with the requirements of fairness enshrined in Article 6 of the Convention (see, among other authorities, Khan v. the United Kingdom, no. 35394/97, §§ 34-40, ECHR 2000-V; P.G. and J.H. v. the United Kingdom, no. 44787/98, §§ 76-81, ECHR 2001-IX; Dumitru Popescu v. Romania (no. 2), no. 71525/01, §§ 106-111, 26 April 2007; and Valentino Acatrinei v. Romania, no. 18540/04, §§ 66-77, 25 June 2013).

(b) Application to the facts of the case

51. The Court notes at the outset that the applicant was only convicted by those courts which took the contested evidence into account. The intercepted correspondence could therefore be seen as decisive for his conviction.

52. However, the Court notes that while the evidence in dispute was unlawful for the purposes of Article 8 of the Convention because of a lack of adequate safeguards against abuse (see paragraph 43 above), it complied with the requirements of national law (see paragraphs 24 and 25 above). Its use by the domestic courts does not automatically entail a breach of the principle of fairness of proceedings (see, notably, Dumitru Popescu (No. 2), cited above, § 106 with further references).

53. In view of the above-mentioned principles established in Bykov (cited above, § 90), the Court will examine whether the applicant was given the opportunity to challenge the authenticity of the evidence and oppose its use. It notes that the applicant availed himself of numerous opportunities to question the validity of the seized correspondence and the courts addressed his objections (see paragraphs 23, 24 and 25 above; see also Prade v. Germany, no. 7215/10, § 38, 3 March 2016 and contrast, mutatis mutandis, Niţulescu v. Romania, no. 16184/06, §§ 46 and 53-57, 22 September 2015).

54. As for the quality of the evidence in dispute (see Bykov, cited above, § 90), the Court notes that there is nothing in the file that casts doubt on its reliability or accuracy. The Court reiterates 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 Bykov, cited above, § 90). The applicant did not contest the results of the expert evaluation of the content of the envelopes, nor did he contest the assertion that he had sent the correspondence abroad. He only argued that the purpose of the correspondence was to send scientific papers and samples in relation to his research work. He denied any involvement in drug trafficking, thus contesting the courts’ findings on that point (see paragraph 17 above).

55. Lastly, on the importance of the evidence in dispute, the Court notes that while the evidence was decisive for the outcome of the criminal case, it was not the sole evidence against the applicant. On that point, the Court reiterates that evidence does not have a pre-determined role in the respondent State’s criminal procedure. The courts are free to interpret it in the context of a case and in the light of all the elements before them (see Valentino Acatrinei, cited above, § 76 with further references). In the case at hand, the seized correspondence was no more than one part of a complex body of evidence assessed by the court, which also included the expert evaluation of its content and of the writing on the envelopes, the transcripts of the audio and video-surveillance, statements by witnesses (notably pharmacists, doctors, post office workers and the applicant’s fellow researchers), the results of checks on the recipients abroad and on the money transfers received by the applicant from abroad, and police reports about checks on the pharmacies used by the applicant and on the applicant’s activity on the Internet (see paragraph 21 above). Apart from one procedural matter, the applicant did not contest the remaining evidence before the domestic courts (see paragraphs 24 and 25 above).

56. After examining the safeguards which surrounded the assessment of the admissibility and reliability of the evidence concerned and the use to which the material obtained was put (see Bykov, cited above, § 90, and Lisica v. Croatia, no. 20100/06, § 49, 25 February 2010), 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.

57. There has accordingly been no violation of Article 6 § 1 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

58. 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.”

A. Damage

59. The applicant claimed 100,000 euros (EUR) in respect of
non-pecuniary damage.

60. The Government argued that the claim was excessive. They reiterated that the CCP allowed the applicant to seek to have the proceedings reopened if the Court found a violation in his case. In their view, the finding of a violation and the possibility to have the proceedings reopened constituted sufficient just satisfaction.

61. Having regard to all the circumstances of the present case and to the conclusions it reached above (see paragraph 43 above), the Court accepts that the applicant must have suffered non-pecuniary damage, but considers that the finding of a violation of Article 8 of the Convention constitutes in itself sufficient just satisfaction for the damage sustained.

B. Costs and expenses

62. The applicant did not make a claim for costs and expenses. The Court is therefore not called upon to examine whether an award should be made under this head.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 8 of the Convention;

3. Holds that there has been no violation of Article 6 § 1 of the Convention;

4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 31 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Ganna Yudkivska
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) concurring opinion of Judge De Gaetano;

(b) joint partly concurring opinion of Judges Pinto de Albuquerque and Bošnjak.

