CONCURRING OPINION OF JUDGE CABRAL BARRETO

(Translation)

I agree with the majority ' s finding that there was no violation of Article 6 of the Convention in the present case.

However, to my mind it is not enough to say, as the majority do, that the proceedings, considered as a whole, were not contrary to the requirements of a fair trial.

I find it regrettable that the Grand Chamber missed the opportunity to clarify once and for all a n 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 fair ness of a trial as protected by Article 6.

1. The Court ' s case-law on this subject dates back to Schenk v. Switzerland (12 July 1988, Series A no. 140).

In concluding by a majority that the use of the disputed recording in evidence had not deprived the applicant of a fair trial, the Court mainly relied on the fact that the rights of the defence had not been disregarded.

This finding shaped the development of our case-law; even where the manner in which evidence has been obtained has breached Article 8, a violation of Article 6 has been ruled out if the trial as a whole has been fair, and in particular if the rights of the defence have been respected .

Moreover, in principle, whether the evidence was the sole or a subsidiary basis for the conviction is not in itself decisive (see Khan v. the United Kingdom , no. 35394/97, § 26, ECHR 2000-V).

Similarly, it is immaterial whether the violation of Article 8 results from failure to comply with “domestic law” or with the Convention.

More recently, the Court applied these principles in Heglas v. the Czech Republic (no. 5935/02, 1 March 2007).

2. T he case-law on this subject was last refined in Jalloh v. Germany ([GC], no. 54810/00, ECHR 2006-IX ).

In that judgment the Court ruled that the use in criminal proceedings of evidence obtained through torture raised serious issues as to the fairness of such proceedings, even if the admission of the evidence in question had not been decisive in securing the suspect ' s conviction.

Consequently, the use of evidence obtained through torture will always breach Article 6 of the Convention, regardless of whether or not the evidence was a decisive factor in the conviction.

However, the Court has never really stated a position on the question of evidence obtained by means of inhuman or degrading treatment.

In certain circumstances, for example if an applicant is in detention, improper compulsion by the authorities to obtain a confession will contravene the principles of the right not to incriminate oneself and the right to remain silent (see Allan v. the United Kingdom , no. 48539/99, ECHR 2000-IX).

As regards the question of direct concern to us – and the Heglas judgment is a very recent example of this – where Article 8 is breached as a result of the way in which evidence was gathered , the decisive factor for a finding of a violation or no violation of Article 6 is whether the proceedings as a whole were fair, whether the rights of the defence were respected.

3. I personally would have liked the Grand Chamber to have adopted a new approach revising and clarifying its case-law.

3.1. Firstly, the Grand Chamber should have reaffirmed the position taken in Jalloh regarding evidence obtained through torture.

The mere recourse to torture is sufficient in itself to render the trial unfair, even if the evidence thereby obtained is not decisive in securing the accused ' s conviction; Article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the United Nations, lends sufficient force to this argument.

However, we should also go a step further by stating unequivocally that the use of evidence obtained by means of an act classified as inhuman or degrading treatment automatically undermines the fairness of a trial, since the difference between torture and inhuman treatment is often difficult to establish and the nuances are sometimes tiny; furthermore, as a rule, both situations – torture and inhuman and degrading treatment – involve blunder s 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 obtai ned, 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.

3.2. The four dissenting judges in the Schenk case (cited above), whose opinion was more or less followed by Judges Loucaides (in Khan , cited above) and Tulkens (in P.G. and J.H. v. the United Kingdom , no. 44787/98, ECHR 2001 ‑ IX), considered that a trial could not be described as “fair” where evidence obtained in breach of a fundamental right guaranteed by the Convention had been admitted.

The “dissenters” could not accept that a trial could be “fair”, as requi red 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 l ead 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.”

3.3. I must say that I have a good deal of sympathy with this approach, which has the merit of clarity since the violation of Article 6 will be “automatic” once the violation of Article 8 has been found.

Nevertheless , I believe that if such an approach is adopted, certain considerations will arise as regards the consequences of the finding of a violation of Article 6.

Following this approach, once a violation has been found in cases where the accused ' s conviction was not solely or mainly based on the evidence in dispute, inferences will have to be drawn regarding the execution of the judgment if the evidence in question played only a subsidiary role in the conviction.

