No violation of Art. 6-1;No violation of Art. 6-2;Not necessary to examine Art. 8

C. Russo;J.A. Carrillo Salcedo;N. Valticos;B. Walsh

ORG Mr. PERSON , a NORP national born in DATE , resides in ORG ( GPE of GPE ) . He is a company director .

In DATE , he married PERSON , who was born in DATE . In DATE , serious disagreements arose between them , and they separated the following year . In DATE , the applicant filed a petition for divorce , which was finally granted on DATE after an agreement between the parties .

ORG On DATE , Mr. PERSON went to an advertising agency in ORG ( ORG ) , where , under the assumed name of PERSON , with an address in PERSON , he gave instructions for the following advertisement to be published :

" Wanted . Former member of ORG or similar for occasional assignments ; offer with telephone number , address and curriculum vitae to ORG restante CH Basle CARDINAL . "

From the replies to this advertisement the applicant selected a Mr. PERSON , whom he met on several occasions and paid to carry out a variety of assignments , including CARDINAL in GPE in DATE .

ORG At DATE , the applicant underwent an operation in hospital .

Mr. PERSON arrived in GPE on DATE and telephoned Mrs. PERSON on DATE . He visited her DATE and told her that he had been commissioned by her husband to kill her . After considering the possibility of killing Mr. PERSON or leading him to believe that his wife was dead so that Mr. PERSON could collect his fee , they went together to the investigating judge of GPE on DATE .

ORG On DATE , the investigating judge interviewed Mr. PERSON and then instructed ORG Rochat and ORG PERSON of the GPE police to interrogate him more thoroughly , which they did on DATE . The judge interviewed Mrs. PERSON " orally " , in other words her statements were not taken down in writing .

DATE , the GPE police took a statement from Mr. PERSON , for the second time , and also one from Mrs. PERSON .

ORG On DATE , the investigating judge issued letters rogatory to the NORP authorities . He asked that , in order to further an investigation into an attempted murder by a person or persons unknown , a number of inquiries should be made and that ORG should be authorised to take part in them . The judge noted in particular :

" ... it is necessary to discover what Mr. PERSON was doing in GPE from DATE to June DATE and to obtain information regarding his character . It is also necessary to ascertain whether it is true that Mr. PERSON saw PERSON , whom he claims to have met at FAC , and with whom he allegedly went to buy an air ticket for GPE . "

On DATE , ORG of ORG formally proceeded to comply with the letters rogatory , and Mr. PERSON was accordingly interviewed the following day in the presence of ORG . Mr. PERSON said , inter alia :

" ORG , that is to say Mr. PERSON , will certainly contact me before long to ask for details of the murder of his wife , PERSON . He is supposed to send me or bring me the agreed amount of $ MONEY .

You asked me to come here and I would now ask you to give me instructions as to how I should act when Mr. PERSON contacts me . "

ORG Mr. PERSON was expecting the applicant to telephone him and he therefore set up a cassette recorder at his mother ’s home at GPE near GPE and connected it by microphone to the second earphone of the telephone receiver .

On TIME of DATE , at TIME , Mr. PERSON telephoned Mr. PERSON from a kiosk at FAC ( GPE ) . Mr. PERSON recorded the conversation .

At TIME , Mr. PERSON telephoned ORG and was put through to Mr. PERSON , who had planned to return to GPE that DATE by the TIME train . Mr. PERSON played the recording back to the inspector and asked him whether he would like to have the cassette . Mr. PERSON said that he would and informed his NORP colleagues who were present of this . TIME , Mr. PERSON arrived at ORG offices and handed the cassette over to Mr. PERSON .

ORG Mr. PERSON , who on DATE had telephoned the investigating judge of GPE , took the cassette back to GPE TIME . On DATE , he played the recording back to Mrs. PERSON so that she could identify her husband ’s voice . On DATE , the judge issued a warrant for the applicant ’s arrest .

Mr. PERSON was arrested DATE , DATE . Inspector Rochat and ORG were instructed by the judge to arrange a confrontation between Mr. PERSON and Mr. PERSON , and they played back the recording in the latter ’s presence . In addition , the judge visited the police station , where he interviewed and charged the applicant ; he also met the applicant ’s lawyer , who had been authorised to see his client .

ORG On DATE , the inspectors reported to the judge the results of the confrontation between Mr. PERSON and Mr. PERSON . They handed over to him the cassette , which was placed in an envelope and added to the file ; it subsequently remained there except when removed for examination by an expert .

The judge ordered the applicant ’s release . He had a transcript made of the cassette and added it to the file on DATE . On DATE , the inspectors drew up a detailed report on the case for him .

ORG On DATE , the file was sent to the applicant ’s lawyer , who returned it on DATE . On DATE , he requested a full investigation of Mr. PERSON and an expert examination of the cassette , as in his view the recording was not a faithful and complete reproduction of the telephone conversation .

On DATE , the judge directed that the cassette should be handed over to ORG , the managing director of a tape - recorder factory , who carried out the expert examination with ORG , CARDINAL of his colleagues . At ORG ’s request , the equipment that had been used to make the recording , which had been seized at GPE on DATE by the NORP police in the presence of Mr. PERSON , was also made available to him . He returned the cassette to the judge on DATE and submitted his report on DATE .

ORG On DATE , the investigating judge issued an order discharging the applicant . The order read as follows :

... Prima facie Mr. PERSON ’s accusations are supported by a number of facts .

It is , for instance , strange that PERSON carefully concealed his true identity from PERSON and tried to cover his tracks ( advertisement for a legionnaire in a NORP newspaper , use of an assumed name , use of a ORG box in GPE , the fact that it was always PERSON who telephoned GPE , etc . ) .

It is clear that the recording of the telephone conversation of DATE between PERSON and PERSON has been neither shortened nor tampered with .

It appears to confirm PERSON accusations .

Nevertheless , careful listening raises some doubt as to whether the participants completely understood each other . PERSON , in particular , gives the impression that he did not understand very well what PERSON was implying .

In the light of PERSON character , his past and his explanations and statements to PERSON , his statements can not be relied on with absolute confidence .

In conclusion , PERSON accusations and the evidence gathered appear insufficient to commit PERSON for trial .

ORG On DATE , the prosecutor appealed against the investigating judge ’s decision , and in response to this appeal Mr. PERSON filed a statement of defence on DATE . In it he argued that the central figure in the case was not him but Mr. PERSON , who , according to information obtained , " [ had ] been a member of ORG , a chief steward in the ORG , a stunt man , a bodyguard , an informer working for the NORP police , a circus employee and out of work " . He supported the prosecutor ’s application to have the recording played , which in no way incriminated him . In his view , Mr. PERSON had been acting merely as an agent provocateur of the police on DATE he made the recording .

On DATE , ORG of ORG committed Mr. PERSON for trial at FAC on a charge of attempted incitement to murder . On DATE , it remanded the applicant in custody , but Mr. PERSON appealed and was released on DATE .

ORG The proceedings at first instance at FAC lasted from DATE . The court was composed of a professional judge , who presided , CARDINAL lay judges and CARDINAL jurors . The defendant was assisted by his lawyer , Mr. PERSON .

ORG At the outset the applicant made an interlocutory application to have the recording removed from the file . The court dismissed this application on DATE on the following grounds :

The file contains a recording whose removal is sought by the defendant .

It was made by PERSON , a strong - arm man in the defendant ’s employ .

Pauty stated that he had made the recording in the following circumstances :

‘ I put the cassette in my recorder ... Using the original microphone , I connected it up to the second earphone of the telephone in my mother ’s flat . I used brown self - adhesive tape to attach the microphone to the earphone ... ’ .

The recording was not authorised or ordered by the competent authority .

Accordingly , by recording PERSON without his knowledge , Pauty may have committed an offence under PERSON . CARDINAL ter CC [ LAW ] .

However , this is not sufficient ground for ordering the removal of the recording from the file .

Art . CARDINAL ter ORG is applicable only where a complaint has been lodged , and PERSON has made no such complaint .

Thus Pauty would in any event no longer be liable to punishment in this respect .

In any case , the content of the recording could have been included in the file , either because the investigating judge had had ORG telephone tapped or simply because it would be sufficient to take evidence from GPE regarding the content of the recording .

Acceptance of the defendant ’s argument would make it necessary to exclude a large proportion of evidence in criminal proceedings .

For instance , a firearm used without the appropriate permit would have to be held inadmissible as evidence .

That is why procedural law confers on the courts the power to assess evidence and its weight and probative value .

This case does not involve unlawful evidence within the meaning of LAW .

Moreover , it is interesting to note that the defendant appears to have shifted his ground during the police inquiry .

On page CARDINAL of the pleadings that he submitted to ORG , counsel for the defence states as follows :

‘ The public prosecutor seeks to have played back the telephone conversation recorded on DATE . He is right to do so and we wish to support this application . He considers that this recording constitutes decisive evidence against my client . He is completely mistaken in this respect.’

The defendant was right to consider at the time that it should be left to the court to assess the evidence in the file . "

ORG Still on CARDINAL DATE , the presiding judge directed that the recording should be played back . It was played back in the courtroom in the presence of the members of the court , the parties and the public on a cassette recorder with CARDINAL loudspeakers installed by a specialist firm .

