[неофициальный перевод]
ЕВРОПЕЙСКИЙ СУД ПО ПРАВАМ ЧЕЛОВЕКА
СУДЕБНОЕ РЕШЕНИЕ
ШЕНК (SCHENK) ПРОТИВ ШВЕЙЦАРИИ
(Страсбург, 12 июля 1988 года)
(Извлечение)
КРАТКОЕ НЕОФИЦИАЛЬНОЕ ИЗЛОЖЕНИЕ ОБСТОЯТЕЛЬСТВ ДЕЛА
A. Основные факты
Г-н Пьер Шенк, 1912 г. рождения, директор компании, начиная с
1974 г. вел бракоразводный процесс, который завершился разводом в
декабре 1981 г. по соглашению сторон. Ранее, весной того же года,
заявитель через рекламное агентство вступил в контакт с неким г-
ном Поти, который выполнил несколько его поручений. В июне 1981
г., когда заявитель находился в больнице, г-н Поти встретился с
мадам Шенк и сообщил, что имеет поручение мужа убить ее, после
чего она обратилась по этому поводу к судебному следователю
кантона Во. Поскольку Поти проживал во Франции, о начавшемся
следствии было сообщено французским властям. Допрошенный во
Франции в присутствии полицейских кантона Во г-н Поти подтвердил
свое свидетельство, и г-ну Шенку было предъявлено обвинение в
подстрекательстве к убийству; он был предан суду 13 августа 1982
г. и на основании inter alia оспариваемой магнитофонной записи
приговорен по первой инстанции к десяти годам тюремного
заключения. Среди доказательств важное место занимала
магнитофонная запись разговора обвиняемого с г-ном Поти.
Г-н Шенк безуспешно оспаривал приговор в Кассационной палате по
уголовным делам суда кантона Во, а затем в Федеральном суде. В
декабре 1984 г. он был частично оправдан и вышел на свободу.
B. Разбирательство в Комиссии по правам человека
В жалобе, поданной 6 марта 1984 г., заявитель утверждал, что
было нарушено его право на уважение личной жизни, а также право на
справедливое судебное разбирательство. Жалоба была объявлена
Комиссией частично приемлемой 6 марта 1986 г. В своем докладе от
14 мая 1987 г. Комиссия установила факты и выразила мнение
одиннадцатью голосами против двух, что нарушение статьи 6 п. 1 не
имело места.
Дело было передано в Суд Европейской комиссией 15 июля 1987 г.
и Правительством Швейцарской Конфедерации 12 июля 1987 г.
ИЗВЛЕЧЕНИЕ ИЗ СУДЕБНОГО РЕШЕНИЯ
ВОПРОСЫ ПРАВА
I. О предполагаемом нарушении статьи 6
A. Статья 6 п. 1
39. Г-н Шенк утверждал, что магнитофонная запись его
телефонного разговора с г-ном Поти и ее использование в качестве
доказательства нарушили статью 6 п. 1, где говорится:
"Каждый человек имеет право при определении его гражданских
прав и обязанностей или при рассмотрении любого уголовного
обвинения, предъявляемого ему, на справедливое и публичное
разбирательство дела в разумный срок независимым и беспристрастным
судом, созданным на основании закона..."
40. Согласно утверждению заявителя, магнитофонная запись была
произведена по подстрекательству швейцарской полиции. Хотя его
жалоба на основании статьи 8 относительно изготовления
магнитофонной записи была отклонена по причине неисчерпания
внутренних средств правовой защиты, тем не менее для того чтобы
рассмотреть вопрос о справедливости судебного разбирательства,
необходимо исходить из фактов в их реальной последовательности,
особенно если речь идет об обстоятельствах, имеющих решающее
значение.
Суд отмечает, что объявление Комиссией жалобы неприемлемой
относится единственно к статье 8. Суд не вправе рассматривать ее
на этом основании, но это не препятствует ее рассмотрению на
основании других норм, в данном случае на основании статьи 6 п. 1.
41. Г-н Шенк утверждал также, что использования незаконно
полученных доказательств достаточно для признания судебного
разбирательства несправедливым и что его осуждение основывалось
главным образом на данной магнитофонной записи. Необходимо
соотносить находящиеся в конфликте интересы - публичный интерес в
установлении истины по делу и частный интерес в сохранении
конфиденциальности телефонных переговоров. Прослушивание
телефонных переговоров никогда не должно производиться
противозаконно.
Заявитель жаловался на то, что инспектор Мессерли не был вызван
в суд в качестве свидетеля. Предположительно, защита не просила о
его явке в суд ни в ходе следствия, ни во время рассмотрения дела
в суде, но это упущение, по его словам, объяснимо в первом случае
ожиданием - которое осуществилось - освобождения от
ответственности (см. п. 17 выше), а во втором случае тем
обстоятельством, что г-н Мессерли был убежден в вине заявителя
(см. п. 15 выше). Кроме того, г-н Шенк критиковал то, как суд
первой инстанции организовал прослушивание кассеты. Он настаивал,
поскольку он глухой, что в зале должны были быть наушники, а также
использованы специальные приспособления.
42. Правительство считало, что необходимо проводить различие
между ситуацией, когда незаконные средства получения
доказательств, представляемых впоследствии в суд, используют
власти, и ситуацией, когда незаконно действовало частное лицо,
передавшее затем полученное таким путем доказательство властям.
Кроме того, следует учитывать, какие интересы оказались поставлены
на карту, а также то, что магнитофонные записи были не
единственным доказательством по настоящему делу.
43. Правительство не оспаривало того, что магнитофонная запись,
о которой идет речь, была получена незаконно. Швейцарские суды,
которые рассматривали данное дело, также признавали это.
Суд первой инстанции, например, констатировал, что запись
произведена "без согласия или разрешения компетентных властей"
(см. п. 20 выше).
Кассационная палата по уголовным делам суда кантона Во заявила:
"Приходится согласиться с подателем апелляции, что... производство
магнитофонной записи частных телефонных переговоров г-на Поти с
ответчиком само по себе равносильно правонарушению" (см. п. 28
выше).
И наконец, Федеральный суд констатировал: "Можно согласиться с
тем, что в использовании спорной магнитофонной записи присутствуют
элементы преступления, предусмотренные статьей 179 ter Уголовного
кодекса" (см. п. 30 выше).
44. Тем не менее эти три суда допустили использование данной
магнитофонной записи в качестве доказательства.
Суд первой инстанции указал inter alia, что "в любом случае
содержание магнитофонной записи могло бы быть включено в досье
либо потому, что следователь установил прослушивание телефонных
разговоров г-на Поти, или просто потому, что достаточно было бы
получить свидетельские показания г-на Поти относительно содержания
данной записи", и что "принятие доводов подсудимого сделало бы
необходимым исключить значительную часть доказательств из досье по
уголовным делам" (см. п. 20 выше).
Кассационная палата по уголовным делам суда кантона Во
отметила, что "спорная магнитофонная запись сама по себе не
является доказательством, запрещенным к использованию", что "при
поиске равновесия между правами и интересами, о которых идет
речь... различие между разрешенным подслушиванием и
несанкционированной магнитофонной записью еще не таково, чтобы
вторжение в частную сферу оказалось более значимым, чем
общественный интерес в разоблачении лица, виновного в совершении
тяжких преступлений", и что "меры, использованные в данном случае,
оставались в рамках того, что считается приемлемым в целях борьбы
с преступностью" (см. п. 28 выше).
Федеральный суд отметил, что "общественный интерес в
установлении истины по вопросу о таком преступлении, как убийство
[берет верх] над интересом Шенка в сохранении конфиденциальности
телефонного разговора, который никоим образом не затрагивал его
частной жизни" (см. п. 30 выше).
45. Согласно статье 19 Конвенции задача Суда обеспечить
соблюдение обязательств, принятых на себя Договаривающимися
государствами по настоящей Конвенции. Он не призван исследовать
фактические и правовые ошибки, якобы допущенные национальными
судами, если только - в той или иной мере - они не ведут к
нарушению прав и свобод, охраняемых настоящей Конвенцией.
46. Статья 6 Конвенции гарантирует право на справедливое
судебное разбирательство, но она не устанавливает каких-либо
правил допустимости доказательств как таковых; это задача
внутреннего права.
Суд, таким образом, не может исключить принципиально и in
abstracto приемлемость такого рода незаконно полученных
доказательств. Он должен только оценить, было ли судебное
разбирательство по делу г-на Шенка в целом справедливым.
47. Как и Комиссия, Суд отмечает прежде всего, что право на
защиту было соблюдено.
Заявитель не оставался в неведении по поводу того, что
магнитофонные записи, на которые он жаловался, были незаконными
как несанкционированные компетентными судебными органами. У него
имелась возможность - которой он и воспользовался, - прослушав
запись (см. п. 18 выше), оспорить ее подлинность и воспротивиться
ее использованию в качестве доказательства. Это оказалось
безуспешным, что не меняет существа вопроса.
Более того, с самого начала судебного следствия г-н Шенк
потребовал и добился расследования действий г-на Поти (см. п. 16
выше).
Более того, защитник заявителя смог допросить г-на Поти - в
качестве свидетеля - во время слушания дела в суде первой
инстанции (см. п. 22 выше).
Наконец, г-н Шенк не назвал в числе свидетелей инспектора
Мессерли, который вел следствие по делу и которому было поручено
проведение следственных действий во Франции, в частности допроса
свидетеля (см. п. 12 выше).
