CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 22 mai 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sBB9EE52A { font-family:Arial } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sBAD0D18F { width:1.87pt; display:inline-block } .s165BD465 { width:190.1pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .sA23A4EB0 { margin-top:24pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7ED160F0 { text-decoration:none } .s66E9FC38 { font-family:Arial; font-size:8pt; vertical-align:super; color:#000000 } .sD79B6DFE { font-family:Arial; font-size:8pt; font-style:italic; vertical-align:super; color:#000000 } .sB343B0AA { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#000000 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sC36A6361 { font-family:Arial; color:#000000 } .s67F06EFC { font-family:Arial; font-size:10pt; color:#000000 } .s4B8D41EE { font-family:Arial; font-size:10pt } .s2CE7C1B9 { font-family:Arial; font-size:10pt; font-style:italic } .s8EB5F569 { font-family:Arial; font-size:6.67pt; vertical-align:super }       FOURTH SECTION               CASE OF SVETINA v. SLOVENIA   (Application no. 38059/13)                   JUDGMENT       STRASBOURG   22 May 2018   FINAL   22/08/2018   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Svetina v. Slovenia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Ganna Yudkivska, President,   Vincent A. De Gaetano,   Paulo Pinto de Albuquerque,   Iulia Motoc,   Carlo Ranzoni,   Marko Bošnjak,   Péter Paczolay, judges, and Marialena Tsirli, Section Registrar, Having deliberated in private on 27 March 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 38059/13) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Matjaž Svetina, on 5 June 2013. 2.     The applicant was represented by Mr B. Gvozdić, a lawyer practising in Sežana. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney. 3.     The applicant alleged that Articles 6 and 8 of the Convention had been breached on account of the examinations of two mobile telephones in the course of the criminal proceedings. 4.     On 25 August 2015 the aforementioned complaints were communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1982 and lives in Koper. A.     Circumstances of X’s death and preliminary police inquiry 6 .     After going missing on 4 November 2007, X was found dead near the local Komen-Branik road, close to the town of Komen, on the morning of 5   November 2007. He had been repeatedly stabbed and cut with a knife and then run over by a car. The police were called to the scene, as were the district state prosecutor and the duty investigating judge. 7 .     On examining the crime scene, X’s mobile telephone was found in his car. The incoming and outgoing calls and the text messages sent to and from X’s telephone number were checked by police officers at the scene. It appeared from the telephone records that on 4   November 2007 X had communicated only with a person using a certain telephone number, from which a message of an explicitly sexual nature had also been sent to X. After the telephone directory was checked it was established, presumably by the police, that the telephone in question belonged to a woman who happened to be the applicant’s grandmother, with whom, as established on the basis of the official records, the applicant lived. Furthermore, having been informed that X’s mobile telephone had been found, the district state prosecutor requested the duty investigating judge to order the S   company   –   the mobile network operator in question   –   to produce records of telephone calls made and text messages sent from the telephone. 8 .     On the same day (5 November 2007) the investigating judge of the Koper District Court issued an order for a search of X’s home and ordered the S company to provide data concerning communication undertaken via X’s mobile telephone. The S company on the same day submitted to the Koper District Court a disk containing X’s telephone records. 9 .     On the morning of 6 November 2007 the police stopped the applicant’s car and subjected him to a so-called “security check” ( varnostni pregled ), finding a knife (allegedly bearing traces of what could be blood) and a mobile telephone in the applicant’s pocket. After examining his telephone they established that he had used the aforementioned telephone number from which the aforementioned calls had been made and the aforementioned message sent to X. They seized these objects and arrested the applicant. 10 .     On the same day (6 November 2007),   relying mostly on information found in X’s and the applicant’s telephones pointing to a link between X and the applicant, the investigating judge issued a search order in respect of the applicant’s home and the cars he was using. The state prosecutor furthermore requested that a court order for the obtaining of the applicant’s comprehensive telephone records be issued. 11 .     On 7 November 2007 the investigating judge issued an order that the M company – a mobile network operator – provide data concerning the applicant’s mobile telephone record. The M company provided a disk containing the requested data on the same day. 12 .     In the course of the preliminary inquiry, the investigating judge ordered a post-mortem examination of X, a DNA analysis and a comparison of biological traces found on the applicant’s clothes and other objects seized during the home search with those found on X’s body. She also ordered a medical examination of the applicant with a view to establishing any injuries. 