ORG DATE , the court heard evidence from all the witnesses except HR , who failed to appear . CARDINAL of the witnesses had been subpoenaed by the court of its own motion ( Mr. PERSON , Mrs. PERSON and HR ) . CARDINAL other witnesses had been called at the request of the defence ( ORG , ORG and ORG ) . Inspector PERSON did not give evidence because he was not called either by the court or at the request of the public prosecutor or the defence .

In addition , J - CS , who had worked with the expert ORG , gave evidence in the latter ’s stead on CARDINAL and CARDINAL DATE .

The statements made by these witnesses were not taken down .

ORG The presiding judge read out various documents : the order of ORG committing the applicant for trial ; the police and intelligence reports in their entirety or in part ; various documents produced by Mr. PERSON or cited by either the prosecution or the defence ( Article CARDINAL , first paragraph , of LAW ) ; and the statements made during the police inquiry by HR , who was not present , but not those of the witnesses who had given evidence at the hearing ( Article CARDINAL , second paragraph ) .

ORG Under LAW , the file is made available to the judges and jurors as soon as the trial commences . The judges , however , may in exceptional circumstances have access to it earlier ( LAW , but not the jurors ( LAW ) .

ORG FAC delivered its judgment on CARDINAL DATE . It found Mr. PERSON guilty of attempted incitement to murder ( Article CARDINAL para . CARDINAL of LAW ) and sentenced him to DATE imprisonment , the minimum statutory sentence . It ordered his immediate arrest .

ORG The judgment contains the following account of the facts :

" On DATE , PERSON went to an advertising agency in ORG , where , under the assumed name of PERSON , with an address in PERSON , he gave instructions for the following advertisement to be placed in CARDINAL NORP newspapers , ORG , ORG , and ORG :

‘ Wanted . Former member of ORG or similar for occasional assignments ; offer with telephone number , address and curriculum vitae to ORG restante CH Basle CARDINAL.’

The agency employee warned him that the newspapers might not accept such an advertisement ; and , in fact , the advertisement appeared only in GPE - Soir . PERSON paid the agency CARDINAL FF . In reply to the advertisement he received several offers and selected CARDINAL of them , CARDINAL from a PERSON , living at GPE , near GPE , and another from someone whose first name was PERSON . After meeting PERSON , PERSON decided against using him . He therefore chose Pauty , with whom he arranged CARDINAL meetings in DATE and DATE , at FAC in GPE , which is not the hotel at which the defendant usually stays . On this point he explained at the hearing that he did not want Pauty to know where he lived in GPE . He introduced himself as a member of a very powerful organisation based in GPE . He told PERSON that he was the organisation ’s representative in GPE . He also said that Pauty would be under surveillance during his assignments .

The first assignment given to PERSON concerned a certain [ HR ] . According to PERSON , the mission - for which he was promised payment of MONEY plus expenses - was to kill [ HR ] . According to PERSON , Pauty was supposed to give [ HR ] a beating ‘ that he would remember for a long time’ . He intended only that [ HR ] should receive several punches to the face and a black eye . The defendant stated that he had taken these steps ‘ in order to intimidate [ HR ] , or rather , to punish him’ .

The ORG has not been able to establish with certainty the real assignment given to GPE . ...

As nothing concrete appeared to come of this , the defendant gave Pauty another assignment . He explains that he realised that Pauty was not the sort of strong - arm man that he had hoped for . Pauty had told him that he had been a mercenary in the CSTM ( ORG spéciale des troupes métropolitaines ) , then a ‘ ORG , and had smuggled cars to GPE . PERSON explained that he had found Pauty quick - witted and cunning and had therefore decided that he could give him a second assignment , consisting in obtaining information about PERSON . According to the defendant ’s version of events , Pauty was supposed to provide him with information on CARDINAL matters :

( a ) the amount that Mrs. PERSON had inherited from her father ;

( b ) whether she was having a house built in GPE ; and

( c ) whether she had any funds in that country , perhaps as a result of a relationship he knew nothing about .

A fourth matter also interested him , namely whether his wife had had any contact with the drugs world .

According to Pauty , he was supposed to go to GPE , murder Mrs. PERSON , for MONEY , covering his tracks by simulating a rape , a burglary or an accident . It is known that at DATE PERSON went with Pauty to a GPE travel agency . For CARDINAL ORG , he bought him a DATE package holiday in GPE and in addition gave him QUANTITY , i.e. CARDINAL ORG , to cover his expenses . Pauty left for GPE on DATE . He went to Port - au - Prince , where Mrs. PERSON spends DATE of DATE . PERSON had given Pauty a photograph of his wife so that he could identify her . PERSON left GPE on DATE and returned to GPE . Having established that PERSON was not in GPE , Pauty completed his stay and returned to GPE on DATE , without moreover having obtained any information whatsoever , except for CARDINAL detail , which was inaccurate - namely that PERSON husband was dead . On his return to GPE , GPE was contacted by PERSON on a date which has not been established precisely , but which must have been DATE ( according to PERSON ) or CARDINAL or DATE ( according to Pauty ) . PERSON claims that he telephoned Pauty from GPE . This is possible , although it has not been proved . But neither has it been established that he rang him from GPE . During this telephone conversation , PERSON learnt that Pauty had returned empty - handed from GPE . He then instructed GPE to come to GPE to continue his assignment . According to Pauty , he was supposed to kill PERSON during DATE of DATE . According to PERSON , that was precisely the week in which GPE was not supposed to come to GPE , because it was then that Mrs. PERSON ’s daughter was expected to give birth . Thereafter , there does not appear to have been any direct contact between PERSON and GPE until DATE , when PERSON telephoned GPE . This conversation will be considered further below . On DATE , Pauty sent a telegram to ORG , worded as follows : ‘ Contact necessary’ . At this stage GPE was totally unaware of ORG ’s real identity . DATE , on DATE , when he entered ORG for an operation and after he had led Pauty to believe that he would be away for DATE in LOC , PERSON sent CARDINAL to Pauty in an envelope posted at GPE to the address ‘ RD poste restante CARDINAL GPE - Gare’ . The defendant underwent his operation at DATE . On DATE , PERSON came to GPE and began to look for Mrs. PERSON . He contacted her by telephone on TIME DATE , having , he claimed , decided to abandon what he alleges to have been his assignment , i.e. to kill Mrs. PERSON , either because he would have had to wait until ORG ostensible return in CARDINAL months’ time to obtain more money , or because he realised that there was something suspicious about ORG ’s explanations . On DATE , Pauty met Mrs. PERSON . He explained to her that he had been instructed to kill her . Mrs. PERSON , who was terrified , asked Pauty on whose instructions and has stated that after a certain amount of explanation she realised that the order came from her husband . Pauty then suggested to Mrs. PERSON that she should disappear for a while so that he could collect his fee . Failing that , he proposed killing the defendant . Finally , Pauty and Mrs. PERSON went to the police to tell their story , and on DATE the investigation commenced . On DATE , Pauty was interviewed in GPE and on DATE by the NORP police . On DATE , having received the telegram of CARDINAL May , PERSON rang Pauty from ORG . Pauty , who knew that ORG , i.e. PERSON , would call him sooner or later , had put a cassette in a recorder which he had had for DATE and which belonged to his brother . Using the recorder ’s original microphone , he connected the apparatus directly to the second earphone of the telephone in his mother ’s flat . He attached the microphone to the earphone by means of self - adhesive tape . PERSON called from a telephone kiosk , although he had a telephone in his hospital room . He claims that he used CARDINAL MONEY coins for the call , but this fact has not been established . On the tape an unidentified person is heard answering PERSON ’s telephone call and putting him on to Pauty . PERSON asks Pauty what he has been doing and the following dialogue ensues :

RP Well , the jo ...

ORG was wondering what you were d ... , what had become of you .

RP Yes , no , there were CARDINAL or CARDINAL small problems and I did n’t , I ORG could n’t do the job until DATE .

ORG ?

RP Yes , DATE , Mon ... , Mon ... , I think it was DATE .

PS But where did it happen ?

RP Well , I went to fetch some friends in GPE because we could n’t manage to do the , because as you told me there were , the neighbours were always there etc .... I went twice and I was seen twice , so I waited until she left to go to the hospital and we arranged to bump into her car , so that she ’d have to stop and talk about the damage and then , well it was like that , but I do n’t know because the body , we took the car and we and I took it to near GPE . I do n’t know if it has been discovered yet because I have n’t seen it in the papers .

PS But what are you going to do now ?

RP Sorry ?

ORG going to happen now ?

RP Well , now I ’m going to do the GPE one , are n’t I ?

PS What ?

RP I ’ll do GPE .

ORG , I mean about work , the job .

RP Well , do n’t ask me . It er the job ’s done and that ’s it .

PS It ’s odd the job ’s been done and there ’s been no news , is n’t ORG it ?

RP I have n’t seen it in the papers yet either , but it ’s like I said , I hid it , I did n’t just leave it ...

ORG , listen , it ’s quite straightforward , I ’ll call you in a DATE ’s time .

RP In a DATE ’s time ?

ORG you be there in a DATE ’s time ?

RP Yes , I ’ll be in GPE , yes .

PS Yes , yes , I ... I ... I follow you , right ?

RP OK .

PS Good , because I ... there has n’t been any news , I have n’t heard anything .

The conversation ends with the usual greetings . Pauty received the call at TIME he called ORG , and at TIME , having travelled from GPE to GPE , he brought the cassette to the inspector in charge of the inquiry . This cassette was examined by an expert , who found that :

The tape of the cassette had not been edited by the usual method of cutting and splicing .