G.Y.
M.T.

CONCURRING OPINION OF JUDGE DE GAETANO

1. For the avoidance of doubt, I should clarify why I voted in this case that there was no violation of Article 6 § 1.

2. Irrespective of what was held in Bykov v. Russia and the other cases mentioned in paragraph 49 of the judgment, in the instant case the violation of Article 8 consisted not in the fact that the interference with the applicant’s correspondence was in breach of domestic law - it was, in fact, in conformity with domestic law - but in the fact that that domestic law itself was not in conformity with the stringent requirements of Article 8. The law failed to provide for adequate safeguards against the possible abuse of Article 98 § 1² of the Code of Criminal Procedure (see paragraphs 39 and 42), which was invoked by the prosecutor and applied by him in this case. There was, in a sense, a “formal” violation of Article 8 - a failure of domestic law to meet the required quality - which in the instant case, did not necessarily reflect upon the probative value of the intercepted material.

3. Under different circumstances it is unlikely that I would have voted for a finding of no violation under operative point 3 of the judgment.

JOINT PARTLY CONCURRING OPINION OF JUDGES PINTO DE ALBUQUERQUE AND BOŠNJAK

1. In the present case we voted with the majority in finding that there had been no violation of Article 6 § 1 of the Convention. In the light of the facts of this case and the current state of the Court’s case-law, the complaint addressed by the applicant under the above-mentioned Convention provision could not have been decided otherwise. Nevertheless, we submit this separate opinion in order to emphasise that the Court’s case-law on the use of illegally obtained evidence in criminal proceedings lacks persuasiveness, coherence and clarity and needs to be revisited.

2. Throughout the years, the Court has dealt with complaints alleging that the use of a particular item of evidence in criminal proceedings violated the principle of fairness of the trial. In accordance with the principle of subsidiarity, the Court has regularly stated that the Convention does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law^[1]. This general statement has produced problematic results where the evidence in question was obtained in breach of rights and freedoms protected by the Convention, especially those guaranteed by Articles 3 and 8.

3. In its jurisprudence, the Court has consistently rejected the argument that proceedings leading to a conviction on the basis of evidence collected in breach of Article 8 of the Convention were unfair and, that consequently, there had also been a violation of Article 6 § 1 of the Convention. This attitude has been vigorously criticised by dissenting judges in several cases. In Schenk v. Switzerland^[2], Judges Pettiti, Spielmann, De Meyer and Carrillo Salcedo stressed as follows:

“... compliance with the law when taking evidence is not an abstract or formalistic requirement. On the contrary, we consider that it is of the first importance for the fairness of a criminal trial.

No court can, without detriment to the proper administration of justice, rely on evidence which has been obtained not only by unfair means but, above all, unlawfully. If it does so, the trial cannot be fair within the meaning of the Convention.”

In Khan v. the United Kingdom^[3], Judge Loucaides, in his partly concurring, partly dissenting opinion, stated the following:

“I cannot accept that a trial can be ‘fair’, as required by Article 6, if a person’s guilt for any offence is established through evidence obtained in breach of the human rights guaranteed by the Convention. 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.”

His view was reiterated by Judge Tulkens in her partly dissenting opinion in P.G. and J.H. v. the United Kingdom^[4], as well as by Judge Spielmann in his partly dissenting opinion, joined by judges Rozakis, Tulkens, Casadevall and Mijović, in the case of Bykov^[5].

4. We strongly believe that these separate opinions have a point. Some of the separate opinions cited above pleaded for the inadmissibility of evidence obtained in breach of the rights and freedoms guaranteed by the Convention, based on the argument of the effectiveness of the Convention rights. According to Judge Loucaides in his separate opinion in Khan^{^[6]}, and Judge Tulkens in her separate opinion in P.G. and J.H. v. the United Kingdom^[7], “...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.” Indeed, other alternatives, such as the possibility of disciplinary proceedings against State agents violating a Convention provision, or a civil action in damages against the State, cannot offer a remedy comparable to the exclusionary rule of inadmissibility of evidence obtained in breach of the Convention^[8], for three reasons.

