CONCURRING OPINION OF JUDGE DE GAETANO

1 . For the avoidance of doubt, I should clarify why I voted in this case that there was no violation of Article 6 § 1.

2 . Irrespective of what was held in Bykov v. Russia and the other cases mentioned in paragraph 49 of the judgment, in the instant case the violation of Article 8 consisted not in the fact that the interference with the applicant ’ s correspondence was in breach of domestic law – it was, in fact, in conformity with domestic law – but in the fact that that domestic law itself was not in conformity with the stringent requirements of Article 8. The law failed to provide for adequate safeguards against the possible abuse of Article 98 § 1² of the Code of Criminal Procedure (see paragraphs 39 and 42), which was invoked by the prosecutor and applied by him in this case. There was, in a sense, a “formal” violation of Article 8 – a failure of domestic law to meet the required quality – which in the instant case, did not necessarily reflect upon the probative value of the intercepted material.

3. Under different circumstances it is unlikely that I would have voted for a finding of no violation under operative point 3 of the judgment.

JOINT PARTLY CONCURRING OPINION OF JUDGES PINTO DE ALBUQUERQUE AND BOÅ NJAK

1. In the present case we voted with the majority in finding that there had been no violation of Article 6 § 1 of the Convention. In the light of the facts of this case and the current state of the Court ’ s case-law, the complaint addressed by the applicant under the above-mentioned Convention provision could not have been decided otherwise. Nevertheless, we submit this separate opinion in order to emphasise that the Court ’ s case-law on the use of illegally obtained evidence in criminal proceedings lacks persuasiveness, coherence and clarity and needs to be revisited.

2. Throughout the years, the Court has dealt with complaints alleging that the use of a particular item of evidence in criminal proceedings violated the principle of fairness of the trial. In accordance with the principle of subsidiarity, the Court has regularly stated that the Convention does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law [1] . This general statement has produced problematic results where the evidence in question was obtained in breach of rights and freedoms protected by the Convention, especially those guaranteed by Articles 3 and 8.

3. In its jurisprudence, the Court has consistently rejected the argument that proceedings leading to a conviction on the basis of evidence collected in breach of Article 8 of the Convention were unfair and, that consequently, there had also been a violation of Article 6 § 1 of the Convention. This attitude has been vigorously criticised by dissenting judges in several cases. In Schenk v. Switzerland [2] , Judges Pettiti, Spielmann, De Meyer and Carrillo Salcedo stressed as follows:

“ ... 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 Khan v. the United Kingdom [3] , Judge Loucaides, in his partly concurring, partly dissenting opinion, stated the following:

“I cannot accept that a trial can be ‘ fair ’ , as required by Article 6, if a person ’ s guilt for any offence is established through evidence obtained in breach of the human rights guaranteed by the Convention. 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.”

His view was reiterated by Judge Tulkens in her partly dissenting opinion in P.G. and J.H. v. the United Kingdom [4] , as well as by Judge Spielmann in his partly dissenting opinion, joined by judges Rozakis, Tulkens, Casadevall and Mijović, in the case of Bykov [5] .

4. We strongly believe that these separate opinions have a point. Some of the separate opinions cited above pleaded for the inadmissibility of evidence obtained in breach of the rights and freedoms guaranteed by the Convention, based on the argument of the effectiveness of the Convention rights. According to Judge Loucaides in his separate opinion in Khan [6] , and Judge Tulkens in her separate opinion in P.G. and J.H. v. the United Kingdom [7] , “ ... 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.” Indeed, other alternatives, such as the possibility of disciplinary proceedings against State agents violating a Convention provision, or a civil action in damages against the State, cannot offer a remedy comparable to the exclusionary rule of inadmissibility of evidence obtained in breach of the Convention [8] , for three reasons.

Firstly, the exclusionary rule of evidence obtained in breach of a Convention right not only serves the purpose of deterrence but is also “an imperative of judicial integrity” [9] . The exclusionary rule prevents the judiciary from condoning police misconduct in situations where the latter obtain evidence by violating human rights and fundamental freedoms. Secondly, a procedural sanction, such as the exclusionary rule, renders rules on evidence collection a lex perfecta . Otherwise procedural rules are merely ancillary to the substantive ones protecting physical integrity, freedom of movement, privacy and other substantive rights and freedoms. Such a situation would be in fundamental collision with the principle of procedural fairness, this being at the heart of the concept of a fair trial as enshrined in Article 6 of the Convention. Thirdly, a breach of the rules on evidence collection in criminal proceedings does not necessarily constitute a disciplinary offence or a civil tort in several legal systems of the High Contracting Parties.

