ECHR: A Conviction Based on Unlawfully Obtained Evidence Is Possible

In Macharik v. Czech Republic, the European Court of Human Rights (ECtHR) ruled that a criminal conviction based on a single piece of unlawfully obtained evidence does not breach the right to a fair trial under Article 6 of the Convention for the Protection of Human Rights, provided the evidence is sound and reliable.

A conviction resting on unlawfully obtained evidence

The applicant was convicted by the Czech courts of tax evasion connected to fictitious invoices for advertising space. The key evidence in the criminal proceedings was a set of emails obtained from someone else's mailbox under a court order, which had, however, been issued under the wrong provision of the Code of Criminal Procedure.

On top of that, under the Electronic Communications Act in force at the time, the telecommunications company should not have been storing the content of the emails at all. The Czech courts refused to exclude the unlawfully obtained evidence and convicted the woman. The Constitutional Court dismissed her complaint, pointing to the inconsistent case law that existed when the order was issued.

Unlawfully obtained evidence as a breach of the right to privacy

The ECtHR found a breach of the right to respect for private life under Article 8 of the Convention, and set out its reasoning in detail.

A work email does not mean giving up your rights. The court stressed that using a work email account does not automatically mean giving up your right to privacy. Because the possibility that the emails might be passed to third parties or obtained by the authorities was only a theoretical one, the content of the communication still remained protected to a certain degree. Using a work email does not strip you of that protection.

Unlawful storage of content. Under the Electronic Communications Act then in force, the provider had to make sure that the content of communications was not stored. The ECtHR found that domestic law did not allow providers to store such content.

Insufficient review by the Czech courts. The Czech courts did not deal adequately with the applicant's specific objections about the unlawful procedure, given the providers' duty of confidentiality. Because of this breach of the right to privacy under Article 8 of the Convention, the Czech Republic is to pay the applicant 2,500 euros.

Unlawful evidence does not necessarily breach the right to a fair trial

Despite the unlawful way the evidence had been obtained, the ECtHR found no breach of the right to a fair trial, reasoning as follows.

Article 6 of the Convention guarantees the right to a fair trial, but it does not lay down rules on the admissibility of evidence, which is primarily a matter for domestic law. The ECtHR therefore does not assess whether particular pieces of evidence are admissible, but whether the proceedings as a whole were fair, including the way the evidence was obtained.

The criteria it looked at were:

• Whether the rights of the defence were respected
• Whether the applicant had the chance to challenge the authenticity of the evidence and raise objections
• The quality of the evidence and the absence of any doubt about its reliability

The applicant did not put forward any arguments casting doubt on the authenticity of the emails the police had obtained. She limited her objections to the way the evidence had been gathered. It was essentially undisputed in the proceedings that she was the author of the messages. The court noted that the content of her emails was the decisive evidence for the outcome of the criminal proceedings and made it possible to prove that the invoices and leasing contracts were fictitious.

The takeaway: evidence obtained in breach of Article 8 of the Convention does not automatically mean a breach of Article 6. The stronger the evidence, the weaker the need for anything to back it up. A conviction based on a single but reliable piece of evidence, even one that was obtained unlawfully and that the applicant objected to on that ground, is not in itself contrary to the right to a fair trial under Article 6 of the Convention.

Do you need legal help in criminal proceedings?

The ECtHR's ruling in Macharik shows just how complex the issue of unlawfully obtained evidence in criminal proceedings can be. If you are facing prosecution, or you have doubts about whether the authorities acted lawfully, it is essential to have an experienced lawyer at your side.

Contact us for a free consultation. Together we will find the best strategy for your defence.