Individual Application

The Facts

The chief public prosecutor’s office ordered the interception and recording of the applicant’s communication within the scope of the investigation launched against him at the end of which he was indicted. The subsequent proceedings were concluded with the conviction of the applicant of aggravated theft, violation of the inviolability of domicile, and damage to property committed against some of the victims, based on communication records obtained through the interception of the communication between the applicant and other defendants. In the meantime, the applicant was acquitted of the charges of establishing a criminal organization, as well as of aggravated theft, damage to property, and violation of the inviolability of domicile in so far as it concerns some other victims. Upon the applicant’s subsequent appeal, the Court of Cassation upheld his conviction, which thereby became final.

The Applicant’s Allegations

The applicant claimed that his right to a reasoned decision had been violated, arguing that the trial court failed to address, separately and clearly, his claims challenging the use of unlawfully obtained evidence, which could have affected the outcome of the proceedings.

The Court’s Assessment

In the present case, the trial court convicted the applicant of aggravated theft, violation of the inviolability of domicile, and damage to property, while acquitting him of the charge of establishing a criminal organization, relying on evidence obtained through the interception of the applicant’s communications. Thus, the intercepted communications, in part, were used as evidence to establish the applicant’s guilt in relation to the aforementioned offences.

However, in its previous judgments, the Court of Cassation has unequivocally held that communication records incidentally obtained during the interception of telecommunication regarding offences not enumerated among the so-called “catalogue offences” cannot be lawfully admitted as evidence. The Court has consistently emphasised that such evidence is unlawful and cannot serve as the basis for conviction, as its use during the proceedings constitutes a violation of the rules governing the admissibility of evidence. However, in the present case, the applicant’s conviction was based on evidence obtained through the interception of communications in relation to offences that were not listed as catalogue offences under Article 135 of the Code of Criminal Procedure no. 5271 at the time the evidence was collected.

The applicant appealed the decision, arguing that the impugned evidence was unlawful and therefore could not be relied on for his conviction. It is clear that the applicant’s claims concerning the unlawfulness and inadmissibility of incidentally obtained evidence related to offences not enumerated among the catalogue offences constituted substantial claims, which could have affected the outcome of the proceedings. Nonetheless, the appeal court failed to address the applicant’s claims in a separate and clear manner. Nor did it provide any explanation as to the reasons for departing from its earlier case-law. As a result, the trial court failed to fulfil its obligation to examine and clarify the applicant’s claims, that could have been decisive in the outcome of the proceedings, and to specify its assessment in the reasoning of the decision.

Consequently, the Court has found a violation of the right to a reasoned decision within the scope of the right to a fair trial.