Firstly, the exclusionary rule of evidence obtained in breach of a Convention right not only serves the purpose of deterrence but is also “an imperative of judicial integrity”^[9]. The exclusionary rule prevents the judiciary from condoning police misconduct in situations where the latter obtain evidence by violating human rights and fundamental freedoms. Secondly, a procedural sanction, such as the exclusionary rule, renders rules on evidence collection a lex perfecta. Otherwise procedural rules are merely ancillary to the substantive ones protecting physical integrity, freedom of movement, privacy and other substantive rights and freedoms. Such a situation would be in fundamental collision with the principle of procedural fairness, this being at the heart of the concept of a fair trial as enshrined in Article 6 of the Convention. Thirdly, a breach of the rules on evidence collection in criminal proceedings does not necessarily constitute a disciplinary offence or a civil tort in several legal systems of the High Contracting Parties.

5. Evidence for the purpose of criminal proceedings against a suspect is often obtained by interference with rights and freedoms guaranteed by the Convention. Typically in cases of serious crime, the State authorities perform bodily and home searches and seizures, and intercept phone calls and correspondence, not to mention other equally or more intrusive forms of interference with private life and physical integrity. These actions do not constitute a violation as long as they are compatible with the requirements of the Convention, like those set out in paragraph 2 of Article 8. The purpose of these requirements is to ensure a fair balance between the rights of individuals and the interests of society. If in a particular case the former prevail over the latter and a violation of Article 8 is found, it is hard to conceive that this violation could be validated for the purpose of prosecution and conviction of the individual under Article 6. To put it simply, as Judge Spielmann, joined by several other judges, did in his separate opinion in Bykov^[10], something that “... is prohibited by one provision (Article 8) cannot be accepted under another (Article 6).”

6. The Court’s position has been that the question to be answered is whether the proceedings as a whole were fair. We argue that this position does not take into account the difference between evidence obtained by a “simple” breach of national law and evidence obtained in violation of the rights and freedoms guaranteed by the Convention, which is an issue undoubtedly falling within the competence of the Court. More importantly, this Court’s position ignores the existence of absolute, bright, red lines in criminal procedure, which cannot be crossed under pain of undermining fundamental rights and freedoms in a State governed by the rule of law^[11]. These are absolute rules which lead to the necessary exclusion of evidence collected in breach of them.

7. In its assessment of the overall fairness of the proceedings in the light of the admissibility of the evidence, the Court outlined in the Grand Chamber judgment in Bykov^[12] some criteria that seem to be decisive^[13]. These include (a) whether the applicant was given the opportunity of challenging the authenticity of the evidence and its use, (b) whether there exists any doubt regarding the reliability and accuracy of the evidence, taking into account also the circumstances in which it was obtained, and (c) whether there exists supporting evidence. Regarding the last criterion, the Court emphasised in the same judgment that where the disputed item of evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker.

8. In our opinion, these criteria do not lend themselves to easy comprehension and applicability and therefore do not provide guidance to national courts. One can wonder whether these criteria are exhaustive^[14]. Furthermore, it is not clear whether they are to be considered cumulatively or alternatively^[15]. But above all, they focus on the probative power of the disputed evidence. Ultimately, according to the Bykov criteria, as long as a piece of evidence is important enough, its use is fair. We do not agree with this purely casuistic, consequentialist and opportunistic view. Often, evidence obtained in breach of the rights and freedoms guaranteed by the Convention is highly important and there may be cases where its authenticity, reliability and accuracy are not in dispute. This should not mean that the Court should be less demanding as regards compliance with the Convention. Equally, the opportunity of challenging the use of a specific item of evidence depends on the provisions of national law, which in turn should not influence the autonomous assessment of fairness under Article 6 § 1 which the Court is entitled to undertake. Finally, in a particular case such an opportunity may not have been effective, otherwise the applicant would have had no need to turn to the Court.

9. Moreover, we believe that the Court’s case-law falls short of the consensus amongst the majority of the High Contracting Parties that, in principle, the use of evidence obtained by violation of human rights and fundamental freedoms should be prohibited, save in exceptional circumstances. A serious comparative-law review of the situation of the Contracting Parties would make this readily apparent. The issue of the admissibility of evidence obtained in breach of fundamental rights and freedoms and the insufficiency of the Court’s case-law has drawn the attention of many experts^[16]. There exist legal systems with an absolute exclusionary rule, according to which any item of evidence obtained by such violation must be excluded from trial as a matter of principle. This principle possibly extends further, to evidence derived from such evidence (the so called fruits of the poisonous tree). There may be several exceptions to the exclusionary rule. Its imperative is sometimes weighed against the public interest. Some legal systems apply the concept of the nullity of investigative acts performed in breach of important provisions of national law instead of the exclusionary rule. But it would be hard to find a system in which the admissibility of evidence is dependent solely upon the probative value of the evidence in question, that is to say, its authenticity, reliability, accuracy and strength, the criteria identified as relevant in Bykov^[17].