13.     The applicant, represented by counsel, was heard on 8   November   2017 and was subsequently detained on remand. B.     Judicial criminal investigation against the applicant and the indictment 14 .     On 16 November 2007 the investigating judge opened a judicial criminal investigation against the applicant in respect of the criminal offence of aggravated murder. She, inter alia : ordered that a reconstruction be carried out at the crime scene; appointed a psychiatrist and a psychologist to examine the applicant and prepare opinions; ordered forensic experts in vehicle science and car crash investigations to prepare reports on specific aspects of the case; and again ordered that the M company and the S company provide traffic data relating to X’s and the applicant’s telephones. She also examined a number of witnesses. 15 .     On 29 November 2007 the applicant was, at his request, heard by the investigating judge, to whom he admitted to running over X, but submitted that this had merely been an accident. 16.     On 24 December 2007 the state prosecutor filed an indictment for aggravated murder against the applicant, alleging that he had killed X by stabbing him thirteen times and cutting him at least nine times on his head, neck, chest and other parts of the body and running over him in his car. C.     Trial 17 .     Following his unsuccessful objection to the indictment, the applicant was put on trial for aggravated murder. A number of hearings were held at which witnesses, experts and evidentiary material were examined and various expert reports ordered and subsequently read out. 18 .     On 10 June 2008 the Koper District Court found the applicant guilty as charged and sentenced him to thirteen years in prison. 19 .     On 12 December 2008 the Koper Higher Court, after an appeal by the applicant, quashed the first-instance judgment, finding that the lower court had failed to clarify the facts surrounding a possible shoe imprint on the victim’s back, which could have indicated the presence of a third person at the scene of the crime. The case was remitted to the Koper District Court for fresh examination. 20 .     In the retrial proceedings, several hearings were held and the applicant lodged an application for the exclusion of all evidence from (i) the records of the crime-scene investigation until (ii) the records of the last hearing in the first set of proceedings, on the grounds that that evidence had allegedly been tainted by the unlawful examinations of his and X’s telephones. He argued that the examinations of his and X’s telephones had violated his and X’s rights under Article 37 of the Constitution (see paragraph 32 above) and that the relevant court orders had been issued a week too late. He also requested that the police officers who had subjected him to a security check (see paragraph 9 above) and arrested him be examined in this connection. Both requests were refused by the court. 21 .     On 4 September 2009 the Koper District Court convicted the applicant for the aggravated murder of X and sentenced him to twelve years’ imprisonment. In view of (i) the expert opinions regarding the shoe traces on X’s back which had led to the conclusion that the presence of another person at the crime scene prior to X’s death could not be excluded, and (ii) the fact that the knife with which X had been stabbed and cut had not been found, the Koper District Court held that there was insufficient proof that the applicant had stabbed and cut X. However, the court found on the basis of the forensic medical evidence that X had still been alive before he had been run over by the car and that the injuries to X’s chest, spine and aorta, which had been the direct cause of his death, had been caused by the applicant having intentionally run him over with his car. It further found it proven on the basis of the evidence at the scene – such as (i) a piece of rubber tube belonging to the applicant’s car, (ii) the applicant’s biological traces found on X’s body, (iii) X’s biological traces found on, inter alia , the applicant’s clothing (which was blood-stained) and on the outside of the applicant’s car – that the applicant had been beyond doubt at the crime scene and had had contact with X. Referring, in particular, to the findings of the experts in vehicle science, who had performed reconstructions at the scene testing the applicant’s versions of events, the court discounted the possibility that the applicant had run over X by accident. The court furthermore found that the applicant and X had known each other, which was confirmed by the applicant’s statements as well as by telephone records and witness testimony. Lastly, the court referred to the telephone records, together with other evidence such as medical evidence and X’s petrol bill, when elaborating on the time of death, finding that it had undoubtedly occurred on 4 November 2007 – probably sometime after 6.24 p.m., when the last (missed) call from X’s telephone had been recorded on the applicant’s telephone. 22 .     