EHRM, 10-03-2009, nr. 4378/02

In September 2000 the applicant allegedly ordered V., a member of his entourage, to kill S., the applicant's former business associate. V. did not comply with the order, but on 18 September 2000 he reported the applicant to the Federal Security Service of the Russian Federation (‘the FSB’). On the following day V. handed in the gun which he had allegedly received from the applicant.

On 21 September 2000 the Prosecutor of the Severo-Zapadnyy District of Moscow opened a criminal investigation in respect of the applicant on suspicion of conspiracy to murder.

On 26 and 27 September 2000 the FSB and the police decided to conduct a covert operation to obtain evidence of the applicant's intention to murder S.

On 29 September 2000 the police staged the discovery of two dead men at S.'s home. They officially announced in the media that one of those killed had been identified as S. The other man was his business partner, I.

On 3 October 2000 V., acting on the police's instructions, came to see the applicant at his estate. He carried a hidden radio-transmitting device while a police officer outside received and recorded the transmission. He was received by the applicant in a ‘guest house’, a part of the estate connected to his personal residence. In accordance with the instructions, V. engaged the applicant in conversation by telling him that he had carried out the assassination. As proof of his accomplishment he handed the applicant several objects taken from S. and I.: a certified copy of a mining project feasibility study marked with a special chemical agent, two watches belonging to S. and I. and 20,000 United States dollars (USD) in cash. At the end of the conversation V. took the cash, as suggested by the applicant. The police obtained a sixteen-minute recording of the dialogue between V. and the applicant.

On 4 October 2000 the applicant's estate was searched. Several watches were seized, including those belonging to S. and I. A chemical analysis was conducted and revealed the presence on the applicant's hands of the chemical agent which had been used to mark the feasibility study. The applicant was arrested.

On 27 February 2001 the applicant complained to the Prosecutor of the Severo-Zapadnyy District of Moscow that his prosecution had been unlawful because it involved numerous procedural violations of his rights, including the unauthorised intrusion into his home and the use of the radio-transmitting device. On 2 March 2001 the prosecutor dismissed his complaint, having found, in particular, that the applicant had let V. into his house voluntarily and that therefore there had been no intrusion. It was also found that no judicial authorisation had been required for the use of the radio-transmitting device because in accordance with the Operational-Search Activities Act, it was only required for the interception of communications transmitted by means of wire channels or mail services, none of which had been employed in the covert operation at issue.

Following the applicant's arrest on 4 October 2000, on 6 October 2000 the Deputy Prosecutor of the Severo-Zapadnyy District of Moscow ordered his detention during the investigation, having found that it was ‘in accordance with the law’ and necessary in view of the gravity of the charge and the risk that the applicant might influence witnesses. Further extensions were ordered by the competent prosecutor on 17 November 2000 (until 21 December 2000) and on 15 December 2000 (until 21 March 2001). The reasons for the applicant's continued detention were the gravity of the charge and the risk of his influencing the witnesses and obstructing the investigation. The applicant appealed against each of these decisions to a court.

On 26 January 2001 the Lefortovskiy District Court of Moscow examined the applicant's appeal against his continued detention on remand and confirmed the lawfulness of his detention. The court referred to the gravity of the charge and noted that this measure had been applied in accordance with the law. The applicant lodged a further appeal, which was also dismissed by the Moscow City Court.

In view of the forthcoming expiry of the term of the applicant's detention, its further extension was ordered by the competent prosecutor, first on 15 March 2001, until 4 April 2001, and then on 21 March 2001, until 4 June 2001, still on the grounds of the gravity of the charge and the risk of his influencing the witnesses and obstructing the investigation. The applicant challenged the extensions before the court.

On 11 April 2001 the Lefortovskiy District Court of Moscow declared that the applicant's detention until 4 June 2001 was lawful and necessary on account of the gravity of the charge. The applicant lodged an appeal with the Moscow City Court, which was dismissed on 15 May 2001. The appeal court considered the applicant's detention lawful and necessary ‘until the bill of indictment had been submitted or until the applicant's immunity had been confirmed’.

On 22 May 2001 the Deputy Prosecutor General extended the applicant's detention on remand until 4 September 2001, still on the grounds of the gravity of the charge and the risk of his influencing the witnesses and obstructing the investigation.