The characteristics of the recording corresponded exactly to the recorder .

The tape did not have any usable traces of other recordings .

The background noise on the recording was very loud , which was to be expected , given the type of equipment used and the way the recording was made . But , as a result , it was not possible to state with certainty that it was not a copy .

The expert considered that it was possible that the conversation had first been recorded and that the tape had then been edited , i.e. passages had been removed , the order of the words altered or passages from other recordings added . The resulting tape could then have been copied on the cassette recorder examined . The expert stated further that he had ‘ found no evidence’ to suggest that it was such a copy . That did not mean that it was not one , only that the editing would have required a very skilled operator , with sophisticated equipment at his disposal and plenty of time . At the trial the expert further clarified his opinion as follows .

He explained that he had detected CARDINAL breaks ; that he had not been able to prove that there had been a cut ; that he was almost sure that no editing could have been carried out , since such editing would have required a DATE ’s work , even if the necessary equipment had been available . The expert noted in addition that in the most favourable circumstances with regard both to the equipment available and to whether a passage was in a position from which it could technically be simply removed , the removal of a passage would have required TIME work . He had not detected any such removal of a passage .

Giving evidence on this recording , the defendant admitted that it was his voice . He stated that he did not remember any reference to a body and that he had the impression that the recording had been shortened .

On the basis of the expert ’s findings , the court accepts that the recording which appears in the file is an accurate reproduction of the conversation between the defendant and Pauty on DATE . It considers that , as there is no evidence that the recording has been tampered with and in view of the short time available to GPE between the telephone conversation and his handing over of the cassette to the police , the possibility that the recording was edited can be ruled out . Moreover , having regard to the fact that the recording contained the initial and final greetings , the possibility that the beginning or end of the recording was simply removed without any editing does not arise .

On CARDINAL and DATE , Pauty sent CARDINAL telegrams to ORG . The first ran : ‘ GPE OK . GPE OK before CARDINAL . Need GPE d. for cigarettes.’ The second was worded ‘ Contract completed . Check ORG , no proof possible . Awaiting CARDINAL GPE d. contract before steps HR PERSON does not seem to have received these telegrams .

court has found that the NORP , between whom there was an age - gap of DATE , were married in DATE . Until DATE it does not seem that the couple experienced any particular problems . It is , however , certain that Mrs. PERSON always felt very lonely . In DATE , whilst Mrs. PERSON was in hospital , an expert , [ A ] , came to discuss with her a draft marriage contract and agreement concerning inheritance rights which PERSON had had prepared . This draft , which provided for a separation of property , stipulated in substance that PERSON should waive any right to succeed to her husband ’s estate on the understanding that on his death she would receive a life interest in a portfolio of securities whose real value was to be CARDINAL and a half million CHF , yielding an DATE income of MONEY . It was also provided that if the marriage was dissolved for any reason other than death , PERSON would have a life interest in a portfolio of securities with a real indexed value of DATE half million CHF .

PERSON refused to sign this agreement . In DATE , she sought protective measures . At DATE , she and her husband ceased to live together . PERSON instituted divorce proceedings in DATE . The spouses saw each other again only at the hearings in those proceedings , which were particularly bitter and lasted DATE . In DATE , PERSON changed lawyers . Since her new lawyer appeared to favour a final settlement as part of a divorce , the defendant ’s lawyer informed him of this and told him what he intended to do to compel the new lawyer to raise the problem with Mrs. PERSON and make it easier to persuade the latter to review her position . On DATE , counsel for the defendant wrote to him to inform him that he hoped to be able to fix a date for the final hearing before long . In the event , this hearing was held on DATE , and the divorce decree - which took effect from CARDINAL DATE - confirmed an agreement granting , inter alia , the wife the sum of CARDINAL and a half million CHF in respect of the liquidation of joint assets and an indexed annuity paid in DATE instalments of MONEY .

The investigation showed that from the beginning of the divorce proceedings PERSON had doubts as to the faithfulness of his wife and suspected in particular that she had had a relationship prior to and during the early stages of the proceedings with a certain [ E ] .

The trial hearing did not reveal any facts other than those which are set out above . The defendant continued to assert his version of events according to which Pauty was instructed to obtain information and confirmed that , as he saw it , Pauty could get the information in any way that suited him , for example by visiting Mrs. PERSON on some pretext and obtaining the information sought ‘ either by initiating an intimate relationship or by developing a friendship with her’ . In an interview on DATE the defendant stated that he had wished to obtain the desired information from GPE within DATE if possible . In court he declared that this was not the case , that he had told GPE that he would be away for a while - so that the latter had plenty of time - and that he had instructed GPE that he should not come to GPE during DATE of DATE because Mrs. PERSON ’s daughter was due to give birth then . Finally , it had been agreed that Pauty would be paid on PERSON ’s ostensible return from abroad on the basis of the information which he provided . For his part , Pauty confirmed that his assignment in GPE was to kill Mrs. PERSON and that he had decided to change his plans when he saw that it would be a long while before he received any more money from ORG .

PERSON personality is not particularly easy to determine . He was born in DATE and has had a number of somewhat ill - defined jobs . He has worked as a stunt man and has had various problems with the NORP civil and military authorities and with the NORP authorities . Legally he is resident in GPE , but he in fact lives at GPE . It appears that he has occasionally collaborated with the police , particularly the NORP police , on matters related to drugs .

On the basis of the foregoing considerations , the court has , by a majority , reached the conclusion that PERSON gave to PERSON the assignment of killing PERSON . The court ’s view is founded partly on the recording of the telephone conversation of DATE . Where NORP states that he was not able to do the job until DATE , the defendant twice asks him where it happened , which is a ridiculous question if the job was merely a matter of obtaining information . At the end of a long sentence , spoken all at once without drawing breath and in which reference was made to a body taken in a car to somewhere near Montreux and not having been discovered because there had been no mention in the papers , the defendant does not reply ‘ What on earth is all this nonsense?’ or ‘ I do n’t understand what you ’re talking about’ . He says and asks twice what is going to happen now . When Pauty confirms that the job has been done , the defendant does not say to him ‘ In that case send me your PERSON , which would have been logical if the assignment had been to obtain information , but says to him , not once but twice , ‘ it ’s odd the job ’s been done and there ’s been no news , is n’t PERSON . The defendant explained that he wished by this to lead Pauty to believe that his organisation ( a non - existent organisation which was supposed to monitor ORG actions ) had not told him of it . We know that ORG actions were not monitored . We also know that the ‘ GPE did not exist and that the defendant , who was in hospital , could not have known at the time whether or not Pauty had contacted Mrs. PERSON . Moreover , at the time , this meant that it was absolutely impossible for the defendant - if the assignment in question was to obtain information - to know whether or not Pauty had carried out the assignment . The defendant ’s reply is meaningless unless he knew that the job had not been done , and he could not have known this unless the matter was public knowledge , for example because it had appeared in the press - which NORP mentions , moreover . This consideration on its own lends credence to ORG version . But there is also all the other evidence before the court : the unbelievably elaborate precautions taken by the defendant ; the fact that for DATE the defendant had had to pay an allowance to his wife although her misconduct , which the defendant was aware of but unable to prove , would probably have dictated a different assessment of the position ; the fact that the agreement on ancillary matters was about to confirm that situation ; the utter improbability of anyone ’s wanting to send a man who claimed to be a former member of ORG and who lacked training , culture and ability to GPE , and then to GPE , to obtain relatively innocuous information which was in any event of dubious relevance for the purpose of the divorce proceedings ; the fact that after the failure of the [ HR ] assignment and the assignment in GPE - from where GPE could at least have been expected to return with the information whether PERSON had or had not had a house built - there was no reason to send GPE to GPE , where he had no contacts ; the fact that the defendant had spent QUANTITY to obtain ( if his version of events is accepted ) very innocuous information ; and , finally , the fact that at no time has the defendant taken any steps to lodge a complaint of malicious accusation .

The defendant stated that he had no motive to kill [ HR ] . But objectively he scarcely had any greater motive for having him beaten up DATE after an alleged affront , anonymously and at a time when new commercial negotiations had begun . The fact that the private detectives he had employed had not yielded particularly good results did not mean that some kind of legionnaire who was more or less a police informer would be able to do any better . An intelligent person - and the accused is intelligent - does not replace the intelligence officer of a battalion with the commander of a company of grenadiers . The fact that the divorce proceedings were about to reach a conclusion did not alter the fact that a relationship established after DATE of separation would have very little effect on the amount of maintenance or the fact that the moment when it would be necessary to liquidate joint assets and pay an allowance which PERSON knew to have been obtained unjustly was approaching . The fact that Pauty did not receive a large advance is not decisive , since it is not difficult to appreciate that PERSON wanted to see results before paying . This mistrust might moreover explain why Pauty changed sides . The defendant considered it inconceivable that Pauty should not have received a large advance , seeing that he had no means of finding ORG , of whose identity he was unaware . That would be true if there had been only a single assignment , but not in the case of several . Moreover , the argument applies equally to an assignment to obtain information . It may be noted in passing that if it had been a question merely of information , it would not have mattered if Pauty had come to GPE in DATE in which Mrs. PERSON ’s daughter was due to give birth .

