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Evidence, special investigative techniques and the right to a fair hearing

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Abstract

Special investigative techniques—undercover operations and surveillance methods—may raise different human rights issues depending on the purpose of their use. This article maps out the legal points addressed in the jurisprudence of the European Court of Human Rights, in particular, the way the techniques are used, the conditions of the use of their results as evidence in criminal proceedings, and the conditions under which the results of such methods can be kept confidential.

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Notes

  1. Bannikova v. Russia, no. 18757/06, 4 November 2010. All of the Court’s judgments and decisions and Reports of the Commission referred to in this article can be found in the Court’s data base—HUDOC—www.echr.coe.int.

  2. Ramanauskas v. Lithuania [GC], no. 74420/01, 5 February 2008.

  3. Bykov v. Russia [GC], no. 4378/02, 10 March 2009.

  4. Article 6 §1 provides as follows:

    “In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] tribunal…”

  5. E.g. in Russia the preliminary phase is called “operation-search activities”, and the “investigation” begins when the criminal proceedings are instituted. Throughout this article the term “investigation” is used loosely, covering both phases, before and after the institution of criminal proceedings.

  6. Article 8 of the Convention provides as follows:

    1. 1.

      Everyone has the right to respect for his private and family life, his home and his correspondence.

    2. 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.

  7. Khan v. the United Kingdom, no. 35394/97, 12 May 2000, §§27–28.

  8. Shimovolos v. Russia, no. 30194/09, 21 June 2011.

  9. Ibid.

  10. Kennedy v. the United Kingdom, no. 26839/05, 18 May 2010.

  11. Khan, cited above, and P.G. and J.H. v. the United Kingdom, no. 44787/98, 25 September 2001.

  12. Allan v. the United Kingdom, no 48539/99, 5 November 2002.

  13. Teixeira de Castro v. Portugal, no. 25829/94, 9 June 1998.

  14. Khudobin v. Russia, no. 59696/00, 26 October 2006.

  15. Kuzmickaja v. Lithuania (dec.) no. 27968/03, 10 June 2008.

  16. Veselov and Others v. Russia, nos. 23200/10, 24009/07 and 556/10, 2 October 2012.

  17. Teixeira de Castro, cited above, §§35–36 and 39.

  18. Edwards and Lewis v. the United Kingdom [GC], nos. 39647/98 and 40461/98, 27 October 2004.

  19. Jasper v. the United Kingdom [GC], no. 27052/95, 16 February 2000.

  20. Leas v. Estonia, no. 59577/08, 6 March 2012; Bucur and Toma v. Romania, no. 40238/02, 8 January 2013.

  21. Natunen v. Finland, no. 21022/04, 31 March 2009, and Janatuinen v. Finland, no. 28552/05, 8 December 2009.

  22. Fitt v. the United Kingdom [GC], no. 29777/96, 16 February 2000.

  23. A. and Others v. the United Kingdom [GC], no. 3455/05, 19 February 2009.

  24. Al-Nashif v. Bulgaria, no. 50963/99, 20 June 2002; M. and Others v. Bulgaria, no. 41416/08, 26 July 2011; Liu v. Russia (no.2), no. 29157/09, 26 July 2011.

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Correspondence to Natalia Brady.

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This article is based on the author’s presentation at the ERA event “Recent Jurisprudence of the ECHR in the area of Criminal Law” in Strasbourg on 13–14 November 2013, and the views expressed in it are strictly personal.

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Brady, N. Evidence, special investigative techniques and the right to a fair hearing. ERA Forum 15, 37–49 (2014). https://doi.org/10.1007/s12027-014-0334-3

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