CONSEIL COUNCIL

DE L’EUROPE OF EUROPE

COUR EUROPÉENNE DES DROITS DE L’HOMME

EUROPEAN COURT OF HUMAN RIGHTS

GRAND CHAMBER

CASE OF BYKOV v. RUSSIA

(Application no. 4378/02)

JUDGMENT

STRASBOURG

10 March 2009

This judgment is final but may be subject to editorial revision.

 BYKOV v. RUSSIA JUDGMENT 1

In the case of Bykov v. Russia,

The European Court of Human Rights, sitting as a Grand Chamber
composed of:
Jean-Paul Costa, President,
Christos Rozakis,
Nicolas Bratza,
Peer Lorenzen,
Françoise Tulkens,
Josep Casadevall,
Ireneu Cabral Barreto,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Ljiljana Mijović,
Dean Spielmann,
David Thór Björgvinsson,
George Nicolaou,
Mirjana Lazarova Trajkovska,
Nona Tsotsoria, judges,
and Michael O'Boyle, Deputy Registrar,
Having deliberated in private on 18 June 2008 and on 21 January 2009,
Delivers the following judgment, which was adopted on the
last-mentioned date:

PROCEDURE
1. The case originated in an application (no. 4378/02) against the
Russian Federation lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Russian national, Mr Anatoliy Petrovich Bykov
(“the applicant”), on 21 December 2001.
2. The applicant was represented by Mr D. Krauss, Professor of Law at
Humboldt University, Berlin, and by Mr J.-C. Pastille and Mr G. Padva,
lawyers practising in Riga and Moscow respectively. The Russian
Government (“the Government”) were initially represented by Mr P. Laptev
and Ms V. Milinchuk, former Representatives of the Russian Federation at
the European Court of Human Rights, and subsequently by their
Representative, Mr G. Matyushkin.
3. The applicant complained under Article 6 § 1 and Article 8 of the
Convention about the covert recording made at his home and its use as
evidence in the ensuing criminal proceedings against him. He also alleged
2 BYKOV v. RUSSIA JUDGMENT

that his pre-trial detention was excessively long and not justified for the
purposes of Article 5 § 3 of the Convention.
4. The application was allocated to the First Section of the Court
(Rule 52 § 1 of the Rules of Court). On 7 September 2006 it was declared
partly admissible by a Chamber of that Section composed of the following
judges: Christos Rozakis, Loukis Loucaides, Françoise Tulkens, Nina Vajić,
Anatoly Kovler, Elisabeth Steiner, Khanlar Hajiyev, and also of Søren
Nielsen, Section Registrar. On 22 November 2007 a Chamber of that
Section, composed of the following judges: Christos Rozakis, Loukis
Loucaides, Nina Vajić, Anatoly Kovler, Elisabeth Steiner, Khanlar Hajiyev,
Dean Spielmann, and also of Søren Nielsen, Section Registrar, relinquished
jurisdiction in favour of the Grand Chamber, none of the parties having
objected to relinquishment (Article 30 of the Convention and Rule 72).
5. The composition of the Grand Chamber was determined according to
the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the
Rules of Court.
6. The applicant and the Government each filed written observations on
the merits.
7. A hearing took place in public in the Human Rights Building,
Strasbourg, on 18 June 2008 (Rule 59 § 3).
There appeared before the Court:

(a) for the Government

Ms V. MILINCHUK, Agent,
Ms I. MAYKE,
Ms Y. TSIMBALOVA,
Mr A. ZAZULSKIY, Advisers;

(b) for the applicant

Mr D. KRAUSS,
Mr J.-C. PASTILLE, Counsel,
Mr G. PADVA,
Ms J. KVJATKOVSKA, Advisers.

The applicant was also present.

The Court heard addresses by Mr Krauss and Ms Milinchuk, as well as
the answers by Mr Pastille and Ms Milinchuk to questions put to the parties.
 BYKOV v. RUSSIA JUDGMENT 3

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

8. The applicant was born in 1960 and lives in Krasnoyarsk.

9. From 1997 to 1999 the applicant was chairman of the board of the
Krasnoyarsk Aluminium Plant. At the time of his arrest in October 2000 he
was a major shareholder and an executive of a corporation called OAO
Krasenergomash-Holding and a founder of a number of affiliated firms. He
was also a deputy of the Krasnoyarsk Regional Parliamentary Assembly.

A. Covert operation

10. In September 2000 the applicant allegedly ordered V., a member of

his entourage, to kill S., the applicant's former business associate. V. did not
comply with the order, but on 18 September 2000 he reported the applicant
to the Federal Security Service of the Russian Federation (“the FSB”). On
the following day V. handed in the gun which he had allegedly received
from the applicant.
11. On 21 September 2000 the Prosecutor of the Severo-Zapadnyy
District of Moscow opened a criminal investigation in respect of the
applicant on suspicion of conspiracy to murder.
12. On 26 and 27 September 2000 the FSB and the police decided to
conduct a covert operation to obtain evidence of the applicant's intention to
murder S.
13. On 29 September 2000 the police staged the discovery of two dead
men at S.'s home. They officially announced in the media that one of those
killed had been identified as S. The other man was his business partner, I.
14. On 3 October 2000 V., acting on the police's instructions, came to
see the applicant at his estate. He carried a hidden radio-transmitting device
while a police officer outside received and recorded the transmission. He
was received by the applicant in a “guest house”, a part of the estate
connected to his personal residence. In accordance with the instructions, V.
engaged the applicant in conversation by telling him that he had carried out
the assassination. As proof of his accomplishment he handed the applicant
several objects taken from S. and I.: a certified copy of a mining project
feasibility study marked with a special chemical agent, two watches
belonging to S. and I. and 20,000 United States dollars (USD) in cash. At
the end of the conversation V. took the cash, as suggested by the applicant.
The police obtained a sixteen-minute recording of the dialogue between V.
and the applicant.
15. On 4 October 2000 the applicant's estate was searched. Several
watches were seized, including those belonging to S. and I. A chemical
4 BYKOV v. RUSSIA JUDGMENT

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

B. Pre-trial detention

17. Following the applicant's arrest on 4 October 2000, on 6 October

2000 the Deputy Prosecutor of the Severo-Zapadnyy District of Moscow
ordered his detention during the investigation, having found that it was “in
accordance with the law” and necessary in view of the gravity of the charge
and the risk that the applicant might influence witnesses. Further extensions
were ordered by the competent prosecutor on 17 November 2000 (until
21 December 2000) and on 15 December 2000 (until 21 March 2001). The
reasons for the applicant's continued detention were the gravity of the
charge and the risk of his influencing the witnesses and obstructing the
investigation. The applicant appealed against each of these decisions to a
court.
18. On 26 January 2001 the Lefortovskiy District Court of Moscow
examined the applicant's appeal against his continued detention on remand
and confirmed the lawfulness of his detention. The court referred to the
gravity of the charge and noted that this measure had been applied in
accordance with the law. The applicant lodged a further appeal, which was
also dismissed by the Moscow City Court.
19. In view of the forthcoming expiry of the term of the applicant's
detention, its further extension was ordered by the competent prosecutor,
first on 15 March 2001, until 4 April 2001, and then on 21 March 2001,
until 4 June 2001, still on the grounds of the gravity of the charge and the
risk of his influencing the witnesses and obstructing the investigation. The
applicant challenged the extensions before the court.
20. On 11 April 2001 the Lefortovskiy District Court of Moscow
declared that the applicant's detention until 4 June 2001 was lawful and
necessary on account of the gravity of the charge. The applicant lodged an
 BYKOV v. RUSSIA JUDGMENT 5

appeal with the Moscow City Court, which was dismissed on 15 May 2001.
The appeal court considered the applicant's detention lawful and necessary
“until the bill of indictment had been submitted or until the applicant's
immunity had been confirmed”.
21. On 22 May 2001 the Deputy Prosecutor General extended the
applicant's detention on remand until 4 September 2001, still on the grounds
of the gravity of the charge and the risk of his influencing the witnesses and
obstructing the investigation.
22. On 27 August 2001 the case was referred to the Tushinskiy District
Court of Moscow. On 7 September 2001 the court scheduled the hearing for
26 September 2001 and authorised the applicant's further detention without
indicating any reasons or the length of the extension. On 3 October 2001 the
Moscow City Court examined and dismissed an appeal by the applicant,
upholding his continued detention without elaborating on the reasons.
23. On 21 December 2001 the Meshchanskiy District Court of Moscow
scheduled the hearing for 4 January 2002 and authorised the applicant's
further detention, citing no reasons. The court did not indicate the length of
the prospective detention. It again reviewed the lawfulness of the applicant's
detention on 4 January 2002 but found that it was still necessary owing to
the gravity of the charges and the “circumstances of the case”. An appeal by
the applicant to the Moscow City Court was dismissed on 15 January 2002.
24. Further applications by the applicant for release were examined on
23 January, 6 March, 11 March and 23 April 2002. As before, the
Meshchanskiy District Court of Moscow refused his release, citing the
gravity of the charge and the risk of his evading trial and influencing the
witnesses. The applicant was released on 19 June 2002 following his
conviction (see paragraph 45 below).

C. Criminal investigation and trial

25. On 3 October 2000, immediately after visiting the applicant in the

“guest house”, V. was questioned by the investigators. He reported on the
contents of his conversation with the applicant and submitted that he had
handed him the gun, the watches and the feasibility study. He was
subsequently questioned on 12 October, 9 November, 8 December and
18 December 2000.
26. The applicant was questioned as a suspect for the first time on
4 October 2000. From October to December 2000 he was questioned at least
seven times.
27. On 10 October 2000 the applicant and V. were questioned in a
confrontation with each other. The applicant's legal counsel were present at
the confrontation. The statements made by the applicant on that occasion
were subsequently summarised in the indictment, of which the relevant part
reads as follows:
6 BYKOV v. RUSSIA JUDGMENT

“At the confrontation between A.P. Bykov and [V.] on 10 October 2000 Bykov
altered, in part, certain substantive details of his previous statements, as follows. [He]
claims that he has been acquainted with [V.] for a long time, about 7 years; they have
normal relations; the last time he saw him was on 3 October 2000, and before that
they had been in contact about two years previously. He has never given any orders or
instructions to [V.], including any concerning [S.]. When [V.] came to see him on
3 October 2000 he began to tell him off for coming to him. When he asked [V.] who
had told him to kill [S.] he replied that nobody had, he had just wanted to prove to
himself that he could do it. He began to comfort [V.], saying that he could help with
his father; [he] did not suggest that [V.] flee the town [or] the country, and did not
promise to help him financially. He did not instruct [V.] on what to do if [V.] was
arrested; he asked him what was going to happen if he was arrested; [V.] said that he
would tell how it all happened and would confess to having committed the crime, [and
the applicant] approved of that. Concerning K., Bykov stated that this was his partner
who lived and worked in Switzerland; he admitted de facto that he had spoken to him
on the phone at the beginning of August ... but had given him no directions about
[V.]”
28. On 13 October 2000 the applicant was charged with conspiracy to
murder. Subsequently the charges were extended to include conspiracy to
acquire, possess and handle firearms.
29. On 8 December 2000 two appointed linguistic experts examined the
recording of the applicant's conversation with V. of 3 October 2000 and
answered the following questions put to them:
“1. Is it possible to establish, on the basis of the text of the conversation submitted
for examination, the nature of relations between Bykov and [V.], the extent of their
closeness, sympathy for each other, subordination; how is it expressed?

2. Was Bykov's verbal reaction to [V.]'s statement about the 'murder' of [S.] natural
assuming he had ordered the murder of [S.]?

3. Are there any verbal signs indicating that Bykov expressed mistrust about [V.]'s
information?

4. Is it possible to assess Bykov's verbal style as unequivocally aiming at closing

the topic, ending the conversation?