Furthermore, as regards the execution of judgments, not all violations of Article 6 will carry the same weight.

I am thinking of violations arising from a failure to comply with provisions concerning substantive rights as opposed to procedural rules.

Here , with regard to unlawful evidence, I wish to emphasise the distinction made by some legal experts between prohibited evidence – which relates to substantive law – and improper evidence – which relates to procedural rules.

We must distinguish between what strikes at the heart of a fair trial, what shocks the sensibilities of a democratic society, what runs counter to the fundamental values embodied in a State based on the rule of law, and a breach of procedural rules in the gathering of evidence.

For example, a breach of the right to confer freely with one ' s lawyer seems to me to be completely different from a breach resulting from the lack of judicial authorisation for telephone tapping of a suspect, where this flaw is subsequently redressed.

If a recording of the accused ' s conversation with his lawyer is used as a basis for convicting him, a more serious violation will result, calling for a more forceful attitude on the part of the Court, which may, for example, demand a new trial at which the use of the evidence in issue will be prohibited, and also award an appropriate sum for the damage sustained.

I n the other scenario mentioned above, however, the finding of a violation should in itself be sufficient.

3.4. These considerations lead me to a more detailed examination of other aspects of the procedure, moving away from an “automatic” finding of a violation of Article 6 once a violation of Article 8 has been found: a violation of the latter provision does not automatically entail a violation of Article 6, but simply the presumption of a violation.

A finding of a violation or no violation will depend on the particular circumstances of the case at hand and the weighing up of the values protected by domestic law and the Convention and those in issue in the criminal proceedings.

It is true that such an approach would weaken the notion of a fair trial, which would become a variable-geometry concept.

However, this approach would have the advantage of not treating all situations on the same footing , since, as I have already observed, some violations of Article 8 are worse than others .

I will readily admit that there are risks in such an approach; the choice of the right criteria for finding a violation, and their subsequent application to the particular case, especially where the factual circumstances are difficult to establish, will be a hazardous exercise.

Situations will thus arise whe n the presumption could be rebutted where the rights of the defence have been respected and where the weight of public interest in the applicant ' s conviction or other relevant grounds so require.

However, limits will always have to be set.

I would again refer to everything that strikes at the heart of a fair trial, shocks the sensitivities of a democratic society or runs counter to the fundamental values embodied in a State based on the rule of law. Once these values have been undermined, the presumption must be confirmed and a violation of Article 6 found; the public interest at stake or the question whether the rights of the defence have been respected will be immaterial .

The case-law of the Supreme Court of the United States refers in this connection to the falsehoods crucial to the facts of the case that can always result from interrogation techniques “ so offensive to a civilized system of justice ” that “they must be condemned” in the name of due process .

The Supreme Court of Canada makes a distinction between “dirty tricks” (which the community finds shocking) and mere “ruses”, concluding that “ What should be repressed vigorously is conduct on [the authorities ' ] part that shocks the community. That a police officer pretend to be a lock-up chaplain and hear a suspect ' s confession is conduct that shocks the community; so is pretending to be the duty legal-aid lawyer eliciting in that way incriminating statements from suspects or accused; injecting Pentothal into a diabetic suspect pretending it is his daily shot of insulin and using his statement in evidence would also shock the community; but generally speaking, pretending to be a hard drug addict to break a drug ring would not shock the community; nor would ... pretending to be a truck driver to secure the conviction of a trafficker ” (Judge Lamer, individual opinion, in R. v. Rothman , [1981] 1 SCR 640; approved by the majority of the Supreme Court in R. v. Collins , [1987] 1 SCR 265, § 52, and R. v. Oickle , [2000] 2 SCR 3, § 66).

I must acknowledge, nevertheless, that all this involves a somewhat empiricist approach and a perhaps excessively discretionary power; however, I wonder how we can draw a firm, clear and distinct line between what might be acceptable and what cannot.

Here, I would return to the distinction between substantive and procedural.

I would say, generally speaking, that the use of any evidence that is not admissible under the member States ' domestic law and the Conv ention 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 .