On 27 August 2001 the case was referred to the Tushinskiy District Court of Moscow. On 7 September 2001 the court scheduled the hearing for 26 September 2001 and authorised the applicant's further detention without indicating any reasons or the length of the extension. On 3 October 2001 the Moscow City Court examined and dismissed an appeal by the applicant, upholding his continued detention without elaborating on the reasons.

On 21 December 2001 the Meshchanskiy District Court of Moscow scheduled the hearing for 4 January 2002 and authorised the applicant's further detention, citing no reasons. The court did not indicate the length of the prospective detention. It again reviewed the lawfulness of the applicant's detention on 4 January 2002 but found that it was still necessary owing to the gravity of the charges and the ‘circumstances of the case’. An appeal by the applicant to the Moscow City Court was dismissed on 15 January 2002.

Further applications by the applicant for release were examined on 23 January, 6 March, 11 March and 23 April 2002. As before, the Meshchanskiy District Court of Moscow refused his release, citing the gravity of the charge and the risk of his evading trial and influencing the witnesses. The applicant was released on 19 June 2002 following his conviction (see paragraph 45 below).

On 3 October 2000, immediately after visiting the applicant in the ‘guest house’, V. was questioned by the investigators. He reported on the contents of his conversation with the applicant and submitted that he had handed him the gun, the watches and the feasibility study. He was subsequently questioned on 12 October, 9 November, 8 December and 18 December 2000.

The applicant was questioned as a suspect for the first time on 4 October 2000. From October to December 2000 he was questioned at least seven times.

On 10 October 2000 the applicant and V. were questioned in a confrontation with each other. The applicant's legal counsel were present at the confrontation. The statements made by the applicant on that occasion were subsequently summarised in the indictment, of which the relevant part reads as follows:

On 13 October 2000 the applicant was charged with conspiracy to murder. Subsequently the charges were extended to include conspiracy to acquire, possess and handle firearms.

On 8 December 2000 two appointed linguistic experts examined the recording of the applicant's conversation with V. of 3 October 2000 and answered the following questions put to them:

In respect of the above questions the experts found:

On 11 January 2001 the investigation was completed and the applicant was allowed access to the case file.

On 27 August 2001 the case was referred to the Tushinskiy District Court of Moscow.

On 22 October 2001 the Tushinskiy District Court declined jurisdiction in favour of the Meshchanskiy District Court of Moscow, having established that the venue of the attempted murder lay within that court's territorial jurisdiction.

On 16 December 2001 V. made a written statement certified by the Russian consulate in the Republic of Cyprus repudiating his statements against the applicant. He submitted that he had made those statements under pressure from S. Two deputies of the State Duma, D. and Y.S., were present at the consulate to witness the repudiation. On the same day they recorded an interview with V. in which he explained that S. had persuaded him to make false statements against the applicant.

On 4 February 2002 the Meshchanskiy District Court of Moscow began examining the charges against the applicant. The applicant pleaded not guilty. At the trial he challenged the admissibility of the recording of his conversation with V. and of all other evidence obtained through the covert operation. He alleged that the police interference had been unlawful and that he had been induced into self-incrimination. Furthermore, he claimed that the recording had involved unauthorised intrusion into his home. He contested the interpretation of the recording by the experts and alleged that nothing in his dialogue with V. disclosed prior knowledge of a murder conspiracy.

During the trial the court dismissed the applicant's objection to the covert operation and admitted as lawfully obtained evidence the recording with its transcript, the linguistic expert report, V.'s statements, and the evidence showing that the applicant had accepted the feasibility study and the watches from V. It dismissed the argument that there had been an unauthorised intrusion into the applicant's premises, having found, firstly, that the applicant had expressed no objection to V.'s visit and, secondly, that their meeting had taken place in the ‘guest house’, which was intended for business meetings and therefore did not encroach on the applicant's privacy. The court refused to admit as evidence the official records of the search at the applicant's estate because the officers who had conducted the search on 4 October 2000 had not been covered by the authorisation.

The following persons were examined in the oral proceedings before the court:

S. explained his relations with the applicant and their conflict of interests in the aluminium industry. He confirmed that he had participated in the covert operation; he also confirmed that in 2001 V. had told him that he had been paid off to withdraw his statements against the applicant.

Twenty-five witnesses answered questions concerning the business links of the applicant, V. and S. with the aluminium plant and other businesses in Krasnoyarsk; the relations and connections between them; the existence of the conflict of interests between the applicant and S.; the events of 3 October 2000, namely the arrival of V. at the ‘guest house’, his conversation with the applicant and the handing of the documents and the watches to the applicant; and the circumstances surrounding V.'s attempted withdrawal of his statements against the applicant.

