Alinea 261 Parket bij de Hoge Raad 8 juli 2003

1. In the Schenk case, in concluding that the use of the unlawfully obtained recording in evidence did not deprive the applicant of a fair trial, the Court noted, first, that the rights of the defence had not been disregarded: the applicant had been given the opportunity, which he took, of challenging the authenticity of the recording and opposing its use, as well as the opportunity of examining P. and summoning the police inspector responsible for instigating the making of the recording. The Court further "attache(d) weight to the fact that the recording of the telephone conversation was not the only evidence on which the conviction was based" (§ 48). More recently, the Court has applied these principles in the case of Khan v. the United Kingdom (§§ 34-40) and found that the use at trial of recordings of the applicant's conversations was not contrary to the requirements of Article 6 § 1 notwithstanding that they were obtained in circumstances where the Court had found, under Article 8 of the Convention, that the surveillance measures had not been "in accordance with the law".

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