48. Суд придает также значение тому обстоятельству, что
магнитофонная запись телефонных разговоров не была единственным
доказательством, на котором построен приговор. Отказ исключить
кассету из числа доказательств связан, в частности, с тем, что
имелись показания г-на Поти как свидетеля по поводу содержания
данной магнитофонной записи (см. п. 20 выше). Суд также заслушал
показания нескольких других вызванных им свидетелей, г-жи Шенк и
других, в том числе по просьбе защиты (см. п. 22 выше). В Судебном
решении не раз подчеркнуто, что суд основывался также и на иных
доказательствах, нежели данная магнитофонная запись, но которые
подтверждали следовавший из данной магнитофонной записи вывод о
виновности г-на Шенка. Особое значение в этой связи имеет
следующая выдержка:
"Точка зрения суда частично основывается на магнитофонной
записи телефонного разговора от 26 июня 1981 г.... Но у суда
имеются и другие доказательства: невероятно тщательные меры
предосторожности, принятые подсудимым; то обстоятельство, что на
протяжении многих лет подсудимому приходилось содержать жену,
несмотря на ее неблаговидное поведение, о чем ему было известно,
но что он не в силах был доказать; использование для поручений
бывшего иностранного легионера, малообразованного и
малокультурного, который был послан сначала на Гаити, а затем в
Швейцарию для того, чтобы добыть сравнительно безобидную
информацию, которая имела весьма косвенное отношение к
бракоразводному процессу. На Гаити г-н Поти проверял,
действительно ли г-жа Жозетта Шенк ведет там строительство дома,
на что подсудимый истратил более 10000 швейцарских франков для
получения (если принять его версию событий) совершенно безобидной
информации. Доказательством является и то обстоятельство, что
подсудимый ни разу не предпринял каких-либо шагов, чтобы подать
жалобу на злонамеренно выдвинутые против него обвинения" (см. п.
26 выше).
Из этого отрывка ясно видно, что суд принял во внимание всю
совокупность косвенных доказательств.
49. Отсюда следует вывод, что использование в качестве
доказательства спорной магнитофонной записи не лишило заявителя
справедливого судебного разбирательства, а следовательно, не
нарушало статьи 6 п. 1.
B. Статья 6 п. 2
50. Г-н Шенк утверждал также, что благодаря использованию
незаконно полученных магнитофонных записей вина его не была
доказана в соответствии с законом и был нарушен принцип презумпции
невиновности, гарантированный в статье 6 п. 2, где предусмотрено:
"Каждый человек, обвиняемый в совершении уголовного
преступления, считается невиновным до тех пор, пока его виновность
не будет установлена законным порядком".
Правительство оспаривало это утверждение.
С точки зрения Комиссии, жалоба ограничена сферой действия
понятия справедливого судебного разбирательства. Ссылка на статью
6 п. 2 явилась результатом ее ошибочного толкования. Во время
слушаний в Суде представитель Комиссии подчеркнул, что в отношении
обвиняемого действует презумпция невиновности до тех пор, пока его
вина не будет доказана в установленном законом порядке. Именно так
и проходил процесс, в полном соответствии с законом, за
исключением "одной нормы".
51. По мнению Суда, в материалах судебных дел не содержится
ничего, что позволяло бы предположить, что с г-ном Шенком
обращались, как с виновным, до того, как он был признан таковым.
Приобщение кассеты к материалам дела в качестве доказательства еще
недостаточно для того, чтобы поддержать утверждения заявителя,
поэтому нарушение Конвенции не имело места также и здесь.
II. О предполагаемом нарушении статьи 8
52. Г-н Шенк утверждал, наконец, что он стал жертвой нарушения
принадлежащего ему права на уважение его личной жизни и
корреспонденции, которое включает в себя право на
конфиденциальность телефонных переговоров. Он ссылался на статью 8
Конвенции, которая предусматривает:
"1. Каждый человек имеет право на уважение его личной и
семейной жизни, неприкосновенности его жилища и тайны
корреспонденции.
2. Не допускается вмешательство со стороны государственных
органов в осуществление этого права, за исключением вмешательства,
предусмотренного законом и необходимого в демократическом обществе
в интересах государственной безопасности и общественного
спокойствия, экономического благосостояния страны, в целях
предотвращения беспорядков или преступлений, для охраны здоровья
или нравственности или защиты прав и свобод других лиц".
Заявитель не согласен с тем, что Комиссия объявила неприемлемой
жалобу лишь относительно факта записи на магнитофон телефонного
разговора. Поэтому он просил Суд рассмотреть на предмет
соответствия статье 8 использование кассеты в качестве
доказательства и признать ее противоречащей этой статье. Он
ссылался на следующие обстоятельства: передача кассеты в полицию,
которая ее использовала; передача ее следователю, прокурору, а
затем в суд; сообщение адвокату по почте; возможность консультации
с рядом лиц и наличие кассеты в уголовном суде в Ролле и
прослушивание ее в зале судебного заседания.
Правительство, ссылаясь на доклад Комиссии, считало вопрос о
жалобе, основанной на статье 8, закрытым.
53. Суд отмечает, что в своем Решении от 6 марта 1986 г.
Комиссия объявила неприемлемой по причине неисчерпания внутренних
средств правовой защиты только "жалобу, касающуюся производства
спорной магнитофонной записи" (см. п. 37 выше). А раз это так,
ничто не препятствует Суду рассмотреть вопрос об использовании
данной магнитофонной записи. Однако в данном случае в этом нет
необходимости, т.к. эта проблема поглощена другой, уже
рассмотренной - об использовании кассеты в ходе судебного
следствия и в зале судебного заседания (см. статью 6 п. 1).
ПО ЭТИМ ОСНОВАНИЯМ СУД
1. Постановил тринадцатью голосами против четырех, что не имело
места нарушение статьи 6 п. 1 Конвенции;
2. Постановил единогласно, что не имело места нарушение статьи
6 п. 2;
3. Постановил пятнадцатью голосами против двух, что в
рассмотрении дела на основании статьи 8 нет необходимости.
Совершено на английском и французском языках и оглашено во
Дворце прав человека в Страсбурге 12 июля 1988 г.
Председатель
Рольф РИССДАЛ
Грефье
Джонатан Л. ШАРП
Начальник отдела канцелярии
В соответствии со статьей 51 п. 2 Конвенции и статьей 52 п. 2
Регламента Суда к настоящему Решению прилагаются отдельные мнения
судей.
СОВМЕСТНОЕ ОСОБОЕ МНЕНИЕ СУДЕЙ
ПЕТТИТИ, ШПИЛЬМАНА, ДЕ МЕЙЕРА И КАРИЛЛО САЛСЕДО
Большинство Суда считает, что статья 6 Конвенции не
устанавливает каких-либо правил "допустимости доказательств как
таковых, оставляя регулирование данного вопроса главным образом за
национальным законодательством". Оно указало, что не может
"принципиально и in abstracto исключить приемлемость незаконно
полученных доказательств такого рода" и что ему надлежит "только
установить, было ли [данное] рассмотрение дела в суде в целом
справедливым" (см. п. 46 Судебного решения).
Суд придал своему выводу относительный характер, ограничив его
данным делом, но, с нашей точки зрения, он обязан был обратиться к
проблеме незаконности данного доказательства.
К нашему сожалению, мы не можем разделить точку зрения
большинства; по нашему мнению, соблюдение закона при получении
доказательств не является абстрактным или сугубо формальным
требованием. Наоборот, мы считаем, что это имеет первостепенное
значение для справедливости судебного разбирательства по уголовным
делам.
Ни один суд не может, не нанося ущерба надлежащему отправлению
правосудия, опираться на доказательство, которое не только было
получено нечестным путем, но и, прежде всего, противозаконно. Если
суд так поступает, то он не может считаться справедливым в смысле
Конвенции.
В данном случае никем не оспаривается то, "что магнитофонная
запись, о которой идет речь, была получена незаконно" (см. п. 43
Судебного решения).
Даже если суды, которые рассматривали уголовное обвинение
против заявителя, основывались, как это отмечено в Судебном
решении, также и на "иных доказательствах, нежели данная
магнитофонная запись, но которые подтверждали следовавший из
данной магнитофонной записи вывод о виновности" (см. п. 48
Судебного решения), остается фактом, что они "допустили
магнитофонную запись в качестве доказательства" (см. п. 44
Судебного решения) и что их Решение "частично" (см. п. 26 и 48
Судебного решения) основывалось на спорной кассете.
По этим основаниям мы пришли к выводу, что в этом случае имело
место нарушение права на справедливое судебное разбирательство в
том виде, как оно гарантировано в статье 6 Конвенции.
СОВМЕСТНОЕ ОСОБОЕ МНЕНИЕ СУДЕЙ ПЕТТИТИ И ДЕ МЕЙЕРА
Мы придерживаемся той точки зрения, что Суд должен был
рассмотреть обстоятельства дела как на основании статьи 8
Конвенции, так и на основании статьи 6.
Это, вероятно, привело бы нас обоих к выводу, что имело место
нарушение каждой из этих статей.
ОСОБОЕ МНЕНИЕ СУДЬИ ДЕ МЕЙЕРА
По моему мнению, установленные в Судебном решении факты как в
отношении получения спорной магнитофонной записи, так и ее
использования в ходе судебного разбирательства свидетельствовали о
том, что имело место нарушение права заявителя на тайну телефонных
переговоров, а равно нарушение его права на справедливое
рассмотрение дела.