10. This is all the more understandable in the light of the nature of criminal procedure. In order to establish the relevant facts of the case, the authorities may need to resort to investigative methods that interfere with rights and freedoms protected by the Convention, including those enshrined in Articles 3 and 8. But seeking the truth is not the only aim of criminal procedure. Protecting individuals against the unlimited, disproportionate or arbitrary use of repressive powers by the State in criminal law is of equal historical importance, as demonstrated, for instance, by the long-standing jurisprudence of this Court. The legal systems of the High Contracting Parties regularly prescribe conditions and procedures governing investigative acts that interfere with individual rights, in order to protect individuals against arbitrariness. Typically, these conditions include prior control by an independent authority and require specific probable cause, or whatever a particular legal system may call it. Particular types of interference may be limited to criminal offences of a certain gravity. Furthermore, they are often limited in time. Such conditions are enacted in order to balance the rights of individuals and the interests of society. They should correspond to the requirements of paragraph 2 of Article 8 of the Convention, namely that any interference should be in accordance with the law and necessary in a democratic society and for the pursuance of one or more of the legitimate aims enumerated therein. If the national courts disregard these conditions by admitting evidence obtained in breach of them, the fragile balance is irreparably lost, to the detriment of the fairness of the proceedings. In our opinion, the probative force of a particular item of evidence should not be a sufficient argument to override the need for protection of human rights and fundamental freedoms.

11. The Court’s jurisprudence after Bykov^[18] shows that the application of the criteria developed therein has never led to a finding of a violation of Article 6 § 1 of the Convention^[19]. This in itself raises the question whether the criteria are reasonably balanced. They were found, implicitly, to be insufficient in Prade^[20], where the Chamber deciding on the application examined the following issues:

(a) the nature of the unlawfulness - the Chamber noted that according to the (German) Federal Constitutional Court the reason for the unlawfulness was the insufficiency of indications supporting the suspicion that the applicant had committed a criminal offence, but at the same time held that the police had not acted in bad faith when obtaining and executing the warrant (§ 37 of the Prade judgment);

(b) the existence of an effective opportunity to challenge the use of evidence (§ 38);

(c) the level of intrusiveness - the Chamber held that in contrast with Jalloh^[21], the measure in question had not subjected the applicant to a grave interference with his physical and mental integrity, which in turn would constitute a breach of Article 3 of the Convention (§ 39);

(d) the quality of the evidence in question (§ 39);

(e) the importance of the disputed evidence for the criminal conviction of the applicant - the Chamber noted that, according to the Federal Constitutional Court, the disputed material was the only evidence against the applicant (§ 40);

(f) the weighing of the public interest in investigation and conviction against the individual interest that the evidence be gathered lawfully - the Chamber observed that the national courts had performed this exercise and found no appearance of arbitrariness or disproportionality therein (§ 41).

12. It is not our intention to analyse in depth the judgment in Prade^[22] or to take a stance on the conclusions of the Chamber in that particular case. The purpose of the above summary of the relevant criteria is to show that the case-law on the matter is far from settled. The criteria (a), (c) and (f) of the Prade judgment are nowhere to be found in Bykov^[23]. As they bring into play elements that do not relate solely to the probative power of the disputed evidence, they may be considered as a move in a positive direction. Nevertheless, they leave much room for development in terms of coherence and clarity. Furthermore, they possibly still fall short of the standards frequently applied in modern comparative law.

13. In sum, the Court has yet to determine the question of principle whether (and if so, under what conditions), in the light of Article 6 of the Convention, it is permissible to use evidence obtained in breach of any other Convention right. This question goes to the heart of the concept of fairness of criminal trials. It is also of general importance for the effective protection of human rights and fundamental freedoms guaranteed by the Convention. For this purpose, a revisiting of the Court’s existing jurisprudence on the admissibility of illegally obtained evidence would be welcome. We would venture to suggest that in the near future the Grand Chamber might address the matter in an appropriate way.

