The applicant, Mr.Schenk, was accused of planning the murder of his ex-wife. The person who Mr.Schenk allegedly hired to do the murder recorded telephone conversation with him and handed it to police. The recording was later used as one of the main evidence against Mr.Schenk in court. The court found Mr. Schenk guilty of attempted incitement to murder.
Mr.Schenk claimed that making the recording of his telephone conversation was illegal and using it as evidence violated his right to a fair trial.
The Court stated that while Article 6 of the Convention guarantees the right to a fair trial, it does not lay down any rules on the admissibility of evidence as such, which are therefore primarily a matter for regulation under national law. Therefore the Court could not exclude as a matter of principle and in the abstract that unlawfully obtained evidence of the present kind may be admissible. However, it has to be ascertained whether the proceedings as a whole were fair.
The Court found that Mr.Schenk had a possibility to challenge the authenticity of the recording and to oppose its use. Additionally, he was able to present his own witnesses. The Court also took into account that the recording was just one of evidence upon which the judgment of national court was built. Therefore there had been no violation of Article 6(1) of the Convention.