Верно, что жалоба была объявлена Комиссией неприемлемой в том,
что касалось самого факта записи.
Но "дело" (см. статью 45 Конвенции) было передано нам, а в силу
этого обстоятельства также и "все вопросы факта и права", которые
возникают по ходу его рассмотрения (см. Судебные решения по делу
Де Вильде, Оомс и Версип против Бельгии от 18 июня 1971 г. Серия
A, т. 12, с. 29, п. 49; по делу Хэндисайда от 7 декабря 1976 г.
Серия A, т. 24, с. 20, п. 41, и по делу Класс и другие от 6
сентября 1978 г. Серия A, т. 28, с. 17, п. 32).
Более того, получение и использование спорной магнитофонной
записи образовывали единое целое (см. Решения по делу Стогмюллера
от 10 ноября 1969 г. Серия A, т. 9, с. 41, п. 7, и по делу
Мацнеттера от той же даты. Серия A, т. 10, с. 31, п. 5), которое
было бы трудно разъединить как с позиций права, так и фактически.
Получение магнитофонной записи являлось необходимой предпосылкой
ее использования точно так же, как ее использование было
одновременно и целью, и "логическим продолжением" самой записи
(см. упомянутые выше Судебные решения по делу Стогмюллера и по
делу Мацнеттера, с. 32, п. 5, а также Судебные решения по делу
Уикса от 2 марта 1987 г., Серия A, т. 114, с. 21, п. 37, по делу
Олссон от 24 марта 1988 г. Серия A, т. 130, с. 28 - 29, п. 56).
Оба они стали поводом для принесения жалоб, которые были не только
очевидно взаимосвязаны (см. Судебные решения по делу Делькура от
17 января 1970 г. Серия A, т. 11, с. 20, п. 40; по делу
Винтерверпа от 24 октября 1979 г. Серия A, т. 33, с. 28, п. 72; по
делу Бениш от 6 мая 1985 г. Серия A, т. 92, с. 17, п. 37, и по
делу Джеймс и другие от 21 февраля 1986 г. Серия A, т. 98, с. 46,
п. 8) и "тесно переплетены" (см. упомянутые выше Судебные решения
по делу Делькура и делу Винтерверпа), но и в сущности идентичны.
Поэтому не было никаких причин, препятствовавших нам
рассмотреть этот процесс в целом во всех его взаимосвязях. Все
указывало на то обстоятельство, что на каждом из этих двух этапов
имело место нарушение двух основополагающих прав, о которых идет
речь.
EUROPEAN COURT OF HUMAN RIGHTS
CASE OF SCHENK v. SWITZERLAND
JUDGMENT
(Strasbourg, 12.VII.1988)
In the Schenk case <*>,
--------------------------------
<*> Note by the registry: The case is numbered 8/1987/131/182.
The second figure indicates the year in which the case was
referred to the Court and the first figure its place on the list
of cases referred in that year; the last two figures indicate,
respectively, the case's order on the list of cases and of
originating applications (to the Commission) referred to the Court
since its creation.
The European Court of Human Rights, taking its decision in
plenary session pursuant to Rule 50 of the Rules of Court and
composed of the following judges:
Mr. R. Ryssdal, President,
Mr. J. Cremona,
Mr. {Thor Vilhjalmsson}, <*>
Mrs. D. Bindschedler-Robert,
Mr. {F. Golcuklu},
Mr. F. Matscher,
Mr. J. Pinheiro Farinha,
Mr. L.-E. Pettiti,
Mr. B. Walsh,
Sir Vincent Evans,
Mr. R. Macdonald,
Mr. C. Russo,
Mr. R. Bernhardt,
Mr. A. Spielmann,
Mr. J. De Meyer
Mr. J.A. Carrillo Salcedo,
Mr. N. Valticos,
and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold,
Deputy Registrar,
--------------------------------
<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
Having deliberated in private on 25 March and 24 June 1988,
Delivers the following judgment, which was adopted on the last-
mentioned date:
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") and by the
Government of the Swiss Confederation ("the Government") on 15 and
28 July 1987 respectively, within the three-month period laid down
in Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the
Convention for the Protection of Human Rights and Fundamental
Freedoms ("the Convention"). It originated in an application (no.
10862/84) against Switzerland lodged with the Commission under
Article 25 (art. 25) by Mr. Pierre Schenk, a Swiss national, on 6
March 1984.
The Commission's request referred to Articles 44 and 48 (art.
44, art. 48) of the Convention and to the declaration whereby
Switzerland recognised the compulsory jurisdiction of the Court
(Article 46) (art. 46); the Government's application referred to
Articles 45, 47 and 48 (art. 45, art. 47, art. 48). Both sought a
decision from the Court as to whether the facts of the case
disclosed a breach by the respondent State of its obligations
under Article 6 para. 1 (art. 6-1).
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of the Rules of Court, the applicant stated that he
wished to take part in the proceedings pending before the Court
and designated the lawyer who would represent him (Rule 30).
3. The Chamber of seven judges to be constituted included ex
officio Mrs. D. Bindschedler-Robert, the elected judge of Swiss
nationality (Article 43 of the Convention) (art. 43), and Mr. R.
Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 27
August 1987, Mr. J. Cremona, the Vice-President of the Court, drew
by lot, in the presence of the Registrar, the names of the other
five members, namely himself, Mr. {F. Golcuklu}, Sir Vincent
Evans, Mr. C. Russo and Mr. J.A. Carrillo Salcedo (Article 43 in
fine of the Convention and Rule 21 para. 4) (art. 43).
4. Mr. Ryssdal had assumed the office of President of the
Chamber (Rule 21 para. 5) and, through the Registrar, consulted
the Agent of the Government, the Delegate of the Commission and
the lawyer for the applicant on the need for a written procedure
(Rule 37 para. 1). In accordance with the Order made in
consequence on 7 September, the Registrar received the
Government's memorial, on 30 November 1987, and the applicant's
memorial, on 4 December. On 22 January 1988, the Secretary to the
Commission informed the Registrar that the Delegate would submit
his observations at the hearing.
5. Having consulted, through the Registrar, those who would be
appearing before the Court, the President directed on 14 December
1987 that the oral proceedings should commence on 22 March 1988
(Rule 38).
6. On 25 February 1988, the Chamber decided, pursuant to Rule
50, to relinquish jurisdiction forthwith in favour of the plenary
Court.
7. The hearing was held in public in the Human Rights Building,
Strasbourg, on the appointed day. The Court had held a preparatory
meeting immediately beforehand.
There appeared before the Court:
(a) for the Government
Mr. O. Jacot-Guillarmod, Head of the Department of
International Affairs, Federal Office of Justice, Agent,
Mr. C. Vautier, formerly a cantonal judge,
Mr. P. Boillat, Federal Office of Justice, Counsel;
(b) for the Commission
Mr. J.-C. Soyer, Delegate;
(c) for the applicant
Mr. D. Poncet, avocat,
Mr. R. Assael, avocat,
Mr. M. Hottelier, avocat, Counsel.
The Court heard addresses by Mr. Jacot-Guillarmod for the
Government, by Mr. Soyer for the Commission and by Mr. Poncet for
the applicant.
AS TO THE FACTS
I. The circumstances of the case
8. Mr. Pierre Schenk, a Swiss national born in 1912, resides in
Tartegnin (Canton of Vaud). He is a company director.
In 1947, he married Josette P, who was born in 1927. In 1972,
serious disagreements arose between them, and they separated the
following year. In 1974, the applicant filed a petition for
divorce, which was finally granted on 10 December 1981 after an
agreement between the parties.
A. History of the case
9. On 28 February 1981, Mr. Schenk went to an advertising
agency in Annemasse (Haute-Savoie), where, under the assumed name
of Pierre Rochat, with an address in Lyons, he gave instructions
for the following advertisement to be published:
"Wanted. Former member of the Foreign Legion or similar for
occasional assignments; offer with telephone number, address and
curriculum vitae to RTZ 81 poste restante CH Basle 2."
From the replies to this advertisement the applicant selected a
Mr. Pauty, whom he met on several occasions and paid to carry out
a variety of assignments, including one in Haiti in May 1981.
10. At the beginning of June 1981, the applicant underwent an
operation in hospital.
Mr. Pauty arrived in Switzerland on 12 June and telephoned Mrs.
Schenk on the 18th. He visited her the following day and told her
that he had been commissioned by her husband to kill her. After
considering the possibility of killing Mr. Schenk or leading him
to believe that his wife was dead so that Mr. Pauty could collect
his fee, they went together to the investigating judge of the
Canton of Vaud on 20 June 1981.
B. Police inquiry and the judicial investigation
11. On 20 June 1981, the investigating judge interviewed Mr.
Pauty and then instructed Detective Inspector Rochat and Detective
Inspector Messerli of the Vaud police to interrogate him more
thoroughly, which they did on the same day. The judge interviewed
Mrs. Schenk "orally", in other words her statements were not taken
down in writing.
The following day, the Vaud police took a statement from Mr.
Pauty, for the second time, and also one from Mrs. Schenk.
12. On 22 June, the investigating judge issued letters rogatory
to the French 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 Inspector
Messerli should be authorised to take part in them. The judge
noted in particular:
"... it is necessary to discover what Mr. Pauty was doing in
Paris from March to June 1981 and to obtain information regarding
his character. It is also necessary to ascertain whether it is
true that Mr. Pauty saw Schenk, whom he claims to have met at the
Grand {Hotel,} and with whom he allegedly went to buy an air
ticket for Haiti."
