PARTLY DISSENTING OPINION OF JUDGE YUDKIVSKA

I voted with my colleagues for a finding of a violation of Article 8 of the Convention: that issue is fairly straightforward in the present case.

I cannot, however, subscribe to the finding that, despite the fact that clearly inadmissible evidence – a recording of the applicant’s conversation on 26 January 2007 – was used in the criminal proceedings against him, his fair trial rights were not impaired.

Firstly – and independently of the particular circumstances of the present case – I believe that the so-called Bykov test [1] , introduced by the Grand Chamber in 2009, should be revisited.

As I recently argued in another separate opinion [2] ,

“... ... It is widely accepted that the very logic of the ‘fruits of the poisonous tree’ doctrine is connected to the so-called ’deterrent theory’, according to which the possibility of exclusion of evidence should discourage the law-enforcement authorities from resorting to unlawful conduct in future.

... A judge excludes unlawfully obtained evidence from criminal proceedings, thus making it pointless for police to obtain evidence by improper means. Consequently, the exclusionary rule decreases the number of violations committed by law-enforcement authorities in the course of investigations.

... This deterrent doctrine was explicitly indicated in the case of Elkins v. United States [3] , in which the Supreme Court stated that the admission of unlawfully obtained evidence by a federal court had served to defeat the State’s effort to assure obedience to the Constitution. ‘...if it is understood that the fruit of an unlawful search by state agents will be inadmissible in a federal trial, there can be no inducement to subterfuge and evasion’. In other words, exclusion of illegally obtained evidence is an important way to eliminate any motivation to violate the law. The rights of the accused in future cases are thus protected.

... In the same case the US Supreme Court referred to another rationale for the application of exclusionary rules, namely the integrity of the justice system. It quoted Justice Holmes’ viewpoint, expressed in Olmstead v. United States [4] : ‘no distinction can be taken between the Government as prosecutor and the Government as judge... In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means – to declare that the Government may commit crimes in order to secure the conviction of a private criminal - would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.’

... Or, as was stated much later, ‘by admitting unlawfully seized evidence, the judiciary becomes a part of what is, in fact, a single governmental action’ [5] . It is clear that the courts should not be perceived as forgiving serious breaches of the law – their legitimacy must be preserved, and a strict position by them, refusing to benefit from lawlessness by the police, safeguards the general public. As argued, the goal of preserving the legitimacy of the justice system may trump the goal of factual accuracy, because it is legitimacy, rather than truth finding, which is the ultimate goal of the process [6] ...”

Against this background, the Bykov test appears to be problematic, and I wholeheartedly support the opinion expressed by my learned colleagues Judges Pinto de Albuquerque and Bošnjak, who convincingly, in my view, demonstrated that the Bykov criteria “do not lend themselves to easy comprehension and applicability and therefore do not provide guidance to national courts” and that they call for a “purely casuistic, consequentialist and opportunistic view” [3] .

The Bykov test provides for three criteria to be carefully examined – whether the applicant was given an opportunity to challenge the authenticity of the evidence and its use, whether there are any doubts as to the reliability and accuracy of the evidence, and the role of the evidence. However, the Court’s post- Bykov jurisprudence demonstrates that only under the second criterion, that is, if the circumstances in which the evidence was obtained cast doubt on its reliability, will the Court in some exceptional cases come to the conclusion that evidence obtained in violation of Article 8 led to a violation of Article 6 § 1 (see Lisica v. Croatia , no. 20100/06, 25 February 2010, and Kobiashvili v. Georgia , no. 36416/06, 14 March 2019).

Such a narrow assessment of the influence of an unlawful intrusion into private life on the fairness of the proceedings does not serve the purpose of strengthening the rule of law in the member States, and leads to results incompatible with a fair trial as it should be understood in the twenty-first century. At the end of the day, as was brilliantly said by the late US Supreme Court Justice Felix Frankfurter, “the history of liberty has largely been the history of observance of procedural safeguards” [4] .

Apart from these general considerations, I am convinced that in the present case even the application of the restricted Bykov criteria would lead to a finding of a violation.

