Schenk v Switzerland: ECHR 12 Jul 1988

The applicant had faced charges of hiring someone to kill his wife. He complained about the use of a recording of his telephone conversation with the man he hired recorded unlawfully by that man.
Held: The ECHR does not address issues about the admissibility of evidence in the abstract or to deal with them as issues of principle. Article 6 simply guarantees the right to a fair trial and that admissibility of evidence was primarily a matter for regulation under national law. The Court added: ‘The Court therefore cannot exclude as a matter of principle and in the abstract that unlawfully obtained evidence of the present kind may be admissible. It has only to ascertain whether Mr Schenk’s trial as a whole was fair.’
The Court noted that the rights of the defence were respected: the applicant had the opportunity of challenging the authenticity of the recording and of opposing its use. The defence had been able to secure an investigation of the background of the relevant witness and could have examined him in court. In addition, the Court attached weight to the fact that the recording was not the only evidence on which the applicant’s conviction was based and that the domestic court had expressly said that it had relied on evidence, other than the recording, which pointed to the applicant’s guilt.
Rules about the admissibility of evidence are for the contracting states: ‘While article 6 of the Convention guarantees the right to a fair trial, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law. The court therefore cannot exclude as a matter of principle and in the abstract that unlawfully obtained evidence of the present kind may be admissible. It has only to ascertain whether Mr Schenk’s trial as a whole was fair.’
10862/84, [1988] ECHR 17, (1988) 13 EHRR 242
Bailii, Bailii
European Convention on Human Rights 6.1 6.2 8
Cited by:
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CitedRegina v Khan (Sultan) HL 2-Jul-1996
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Updated: 06 January 2021; Ref: scu.165011