The defendant put forward other suppositions , namely that Pauty tampered with the recording and used it to some extent with Mrs. PERSON ’s co - operation . There is , however , no evidence to support this theory . It should further be noted in connection with the recording that the defendant , who is hard of hearing ( he suffers from a PERCENT hearing loss ) , claimed that he did not understand what Pauty said on the telephone . This assertion is not consistent with the defendant ’s concise and clear questions and replies , or with the fact that he never said that he had not heard or that he had misheard what Pauty said to him . On the basis of all these considerations , therefore , the court has reached the conclusion that in regard to Mrs. PERSON the assignment given to GPE was to kill her .

In the case of [ E ] , no steps were taken to carry out the assignment of giving him a beating . As far as [ HR ] is concerned , the court has been unable to reach a conclusion .

The investigation into the charges against the defendant ended in a finding that there was no case to answer . On appeal by the prosecution , the defendant was committed for trial at FAC . During the investigation he was held on remand for DATE .

Information obtained regarding the defendant ’s character is favourable . He is well known and respected in ORG . He is extremely wealthy . He has never had any dealings with the police and has never been convicted . "

ORG The applicant appealed on points of law . He complained in particular of the recording , arguing that it had been obtained unlawfully , after the investigation had commenced and with the aim of securing prosecution evidence ; moreover , its use contravened the criminal law and it had played a part as direct evidence in the trial .

In a preliminary submission on DATE , ORG of the GPE of GPE contended that the court should dismiss the appeal . He expressed the view that " the disputed recording [ had been ] made in the context of criminal proceedings and at the request of police officers " . He did not provide any additional information on this point .

ORG On DATE , ORG of ORG dismissed the appeal on the following grounds :

" The impugned judgment states expressly that the trial court relied partly on the disputed recording . Moreover , there is no doubt that the recording was such as to have a perhaps decisive influence , or at the least a not inconsiderable one , on the outcome of the criminal proceedings .

Criminal procedure is subject to the inquisitorial principle , the aim of the trial being , by getting as close as possible to what actually happened , to establish the facts of the case and then to apply the law to the facts found . That being so , it is not possible to exclude automatically all evidence whose source is unlawful or criminal . However , the quest for the truth should not be carried out at the expense of disregarding principles which are sometimes more important ( Walder , ‘ GPE erlangte ORG i m Strafprozess’ , RPS [ Revue pénale GPE ] DATE , pp . CARDINAL et seq . ) . In ORG ’s view ( Initiation à la justice pénale en GPE , p. CARDINAL , no . CARDINAL ) , justice must be administered in accordance with the rules of good faith .

According to precedent , which is scarce , the use of evidence which has been obtained unlawfully is excluded only where such evidence could not have been obtained under the existing law , but not where only a procedural rule has been infringed which was neither intended nor apt to prevent the search for evidence ( RO [ Judgments of ORG ] CARDINAL I CARDINAL , c. CARDINAL b , ORG ] DATE I CARDINAL summary ; PERSON GPE CARDINAL = ORG CARDINAL PERSON ; GPE , CARDINAL.CARDINAL.CARDINAL ; PERSON [ ORG of the GPE of GPE ] ; ORG [ ORG ] DATE , no . CARDINAL , p. CARDINAL ; PERSON [ Court of Cassation of the GPE of GPE ] ; ORG [ Blätter für FAC ] DATE , no . DATE , pp . CARDINAL et seq . ) . But the distinction between unlawfulness and procedural irregularity is often a fine one ( PERSON , ‘ Probleme und Tendenzen i m Strafprozess’ , RPS DATE , pp . CARDINAL , CARDINAL ) .

The criterion established by precedent has been considered unsatisfactory by academic opinion ( PERSON , op . cit . , p. CARDINAL ; PERSON , ORG . GPE , p.CARDINAL ; PERSON , ‘ GPE erlangte ORG i m Strafprozess’ , RPS DATE , pp . CARDINAL et seq . ; ORG verfassungsmässigen bundesrechtlichen GPE i m einzelstaatlichen Strafprozess , thesis , GPE , DATE , p. CARDINAL ) .

In any event , as far as the admissibility of evidence is concerned , it is not decisive that it has been obtained by means of a criminal offence .

ORG notes that as a general rule it is not so much the evidence as such as the manner in which the evidence has been obtained which may preclude its use ( p. CARDINAL ) . He distinguishes between the infringement of an important right and that of a purely procedural requirement , and between evidence obtained judicially and evidence obtained extrajudicially ( p. CARDINAL ) . In his view , certain evidence can not be used directly , although its indirect use , i.e. the use of evidence obtained as a result of it , is possible ( p. CARDINAL ) , or at least the use which has been made of evidence obtained unlawfully can not be disregarded ( p. CARDINAL ) . PERSON concludes that it is necessary to consider each case individually to determine whether the unlawfulness in question is so serious that the illegally obtained evidence can not be used ; this can be done only by weighing up the interests and rights at stake ( p. CARDINAL ) . Thus , in this author ’s view , it is entirely permissible to use information regarding the commission of a serious crime which has been obtained in breach , for example , of statutory provisions on telephones ( p. CARDINAL ) .

In ORG view ( PERSON , p. CARDINAL ) , it is necessary to assess the rules under which evidence may be excluded as inadmissible in terms of what they were intended to protect . Evidence obtained in breach of a prohibition designed to obviate risks associated with establishing the truth - such as an extorted confession - must be excluded .

Generally speaking , it is accepted that the investigating authorities are prohibited from using coercion or threats , or from resorting to false statements or misleading questions ( PERSON , ORG . GPE , p. CARDINAL ; PERSON , PERSON , p. CARDINAL , para . CARDINAL II CARDINAL , and p. CARDINAL , para . QUANTITY ; Walder , op . cit . , p. CARDINAL ) .

Examination of the foregoing in the light of Article CARDINAL para . CARDINAL ( article CARDINAL ) of LAW , under which an accused may not be convicted unless proved guilty according to law , does not give rise to any different distinctions ( see in particular GPE , GPE protection de l’accusé par la FAC , pp . CARDINAL et seq . ) . According to Article CARDINAL para . CARDINAL ( article LAW ORG [ ORG ] , interference by a public authority with private life or with correspondence is permissible only where it is in accordance with the law and is necessary in a NORP society in the interests of , inter alia , public safety and the prevention of disorder or crime .

In the PERSON judgment of DATE , ORG took the view that the existence of some legislation granting powers of secret surveillance over the mail , post and telecommunications is , under exceptional conditions , necessary in a NORP society . It recognised that , as regards the fixing of the conditions under which the system of surveillance was to be operated , the legislature enjoyed a certain discretion ( ORG A , no . CARDINAL , paras . CARDINAL and DATE , p. CARDINAL ; see the arguments before ORG of ORG , pp . CARDINAL et seq . , esp . pp . CARDINAL et seq . ) .

In an earlier case , ORG took the view , on CARDINAL DATE , that the tape recording of a private conversation unbeknown to the participants or CARDINAL of them constituted in principle an interference with privacy but that the use by the court of the recording in evidence did not infringe the right to a fair trial guaranteed in Article CARDINAL para . CARDINAL ( article CARDINAL ) of ORG DATE , pp . CARDINAL et seq . ) . The Commission expressed the same view ( ORG DATE , pp . CARDINAL et seq . ) .

More recently , ORG observed in a NORP case that the fact that the authorities charged with the telephone tapping generally did not fully respect the directives given to them - however regrettable it might be - did not by itself constitute a violation of the Convention , in particular of Article CARDINAL para . CARDINAL ( article LAW ( DATE , Decisions and Reports no . CARDINAL , p. CARDINAL ) .

It is worth noting further that the ORG has accepted , firstly , that police officers may take confidential information from persons with a legitimate interest in remaining anonymous , failing which much information needed if crimes are to be punished would never be brought to the knowledge of the prosecuting authorities ; and , secondly , that the statements of an informant could be taken into consideration where the jury ’s attention had been drawn to the status of a statement which was not corroborated under oath during the proceedings in court and where the accused had been able to produce in court various witnesses who denied that the events in question had occurred ( CARDINAL DATE , Decisions and Reports no . CARDINAL , pp . CARDINAL et seq . ) .

It may be inferred from the foregoing that the view taken by the institutions responsible for the application of the ORG is no stricter than the one adopted by ORG in the decisions cited .

The rules set out and discussed here , which concern the investigating authorities , can not as such apply to evidence unlawfully obtained by private individuals . Certain methods which are unacceptable in the case of the former are not necessarily so in the case of the latter ( Walder , op . cit . , p. CARDINAL ) . Academic writers accept , for example , that a victim of threats or blackmail may be compelled , where evidence of the fact is otherwise difficult to obtain , to make a secret recording of the perpetrator ’s statements ( ORG , p. CARDINAL ; Walder , op . cit . , p. CARDINAL ) . As regards the acts of a private investigator , opinion is divided . PERSON considers that there are no grounds for distinguishing such investigators from official ones , since the dangers of falsifying facts are even greater ( PERSON , p. CARDINAL ) . Previous decisions of the courts have left the question open ( RO CARDINAL V CARDINAL ; FAC , CARDINAL ; ORG DATE no . CARDINAL , CARDINAL , p. CARDINAL ) .