5. Evidence for the purpose of criminal proceedings against a suspect is often obtained by interference with rights and freedoms guaranteed by the Convention. Typically in cases of serious crime, the State authorities perform bodily and home searches and seizures, and intercept phone calls and correspondence, not to mention other equally or more intrusive forms of interference with private life and physical integrity. These actions do not constitute a violation as long as they are compatible with the requirements of the Convention, like those set out in paragraph 2 of Article 8. The purpose of these requirements is to ensure a fair balance between the rights of individuals and the interests of society. If in a particular case the former prevail over the latter and a violation of Article 8 is found, it is hard to conceive that this violation could be validated for the purpose of prosecution and conviction of the individual under Article 6. To put it simply, as Judge Spielmann, joined by several other judges, did in his separate opinion in Bykov [10] , something that “ ... is prohibited by one provision (Article 8) cannot be accepted under another (Article 6).”

6. The Court ’ s position has been that the question to be answered is whether the proceedings as a whole were fair. We argue that this position does not take into account the difference between evidence obtained by a “simple” breach of national law and evidence obtained in violation of the rights and freedoms guaranteed by the Convention, which is an issue undoubtedly falling within the competence of the Court. More importantly, this Court ’ s position ignores the existence of absolute, bright, red lines in criminal procedure, which cannot be crossed under pain of undermining fundamental rights and freedoms in a State governed by the rule of law [11] . These are absolute rules which lead to the necessary exclusion of evidence collected in b reach of them.

7. In its assessment of the overall fairness of the proceedings in the light of the admissibility of the evidence, the Court outlined in the Grand Chamber judgment in Bykov [12] some criteria that seem to be decisive [13] . These include (a) whether the applicant was given the opportunity of challenging the authenticity of the evidence and its use, (b) whether there exists any doubt regarding the reliability and accuracy of the evidence, taking into account also the circumstances in which it was obtained, and (c) whether there exists supporting evidence. Regarding the last criterion, the Court emphasised in the same judgment that where the disputed item of evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker.

8. In our opinion, these criteria do not lend themselves to easy comprehension and applicability and therefore do not provide guidance to national courts. One can wonder whether these criteria are exhaustive [14] . Furthermore, it is not clear whether they are to be considered cumulatively or alternatively [15] . But above all, they focus on the probative power of the disputed evidence. Ultimately, according to the Bykov criteria, as long as a piece of evidence is important enough, its use is fair. We do not agree with this purely casuistic, consequentialist and opportunistic view. Often, evidence obtained in breach of the rights and freedoms guaranteed by the Convention is highly important and there may be cases where its authenticity, reliability and accuracy are not in dispute. This should not mean that the Court should be less demanding as regards compliance with the Convention. Equally, the opportunity of challenging the use of a specific item of evidence depends on the provisions of national law, which in turn should not influence the autonomous assessment of fairness under Article 6 § 1 which the Court is entitled to undertake. Finally, in a particular case such an opportunity may not have been effective, otherwise the applicant would have had no need to turn to the Court.

9. Moreover, we believe that the Court ’ s case-law falls short of the consensus amongst the majority of the High Contracting Parties that, in principle, the use of evidence obtained by violation of human rights and fundamental freedoms should be prohibited, save in exceptional circumstances. A serious comparative-law review of the situation of the Contracting Parties would make this readily apparent. The issue of the admissibility of evidence obtained in breach of fundamental rights and freedoms and the insufficiency of the Court ’ s case-law has drawn the attention of many experts [16] . There exist legal systems with an absolute exclusionary rule, according to which any item of evidence obtained by such violation must be excluded from trial as a matter of principle. This principle possibly extends further, to evidence derived from such evidence (the so called fruits of the poisonous tree). There may be several exceptions to the exclusionary rule. Its imperative is sometimes weighed against the public interest. Some legal systems apply the concept of the nullity of investigative acts performed in breach of important provisions of national law instead of the exclusionary rule. But it would be hard to find a system in which the admissibility of evidence is dependent solely upon the probative value of the evidence in question, that is to say, its authenticity, reliability, accuracy and strength, the criteria identified as relevant in Bykov [17] .

