Information Note on the Court’s case-law No. 121
July 2009
Lee Davies v. Belgium - 18704/05
Judgment 28.7.2009 [Section II]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Conviction based on evidence obtained during unlawful police operation: no violation
Facts: In 1998 the police were checking an industrial estate when they spotted two individuals loading boxes into a lorry. They then entered one of the hangars adjoining the main building, where they found numerous boxes and a car. They opened one of the boxes and found that it contained packets of tobacco. The door from the hangar into the main building was locked, but the police officers found a key in a jacket and let themselves in. There they found the applicant and another person in the lavatories. The police officers asked the applicant to open one of the boxes in the back of the car. There they found 25 packets of cannabis and 25 packets of hashish. A police dog subsequently reacted when sniffing the car. The investigation revealed that the car had been purchased at the applicant’s request and with his money, and that he had a key to it. The applicant and the other person were charged with drug-trafficking and conspiracy. The Criminal Court acquitted them because the evidence had been obtained illegally. The public prosecutor appealed and the court of appeal sentenced the applicant to imprisonment and a fine. The Court of Cassation rejected the applicant’s subsequent appeal.
Law: This case differed from those where evidence collected unlawfully according to domestic law had also been collected in breach of Article 8 of the Convention (see, among other authorities, Bykov v. Russia [GC], no. 4378/02, 10 March 2009, Information Note no. 117).
The relevant Belgian case-law left the judge largely free to mitigate or, where applicable, eliminate the consequences of irregularities in the collecting of evidence. In the present case the court of appeal had meticulously examined the layout of the premises in order to determine whether or not there had been unlawful entry. It had made a distinction between the different places visited by the police: on the one hand there was the fenced-off land surrounding the industrial buildings and on the other the hangar and the main building. The court of appeal held that the land in question was accessible to the public. The police officers had therefore been within their rights when they had inspected the land around the buildings. As to the search of the hangar and the main building, the court of appeal had found it unlawful, but had decided that this had not affected the value of the evidence found as there was no provision in the law for any specific punishment for such an unlawful search. It had also emphasised that the offences concerned were serious enough to far outweigh any irregularities in the collection of evidence, and that the rights enshrined in Article 8 of the Convention had been respected in one way or another. However, on entering the hangar, which was neither the applicant’s residence nor his place of work, the police had found an offence being committed. It was on the strength of that police operation – the lawfulness of which was certainly open to criticism – and of the evidence gathered on that occasion that the applicant had been convicted. In considering whether the proceedings taken as a whole were fair, it was important to ascertain whether the rights of the defence had been respected. In this particular case the circumstances in which the impugned evidence had been collected left no doubt as to its reliability or accuracy. Furthermore, the applicant had had an opportunity to challenge the evidence and to object to its use and to the resulting findings at three levels of jurisdiction.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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