On 23 June, the Crime Squad of the Paris Criminal Investigation
Department formally proceeded to comply with the letters rogatory,
and Mr. Pauty was accordingly interviewed the following day in the
presence of Inspector Messerli. Mr. Pauty said, inter alia:
"RTZ 81, that is to say Mr. Pierre Schenk, will certainly
contact me before long to ask for details of the murder of his
wife, Josette Schenk. He is supposed to send me or bring me the
agreed amount of 40,000 USD.
You asked me to come here and I would now ask you to give me
instructions as to how I should act when Mr. Schenk contacts me."
13. Mr. Pauty was expecting the applicant to telephone him and
he therefore set up a cassette recorder at his mother's home at
Houilles near Paris and connected it by microphone to the second
earphone of the telephone receiver.
On the morning of 26 June, at approximately 9.30 a.m., Mr.
Schenk telephoned Mr. Pauty from a kiosk at Saint-Loup
(Switzerland). Mr. Pauty recorded the conversation.
At about 10 a.m., Mr. Pauty telephoned the Crime Squad and was
put through to Mr. Messerli, who had planned to return to Lausanne
that same day by the midday train. Mr. Pauty played the recording
back to the inspector and asked him whether he would like to have
the cassette. Mr. Messerli said that he would and informed his
French colleagues who were present of this. Approximately one hour
later, Mr. Pauty arrived at the Crime Squad's offices and handed
the cassette over to Mr. Messerli.
14. Mr. Messerli, who on the previous day had telephoned the
investigating judge of the Canton of Vaud, took the cassette back
to Lausanne the same evening. On 30 June, he played the recording
back to Mrs. Schenk so that she could identify her husband's
voice. On the same day, the judge issued a warrant for the
applicant's arrest.
Mr. Schenk was arrested the next day, 1 July. Inspector Rochat
and Inspector Messerli were instructed by the judge to arrange a
confrontation between Mr. Pauty and Mr. Schenk, 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.
15. On 2 July, the inspectors reported to the judge the results
of the confrontation between Mr. Pauty and Mr. Schenk. 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 12 July. On 6
August 1981, the inspectors drew up a detailed report on the case
for him.
16. On 14 August, the file was sent to the applicant's lawyer,
who returned it on the same day. On 11 September, he requested a
full investigation of Mr. Pauty 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 23 September, the judge directed that the cassette should be
handed over to SK, the managing director of a tape-recorder
factory, who carried out the expert examination with J-CS, one of
his colleagues. At SK's request, the equipment that had been used
to make the recording, which had been seized at Houilles on 1
October by the French police in the presence of Mr. Messerli, was
also made available to him. He returned the cassette to the judge
on 29 October and submitted his report on 12 November.
17. On 3 February 1982, the investigating judge issued an order
discharging the applicant. The order read as follows:
"...
... Prima facie Mr. Pauty's accusations are supported by a
number of facts.
It is, for instance, strange that Pierre Schenk carefully
concealed his true identity from Richard Pauty and tried to cover
his tracks (advertisement for a legionnaire in a French newspaper,
use of an assumed name, use of a PO box in Basle, the fact that it
was always Schenk who telephoned Pauty, etc.).
...
It is clear that the recording of the telephone conversation of
26 June 1981 between Pierre Schenk and Richard Pauty has been
neither shortened nor tampered with.
It appears to confirm Richard Pauty's accusations.
Nevertheless, careful listening raises some doubt as to whether
the participants completely understood each other. Pierre Schenk,
in particular, gives the impression that he did not understand
very well what Richard Pauty was implying.
In the light of Richard Pauty's character, his past and his
explanations and statements to Josette Schenk, his statements
cannot be relied on with absolute confidence.
...
In conclusion, Richard Pauty's accusations and the evidence
gathered appear insufficient to commit Pierre Schenk for trial.
..."
18. On 23 February, the prosecutor appealed against the
investigating judge's decision, and in response to this appeal Mr.
Schenk filed a statement of defence on 8 March. In it he argued
that the central figure in the case was not him but Mr. Pauty,
who, according to information obtained, "[had] been a member of
the Foreign Legion, a chief steward in the Navy, a stunt man, a
bodyguard, an informer working for the Italian 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. Pauty had been acting merely as
an agent provocateur of the police on the day he made the
recording.
On 21 April 1982, the Indictment Division of the Vaud Cantonal
Court committed Mr. Schenk for trial at the Rolle District
Criminal Court on a charge of attempted incitement to murder. On
10 June, it remanded the applicant in custody, but Mr. Schenk
appealed and was released on 22 June.
C. The proceedings in the Rolle District Criminal Court
1. The trial on 9 - 13 August 1982
19. The proceedings at first instance at the Rolle District
Criminal Court lasted from 9 to 13 August 1982. The court was
composed of a professional judge, who presided, two lay judges and
six jurors. The defendant was assisted by his lawyer, Mr. Luthy.
20. At the outset the applicant made an interlocutory
application to have the recording removed from the file. The court
dismissed this application on the same day on the following
grounds:
"...
The file contains a recording whose removal is sought by the
defendant.
It was made by Richard Pauty, 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 Pierre Schenk without his knowledge,
Pauty may have committed an offence under Art. 179 ter CC [the
Swiss Criminal Code].
However, this is not sufficient ground for ordering the removal
of the recording from the file.
Art. 179 ter CC is applicable only where a complaint has been
lodged, and Pierre Schenk 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 Pauty's telephone tapped or simply because it would be
sufficient to take evidence from Pauty 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 the European Convention.
Moreover, it is interesting to note that the defendant appears
to have shifted his ground during the police inquiry.
On page 5 of the pleadings that he submitted to the Indictment
Division, counsel for the defence states as follows:
"The public prosecutor seeks to have played back the telephone
conversation recorded on 26 June 1981. 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."
21. Still on 9 August 1982, 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 two loudspeakers
installed by a specialist firm.
22. The same day, the court heard evidence from all the
witnesses except HR, who failed to appear. Three of the witnesses
had been subpoenaed by the court of its own motion (Mr. Pauty,
Mrs. Schenk and HR). Three other witnesses had been called at the
request of the defence (RF, JM-Z and GG). Inspector Messerli 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 SK, gave
evidence in the latter's stead on 9 and 10 August 1982.
The statements made by these witnesses were not taken down.
23. The presiding judge read out various documents: the order
of the Indictment Division committing the applicant for trial; the
police and intelligence reports in their entirety or in part;
various documents produced by Mr. Schenk or cited by either the
prosecution or the defence (Article 341, first paragraph, of the
Vaud Code of Criminal Procedure); 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 341,
second paragraph).
24. Under the Vaud Code of Criminal Procedure, 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 (Article 333), but not the jurors (Article 386).
2. The judgment of 13 August 1982
25. The Rolle District Criminal Court delivered its judgment on
13 August 1982. It found Mr. Schenk guilty of attempted incitement
to murder (Article 24 para. 2 of the Criminal Code) and sentenced
him to ten years' imprisonment, the minimum statutory sentence. It
ordered his immediate arrest.
26. The judgment contains the following account of the facts:
"On 28 February 1981, Pierre Schenk went to an advertising
agency in Annemasse, where, under the assumed name of Pierre
Rochat, with an address in Lyons, he gave instructions for the
following advertisement to be placed in three French newspapers,
{Le Provencal, Le Progres} de Lyon, and France-Soir:
"Wanted. Former member of the Foreign Legion or similar for
occasional assignments; offer with telephone number, address and
curriculum vitae to RTZ 81 poste restante CH Basle 2."
The agency employee warned him that the newspapers might not
accept such an advertisement; and, in fact, the advertisement
appeared only in France-Soir. Pierre Schenk paid the agency
1,520.57 FF. In reply to the advertisement he received several
offers and selected two of them, one from a Richard Pauty, living
at Houilles, near Paris, and another from someone whose first name
was Robert. After meeting Robert, Schenk decided against using
him. He therefore chose Pauty, with whom he arranged at least two
meetings in March and April 1981, at the {Grand-Hotel} in Paris,
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 Paris. He introduced himself as a member
of a very powerful organisation based in Germany. He told Pauty
that he was the organisation's representative in France. He also
said that Pauty would be under surveillance during his
assignments.
The first assignment given to Richard Pauty concerned a certain
[HR]. According to Richard Pauty, the mission - for which he was
promised payment of 40,000 dollars plus expenses - was to kill
[HR]. According to Pierre Schenk, 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 Court has not been able to establish with certainty the
real assignment given to Pauty....
...
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
(Compagnie {speciale} des troupes {metropolitaines}), then a
"bouncer", and had smuggled cars to Italy. Pierre Schenk 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 Josette Schenk. According to the
defendant's version of events, Pauty was supposed to provide him
with information on three matters:
(a) the amount that Mrs. Schenk had inherited from her father;
(b) whether she was having a house built in Haiti; 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 Haiti, murder Mrs.
