PARTLY DISSENTING OPINION OF JUDGE SPIELMANN JOINED BY JUDGES ROZAKIS, TULKENS, CASADEVALL AND MIJOVIĆ

(Translation)

1. I do not agree with the Court ' s conclusion that there was no violation of Article 6 of the Conv ention.

2. The question of respect for the right to a fair hearing arises in my opinion under two headings: the admission in criminal proceedings of evidence obtained in breach of Article 8 , and the right to remain silent and not to incriminate oneself .

I. A dmission in criminal proceedings of evidence obtained in breach of Article 8

3. I would observe that, having regard to the general principles set out in paragraphs 88 - 93 of the judgment , the Court reached a unanimous finding that the covert operation was conducted in breach of Article 8 of the Conv ention.

4. The simulation staged by the authorities , described in more detail in the part of the judgment concerning the circumstances of the case under the heading “Covert operation”, was unlawful . As the Court observed in paragraph 80, the applicant enjoyed very few, if any, safeguards in the procedure by which the interception of his conversation with V. was ordered and implemented. It accordingly found a violation of Article 8 of the Conv ention.

(a) The question of principle and the missed opportunity to strengthen practical and effective rights

5. After the Chamber had relinquished jurisdiction, the present case was sent to the Grand Chamber, which was afforded the opportunity to clarif y and spell out its case-law on the use of unlawful evidence at a trial . The question of the admission in criminal proceedings of evidence obtained in breach of Article 8 is a question of princip l e that deserved an answer of principle, particularly as regards the need to ensure consistency between the Court ' s findings under the two A rticles of the Conv ention ( what is prohibited under Article 8 cannot be permitted under Article 6) and the need to stress the importance of the Article 8 rights at stake ( bearing in mind the growing need to resort to unlawful investigative methods, especially in fighting crime and terrorism ). As far as this question of principle is concerned, I would reiterate the arguments which my colleague Françoise Tulkens put forward in her partly dissenting opinion in P.G. and J.H. v. the United Kingdom . [1]

6. In the present case the violation of Article 8 was a particularly serious one, representing a manifest infringement of the fundamental rights protected by that provision . The use during a trial of evidence obtained in breach of Article 8 should have called for an extremely rigorous examination by the Court of the fairness of the proceedings . As the Court has already had occasion to emphasise, the Convention is to be read as a coherent whole. [2] I agree with the partly concurring, partly dissenting opinion expressed by Judge Loucaides in Khan v. the United Kingdom [3] and reiterated by Judge Tulkens in her above-mentioned partly dissenting opinion in P.G. and J.H. v. the United Kingdom : [4]

“ 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 . ”

7. In the present case the violation of Article 8 of the Conv ention found by the Court results, and indeed results exclusively, from the unlawfulness of the evidence in issue ( see paragraph 82 of the judgment ). Yet the fairness required by Article 6 of the Conv ention also entails a requirement of lawfulness. [5] Fairness presupposes respect for lawfulness and thus also , a fortiori , respect for the rights guaranteed by the Convention , which it is precisely the Court ' s task to supervise.

8. As regards the nature and scope of the Court ' s supervision, the Court rightly notes in the judgment 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 ” (see paragraph 88). It follows, and I strongly agree with this observation, that

“ 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 ” .

9. Similarly, while it is 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 ” (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 Conv ention.

10. The judgment in the present case could have dispelled the uncertainties resulting from the Court ' s case-law on the subject by making clear that what is prohibited by one provision ( A rticle 8) cannot be accepted under another (A rticle 6).

11. In finding that there was no violation of Article 6, the Court has undermined the effectiveness of Article 8. Yet the rights enshrined in the Convention cannot remain purely theoretical or virtual, since

“ the Convention must be interpreted and applied in such a way as to guarantee rights that are practical and effective ”. [6]

12. The majority ' s view seems to me, moreover, to entail a real danger, one which has already been noted in the above-mentioned separate opinion in Khan [7] and reiterated in the above-mentioned separate opinion in P.G. and J.H. v. the United Kingdom : [8]

“ 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 .”

13. However, the Court has itself emphasised

“ 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 ”. [9]

14. The judgment fails to provide a response to the questions raised in the partly dissenting opinion cited above:

“ 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. ” [10]

15. So much, then, for the principles and for the (missed) opportunity afforded to the Grand Chamb er to strengthen practical and effective rights.

