376 / 462
GAZETTE
NOVEMBER 1992
By contrast, the Court found, by
eight votes to one, that there had
been a violation of Article 6.3 (d)
with 6.1 of the
European
Convention
on Human Rights
in that the
applicant had not enjoyed a fair
trial, because of excessive restriction
on the defence rights.
Article 8 of the European
Convention on Human Rights
provides:
"1. Everyone has the right to respect
for his private and family life, his
home and his correspondence.
2. There shall be no interference by
a public authority with the
exercise of this right except such
as in accordance with the law
and is necessary in a democratic
society in the interests of national
security, public safety or
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."
In March 1984, a Swiss investigating
judge, acting on information from
the German police that Mr. Ludi was
planning to buy drugs in
Switzerland, opened a preliminary
enquiry and ordered his telephone
communications to be intercepted.
The police authorities selected one
of their officers to pass himself o ff
as a potential purchaser of cocaine.
After five meetings with that agent,
the applicant was arrested and
charged with unlawful trafficking in
drugs. He was subsequently found
guilty and sentenced to three years
imprisonment.
In order to protect the police officer's
anonymity, the court had refused to
call him as a witness on the ground
that it followed clearly from his
reports and the records of the
telephone interceptions that the
applicant had, independently of the
agent's intervention, intended to act as
intermediary in the supply of drugs.
The applicant's appeal against his
352
conviction for two of the offences
was dismissed by the Berne Court of
Appeal, which likewise refused to
call, the agent as a witness.
The Court of Human Rights had no
doubt that the telephone interception
had been an interference with Mr.
Ludi's private life and
correspondence. It found, however,
that that interference had been in
accordance with the law of
Switzerland and necessary in a
democratic society for the prevention
of crime. On the other hand, the
Court agreed with the Swiss
Government that in the present case
the use of an undercover agent did
not, either alone or in combination
with the telephone interception,
affect private life within the meaning
of Article 8. There was no violation
of Article 8.
According to consistent case-law of
the European Court on Human
Rights all the evidence must
normally be produced in the
presence of an accused at a public
hearing with a view to adversarial
argument. There were exceptions to
that principle, but they must not
infringe the rights of the defence.
As a general rule, paragraphs 3 (d)
and 1 of Article 6 require that the
defendant be given an adequate and
proper opportunity to challenge and
question a witness against him,
either when he made his statements
or at a later stage. (See
Asch
-v-
Austria
April 26, 1991) (Series A No.
203, plO, paragraph 27).
The local District Court and the
Berne Court of Appeal both refused
to call the undercover agent as a
witness, on the ground that his
anonymity had to be preserved. The
Court of Human Rights found the
present case could be distinguished
from
Kostovski
-v-
The Netherlands
and
Windisch -v- Austria
(The Times
November 22, 1989 and September
17, 1990; Series A Nos 166 and 186),
where the impugned convictions were
based on statements made by
anonymous witnesses.
In the instant case, the person in
question was a sworn police officer
whose function was known to the
investigating judge.
Moreover, the applicant knew the
said agent, if not by his real identity,
at least by his physical appearance,
as a result of having met him on five
occasions.
However, neither the investigating
judge nor the trial courts had been
able or willing to call the undercover
agent as a witness and carry out a
confrontation with the aim of
comparing his statements with Mr.
Ludi's allegations.
Moreover, neither Mr. Ludi nor his
counsel at any time during the
proceedings had an opportunity to
question him and cast doubt on his
credibility. The court considered that
it would have been possible to do
that in a way which took into
account the legitimate interests of
the police authorities in a drug
trafficking case, in preserving the
anonymity of their agent, so that
they could protect him and also
make use of him again in the
future.
In short, the Court held that the
rights of the defence had been
restricted to such an extent that the
applicant had not had a fair trial.
The Court of Human Rights
therefore considered, Judge Matscher
dissenting, that there had been a
violation of paragraph 3 (d) in
conjunction with paragraph 1 of
Article 6.
Mr. Ludi claimed the reimbursement
of his costs and expenses before the
Federal Court and the Strasbourg
institutions, but the Swiss
Government considered the sums
claimed excessive. The Court,
reaching its decision on an equitable
basis, awarded SwFrl5,000.
Irish legislation regulating telephone
interception by the Minister for
Justice, the
Interception of Postal
Packets and
Telecommunications
Messages (Regulation) Bill, 1992
was
passed by Seanad Éireann on July 9,
1992. The Bill has yet to be passed
by the Dáil.
^