As regards the procedural decisions taken during the proceedings the court gave the following explanation: -   It refused a request lodged by the applicant for access to the police notes on the examination of his telephone because it would have been unlawful to include in the file evidence obtained without a court order. -   In view of the foregoing conclusion that the examination of the applicant’s telephone could have not been admitted to the file, the court refused as unnecessary a request by the applicant for the examination of the officers who had seized the applicant’s telephone (see paragraph 20 above). -   As regards the exclusion of evidence (see paragraph 20 above) the court explained that the applicant had become a subject of investigation following the examination of the data in X’s telephone, which had not interfered with the applicant’s rights under Article 37 of the Constitution (see paragraph 32 below). It further noted that the examination of the applicant’s telephone had amounted to a violation of the said provision but carried no evidentiary weight, as at that point the police had already obtained the necessary information from X’s telephone. In addition, the court noted that the results of this examination had not been included in the file and had not been relied on by the court. D.     Appeals 23 .     On 9 November 2009   the applicant appealed, complaining, inter alia , that the judgment had violated his defence rights. In particular, he alleged that the district court should have excluded all evidence from the file because it had been based on the police’s examinations of X’s and his own mobile telephone without the necessary court order. He further stated as follows: “It is irrelevant that the police, by [their] unlawful interference with [X]’s mobile telephone, did not directly violate the appellant’s right under Article 37 of the Constitution [“Privacy of correspondence and other means of communication”], because the fact remains that the police obtained that evidence (data from [X]’s mobile telephone) without a court order – that is to say unlawfully.” 24 .     The applicant moreover argued that the examination of X’s telephone alone had not adduced enough evidence to arrest the applicant and that that had been possible only after the applicant’s telephone had been examined. Thus, in his view, the impugned judgment should not have concluded that the examination of his telephone had had insignificant evidentiary value. 25 .     On 27 January 2010 the Koper Higher Court allowed the applicant’s appeal in part and reduced his sentence to nine years in prison. The court agreed with the applicant that the act of which he had been convicted – that is to say running over X with his car – did not in itself constitute murder with aggravating factors (that is to say aggravated murder), as the first ‑ instance court had not proved that X had sustained severe physical pain or psychological suffering. However, all the other applicant’s complaints, including the one regarding the unlawful examinations of his and X’s mobile telephones, were dismissed. 26 .     As regards the examination of X’s telephone the higher court found that, regardless of whether the police officers had examined X’s telephone before the issuance of the court order, what was crucial was that they had received the court order for the telephone records to be produced before they had identified and located the applicant. Therefore, the examination of X’s mobile telephone, which had constituted an urgent step in the police inquiry, had not been conducted in violation of his constitutionally guaranteed right to protection of the privacy of communication. As regards the examination of the applicant’s mobile telephone, the higher court agreed with the lower court that “the examination of the applicant’s telephone [had been] ... unconstitutional, but this violation had not been important in the evidentiary sense”. The higher court also upheld the lower court’s decision not to obtain from the police their notes on the examination of the applicant’s telephone. 27 .     On 8 April 2010 the applicant lodged an appeal on points of law, complaining of, inter alia , the allegedly unlawful examinations of X’s and the applicant’s telephones and reiterating the arguments he had put forward in his appeal (see paragraphs 23 and 24 above). In particular, he argued that the police had obtained crucial evidence – that is to say the message with explicitly sexual content – when examining X’s telephone without having a court order to do so, and that his arrest had been based on a subsequent unlawful examination of his telephone. 28 .     On 22 December 2011 the Supreme Court dismissed the applicant’s appeal on points of law. Firstly, as regards the police examination of X’s mobile telephone, the Supreme Court pointed out that the applicant had not even argued that the examination of X’s telephone had directly violated his own right to privacy. While not excluding the possibility that the examination of a deceased’s person’s telephone might impinge upon the most intimate spheres of his or her dignity, it considered that in the case at hand it had not interfered with X’s right to privacy, as personality rights ceased at death. Neither had, in the Supreme Court’s view, the applicant’s own constitutionally guaranteed privacy rights been interfered with, as the examination had not revealed his identity. Moreover, the district state prosecutor and the duty investigating judge had been present at the scene of the crime when the police had discovered the telephone in X’s car, and the applicant had been arrested only after the court order for the examination of X’s telephone had been issued. The Supreme Court concluded that the police’s examination of X’s mobile telephone had not interfered with the applicant’s right to privacy and that the impugned examination had not been causally related to the incriminating evidence. 