(b) The decisive influence of the evidence obtained in breach of Article 8 of the Convention

16. Beyond the question of princip l e addressed above, I consider that the evidence obtained in breach of Article 8 caused the proceedings to be fatally flawed, since it decisively influenced the guilty verdict against the applicant.

1 7. Admittedly, it appears that the court in the present case based its decision on other items of evidence. Besides the evidence obtained by means of the covert operation, the following items unconnected with the operation seem to have been taken into account: the initial statement by V. that the applicant had ordered him to kill S.; the gun V. handed in to the FSB; and the records of the questioning of V. on subsequent occasions during the investigation. These items of evidence – all produced by V. – were challenged during the trial by the applicant , who for his part relied on V. ' s subsequent withdrawal of his statements . However , the doubts as to the reliability of V. ' s statements could not be dispelled since V. was absent and the authorities were unable to trace him and call him to appear in court, with the result that he could not be cross-examined during the trial ( see paragraphs 38 - 40 of the judgment ). The court eventually admitted the statements by V. as written evidence and , after examining the contradictory remarks he had made, concluded that the withdrawal appeared to have resulted from a subsequent a rrangement between V. and the applicant . Accordingly – leaving aside the evidence obtained in breach of Article 8 of the Convention – the court reached its finding solely on the basis of V. ' s initial statements incrimina ting the applicant .

18. Admittedly, the applicant had the opportunity to examine V. when they were brought face to face during the investigation , but I must emphasise that this meeting took place before V. withdrew his statements. Consequently, the applicant ' s lawyer was unable to cross-examine V. in the light of his withdrawal of the statements, either during the investigation or during the court hearings . However, as the Court emphasised in Lucà v. Italy , where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 . [11]

(c) The need for the subsequent use of anonymous sources to be accompanied by adequate and sufficient guarantees

19. The fact that it was impossible to cross-examine V. in court also raises an issue in terms of the procedural right to challenge the evidence obtained as a result of the covert operation .

20. As the Court pointed out in the Ramanauskas judgment, [12] admittedly in an entirely different context, involving p olice incitement ,

“ 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). ” [13]

21. Admittedly, the other evidence used during the trial included numerous witness statements referring to the existence of a conflict of interests between the applicant and S. , and other items confirming the accuracy of the description of the covert operation set out in the reports on the investigation. However, the probative value of such evidence was relatively minor. The fact that it was impossible to cross-examine V. in court therefore prevented the applicant from having full enjoyment of his procedural right to challenge the evidence obtained through the covert operation .

22. In short , I consider that the use of the evidence in issue irreparably impaired the applicant ' s defence rights. Such a conclusion would in itself have justified the finding of a violation of Article 6 of the Conv ention.

II. Respect for the right to remain silent and not to incriminate oneself

23. Lastly , the covert operation in my opinion infringed the applicant ' s right to remain silent and not to incriminate himself . None of the Court ' s case-law corresponds exactly to the facts of the present case . Once again , I regret that the Grand Chamber did not seize the opportunity to clarify the principles emerging, in particular, from its judgments in the cases of Jalloh , [14] Allan [15] and , to a lesser extent, Ramanauskas . [16]

24. In its Jalloh judgment of 11 July 2006 the Court reiterated the principle that

“... the right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent ”. [17]

25. In the case of Jalloh the authorities obtained real evidence against the applicant ' s will . The Court declared that the privilege against self-incrimination was applicable , stating the following:

“... 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.” [18]

26. These criteria are applicable in the present case, given that the substance of the matter concerns the recording of evidence obtained in breach of the privilege against self-incrimination . Concerning more specifically the public interest in securing the applicant ' s conviction, I do not consider that this can in any circumstances justify the use in evidence of recordings found to have been unlawful for the purposes of Article 8 of the Conv ention . [19]

27. The present case is similar to the case of Allan , in which the Court found a violation of Article 6 . [20] Admittedly, unlike in Allan , the applicant in the present case was not in pre-trial detention but at liberty in his own property . It is also true that in Allan the applicant chose to remain silent .

28. However, those particular aspects are in my opinion not decisive, seeing that the informer V. was de facto an agent working for the authorities at the time when he recorded the conversation in issue .

29. In paragraph 51 of the Allan judgment the Court stated the following, referring to the case-law of the S upreme Court of Canada : [21]

“ 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 .”