5. Are there any identifiable stylistic, verbal signs of fear (caution) on Bykov's part
in relation to [V.]?”
30. In respect of the above questions the experts found:
– on question 1, that the applicant and V. had known each other for a
long time and had rather close and generally sympathetic relations; that V.
had shown subordination to the applicant; that the applicant had played an
instructive role in the conversation;
– on question 2, that the applicant's reaction to V.'s information about
the accomplished murder was natural and that he had insistently questioned
V. on the technical details of its execution;
– on question 3, that the applicant had shown no sign of mistrusting V.'s
confession to the murder;
 BYKOV v. RUSSIA JUDGMENT 7

– on question 4, that the applicant had not shown any clear signs of
wishing to end or to avoid the conversation;
– on question 5, that the applicant had not shown any fear of V.; on the
contrary, V. appeared to be afraid of the applicant.
31. On 11 January 2001 the investigation was completed and the
applicant was allowed access to the case file.
32. On 27 August 2001 the case was referred to the Tushinskiy District
Court of Moscow.
33. On 22 October 2001 the Tushinskiy District Court declined
jurisdiction in favour of the Meshchanskiy District Court of Moscow,
having established that the venue of the attempted murder lay within that
court's territorial jurisdiction.
34. On 16 December 2001 V. made a written statement certified by the
Russian consulate in the Republic of Cyprus repudiating his statements
against the applicant. He submitted that he had made those statements under
pressure from S. Two deputies of the State Duma, D. and Y.S., were present
at the consulate to witness the repudiation. On the same day they recorded
an interview with V. in which he explained that S. had persuaded him to
make false statements against the applicant.
35. On 4 February 2002 the Meshchanskiy District Court of Moscow
began examining the charges against the applicant. The applicant pleaded
not guilty. At the trial he challenged the admissibility of the recording of his
conversation with V. and of all other evidence obtained through the covert
operation. He alleged that the police interference had been unlawful and that
he had been induced into self-incrimination. Furthermore, he claimed that
the recording had involved unauthorised intrusion into his home. He
contested the interpretation of the recording by the experts and alleged that
nothing in his dialogue with V. disclosed prior knowledge of a murder
conspiracy.
36. During the trial the court dismissed the applicant's objection to the
covert operation and admitted as lawfully obtained evidence the recording
with its transcript, the linguistic expert report, V.'s statements, and the
evidence showing that the applicant had accepted the feasibility study and
the watches from V. It dismissed the argument that there had been an
unauthorised intrusion into the applicant's premises, having found, firstly,
that the applicant had expressed no objection to V.'s visit and, secondly, that
their meeting had taken place in the “guest house”, which was intended for
business meetings and therefore did not encroach on the applicant's privacy.
The court refused to admit as evidence the official records of the search at
the applicant's estate because the officers who had conducted the search on
4 October 2000 had not been covered by the authorisation.
37. The following persons were examined in the oral proceedings before
the court:
8 BYKOV v. RUSSIA JUDGMENT

S. explained his relations with the applicant and their conflict of interests
in the aluminium industry. He confirmed that he had participated in the
covert operation; he also confirmed that in 2001 V. had told him that he had
been paid off to withdraw his statements against the applicant.
Twenty-five witnesses answered questions concerning the business links
of the applicant, V. and S. with the aluminium plant and other businesses in
Krasnoyarsk; the relations and connections between them; the existence of
the conflict of interests between the applicant and S.; the events of
3 October 2000, namely the arrival of V. at the “guest house”, his
conversation with the applicant and the handing of the documents and the
watches to the applicant; and the circumstances surrounding V.'s attempted
withdrawal of his statements against the applicant.
Seven experts were examined: a technical expert gave explanations about
the recording of data received by way of a radio-transmitting device; a
sound expert explained how a transcript of the recording of the applicant's
conversation with V. had been produced; two expert linguists submitted that
they had used both the tape and the recording transcript in their
examination; an expert psychologist answered questions concerning his
findings (evidence subsequently excluded as obtained unlawfully – see
paragraph 43 below); and two corroborative experts upheld the conclusions
of the expert linguists and the sound experts.
Seven attesting witnesses answered questions concerning their
participation in various investigative measures: the receipt of the gun
handed in by V., the copying of the video and audio tapes, the treatment of
the material exhibits with a chemical agent, the “discovery of the corpses”
in the operative experiment, and the house search.
Four investigation officers were examined: an FSB officer submitted that
on 18 September 2000 V. had written a statement in his presence that the
applicant had ordered him to kill S., and had handed in the gun; he also
explained how the operative experiment had been carried out; two officers
of the prosecutor's office and one officer of the Interior Ministry also
described the operative experiment and explained how the copies of the
recording of the applicant's conversation with V. had been made.
38. On 15 May 2002 during the court hearing the prosecutor requested
to read out the records of the questioning of five witnesses not present at the
hearing. The statements made by V. during the pre-trial investigation were
among them.
39. The applicant's counsel said that he had no objections. The court
decided to grant the request, having noted that “the court took exhaustive
measures to call these witnesses to the court hearing and found that ... V.'s
whereabouts could not be established and he could not be called to the
courtroom even though a number of operational search measures were taken
by the FSB and an enquiry was made to the National Central Bureau of
 BYKOV v. RUSSIA JUDGMENT 9

Interpol by the Ministry of the Interior ...”. These statements were admitted
as evidence.
40. The court also examined evidence relating to V.'s attempted
withdrawal of his statements against the applicant. It established that during
the investigation V. had already complained that pressure had been exerted
on him to repudiate his statements against the applicant. It also established
that the witness D., who was present at the consulate when V. had
repudiated his statements, was a close friend of the applicant. The other
witness, Y.S., had arrived at the consulate late and did not see the document
before it was certified.
41. It was also noted that both the applicant and V. had undergone a
psychiatric examination during the investigation and both had been found fit
to participate in the criminal proceedings.
42. Other evidence examined by the court included: expert reports
produced by chemical, ballistics, linguistic, sound and technical experts;
written reports on the operative experiment; V.'s written statement of
18 September 2000; a certified description of the gun handed in by V.; and
records of the applicant's confrontation with V. on 20 October 2000.
43. The applicant challenged a number of items of evidence, claiming
that they had been obtained unlawfully. The court excluded some of them,
in particular the expert report by a psychologist who had examined the
recording of the applicant's conversation with V. and the police report on
the search carried out on 4 October 2000. The attempt to challenge the audio
tape containing the recording of the applicant's conversation with V., and
the copies of the tape, was not successful and they were admitted as
lawfully obtained evidence.
44. On 19 June 2002 the Meshchanskiy District Court of Moscow gave
judgment, finding the applicant guilty of conspiracy to murder and
conspiracy to acquire, possess and handle firearms. The finding of guilt was
based on the following evidence: the initial statement by V. that the
applicant had ordered him to kill S.; the gun V. had handed in; the
statements V. had made in front of the applicant when they had been
confronted during the questioning on 10 October 2000; numerous witness
statements confirming the existence of a conflict between the applicant and
S.; and the physical evidence obtained through the covert operation, namely
the watches and the feasibility study. Although the recording of the
applicant's conversation with V. was played at the hearing, its contents did
not feature among the evidence or as part of the court's reasoning. In so far
as the record was mentioned in the judgment, the court relied solely on the
conclusions of the linguistic experts (see paragraph 30 above) and on
several reports confirming that the tape had not been tampered with.
45. The court sentenced the applicant to six and a half years'
imprisonment and, having deducted the time already spent in pre-trial
detention, conditionally released him on five years' probation.
10 BYKOV v. RUSSIA JUDGMENT

46. The applicant appealed against the judgment, challenging, inter alia,
the admissibility of the evidence obtained through the covert operation and
the court's interpretation of the physical evidence and the witnesses'
testimonies.
47. On 1 October 2002 the Moscow City Court upheld the applicant's
conviction and dismissed his appeal, including the arguments relating to the
admissibility of evidence.
48. On 22 June 2004 the Supreme Court of the Russian Federation
examined the applicant's case in supervisory proceedings. It modified the
judgment of 19 June 2002 and the appeal decision of 1 October 2002,
redefining the legal classification of one of the offences committed by the
applicant. It found the applicant guilty of “incitement to commit a crime
involving a murder”, and not “conspiracy to murder”. The rest of the
judgment, including the sentence, remained unchanged.

II. RELEVANT DOMESTIC LAW

A. Pre-trial detention

49. Until 1 July 2002 criminal-law matters were governed by the Code
of Criminal Procedure of the Russian Soviet Federative Socialist Republic
(CCrP).
50. “Preventive measures” or “measures of restraint” included an
undertaking not to leave a town or region, personal security, bail and
detention on remand (Article 89). A decision to detain someone on remand
could be taken by a prosecutor or a court (Articles 11, 89 and 96).

1. Grounds for detention on remand

51. When deciding whether to remand an accused in custody, the
competent authority was required to consider whether there were “sufficient
grounds to believe” that he or she would abscond during the investigation or
trial or obstruct the establishment of the truth or reoffend (Article 89). It
also had to take into account the gravity of the charge, information on the
accused's character, his or her profession, age, state of health, family status
and other circumstances (Article 91).
52. Before 14 March 2001, detention on remand was authorised if the
accused was charged with a criminal offence carrying a sentence of at least
one year's imprisonment or if there were “exceptional circumstances” in the
case (Article 96). On 14 March 2001 the CCrP was amended to permit
defendants to be remanded in custody if the charge carried a sentence of at
least two years' imprisonment or if they had previously defaulted or had no
permanent residence in Russia or if their identity could not be ascertained.
 BYKOV v. RUSSIA JUDGMENT 11

The amendments of 14 March 2001 also repealed the provision that

permitted defendants to be remanded in custody on the sole ground of the
dangerous nature of the criminal offence committed.

2. Time-limits for detention on remand

53. The CCrP provided for a distinction between two types of detention
on remand: the first being “during the investigation”, that is, while a
competent agency – the police or a prosecutor's office – was investigating
the case, and the second being “before the court” (or “during the judicial
proceedings”), at the judicial stage. Although there was no difference in
practice between them (the detainee was held in the same detention facility),
the calculation of the time-limits was different.
54. From the date the prosecutor referred the case to the trial court, the
defendant's detention was classified as “before the court” (or “during the
judicial proceedings”).
55. Before 14 March 2001 the CCrP did not set any time-limit for
detention “during the judicial proceedings”. On 14 March 2001 a new
Article 239-1 was inserted which established that the period of detention
“during the judicial proceedings” could not generally exceed six months
from the date the court received the file. However, if there was evidence to
show that the defendant's release might impede a thorough, complete and
objective examination of the case, a court could – of its own motion or on a
request by a prosecutor – extend the detention by no longer than three
months. These provisions did not apply to defendants charged with
particularly serious criminal offences.

B. Operative experiments

56. The Operational-Search Activities Act of 12 August 1995

(no. 144-FZ) provides, in so far as relevant, as follows:
Section 6: Operational-search activities

“In carrying out investigations the following measures may be taken:

...

9. supervision of postal, telegraphic and other communications;

10. telephone interception;

11. collection of data from technical channels of communication;

...

14. operative experiments.

12 BYKOV v. RUSSIA JUDGMENT

...

Operational-search activities involving supervision of postal, telegraphic and other

communications, telephone interception through [telecommunication companies], and
the collection of data from technical channels of communication are to be carried out
by technical means by the Federal Security Service and the agencies of the Interior
Ministry in accordance with decisions and agreements signed between the agencies
involved.

...”

Section 8: Conditions governing the performance of operational-search activities

“Operational-search activities involving interference with the constitutional right to

privacy of postal, telegraphic and other communications transmitted by means of wire
or mail services, or with the privacy of the home, may be conducted, subject to a
judicial decision, following the receipt of information concerning:

1. the appearance that an offence has been committed or is ongoing, or a conspiracy

to commit an offence whose investigation is mandatory;

2. persons conspiring to commit, or committing, or having committed an offence

whose investigation is mandatory;

...

Operative experiments may only be conducted for the detection, prevention,

interruption and investigation of a serious crime, or for the identification of persons
preparing, committing or having committed it.

...”

Section 9: Grounds and procedure for judicial authorisation of operational-search

activities involving interference with the constitutional rights of individuals

“The examination of requests for the taking of measures involving interference with
the constitutional right to privacy of correspondence and telephone, postal, telegraphic
and other communications transmitted by means of wire or mail services, or with the
right to privacy of the home, shall fall within the competence of a court at the place
where the requested measure is to be carried out or at the place where the requesting
body is located. The request must be examined immediately by a single judge; the
examination of the request may not be refused.