29 .     Secondly, with regard to the police’s examination of the applicant’s mobile telephone, the Supreme Court noted that it had been undertaken without a court order and referred to the Koper Higher Court’s finding that the examination had been unconstitutional. However, in the Supreme Court’s view, the information on whether the text message with sexual content had been sent from the applicant’s telephone would have inevitably been discovered, either (i) by means of a simple call to the number from which the message had been sent, (ii) by checking the applicant’s telephone’s SIM card (for which, in the Supreme Court’s view, no court order would have been necessary), or (iii) on the basis of a court order, which had in point of fact later been issued. In view of this conclusion, the Supreme Court considered that, regardless of the fact that the police had examined the applicant’s telephone without a court order, the identification of the applicant’s mobile telephone number as the one from which the text message in question had been sent did not constitute inadmissible evidence that should have been excluded from the case file. E.     Constitutional complaint 30 .     The applicant lodged a constitutional complaint, reiterating the allegations made in his previous appeals. Relying on Article 37 (see paragraph 32 below) the applicant argued that the examinations of his and X’s telephone had been unlawful and that the examination of his telephone had violated the aforementioned provision, as well as Article 8 of the Convention. Relying on Article 15 of the Constitution (again, see paragraph   32 below), the applicant argued that the lower courts should have excluded the evidence obtained unlawfully. In particular, as regards the examination of X’s telephone, the applicant argued that he “had not sought redress for the violation of X’s right to privacy (mental integrity) and freedom of communication as he had not been entitled to do so [... but rather] had exclusively pointed out that the violation had occurred and the [trial] court had based its decision [to convict the applicant] on the consequences of that violation ...” In this connection he, referring to X’s “right to piety” ( pravica do pietete ), disputed the Supreme Court’s view that X’s right to privacy had ceased with his death and pointed out that a court order had been nevertheless subsequently issued. With regard to the Supreme Court’s finding that the evidence in question would have been inevitably discovered, the applicant argued that the domestic law contained a strict rule requiring the exclusion of all evidence obtained by means violating human rights (“the domestic exclusionary rule”). He furthermore argued that there had been a violation of Article 29 (see paragraph 32 below) of the Constitution because the first-instance court refused to obtain from the police their notes on the examination of his telephone. 31 .     On 28 January 2013 the Constitutional Court decided not to accept the applicant’s constitutional complaint for consideration, pursuant to section 55b(2) of the Constitutional Court Act (see paragraph   37   below). II.     RELEVANT DOMESTIC LAW A.     The Constitution 32 .     The Constitution of the Republic of Slovenia (Official Gazette nos.   33/91-I, 42/97, 66/2000, 24/03, 69/04, 68/06), provides, in so far as relevant, as follows: Article 15 (Exercise and Limitation of Rights) “Human rights and fundamental freedoms shall be exercised directly on the basis of the Constitution. The manner in which human rights and fundamental freedoms are exercised may be regulated by law whenever the Constitution so provides or where this is necessary owing to the particular nature of an individual right or freedom. Human rights and fundamental freedoms shall be limited only by the rights of others and in such cases as are provided by this Constitution. Judicial protection of human rights and fundamental freedoms, and the right to obtain redress for the violation of such rights and freedoms, shall be guaranteed. ...” Article 26 (Right to Compensation) “Everyone has the right to compensation for damage caused through unlawful actions in connection with the performance of any function or other activity by a person or authority performing such a function or activity within a state or local community authority or as a bearer of public authority. Any person suffering damage also has the right to claim, in accordance with the law, compensation directly from the person or authority that caused such damage.” Article 29 (Legal Guarantees in Criminal Proceedings) “Anyone charged with a criminal offence must, in addition to absolute equality, be guaranteed the following rights: ... the right to present all evidence to his benefit; ...” Article 37 (Protection of the Privacy of Correspondence and Other Means of Communication) “The privacy of correspondence and other means of communication shall be guaranteed. Only a law may prescribe that on the basis of a court order the protection of the privacy of correspondence and other means of communication and the inviolability of personal privacy be suspended for a set time where this is necessary for the institution or conduct of criminal proceedings or for reasons of national security.” B.     