It is true, as the majority admitted, that the disputed evidence did not play a crucial role in the applicant’s conviction – to the extent that it was highly improbable that its exclusion would have changed the outcome of the applicant’s criminal trial. In the light of that, it is even more striking that the Court completely ignored the applicant’s plea in this regard.

The first Bykov criterion is clear – the Court should examine “whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use” (see § 90 of the Bykov judgment). “Opportunity to challenge” presupposes not only that a defendant may challenge the use of evidence, but that the court must give a clear and convincing reply as to why an (allegedly) illegally obtained recording should remain part of a body of evidence. Assessing this criterion, in paragraph 72 of the judgment the majority accept that “the courts did not comment on the applicant’s arguments in that respect in much detail”; however, they justify this lack of a reply by the fact that the other two Bykov criteria – the role of the impugned evidence and its reliability – did not pose any problem. This approach upsets the whole architecture of the Bykov test, in which all three criteria are independent and should be satisfied. To state that “in view of ... the limited role of the relevant evidence in the case against the applicant, the domestic courts’ failure to comment on that specific issue in detail is not sufficient in itself to render the proceedings overall unfair” (see paragraph 74 of the judgment) simply amounts to removing one criterion from the Bykov test on the basis that the other two criteria are sufficient (the same position is reflected in paragraph 75 of the judgment).

The further reference to the applicant’s “mass of repetitive and often irrelevant arguments on other points” (see paragraph 73) is even more worrying. First of all, the very fact that the applicant’s appeal was 118 pages long, without any table of contents (see paragraph 25 of the judgment), does not make his behaviour abusive or otherwise inappropriate vis-à-vis the domestic judicial authorities. Second, the Bykov test does not make the opportunity to challenge the use of disputed evidence conditional on a particular procedural conduct or on the number of other complaints a defendant might want to raise when his fate is at stake, and criminal proceedings – especially lengthy ones such as those in the present case – can be impaired by a number of procedural shortcomings.

Noticeably, the majority referred to another recent judgment of the Court ( Berlizev v. Ukraine , no. 43571/12, 8 July 2021), in which a relevant complaint was declared manifestly ill-founded in the opposite circumstances : contrary to the applicant in the present case, Mr Berlizev had failed to raise his exclusionary plea before the trial court at first and second instance. “Having regard to ... the available procedural safeguards which the applicant failed to use in a consistent manner”, the Court was “unable to conclude that the global fairness of the criminal proceedings against him was compromised” (§ 55). In Svetina v. Slovenia (no. 38059/13, 22 May 2018), no violation of the applicant’s fair trial rights due to the use of unlawfully obtained evidence was established, since, inter alia , “his arguments were addressed by the domestic courts and dismissed in well-reasoned decisions” (§ 49). By contrast, in Kobiashvili (cited above), the Court found a violation of Article 6 § 1 because doubts as to the reliability of the evidence were coupled with “the inadequate judicial scrutiny both before and during the trial, including the failure of the domestic courts to sufficiently examine the applicant’s allegations that the drugs had not belonged to him” (§ 73).

In my judgement, the present case is much closer to Kobiashvili , as nothing “well-reasoned” was presented by the domestic judicial authorities to address the applicant’s arguable claim about the admission in evidence of the recording of the conversation in O.L.’s home.

To use unlawfully obtained evidence to secure a person’s conviction means to multiply unlawfulness. Both the rationales underlying the exclusionary rule for evidence obtained in breach of a Convention right – discouraging the police from unlawful behaviour and judicial integrity – require that if the “poisoned” evidence is not excluded, the trial court is obliged to convincingly explain the reason.

As this was not done in the present case, I voted for a violation of Article 6 § 1 of the Convention on account of the admission of the recording of the applicant’s conversation in evidence against him.

[1] Bykov v. Russia [GC], no. 4378/02, 10 March 2009.

[2] Concurring opinion of Judge Yudkivska in the case of Bokhonko v. Georgia , no. 6739/11, 22 October 2020.

[3] J oint partly concurring opinion of Judges Pinto de Albuquerque and Bošnjak in the case of Dragoş Ioan Rusu v. Romania , no. 22767/08, 31 October 2017.