Schenk, for 40,000 dollars, covering his tracks by simulating a
rape, a burglary or an accident. It is known that at the end of
April 1981 Schenk went with Pauty to a Paris travel agency. For
8,667 FF, he bought him a fortnight's package holiday in Haiti and
in addition gave him 4,000 CHF, i.e. approximately 10,000 FF, to
cover his expenses. Pauty left for Haiti on 27 April 1981. He went
to Port-au-Prince, where Mrs. Schenk spends three-quarters of the
year. Pierre Schenk had given Pauty a photograph of his wife so
that he could identify her. Josette Schenk left Port-au-Prince on
5 May 1981 and returned to Switzerland. Having established that
Josette Schenk was not in Haiti, Pauty completed his stay and
returned to France on 11 May, without moreover having obtained any
information whatsoever, except for one detail, which was
inaccurate - namely that Josette Schenk's husband was dead. On his
return to France, Pauty was contacted by Schenk on a date which
has not been established precisely, but which must have been 14
May (according to Schenk) or 15 or 16 May (according to Pauty).
Schenk claims that he telephoned Pauty from France. This is
possible, although it has not been proved. But neither has it been
established that he rang him from Switzerland. During this
telephone conversation, Schenk learnt that Pauty had returned
empty-handed from Haiti. He then instructed Pauty to come to
Switzerland to continue his assignment. According to Pauty, he was
supposed to kill Josette Schenk during the week of 12 - 18 June.
According to Schenk, that was precisely the week in which Pauty
was not supposed to come to Switzerland, because it was then that
Mrs. Schenk's daughter was expected to give birth. Thereafter,
there does not appear to have been any direct contact between
Schenk and Pauty until 26 June 1981, when Schenk telephoned Pauty.
This conversation will be considered further below. On 24 May
1981, Pauty sent a telegram to RTZ 81, worded as follows: "Contact
necessary". At this stage Pauty was totally unaware of RTZ's real
identity. A few days later, on 1 June 1981, when he entered St.-
Loup Hospital for an operation and after he had led Pauty to
believe that he would be away for two months in the Far East,
Schenk sent 3,500 CHF to Pauty in an envelope posted at {Eclepens}
to the address "RD poste restante 1003 Lausanne-Gare". The
defendant underwent his operation at the beginning of June. On 12
June, Richard Pauty came to Switzerland and began to look for Mrs.
Schenk. He contacted her by telephone on the evening of 18 June,
having, he claimed, decided to abandon what he alleges to have
been his assignment, i.e. to kill Mrs. Schenk, either because he
would have had to wait until RTZ 81's ostensible return in two
months' time to obtain more money, or because he realised that
there was something suspicious about RTZ's explanations. On 19
June, Pauty met Mrs. Schenk. He explained to her that he had been
instructed to kill her. Mrs. Schenk, 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. Schenk 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.
Schenk went to the police to tell their story, and on 20 June 1981
the investigation commenced. On 20 June, Pauty was interviewed in
Switzerland and on 24 June by the French police. On 26 June 1981,
having received the telegram of 24 May, Pierre Schenk rang Pauty
from St.-Loup Hospital. Pauty, who knew that RTZ 81, i.e. Pierre
Schenk, would call him sooner or later, had put a cassette in a
recorder which he had had for about a year 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. Schenk called from a
telephone kiosk, although he had a telephone in his hospital room.
He claims that he used seven one-franc coins for the call, but
this fact has not been established. On the tape an unidentified
person is heard answering Schenk's telephone call and putting him
on to Pauty. Schenk asks Pauty what he has been doing and the
following dialogue ensues:
RP Well, the jo...
PS I was wondering what you were d..., what had become of you.
RP Yes, no, there were one or two small problems and I didn't,
I couldn't do the job until the 23rd.
PS The 23rd?
RP Yes, Monday 23rd, Mon..., Mon..., I think it was the 23rd.
PS But where did it happen?
RP Well, I went to fetch some friends in Italy because we
couldn'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 don't know because the
body, we took the car and we... and I took it to near
Montreux. I don't know if it has been discovered yet
because I haven't seen it in the papers.
PS But what are you going to do now?
RP Sorry?
PS What's going to happen now?
RP Well, now I'm going to do the Paris one, aren't I?
PS What?
RP I'll do Paris.
PS No, I mean about work, the job.
RP Well, don'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,
isn't it?
RP I haven't seen it in the papers yet either, but it's like I
said, I hid it, I didn't just leave it...
PS Right, listen, it's quite straightforward, I'll call you in
a week's time.
RP In a week's time?
PS Will you be there in a week's time?
RP Yes, I'll be in Paris, yes.
PS Yes, yes, I... I... I follow you, right?
RP OK.
PS Good, because I... there hasn't been any news, I haven't
heard anything.
The conversation ends with the usual greetings. Pauty received
the call at approximately 9.30 a.m. At 10.00 a.m. he called the
Paris Crime Squad, and at around midday, having travelled from
Houilles to Paris, he brought the cassette to the inspector in
charge of the inquiry. This cassette was examined by an expert,
who found that:
1. The tape of the cassette had not been edited by the usual
method of cutting and splicing.
2. The characteristics of the recording corresponded exactly to
the recorder.
3. The tape did not have any usable traces of other recordings.
4. 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 four 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 day'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 an hour to an hour and a half's
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 26 June 1981. It considers that, as there is no evidence that
the recording has been tampered with and in view of the short time
available to Pauty 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 23 and 26 June 1981, Pauty sent two telegrams to RTZ 81. The
first ran: "Lausanne OK. Paris OK before 30. Need US d. for
cigarettes." The second was worded "Contract completed. Check
Lausanne-Montreux, no proof possible. Awaiting half US d. contract
before steps HR Paris." Schenk does not seem to have received
these telegrams.
In seeking to ascertain the general circumstances of the case,
the court has found that the Schenks, between whom there was an
age-gap of some fifteen years, were married in 1947. Until 1969 it
does not seem that the couple experienced any particular problems.
It is, however, certain that Mrs. Schenk always felt very lonely.
In May 1972, whilst Mrs. Schenk was in hospital, an expert, [A],
came to discuss with her a draft marriage contract and agreement
concerning inheritance rights which Pierre Schenk had had
prepared. This draft, which provided for a separation of property,
stipulated in substance that Josette Schenk 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 at least one and a half
million CHF, yielding an annual income of at least 60,000 CHF. It
was also provided that if the marriage was dissolved for any
reason other than death, Josette Schenk would have a life interest
in a portfolio of securities with a real indexed value of one and
a half million CHF.
Josette Schenk refused to sign this agreement. In 1973, she
sought protective measures. At the end of 1973, she and her
husband ceased to live together. Pierre Schenk instituted divorce
proceedings in 1974. The spouses saw each other again only at the
hearings in those proceedings, which were particularly bitter and
lasted more than seven years. In early February 1981, Josette
Schenk 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. Schenk and make it
easier to persuade the latter to review her position. On 8 April
1981, 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 10 December 1981, and the
divorce decree - which took effect from 2 February 1982 -
confirmed an agreement granting, inter alia, the wife the sum of
one and a half million CHF in respect of the liquidation of joint
assets and an indexed annuity paid in monthly instalments of 4,500
CHF.
The investigation showed that from the beginning of the divorce
proceedings Pierre Schenk 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. Schenk 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 1 July 1981
the defendant stated that he had wished to obtain the desired
information from Pauty within thirty days if possible. In court he
declared that this was not the case, that he had told Pauty that
he would be away for a while - so that the latter had plenty of
time - and that he had instructed Pauty that he should not come to
Lausanne during the week of 12 - 18 June because Mrs. Schenk's
daughter was due to give birth then. Finally, it had been agreed
that Pauty would be paid on Schenk's ostensible return from abroad
on the basis of the information which he provided. For his part,
Pauty confirmed that his assignment in Switzerland was to kill
Mrs. Schenk 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 RTZ 81.
Richard Pauty's personality is not particularly easy to
determine. He was born in 1947 and has had a number of somewhat
ill-defined jobs. He has worked as a stunt man and has had various
problems with the French civil and military authorities and with
the Italian authorities. Legally he is resident in Italy, but he
in fact lives at Houilles. It appears that he has occasionally
collaborated with the police, particularly the Italian police, on
matters related to drugs.
On the basis of the foregoing considerations, the court has, by
a majority, reached the conclusion that Pierre Schenk gave to
Richard Pauty the assignment of killing Josette Schenk. The
court's view is founded partly on the recording of the telephone
conversation of 26 June 1981. Where Pauty states that he was not
able to do the job until the 23rd, 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 don'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 report", 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, isn't it?". 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 Pauty's
actions) had not told him of it. We know that Pauty's actions were
not monitored. We also know that the "organisation" 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. Schenk.
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 Pauty mentions, moreover.
This consideration on its own lends credence to Pauty's version.
But there is also all the other evidence before the court: the
unbelievably elaborate precautions taken by the defendant; the
fact that for years 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 the Foreign Legion and who lacked training,
culture and ability to Haiti, and then to Switzerland, 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 Haiti - from where Pauty could at least have been expected to
return with the information whether Josette Schenk had or had not
had a house built - there was no reason to send Pauty to
Switzerland, where he had no contacts; the fact that the defendant
had spent more than 10,000 CHF 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 six years 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 eight years 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 Pierre Schenk 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 Schenk 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
RTZ 81, 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 Switzerland in the week in which Mrs.
Schenk'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.
Schenk'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 50% 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. Schenk the assignment given to Pauty 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 the Rolle
Criminal Court. During the investigation he was held on remand for
a fortnight.
Information obtained regarding the defendant's character is
favourable. He is well known and respected in Rolle. He is
extremely wealthy. He has never had any dealings with the police
and has never been convicted."