Criminal Procedure Act 33 .     Section 18 of the Criminal Procedure Act (Official Gazette no. 8/06), as applicable at the material time, provided: “(1)     The right of a court and the State bodies who participate in criminal proceedings to establish whether a certain fact is established or not is not bound or constrained by any formal rules of evidence. (2)     [Such a] court should not base its judgment on evidence obtained in violation of the human rights and fundamental freedoms guaranteed by the Constitution, or on evidence obtained in violation of the criminal-procedure rules which pursuant to this law could not be relied on by a court, or obtained on the basis of such impermissible evidence.” 34 .     A judgment based on inadmissible evidence could be challenged on appeal on the grounds of a substantial violation of provisions of the criminal procedure. In this connection, Section 371 of the CPA provides as follows: “(1)     A substantial violation of the provisions of criminal procedure shall be deemed to exist: ... (8)     if the judgment relies on evidence which was obtained by a violation of human rights and fundamental freedoms guaranteed by the Constitution, or evidence that it should not have relied on, in accordance with the provisions of the present Act, or evidence which was obtained on the basis of such impermissible evidence; ...” 35 .     Moreover, Section 149b, in the chapter regulating measures to be taken by the police during a preliminary inquiry, provides: “(1)     If there are grounds for suspecting that a criminal offence for which a perpetrator is prosecuted ex officio has been committed, is being committed or is being prepared or organised, and information on communications using electronic communications networks needs to be obtained in order to uncover this criminal offence or the perpetrator thereof, the investigating judge may, at the request of the state prosecutor adducing reasonable grounds, order the operator of the electronic communications network to furnish him with information on the participants and the circumstances and facts of electronic communications, such as: the number or other form of identification of users of electronic communications services; the type, date, time and duration of the call or other form of electronic communications service; the quantity of data transmitted; and the place where the electronic communications service was performed. (2)     The request and order must be in written form and must contain information that allows the means of electronic communication to be identified, an indication of reasonable grounds, the time period for which the information is required and other important circumstances that dictate use of the measure. (3)     If there are grounds for suspecting that a criminal offence for which the perpetrator [thereof] is prosecuted ex officio has been committed or is being prepared, and that information on the owner or user of a certain means of electronic communication whose details are not available in the relevant directory (as well as information on the time that the means of communication was or is in use) needs to be obtained in order to uncover this criminal offence or the perpetrator thereof, then the police may request that the operator of the electronic communications network furnish them with this information, at their written request and even without the consent of the individual to whom the information refers. (4)     The operator of electronic communications networks may not disclose to its clients or a third party the fact that it has given certain information to an investigating judge (see the first paragraph of this section) or the police (see the preceding paragraph), or that it intends to do so.” C.     Civil Code 36 .     The Civil Code (Official Gazette, no. 83/2001 with amendments) contains detailed provisions concerning civil claim for non-pecuniary damage for, inter alia , violation of personal rights. Its sections 148 and 179 read, in so far as relevant, as follows: Section 148 “(1)     A legal entity is liable for damage caused to a third person by its body in relation to the performance of its duties. ...” Section 179 “(1)     For physical pain endured, for psychological anguish resulting from ... the infringement of personal freedom or personal rights ... the injured party may, if it is established that the circumstances of a case (and in particular the degree of pain and fear and the duration thereof) justify it, be awarded just monetary compensation, irrespective of any compensation for material damage, and even if there is no material damage. (2)     The amount of compensation for non-pecuniary damage shall depend on the importance of what was at stake and the objective of such compensation; it should, however, not nurture aspirations that are not consistent with its nature and objective.” D.     Constitutional Court Act 37 .     Section 55b, paragraph 2, of the Constitutional Court Act (Official Gazette no. 15/94, with relevant amendments) provides as follows: “(2)     A constitutional complaint shall be accepted for consideration: -   if there has been a violation of human rights or fundamental freedoms which has had serious consequences for the complainant; or -   if it concerns an important constitutional question which exceeds the importance of the particular case in question.” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 38.     The applicant complained that the use in the criminal proceedings of the evidence obtained through the examinations of X’s and his own mobile telephones had violated his right to a fair trial under Article 6   §   1 of the Convention, which reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A.     Admissibility 39.     The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ arguments 40 .     The applicant argued that the evidence on which his conviction had been based had been obtained without a court order (and thus unlawfully), and should therefore have been excluded from the file. The domestic courts, in refusing to exclude the evidence obtained on the basis of unlawful examinations, had acted contrary to the domestic exclusionary rule (see paragraph 30 above). The applicant further reiterated the arguments he had put forward in the domestic proceedings (see paragraphs 23, 24, 27 and 30 above). 41.     The Government argued that the applicant had received a fair trial, as the mistakes made by the police had had no impact on the legality of the evidence relied on by the courts.   The proceedings as a whole had not been unfair. 2.     The Court’s assessment (a)     The general principles 42.     The Court reiterates that, while Article 6 § 1 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, since this is primarily a matter for regulation under national law (see Schenk v. Switzerland , 12 July 1988, § 46, Series A no. 140, and Lhermitte v.   Belgium [GC], no. 34238/09, § 83, ECHR 2016). 43 .     It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the “unlawfulness” in question and, where a violation of another Convention right is concerned, the nature of the violation found (see Bykov v. Russia [GC], no. 4378/02, §   89, 10 March 2009, and Prade v. Germany , no.   7215/10, § 33, 3 March 2016). 44.     In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence were respected. It must be established, in particular, whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy. While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see Bykov , cited above, § 90). (b)     Application of the above principles in the present case 45.     In determining whether, in the light of the above-mentioned principles, the applicant’s trial had been fair, the Court shall examine firstly the “unlawfulness” of the gathering of evidence in the applicant’s case (see Prade , cited above, § 36). 46.     As regards the police examination of X’s telephone, the domestic courts did not find it unlawful (see paragraph 22, 26 and 28 above). What is more, the applicant did not argue – either in the domestic proceedings or in the proceedings before the Court – that the examination of X’s telephone had interfered with his own rights under Article 8 (see paragraphs 23, 24, 27, 28, 30 above and paragraph 58 below). Therefore, and having regard to the domestic courts’ interpretation of the domestic law and their assessment of the parties’ arguments, which was neither arbitrary nor unreasonable, the Court is not in a position to conclude that the examination of X’s mobile telephone was unlawful from the perspective of the domestic law. 47.     As regards the examination of the applicant’s mobile telephone, the Court notes that it was acknowledged by the first- and second-instance courts that it had not been carried out in accordance with the domestic law and had been in breach of the applicant’s right to privacy (see paragraphs   22, 26 and 29 above). This conclusion was not rebutted by the Supreme Court, which, however, considered that the evidence the applicant sought to exclude as tainted by the unlawful examination was admissible because it would have inevitably been discovered (see paragraph 29 above). While section 18 (2) of the Slovenian Criminal Procedure Act (see paragraph 33 above) indeed contained a strict rule prohibiting domestic courts from relying on, inter alia , evidence obtained by means violating human rights, it is not for the Court to consider whether the domestic courts in the present case complied with this rule. Instead, its role is to ascertain whether the reliance on the evidence obtained in violation of the applicant’s privacy undermined the fairness of the proceedings, as guaranteed under Article 6 of the Convention. 48.     The Court notes in this connection that it has already found in several cases where investigative measures interfering with Article 8 rights were not “in accordance with the law” that the admission in evidence of information obtained thereby did not, in the circumstances of the cases, conflict with the requirements of fairness guaranteed by Article 6 § 1 (see Schenk , cited above, §§ 45-49; Khan v. the United Kingdom , no.   35394/97, §§ 34-40, ECHR 2000-V; P.G. and J.H. v. the United Kingdom , no.   44787/98, §§ 76-81, ECHR 2001-IX). The decisive question is whether the proceedings as a whole were fair (see paragraph 43 above). 49.     