[1] See, for example, Schenk v. Switzerland, 12 July 1988, § 45, Series A no. 140; Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports of Judgments and Decisions 1998-IV; Jalloh v. Germany [GC], no. 54810/00, §§ 94-96, ECHR 2006-IX; and Bykov v. Russia [GC], no. 4378/02, § 88, 10 March 2009.

[2] Cited above.

[3] Khan v. the United Kingdom, no. 35394/97, ECHR 2000-V.

[4] P.G. and J.H. v. the United Kingdom, no. 44787/98, ECHR 2001-IX.

[5] Cited above.

[6] Cited above.

[7] Cited above.

[8] From a relevant comparative-law perspective, the alternatives to the exclusionary rule have been considered to be totally ineffective. In the case of People v. Cahan (282 P.2d905 (Cal.1955)), the Supreme Court of California held that in cases of searches and seizures, “…other remedies have completely failed to secure compliance with the constitutional provisions on the part of police officers…”. Building on this jurisprudence, the Supreme Court of the United States held in the landmark case of Mapp v. Ohio (367 U.S. 643 (1961)) that the alternatives to the exclusionary rule should be dismissed, noting that “…the experience of California that such other remedies have been worthless and futile is buttressed by the experience of other States”. For a detailed analysis on the empirical importance of the exclusionary rule see Kamisar, “In Defense of the Search and Seizure Exclusionary Rule (Law and Truth - The Twenty-First Annual National Student Federalist Society Symposium on Law and Public Policy - 2002)”, in Harvard Journal of Law & Public Policy 26, no. 1 (2003): 119-40.

[9] An expression used in the judgment of the Supreme Court of the United States in Elkins v. United States, 364 U.S. 206, 222 (1960).

[10] Cited above.

[11] For an enunciation of several examples of these red lines in criminal procedure, see the joint concurring opinion of Judges Kalaydjieva, Pinto de Albuquerque and Turković in Dvorski v. Croatia [GC], no. 25703/11, ECHR 2015, including the critique of a
harmless-error analysis in criminal procedure by Justice Scalia in United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) (footnote 28 to the opinion).

[12] Cited above, § 90.

[13] These criteria follow the Court’s position in several cases where the issue of the fairness of the use of evidence obtained by a violation of Article 8 was at stake. Apart from Schenk, Khan, and P.G. and J.H. v. the United Kingdom (all cited above), there were cases where there had arguably been a violation of a provision of national law, but where the application complaining of a violation of Article 6 § 1 was either found inadmissible or no violation was found. These cases include Parris v. Cyprus (dec.), no. 56354/00, 4 July 2002; Perry v. the United Kingdom (dec.), 63737/00, 26 September 2002; Hewitson v. the United Kingdom (dec.), no. 50015/99, 22 October 2002; Heglas v. the Czech Republic, no. 5935/02, 1 March 2007; and Dumitru Popescu v. Romania (no. 2), no. 71525/01, 26 April 2007.

[14] This does not seem to be the case, taking into account further developments in Prade v. Germany, no. 7215/10, 3 March 2016, as outlined in this separate opinion below.

[15] In some subsequent cases, the mere fact that there existed additional supporting evidence was considered sufficient to dismiss the complaint. On the other hand, in some cases like the present one, all the above-mentioned criteria were taken into consideration when analysing a particular complaint.

[16] In 2003, the EU Network of Independent Experts on Fundamental Rights (CFR-CDF) issued a document entitled “Opinion on the status of illegally obtained evidence in criminal procedures in the Member States of the European Union”. It establishes that in general (in respect of the issue of admissibility), national rules of criminal procedure are more protective of the accused than is required by Article 6 § 1 of the Convention. Only in seven States (Austria, Denmark, Finland, France, Germany, Sweden and the United Kingdom) is evidence obtained in violation of the right to respect for private life in principle admissible in criminal proceedings, but still in some of those States admissibility is subject to a balancing process. Understandably, the document does not discuss the situation in those countries which are not members of the European Union. The document is accessible at http://ec.europa.eu/justice/fundamental-rights/files/cfr_cdf_opinion3_2003_en.pdf

[17] Cited above.

[18] Ibid.

[19] See, for example, Valentino Acatrinei v. Romania, no. 18540/04, 25 June 2013; Niculescu v. Romania, no. 25333/03, 25 June 2013; Dragojević v. Croatia, no. 68955/11, 15 January 2015; Prade, cited above; and Kalnėnienė v. Belgium, no. 40233/07, 31 January 2017.

[20] Cited above.

[21] Cited above.

[22] Cited above.

[23] Cited above.