PARTLY DISSENTING OPINION OF JUDGE TULKENS

(Translation)

The Court has – unanimously – acknowledged that the use of a listening device, both at B.’s flat and at the police station, infringed Article 8 of the Convention because such an interference with their right to respect for their private life was not in accordance with the law.

However, the majority considered that the use of that evidence at the applicants’ trial did not conflict with the requirement of a fair hearing guaranteed by Article 6. I cannot share that view for a number of reasons.

1. I do not think that a trial can be described as “fair” where evidence obtained in breach of a fundamental right guaranteed by the Convention has been admitted during that trial. As the Court has already had occasion to stress, the Convention must be interpreted as a coherent whole (see Klass and Others v. Germany, judgment of 6 September 1978, Series A no. 28, pp. 30-31, §§ 68-69).

In that respect I share the partly dissenting opinion of Judge Loucaides annexed to Khan v. the United Kingdom (no. 35394/97, ECHR 2000-V): “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.”

In the instant case the violation which the Court found of Article 8 of the Convention was constituted, indeed exclusively constituted, by the unlawfulness of the impugned evidence (see paragraphs 63 and 78 in fine of the judgment). The fairness referred to in Article 6 of the Convention also includes a requirement of lawfulness (see Coëme and Others v. Belgium , nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 102, ECHR 2000-VII). Fairness presupposes compliance with the law and thus also, a fortiori , respect for the rights guaranteed by the Convention, which it is the Court’s very task to scrutinise.

2. With regard to the nature and scope of the Court’s scrutiny, the Court rightly reiterates that “its duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States to the Convention” (see paragraph 76 of the judgment). Accordingly, and I firmly share this observation, “it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention”. Similarly, although it is not “the role of the Court to determine, as a matter of principle , whether particular types of evidence – for example, unlawfully obtained evidence – may be admissible”, the position is different, however, where, as in this case, the evidence has been

obtained in breach of a right guaranteed by the Convention because it is the Court’s very duty, where the taking of evidence is concerned, to ensure that the commitments entered into under the Convention are honoured by the Contracting States.

3. The majority refer in their reasoning to Schenk v. Switzerland , (judgment of 12 July 1988, Series A no. 140), and consider that Khan (cited above) applied those principles, from which they deduce that, owing to similarities between the facts of that judgment and those of the present case, they have an obligation to follow precedent (see paragraphs 77 and 78 of the judgment).

I do not believe that to be the case, not least because in Schenk the evidence had been held to be unlawful under domestic law and not under the Convention. Furthermore, certain considerations in Khan (cited above, §§ 37 and 38), suggest that it could even be seen as a “re-reading” of the Schenk judgment and therefore interpreted as a departure from the precedent established in Schenk .

The present judgment could have removed the doubts arising from the Court’s case-law on the subject and reiterated clearly that what is forbidden under one provision (Article 8) cannot be permitted under another provision (Article 6).

4. In concluding that there has not been a violation of Article 6, the Court renders Article 8 completely ineffective. The rights enshrined in the Convention cannot remain purely theoretical or virtual because “the Convention must be interpreted and applied in such a way as to guarantee rights that are practical and effective” (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, unreported; and García Manibardo v. Spain , no. 38695/97, § 43, ECHR 2000-II).

5. Lastly, the majority’s point of view appears to me to harbour a real danger, which has already been pointed out by Judge Loucaides: “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” (see the dissenting opinion in Khan , cited above). The Court has itself stressed “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” (see Osman v. the United Kingdom , judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, pp. 3159-60, § 116). 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.