Information Note on the Court’s case-law 117

March 2009

Bykov v. Russia [GC] - 4378/02

Judgment 10.3.2009 [GC]

Article 8

Article 8-1

Respect for private life

Interception and recording of conversation by a radio-transmitting device during a police covert operation without procedural safeguards: violation

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Use at trial of evidence obtained through a covert o peration: no violation

Facts : The applicant was an important businessman and a member of a regional parliamentary assembly. In 2000 he allegedly ordered Mr V., a member of his entourage, to kill Mr S., a former business associate. V. did not comply with the order, reported the applic ant to the Federal Security Service (“the FSB”) and handed in the gun he had allegedly received from him. Shortly afterwards, the FSB and the police conducted a covert operation to obtain evidence of the applicant’s intention to murder S. The police staged the discovery of two dead bodies at S.’s home. It was officially announced in the media that one of those killed had been identified as S. Under instructions from the police, V. met the applicant at his home and engaged him in conversation, telling him th at he had carried out the murder. As proof, he handed the applicant several objects borrowed from S. He carried a hidden radio-transmitting device and a police officer outside received and recorded the transmission. As a result, the police obtained a 16-mi nute recording of the conversation between V. and the applicant. The next day, the applicant’s house was searched. The objects V. had given him were seized. The applicant was arrested and remanded in custody. Two voice experts were appointed to examine the recording of the applicant’s conversation with V. They found that V. had shown subordination to the applicant, that the applicant had shown no sign of mistrusting V.’s confession to the murder and that he had insistently questioned V. on the technical det ails of its execution. In 2002 the applicant was found guilty of conspiracy to commit murder and conspiracy to acquire, possess and handle firearms and sentenced to six and a half years’ imprisonment. He was conditionally released on five years’ probation. The sentence was upheld on appeal.

Law

Article 8 – The measures carried out by the police had amounted to interference with the applicant’s right to respect for his private life. The Russian Operational-Search Activities Act was expressly intended to prot ect individual privacy by requiring judicial authorisation for any operational activities that might interfere with the privacy of the home or the privacy of communications by wire or mail services. In the applicant’s case, the domestic courts had held tha t since V. had entered his house with his consent and no wire or mail services had been involved (as the conversation had been recorded by a remote radio-transmitting device), the police operation had not breached the regulations in force. In the Court’s v iew, the use of a remote radio-transmitting device to record the conversation between V. and the applicant was virtually identical to telephone tapping, in terms of the nature and degree of the intrusion into the privacy of the individual concerned. Howeve r, the applicant had enjoyed very few, if any, safeguards in the procedure by which the interception of his conversation with V. had been ordered and implemented. In particular, the legal discretion of the authorities to order the interception had not been subject to any conditions, and the scope and the manner of its exercise had not been defined; no other specific safeguards had been provided for. The possibility for the applicant to bring court proceedings seeking to declare the “operative experiment” un lawful and to request the exclusion of its results as unlawfully obtained evidence could not remedy those shortcomings. In the absence of specific and detailed regulations, the use of this surveillance technique as part of an “operative experiment” had not been accompanied by adequate safeguards against various possible abuses. Accordingly, its use had been open to arbitrariness and was inconsistent with the requirement of lawfulness.

Conclusion : violation (unanimously).

Article 6 § 1 – The applicant had be en able to challenge the methods employed by the police in the adversarial procedure at first instance and on appeal. He had been able to argue that the evidence adduced against him had been obtained unlawfully and that the disputed recording had been misi nterpreted. The domestic courts had addressed all these arguments in detail and had dismissed each of them in reasoned decisions. Furthermore, the impugned recording, together with the physical evidence obtained through the covert operation, had not been t he only evidence relied on by the domestic court as the basis for the applicant’s conviction. In fact, the key evidence for the prosecution had been the initial statement by V., made before, and independently from, the covert operation, in his capacity as a private individual and not as a police informant. Furthermore, V. had reiterated his incriminating statements during his subsequent questioning and during the confrontation between him and the applicant at the pre-trial stage. The failure to cross-examin e V. at the trial was not imputable to the authorities, who had taken all necessary steps to establish his whereabouts and have him attend the trial, including by seeking the assistance of Interpol. The applicant had been given an opportunity to question V . on the substance of his incriminating statements when they had been confronted. Moreover, the applicant’s counsel had expressly agreed to having V.’s pre-trial testimonies read out in open court. The trial court had thoroughly examined the circumstances of V.’s subsequent withdrawal of his incriminating statements and had come to a reasoned conclusion that the repudiation was not trustworthy. Finally, V.’s incriminating statements were corroborated by circumstantial evidence, in particular numerous witnes s testimonies confirming the existence of a conflict of interest between the applicant and S. The statements by the applicant that had been secretly recorded had not been made under any form of duress; had not been directly taken into account by the domest ic courts, which had relied more on the expert report drawn up on the recording; and had been corroborated by a body of physical evidence. Having regard to the safeguards which had surrounded the evaluation of the admissibility and reliability of the evide nce concerned, the nature and degree of the alleged compulsion, and the use to which the material obtained through the covert operation had been put, the proceedings in the applicant’s case, considered as a whole, had not been contrary to the requirements of a fair trial.

Conclusion : no violation (eleven votes to six).

The Court also unanimously found a violation Article 5 § 3 on account of the length of the applicant’s pre-trial detention.

Article 41 – EUR 1,000 in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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