D. Proceedings in the Criminal Cassation Division
of the Vaud Cantonal Court
27. 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 23 September 1982, the Principal
Public Prosecutor of the Canton of Vaud 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.
28. On 15 November 1982, the Criminal Cassation Division of the
Vaud Cantonal Court 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, "Rechtswidrig erlangte
Beweismittel im Strafprozess", RPS [Revue {penale} suisse] 1966,
pp. 36 et seq.). In Clerc's view (Initiation {a} la justice
{penale} en Suisse, p. 150, no. 145), 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 the Swiss Federal Court] 96 I 437, c. 3 b, JT
[Journal des Tribunaux] 1972 I 217 summary; RO 103 Ia 206 = JT
1979 IV 16; Belschaw, 3.9.1980; OG ZH [Court of Appeal of the
Canton of {Zurich}]; SJZ [Schweizerische Juristen Zeitung] 1981,
no. 28, p. 130; KG ZH [Court of Cassation of the Canton of
{Zurich}]; BZR [{Blatter fur Zurcherische Rechtsprechung}] 1974,
no. 44, pp. 106 et seq.). But the distinction between unlawfulness
and procedural irregularity is often a fine one (Hauser, "Probleme
und Tendenzen im Strafprozess", RPS 1972, pp. 129, 130).
The criterion established by precedent has been considered
unsatisfactory by academic opinion (Hauser, op. cit., p. 131;
Hauser, Kurzlehrbuch des schweiz. Strafprozessrechts, p.147;
Walder, "Rechtswidrig erlangte Beweismittel im Strafprozess", RPS
1966, pp. 37 et seq.; Hutzli, Die {verfassungsmassigen}
bundesrechtlichen Schranken im einzelstaatlichen Strafprozess,
thesis, Berne, 1974, p. 227).
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.
Walder 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. 41). 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. 43). In his
view, certain evidence cannot be used directly, although its
indirect use, i.e. the use of evidence obtained as a result of it,
is possible (p. 45), or at least the use which has been made of
evidence obtained unlawfully cannot be disregarded (p. 47). Walder
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 cannot be used; this can be
done only by weighing up the interests and rights at stake (p.
59). 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. 51).
In Hauser's view (Kurzlehrbuch, p. 147), 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 (Pfenniger,
Probleme des schweiz. Strafprozessrechts, p. 191; Hauser,
Kurzlehrbuch, p. 146, para. 57 II 2, and p. 151, para. 58 III 2;
Walder, op. cit., p. 52).
Examination of the foregoing in the light of Article 6 para. 2
(art. 6-2) of the European Convention on Human Rights, 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 Poncet, La protection de {l'accuse} par la CEDH, pp. 89
et seq.). According to Article 8 para. 2 (art. 8-2) ECHR [the
European Convention on Human Rights], 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
democratic society in the interests of, inter alia, public safety
and the prevention of disorder or crime.
In the Klass judgment of 6 September 1978, the European Court
of Human Rights 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 democratic 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 (European Court of Human Rights, Series A, no. 28,
paras. 48 and 49, p. 23; see the arguments before the European
Commission of Human Rights, Yearbook of the European Convention on
Human Rights 1974, pp. 178 et seq., esp. pp. 184 et seq.).
In an earlier case, the Committee of Ministers took the view,
on 5 May 1971, that the tape recording of a private conversation
unbeknown to the participants or one 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 6 para. 1 (art. 6-1) of the
Convention (Yearbook 1971, pp. 902 et seq.). The Commission
expressed the same view (Yearbook 1969, pp. 156 et seq.).
More recently, the European Commission of Human Rights observed
in a German 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 8 para. 1 (art. 8-1) (13 December 1979,
Decisions and Reports no. 18, p. 180).
It is worth noting further that the Commission 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 (4 May 1979, Decisions
and Reports no. 16, pp. 207 et seq.).
It may be inferred from the foregoing that the view taken by
the institutions responsible for the application of the ECHR is no
stricter than the one adopted by the Federal Court in the
decisions cited.
The rules set out and discussed here, which concern the
investigating authorities, cannot 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. 42). 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 (Hauser, Kurzlehrbuch, p. 148; Walder,
op. cit., p. 48). As regards the acts of a private investigator,
opinion is divided. Hauser considers that there are no grounds for
distinguishing such investigators from official ones, since the
dangers of falsifying facts are even greater (Kurzlehrbuch, p.
148). Previous decisions of the courts have left the question open
(RO 99 V 15; RO 103 Ia 216, 9b; SJZ 1981 no. 28, 2b, p. 132).
It would have been unlawful for the police to record a
telephone conversation in Switzerland 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. 179 octies CC. The disputed
recording does not in itself constitute prohibited evidence either
under Swiss law or under the rules laid down by the European Court
of Human Rights. It may be conceded to the appellant that even in
the absence of any complaint, the private recording of Pauty's
telephone conversation with the defendant amounts to an offence in
itself (RO 81 IV 90 3a, JT 1955 IV 140). On the other hand, the
rule that was infringed - Art. 179 bis CC - 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 Walder 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
Pauty's 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 (Clerc, "Les moeurs de la police et la
morale", in Varia Juridica 1982, esp. p. 149). 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 (Clerc, op. cit.,
p. 146). 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 one case and immoral in
another (op. cit., p. 151).
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 Swiss law
and does not infringe the appellant's fundamental rights. Although
the recording was made and acquired by the police in France, it is
unnecessary to consider any more extensive rights which might
exist under foreign law. After all, France also allows telephone
tapping and the recording of telephone conversations, even though
the French Criminal Code likewise penalises such recording where
it is not authorised by the competent authority ({Precis} Dalloz,
{Procedure penale}, 1980, p. 34, Arts. 368 para. 1 and 372 para. 2
of the French Criminal Code). Furthermore, although in France
attempted incitement is not an offence, it would have been
possible under the European Convention on Mutual Assistance in
Criminal Matters of 20 April 1959, to which Switzerland and France
have acceded, for Switzerland to issue letters rogatory requesting
such monitoring. Unlike Switzerland, France 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
(Romanens, Die {Telefonuberwachung} als Gegenstand der Rechtshilfe
in Strafsachen, Berne thesis, 1974, p. 108).
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."
E. The proceedings in the Federal Court
29. Mr. Schenk lodged a public-law appeal and an application
for a declaration of nullity with the Federal Court against the
judgment of the Vaud Criminal Cassation Division. Both were
founded on the same complaints regarding the disputed recording.
The applicant claimed in substance that the recording was
unlawful; that the Criminal Court should therefore have ruled it
inadmissible as evidence; and that in not so doing, the court had
infringed in particular Article 36, paragraph 4, of the
Constitution, which guarantees the secrecy of communications,
Article 11 of the Vaud Act implementing the Criminal Code of 27
February 1980 and Articles 6 para. 2 and 8 (art. 6-2, art. 8) of
the Convention.
1. The public-law appeal
30. On 7 September 1983, the Federal Court (Criminal Cassation
Division) dismissed the public-law appeal on the following
grounds:
"(a) It can be accepted that the ingredients of an offence
under Art. 179 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. 179 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 the Criminal Code and of the
VACC [Vaud Act implementing the Criminal Code] 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 Swiss 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 Hans Walder, "Rechtswidrig erlangte Beweismittel im
Strafprozessrecht", in RPS 1966, pp. 36 et seq., and Klaus Rogall,
"{Gegenwartiger} Stand und Entwicklungstendenzen der Lehre von den
strafprozessualen Beweisverboten", in Zeitschrift {fur} die
gesamte Strafrechtswissenschaft 1979, pp. 1 et seq., esp. p. 15;
see also Karl Heinz {Gossel}, "Kritische Bemerkungen zum
{gegenwartigen} Stand der Lehre von den Beweisverboten im
Strafverfahren", in Neue juristische Wochenschrift 1981, p. 649).
In such a case it is necessary to balance, on the one hand, the
interest of the State 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 the Federal Republic of Germany, the Constitutional Court
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 a third 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 34 - 1973 - pp. 238 et seq., esp. 249).
In the instant case, it is necessary to weigh, on the one hand,
the interest in confirming or proving unfounded the specific
suspicions that Schenk was guilty of incitement to murder and, on
the other, Schenk'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 Schenk'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 Pauty. The need to
protect a person's privacy cannot 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
Rogall, op. cit., 1979, pp. 29 et seq.).
Moreover, it is relevant to point out that Swiss 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 State 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 cannot 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 Switzerland on
the line of the telephone kiosk in the hospital where Schenk 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 Constitution under Swiss law - when
certain conditions are satisfied - may be classified as minor
where it could have been ordered under Art. 179 octies para. 2 CC
(see ATF [Judgments of the Swiss Federal Court] 96 I 440).
(c) In this case, as Schenk 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 26 June 1981 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
[Rolle] District Criminal Court was entitled to refuse to rule the
tape inadmissible in evidence and could assess it as evidence
without infringing Swiss constitutional law. Nor, in so doing, did
that court infringe Arts. 6 and 8 (art. 6, art. 8) ECHR."
(Judgments of the Swiss Federal Court, vol. 109, part I, pp. 246 -
248)
2. The application for a declaration of nullity
31. Also on 7 September 1983, the Federal Court (Criminal
Cassation Division) dismissed the application for a declaration of
nullity. In particular, it declared inadmissible the submission
based on the playing of the telephone recording to the Criminal
Court: it held that this issue related to the introduction of
evidence, which was governed by cantonal procedure.