Seven experts were examined: a technical expert gave explanations about the recording of data received by way of a radio-transmitting device; a sound expert explained how a transcript of the recording of the applicant's conversation with V. had been produced; two expert linguists submitted that they had used both the tape and the recording transcript in their examination; an expert psychologist answered questions concerning his findings (evidence subsequently excluded as obtained unlawfully — see paragraph 43 below); and two corroborative experts upheld the conclusions of the expert linguists and the sound experts.

Seven attesting witnesses answered questions concerning their participation in various investigative measures: the receipt of the gun handed in by V., the copying of the video and audio tapes, the treatment of the material exhibits with a chemical agent, the ‘discovery of the corpses’ in the operative experiment, and the house search.

Four investigation officers were examined: an FSB officer submitted that on 18 September 2000 V. had written a statement in his presence that the applicant had ordered him to kill S., and had handed in the gun; he also explained how the operative experiment had been carried out; two officers of the prosecutor's office and one officer of the Interior Ministry also described the operative experiment and explained how the copies of the recording of the applicant's conversation with V. had been made.

On 15 May 2002 during the court hearing the prosecutor requested to read out the records of the questioning of five witnesses not present at the hearing. The statements made by V. during the pre-trial investigation were among them.

The applicant's counsel said that he had no objections. The court decided to grant the request, having noted that ‘the court took exhaustive measures to call these witnesses to the court hearing and found that … V.'s whereabouts could not be established and he could not be called to the courtroom even though a number of operational search measures were taken by the FSB and an enquiry was made to the National Central Bureau of Interpol by the Ministry of the Interior …’. These statements were admitted as evidence.

The court also examined evidence relating to V.'s attempted withdrawal of his statements against the applicant. It established that during the investigation V. had already complained that pressure had been exerted on him to repudiate his statements against the applicant. It also established that the witness D., who was present at the consulate when V. had repudiated his statements, was a close friend of the applicant. The other witness, Y.S., had arrived at the consulate late and did not see the document before it was certified.

It was also noted that both the applicant and V. had undergone a psychiatric examination during the investigation and both had been found fit to participate in the criminal proceedings.

Other evidence examined by the court included: expert reports produced by chemical, ballistics, linguistic, sound and technical experts; written reports on the operative experiment; V.'s written statement of 18 September 2000; a certified description of the gun handed in by V.; and records of the applicant's confrontation with V. on 20 October 2000.

The applicant challenged a number of items of evidence, claiming that they had been obtained unlawfully. The court excluded some of them, in particular the expert report by a psychologist who had examined the recording of the applicant's conversation with V. and the police report on the search carried out on 4 October 2000. The attempt to challenge the audio tape containing the recording of the applicant's conversation with V., and the copies of the tape, was not successful and they were admitted as lawfully obtained evidence.

On 19 June 2002 the Meshchanskiy District Court of Moscow gave judgment, finding the applicant guilty of conspiracy to murder and conspiracy to acquire, possess and handle firearms. The finding of guilt was based on the following evidence: the initial statement by V. that the applicant had ordered him to kill S.; the gun V. had handed in; the statements V. had made in front of the applicant when they had been confronted during the questioning on 10 October 2000; numerous witness statements confirming the existence of a conflict between the applicant and S.; and the physical evidence obtained through the covert operation, namely the watches and the feasibility study. Although the recording of the applicant's conversation with V. was played at the hearing, its contents did not feature among the evidence or as part of the court's reasoning. In so far as the record was mentioned in the judgment, the court relied solely on the conclusions of the linguistic experts (see paragraph 30 above) and on several reports confirming that the tape had not been tampered with.

The court sentenced the applicant to six and a half years' imprisonment and, having deducted the time already spent in pre-trial detention, conditionally released him on five years' probation.

The applicant appealed against the judgment, challenging, inter alia, the admissibility of the evidence obtained through the covert operation and the court's interpretation of the physical evidence and the witnesses' testimonies.

On 1 October 2002 the Moscow City Court upheld the applicant's conviction and dismissed his appeal, including the arguments relating to the admissibility of evidence.