It would have been unlawful for the police to record a telephone conversation in GPE without the authorisation of a judge . However , such authorisation could have been granted , since the investigation was instituted as a result of a serious criminal offence , by virtue of Art . CARDINAL octies ORG . The disputed recording does not in itself constitute prohibited evidence either under NORP law or under the rules laid down by ORG . It may be conceded to the appellant that even in the absence of any complaint , the private recording of GPE ’s telephone conversation with the defendant amounts to an offence in itself ( RO CARDINAL IV CARDINAL CARDINALa , PERSON ) . On the other hand , the rule that was infringed - Art . CARDINAL bis ORG - protects individual privacy and is not designed to eliminate the risk of mistake .

Moreover , if regard is had to the balance of the interests and rights at stake , as ORG recommends , it must be recognised that the difference between authorised tapping and unauthorised recording is not in itself sufficient to justify attaching greater importance to the protection of privacy than to the public interest in exposing a person guilty of a serious crime .

The method used by Pauty to obtain the appellant ’s incriminating statements is undoubtedly contrary to the rules of good faith , since it consisted in stating untruthfully that the killer ’s assignment had been carried out , which amounted to ORG laying a trap for his interlocutor . However , although any attempt by the authorities to incite a person to commit an offence is open to censure , the stratagem of inducing an offender to confess to a crime is not ( PERSON , ‘ PERSON moeurs de la police et la PERSON , in Varia Juridica CARDINAL , esp . p. CARDINAL ) . Thus the use of violence or even deceit to obtain a statement is unlawful but , on the other hand , it is permissible to use a trick ( PERSON , op . cit . , p. CARDINAL ) . Such a practice is common on the part of the authorities where , for example , the lives of hostages are in danger . Besides , a given method might be legitimate in CARDINAL case and immoral in another ( op . cit . , p. CARDINAL ) .

It follows that the means used in this case remained within the limits of what is acceptable for the purposes of combating crime . In any event , the deceit concerned only one matter , namely the performance of the act contemplated .

In sum , the contested evidence is admissible under NORP law and does not infringe the appellant ’s fundamental rights . Although the recording was made and acquired by the police in GPE , it is unnecessary to consider any more extensive rights which might exist under foreign law . After all , GPE also allows telephone tapping and the recording of telephone conversations , even though LAW Criminal Code likewise penalises such recording where it is not authorised by the competent authority ( PERSON , ORG pénale , DATE , p. CARDINAL , ORG . CARDINAL para . CARDINAL and CARDINAL para . CARDINAL of LAW ) . Furthermore , although in GPE attempted incitement is not an offence , it would have been possible under LAW of DATE , to which GPE and GPE have acceded , for GPE to issue letters rogatory requesting such monitoring . Unlike GPE , GPE has not made a reservation whereby execution of any letters rogatory requiring a coercive measure is conditional on the alleged offence ’s being punishable in both the requesting and the requested country . Telephone monitoring is regarded as equivalent to such a measure ( ORG PERSON GPE in GPE , GPE thesis , DATE , p. CARDINAL ) .

The appellant argues further that authorised tapping would have provided all the necessary safeguards as to the accuracy and completeness of the recording . An authorised recording inevitably constitutes more weighty evidence than a private recording , in view of the risk of faking in the second case . However , in this instance the circumstances of the recording were known and an expert report , for the purpose of which the cassette and the recorder had been examined , was made available to the court . The court also knew how much time had elapsed between the recording and the handing over of the recorded tape to the police . It was thus able to assess the value of the evidence having regard to its authenticity .

The use of a trick or subterfuge is similarly liable to affect the weight attributed to statements obtained in such a manner . The trial court was , however , in a position to assess the weight to be attached to the defendant ’s statements in the light of such a manner of proceeding , as the recording moreover reproduced a complete telephone conversation . In this respect too the contested evidence is admissible . "

ORG Mr. PERSON lodged a public - law appeal and an application for a declaration of nullity with ORG against the judgment of ORG . Both were founded on the same complaints regarding the disputed recording . The applicant claimed in substance that the recording was unlawful ; that ORG should therefore have ruled it inadmissible as evidence ; and that in not so doing , the court had infringed in particular LAW , paragraph CARDINAL , of the LAW , which guarantees the secrecy of communications , LAW implementing LAW of DATE and ORG CARDINAL para . CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL) of the Convention .

ORG On DATE , ORG ) dismissed the public - law appeal on the following grounds :

" ( a ) It can be accepted that the ingredients of an offence under Art . CARDINAL ter CC were present as far as the disputed recording is concerned . However , Pauty made the recording in order to prove the truth of his statements at a time when he was under investigation for attempted murder . If a complaint had been lodged under Art . CARDINAL ter , it is not certain that the proceedings would have resulted in the imposition of a sentence . But this question can remain open . The provisions of LAW and of the VACC LAW implementing LAW ] concerning telephone tapping define lawful and unlawful tapping and fix the penalties for the latter . They contain no rules for determining the validity of such tapping as evidence at a trial .

( b ) It is true that NORP law authorises infringement of personal rights and of the confidentiality of communications in the form of telephone tapping only where such a measure has been ordered by the competent authority and approved by a judge . To conclude from this that any evidence derived from unauthorised tapping must never in any circumstances be used in evidence would be to adopt too dogmatic a position and would often lead to absurd results ( see PERSON , ‘ GPE erlangte ORG i m Strafprozessrecht’ , in DATE , pp . CARDINAL et seq . , and PERSON , ‘ ORG und Entwicklungstendenzen der Lehre von den strafprozessualen ORG , in GPE die gesamte DATE , pp . CARDINAL et seq . , esp . p. CARDINAL ; see also PERSON , ‘ PERSON zum gegenwärtigen Stand der PERSON Beweisverboten i m Strafverfahren’ , in GPE juristische PERSON , p. CARDINAL ) . In such a case it is necessary to balance , on the one hand , the interest of the ORG in having a specific suspicion confirmed or disproved and , on the other , the legitimate interest of the person concerned in the protection of his personal rights . To this end , all the relevant circumstances should be taken into consideration .

In GPE , ORG has reached the same conclusion . In a case where a person was suspected of having committed offences involving tax evasion , fraud and forgery of documents , the court refused to attach any probative weight to a recording made privately . It considered , however , that the position would have been different if there had been an imperative community interest at stake which took precedence over the private interest of the person concerned ; thus it held that it would not generally be contrary to constitutional law , in cases of necessity , to allow the authorities to use a recording that had been made by CARDINAL party and which could lead to the identification of a criminal or exculpate a person who had been wrongly accused , where serious offences were involved , such as offences against the person , serious attacks on the constitutional order and democratic freedoms , and offences against legally protected interests of the same order ( Entscheidungen des Bundesverfassungsgerichts DATE - pp . CARDINAL et seq . , esp . CARDINAL ) .

In the instant case , it is necessary to weigh , on the one hand , the interest in confirming or proving unfounded the specific suspicions that PERSON was guilty of incitement to murder and , on the other , PERSON ’s interest in preserving the confidentiality of his conversation with Pauty . The conclusion is inescapable that the public interest in having the truth established in the matter of an offence relating to murder overrides PERSON ’s interest in maintaining the confidentiality of a telephone conversation which in no way bore upon his privacy but related exclusively to the completion of an assignment entrusted to GPE . The need to protect a person ’s privacy can not have the effect of making such a recording inadmissible as evidence in criminal proceedings when there are strong suspicions concerning a very serious offence ( see PERSON , op . cit . , DATE , pp . CARDINAL et seq . ) .

Moreover , it is relevant to point out that NORP law authorises tapping the telephone of an individual suspected of involvement in a crime . Admittedly , such tapping is subject to authorisation by a judge , but the recording of a conversation is not , as such , evidence which the ORG would have refrained from using as a matter of principle and in order to protect the higher interests of the individual . This type of evidence can not be compared with a truth drug , coercion or torture , which are absolutely prohibited as a matter of public policy . Accordingly , there would have been no legal bar to prevent the same recording , made in GPE on the line of the telephone kiosk in the hospital where PERSON was staying , from being lawful and being admitted in evidence . It follows that an infringement of personal rights which does not amount to a breach of the LAW under NORP law - when certain conditions are satisfied - may be classified as minor where it could have been ordered under Art . CARDINAL octies para . CARDINAL CC ( see ORG [ Judgments of ORG ] CARDINAL I CARDINAL ) .

( c ) In this case , as PERSON was strongly suspected of having participated in a crime intended to result in a person ’s death ; as the judge would have been entitled to order that his conversation of CARDINAL DATE with Pauty should be recorded ; as it was the latter who made such a recording while under investigation for attempted murder with or without premeditation ; and as the conversation did not concern facts of an intimate nature , the [ FAC was entitled to refuse to rule the tape inadmissible in evidence and could assess it as evidence without infringing NORP constitutional law . Nor , in so doing , did that court infringe ORG . CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL) ORG . " ( Judgments of ORG , vol . CARDINAL , part I , pp . CARDINAL - CARDINAL )

ORG Also on DATE , ORG ) dismissed the application for a declaration of nullity . In particular , it declared inadmissible the submission based on the playing of the telephone recording to ORG : it held that this issue related to the introduction of evidence , which was governed by cantonal procedure .

ORG On DATE , Mr. PERSON applied for a stay of execution of his sentence on health grounds . The Head of ORG , ORG rejected this application on DATE , whereupon the applicant lodged an administrative - law appeal , which was dismissed by ORG on DATE .

ORG In DATE , the applicant was transferred to ORG geriatric hospital to complete his sentence .

On DATE , he was granted a partial pardon by ORG of the GPE of GPE whereby the remainder of his sentence was remitted , having regard in particular to the state of his health . He was released on DATE .