...

The judge examining the request shall decide whether to authorise measures
involving interference with the above-mentioned constitutional right, or to refuse
authorisation, indicating reasons.

...”
 BYKOV v. RUSSIA JUDGMENT 13

Section 11: Use of information obtained through operational-search activities

“Information gathered as a result of operational-search activities may be used for the

preparation and conduct of the investigation and court proceedings ... and used as
evidence in criminal proceedings in accordance with legal provisions regulating the
collection, evaluation and assessment of evidence. ...”

C. Evidence in criminal proceedings

57. Article 69 of the CCrP provided as follows:

“...

Evidence obtained in breach of the law shall be considered to have no legal force
and cannot be relied on as grounds for criminal charges.”
The 2001 Code of Criminal Procedure of the Russian Federation, which
replaced the CCrP of the Russian Soviet Federative Socialist Republic from
1 July 2002, provides as follows, in so far as relevant:
Article 75: Inadmissible evidence

“1. Evidence obtained in breach of this Code shall be inadmissible. Inadmissible

evidence shall have no legal force and cannot be relied on as grounds for criminal
charges or for proving any of the [circumstances for which evidence is required in
criminal proceedings].

...”

Article 235

“...

5. If a court decides to exclude evidence, that evidence shall have no legal force and
cannot be relied on in a judgment or other judicial decision, or be examined or used
during the trial.

...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

58. The applicant complained that his pre-trial detention had been
excessively long and that it had been successively extended without any
14 BYKOV v. RUSSIA JUDGMENT

indication of relevant and sufficient reasons. He relied on Article 5 § 3 of

the Convention, which provides as follows:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c)
of this Article shall be ... entitled to trial within a reasonable time or to release
pending trial. Release may be conditioned by guarantees to appear for trial.”
59. The Government submitted that the applicant's detention had not
been excessively long and argued that the investigation of his case had taken
time because of its complexity and scale. They also claimed that, given his
personality, there had been an obvious risk that the applicant might evade
prosecution, influence witnesses and obstruct the course of justice, which
justified his continued detention.
60. The applicant maintained his complaint, claiming that the grounds
given for his detention and its repeated extension had been unsupported by
any reasoning or factual information.
61. According to the Court's settled case-law, the presumption under
Article 5 is in favour of release. As established in Neumeister v. Austria
(27 June 1968, § 4, Series A no. 8), the second limb of Article 5 § 3 does
not give judicial authorities a choice between either bringing an accused to
trial within a reasonable time or granting him provisional release pending
trial. Until conviction, he must be presumed innocent, and the purpose of
the provision under consideration is essentially to require his provisional
release once his continuing detention ceases to be reasonable.
62. Continued detention therefore can be justified in a given case only if
there are specific indications of a genuine requirement of public interest
which, notwithstanding the presumption of innocence, outweighs the rule of
respect for individual liberty laid down in Article 5 of the Convention (see,
among other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110 et
seq., ECHR 2000-XI).
63. The responsibility falls in the first place to the national judicial
authorities to ensure that, in a given case, the pre-trial detention of an
accused person does not exceed a reasonable time. To this end they must,
paying due regard to the principle of the presumption of innocence, examine
all the facts arguing for or against the existence of the above-mentioned
demand of public interest justifying a departure from the rule in Article 5
and must set them out in their decisions on the applications for release. It is
essentially on the basis of the reasons given in these decisions and of the
established facts stated by the applicant in his appeals that the Court is
called upon to decide whether or not there has been a violation of Article 5
§ 3 (see, for example, Weinsztal v. Poland, no. 43748/98, § 50, 30 May
2006, and McKay v. the United Kingdom [GC], no. 543/03, § 43, ECHR
2006-X).
64. The persistence of reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the lawfulness of the
continued detention, but with the lapse of time this no longer suffices and
 BYKOV v. RUSSIA JUDGMENT 15

the Court must then establish whether the other grounds given by the
judicial authorities continued to justify the deprivation of liberty. Where
such grounds were “relevant” and “sufficient”, the Court must also be
satisfied that the national authorities displayed “special diligence” in the
conduct of the proceedings (see, among other authorities, Letellier
v. France, 26 June 1991, § 35, Series A no. 207, and Yağcı and Sargın
v. Turkey, 8 June 1995, § 50, Series A no. 319-A). In this connection, the
Court reiterates that the burden of proof in these matters should not be
reversed by making it incumbent on the detained person to demonstrate the
existence of reasons warranting his release (see Ilijkov v. Bulgaria,
no. 33977/96, § 85, 26 July 2001).
65. Turning to the instant case, the Court observes that the applicant
spent one year, eight months and 15 days in detention before and during his
trial. In this period the courts examined the applicant's application for
release at least ten times, each time refusing it on the grounds of the gravity
of the charges and the likelihood of his fleeing, obstructing the course of
justice and exerting pressure on witnesses. However, the judicial decisions
did not go any further than listing these grounds, omitting to substantiate
them with relevant and sufficient reasons. The Court also notes that with the
passing of time the courts' reasoning did not evolve to reflect the developing
situation and to verify whether these grounds remained valid at the
advanced stage of the proceedings. Moreover, from 7 September 2001 the
decisions extending the applicant's detention no longer indicated any time-
limits, thus implying that he would remain in detention until the end of the
trial.
66. As regards the Government's argument that the circumstances of the
case and the applicant's personality were self-evident for the purpose of
justifying his pre-trial detention, the Court does not consider that this in
itself absolved the courts from the obligation to set out reasons for coming
to this conclusion, in particular in the decisions taken at later stages. It
reiterates that where circumstances that could have warranted a person's
detention may have existed but were not mentioned in the domestic
decisions it is not the Court's task to establish them and to take the place of
the national authorities which ruled on the applicant's detention (see
Panchenko v. Russia, no. 45100/98, §§ 99 and 105, 8 February 2005, and
Ilijkov, cited above, § 86).
67. The Court therefore finds that the authorities failed to adduce
relevant and sufficient reasons to justify extending the applicant's detention
pending trial to one year, eight months and 15 days.
68. There has therefore been a violation of Article 5 § 3 of the
Convention.
16 BYKOV v. RUSSIA JUDGMENT

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

69. The applicant complained that the covert operation had involved an
unlawful intrusion into his home and that the interception and recording of
his conversation with V. had interfered with his private life. He alleged a
violation of Article 8 of the Convention, which reads as follows:
“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.”
70. The Government maintained that the covert operation, and in
particular the interception and recording of the applicant's conversation with
V., had been conducted in accordance with the Operational-Search
Activities Act. They claimed that it constituted an “operative experiment”
within the meaning of the Act. They further argued that no judicial
authorisation had been required for the purposes of the present case because
pursuant to section 8 of the Act, it was only required for the interception of
communications transmitted by means of wire channels or mail services,
none of which had been employed in the covert operation at issue. They also
denied that there had been an intrusion into the applicant's home since the
“guest house” could not be considered his home, and in any case he had let
V. in voluntarily. They further claimed that in the circumstances of the case
the covert operation had been indispensable because without the
interception of the applicant's conversation with V. it would have been
impossible to verify the suspicion that he had committed a serious crime.
They contended that the measures taken to investigate the crime had been
proportionate to the seriousness of the offence in question.
71. The applicant maintained, on the contrary, that the covert operation
had involved an unlawful and unjustified interference with his right to
respect for his private life and home. He claimed that there had been an
unlawful intrusion into his home and contested the Government's argument
that he had not objected to V.'s entry because his consent had not extended
to accepting a police agent on his premises. He also claimed that the
recording of his conversation with V. had interfered with his privacy and
had therefore required prior judicial authorisation.
72. The Court notes that it is not in dispute that the measures carried out
by the police in the conduct of the covert operation amounted to an
interference with the applicant's right to respect for his private life under
Article 8 § 1 of the Convention (see Wood v. the United Kingdom,
no. 23414/02, § 29, 16 November 2004; M.M. v. the Netherlands,
no. 39339/98, §§ 36-42, 8 April 2003; and A. v. France, 23 November 1993,
 BYKOV v. RUSSIA JUDGMENT 17

Series A no. 277-B). The principal issue is whether this interference was
justified under Article 8 § 2, notably whether it was “in accordance with the
law” and “necessary in a democratic society”, for one of the purposes
enumerated in that paragraph.
73. In this connection, the Court notes that the domestic authorities put
forward two arguments in support of the view that the covert operation had
been lawful. The first-instance court found that there had been no
“intrusion” or breach of the applicant's privacy because of the absence of
objections to V.'s entry into the premises and because of the “non-private”
purpose of these premises. The prosecutor's office, in addition to that,
maintained that the covert operation had been lawful because it had not
involved any activity subject to special legal requirements and the police
had thus remained within the domain of their own discretion.
74. The Court observes that the Operational-Search Activities Act is
expressly intended to protect individual privacy by requiring judicial
authorisation for any operational-search activities that could interfere with
it. The Act specifies two types of protected privacy: firstly, privacy of
communications by wire or mail services and, secondly, privacy of the
home. As regards the latter, the domestic authorities, notably the
Meshchanskiy District Court of Moscow, argued that V.'s entering the
“guest house” with the applicant's consent did not constitute an intrusion
amounting to interference with the privacy of the applicant's home. As to
the question of privacy of communications, it was only addressed as a
separate issue in the prosecutor's decision dismissing the applicant's
complaint. In his opinion, the applicant's conversation with V. remained
outside the scope of protection offered by the Act because it did not involve
the use of “wire or mail services”. The same argument was put forward by
the Government, who considered that the requirement of judicial
authorisation did not extend to the use of the radio-transmitting device and
that the covert operation could not therefore be said to have breached
domestic law.
75. Having regard to the above, it is clear that the domestic authorities
did not interpret the Operational-Search Activities Act as requiring prior
judicial authorisation in the circumstances of the case at hand, since the case
was found not to involve the applicant's “home” or the use of wire or mail
services within the meaning of section 8 of the Act. The measure was
considered to be an investigative step within the domain of the investigating
authorities' own discretion.
76. The Court reiterates that the phrase “in accordance with the law” not
only requires compliance with domestic law but also relates to the quality of
that law, requiring it to be compatible with the rule of law. In the context of
covert surveillance by public authorities, in this instance the police,
domestic law must provide protection against arbitrary interference with an
individual's right under Article 8. Moreover, the law must be sufficiently
18 BYKOV v. RUSSIA JUDGMENT

clear in its terms to give individuals an adequate indication as to the

circumstances in which and the conditions on which public authorities are
entitled to resort to such covert measures (see Khan v. the United Kingdom,
no. 35394/97, § 26, ECHR 2000-V).
77. The Court further observes that the Operational-Search Activities
Act permitted so-called “operative experiments” to be conducted for the
investigation of serious crime. While the law itself did not define what
measures such “experiments” could involve, the national authorities took
the view that there existed no statutory system in Russian law regulating the
interception or recording of private communications through a
radio-transmitting device. The Government argued that the existing
regulations on telephone tapping were not applicable to radio-transmitting
devices and could not be extended to them by analogy. On the contrary,
they emphasised the difference between the two by indicating that no
judicial authorisation for the use of a radio-transmitting device was
required, for the reason that this technology fell outside the scope of any
existing regulations. Thus, the Government considered that the use of
technology not listed in section 8 of the Operational-Search Activities Act
for the interception was not subject to the formal requirements imposed by
the Act.
78. The Court has consistently held that when it comes to the
interception of communications for the purpose of a police investigation,
“the law must be sufficiently clear in its terms to give citizens an adequate
indication as to the circumstances in which and the conditions on which
public authorities are empowered to resort to this secret and potentially
dangerous interference with the right to respect for private life and
correspondence” (see Malone v. the United Kingdom, 2 August 1984, § 67,
Series A no. 82). In particular, in order to comply with the requirement of
the “quality of the law”, a law which confers discretion must indicate the
scope of that discretion, although the detailed procedures and conditions to
be observed do not necessarily have to be incorporated in rules of
substantive law. The degree of precision required of the “law” in this
connection will depend upon the particular subject-matter. Since the
implementation in practice of measures of secret surveillance of
communications is not open to scrutiny by the individuals concerned or the
public at large, it would be contrary to the rule of law for the legal discretion
granted to the executive – or to a judge – to be expressed in terms of an
unfettered power. Consequently, the law must indicate the scope of any
such discretion conferred on the competent authorities and the manner of its
exercise with sufficient clarity to give the individual adequate protection
against arbitrary interference (see, among other authorities, Huvig
v. France, 24 April 1990, §§ 29 and 32, Series A no. 176-B; Amann
v. Switzerland [GC], no. 27798/95, § 56, ECHR 2000-II; and Valenzuela
 BYKOV v. RUSSIA JUDGMENT 19