On 22 June 2004 the Supreme Court of the Russian Federation examined the applicant's case in supervisory proceedings. It modified the judgment of 19 June 2002 and the appeal decision of 1 October 2002, redefining the legal classification of one of the offences committed by the applicant. It found the applicant guilty of ‘incitement to commit a crime involving a murder’, and not ‘conspiracy to murder’. The rest of the judgment, including the sentence, remained unchanged.

Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the Russian Soviet Federative Socialist Republic (CCrP).

‘Preventive measures’ or ‘measures of restraint’ included an undertaking not to leave a town or region, personal security, bail and detention on remand (Article 89). A decision to detain someone on remand could be taken by a prosecutor or a court (Articles 11, 89 and 96).

The Operational-Search Activities Act of 12 August 1995 (no. 144-FZ) provides, in so far as relevant, as follows:

Article 69 of the CCrP provided as follows:

The 2001 Code of Criminal Procedure of the Russian Federation, which replaced the CCrP of the Russian Soviet Federative Socialist Republic from 1 July 2002, provides as follows, in so far as relevant:

The Court reiterates that, in accordance with Article 19 of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Schenk v. Switzerland, 12 July 1988, § 45, Series A no. 140; Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports 1998-IV; and Jalloh v. Germany [GC], no. 54810/00, §§ 94–96, ECHR 2006-IX).

It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence — for example, evidence obtained unlawfully in terms of domestic law — may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the ‘unlawfulness’ in question and, where a violation of another Convention right is concerned, the nature of the violation found (see, among other authorities, Khan, cited above, § 34; P.G. and J.H. v. the United Kingdom, no. 44787/98, § 76, ECHR 2001-IX; Heglas v. the Czech Republic, no. 5935/02, §§ 89–92, 1 March 2007; and Allan, cited above, § 42).

In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence were respected. It must be examined in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy. While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see, among other authorities, Khan, cited above, §§ 35 and 37, and Allan, cited above, § 43).

As regards, in particular, the examination of the nature of the Convention violation found, the Court observes that notably in the cases of Khan (cited above, §§ 25–28) and P.G. and J.H. v. the United Kingdom (cited above, §§ 37–38) it found the use of covert listening devices to be in breach of Article 8 since recourse to such devices lacked a legal basis in domestic law and the interferences with those applicants' right to respect for their private life were not ‘in accordance with the law’. Nonetheless, the admission in evidence of information obtained thereby did not in the circumstances of the cases conflict with the requirements of fairness guaranteed by Article 6 § 1.

As regards the privilege against self-incrimination or the right to remain silent, the Court reiterates that these are generally recognised international standards which lie at the heart of a fair procedure. Their aim is to provide an accused person with protection against improper compulsion by the authorities and thus to avoid miscarriages of justice and secure the aims of Article 6 (see John Murray v. the United Kingdom, 8 February 1996, § 45, Reports 1996-I). The right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent and presupposes that the prosecution in a criminal case seeks to prove the case against the accused without resorting to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Saunders v. the United Kingdom, 17 December 1996, §§ 68–69, Reports 1996-VI; Allan, cited above, § 44; Jalloh, cited above, §§ 94–117; and O'Halloran and Francis v. the United Kingdom [GC], nos. 15809/02 and 25624/02, §§ 53–63, ECHR 2007-…). In examining whether a procedure has extinguished the very essence of the privilege against self-incrimination, the Court must examine the nature and degree of the compulsion, the existence of any relevant safeguards in the procedures and the use to which any material so obtained is put (see, for example, Heaney and McGuinness v. Ireland, no. 34720/97, §§ 54–55, ECHR 2000-XII, and J.B. v. Switzerland, no. 31827/96, ECHR 2001-III).

The general requirements of fairness contained in Article 6 apply to all criminal proceedings, irrespective of the type of offence at issue. Public-interest concerns cannot justify measures which extinguish the very essence of an applicant's defence rights, including the privilege against self-incrimination guaranteed by Article 6 of the Convention (see, mutatis mutandis, Heaney and McGuinness, cited above, §§ 57–58).

The Court observes that in contesting at his trial the use of the material obtained through the ‘operative experiment’, the applicant put forward two arguments. Firstly, he argued that the evidence obtained from the covert operation, in particular the recording of his conversation with V., was unreliable and open to a different interpretation from that given by the domestic courts. Secondly, he alleged that the use of such evidence ran counter to the privilege against self-incrimination and his right to remain silent.

