Given the circumstances of the case, it will not suffice to demonstrate the mere
existence of such conversations, as to having been tapped, so as to win one’s
case; it must still be proved that the recorded conversations did indeed seriously
affect the rights of the Applicant.
The act of tapping telephone conversations is not in itself illegal. Several judicial
systems admit the principle underlying it, for the purposes of the necessities of
an inquiry. In such circumstances, one cannot criticise its mere application, but
adduce evidence to the effect that at a given time of the procedure, the
conditions under which it was applied violated the rights of the person targeted.
Without that convincing requirement, without any proof of concrete violation,
the Court would purely and simply be making pronouncements on the domestic
legislations of the Member States, but to engage in such an exercise is contrary
to the time-held case law of the Court. As held by the Court in its Judgment of
27 October 2008, in Hadijatou Mani Koraou v. Republic of Niger: “… the Court …
does not have the mandate to examine the laws of Member States in
abstracto, but rather, to ensure the protection of the rights of individuals
whenever such individuals are victims of violation of those rights which are
recognised as theirs, and the Court does so by examining concrete cases
brought before it.” (§60)
In other words, the Applicant will be required to produce evidence which
establish that wrongful acts were committed against him, and that such
violation must have occurred in relation to the contentious recorded
conversations. It is only on that condition that one may assert that the admission
of the recorded conversations formed part of the procedure, and that such
admission harmed the rights of Mr. Djibril Yipéné Bassolé. A direct and concrete
violation would therefore be found. In the current state of affairs, no court
process has been produced to clearly demonstrate that there is a link between
the telephone conversations alleged to have been recorded and the criminal
attributions made concerning the status of the Applicant.
Furthermore, the Court has always held that it lacks the jurisdiction to interfere
with the acts of trial judges in the domestic courts of Member States, except
where such acts substantially affect the rights of a person. The Court has
therefore had to decline the jurisdiction for examining certain measures of trial
proceedings. In the Judgment of 7 October 2011 on Cheikh Abdoulaye Mbengue
v. Republic of Mali, the Court was of the view that: “… the requests to re-open
the judicial inquiry and annul the arrest warrant derive from the sphere of the
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