30. In the present case the informer who acted on State instructions, subverting the applicant ' s right to remain silent, was obviously a State agent . The question arises whether the conversation between him and the accused would have taken place, and in the form and manner in which it did, but for the intervention of the authorities . The answer is no, and the recorded conversation was thus was the functional equivalent of an interrogation . The purpose of this ruse was, in particular, to reveal the existence of a particular offence, namely “conspiracy to murder” . Among the constituent elements of this offence, the mens rea or element of intent plays a crucial, if not predominant, role . The grossly unlawful ruse staged by the authorities was aimed precisely at “uncovering” this essential element of the offence .

31. The fact that the applicant had not been charged is not decisive in my opinion either . In the R. v. Hebert decision (cited above) the Supreme Court of Canada stated the following:

“ 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 .” [22]

32. However, in the present case , the applicant spoke without having given his free and informed consent .

33. I would add that to deny the right to remain silent and the right not to incriminate oneself simply because the applicant had not been charged or had not undergone initial questioning would leave the way open for abuses of procedure . The person concerned would be deprived of the opportunity to choose to speak or to remain silent at a later stage, for example during such questioning , and the principle would thus become devoid of all substance .

34. It is true that in the R. v. Hebert decision the Supreme Court of Canada also based its ruling on the fact that the person concerned was in de tention :

“ [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 .”

35. However , I consider that the criterion applied by the Supreme Court in the context of detention is applicable mutatis mutandis to a situation where the person concerned is de facto under the authorities ' control. This was so in the present case; the applicant was an unwitting protagonist in a set-up entirely orchestrated by the authorities. I would draw attention here to the very particular circumstances of the covert operation, which began with the staged discovery of two bodies and the announcement in the media that S. and I. had been shot dead. By the time V. arrived at the applicant ' s “guest house” , the applicant was already under the influence of the erroneous information that a serious crime had been committed, and his belief was reinforced by V. ' s admission that he had been the perpetrator . The applicant ' s conduct was therefore not solely, or mainly, guided by events which would have taken place under normal circumstances, but above all by the appearances created by the investigating authorities . To that extent, seeing that he was the victim of a ruse, his statements and reaction cannot reasonably be said to have been voluntary or spontaneous .

36. In the case of Ramanauskas , concern ing police incitement, the Court reached the conclusion in its judgment of 5 February 2008 that

“ 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 ”. [23] (my italics)

37. In the present case the purpose of the staged events was to make the applicant talk . The covert operation undermined the voluntary nature of the disclosures to such an extent that the right to remain silent and not to incriminate oneself was rendered devoid of all substance . As in the Ramanauskas case, the applicant was entrapped by a person controlled from a distance by the authorities, who staged a set-up using a private individual as an undercover agent . I thus consider that the information thereby obtained was disclosed through entrapment , against the applicant ' s will. [24]

III. Article 41 of the Conv ention

38. Lastly, I voted against point 4 (a) of the operative provisions . I consider that the award of 1, 00 0 euros for non-pecuniary damage is insufficient , given the Court ' s finding of two violations .

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

[2] 2. Klass and Others v. Germany , 6 September 1978, § § 68-69, Series A no. 28.

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

[4] 4. Cited above.

[5] 5. Coëme and Others v. Belgium , nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 102, ECHR 2000-VII.

[6] 1. 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 -....

[7] 2. Partly concurring, partly dissenting opinion of Judge Loucaides in Khan , cited above.

[8] 3. Partly dissenting opinion of Judge Tulkens in P.G. and J.H. , cited above .

[9] 4. See Osman v. the United Kingdom , 28 October 1998, § 116, Reports of Judgments and Decisions 1998-VIII.

[10] 5. P artly dissenting opinion of Judge Tulkens in P.G. and J.H. , cited above.

[11] 1. 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.

[12] 1. Ramanauskas v. Lithuania [GC], no. 74420/01, ECHR 2008 -... .

[13] 2. Ibid. , § 53.

[14] 1. Jalloh v. Germany [GC], no. 54810/00, ECHR 2006 ‑ IX.

[15] 2. Allan v. the United Kingdom , no. 48539/99, ECHR 2002 ‑ IX.

[16] 3. Cited above.

[17] 4. Jalloh , cited above, § 101 .

[18] 5. Ibid., § § 116 -17.

[19] 6. Comp are 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 .”

[20] 7. Allan , cited above, § 52.

[21] 8. R. v. Hebert ([1990] 2 Supreme Court Reports 151) .

[22] 1. Per McLachlin J.

[23] 1. Ramanauskas , cited above, § 73.

[24] 2. See , mutatis mutandis, Allan , cited above .