CONCURRING OPINION OF JUDGE GARLICKI

While I am ready to accept that Article 6 § 1 of the Convention has been violated, I think that this case also merits discussion in the light of our case-law developed in respect of the protection of private life and correspondence (Article 8).

The finding of a violation in Jana tu inen seems to be based on the fact that some recordings were destroyed prematurely and, in consequence, the applicant could not use them during his criminal trial.

It should not be forgotten, however, that prompt destruction of all “ irrelevant” recordings is an established requirement under Article 8 of the Convention. Consequently, laws regulating electronic surveillance must provide for circumstances in which recordings must or may be erased or the tapes destro y ed ( Weber and Saravia , dec., § 95). The Fin n ish Coercive Measures Act established, in accordance with that requirement, an obligation to destroy recordings containing any information not related to the suspected offence.

In the Dumitru Popescu v. Romania judgment of 26 April 2007 ( § 78), while analysing Article 8 of the Convention , the Court observed that the fact that only some recordings had been included in the file presented to the trial court: “was not in itself incompatible with the requirements of A rticle 8. The Cour t can admit that in certain circ um stances it may be excessi ve , if only from a practical point of view , to transcri b e and include in a case investigation file all the conversations intercep ted on a particular telephone line . It could certainly violate other rights , such as the right to respect for the private lives of other callers who made calls from a phone that was being tapped . The person concerned must nevertheless be given the possibilit y of listening to the recordings or challenging their accuracy , hence the need to keep them intact until the end of the criminal proceedings and , more generally , to include in the case file those elements he considers relevant to the defence of his interests ”.

The Janat u inen case deserved, in my opinion, to be discussed in the light of those statements. It would not have stop ped the Court from finding a violation: it seems that the violation in Jana tu inen was due to the lack of an adequate procedural framework for the selection and d e struction of recordings. The affected party or at least an independent authority (a judge or prosecutor) should be invited to decide what is not sufficiently relevant to be kept in the file. Those decisions should not be left to the discretion of the police or any other such service .

But, at the same time, it is of the utmost importance that all irrelevant material be destroyed with all possible speed. What may be irrelevant for the criminal trial may nevertheless be quite handy for underhand political accusations and leaks of information. The sad experience of many Convention countries shows that telephone recordings have been used in a manner incompatible with human dignity and political culture. Legislative measures providing for careful supervision of the relevance of the recorded materials should not be criticised without a full assessment of their protective effects in respect of people ' s privacy and integrity .