Contreras v. Spain, 30 July 1998, § 46, Reports of Judgments and Decisions

1998-V).
79. In the Court's opinion, these principles apply equally to the use of a
radio-transmitting device, which, in terms of the nature and degree of the
intrusion involved, is virtually identical to telephone tapping.
80. In the instant case, the applicant enjoyed very few, if any, safeguards
in the procedure by which the interception of his conversation with V. was
ordered and implemented. In particular, the legal discretion of the
authorities to order the interception was not subject to any conditions, and
the scope and the manner of its exercise were not defined; no other specific
safeguards were provided for. Given the absence of specific regulations
providing safeguards, the Court is not satisfied that, as claimed by the
Government, the possibility for the applicant to bring court proceedings
seeking to declare the “operative experiment” unlawful and to request the
exclusion of its results as unlawfully obtained evidence met the above
requirements.
81. It follows that in the absence of specific and detailed regulations, the
use of this surveillance technique as part of an “operative experiment” was
not accompanied by adequate safeguards against various possible abuses.
Accordingly, its use was open to arbitrariness and was inconsistent with the
requirement of lawfulness.
82. The Court concludes that the interference with the applicant's right
to respect for private life was not “in accordance with the law”, as required
by Article 8 § 2 of the Convention. In the light of this conclusion, the Court
is not required to determine whether the interference was “necessary in a
democratic society” for one of the aims enumerated in paragraph 2 of
Article 8. Nor is it necessary to consider whether the covert operation also
constituted an interference with the applicant's right to respect for his home.
83. Accordingly, there has been a violation of Article 8.

III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

84. The applicant complained that he had been tricked by the police into
making self-incriminating statements in his conversation with V. and that
the court had admitted the record of this conversation as evidence at the
trial. He alleged a violation of Article 6 § 1, which provides, in so far as
relevant:
“In the determination of ... any criminal charge against him, everyone is entitled to a
fair ... hearing ... by [a] ... tribunal ...”
85. The Government submitted that the criminal proceedings against the
applicant had been conducted lawfully and with due respect for the rights of
the accused. They pointed out that the applicant's conviction had been based
on an ample body of evidence of which only part had been obtained through
20 BYKOV v. RUSSIA JUDGMENT

the covert operation. The evidence relied on by the courts had included
statements by more than 40 witnesses, expert opinions, and various items of
physical and documentary evidence which provided a broad and consistent
basis for the finding of guilt. The Government pointed out that it had been
open to the applicant to challenge in adversarial proceedings the evidence
obtained through the covert operation and that he had availed himself of this
possibility.
86. The Government further maintained that the collection and the use of
evidence against the applicant had involved no breach of his right to silence,
or oppression, or defiance of his will. They pointed out that at the time
when the recording was made the applicant had not been in detention and
had not known about the investigation. In his conversation with V. he had
acted freely and had been on an equal footing with his interlocutor, who had
not been in a position to put any pressure on him. The Government
contended that the evidence obtained through the covert operation had been
perfectly reliable and that there had been no grounds to exclude the
recording or other related evidence. In this connection, they argued that the
present case should be distinguished from the case of Allan v. the United
Kingdom (no. 48539/99, ECHR 2002-IX), where the covert operation had
taken place in a detention facility at a time when the applicant had been
particularly vulnerable, and the Court had described this as “oppressive”.
87. The applicant, on the contrary, maintained that his conviction had
been based on illegally obtained evidence, in breach of his right to remain
silent and the privilege against self-incrimination. He alleged that his
conversation with V. had in fact constituted a concealed interrogation,
unaccompanied by any procedural guarantees. Finally, he denied that the
record of this conversation had any probative value and claimed that it
should not have been admitted as evidence at trial.

A. General principles established in the Court's case-law

88. The Court reiterates that, in accordance with Article 19 of the

Convention, its only task is to ensure the observance of the obligations
undertaken by the Parties in the Convention. In particular, it is not
competent to deal with an application alleging that errors of law or fact have
been committed by domestic courts, except where it considers that such
errors might have involved a possible violation of any of the rights and
freedoms set out in the Convention. While Article 6 guarantees the right to a
fair hearing, it does not lay down any rules on the admissibility of evidence
as such, which is primarily a matter for regulation under national law (see
Schenk v. Switzerland, 12 July 1988, § 45, Series A no. 140; Teixeira de
Castro v. Portugal, 9 June 1998, § 34, Reports 1998-IV; and Jalloh
v. Germany [GC], no. 54810/00, §§ 94-96, ECHR 2006-IX).
 BYKOV v. RUSSIA JUDGMENT 21

89. It is therefore not the role of the Court to determine, as a matter of

principle, whether particular types of evidence – for example, evidence
obtained unlawfully in terms of domestic law – may be admissible or,
indeed, whether the applicant was guilty or not. The question which must be
answered is whether the proceedings as a whole, including the way in which
the evidence was obtained, were fair. This involves an examination of the
“unlawfulness” in question and, where a violation of another Convention
right is concerned, the nature of the violation found (see, among other
authorities, Khan, cited above, § 34; P.G. and J.H. v. the United Kingdom,
no. 44787/98, § 76, ECHR 2001-IX; Heglas v. the Czech Republic,
no. 5935/02, §§ 89-92, 1 March 2007; and Allan, cited above, § 42).
90. In determining whether the proceedings as a whole were fair, regard
must also be had to whether the rights of the defence were respected. It must
be examined in particular whether the applicant was given the opportunity
of challenging the authenticity of the evidence and of opposing its use. In
addition, the quality of the evidence must be taken into consideration,
including whether the circumstances in which it was obtained cast doubt on
its reliability or accuracy. While no problem of fairness necessarily arises
where the evidence obtained was unsupported by other material, it may be
noted that where the evidence is very strong and there is no risk of its being
unreliable, the need for supporting evidence is correspondingly weaker (see,
among other authorities, Khan, cited above, §§ 35 and 37, and Allan, cited
above, § 43).
91. As regards, in particular, the examination of the nature of the
Convention violation found, the Court observes that notably in the cases of
Khan (cited above, §§ 25-28) and P.G. and J.H. v. the United Kingdom
(cited above, §§ 37-38) it found the use of covert listening devices to be in
breach of Article 8 since recourse to such devices lacked a legal basis in
domestic law and the interferences with those applicants' right to respect for
their private life were not “in accordance with the law”. Nonetheless, the
admission in evidence of information obtained thereby did not in the
circumstances of the cases conflict with the requirements of fairness
guaranteed by Article 6 § 1.
92. As regards the privilege against self-incrimination or the right to
remain silent, the Court reiterates that these are generally recognised
international standards which lie at the heart of a fair procedure. Their aim
is to provide an accused person with protection against improper
compulsion by the authorities and thus to avoid miscarriages of justice and
secure the aims of Article 6 (see John Murray v. the United Kingdom,
8 February 1996, § 45, Reports 1996-I). The right not to incriminate oneself
is primarily concerned with respecting the will of an accused person to
remain silent and presupposes that the prosecution in a criminal case seeks
to prove the case against the accused without resorting to evidence obtained
through methods of coercion or oppression in defiance of the will of the
22 BYKOV v. RUSSIA JUDGMENT

accused (see Saunders v. the United Kingdom, 17 December 1996,

§§ 68-69, Reports 1996-VI; Allan, cited above, § 44; Jalloh, cited above,
§§ 94-117; and O'Halloran and Francis v. the United Kingdom [GC],
nos. 15809/02 and 25624/02, §§ 53-63, ECHR 2007-...). In examining
whether a procedure has extinguished the very essence of the privilege
against self-incrimination, the Court must examine the nature and degree of
the compulsion, the existence of any relevant safeguards in the procedures
and the use to which any material so obtained is put (see, for example,
Heaney and McGuinness v. Ireland, no. 34720/97, §§ 54-55, ECHR
2000-XII, and J.B. v. Switzerland, no. 31827/96, ECHR 2001-III).
93. The general requirements of fairness contained in Article 6 apply to
all criminal proceedings, irrespective of the type of offence at issue. Public-
interest concerns cannot justify measures which extinguish the very essence
of an applicant's defence rights, including the privilege against self-
incrimination guaranteed by Article 6 of the Convention (see, mutatis
mutandis, Heaney and McGuinness, cited above, §§ 57-58).

B. Application of those principles to the present case

94. The Court observes that in contesting at his trial the use of the
material obtained through the “operative experiment”, the applicant put
forward two arguments. Firstly, he argued that the evidence obtained from
the covert operation, in particular the recording of his conversation with V.,
was unreliable and open to a different interpretation from that given by the
domestic courts. Secondly, he alleged that the use of such evidence ran
counter to the privilege against self-incrimination and his right to remain
silent.
95. As regards the first point, the Court reiterates that where the
reliability of evidence is in dispute the existence of fair procedures to
examine the admissibility of the evidence takes on an even greater
importance (see Allan, cited above, § 47). In the present case, the applicant
was able to challenge the covert operation, and every piece of evidence
obtained thereby, in the adversarial procedure before the first-instance court
and in his grounds of appeal. The grounds for the challenge were the alleged
unlawfulness and trickery in obtaining evidence and the alleged
misinterpretation of the conversation recorded on the tape. Each of these
points was addressed by the courts and dismissed in reasoned decisions. The
Court notes that the applicant made no complaints in relation to the
procedure by which the courts reached their decision concerning the
admissibility of the evidence.
96. The Court further observes that the impugned recording, together
with the physical evidence obtained through the covert operation, was not
the only evidence relied on by the domestic court as the basis for the
applicant's conviction. In fact, the key evidence for the prosecution was the
 BYKOV v. RUSSIA JUDGMENT 23

initial statement by V., who had reported to the FSB that the applicant had
ordered him to kill S., and had handed in the gun (see paragraph 10 above).
This statement, which gave rise to the investigation, was made by V. before,
and independently from, the covert operation, in his capacity as a private
individual and not as a police informant. Furthermore, he reiterated his
incriminating statements during his subsequent questioning on several
occasions and during the confrontation between him and the applicant at the
pre-trial stage.
97. While it is true that V. was not cross-examined at the trial, the failure
to do so was not imputable to the authorities, who took all necessary steps to
establish his whereabouts and have him attend the trial, including by
seeking the assistance of Interpol. The trial court thoroughly examined the
circumstances of V.'s withdrawal of his incriminating statements and came
to a reasoned conclusion that the repudiation was not trustworthy.
Moreover, the applicant was given an opportunity to question V. on the
substance of his incriminating statements when they were confronted during
the questioning on 10 October 2000. Some importance is also to be attached
to the fact that the applicant's counsel expressly agreed to having V.'s pre-
trial testimonies read out in open court. Finally, V.'s incriminating
statements were corroborated by circumstantial evidence, in particular
numerous witness testimonies confirming the existence of a conflict of
interests between the applicant and S.
98. In view of the above, the Court accepts that the evidence obtained
from the covert operation was not the sole basis for the applicant's
conviction, corroborated as it was by other conclusive evidence. Nothing
has been shown to support the conclusion that the applicant's defence rights
were not properly complied with in respect of the evidence adduced or that
its evaluation by the domestic courts was arbitrary.
99. It remains for the Court to examine whether the covert operation,
and the use of evidence obtained thereby, involved a breach of the
applicant's right not to incriminate himself and to remain silent. The
applicant argued that the police had overstepped the limits of permissible
behaviour by secretly recording his conversation with V., who was acting
on their instructions. He claimed that his conviction had resulted from
trickery and subterfuge incompatible with the notion of a fair trial.
100. The Court recently examined similar allegations in the case of
Heglas (cited above). In that case the applicant had admitted his
participation in a robbery in the course of a conversation with a person who
had been fitted by the police with a listening device hidden under her
clothes. The Court dismissed the applicant's complaint under Article 6 of
the Convention concerning the use of the recording, finding that he had had
the benefit of adversarial proceedings, that his conviction had also been
based on evidence other than the impugned recording, and that the measure
had been aimed at detecting a serious offence and had thus served an
24 BYKOV v. RUSSIA JUDGMENT