ORG LAW contains the following provisions relating to telephone tapping :

" A person who , without the consent of all the participants , has listened to by means of a listening device or recorded on a recording apparatus a private conversation between other persons ; or

a person who has used or made known to a third party a fact when he knew or should have assumed that his own knowledge of this fact had been obtained by means of an offence under the first paragraph ; or

a person who has kept or made available to a third party a recording which he knew or should have assumed had been made by means of an offence under the first paragraph

shall be liable to imprisonment or a fine , if a complaint is made . "

" A person who , without the consent of the other participants , has recorded on a recording apparatus a private conversation in which he took part ; or

a person who has kept a recording which he knew or should have assumed had been made by means of an offence under the first paragraph , or who has used such a recording for his own benefit or has made it available to a third party

shall be liable to a period of imprisonment not exceeding DATE or a fine , if a complaint is made . "

" The following shall not be guilty of an offence under the first paragraph of LAW first paragraph of LAW

a person who has , by means of a telephone or accessory equipment authorised by the telephone company , listened to , or who has recorded on a recording apparatus , a conversation transmitted by telephone equipment controlled by the telephone authority ;

a person who has , by means of a telephone or accessory equipment connected to the main installation , listened to , or who has recorded on a recording apparatus , a conversation transmitted by equipment not controlled by the telephone authority . "

" No offence is committed where a person by the express authorisation of the law orders official monitoring of postal , telephone or telegraphic communications of specified persons or orders the use of monitoring devices ( Articles CARDINAL bis et seq . ) , provided that he immediately seeks the approval of the competent judge .

The approval referred to in the first paragraph may be given in order to investigate or prevent a crime or an offence whose seriousness or special nature justifies the proposed action , or an offence committed by means of the telephone . "

ORG LAW provides that the Code may be applicable to offences committed abroad against NORP nationals :

" The present Code shall be applicable to anyone committing an offence abroad against a NORP national , provided that the offence is punishable also in the ORG in which it was committed , where the offender is in GPE and is not extradited abroad or where he is extradited to the ORG on account of the offence . The foreign law shall , however , apply if it is more favourable to the person charged with the offence .

The offender shall no longer be punishable on account of his offence if he has undergone the penalty imposed on him abroad or if he has been granted remission of sentence or if the penalty is time - barred .

Where he has not undergone abroad the penalty imposed on him , it shall be undergone in GPE ; if he has undergone abroad only part of the penalty , the remainder shall be undergone in GPE . "


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by PERSON , a lawyer practising in GPE .

At the material time the applicant was an editor - in - chief of a local DATE “ PERSON ” .

Apparently , on an unspecified date a municipal authority allocated certain municipal apartment to CARDINAL of the local councillors , which caused widespread indignation in the local community .

On DATE the weekly published an article in which the applicant reported on a conflict between GPE , CARDINAL of the local councillors , and the director of the local social assistance centre . The article contained a statement that “ FAC had instigated CARDINAL or CARDINAL supervision procedures in respect of the centre ” and that his activities concerning the centre had been aimed at “ delaying a public explanation of the conflict [ between GPE and the director of the centre ] to the constituency ” .

On DATE the DATE published an article entitled “ Turning Things On Their Head ” ( “ ORG ogonem ” ) in which certain disagreements between FAC and the director of the centre as to the policy which should be followed by that centre were described .

On DATE the weekly published another article , reporting on a session of ORG , during which a motion to remove ORG from his post of a member of the municipal executive board had been discussed . The article quoted certain arguments advanced by the councillors during the debate , referring to the lawfulness of the procedure and to various local controversies as they found their expression during the debates . It also summarised PERSON statements in the following way :

“ Consistent ” J.C. once again presented his arguments . ( ... ) He reiterated his objections concerning ORG , threw in , for good measure , “ a municipal apartment for CARDINAL councillor ” , [ an issue of ] LOC for the “ PERSON ” – which he branded a “ gang ” . Many supervision procedures found his complaints about the FAC groundless , and [ the question of the apartment and the LOC ] he had invented himself ! Nothing like that had ever occurred . ”

Another article on local politics , entitled “ What ’s up ” , was published on DATE . In this article its author reported on the last meeting of the local municipal council and also purported to explain to the reader the subtleties of the local politics and personal conflicts behind them .

Following these publications ORG lodged a private bill of indictment with ORG , charging the applicant with defamation in that he had published CARDINAL articles blackening the plaintiff ’s reputation .

In a judgment of DATE that court found that the applicant had committed a criminal offence of defamation punishable under LAW of DATE and conditionally discontinued the proceedings , fixing a probation period of DATE . It also obliged the applicant to apologise to the plaintiff in writing .

The operative part of the judgment read as follows :

“ Having regard to the fact that the publication in DATE in issues ORG . CARDINAL and CARDINAL of PERSON , a DATE of which [ ORG ] was an editor , of articles “ A. against ORG and “ What ’s up ” containing untrue information that GPE , who in the present case acted as a private prosecutor , had invented the issue of the [ municipal ] apartment and that he had ‘ himself acknowledged that he had overstepped the limits of his competence by conducting many investigations on behalf of ORG , but without a relevant authorisation’ amounted to making public such allegations about the plaintiff ’s conduct as could expose him to a risk of losing the public trust necessary for him to carry out his public function , amounted to a criminal offence provided for by LAW

discontinues the criminal proceedings against the accused and sets the period of probation for DATE . ”

The court observed that the applicant had published in the DATE a number of articles on local politics . They were aggressive towards PERSON and had shown him in a bad light . It was suggested that he had a tendency to fantasise and to overstep the limits of his competence . It was also implied that he was vexatious and unreliable and had abused his powers . The texts and the charges contained therein could therefore expose FAC to the risk of lowering him in public opinion .

The court referred to the sub - titles of the text published on CARDINAL DATE , which had read as follows : “ PERSON forgot ! ” , “ Personal ambitions are at play here ” , “ Detrimental to the interests of the municipality ” , “ He invented it himself ! ” . The court observed that these sub - titles well conveyed the essence of the author ’s hostility towards GPE

The court noted that the article had made reference to some municipal apartment . It further noted that it was aware of the fact that a municipal apartment had in the past been assigned to CARDINAL of the local politicians , a fact which created an uproar in GPE . The applicant had undoubtedly taken a certain shortcut when saying in the article of DATE :

“ [ the question of the apartment and premises ] he had invented himself ! Nothing like that had ever occurred . ”

In this connection , the court referred to numerous pieces of evidence referring to the public debate concerning that apartment and concluded that in the light of this evidence the suggestion that ORG had invented the whole story of the apartment was clearly erroneous .

The court further observed that subsequently , on DATE , the DATE had published an article entitled “ What ’s up ” , purported to explain to the reader the subtleties of the local politics . The article had contained the following statement on J.C :

“ He had himself admitted that he had overstepped his powers , having conducted many investigations on behalf of the municipal authorities , but without any relevant authorisation ” .

The court observed that ORG had never admitted that he had been conducting any such investigations which could be established , for example , from TIME of the session of the municipal council held on DATE . Hence , the reference to both the alleged non - authorised investigations and to the admission that he had allegedly overstepped his powers was clearly untrue . Having regard thereto , the court considered that the applicant had failed to observe his fundamental obligation as a journalist , in particular in that he had failed to check the veracity of information he had published . In the proceedings before the court he was unable to refer to any source on which he had based his pertinent statements . It was open to him to consult the detailed records of the sessions of the local council , which he had failed to do .

In the absence of convincing evidence to support the applicant ’s allegations and innuendos , the court concluded that when publishing the first CARDINAL articles he had published untrue information , which amounted to a criminal offence of defamation punishable under LAW .

Referring to the conditional discontinuation of criminal proceedings , the court observed that the offence was not dangerous and that the applicant did not have any criminal record .

The applicant appealed , submitting , inter alia , that the judgment amounted to a breach of his freedom of expression .

On DATE the ORG dismissed his appeal , considering that the assessment of the evidence by the lower court was not arbitrary . It observed that the applicant had failed to show that he had any factual basis for his allegations when publishing the articles . No evidence had been submitted to the court to show that ORG had indeed admitted that he had overstepped the limits of his competence , as the applicant implied in the first article . Nor was it true that ORG had invented the issue of the municipal apartment having been assigned to CARDINAL local politician . The published statements being untrue , they amounted to defamation .

The court also noted that under the case - law of ORG freedom of expression covered the transmission of information but not of misinformation ; conveying facts , not mendacious innuendos . Lastly , the court observed that the appeal referred to the applicant ’s notes prepared for the purpose of writing the articles , but that the case was limited to the examination of the texts as they were eventually published , i.e to the untrue and laconic phrases used in the articles .

On DATE ORG , in a decision to which under applicable provisions of law no written grounds were prepared , dismissed the cassation appeal as manifestly ill - founded .

Under LAW of LAW of DATE , applicable at the material time , whoever disseminated untrue statements about another person ’s acts or character with an intention of lowering him or her in public esteem or of making him or her lose the public trust necessary for that person to carry out his or her public functions , committed a criminal offence punishable by a prison sentence of DATE .

Pursuant to LAW , criminal proceedings could be conditionally discontinued , if the seriousness of the offence , punishable by a prison sentence of DATE , was not significant , if the circumstances in which it had been committed had been established , if the perpetrator did not have a criminal record and if his personal circumstances and qualities justified a conclusion that he would respect the legal order during the probation period .

