Information Note on the Court’s case-law No.
June 1992
Lüdi v. Switzerland - 12433/86
Judgment 15.6.1992
Article 8
Article 8-1
Respect for correspondence
Respect for private life
Telephone interception combined with the intervention of an undercover agent: no violation
[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.]
I.GOVERNMENT'S PRELIMINARY OBJECTION (that the applicant was not a victim)
Court had jurisdiction to examine the objection, even though this was disputed by the Commission.
Existence of a violation of the Convention conceivable even in the absence of prejudice. Applicant directly affected by the intervention of the undercover agent and national authorities, far from acknowledging that this constituted a violation, had considered it compatible with the Convention. Applicant could claim to be a victim despite the mitigation of his sentence.
Conclusion: objection dismissed (unanimously).
II.ARTICLE 8 OF THE CONVENTION
Telephone interception: interference with private life and correspondence, "in accordance with the law" and "necessary in a democratic society" for the "prevention of crime".
Use of an undercover agent: did not, either alone or in combination with the telephone interception, affect private life, but took place within the context of a cocaine deal and was aimed at arresting the dealers - applicant must have been aware that he ran the risk of encountering an undercover police officer whose task would be to expose him.
Conclusion: non-violation (unanimously).
III.ARTICLE 6 §§ 1 AND 3 (D) OF THE CONVENTION
Court's case-law restated on the production and admissibility of evidence and the concept of a "witness".
In this case the conviction was based not on the testimony of anonymous witnesses but inter alia on the written statements of a sworn police officer whose mission the investigating judge was aware of.
Refusal of investigating judge and trial courts to call the undercover agent as a witness: meant that neither the applicant nor his counsel had at any time during the proceedings an opportunity to question him or cast doubt on his credibility. Yet it would have been possible to do this in a way that took into account the legitimate interest of the police authorities in preserving their agent's anonymity.
Rights of the defence restricted to such an extent that the applicant did not enjoy a fair trial.
Conclusion: violation (eight votes to one).
IV.ARTICLE 50 OF THE CONVENTION
Costs and expenses (before the Federal Court and the Convention institutions): reimbursed on an equitable basis.
Conclusion: respondent State to pay the applicant a specified sum (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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