important public interest. The applicant, before the recording was made, had
not been officially questioned about, or charged with, the criminal offence.
101. The circumstances of the covert operation conducted in the Heglas
case were essentially different from those of the Allan case (cited above),
where a violation of Article 6 was found. In the latter case the applicant was
in pre-trial detention and expressed his wish to remain silent when
questioned by the investigators. However, the police primed the applicant's
cellmate to take advantage of the applicant's vulnerable and susceptible state
following lengthy periods of interrogation. The Court, relying on a
combination of these factors, considered that the authorities' conduct
amounted to coercion and oppression and found that the information had
been obtained in defiance of the applicant's will.
102. The Court notes that in the present case the applicant had not been
under any pressure to receive V. at his “guest house”, to speak to him, or to
make any specific comments on the matter raised by V. Unlike the applicant
in the Allan case (cited above), the applicant was not detained on remand
but was at liberty on his own premises attended by security and other
personnel. The nature of his relations with V. – subordination of the latter to
the applicant – did not impose any particular form of behaviour on him. In
other words, the applicant was free to see V. and to talk to him, or to refuse
to do so. It appears that he was willing to continue the conversation started
by V. because its subject matter was of personal interest to him. Thus, the
Court is not convinced that the obtaining of evidence was tainted with the
element of coercion or oppression which in the Allan case the Court found
to amount to a breach of the applicant's right to remain silent.
103. The Court also attaches weight to the fact that in making their
assessment the domestic courts did not directly rely on the recording of the
applicant's conversation with V., or its transcript, and did not seek to
interpret specific statements made by the applicant during the conversation.
Instead they examined the expert report drawn up on the conversation in
order to assess his relations with V. and the manner in which he involved
himself in the dialogue. Moreover, at the trial the recording was not treated
as a plain confession or an admission of knowledge capable of lying at the
core of a finding of guilt; it played a limited role in a complex body of
evidence assessed by the court.
104. Having examined the safeguards which surrounded the evaluation
of the admissibility and reliability of the evidence concerned, the nature and
degree of the alleged compulsion, and the use to which the material
obtained through the covert operation was put, the Court finds that the
proceedings in the applicant's case, considered as a whole, were not contrary
to the requirements of a fair trial.
105. It follows that there has been no violation of Article 6 § 1 of the
Convention.
 BYKOV v. RUSSIA JUDGMENT 25

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

106. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”
107. The applicant claimed compensation for the pecuniary and
non-pecuniary damage sustained as a result of the alleged violations of the
Convention.
108. As regards pecuniary damage, the applicant claimed
4,059,061.80 Russian roubles (119,089.25 euros (EUR)), which represented
his loss of earnings during his pre-trial detention. As regards non-pecuniary
damage, the applicant claimed that he had suffered emotional distress and a
diminished quality of life and requested compensation for this in an amount
to be determined by the Court.
109. The Government contested these claims as manifestly ill-founded.
They considered that any finding by the Court of a violation would
constitute sufficient just satisfaction in the present case.
110. The Court notes that the applicant's claim for pecuniary damage
relates to the complaint about his pre-trial detention, in respect of which a
violation of Article 5 § 3 has been found (see paragraph 68 above). It
reiterates that there must be a clear causal connection between the damage
claimed by the applicant and the violation of the Convention (see Barberà,
Messegué and Jabardo v. Spain (Article 50), 13 June 1994, §§ 16-20,
Series A no. 285-C; see also Berktay v. Turkey, no. 22493/93, § 215,
1 March 2001). The Court does not discern any causal link between the
authorities' failure to adduce relevant and sufficient reasons for the
applicant's continued detention and the loss of income he alleged (see
Dzelili v. Germany, no. 65745/01, §§ 107-13, 10 November 2005).
111. On the other hand, it considers that the applicant has suffered non-
pecuniary damage which is not sufficiently compensated by the finding of a
violation of the Convention. Considering the circumstances of the case and
making its assessment on an equitable basis, the Court awards the applicant
EUR 1,000 under this head.

B. Costs and expenses

112. In the proceedings before the Chamber the applicant claimed

EUR 93,246.25 in respect of costs and expenses. For his legal
representation before the domestic courts the applicant paid the equivalent
of EUR 60,691.61 to Mr G. Padva, his defence counsel in the criminal
proceedings. He submitted a full set of receipts confirming the payment of
this sum to Mr Padva's office. In the proceedings before the Court, the
26 BYKOV v. RUSSIA JUDGMENT

applicant was also represented by Mr Krauss and Mr J. Pastille, to whom he

paid an aggregate amount of EUR 69,839.64 (EUR 32,554.64 in the
proceedings before the Chamber and EUR 37,285 before the Grand
Chamber). In respect of their services he provided an invoice for
25,583.70 United States dollars, indicating the number of hours and the
hourly rates used as a basis, plus various expenses. Two further invoices –
by Mr Pastille for EUR 5,000 and by a law firm, “Rusanovs, Rode, Buss”,
for EUR 7,500 – did not contain any particulars. Following the public
hearing before the Grand Chamber the applicant supplemented the claims
and provided an invoice for EUR 37,285 which comprised EUR 30,600 in
respect of lawyers' fees, indicating the number of hours spent by each
counsel and adviser, and EUR 6,685 for travel expenses.
113. The Government claimed that these expenditures had not been
incurred necessarily and were unreasonable as to quantum. They considered
that the number of legal counsel engaged in the case was not justified by the
circumstances or the complexity of the case. Commenting on specific sums,
they pointed out that Mr Padva's invoice contained no itemised list of
services rendered to the applicant under the legal services agreement. They
also disputed the hourly rates charged by Mr Krauss, Mr Pastille and their
associates, claiming that they were unreasonable and in excess of the
average legal rates. They also challenged the invoices for EUR 5,000 and
for EUR 7,500, claiming that in the absence of any itemised list of services
or financial receipts there was no proof that these expenses had actually
been incurred. The Government considered that a sum of EUR 3,000 would
be sufficient under this head.
114. According to the Court's case-law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are reasonable as
to quantum. Furthermore, legal costs are recoverable only in so far as they
relate to the violation found (see, for example, I.J.L. and Others v. the
United Kingdom (just satisfaction), nos. 29522/95, 30056/96 and 30574/96,
§ 18, 25 September 2001). In the instant case, the Court considers the
amount claimed excessive, given that a number of the applicant's complaints
were either declared inadmissible or did not result in a finding of a violation
of the Convention (see Bykov v. Russia (dec.), no. 4378/02, 7 September
2006, and paragraph 105 above). Moreover, the applicant's submissions
contain no information on the specific services covered by the invoices.
Thus, the Court considers that a significant reduction is necessary on both
accounts. Having regard to all relevant factors, the Court considers it
reasonable to award the sum of EUR 25,000 in respect of costs and
expenses, plus any tax that may be chargeable on that amount.
 BYKOV v. RUSSIA JUDGMENT 27

C. Default interest

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

FOR THESE REASONS, THE COURT

1. Holds unanimously that there has been a violation of Article 5 § 3 of the
Convention;

2. Holds unanimously that there has been a violation of Article 8 of the

Convention;

3. Holds by eleven votes to six that there has been no violation of Article 6
of the Convention;

4. Holds
(a) (i) by twelve votes to five that the respondent State is to pay the
applicant, within three months, EUR 1,000 (one thousand euros) in
respect of non-pecuniary damage, to be converted into the national
currency of the respondent State at the rate applicable at the date of
settlement, plus any tax that may be chargeable on that amount;
(ii) unanimously that the respondent State is to pay the applicant,
within three months, EUR 25,000 (twenty-five thousand euros) in
respect of costs and expenses, to be converted into the national
currency of the respondent State at the rate applicable at the date of
settlement plus any tax that may be chargeable to the applicant on
that amount;
(b) unanimously that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
28 BYKOV v. RUSSIA JUDGMENT

5. Dismisses unanimously the remainder of the applicant's claim for just

satisfaction.

Done in English and in French, and delivered at a public hearing in the

Human Rights Building, Strasbourg, on 10 March 2009.

Michael O'Boyle Jean-Paul Costa

Deputy Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of

the Rules of Court, the following opinions are annexed to this judgment:
(a) concurring opinion of Judge Cabral Barreto;
(b) concurring opinion of Judge Kovler;
(c) partially dissenting opinion of Judge Costa;
(d) partially dissenting opinion of Judge Spielmann, joined by Judges
Rozakis, Tulkens, Casadevall and Mijović.

J.-P.C.
M.O'B.
 BYKOV v. RUSSIA JUDGMENT – SEPARATE OPINIONS 29

CONCURRING OPINION OF JUDGE CABRAL BARRETO

(Translation)

I agree with the majority's finding that there was no violation of Article 6
of the Convention in the present case.
However, to my mind it is not enough to say, as the majority do, that the
proceedings, considered as a whole, were not contrary to the requirements
of a fair trial.
I find it regrettable that the Grand Chamber missed the opportunity to
clarify once and for all an issue on which the Court has long been divided:
whether the use in criminal proceedings of evidence obtained in breach of
Article 8 of the Convention undermines the fairness of a trial as protected
by Article 6.
1. The Court's case-law on this subject dates back to Schenk
v. Switzerland (12 July 1988, Series A no. 140).
In concluding by a majority that the use of the disputed recording in
evidence had not deprived the applicant of a fair trial, the Court mainly
relied on the fact that the rights of the defence had not been disregarded.
This finding shaped the development of our case-law; even where the
manner in which evidence has been obtained has breached Article 8, a
violation of Article 6 has been ruled out if the trial as a whole has been fair,
and in particular if the rights of the defence have been respected.
Moreover, in principle, whether the evidence was the sole or a subsidiary
basis for the conviction is not in itself decisive (see Khan v. the United
Kingdom, no. 35394/97, § 26, ECHR 2000-V).
Similarly, it is immaterial whether the violation of Article 8 results from
failure to comply with “domestic law” or with the Convention.
More recently, the Court applied these principles in Heglas v. the Czech
Republic (no. 5935/02, 1 March 2007).
2. The case-law on this subject was last refined in Jalloh v. Germany
([GC], no. 54810/00, ECHR 2006-IX).
In that judgment the Court ruled that the use in criminal proceedings of
evidence obtained through torture raised serious issues as to the fairness of
such proceedings, even if the admission of the evidence in question had not
been decisive in securing the suspect's conviction.
Consequently, the use of evidence obtained through torture will always
breach Article 6 of the Convention, regardless of whether or not the
evidence was a decisive factor in the conviction.
However, the Court has never really stated a position on the question of
evidence obtained by means of inhuman or degrading treatment.
In certain circumstances, for example if an applicant is in detention,
improper compulsion by the authorities to obtain a confession will
contravene the principles of the right not to incriminate oneself and the right
30 BYKOV v. RUSSIA JUDGMENT – SEPARATE OPINIONS

to remain silent (see Allan v. the United Kingdom, no. 48539/99, ECHR
2000-IX).
As regards the question of direct concern to us – and the Heglas
judgment is a very recent example of this – where Article 8 is breached as a
result of the way in which evidence was gathered, the decisive factor for a
finding of a violation or no violation of Article 6 is whether the proceedings
as a whole were fair, whether the rights of the defence were respected.
3. I personally would have liked the Grand Chamber to have adopted a
new approach revising and clarifying its case-law.
3.1. Firstly, the Grand Chamber should have reaffirmed the position
taken in Jalloh regarding evidence obtained through torture.
The mere recourse to torture is sufficient in itself to render the trial
unfair, even if the evidence thereby obtained is not decisive in securing the
accused's conviction; Article 15 of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by
the United Nations, lends sufficient force to this argument.
However, we should also go a step further by stating unequivocally that
the use of evidence obtained by means of an act classified as inhuman or
degrading treatment automatically undermines the fairness of a trial, since
the difference between torture and inhuman treatment is often difficult to
establish and the nuances are sometimes tiny; furthermore, as a rule, both
situations – torture and inhuman and degrading treatment – involve blunders
by the authorities against an individual in a position of inferiority.
The Grand Chamber should in my opinion state firmly that any evidence
obtained in breach of Article 3 in the course of a trial – through torture or
ill-treatment – will always infringe Article 6 of the Convention, even if such
evidence did not play a decisive part in the conviction, and even if the
accused was able to challenge the evidence thus obtained, without leaving
open the possibility of relying on the weight of public interest and the
seriousness of the offence.
We must banish conduct that offends against civilised values and ensure
that there is some form of severe punishment for acts which undermine our
society's most deeply held values as protected by Article 3 of the
Convention.
3.2. The four dissenting judges in the Schenk case (cited above), whose
opinion was more or less followed by Judges Loucaides (in Khan, cited
above) and Tulkens (in P.G. and J.H. v. the United Kingdom, no. 44787/98,
ECHR 2001-IX), considered that a trial could not be described as “fair”
where evidence obtained in breach of a fundamental right guaranteed by the
Convention had been admitted.
The “dissenters” could not accept that a trial could be “fair”, as required
by Article 6, if a person's guilt for any offence was established through
evidence obtained in breach of the human rights guaranteed by the
Convention.
 BYKOV v. RUSSIA JUDGMENT – SEPARATE OPINIONS 31