Under LAW , the court , when deciding to discontinue the proceedings for the probation period , could impose certain obligations on the accused : to pay appropriate compensation to the victim of the offence , to apologise to him / her , or to carry out certain work in the public interest .

Under LAW , the court could fix a probation period of DATE , running from the date on which the judgment became final .

Criminal proceedings could be resumed if during the probation period the offender disregarded the obligations imposed by the court , acted in flagrant breach of public order , or , in particular , committed a new criminal offence .


Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE , GPE .

On DATE a criminal case was opened against him , along with some other persons , on suspicion of trafficking in human beings , and on CARDINAL DATE the applicant was arrested .

On DATE ORG ( “ the Kyivskyy Court ” ) released him subject to an undertaking not to abscond .

On DATE the pre - trial investigation was declared complete and the case was sent to the trial court , which commenced the proceedings on DATE .

On DATE ORG , in a hearing in which the victims ' representative took part , allowed the prosecutor 's application for the applicant 's ( as well as the other co - defendant ) remand in custody . The court agreed with the prosecutor 's argument that the applicant had been putting pressure on the victims , which had led to changes in their testimonies . According to the applicant , his own argument , on which the court allegedly failed to comment , was that the changes in the victims ' statements in the court might have been explained by the investigator 's pressure on them in the course of the pre - trial investigation , which they were not any longer subjected to during the trial . The applicant was arrested in the hearing room .

He repeatedly and unsuccessfully requested to be released under an undertaking not to abscond . The applicant argued that there was no evidence of his guilt , that he had never faced any criminal charges before and had received some government awards . Furthermore , he referred to the facts that he had a permanent place of residence and elderly parents to take care of , and that his health had deteriorated in detention .

On DATE , CARDINAL and DATE , CARDINAL TIME and DATE ORG rejected the applicant 's requests for release . The reasoning of those rulings was practically identical . The court supported the prosecutor 's opinion , which referred to the serious nature of the charges against the applicant and an inherent risk of his absconding . It further noted :

“ The court considers that the issue of changing the preventive measure is premature . The issue of the preventive measure [ “ of the penalty ” – in the rulings of DATE and DATE ] will be resolved when the verdict is pronounced in the case and [ the applicant ] is convicted or acquitted . ”

NORP The applicant unsuccessfully complained about the length of the trial to ORG , to ORG and to various other authorities . He was informed in reply that it was caused by the complexity of the case and the large number of victims , as well as by the need to handle numerous requests and petitions from the applicant .

On DATE ORG found the applicant guilty of trafficking in human beings and production and distribution of pornographic materials , and sentenced him to DATE imprisonment , with prohibition on working in any film , video or computer programme production and distribution area .

Overall , ORG held over DATE hearings . It issued rulings requiring the presence of the victims and witnesses , enforceable by the police , on some ten occasions .

On DATE ORG quashed that verdict and remitted the case to the same first - instance court for fresh examination . The main point of criticism was the vagueness of the verdict , including , in particular , the charges against the co - defendants , the classification of the films in which the victims had appeared as pornographic , and the conclusions that the victims had been both deceived and coerced by the co - defendants . The appellate court made a general conclusion that the investigation of the case by the first - instance court had been unbalanced and incomplete . It released the co - defendants under an undertaking not to abscond .

On DATE ORG decided to examine the case itself as a court of first instance .

On DATE it remitted the case to ORG for additional investigation .

On DATE ORG quashed the ruling of DATE .

On DATE ORG started the examination of the case .

On DATE and DATE the court adjourned hearings on account of the applicant 's failure to attend .

On DATE it ordered the applicant 's remand in custody , examination of the case being stayed until his whereabouts had been established .

The case remains pending before ORG .

In his submissions to the ORG , the applicant admitted he had absconded and gave as the reason that he did not trust the NORP judiciary .

NORP The relevant legal provisions can be found in the PERSON v. GPE judgment , no . CARDINAL , § § DATE , CARDINAL DATE ) .


The applicant was born in DATE and lives in GPE .

NORP In DATE the applicant was dismissed from his job ; his former employer also required him to make certain payments in respect of damage allegedly caused while in service . The applicant challenged these measures before the courts as of DATE .

On DATE ORG dismissed his action . On DATE ORG quashed this decision and remitted the case .

The resumed proceedings were suspended on DATE pending the simultaneous criminal proceedings conducted against the applicant . After the termination of this case , the procedure restarted and ORG gave judgment on DATE , dismissing the applicant 's claims .

On appeal , on CARDINAL May CARDINAL ORG , in a partial judgment , accepted some of the applicant 's claims , holding that his dismissal had been unlawful and reducing the reimbursement payable .

NORP However , on DATE ORG reversed this decision , dismissed the applicant 's case and upheld ORG judgment . This decision was served on the applicant 's lawyer on DATE .


No violation of Art. 3;No violation of Art. 9;No violation of P1-2;Violation of Art. 13+P1-2;Violation of Art. 13+9;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The CARDINAL applicants are GPE ’s Witnesses . PERSON and PERSON are the parents of PERSON , who was born in DATE and is currently a pupil in DATE of ORG secondary education at a school at PERSON .

According to them , pacifism is a fundamental tenet of their religion and forbids any conduct or practice associated with war or violence , even indirectly . It is for this reason that ORG Witnesses refuse to carry out their military service or to take part in any events with military overtones .

At the start of DATE Mr and PERSON submitted a written declaration in order that their daughter PERSON , then DATE , should be exempted from attending school religious - education lessons , NORP Mass and any other event that was contrary to her religious beliefs , including national - DATE celebrations and public processions .

PERSON was exempted from attendance at religious - education lessons and NORP Mass.

In DATE , however , she , in common with the other pupils at her school , was asked to take part in the celebration of the National Day on DATE , when the outbreak of war between GPE and NORP GPE on DATE is commemorated with school and military parades .

On this occasion school parades take place in nearly all towns and villages . In the capital there is no military parade on DATE , and in LOC the school parade is held on a different day from the military parade . The school and military parades are only held simultaneously in a small number of municipalities .

PERSON refused to parade on account of her religious beliefs .

On DATE the ORG committee at her school punished her for her failure to attend with CARDINAL days’ suspension from school . That decision was taken in accordance with ORG no . CCARDINAL/CARDINAL/CARDINAL of DATE issued by ORG ( see paragraph CARDINAL below ) .

On DATE PERSON was again punished with suspension , for one day , on the ground that she had not taken part in the school parade held on DATE .

The CARDINAL Constitution contains the following provisions :

" CARDINAL . The dominant religion in GPE is that of ORG . ORG , which recognises as its head Our Lord PERSON , is indissolubly united , doctrinally , with FAC of GPE and with any other ORG in communion with it [ omodoxi ] , immutably observing , like the other Churches , the holy apostolic and synodical canons and the holy traditions . It is autocephalous and is administered by ORG , composed of all the bishops in office , and by the standing ORG , which is an emanation of it constituted as laid down in GPE and in accordance with the provisions of LAW of DATE and LAW of DATE .

The ecclesiastical regime in certain regions of the ORG shall not be deemed contrary to the provisions of the foregoing paragraph .

The text of ORG is unalterable . No official translation into any other form of language may be made without the prior consent of the autocephalous ORG and ORG at GPE . "

" CARDINAL . Freedom of conscience in religious matters is inviolable . The enjoyment of personal and political rights shall not depend on an individual ’s religious beliefs .

There shall be freedom to practise any known religion ; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law . The performance of rites of worship must not prejudice public order or public morals . Proselytism is prohibited .

The ministers of all known religions shall be subject to the same supervision by the ORG and to the same obligations to it as those of the dominant religion .

No one may be exempted from discharging his obligations to the ORG or refuse to comply with the law by reason of his religious convictions .

No oath may be required other than under a law which also determines the form of it . "

A royal decree of DATE entitled " Proclamation of the Independence of the Greek Church " described ORG as " autocephalous " . GPE ’s successive Constitutions have referred to the ORG as being " dominant " . According to NORP conceptions , ORG represents de jure and de facto the religion of the ORG itself , a good number of whose administrative and educational functions ( marriage and family law , compulsory religious instruction , oaths sworn by members of the Government , etc . ) it moreover carries out . Its role in public life is reflected by , among other things , the presence of the Minister of ORG and ORG at the sessions of the ORG hierarchy at which the Archbishop of GPE is elected and by the participation of the ORG authorities in all official ORG events ; the President of the Republic takes his oath of office according to NORP ritual ( Article CARDINAL para . CARDINAL of the LAW ) ; and the official calendar follows that of ORG .

Circular no . ORG DATE issued by ORG and ORG provides :

" Schoolchildren who are GPE ’s Witnesses shall be exempted from attending religious - education lessons , school prayers and GPE

In order for a schoolchild to benefit from this exemption , both parents ( or , in the case of divorced parents , the parent in whom parental authority has been vested by court order , or the person having custody of the child ) shall lodge a written declaration to the effect that they and their child ( or the child of whom they have custody ) are ORG .

No schoolchild shall be exempted from taking part in other school activities , such as national events . "

The relevant Articles of Presidential Decree no . CARDINAL of DATE and DATE are the following :

" CARDINAL . The behaviour of pupils inside and outside the school shall constitute their conduct , irrespective of the manner - by act or by omission - in which they express it .