As regards the first point, the Court reiterates that where the reliability of evidence is in dispute the existence of fair procedures to examine the admissibility of the evidence takes on an even greater importance (see Allan, cited above, § 47). In the present case, the applicant was able to challenge the covert operation, and every piece of evidence obtained thereby, in the adversarial procedure before the first-instance court and in his grounds of appeal. The grounds for the challenge were the alleged unlawfulness and trickery in obtaining evidence and the alleged misinterpretation of the conversation recorded on the tape. Each of these points was addressed by the courts and dismissed in reasoned decisions. The Court notes that the applicant made no complaints in relation to the procedure by which the courts reached their decision concerning the admissibility of the evidence.

The Court further observes that the impugned recording, together with the physical evidence obtained through the covert operation, was not the only evidence relied on by the domestic court as the basis for the applicant's conviction. In fact, the key evidence for the prosecution was the initial statement by V., who had reported to the FSB that the applicant had ordered him to kill S., and had handed in the gun (see paragraph 10 above). This statement, which gave rise to the investigation, was made by V. before, and independently from, the covert operation, in his capacity as a private individual and not as a police informant. Furthermore, he reiterated his incriminating statements during his subsequent questioning on several occasions and during the confrontation between him and the applicant at the pre-trial stage.

While it is true that V. was not cross-examined at the trial, the failure to do so was not imputable to the authorities, who took all necessary steps to establish his whereabouts and have him attend the trial, including by seeking the assistance of Interpol. The trial court thoroughly examined the circumstances of V.'s withdrawal of his incriminating statements and came to a reasoned conclusion that the repudiation was not trustworthy. Moreover, the applicant was given an opportunity to question V. on the substance of his incriminating statements when they were confronted during the questioning on 10 October 2000. Some importance is also to be attached to the fact that the applicant's counsel expressly agreed to having V.'s pre-trial testimonies read out in open court. Finally, V.'s incriminating statements were corroborated by circumstantial evidence, in particular numerous witness testimonies confirming the existence of a conflict of interests between the applicant and S.

In view of the above, the Court accepts that the evidence obtained from the covert operation was not the sole basis for the applicant's conviction, corroborated as it was by other conclusive evidence. Nothing has been shown to support the conclusion that the applicant's defence rights were not properly complied with in respect of the evidence adduced or that its evaluation by the domestic courts was arbitrary.

It remains for the Court to examine whether the covert operation, and the use of evidence obtained thereby, involved a breach of the applicant's right not to incriminate himself and to remain silent. The applicant argued that the police had overstepped the limits of permissible behaviour by secretly recording his conversation with V., who was acting on their instructions. He claimed that his conviction had resulted from trickery and subterfuge incompatible with the notion of a fair trial.

The Court recently examined similar allegations in the case of Heglas (cited above). In that case the applicant had admitted his participation in a robbery in the course of a conversation with a person who had been fitted by the police with a listening device hidden under her clothes. The Court dismissed the applicant's complaint under Article 6 of the Convention concerning the use of the recording, finding that he had had the benefit of adversarial proceedings, that his conviction had also been based on evidence other than the impugned recording, and that the measure had been aimed at detecting a serious offence and had thus served an important public interest. The applicant, before the recording was made, had not been officially questioned about, or charged with, the criminal offence.

The circumstances of the covert operation conducted in the Heglas case were essentially different from those of the Allan case (cited above), where a violation of Article 6 was found. In the latter case the applicant was in pre-trial detention and expressed his wish to remain silent when questioned by the investigators. However, the police primed the applicant's cellmate to take advantage of the applicant's vulnerable and susceptible state following lengthy periods of interrogation. The Court, relying on a combination of these factors, considered that the authorities' conduct amounted to coercion and oppression and found that the information had been obtained in defiance of the applicant's will.

The Court notes that in the present case the applicant had not been under any pressure to receive V. at his ‘guest house’, to speak to him, or to make any specific comments on the matter raised by V. Unlike the applicant in the Allan case (cited above), the applicant was not detained on remand but was at liberty on his own premises attended by security and other personnel. The nature of his relations with V. — subordination of the latter to the applicant — did not impose any particular form of behaviour on him. In other words, the applicant was free to see V. and to talk to him, or to refuse to do so. It appears that he was willing to continue the conversation started by V. because its subject matter was of personal interest to him. Thus, the Court is not convinced that the obtaining of evidence was tainted with the element of coercion or oppression which in the Allan case the Court found to amount to a breach of the applicant's right to remain silent.

