Dissenting opinion in Schenk v. Switzerland
Commission's opinion in Schenk - dissenting opinion - originally published in Publications of the European Court of Human Rights, Series A, Vol 140
Opinion of the European Commission of Human Rights in Schenk v. Switzerland, 12 July 1988.
[p 42]
SCHENK CASE
DISSENTING OPINION OF Mr. TRECHSEL AND Mr. VANDENBERGHE
With great regret we find that we cannot agree with the opinion of the majority of the Commission that the use of the unlawful recording of a telephone conversation between the applicant and R.P. was consistent with Article 6 §1 of the Convention insofar as it secures the right to a fair trial. Indeed, after much reflection, we have reached the conclusion that the concept of "fair trial" does encompass a general requirement of lawfulness.
The question whether in a criminal investigation the statements of an accused have been obtained lawfully or not is of crucial importance for the fairness of a criminal trial. This is particularly true in relation to confessions.
In the present case, it is not disputed that the recording in question was made in breach of French and Swiss law. The perpetrator is in principle liable to punishment under Swiss law. He infringed Article 179 ter of the Swiss Criminal Code (SCC). It is not necessary to decide whether the offence was committed in Switzerland within the meaning of Article 3 and 7 SCC, becuase it was directed against a Swiss national and in consequence the SCC applies by virtue of Article 3 thereof. Moreover, there was no justification for the offence. In particular, R.P. cannot plead necessity. The law of criminal procedure and that of international mutual assistance in criminal matters lay down the applicable provisions and the rules under which a State may, exceptionally, interfere with the right to privacy under certain conditions and providing it complies with the jurisdictional and procedural rules.
We were particularly concerned by a sentence at the end of paragraph 61 of the report, which is taken from the judgment of the Federal Court: "the public interest in establising the truth with regard to an offence involving a murder overrides the applicant's interests in preserving the secrecy of his conversation". According to this principle, the Code of Criminal Procedure is discarded for reasons of expediency, which is in our view very dangerous. The right to rely on procedural guarantees cannot be granted à la carte, in other words according to the nature of the offence and the procedural "necessity" for the prosecution to use evidence in order to be able to "prove" the accused's guilt. Moreover, how is it possible to justify proceedings outside the law with a view to bringing proceedings against unlawful conduct? The dictum "ex iniuria ius non oritur" does not merely have a legal effect but applies also to the authority, credibility and honour of the institutions responsible for applying the law.
It is true that it is asserted in the legal opinion furnished by the respondent Government that the evidence would have been admissible in most of the High Contracting Parties. However, it is worth noticing two sentences from the intruduction to this legal opinion which summarise the results: "There is clearly a close connection between the initial
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question and the assessment of the lawfulness or the unlawfulness of the tape recording. In the countries in which the tape would be admissible in evidence, the recording would not be considered unlawful". In Switzerland, on the other hand, the unlawfulness of the recording is clear. Accordingly, in our view, the weight of the argument based on comparative law that there is now breach of Article 6 is considerably diminished. Moreover, we do not accept the view that the Convention must, where possible, be interpreted so as to avoid divergences between the national legal systems, although such divergences should not be disregarded.
Finally, we endorse the concurring opinion of Mr. Danelius, joined by Mr. Weitzel and Sir Basil Hall. It is not necessary, nor, moreover, possible to determine the weight which the court attributed to the evidence in question or to carry out, ex post facto an assessment of evidence based on a hypothetical situation in which the disputed recording did not exist. It is in fact sufficient that the recording was used as one piece of evidence, albeit among many others, on the basis of which the applicant's guilt was established.
For these reasons we have reached the conclusion that there was a breach of Article 6 of the Convention in the instant case.
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Ex post facto = After the facts (lit. from something done afterward)
Ex iniuria ius non oritur = Right can not grow out of injustice / An illegality cannot become a source of legal right to the wrongdoer (generally used in the meaning: acts which are contrary to international law cannot become a source of legal rights for the wrongdoer - see H. Lauterpacht. Recognition in International Law. Cambridge, University Press, 1947 p. 420):
Also used in the meaning: Illegal use of force and conquest do not create rights / from a wrong, no right can be derived.
The opinion is reproduced here for educational and academic purposes only
Recommended reading: Trechsel, Stefan. Human Rights in Criminal Proceedings. Oxford University Press, NY 2005