PARTLY DISSENTING OPINION OF JUDGES GARLICKI AND MIJOVIĆ

1. We are in full agreement with the finding that there has been no violation of Article 8. However, we are not prepared to accept that there has been a violation of Article 13.

It need not be recalled that Article 13 is of a very particular, mostly accessory nature. It is true that our case-law accepts that a violation of another Article of the Convention does not constitute a prerequisite for the application of Article 13. Nevertheless, there must always be some connection between the “main Article” and the claim concerning an alleged violation of Article 13.

2. This case, unlike the “classic” precedents on secret surveillance, does not deal with a hypothetical possibility that the applicant may have been or will be subjected to such a measure. In Klass and Others v. Germany (6 September 1978, Series A no. 28), as well as in Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria (no. 62540/00, 28 June 2007) and several other cases, the alleged secret surveillance did not result in any criminal trial against the applicants. It was not clear whether any surveillance measures had been applied to them and – where that had been the case – the applicants were not informed either about the reasons for and duration of the operation or about the use and storage of the gathered material. Therefore, the existence of procedural safeguards was of particular importance.

In the instant case, however, the covert listening device was installed within the framework of a criminal investigation and the material was presented as evidence to the trial court. The trial court (as well as the appellate court) examined that material and, rejecting the applicant ' s objections as the lawfulness of the operation, confirmed its admissibility. As noted in paragraph 49 of the judgment: “[t]he courts dealing with the criminal case against the applicant reviewed whether the surveillance had been carried out lawfully”. Furthermore, unlike in Association for European Integration, “the material obtained as a result of the covert operation against the applicant was later used as evidence in her trial and thus stored as part of the criminal case against her” (see paragraph 50 of the judgment).

There are no grounds for assuming that the criminal procedure did not offer sufficient guarantees to the applicant in this matter.

3. The majority took the view, however, that – since the criminal courts were concerned with the lawfulness of the surveillance only in so far as it could affect the fairness of the criminal proceedings – the criminal procedure was not capable of providing the remedy required under Article 13 (see paragraph 59 of the judgment). We are unable to concur.

It is true that if the criminal courts had arrived at the conclusion that the surveillance had been unlawful, such a finding would not have led to any direct redress for the applicant. But the fact is that in this case the courts did not adopt any such conclusion and, in consequence, such a situation remains purely hypothetical.

We can also agree that surveillance measures may have side ‑ effects concerning private or family life and that the assessment of those effects cannot be made within the framework of a criminal trial. In consequence, it may not be excluded that another (additional) remedy should be offered to the persons subjected to surveillance. But, as the Court noted in paragraph 37, in this case the applicant complained about “the tapping of her conversations in connection with the criminal proceedings against her”. No side ‑ effects of the surveillance were mentioned as an “accompanying violation” of Article 8. Therefore, any assessment of the side ‑ effects remains outside the scope of this case.

4. We agree that the applicant had an arguable complaint and was entitled to an effective remedy (see paragraph 58 of the judgment). However, in the circumstances of her case, that remedy was provided within the general framework of the criminal trial and appeal. Those proceedings offered sufficient guarantees to assess all aspects of the applicant ' s claim. The effective remedy in respect of the surveillance was simply absorbed by the safeguards inherent in a criminal trial.