F. The applicant's release
32. On 6 July 1983, Mr. Schenk applied for a stay of execution
of his sentence on health grounds. The Head of the Vaud Department
of Justice, Police and Military Affairs rejected this application
on 7 December, whereupon the applicant lodged an administrative-
law appeal, which was dismissed by the Federal Court on 21
February 1984.
33. In August 1983, the applicant was transferred to Chamblon
geriatric hospital to complete his sentence.
On 5 December 1984, he was granted a partial pardon by the
Grand Council of the Canton of Vaud whereby the remainder of his
sentence was remitted, having regard in particular to the state of
his health. He was released on 8 December 1984.
II. The applicable domestic law
34. The Swiss Criminal Code contains the following provisions
relating to telephone tapping:
Article 179 bis
"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."
Article 179 ter
"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 one
year or a fine, if a complaint is made."
Article 179 quinquies
"The following shall not be guilty of an offence under the
first paragraph of Article 179 bis or the first paragraph of
Article 179 ter:
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."
Article 179 octies
"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 179 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."
35. Article 5 of the Swiss Criminal Code provides that the Code
may be applicable to offences committed abroad against Swiss
nationals:
"The present Code shall be applicable to anyone committing an
offence abroad against a Swiss national, provided that the offence
is punishable also in the State in which it was committed, where
the offender is in Switzerland and is not extradited abroad or
where he is extradited to the Confederation 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 Switzerland; if he has undergone abroad
only part of the penalty, the remainder shall be undergone in
Switzerland."
PROCEEDINGS BEFORE THE COMMISSION
36. Mr. Schenk lodged his application with the Commission on 6
March 1984 (application no. 10862/84). He claimed to be the victim
of an infringement of his right to respect for his private life
and his correspondence, which included the right to the
confidentiality of telephone communications (Article 8) (art. 8).
He also alleged that his right to a fair trial had been infringed
by reason of the use of the disputed recording in evidence
(Article 6 paras. 1 and 3) (art. 6-1, art. 6-3). Finally, he
complained of a failure to comply with the principle of the
presumption of innocence since his guilt had not been proved
"according to law" (Article 6 para. 2) (art. 6-2).
37. The Commission ruled on the admissibility of the
application on 6 March 1986. It dismissed the complaint based on
Article 8 (art. 8) concerning the making of the recording, on the
ground that the domestic remedies had not been exhausted. On the
other hand, it declared the application admissible in regard to
the use of the recording, while stating that the complaint based
on Article 6 para. 2 (art. 6-2) in fact came within the concept of
fair trial.
In its report of 14 May 1987 (made under Article 31) (art. 31),
it reached the conclusion, by eleven votes to two, that there had
been no violation of Article 6 para. 1 (art. 6-1). The full text
of the Commission's opinion and of the two dissenting opinions
contained in the report is reproduced as an annex to this
judgment.
THE GOVERNMENT'S FINAL SUBMISSIONS TO THE COURT
38. At the hearing on 22 March 1988, the Government confirmed
the submissions set out in their memorial, in which they requested
the Court to
"find that in this instance there has been no violation of
Article 6 para. 1 (art. 6-1) of the Convention".
AS TO THE LAW
I. Alleged violation of article 6 (art. 6)
A. Article 6 para. 1 (art. 6-1)
39. Mr. Schenk claimed firstly that making the recording of his
telephone conversation with Mr. Pauty and using it as evidence
contravened Article 6 para. 1 (art. 6-1), which provides:
"1. In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a fair
and public hearing within a reasonable time by an independent and
impartial tribunal established by law...."
40. According to him, the recording was carried out at the
instigation of the Swiss police. It was true that the Commission
had declared inadmissible for failure to exhaust domestic remedies
the complaint under Article 8 (art. 8) relating to the making of
the recording, but in order to review the fairness of the trial it
was nonetheless necessary to take as a basis the facts as they
occurred, particularly where, as here, a decisive circumstance was
involved.
The Court notes that the complaint that was declared
inadmissible by the Commission related solely to Article 8 (art.
8). The Court has no jurisdiction to examine it as such, but that
does not prevent consideration of it under another relevant
provision, in this instance Article 6 para. 1 (art. 6-1).
41. Mr. Schenk also asserted that the use of unlawfully
obtained evidence was enough to make the trial unfair and that his
conviction rested mainly on the recording. He did consider it
indeed necessary to weigh the conflicting interests - the public
interest in establishing the truth in the matter of a serious
criminal offence and the private interest in preserving the
confidentiality of a telephone conversation - but, he submitted,
this process had to take place before any telephone tapping, not
after the event, and never unlawfully.
As to the rest, he made two submissions. Firstly, he complained
that Inspector Messerli was never summoned to appear as a witness.
Admittedly, the defence did not summon him to appear either during
the judicial investigation or at the trial, but that omission, he
said, was accounted for in the first case by the expectation -
which was fulfilled - of a discharge (see paragraph 17 above) and,
in the second case, by the fact that Mr. Messerli was convinced of
the defendant's guilt (see paragraph 15 above). Secondly, Mr.
Schenk criticised the manner in which the Rolle Criminal Court
heard the cassette. He contended that headphones should have been
installed and even that special arrangements should have been made
to cater for the fact that he was deaf.
42. The Government thought it necessary to distinguish between
the case of the authorities using unlawful means to obtain or
prepare evidence subsequently used by a court and the case of an
unlawful act by an individual who subsequently handed over the
evidence to the authorities. They added that the interests at
stake had to be weighed and that, moreover, the recording was not
the only piece of evidence; and they referred to the decisions of
the courts in the instant case.
43. The Government did not dispute that the recording in issue
was obtained unlawfully. The Swiss courts that dealt with the case
had themselves recognised that.
The Rolle Criminal Court, for instance, had found that the
recording "[had] not [been] authorised or ordered by the competent
authority" (see paragraph 20 above).
The Criminal Cassation Division of the Vaud Cantonal Court
said, "It may be conceded to the appellant that even in the
absence of any complaint, the private recording of Pauty's
telephone conversation with the defendant amounts to an offence in
itself" (see paragraph 28 above).
Lastly, the Federal Court held that "it [could] be accepted
that the ingredients of an offence under Art. 179 ter CC were
present as far as the disputed recording is concerned" (see
paragraph 30 above).
44. The three courts nonetheless admitted the recording in
evidence.
The Rolle Criminal Court held, inter alia, that "in any case,
the content of the recording could have been included in the file,
either because the investigating judge had had Pauty's telephone
tapped or simply because it would be sufficient to take evidence
from Pauty regarding the content of the recording" and that
"acceptance of the defendant's argument would make it necessary to
exclude a large proportion of evidence in criminal proceedings"
(see paragraph 20 above).
The Criminal Cassation Division of the Vaud Cantonal Court
noted that "the disputed recording [did] not in itself constitute
prohibited evidence", that "if regard [was] had to the balance of
the interests and rights at stake..., the difference between
authorised tapping and unauthorised recording [was] 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" and that "the means used in this
case remained within the limits of what is acceptable for the
purposes of combating crime" (see paragraph 28 above).
The Federal Court held that "the public interest in having the
truth established in the matter of an offence relating to murder
[overrode] Schenk's interest in maintaining the confidentiality of
a telephone conversation which in no way bore upon his privacy"
(see paragraph 30 above).
45. According to Article 19 (art. 19) of the Convention, the
Court's duty is to ensure the observance of the engagements
undertaken by the Contracting States in the Convention. In
particular, it is not its function to deal with errors of fact or
of law allegedly committed by a national court unless and in so
far as they may have infringed rights and freedoms protected by
the Convention.
46. While Article 6 (art. 6) of the Convention guarantees the
right to a fair trial, it does not lay down any rules on the
admissibility of evidence as such, which is therefore primarily a
matter for regulation under national law.
The Court therefore cannot exclude as a matter of principle and
in the abstract that unlawfully obtained evidence of the present
kind may be admissible. It has only to ascertain whether Mr.
Schenk's trial as a whole was fair.
47. Like the Commission it notes first of all that the rights
of the defence were not disregarded.
The applicant was not unaware that the recording complained of
was unlawful because it had not been ordered by the competent
judge. He had the opportunity - which he took - of challenging its
authenticity and opposing its use, having initially agreed that it
should be heard (see paragraph 18 above). The fact that his
attempts were unsuccessful makes no difference.
Furthermore, at the outset of the judicial investigation Mr.
Schenk sought and obtained an investigation of Mr. Pauty (see
paragraph 16 above).
Moreover, counsel for the applicant could have examined Mr.
Pauty - who had been summoned as a witness - during the trial at
the Rolle Criminal Court (see paragraph 22 above).
Lastly, Mr. Schenk did not summon Inspector Messerli to appear,
although he was in charge of the investigation and responsible for
obtaining evidence under the letters rogatory executed in France
at the request of the Swiss authorities (see paragraph 12 above).
