GÄFGEN v. GERMANY JUDGMENT
43
point out its precise whereabouts. He had been obliged to walk, without
shoes, through woods to the place where he had hidden J.’s corpse. The fact
that his directions as to where he had hidden the corpse and its consequent
discovery had been recorded on videotape demonstrated that the events at
Birstein had not been about the child’s rescue but about the recovery of
evidence in a manner aimed at securing his conviction.
151. The applicant argued that the impugned real evidence had been
decisive in, and not merely accessory to, securing his conviction. Though
other charges would have been possible, the self-incriminating evidence
obtained as a result of his extracted confession was wholly necessary for the
charge of and conviction for murder. There had been no other hypothetical
clean path which would have led the police to this evidence at the relevant
time. Whether they would ever have found it was a matter of pure
speculation.
152. As the trial court at the outset of the trial had rejected his
application to exclude the evidence obtained in violation of Article 3, the
outcome of the trial had, at that point, effectively, been determined. Every
possible defence strategy, such as relying on the right to remain silent or
alleging that J. had been killed accidentally or volunteering at an early stage
a full confession in the hope of mitigation of sentence, had become
ineffective. He had partially confessed on the second day of the trial and had
only admitted to having killed J. intentionally at the end of the trial after all
the impugned items of evidence which he had sought to have excluded had
been adduced. Indeed, even the prosecution and the accessory prosecutors,
in opposing any possibility of mitigation of sentence, had pointed out that
he had only confessed to what had already been proven.
153. The applicant further submitted that, regardless of whether the
method of interrogation was to be classified as torture or as inhuman
treatment, the Convention (he referred, in particular, to the Court’s
judgment in Jalloh, cited above) and provisions of public international law
(in particular, Article 14 of the International Covenant on Civil and Political
Rights and Articles 15 and 16 of the United Nations Convention against
Torture) warranted the exclusion of all evidence obtained by means of a
violation of the absolute prohibition of torture and inhuman treatment.
Contrary to the view taken by the domestic courts and by the Chamber,
protection of the absolute right under Article 3 could not and should not be
weighed against other interests, such as the satisfaction of securing a
conviction. As a matter of principle, the exclusion of the evidence in
question was essential for removing all incentives for engaging in torture or
ill-treatment and thus for preventing such conduct in practice.
(b) The Government
154. The Government invited the Grand Chamber to confirm the
Chamber’s finding that there had been no violation of Article 6 §§ 1 and 3
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