The Court also attaches weight to the fact that in making their assessment the domestic courts did not directly rely on the recording of the applicant's conversation with V., or its transcript, and did not seek to interpret specific statements made by the applicant during the conversation. Instead they examined the expert report drawn up on the conversation in order to assess his relations with V. and the manner in which he involved himself in the dialogue. Moreover, at the trial the recording was not treated as a plain confession or an admission of knowledge capable of lying at the core of a finding of guilt; it played a limited role in a complex body of evidence assessed by the court.

Having examined the safeguards which surrounded the evaluation of the admissibility and reliability of the evidence concerned, the nature and degree of the alleged compulsion, and the use to which the material obtained through the covert operation was put, the Court finds that the proceedings in the applicant's case, considered as a whole, were not contrary to the requirements of a fair trial.

It follows that there has been no violation of Article 6 § 1 of the Convention.

In the proceedings before the Chamber the applicant claimed EUR 93,246.25 in respect of costs and expenses. For his legal representation before the domestic courts the applicant paid the equivalent of EUR 60,691.61 to Mr G. Padva, his defence counsel in the criminal proceedings. He submitted a full set of receipts confirming the payment of this sum to Mr Padva's office. In the proceedings before the Court, the applicant was also represented by Mr Krauss and Mr J. Pastille, to whom he paid an aggregate amount of EUR 69,839.64 (EUR 32,554.64 in the proceedings before the Chamber and EUR 37,285 before the Grand Chamber). In respect of their services he provided an invoice for 25,583.70 United States dollars, indicating the number of hours and the hourly rates used as a basis, plus various expenses. Two further invoices — by Mr Pastille for EUR 5,000 and by a law firm, ‘Rusanovs, Rode, Buss’, for EUR 7,500 — did not contain any particulars. Following the public hearing before the Grand Chamber the applicant supplemented the claims and provided an invoice for EUR 37,285 which comprised EUR 30,600 in respect of lawyers' fees, indicating the number of hours spent by each counsel and adviser, and EUR 6,685 for travel expenses.

The Government claimed that these expenditures had not been incurred necessarily and were unreasonable as to quantum. They considered that the number of legal counsel engaged in the case was not justified by the circumstances or the complexity of the case. Commenting on specific sums, they pointed out that Mr Padva's invoice contained no itemised list of services rendered to the applicant under the legal services agreement. They also disputed the hourly rates charged by Mr Krauss, Mr Pastille and their associates, claiming that they were unreasonable and in excess of the average legal rates. They also challenged the invoices for EUR 5,000 and for EUR 7,500, claiming that in the absence of any itemised list of services or financial receipts there was no proof that these expenses had actually been incurred. The Government considered that a sum of EUR 3,000 would be sufficient under this head.

According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Furthermore, legal costs are recoverable only in so far as they relate to the violation found (see, for example, I.J.L. and Others v. the United Kingdom (just satisfaction), nos. 29522/95, 30056/96 and 30574/96, § 18, 25 September 2001). In the instant case, the Court considers the amount claimed excessive, given that a number of the applicant's complaints were either declared inadmissible or did not result in a finding of a violation of the Convention (see Bykov v. Russia (dec.), no. 4378/02, 7 September 2006, and paragraph 105 above). Moreover, the applicant's submissions contain no information on the specific services covered by the invoices. Thus, the Court considers that a significant reduction is necessary on both accounts. Having regard to all relevant factors, the Court considers it reasonable to award the sum of EUR 25,000 in respect of costs and expenses, plus any tax that may be chargeable on that amount.

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

After the Chamber had relinquished jurisdiction, the present case was sent to the Grand Chamber, which was afforded the opportunity to clarify and spell out its case-law on the use of unlawful evidence at a trial. The question of the admission in criminal proceedings of evidence obtained in breach of Article 8 is a question of principle that deserved an answer of principle, particularly as regards the need to ensure consistency between the Court's findings under the two Articles of the Convention (what is prohibited under Article 8 cannot be permitted under Article 6) and the need to stress the importance of the Article 8 rights at stake (bearing in mind the growing need to resort to unlawful investigative methods, especially in fighting crime and terrorism). As far as this question of principle is concerned, I would reiterate the arguments which my colleague Françoise Tulkens put forward in her partly dissenting opinion in P.G. and J.H. v. the United Kingdom.1.