In the present case, the applicant was able to challenge the lawfulness of the examination of his mobile telephone and admissibility of related evidence in the adversarial procedure before the first-instance court and in his grounds for appeal. His arguments were addressed by the domestic courts and dismissed in well-reasoned decisions. The applicant made no complaints in relation to the procedure by which the courts reached their decision concerning the admissibility of the evidence (see Bykov , cited above, § 95). Indeed the crux of his complaint lies in his disagreement with the domestic courts’ legal assessment of the admissibility of evidence (see paragraph 40 above), which is essentially based on the view that evidence which resulted from an unlawful examination or search but would have inevitably been discovered even in the absence of such an examination could be admitted to the criminal file (see paragraph 29 above). This disagreement, however, concerns a question of interpretation of domestic law, which is primarily a matter to be resolved by domestic courts. The Court accordingly does not draw any conclusion as to the compliance of the “inevitable discovery doctrine” with the Convention requirements. 50.     The Court further notes that while it might be that the data obtained unlawfully from the applicant’s mobile telephone played a role in the initial stage of the proceedings leading to the applicant’s arrest, they were not used as evidence in the trial. It observes that the applicant’s conviction was based on a number of other items of incriminating evidence, not related to the unlawfully obtained data, such as (i) his own acknowledgment that he had run over X, (ii) the results of the reconstruction of events undertaken in order to test the applicant’s version of events, (iii) biological traces found on the applicant, his car and on X, and (iv) material evidence, such as a rubber tube belonging to the applicant’s car found at the scene, and (v) the testimony of witnesses (see paragraphs 15, 21, 25 and 28 above; see, for similar reasoning, Schenk, cited above, § 48; Bykov , cited above, §§ 96-98; and Siništaj and Others v. Montenegro , nos. 1451/10 and 2 others, § 178, 24   November 2015). 51.     As to the reliability or accuracy of the evidence, the Court notes that the applicant did not dispute the truthfulness of the information that the message with explicit sexual content had been sent to X from his telephone on the day of the murder; this was initially confirmed by the impugned examination. Thus, there is nothing to cast any doubt on the reliability or accuracy of the evidence in question (contrast Lisica v. Croatia , no.   20100/06, § 57, 25 February 2010). 52.     As regards other safeguards, the Court notes that the police’s notes regarding that impugned examination were not admitted to the file (see paragraphs 22 and 26 above) and that court orders were subsequently issued authorising the obtaining of the traffic data relied on by the first-instance court in convicting the applicant (see paragraphs 11 and 14 above). 53 .     In these circumstances, and having regard to the nature of the unlawfulness of the measure, the Court concludes that the proceedings in the applicant’s case, considered as a whole – including the way in which the evidence was obtained – were not contrary to the requirements of a fair trial. 54.     There has accordingly been no violation of Article 6   §   1 of the Convention. II.     ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 55.     The applicant complained that the examination of his telephone had violated his right to respect for his private life. Article 8 reads as follows: “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 is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the 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.” Admissibility 56 .     The Government objected that the applicant had not exhausted all domestic remedies. They submitted that if the applicant had been unsatisfied with the results of the Supreme Court’s findings concerning the unlawfulness of the examination of his mobile telephone he should have lodged a claim with a civil court. In particular, the criminal court had been concerned with the finding of the guilt of the applicant and had assessed the issue raised from the perspective of the admissibility of evidence. The Government added that a criminal court had no jurisdiction to determine whether the right to privacy had been violated other than when this had had an effect on the admissibility of evidence. The Government further argued that the civil claim against the State and its agents under section 148 of the Civil Code, as well as Article 26 of the Constitution (see paragraphs 32 and   36 above), was no doubt an effective remedy by which one could claim non-pecuniary damage for the violation alleged. 57 .     The applicant argued that his right to respect for his private life had been breached because of the unlawful police examination of his telephone. He disputed the Government’s argument that he could have sought compensation in domestic proceedings. He submitted that the only way to remedy the violation of his privacy would have been to exclude from the case file the evidence obtained on the basis of the unlawful examination of his telephone. He also submitted that, because the criminal court had relied on evidence resulting from the unlawful examination of his telephone, he would not in civil proceedings be able to successfully argue that the police had acted unlawfully, which is a necessary element of tort. 58 .     