The fairness required by Article 6 of the Convention also entails a

requirement of lawfulness; a trial which has been conducted in breach of
domestic law or the Convention can never be regarded as “fair”.
The exclusion of evidence obtained in breach of, for example, the right to
respect for private life guaranteed by the Convention should be considered
an essential corollary of that right.
In the “dissenters'” view, evidence amounting to interference with the
right to privacy can be admitted in court proceedings and can lead to a
conviction for a crime only if the securing of such evidence satisfies the
requirements of the second paragraph of Article 8, including the one at issue
in the present case, that of being “in accordance with the law”.
However, what is prohibited under one provision (Article 8) cannot be
accepted under another (Article 6).
Lastly, there is a real danger to be averted, as Judge Loucaides stressed in
the Khan case (cited above), and I quote: “If violating Article 8 can be
accepted as 'fair' then I cannot see how the police can be effectively deterred
from repeating their impermissible conduct.”
3.3. I must say that I have a good deal of sympathy with this approach,
which has the merit of clarity since the violation of Article 6 will be
“automatic” once the violation of Article 8 has been found.
Nevertheless, I believe that if such an approach is adopted, certain
considerations will arise as regards the consequences of the finding of a
violation of Article 6.
Following this approach, once a violation has been found in cases where
the accused's conviction was not solely or mainly based on the evidence in
dispute, inferences will have to be drawn regarding the execution of the
judgment if the evidence in question played only a subsidiary role in the
conviction.
Furthermore, as regards the execution of judgments, not all violations of
Article 6 will carry the same weight.
I am thinking of violations arising from a failure to comply with
provisions concerning substantive rights as opposed to procedural rules.
Here, with regard to unlawful evidence, I wish to emphasise the
distinction made by some legal experts between prohibited evidence –
which relates to substantive law – and improper evidence – which relates
to procedural rules.
We must distinguish between what strikes at the heart of a fair trial, what
shocks the sensibilities of a democratic society, what runs counter to the
fundamental values embodied in a State based on the rule of law, and a
breach of procedural rules in the gathering of evidence.
For example, a breach of the right to confer freely with one's lawyer
seems to me to be completely different from a breach resulting from the
lack of judicial authorisation for telephone tapping of a suspect, where this
flaw is subsequently redressed.
32 BYKOV v. RUSSIA JUDGMENT – SEPARATE OPINIONS

If a recording of the accused's conversation with his lawyer is used as a

basis for convicting him, a more serious violation will result, calling for a
more forceful attitude on the part of the Court, which may, for example,
demand a new trial at which the use of the evidence in issue will be
prohibited, and also award an appropriate sum for the damage sustained.
In the other scenario mentioned above, however, the finding of a
violation should in itself be sufficient.
3.4. These considerations lead me to a more detailed examination of
other aspects of the procedure, moving away from an “automatic” finding of
a violation of Article 6 once a violation of Article 8 has been found: a
violation of the latter provision does not automatically entail a violation of
Article 6, but simply the presumption of a violation.
A finding of a violation or no violation will depend on the particular
circumstances of the case at hand and the weighing up of the values
protected by domestic law and the Convention and those in issue in the
criminal proceedings.
It is true that such an approach would weaken the notion of a fair trial,
which would become a variable-geometry concept.
However, this approach would have the advantage of not treating all
situations on the same footing, since, as I have already observed, some
violations of Article 8 are worse than others.
I will readily admit that there are risks in such an approach; the choice of
the right criteria for finding a violation, and their subsequent application to
the particular case, especially where the factual circumstances are difficult
to establish, will be a hazardous exercise.
Situations will thus arise when the presumption could be rebutted where
the rights of the defence have been respected and where the weight of public
interest in the applicant's conviction or other relevant grounds so require.
However, limits will always have to be set.
I would again refer to everything that strikes at the heart of a fair trial,
shocks the sensitivities of a democratic society or runs counter to the
fundamental values embodied in a State based on the rule of law. Once
these values have been undermined, the presumption must be confirmed and
a violation of Article 6 found; the public interest at stake or the question
whether the rights of the defence have been respected will be immaterial.
The case-law of the Supreme Court of the United States refers in this
connection to the falsehoods crucial to the facts of the case that can always
result from interrogation techniques “so offensive to a civilized system of
justice” that “they must be condemned” in the name of due process.
The Supreme Court of Canada makes a distinction between “dirty tricks”
(which the community finds shocking) and mere “ruses”, concluding that
“What should be repressed vigorously is conduct on [the authorities'] part
that shocks the community. That a police officer pretend to be a lock-up
chaplain and hear a suspect's confession is conduct that shocks the
 BYKOV v. RUSSIA JUDGMENT – SEPARATE OPINIONS 33

community; so is pretending to be the duty legal-aid lawyer eliciting in that

way incriminating statements from suspects or accused; injecting Pentothal
into a diabetic suspect pretending it is his daily shot of insulin and using his
statement in evidence would also shock the community; but generally
speaking, pretending to be a hard drug addict to break a drug ring would
not shock the community; nor would ... pretending to be a truck driver to
secure the conviction of a trafficker” (Judge Lamer, individual opinion, in
R. v. Rothman, [1981] 1 SCR 640; approved by the majority of the Supreme
Court in R. v. Collins, [1987] 1 SCR 265, § 52, and R. v. Oickle, [2000]
2 SCR 3, § 66).
I must acknowledge, nevertheless, that all this involves a somewhat
empiricist approach and a perhaps excessively discretionary power;
however, I wonder how we can draw a firm, clear and distinct line between
what might be acceptable and what cannot.
Here, I would return to the distinction between substantive and
procedural.
I would say, generally speaking, that the use of any evidence that is not
admissible under the member States' domestic law and the Convention will
“automatically” entail a violation of the right to a fair trial.
The question whether or not the rights of the defence have been
respected, the public interest at stake and all other circumstances are
immaterial: a trial in which evidence thus obtained has served as a basis for
a conviction will always be an unfair trial.
In that connection I would cite the example of the recording of the
accused's conversation with his lawyer.
The gathering of evidence by this means must be discouraged at all costs,
even where the evidence in question was merely additional or subsidiary
and where a new trial is perhaps not warranted.
On the other hand, where procedural rules have not been complied with
in respect of evidence that is normally admissible in member States and
under international law – either because domestic law does not provide for
such evidence or because, notwithstanding the fact that such evidence is
admissible at domestic level, the conditions governing its use in the case at
hand were not observed – in certain circumstances, particularly where the
rights of the defence have been respected, and where the public interest
must prevail over the interests of the individual, in view of the nature and
seriousness of the offence, I would tend to conclude that there has been no
breach of the rules of a fair trial.
In the present case, I consider that there was no violation because there
was only a formal breach (“in accordance with the law”) in obtaining
evidence that, in principle, was admissible in a democratic society and the
rights of the defence were, moreover, respected.
34 BYKOV v. RUSSIA JUDGMENT – SEPARATE OPINIONS

CONCURRING OPINION OF JUDGE KOVLER

(Translation)

I agree with the conclusions reached by the majority. I should

nevertheless like to clarify my position on the complaints under Article 8 of
the Convention as submitted by the applicant.
Before relinquishing jurisdiction on 22 November 2007 in favour of the
Grand Chamber, the Chamber of seven judges, of which I was a member,
summarised the complaints under Article 8 as follows in its admissibility
decision of 7 September 2006: “The applicant complained that the police
conducting the covert operation unlawfully intruded into his home and
interfered with his private life and correspondence by intercepting and
recording his conversation with V. in violation of Article 8 of the
Convention ...” This complaint was declared admissible in its entirety.
According to the text of the Grand Chamber's judgment, “the applicant
complained ... about the covert recording made at his home” (see
paragraph 3). The statements of the facts (see paragraphs 35-36) and, above
all, of the applicant's allegations thus portray the intrusion into his home as
an unlawful and unjustified interference with his right to respect for his
private life and home (see paragraphs 70-71). However, to my regret the
Grand Chamber confines its conclusions to the finding that an “operative
experiment” was not accompanied by adequate legal safeguards (see
paragraph 81), before stating quite simply: “Nor is it necessary to consider
whether the covert operation also constituted an interference with the
applicant's right to respect for his home”(see paragraph 82). This was a
missed opportunity to undertake a more nuanced assessment of all the
applicant's complaints under Article 8, on the basis of the Court's substantial
body of case-law in this area.
 BYKOV v. RUSSIA JUDGMENT – SEPARATE OPINIONS 35

PARTLY DISSENTING OPINION OF JUDGE COSTA

(Translation)

1. I consider that there was a breach of Article 6 § 1 of the Convention

in this case. The applicant's complaint that the criminal proceedings
resulting in his conviction were unfair was mainly based on two arguments:
– that police trickery had caused him to incriminate himself; and
– that the instrument of such trickery – the recording of his conversation
with V. – had been admitted in evidence.
2. Both these points may give rise to some uncertainty.
3. The police and the Federal Security Service (FSB) conducted a covert
operation in which the central agent was V., who had allegedly been ordered
by the applicant to kill the latter's former business associate, S., but had not
carried out the murder, instead reporting the applicant to the FSB. The
covert operation, aimed at obtaining evidence against the applicant,
consisted in sending V. to the applicant's home and instructing V. to say that
he had carried out the order to kill; at the same time, their conversation
would be secretly recorded by a police officer stationed outside the house.
V.'s visit was itself preceded by the macabre staging several days earlier
of the discovery of two dead bodies at S.'s home, spuriously identified as S.
and his business partner, I. This was widely publicised.
4. This ploy, despite its specific characteristics, is not in itself far
removed from the ruses, traps and stratagems used by the police to obtain
confessions from persons suspected of criminal offences or to establish their
guilt, and it would be naïve, indeed unreasonable, to seek to disarm the
security forces, faced as they are with the rise in delinquency and crime.
5. Even so, not all methods used by the police are necessarily compatible
with the rights guaranteed by the Convention. Thus, in a different context,
the Court did not accept that a police ruse (nevertheless described by the
Government as a “little ruse”) was compatible with the right to liberty
within the meaning of Article 5 (see Čonka v. Belgium, no. 51564/99,
§§ 41-46, ECHR 2002-I). And in the present case the Court found that the
unlawful interception of Mr Bykov's conversation with V. breached
Article 8 of the Convention.
6. With regard to Article 6 § 1, I would not go so far as to take the view
that the use of any evidence breaching the Convention as a basis for
establishing the accused's guilt renders the trial unfair (as was argued by
Judge Loucaides in his separate opinion in Khan v. the United Kingdom,
no. 35394/97, ECHR 2000-V). However, I do believe that the Court should
undertake a careful examination of whether a trial based on such evidence
complies with Article 6 § 1, a point to which I shall return later.
7. As regards the right not to incriminate oneself, an inherent aspect of
the rights of the defence as affirmed in John Murray v. the United Kingdom
36 BYKOV v. RUSSIA JUDGMENT – SEPARATE OPINIONS