10. This is all the more understandable in the light of the nature of criminal procedure. In order to establish the relevant facts of the case, the authorities may need to resort to investigative methods that interfere with rights and freedoms protected by the Convention, including those enshrined in Articles 3 and 8. But seeking the truth is not the only aim of criminal procedure. Protecting individuals against the unlimited, disproportionate or arbitrary use of repressive powers by the State in criminal law is of equal historical importance, as demonstrated, for instance, by the long-standing jurisprudence of this Court. The legal systems of the High Contracting Parties regularly prescribe conditions and procedures governing investigative acts that interfere with individual rights, in order to protect individuals against arbitrariness. Typically, these conditions include prior control by an independent authority and require specific probable cause, or whatever a particular legal system may call it. Particular types of interference may be limited to criminal offences of a certain gravity. Furthermore, they are often limited in time. Such conditions are enacted in order to balance the rights of individuals and the interests of society. They should correspond to the requirements of paragraph 2 of Article 8 of the Convention, namely that any interference should be in accordance with the law and necessary in a democratic society and for the pursuance of one or more of the legitimate aims enumerated therein. If the national courts disregard these conditions by admitting evidence obtained in breach of them, the fragile balance is irreparably lost, to the detriment of the fairness of the proceedings. In our opinion, the probative force of a particular item of evidence should not be a sufficient argument to override the need for protection of human rights and fundamental freedoms.

11. The Court ’ s jurisprudence after Bykov [18] shows that the application of the criteria developed therein has never led to a finding of a violation of Article 6 § 1 of the Convention [19] . This in itself raises the question whether the criteria are reasonably balanced. They were found, implicitly, to be insufficient in Prade [20] , where the Chamber deciding on the application examined the following issues:

(a) the nature of the unlawfulness – the Chamber noted that according to the (German) Federal Constitutional Court the reason for the unlawfulness was the insufficiency of indications supporting the suspicion that the applicant had committed a criminal offence, but at the same time held that the police had not acted in bad faith when obtaining and executing the warrant (§ 37 of the Prade judgment);

(b) the existence of an effective opportunity to challenge the use of evidence (§ 38);

(c) the level of intrusiveness – the Chamber held that in contrast with Jalloh [21] , the measure in question had not subjected the applicant to a grave interference with his physical and mental integrity, which in turn would constitute a breach of Article 3 of the Convention (§ 39);

(d) the quality of the evidence in question (§ 39);

(e) the importance of the disputed evidence for the criminal conviction of the applicant – the Chamber noted that, according to the Federal Constitutional Court, the disputed material was the only evidence against the applicant (§ 40);

(f) the weighing of the public interest in investigation and conviction against the individual interest that the evidence be gathered lawfully – the Chamber observed that the national courts had performed this exercise and found no appearance of arbitrariness or disproportionality therein (§ 41).

12. It is not our intention to analyse in depth the judgment in Prade [22] or to take a stance on the conclusions of the Chamber in that particular case. The purpose of the above summary of the relevant criteria is to show that the case-law on the matter is far from settled. The criteria (a), (c) and (f) of the Prade judgment are nowhere to be found in Bykov [23] . As they bring into play elements that do not relate solely to the probative power of the disputed evidence, they may be considered as a move in a positive direction. Nevertheless, they leave much room for development in terms of coherence and clarity. Furthermore, they possibly still fall short of the standards frequently app lied in modern comparative law.

13. In sum, the Court has yet to determine the question of principle whether (and if so, under what conditions), in the light of Article 6 of the Convention, it is permissible to use evidence obtained in breach of any other Convention right. This question goes to the heart of the concept of fairness of criminal trials. It is also of general importance for the effective protection of human rights and fundamental freedoms guaranteed by the Convention. For this purpose, a revisiting of the Court ’ s existing jurisprudence on the admissibility of illegally obtained evidence would be welcome. We would venture to suggest that in the near future the Grand Chamber might address the matter in an appropriate way.

[1] See, for example, Schenk v. Switzerland , 12 July 1988, § 45, Series A no. 140; Teixeira de Castro v. Portugal , 9 June 1998, § 34, Reports of Judgments and Decisions 1998-IV; Jalloh v. Germany [GC], no. 54810/00, §§ 94-96, ECHR 2006-IX; and Bykov v. Russia [GC], no. 4378/02, § 88, 10 March 2009.