The Court takes note of the Government’s objection of non ‑ exhaustion of domestic remedies. It reiterates that Article 35 § 1 sets out the rule on exhaustion of domestic remedies, the purpose of which is to afford Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. That rule is based on the assumption, reflected in Article 13 – with which it has a close affinity – that there is an effective domestic remedy available in respect of the alleged breach of an individual’s Convention rights. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Brincat and Others v.   Malta , nos. 60908/11 and 4 others, § 55, 24 July 2014). 59.     The Court further notes that, pursuant to Article 26 of the Slovenian Constitution, everyone has the right to compensation for damage caused “through unlawful actions in connection with the performance of any function ... within a state or local community authority” (see paragraph 32 above). The Civil Code provides a further legal basis for claiming compensation for non-pecuniary damage in the event of a violation of personal rights (see paragraph 36 above). 60.     In this connection the Court observes that when an accused person unsuccessfully requests during criminal proceedings that evidence be excluded on the basis of an alleged violation of privacy he might not always be required to pursue civil proceedings as he might, depending on the circumstances of the case, be considered to have no reasonable chance of successfully pursuing a civil claim. However, the present case is exceptional in this respect because the Koper District Court and the Koper Higher Court both acknowledged that the examination of the applicant’s telephone without a court order had been unconstitutional and therefore not in accordance with the law – a finding which was not rebutted by the Supreme Court (see paragraphs 22, 26 and 29 above). It is true that the domestic courts, citing the insignificant impact that the unlawful examination had had on the outcome of the proceedings and the inevitability of the discovery of the impugned evidence (see paragraphs 22, 26 and 29 above), rejected the applicant’s application for the exclusion of evidence (see paragraph 57 above). However, the Court has examined this issue under Article 6   §   1 and has found that the fairness of the criminal proceedings against the applicant was not undermined (see paragraph 53 above). As regards the alleged violation of Article 8, it notes that the domestic courts in the criminal proceedings found that the examination of the applicant’s telephone had been unlawful but that they were not in a position to award the applicant compensation for any non-pecuniary damage he might have incurred on that account. If the applicant considered that he had incurred such damage, he should have thus claimed it in civil proceedings. In this connection the Court reiterates that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile does not constitute a valid reason for failing to pursue it (see, among many other authorities, Gherghina v. Romania (dec.) [GC], no.   42219/07, § 86, 9 July 2015). 61.     Having regard to the foregoing, and in the absence of any persuasive arguments on the part of the applicant showing that the remedy invoked by the Government would be ineffective in his case, the Court finds, given the particular circumstances of the present case, the complaint under Article 8 inadmissible under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Declares the complaint under Article 6   §   1 of the Convention admissible and the remainder of the application inadmissible;   2.     Holds that there has been no violation of Article 6   §   1 of the Convention.   Done in English, and notified in writing on 22 May 2018, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Marialena Tsirli   Ganna Yudkivska   Registrar   President In accordance with Article   45 §   2 of the Convention and Rule   74 §   2 of the Rules of Court, the separate opinion of Judge Pinto de Albuquerque is annexed to this judgment. G.Y. M.T. CONCURRING OPINION OF JUDGE PINTO DE ALBUQUERQUE Introduction 1.     I agree with the majority that there has been no violation of Article 6 of the European Convention on Human rights (“the Convention”) essentially because the applicant was convicted on the grounds of evidence that was “not related to the unlawfully obtained data” [1] . However, I write separately to register my disaccord with the doctrine of “inevitable discovery” invoked by the domestic courts. 2.     The Slovenian Supreme Court acknowledged the illegality of the examination of the applicant’s mobile phone, yet held that the evidence arising from it could still be used at trial because “the information ... would have inevitably been discovered” [2] . The majority opted not to draw any conclusion about the compatibility of this doctrine with the Convention [3] . I think that the European Court of Human Rights (“the Court”) should have taken this opportunity to state that the doctrine of “inevitable discovery” is incompatible with the Convention and the Court’s case-law. As a matter of principle, a conviction should not be based on evidence obtained through unlawful means, especially means that violate a Convention right as in the present case. Neither the unlawful primary evidence nor the tainted secondary evidence [4] can be saved simply by assuming that it would inevitably have been found. 3.     In Gäfgen the Court set forth the only exceptions to the exclusionary rule that are acceptable under the Convention. On the one hand, the Court admitted evidence that had been “secured independently” of the unlawfully obtained ev