(8 February 1996, Reports of Judgments and Decisions 1996-I), it normally

entails the right for a person suspected of an offence to remain silent,
including during police questioning. Although the Court accepts that the
right not to contribute to incriminating oneself is not absolute, it attaches
considerable importance to it and has sometimes pointed out that it
originates in Article 14 of the International Covenant on Civil and Political
Rights (see Funke v. France, 25 February 1993, § 42, Series A no. 256-A).
8. The right to remain silent would be truly “theoretical and illusory” if
it were accepted that the police had the right to “make a suspect talk” by
using a covert recording of a conversation with an informer assigned the
task of entrapping the suspect.
9. Yet that was exactly the case here. V. was in practice an “agent” of
the security forces, and I can see similarities between the Bykov case and
that of Ramanauskas v. Lithuania ([GC], no. 74420/01, ECHR 2008-...), in
which the Grand Chamber unanimously found a violation of Article 6 § 1.
The facts were different, but both cases involved simulation and
provocation instigated by the security forces. By telling the applicant that he
had carried out the killing, V. sought to induce the applicant, who was
unaware that his conversation could be heard, to confirm that he had entered
into a “contract” with him, in the criminal sense of the term.
10. The Court is obviously not, and should not become, a fourth-instance
court. It does not have to decide (that is the task of the national courts)
whether Mr Bykov was guilty of incitement to commit murder. Nor does it
have to speculate on what the outcome of the trial would have been had it
been fair. But it is precisely its task to rule on the fairness issue; and the use
of this elaborately staged ploy (including the “fake” corpses) causes me to
harbour strong doubts as to whether the presumption of innocence, the
rights of the defence and, ultimately, the fairness of the trial were secured.
11. My doubts are entirely dispelled when I note that the evidence
obtained in breach of Article 8 of the Convention played a decisive role in
this context. I shall not expand on this point, which I consider is addressed
very eloquently in the partly dissenting opinion of Judge Spielmann joined
by Judges Rozakis, Tulkens, Casadevall and Mijović.
12. In my view, this decisive aspect is very important in law. If, besides
the recording in issue (and the initial complaint against Mr Bykov by V., but
that could have been one man's word against another), the Russian judges
had based their findings on other evidence, there would still have been
cause for uncertainty. A criminal trial is often complex, and the large
number of items of evidence on which the judges' verdict is based may
sometimes decontaminate the dubious evidence by absorbing it. That was
not the case in this instance.
13. All in all, while I fully understand the reasons why the Court did not
find a violation of Article 6, I was unable to make the leap that would have
allowed me to share the majority's view.
 BYKOV v. RUSSIA JUDGMENT – SEPARATE OPINIONS 37

PARTLY DISSENTING OPINION OF JUDGE SPIELMANN

JOINED BY JUDGES ROZAKIS, TULKENS, CASADEVALL
AND MIJOVIĆ
(Translation)

1. I do not agree with the Court's conclusion that there was no violation
of Article 6 of the Convention.
2. The question of respect for the right to a fair hearing arises in my
opinion under two headings: the admission in criminal proceedings of
evidence obtained in breach of Article 8, and the right to remain silent and
not to incriminate oneself.

I. Admission in criminal proceedings of evidence obtained in breach of

Article 8

3. I would observe that, having regard to the general principles set out in
paragraphs 88-93 of the judgment, the Court reached a unanimous finding
that the covert operation was conducted in breach of Article 8 of the
Convention.
4. The simulation staged by the authorities, described in more detail in
the part of the judgment concerning the circumstances of the case under the
heading “Covert operation”, was unlawful. As the Court observed in
paragraph 80, the applicant enjoyed very few, if any, safeguards in the
procedure by which the interception of his conversation with V. was ordered
and implemented. It accordingly found a violation of Article 8 of the
Convention.
(a) The question of principle and the missed opportunity to strengthen practical
and effective rights
5. After the Chamber had relinquished jurisdiction, the present case was
sent to the Grand Chamber, which was afforded the opportunity to clarify
and spell out its case-law on the use of unlawful evidence at a trial. The
question of the admission in criminal proceedings of evidence obtained in
breach of Article 8 is a question of principle that deserved an answer of
principle, particularly as regards the need to ensure consistency between the
Court's findings under the two Articles of the Convention (what is
prohibited under Article 8 cannot be permitted under Article 6) and the need
to stress the importance of the Article 8 rights at stake (bearing in mind the
growing need to resort to unlawful investigative methods, especially in
fighting crime and terrorism). As far as this question of principle is
concerned, I would reiterate the arguments which my colleague Françoise
38 BYKOV v. RUSSIA JUDGMENT – SEPARATE OPINIONS

Tulkens put forward in her partly dissenting opinion in P.G. and J.H. v. the
United Kingdom.1
6. In the present case the violation of Article 8 was a particularly serious
one, representing a manifest infringement of the fundamental rights
protected by that provision. The use during a trial of evidence obtained in
breach of Article 8 should have called for an extremely rigorous
examination by the Court of the fairness of the proceedings. As the Court
has already had occasion to emphasise, the Convention is to be read as a
coherent whole.2 I agree with the partly concurring, partly dissenting
opinion expressed by Judge Loucaides in Khan v. the United Kingdom3 and
reiterated by Judge Tulkens in her above-mentioned partly dissenting
opinion in P.G. and J.H. v. the United Kingdom:4
“It is my opinion that the term 'fairness', when examined in the context of the
European Convention on Human Rights, implies observance of the rule of law and for
that matter it presupposes respect of the human rights set out in the Convention. I do
not think one can speak of a 'fair' trial if it is conducted in breach of the law.”
7. In the present case the violation of Article 8 of the Convention found
by the Court results, and indeed results exclusively, from the unlawfulness
of the evidence in issue (see paragraph 82 of the judgment). Yet the fairness
required by Article 6 of the Convention also entails a requirement of
lawfulness.5 Fairness presupposes respect for lawfulness and thus also, a
fortiori, respect for the rights guaranteed by the Convention, which it is
precisely the Court's task to supervise.
8. As regards the nature and scope of the Court's supervision, the Court
rightly notes in the judgment that “in accordance with Article 19 of the
Convention, its only task is to ensure the observance of the obligations
undertaken by the Parties in the Convention” (see paragraph 88). It follows,
and I strongly agree with this observation, that
“it is not competent to deal with an application alleging that errors of law or fact
have been committed by domestic courts, except where it considers that such errors
might have involved a possible violation of any of the rights and freedoms set out in
the Convention”.
9. Similarly, while it is not the role of the Court
“to determine, as a matter of principle, whether particular types of evidence – for
example, evidence obtained unlawfully in terms of domestic law – may be
admissible” (see paragraph 89 of the judgment),

1. P.G. and J.H. v. the United Kingdom, no. 44787/98, ECHR 2001-IX.
2. Klass and Others v. Germany, 6 September 1978, §§ 68-69, Series A no. 28.
3. Khan v. the United Kingdom, no. 35394/97, ECHR 2000-V.
4. Cited above.
5. Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and
33210/96, § 102, ECHR 2000-VII.
 BYKOV v. RUSSIA JUDGMENT – SEPARATE OPINIONS 39

the position is, however, different where, as in the present case, the
evidence was obtained in breach of a right guaranteed by the Convention,
seeing precisely that, where the taking of evidence is concerned, the Court
must ensure observance by the Contracting States of their obligations under
the Convention.
10. The judgment in the present case could have dispelled the
uncertainties resulting from the Court's case-law on the subject by making
clear that what is prohibited by one provision (Article 8) cannot be accepted
under another (Article 6).
11. In finding that there was no violation of Article 6, the Court has
undermined the effectiveness of Article 8. Yet the rights enshrined in the
Convention cannot remain purely theoretical or virtual, since
“the Convention must be interpreted and applied in such a way as to guarantee rights
that are practical and effective”.1
12. The majority's view seems to me, moreover, to entail a real danger,
one which has already been noted in the above-mentioned separate opinion
in Khan2 and reiterated in the above-mentioned separate opinion in P.G. and
J.H. v. the United Kingdom:3
“If violating Article 8 can be accepted as 'fair' then I cannot see how the police can
be effectively deterred from repeating their impermissible conduct.”
13. However, the Court has itself emphasised
“the need to ensure that the police exercise their powers to control and prevent crime
in a manner which fully respects the due process and other guarantees which
legitimately place restraints on the scope of their action ..., including the guarantees
contained in Articles 5 and 8 of the Convention”.4
14. The judgment fails to provide a response to the questions raised in
the partly dissenting opinion cited above:
“Will there come a point at which the majority's reasoning will be applied where the
evidence has been obtained in breach of other provisions of the Convention, such as
Article 3, for example? Where and how should the line be drawn? According to which
hierarchy in the guaranteed rights? Ultimately, the very notion of fairness in a trial
might have a tendency to decline or become subject to shifting goalposts.”5
15. So much, then, for the principles and for the (missed) opportunity
afforded to the Grand Chamber to strengthen practical and effective rights.

1. See Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 35, ECHR 2000-IV; Beer and
Regan v. Germany [GC], no. 28934/95, § 57, 18 February 1999; García Manibardo
v. Spain, no. 38695/97, § 43, ECHR 2000-II; and Salduz v. Turkey [GC], no. 36391/02,
§ 51, ECHR 2008-....
2. Partly concurring, partly dissenting opinion of Judge Loucaides in Khan, cited above.
3. Partly dissenting opinion of Judge Tulkens in P.G. and J.H., cited above.
4. See Osman v. the United Kingdom, 28 October 1998, § 116, Reports of Judgments and
Decisions 1998-VIII.
5. Partly dissenting opinion of Judge Tulkens in P.G. and J.H., cited above.
40 BYKOV v. RUSSIA JUDGMENT – SEPARATE OPINIONS

(b) The decisive influence of the evidence obtained in breach of Article 8 of the
Convention
16. Beyond the question of principle addressed above, I consider that the
evidence obtained in breach of Article 8 caused the proceedings to be fatally
flawed, since it decisively influenced the guilty verdict against the applicant.
17. Admittedly, it appears that the court in the present case based its
decision on other items of evidence. Besides the evidence obtained by
means of the covert operation, the following items unconnected with the
operation seem to have been taken into account: the initial statement by V.
that the applicant had ordered him to kill S.; the gun V. handed in to the
FSB; and the records of the questioning of V. on subsequent occasions
during the investigation. These items of evidence – all produced by V. –
were challenged during the trial by the applicant, who for his part relied on
V.'s subsequent withdrawal of his statements. However, the doubts as to the
reliability of V.'s statements could not be dispelled since V. was absent and
the authorities were unable to trace him and call him to appear in court, with
the result that he could not be cross-examined during the trial (see
paragraphs 38-40 of the judgment). The court eventually admitted the
statements by V. as written evidence and, after examining the contradictory
remarks he had made, concluded that the withdrawal appeared to have
resulted from a subsequent arrangement between V. and the applicant.
Accordingly – leaving aside the evidence obtained in breach of Article 8 of
the Convention – the court reached its finding solely on the basis of V.'s
initial statements incriminating the applicant.
18. Admittedly, the applicant had the opportunity to examine V. when
they were brought face to face during the investigation, but I must
emphasise that this meeting took place before V. withdrew his statements.
Consequently, the applicant's lawyer was unable to cross-examine V. in the
light of his withdrawal of the statements, either during the investigation or
during the court hearings. However, as the Court emphasised in Lucà
v. Italy, where a conviction is based solely or to a decisive degree on
depositions that have been made by a person whom the accused has had no
opportunity to examine or to have examined, whether during the investigation
or at the trial, the rights of the defence are restricted to an extent that is
incompatible with the guarantees provided by Article 6.1

