JOINT DISSENTING OPINION OF JUDGES PETTITI, SPIELMANN , DE MEYER AND CARRILLO SALCEDO

(Translation)

The majority of the Court considered that Article 6 (art. 6) of the Convention did not lay down any rules on "the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law". It held that it could not "exclude as a matter of principle and in the abstract that unlawfully obtained evidence of the ... kind [concerned] [might] be admissible" and that it had "only to ascertain whether [the] tr ial as a whole [had been] fair" [1] .

Admittedly, the Court has limited the scope of its judgment by confining it to the particular facts, but it was, in our view, under an obligation to address the problem of the unlawfulness of the evidence.

To our very great regret, we cannot share the majority ’ s view since, in our opinion, 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 the instant case, it is not disputed that "the recording in issue was obtained unlawfully" [2] .

Even if the courts which determined the charge against the applicant relied, as is noted in the judgment, on "evidence other than the recording but which corroborated the reasons based on the recording for concluding that [the p erson concerned] was guilty" [3] , it remains true that they "admitte d the recording in evidence" [4] and that their decisions were "partly" [5] founded on the disputed cassette.

For these reasons, we have reached the conclusion that in this case there was a violation of the right to a fair trial as secured in Article 6 (art. 6) of the Convention.

JOINT DISSENTING OPINION OF JUDGES PETTITI AND DE MEYER

(Translation)

We are of the view that the Court should have considered the facts under Article 8 (art. 8) of the Convention as well as under Article 6 (art. 6).

This would probably have led both of us to find that each of those Articles (art. 8, art. 6) had been violated.