Pupils shall be required to conduct themselves suitably , that is to say in accordance with the rules governing school life and the moral principles governing the social context in which they live , and any act or omission in contravention of the rules and principles in question shall be dealt with according to the procedures provided in the educational system and may , if necessary , give rise to the disciplinary measures provided in this decree . "

The disciplinary measures laid down in LAW are , in increasing order of severity , a warning , a reprimand , exclusion from lessons for TIME , suspension from school for DATE and transfer to another school .

" Suspended pupils may remain at school during teaching TIME and take part in various activities , under the responsibility of the headmaster . "

LAW provides :

" Any person , or persons acting jointly , shall be entitled , subject to compliance with the laws of the ORG , to submit written petitions to the authorities . The latter shall be required to act as quickly as possible in accordance with the provisions in force and to give the petitioner a reasoned written reply in accordance with the statutory provisions . "

LAW no . ORG provides :

" Once the authorities have received the petition [ provided for in LAW ] , they must reply in writing and give the petitioner all necessary explanations , within the time deemed absolutely necessary , which shall not exceed DATE from service of the petition . "

LAW is worded as follows :

" The following shall in principle lie within the jurisdiction of ORG :

( a ) the setting aside , on application , of enforceable acts of the administrative authorities for misuse of authority or error of law .

According to the settled case - law of ORG , " decisions of school authorities to impose on pupils the penalties provided in LAW no . CARDINAL/CARDINAL are intended to maintain the necessary discipline within schools and contribute to their smooth running ; they are internal measures which can not be enforced through the courts , and no application lies to have them set aside by the courts " ( judgments nos . CARDINAL/CARDINAL , DATE and DATE ) . Only transfer to another school has been held to be enforceable and amenable to being quashed by ORG ( judgment no . DATE ) .

Section CARDINAL of the Introductory Law to the Civil Code provides :

" The ORG shall be under a duty to make good any damage caused by the unlawful acts or omissions of its organs in the exercise of public authority , except where the unlawful act or omission is intended to serve the public interest . The person responsible shall be jointly and severally liable , without prejudice to the special provisions on ministerial responsibility . "

This section establishes the concept of a special prejudicial act in public law , creating State liability in tort . This liability results from unlawful acts or omissions . The acts concerned may be not only legal acts but also physical acts by the administrative authorities , including acts which are not in principle enforceable through the courts ( PERSON , Interpretation of the Civil Code , section CARDINAL of the Introductory Law to LAW , no . CARDINAL ; ORG , Contract , ORG , volume CARDINAL , Tort , DATE , para . CARDINAL B CARDINAL ; PERSON , ORG , CARDINALrd edition , para . CARDINAL ; ORG judgment no . CARDINAL , PERSON , DATE , p. CARDINAL ; ORG judgment no . CARDINAL/CARDINAL , PERSON , DATE , p. CARDINAL ) .

The admissibility of an action for damages is subject to CARDINAL condition , namely the unlawfulness of the act or omission .

LAW ( " Personal rights " ) provides :

" Any person whose personal rights are unlawfully infringed shall be entitled to bring proceedings to enforce cessation of the infringement and restraint of any future infringement . Where the personal rights infringed are those of a deceased person , the right to bring proceedings shall be vested in his spouse , descendants , ascendants , brothers , sisters and testamentary beneficiaries . In addition , claims for damages in accordance with the provisions relating to unlawful acts shall not be excluded . "


A.

The facts of the case , as submitted by the parties , may be summarised as follows .

The applicant is engaged in the retail sale of handguns in GPE . He paid £ CARDINAL for the goodwill of the business in DATE . The consequences of the DATE LAW legislation - LAW and the Firearms ( Amendment ) ( No . CARDINAL ) Act DATE ( “ LAW ; see below ) - are that the applicant is unable to derive handgun - related income from his business , and that the value of the goodwill and assets of the business has depreciated . The applicant received compensation pursuant to the legislative schemes in respect of his stock of handguns . No compensation is payable for the reduction in value of the applicant ’s business .

By DATE , MONEY had been paid to CARDINAL dealers under the compensation schemes , of a total of MONEY which had been paid to individuals , dealers and others . The ORG estimated the total costs which would be involved in paying compensation under the schemes to be MONEY .

B. Domestic law and practice

The Firearms Act DATE has been periodically amended since it was passed , and forms the basis of the current system of the control of firearms in GPE . LAW of DATE prohibits the possession , purchase , acquisition , manufacture , sale or transfer of the firearms there specified . LAW DATE ( “ LAW ” ) added large - calibre handguns to the class of prohibited firearms in section CARDINAL of the DATE Act .

Section CARDINAL of the Act of DATE , as amended by LAW , provided :

“ ( CARDINAL ) A person commits an offence if , without the authority of ORG , he has in his possession , or purchases or acquires , or manufactures , sells or transfers -

( aba ) any firearm which has a barrel length of QUANTITY in length or is QUANTITY in length overall , other than an air weapon , a small - calibre pistol , a muzzle - loading gun or a firearm designed as signalling apparatus . ”

The Firearms ( Amendment ) ( No . CARDINAL ) Act DATE ( “ LAW ” ; together with LAW , “ the CARDINAL Amendment Acts ” ) extended the scope of the prohibition in section CARDINAL to small - calibre pistols by declaring ( in section CARDINAL ) that the words “ a small - calibre pistol ” in section CARDINAL ) of LAW as amended by LAW should cease to have effect .

LAW provides as follows , so far as material :

“ CARDINAL Surrender of prohibited small firearms and munitions

( CARDINAL ) The Secretary of ORG may make such arrangements as he thinks fit to secure the orderly surrender at designated police stations of firearms or ammunition the possession of which will become or has become unlawful by virtue of CARDINAL or CARDINAL above .

CARDINAL Payments in respect of prohibited small firearms and ammunition

( CARDINAL ) The Secretary of ORG shall , in accordance with a scheme made by him , make payments in respect of firearms and ammunition surrendered at designated police stations in accordance with the arrangements made by him under section CARDINAL above .

( CARDINAL ) A scheme under subsection ( CARDINAL ) above shall provide only for the making of payments to persons making claims for such payments in respect of firearms or ammunition -

( a ) which they had , and were entitled to have in their possession on or immediately before DATE by virtue of firearms certificates held by them or by virtue of their being registered firearms dealers ; or

( b ) which on or before that date they had contracted to acquire and were entitled to have in their possession after that date by virtue of such certificates held by them or by virtue of their being registered firearms dealers ,

and their possession of which will become , or has become , unlawful by virtue of section CARDINAL(CARDINAL ) or CARDINAL above .

CARDINAL Payments in respect of ancillary equipment

( CARDINAL ) The Secretary of ORG shall , in accordance with any scheme which may be made by him , make payments in respect of ancillary equipment of any description specified in the scheme .

( CARDINAL ) For the purposes of subsection ( CARDINAL ) above , ‘ ancillary equipment’ means equipment , other than prohibited ammunition , which-

( a ) is designed or adapted for use in connection with firearms prohibited by virtue of section CARDINAL(CARDINAL ) above ; and

( b ) has no practicable use in connection with any firearm which is not a prohibited weapon .

( CARDINAL ) A scheme under subsection ( CARDINAL ) above shall provide only for the making of payments to persons making claims for such payments in respect of ancillary equipment-

( a ) which they had in their possession on DATE ; or

( b ) which they had in their possession after DATE , having purchased it by virtue of a contract entered into before that date .

CARDINAL Parliamentary control of compensation schemes

( CARDINAL ) Before making a compensation scheme the Secretary of ORG shall lay a draft of it before ORG .

( CARDINAL ) The Secretary of ORG shall not make the scheme unless the draft has been approved by resolution of each ORG .

( CARDINAL ) This section applies to any alteration to the scheme as it applies to a compensation scheme .

( CARDINAL ) In this section ‘ compensation scheme’ means a scheme under LAW ... above . ”

The Firearms ( Amendment ) Act CARDINAL Compensation Scheme ( “ the First Scheme ” ) was laid in draft before ORG and approved by resolution of both ORG . It was made on DATE . The First Scheme provided compensation for the large - calibre handguns themselves , for prohibited expanding ammunition and for certain ancillary equipment . There were CARDINAL options for claiming compensation : Option A , a flat rate payment for individual items , Option B , a payment for an individual item at the price in the list of values annexed to the First Scheme and Option C , a payment based on the market value of an individual item at or immediately before DATE ( the date of the announcement by the Government of their response to , and legislative intention following , ORG ) .

Under Option A , a payment of £ MONEY could be claimed for each large - calibre handgun . Under Option B , a payment could be claimed which was based on average retail values on DATE , reduced by PERCENT to reflect normal depreciation in value . Under Option C , dealers were entitled to claim the “ full market value ” of the large - calibre handguns and ancillary equipment which they held in stock . The full market value was to be calculated on the basis of the cost to the dealer of the item plus PERCENT .

By section CARDINAL of LAW , the provisions of sections CARDINAL of LAW were applied to small - calibre pistols . LAW ) ( No . CARDINAL ) Act CARDINAL Compensation Scheme ( “ the Second Scheme ” ) was made in DATE , after having been laid in draft before both ORG and approved by resolution of each ORG . The Second Scheme applied in relation to small - calibre pistols held on or immediately before DATE . The date for the calculation of full market value for the purposes of Option C remained DATE . The Second Scheme made provision for compensation in respect of small - calibre pistols , on materially the same terms as provided for in the First Scheme in respect of large - calibre handguns .