[2] Cited above.

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

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

[5] Cited above.

[6] Cited above.

[7] Cited above.

[8] From a relevant comparative-law perspective, the alternatives to the exclusionary rule have been considered to be totally ineffective. In the case of People v. Cahan (282 P.2d905 (Cal.1955)), the Supreme Court of California held that in cases of searches and seizures, “…other remedies have completely failed to secure compliance with the constitutional provisions on the part of police officers…”. Building on this jurisprudence, the Supreme Court of the United States held in the landmark case of Mapp v. Ohio (367 U.S. 643 (1961)) that the alternatives to the exclusionary rule should be dismissed, noting that “…the experience of California that such other remedies have been worthless and futile is buttressed by the experience of other States”. For a detailed analysis on the empirical importance of the exclusionary rule see Kamisar , “In Defense of the Search and Seizure Exclusionary Rule (Law and Truth – The Twenty-First Annual National Student Federalist Society Symposium on Law and Public Policy – 2002)”, in Harvard Journal of Law & Public Policy 26, no. 1 (2003): 119-40.

[9] An expression used in the judgment of the Supreme Court of the United States in Elkins v. United States , 364 U.S. 206, 222 (1960).

[10] Cited above.

[11] For an enunciation of several examples of these red lines in criminal procedure, see the joint concurring opinion of Judges Kalaydjieva, Pinto de Albuquerque and Turković in Dvorski v. Croatia [GC], no. 25703/11, ECHR 2015, including the critique of a harmless - error analysis in criminal procedure by Justice Scalia in United States v. Gonzalez-Lopez , 548 U.S. 140 (2006) (footnote 28 to the opinion).

[12] Cited above, § 90.

[13] These criteria follow the Court’s position in several cases where the issue of the fairness of the use of evidence obtained by a violation of Article 8 was at stake. Apart from Schenk , Khan, and P.G. and J.H. v. the United Kingdom (all cited above), there were cases where there had arguably been a violation of a provision of national law, but where the application complaining of a violation of Article 6 § 1 was either found inadmissible or no violation was found. These cases include Parris v. Cyprus (dec.), no. 56354/00, 4 July 2002; Perry v. the United Kingdom (dec.) , 63737/00, 26 September 2002; Hewitson v. the United Kingdom (dec.), no. 50015/99, 22 October 2002; Heglas v. the Czech Republic, no. 5935/02, 1 March 2007; and Dumitru Popescu v. Romania (no. 2) , no. 71525/01, 26 April 2007.

[14] This does not seem to be the case, taking into account further developments in Prade v. Germany , no. 7215/10, 3 March 2016, as outlined in this separate opinion below.

[15] In some subsequent cases, the mere fact that there existed additional supporting evidence was considered sufficient to dismiss the complaint. On the other hand, in some cases like the present one, all the above-mentioned criteria were taken into consideration when analysing a par ticular complaint.

[16] In 2003, the EU Network of Independent Experts on Fundamental Rights (CFR-CDF) issued a document entitled “Opinion on the status of illegally obtained evidence in criminal procedures in the Member States of the European Union”. It establishes that in general (in respect of the issue of admissibility), national rules of criminal procedure are more protective of the accused than is required by Article 6 § 1 of the Convention. Only in seven States (Austria, Denmark, Finland, France, Germany, Sweden and the United Kingdom) is evidence obtained in violation of the right to respect for private life in principle admissible in criminal proceedings, but still in some of those States admissibility is subject to a balancing process. Understandably, the document does not discuss the situation in those countries which are not members of the European Union. The document is accessible at http://ec.europa.eu/justice/fundamental-rights/files/cfr_cdf_opinion3_2003_en.pdf

[17] Cited above.

[18] Ibid.

[19] See, for example, Valentino Acatrinei v. Romania , no. 18540/04, 25 June 2013; Niculescu v. Romania , no. 25333/03, 25 June 2013; Dragojević v. Croatia , no. 68955/11, 15 January 2015; Prade , cited above; and Kalnėnienė v. Belgium , no. 40233/07, 31 January 2017.

[20] Cited above.

[21] Cited above.

[22] Cited above.

[23] Cited above.