In the present case the violation of Article 8 was a particularly serious one, representing a manifest infringement of the fundamental rights protected by that provision. The use during a trial of evidence obtained in breach of Article 8 should have called for an extremely rigorous examination by the Court of the fairness of the proceedings. As the Court has already had occasion to emphasise, the Convention is to be read as a coherent whole.2. I agree with the partly concurring, partly dissenting opinion expressed by Judge Loucaides in Khan v. the United Kingdom3. and reiterated by Judge Tulkens in her above-mentioned partly dissenting opinion in P.G. and J.H. v. the United Kingdom:4.

In the present case the violation of Article 8 of the Convention found by the Court results, and indeed results exclusively, from the unlawfulness of the evidence in issue (see paragraph 82 of the judgment). Yet the fairness required by Article 6 of the Convention also entails a requirement of lawfulness.5. Fairness presupposes respect for lawfulness and thus also, a fortiori, respect for the rights guaranteed by the Convention, which it is precisely the Court's task to supervise.

As regards the nature and scope of the Court's supervision, the Court rightly notes in the judgment that ‘in accordance with Article 19 of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention’ (see paragraph 88). It follows, and I strongly agree with this observation, that

Similarly, while it is not the role of the Court

The judgment in the present case could have dispelled the uncertainties resulting from the Court's case-law on the subject by making clear that what is prohibited by one provision (Article 8) cannot be accepted under another (Article 6).

In finding that there was no violation of Article 6, the Court has undermined the effectiveness of Article 8. Yet the rights enshrined in the Convention cannot remain purely theoretical or virtual, since

The majority's view seems to me, moreover, to entail a real danger, one which has already been noted in the above-mentioned separate opinion in Khan2. and reiterated in the above-mentioned separate opinion in P.G. and J.H. v. the United Kingdom:3.

However, the Court has itself emphasised

The judgment fails to provide a response to the questions raised in the partly dissenting opinion cited above:

So much, then, for the principles and for the (missed) opportunity afforded to the Grand Chamber to strengthen practical and effective rights.

Beyond the question of principle addressed above, I consider that the evidence obtained in breach of Article 8 caused the proceedings to be fatally flawed, since it decisively influenced the guilty verdict against the applicant.

Admittedly, it appears that the court in the present case based its decision on other items of evidence. Besides the evidence obtained by means of the covert operation, the following items unconnected with the operation seem to have been taken into account: the initial statement by V. that the applicant had ordered him to kill S.; the gun V. handed in to the FSB; and the records of the questioning of V. on subsequent occasions during the investigation. These items of evidence — all produced by V. — were challenged during the trial by the applicant, who for his part relied on V.'s subsequent withdrawal of his statements. However, the doubts as to the reliability of V.'s statements could not be dispelled since V. was absent and the authorities were unable to trace him and call him to appear in court, with the result that he could not be cross-examined during the trial (see paragraphs 38–40 of the judgment). The court eventually admitted the statements by V. as written evidence and, after examining the contradictory remarks he had made, concluded that the withdrawal appeared to have resulted from a subsequent arrangement between V. and the applicant. Accordingly — leaving aside the evidence obtained in breach of Article 8 of the Convention — the court reached its finding solely on the basis of V.'s initial statements incriminating the applicant.

Admittedly, the applicant had the opportunity to examine V. when they were brought face to face during the investigation, but I must emphasise that this meeting took place before V. withdrew his statements. Consequently, the applicant's lawyer was unable to cross-examine V. in the light of his withdrawal of the statements, either during the investigation or during the court hearings. However, as the Court emphasised in Lucà v. Italy, where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6.1.

The fact that it was impossible to cross-examine V. in court also raises an issue in terms of the procedural right to challenge the evidence obtained as a result of the covert operation.

As the Court pointed out in the Ramanauskas judgment,1. admittedly in an entirely different context, involving police incitement,

Admittedly, the other evidence used during the trial included numerous witness statements referring to the existence of a conflict of interests between the applicant and S., and other items confirming the accuracy of the description of the covert operation set out in the reports on the investigation. However, the probative value of such evidence was relatively minor. The fact that it was impossible to cross-examine V. in court therefore prevented the applicant from having full enjoyment of his procedural right to challenge the evidence obtained through the covert operation.

In short, I consider that the use of the evidence in issue irreparably impaired the applicant's defence rights. Such a conclusion would in itself have justified the finding of a violation of Article 6 of the Convention.