CONCURRING OPINION OF JUDGE KOVLER

(Translation)

I agree with the conclusions reached by the majority. I should nevertheless like to clarify my position on the complaints under A rticle 8 of the Convention as submitted by the applicant .

Before relinquishing jurisdiction on 22 November 2007 in favour of the Grand Chamb er , 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 Gran d 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 A rticle 8, on the basis of the Court ' s substantial body of case-law in this area.

PARTLY DISSENTING OPINION OF JUDGE COSTA

(Translation)

1. I consider that there was a breach of Article 6 § 1 of the Convention in this case. The applicant ' s complaint that the criminal proceedings resulting in his conviction were unfair was mainly based on two arguments:

– that police tricke ry 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 .

2. Both these points may give rise to some uncertainty .

3. The police and the Federal Security Service (FS B ) conducted a covert operation in which the central agent was V. , who had allegedly been ordered by the applicant to kill the latter ' s former business associate, S., but had not carried out the murder, instead reporting the applicant to the FSB. The covert operation, aimed at obtaining evidence against the applicant, consist ed in sending V. to the applicant ' s home and instructing V. to say that he had carried out the order to kill; at the same time, their conversation would be secretly recorded by a police officer stationed outside the house.

V. ' s visit was itself preceded by the macabre staging several days earlier of the discovery of two dead bodies at S. ' s home , spuriously identified as S. and his business partner, I. This was widely publicised.

4. This ploy, despite its specific characteristics, is not in itself far removed from the ruses, traps and stratagems used by the police to obtain confessions from persons suspected of criminal offences or to establish their guilt, and it would be naïve, indeed unreasonable, to seek to disarm the security forces, faced as they are with the rise in delinquency and crime.

5. Even so, not all methods used by the police are necessarily compatible with the rights guaranteed by the Convention. Thus, in a different context, the Cour t did not accept that a police ruse ( nevertheless described by the Government as a “little ruse ” ) was compatible with the right to liberty within the meaning of A rticle 5 ( see ÄŒonka v. Belgium , no. 51564/99, § § 41-46 , ECHR 2002 ‑ I ). And in the present case the Cour t found that the unlawful i nterception of Mr Bykov ' s conversation with V. breached Article 8 of the Conv ention.

6. With regard to A rticle 6 § 1, I would not go so far as to take the view that the use of any evidence breaching the Convention as a basis for establishing the accused ' s guilt renders the trial unfair ( as was argued by Ju d ge Loucaides in his separate opinion in Khan v. the United Kingdom , no. 35394/97, ECHR 2000 ‑ V ). However, I do believe that the Court should undertake a careful examination of whether a trial based on such evidence complies with Article 6 § 1, a point to which I shall return later.

7. As regards the right not to incriminate oneself, an inherent aspect of the rights of the defence as affirmed in John Murray v. the United Kingdom ( 8 February 1996, Reports of Judgments and Decisions 1996 ‑ I ), it normally entails the right for a person suspected of an offence to remain silent, including during police questioning. Although the Court accepts that the right not to contribute to incriminating oneself is not absolu te , it attaches considerable importance to it and has sometimes pointed out that it originates in Article 14 of the International Covenant on Civil and Political Rights ( see Funke v. France , 25 February 1993, § 42 , Series A no. 256 ‑ A ).

8. The right to remain silent would be truly “theoretical and illusory” if it were accepted that the police had the right to “make a suspect talk” by using a covert recording of a conversation with an informer assigned the task of entrapping the suspect.

9. Yet that was exactly the case here. V. was in practice an “agent” of the security forces, and I can see similarities between the Bykov case and that of Raman auskas v. Lithuania ( [GC], no. 74420/01, ECHR 2008 ‑ ... ), in which the Grand Chamber unanimously found a violation of A rticle 6 § 1. The facts were different, but both cases involved simulation and provocation instigated by the security forces. By telling the applicant that he had carried out the killing, V. sought to induce the applicant, who was unaware that his conversation could be heard, to confirm that he had entered into a “contract” with him, in the criminal sense of the term.

10. The Cour t is obviously not, and should not become, a fourth-instance court . It does not have to decide (that is the task of the national courts) whether Mr Bykov was guilty of incitement to commit murder. Nor does it have to speculate on what the outcome of the trial would have been had it been fair. But it is precisely its task to rule on the fairness issue; and the use of this elaborately staged ploy ( including the “fake” corpses ) causes me to harbour strong doubts as to whether the pre sumption of innocence, the rights of the defence and, ultimately, the fairness of the trial were secured.

11. My doubts are entirely dispelled when I note that the evidence obtained in breach of A rticle 8 of the Convention played a decisive role in this context. I shall not expand on this point, which I consider is addressed very eloquently in the partly dissenting opinion of Judge Spielmann joined by Judges Rozakis, Tulkens, Casadevall and M i jovi ć .

12. In my view, this decisive aspect is very important in law. If, besides the recording in issue ( and the initial complaint against Mr Bykov by V., but that could have been one man ' s word against another) , the Russian judges had based their findings on other evidence, there would still have been cause for uncertainty . A criminal trial is often complex, and the large number of items of evidence on which the judges ' verdict is based may sometimes de contamin ate the dubious evidence by absorbing it. That was not the case in this instance.

13. All in all, while I fully understand the reasons why the Cour t did not find a violation of A rticle 6, I was unable to make the leap that would have allowed me to share the majority ' s view.