1. See Lucà v. Italy, no. 33354/96, § 40, ECHR 2001-II, and the references therein to
Unterpertinger v. Austria, 24 November 1986, §§ 31-33, Series A no. 110; Saïdi v. France,
20 September 1993, §§ 43-44, Series A no. 261-C; Van Mechelen and Others v. the
Netherlands, 23 April 1997, § 55, Reports 1997-III; Dorigo v. Italy, application
no. 33286/96, Commission’s report of 9 September 1998, § 43, and, on the same case,
Committee of Ministers Resolution DH (99) 258 of 15 April 1999.
 BYKOV v. RUSSIA JUDGMENT – SEPARATE OPINIONS 41

(c) The need for the subsequent use of anonymous sources to be accompanied
by adequate and sufficient guarantees
19. The fact that it was impossible to cross-examine V. in court also
raises an issue in terms of the procedural right to challenge the evidence
obtained as a result of the covert operation.
20. As the Court pointed out in the Ramanauskas judgment,1 admittedly
in an entirely different context, involving police incitement,
“the Convention does not preclude reliance, at the preliminary investigation stage
and where the nature of the offence may warrant it, on sources such as anonymous
informants. However, the subsequent use of such sources by the trial court to found a
conviction is a different matter and is acceptable only if adequate and sufficient
safeguards against abuse are in place, in particular a clear and foreseeable procedure
for authorising, implementing and supervising the investigative measures in question
(see Khudobin v. Russia, no. 59696/00, § 135, 26 October 2006, and, mutatis
mutandis, Klass and Others v. Germany, 6 September 1978, §§ 52-56, Series A
no. 28). While the rise in organised crime requires that appropriate measures be taken,
the right to a fair trial, from which the requirement of the proper administration of
justice is to be inferred, nevertheless applies to all types of criminal offence, from the
most straightforward to the most complex. The right to the fair administration of
justice holds so prominent a place in a democratic society that it cannot be sacrificed
for the sake of expedience (see Delcourt v. Belgium, 17 January 1970, § 25, Series A
no. 11).”2
21. Admittedly, the other evidence used during the trial included
numerous witness statements referring to the existence of a conflict of
interests between the applicant and S., and other items confirming the
accuracy of the description of the covert operation set out in the reports on
the investigation. However, the probative value of such evidence was
relatively minor. The fact that it was impossible to cross-examine V. in
court therefore prevented the applicant from having full enjoyment of his
procedural right to challenge the evidence obtained through the covert
operation.
22. In short, I consider that the use of the evidence in issue irreparably
impaired the applicant's defence rights. Such a conclusion would in itself
have justified the finding of a violation of Article 6 of the Convention.

II. Respect for the right to remain silent and not to incriminate oneself

23. Lastly, the covert operation in my opinion infringed the applicant's

right to remain silent and not to incriminate himself. None of the Court's
case-law corresponds exactly to the facts of the present case. Once again, I
regret that the Grand Chamber did not seize the opportunity to clarify the
principles emerging, in particular, from its judgments in the cases of
Jalloh,3 Allan4 and, to a lesser extent, Ramanauskas.5

1. Ramanauskas v. Lithuania [GC], no. 74420/01, ECHR 2008-....

2. Ibid., § 53.
42 BYKOV v. RUSSIA JUDGMENT – SEPARATE OPINIONS

24. In its Jalloh judgment of 11 July 2006 the Court reiterated the
principle that
“... the right not to incriminate oneself is primarily concerned with respecting the
will of an accused person to remain silent”.1
25. In the case of Jalloh the authorities obtained real evidence against
the applicant's will. The Court declared that the privilege against self-
incrimination was applicable, stating the following:
“... the principle against self-incrimination is applicable to the present proceedings.

In order to determine whether the applicant's right not to incriminate himself has
been violated, the Court will have regard, in turn, to the following factors: the nature
and degree of compulsion used to obtain the evidence; the weight of the public
interest in the investigation and punishment of the offence at issue; the existence of
any relevant safeguards in the procedure; and the use to which any material so
obtained is put.”2
26. These criteria are applicable in the present case, given that the
substance of the matter concerns the recording of evidence obtained in
breach of the privilege against self-incrimination. Concerning more
specifically the public interest in securing the applicant's conviction, I do
not consider that this can in any circumstances justify the use in evidence of
recordings found to have been unlawful for the purposes of Article 8 of the
Convention.3
27. The present case is similar to the case of Allan, in which the Court
found a violation of Article 6.4 Admittedly, unlike in Allan, the applicant in
the present case was not in pre-trial detention but at liberty in his own
property. It is also true that in Allan the applicant chose to remain silent.
28. However, those particular aspects are in my opinion not decisive,
seeing that the informer V. was de facto an agent working for the authorities
at the time when he recorded the conversation in issue.
29. In paragraph 51 of the Allan judgment the Court stated the
following, referring to the case-law of the Supreme Court of Canada:5
“Whether the right to silence is undermined to such an extent as to give rise to a
violation of Article 6 of the Convention depends on all the circumstances of the

1. Jalloh v. Germany [GC], no. 54810/00, ECHR 2006-IX.

2. Allan v. the United Kingdom, no. 48539/99, ECHR 2002-IX.
3. Cited above.
4. Jalloh, cited above, § 101.
5. Ibid., §§ 116-17.
6. Compare with the concurring opinion of Sir Nicolas Bratza in Jalloh, cited above:
“... the scale of the drug dealing involved seems to me to be immaterial to the Convention
issues raised under Article 6. The public interest in securing the applicant’s conviction
could not in my view in any circumstances have justified the use in evidence of drugs
obtained by the treatment to which he was subjected.”
7. Allan, cited above, § 52.
8. R. v. Hebert ([1990] 2 Supreme Court Reports 151).
 BYKOV v. RUSSIA JUDGMENT – SEPARATE OPINIONS 43

individual case. In this regard, however, some guidance may be found in the decisions
of the Supreme Court of Canada, ... in which the right to silence, in circumstances
which bore some similarity to those in the present case, was examined in the context
of section 7 of the Canadian Charter of Rights and Freedoms. There, the Canadian
Supreme Court expressed the view that, where the informer who allegedly acted to
subvert the right to silence of the accused was not obviously a State agent, the analysis
should focus on both the relationship between the informer and the State and the
relationship between the informer and the accused: the right to silence would only be
infringed where the informer was acting as an agent of the State at the time the
accused made the statement and where it was the informer who caused the accused to
make the statement. Whether an informer was to be regarded as a State agent
depended on whether the exchange between the accused and the informer would have
taken place, and in the form and manner in which it did, but for the intervention of the
authorities. Whether the evidence in question was to be regarded as having been
elicited by the informer depended on whether the conversation between him and the
accused was the functional equivalent of an interrogation, as well as on the nature of
the relationship between the informer and the accused.”
30. In the present case the informer who acted on State instructions,
subverting the applicant's right to remain silent, was obviously a State agent.
The question arises whether the conversation between him and the accused
would have taken place, and in the form and manner in which it did, but for
the intervention of the authorities. The answer is no, and the recorded
conversation was thus was the functional equivalent of an interrogation. The
purpose of this ruse was, in particular, to reveal the existence of a particular
offence, namely “conspiracy to murder”. Among the constituent elements of
this offence, the mens rea or element of intent plays a crucial, if not
predominant, role. The grossly unlawful ruse staged by the authorities was
aimed precisely at “uncovering” this essential element of the offence.
31. The fact that the applicant had not been charged is not decisive in
my opinion either. In the R. v. Hebert decision (cited above) the Supreme
Court of Canada stated the following:
“The protection conferred by a legal system which grants the accused immunity
from incriminating himself at trial but offers no protection with respect to pre-trial
statements would be illusory. As Ratushny writes (Self-Incrimination in the Canadian
Criminal Process (1979), at p. 253):

'Furthermore, our system meticulously provides for a public trial only after a
specific accusation and where the accused is protected by detailed procedures and
strict evidentiary rules. Ordinarily he is represented by a lawyer to ensure that he in
fact received all of the protections to which he is entitled. The accused is under no
legal or practical obligation to respond to the accusation until there is an evidentiary
case to meet. There is a hypocrisy to a system which provides such protections but
allows them all to be ignored at the pre-trial stage where interrogation frequently
occurs in secret, after counsel has been denied, with no rules at all and often where
the suspect or accused is deliberately misled about the evidence against him.'

...
44 BYKOV v. RUSSIA JUDGMENT – SEPARATE OPINIONS

The guarantee of the right to consult counsel confirms that the essence of the right is
the accused's freedom to choose whether to make a statement or not. The state is not
obliged to protect the suspect against making a statement; indeed it is open to the state
to use legitimate means of persuasion to encourage the suspect to do so. The state is,
however, obliged to allow the suspect to make an informed choice about whether or
not he will speak to the authorities.”1
32. However, in the present case, the applicant spoke without having
given his free and informed consent.
33. I would add that to deny the right to remain silent and the right not to
incriminate oneself simply because the applicant had not been charged or
had not undergone initial questioning would leave the way open for abuses
of procedure. The person concerned would be deprived of the opportunity to
choose to speak or to remain silent at a later stage, for example during such
questioning, and the principle would thus become devoid of all substance.
34. It is true that in the R. v. Hebert decision the Supreme Court of
Canada also based its ruling on the fact that the person concerned was in
detention:
“[The rule] applies only after detention. Undercover operations prior to detention do
not raise the same considerations. The jurisprudence relating to the right to silence has
never extended protection against police tricks to the pre-detention period. Nor does
the Charter extend the right to counsel to pre-detention investigations. The two
circumstances are quite different. In an undercover operation prior to detention, the
individual from whom information is sought is not in the control of the state. There is
no need to protect him from the greater power of the state. After detention, the
situation is quite different; the state takes control and assumes the responsibility of
ensuring that the detainee's rights are respected.”
35. However, I consider that the criterion applied by the Supreme Court
in the context of detention is applicable mutatis mutandis to a situation
where the person concerned is de facto under the authorities' control. This
was so in the present case; the applicant was an unwitting protagonist in a
set-up entirely orchestrated by the authorities. I would draw attention here to
the very particular circumstances of the covert operation, which began with
the staged discovery of two bodies and the announcement in the media that
S. and I. had been shot dead. By the time V. arrived at the applicant's “guest
house”, the applicant was already under the influence of the erroneous
information that a serious crime had been committed, and his belief was
reinforced by V.'s admission that he had been the perpetrator. The
applicant's conduct was therefore not solely, or mainly, guided by events
which would have taken place under normal circumstances, but above all by
the appearances created by the investigating authorities. To that extent,
seeing that he was the victim of a ruse, his statements and reaction cannot
reasonably be said to have been voluntary or spontaneous.

1. Per McLachlin J.
 BYKOV v. RUSSIA JUDGMENT – SEPARATE OPINIONS 45

36. In the case of Ramanauskas, concerning police incitement, the Court

reached the conclusion in its judgment of 5 February 2008 that
“the actions ... had the effect of inciting the applicant to commit the offence of which
he was convicted[,] that there is no indication that the offence would have been
committed without their intervention [and that i]n view of such intervention and its
use in the impugned criminal proceedings, the applicant's trial was deprived of the
fairness required by Article 6 of the Convention”.1 (my italics)
37. In the present case the purpose of the staged events was to make the
applicant talk. The covert operation undermined the voluntary nature of the
disclosures to such an extent that the right to remain silent and not to
incriminate oneself was rendered devoid of all substance. As in the
Ramanauskas case, the applicant was entrapped by a person controlled from
a distance by the authorities, who staged a set-up using a private individual
as an undercover agent. I thus consider that the information thereby
obtained was disclosed through entrapment, against the applicant's will.2

III. Article 41 of the Convention

38. Lastly, I voted against point 4 (a) of the operative provisions. I

consider that the award of 1,000 euros for non-pecuniary damage is
insufficient, given the Court's finding of two violations.

1. Ramanauskas, cited above, § 73.

2. See, mutatis mutandis, Allan, cited above.