48. The Court also attaches weight to the fact that the
recording of the telephone conversation was not the only evidence
on which the conviction was based. The Rolle Criminal Court
refused to declare the cassette inadmissible in evidence as it
would have been sufficient to hear the evidence of Mr. Pauty as a
witness in respect of the recording's content (see paragraph 20
above). It also heard evidence from several other witnesses, who
were subpoenaed by the court of its own motion - like Mrs. Schenk
- or called at the request of the defence (see paragraph 22
above). It carefully stated in several passages of its judgment
that it relied on evidence other than the recording but which
corroborated the reasons based on the recording for concluding
that Mr. Schenk was guilty. Of particular significance in this
connection is the following passage:
"The court's view is founded partly on the recording of the
telephone conversation of 26 June 1981.... But there is also all
the other evidence before the court: the unbelievably elaborate
precautions taken by the defendant; the fact that for years 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 the Foreign Legion and who lacked training, culture and ability
to Haiti, and then to Switzerland, in order to obtain relatively
innocuous information which was in any event of doubtful relevance
for the purpose of the divorce proceedings; the fact that after
the failure of the [HR] assignment and the assignment in Haiti -
from where Pauty could at least have been expected to return with
the information whether Josette Schenk had or had not had a house
built - there was no reason to send Pauty to Switzerland, where he
had no contacts; the fact that the defendant had spent more than
10,000 CHF 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." (See paragraph 26 above)
It emerges clearly from this passage that the criminal court
took account of a combination of evidential elements before
reaching its opinion.
49. In conclusion, the use of the disputed recording in
evidence did not deprive the applicant of a fair trial and
therefore did not contravene Article 6 para. 1 (art. 6-1).
B. Article 6 para. 2 (art. 6-2)
50. Mr. Schenk also claimed that, owing to the use of the
unlawfully obtained recording, he had not been proved guilty
"according to law". In his submission, there had been a failure to
apply the principle of the presumption of innocence, guaranteed in
Article 6 para. 2 (art. 6-2), which provides:
"Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
The Government challenged that assertion.
In the Commission's view, the complaint in reality came within
the scope of the concept of fair trial. The reference to Article 6
para. 2 (art. 6-2) was the result of an erroneous interpretation.
At the hearing before the Court the Delegate added that in the
instant case the defendant had been presumed innocent until proved
guilty according to law, as the Swiss courts had held the trial to
have been perfectly lawful as a whole, despite the failure to
comply with a "criminal provision".
51. In the Court's opinion, the record of the hearings of 9 -
13 August and the judgment of 13 August 1982 (see paragraphs 19 -
23 and 26 above) contain nothing to suggest that the Rolle
Criminal Court treated Mr. Schenk as if he were guilty before it
convicted him. The mere inclusion of the cassette in the evidence
cannot suffice to support the applicant's allegation, with the
result that there was no breach of the Convention here either.
II. Alleged violation of article 8 (art. 8)
52. Mr. Schenk claimed, lastly, to be the victim of a violation
of his right to respect for his private life and his
correspondence, a right which included the right to
confidentiality of telephone communications. He relied on Article
8 (art. 8) of the Convention, which provides:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
He argued that the Commission had declared inadmissible only
the complaint relating to the making of the disputed recording. He
consequently asked the Court to examine under Article 8 (art. 8)
the use of the cassette as evidence and to hold it to have been
contrary to this provision too. He put forward the following
factors: delivery of the cassette to the police and its use by
them; its handing over to the investigating judge and his
listening to it; forwarding of the file to the Principal Public
Prosecutor and then to the Indictment Division; dispatch to the
lawyers by post; opportunity for access by many people, such as
the employees of the registry; inclusion of the cassette in the
file of the Rolle Criminal Court and its playback during the
trial.
The Government regarded the discussion of the complaints based
on Article 8 (art. 8) as closed and referred to the Commission's
report.
53. The Court notes that in its decision of 6 March 1986 the
Commission declared inadmissible, on the ground that domestic
remedies had not been exhausted, only "the complaint concerning
the making of the disputed recording" (see paragraph 37 above).
That being so, nothing would prevent the Court from considering
the question of the use made of the recording. However, this is
not necessary in the instant case, as the issue is subsumed under
the question (already dealt with from the point of view of Article
6) (art. 6) of the use made of the cassette during the judicial
investigation and the trial.
FOR THESE REASONS, THE COURT
1. Holds by thirteen votes to four that there has been no
violation of Article 6 para. 1 (art. 6-1) of the Convention;
2. Holds unanimously that there has been no violation of
Article 6 para. 2 (art. 6-2);
3. Holds by fifteen votes to two that it is not necessary to
examine the case under Article 8 (art. 8).
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 12 July 1988.
Signed: Rolv RYSSDAL
President
For the Registrar
Signed: Jonathan L. SHARPE
Head of Division in the
registry of the Court
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 52 para. 2 of the Rules of Court, the
following separate opinions are annexed to this judgment:
(a) joint dissenting opinion of Mr. Pettiti, Mr. Spielmann, Mr.
De Meyer and Mr. Carrillo Salcedo;
(b) joint dissenting opinion of Mr. Pettiti and Mr. De Meyer;
(c) dissenting opinion of Mr. De Meyer.
Initialled: R.R.
Initialled: J.L.S.
JOINT DISSENTING OPINION OF JUDGES PETTITI,
SPIELMANN, DE MEYER AND CARRILLO SALCEDO
(Translation)
The majority of the Court considered that Article 6 (art. 6) of
the Convention did not lay down any rules on "the admissibility of
evidence as such, which is therefore primarily a matter for
regulation under national law". It held that it could not "exclude
as a matter of principle and in the abstract that unlawfully
obtained evidence of the... kind [concerned] [might] be
admissible" and that it had "only to ascertain whether [the] trial
as a whole [had been] fair" <*>.
--------------------------------
<*> para. 46 of the judgment.
Admittedly, the Court has limited the scope of its judgment by
confining it to the particular facts, but it was, in our view,
under an obligation to address the problem of the unlawfulness of
the evidence.
To our very great regret, we cannot share the majority's view
since, in our opinion, compliance with the law when taking
evidence is not an abstract or formalistic requirement. On the
contrary, we consider that it is of the first importance for the
fairness of a criminal trial.
No court can, without detriment to the proper administration of
justice, rely on evidence which has been obtained not only by
unfair means but, above all, unlawfully. If it does so, the trial
cannot be fair within the meaning of the Convention.
In the instant case, it is not disputed that "the recording in
issue was obtained unlawfully" <*>.
--------------------------------
<*> para. 43 of the judgment.
Even if the courts which determined the charge against the
applicant relied, as is noted in the judgment, on "evidence other
than the recording but which corroborated the reasons based on the
recording for concluding that [the person concerned] was guilty"
<*>, it remains true that they "admitted the recording in
evidence" <**> and that their decisions were "partly" <***>
founded on the disputed cassette.
--------------------------------
<*> para. 48 of the judgment.
<**> para. 44 of the judgment.
<***> paras. 26 and 48 of the judgment.
For these reasons, we have reached the conclusion that in this
case there was a violation of the right to a fair trial as secured
in Article 6 (art. 6) of the Convention.
JOINT DISSENTING OPINION
OF JUDGES PETTITI AND DE MEYER
(Translation)
We are of the view that the Court should have considered the
facts under Article 8 (art. 8) of the Convention as well as under
Article 6 (art. 6).
This would probably have led both of us to find that each of
those Articles (art. 8, art. 6) had been violated.
DISSENTING OPINION OF JUDGE DE MEYER
(Translation)
In my opinion, the facts established in the judgment disclosed,
both as regards the making of the disputed recording and as
regards its use in court proceedings, a violation of the
applicant's right to the confidentiality of his telephone
communications as well as a violation of his right to a fair
hearing.
It is true that the application was declared inadmissible by
the Commission in so far as it related to the making of the
recording.
But the "case" <*> was referred to us and, by that very fact,
so also were "all questions of fact and of law" which arose in the
course of considering it <**>.
--------------------------------
<*> Article 45 (art. 45) of the Convention.
<**> De Wilde, Ooms and Versyp judgment of 18 June 1971, Series
A no. 12, p. 29, para. 49. See also the Handyside judgment of 7
December 1976, Series A no. 24, p. 20, para. 41, and the Klass and
Others judgment of 6 September 1978, Series A no. 28, p. 17, para.
32.
Furthermore, the making and use of the disputed recording were
"directly related" <1> to each other: they formed a whole which
could hardly be split up, both in law and in fact. The making of
the recording was a necessary prerequisite of its use, just as its
use was at the same time the purpose and "extension" <2> of the
making of it. Both gave rise to complaints which were not only
obviously connected <3> and "intimately linked" <4> but
essentially the same.
--------------------------------
<1> See the {Stogmuller} judgment of 10 November 1969, Series A
no. 9, p. 41, para. 7, and the Matznetter judgment of the same
date, Series A no. 10, p. 31, para. 5.
<2> See the {Stogmuller} judgment previously cited, loc. cit.,
and the Matznetter judgment previously cited, p. 32, para. 5, and
also the Weeks judgment of 2 March 1987, Series A no. 114, p. 21,
para. 37, and the Olsson judgment of 24 March 1988, Series A no.
130, pp. 28 - 29, para. 56.
<3> See the following judgments: Delcourt, 17 January 1970,
Series A no. 11, p. 20, para. 40; Winterwerp, 24 October 1979,
Series A no. 33, p. 28, para. 72; {Bonisch}, 6 May 1985, Series A
no. 92, p. 17, para. 37; and James and Others, 21 February 1986,
Series A no. 98, p. 46, para. 8.
<4> See the Delcourt judgment previously cited, loc. cit., and
the Winterwerp judgment previously cited, loc. cit.
There was accordingly no reason why we should not have looked
at the process in issue as a whole. Everything pointed to the fact
that in each of its two phases it had violated the two fundamental
rights in question.
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