60
GÄFGEN v. GERMANY JUDGMENT – SEPARATE OPINIONS
JOINT PARTLY DISSENTING OPINION OF JUDGES
ROZAKIS, TULKENS, JEBENS, ZIEMELE, BIANKU AND
POWER
1. We do not share the majority’s opinion that there has been no
violation of Article 6 §§ 1 and 3 of the Convention. In our view, there was a
breach of Article 6 because real evidence which had been secured as a direct
result of a violation of Article 3 was admitted into the applicant’s criminal
trial. The breach was compounded by the fact that this evidence had also
been obtained in circumstances that were self-incriminating.
2. The admission into criminal proceedings of any evidence obtained in
violation of Article 3 raises a fundamental and vitally important question of
principle. While the Court’s case-law was clear in so far as the admission of
confession statements obtained in violation of Article 3 is concerned, (such
statements being always inadmissible regardless of whether they were
obtained by torture or inhuman or degrading treatment) the question of the
consequences for a trial’s fairness of admitting other types of evidence
(“real evidence”) obtained as a result of treatment falling short of torture but
still within the ambit of Article 3, remained to be settled. Difficult though
this case was, it presented the Grand Chamber with an opportunity to rule
upon the precise scope of the exclusionary rule in respect of any evidence
obtained by a breach of Article 3. The Court could have answered that
question categorically by asserting, in an unequivocal manner, that
irrespective of the conduct of an accused, fairness, for the purpose of
Article 6, presupposes respect for the rule of law and requires, as a selfevident proposition, the exclusion of any evidence that has been obtained in
violation of Article 3. A criminal trial which admits and relies, to any
extent, upon evidence obtained as a result of breaching such an absolute
provision of the Convention cannot a fortiori be a fair one. The Court’s
reluctance to cross that final frontier and to establish a clear or “bright-line”
rule in this core area of fundamental human rights is regrettable.
3. It is clear from the Court’s case-law that the admission of evidence
obtained in violation of Article 3 has always been subject to different
considerations than those arising where other Convention rights, such as
those protected under Article 8, are concerned1. Heretofore, the Court took
the view that even if proper procedural safeguards are in place, it would be
unfair to rely on material if its nature and source were tainted by any
oppression or coercion2. The use of statements obtained as a result of
1. Schenk v. Switzerland, 12 July 1988, Series A no. 140; Khan v. the United Kingdom,
no. 35394/97, ECHR 2000-V; P.G. and J.H. v. the United Kingdom, no. 44787/98, ECHR
2001-IX; Allan v. the United Kingdom, no. 48539/99, ECHR 2002-IX; Perry v. the United
Kingdom, no. 63737/00, ECHR 2003-IX; Jalloh v. Germany [GC], no. 54810/00, ECHR
2006-IX; and Bykov v. Russia [GC], no. 4378/02, 10 March 2009.
2. Perry v. the United Kingdom (dec.), no. 63737/00, 26 September 2002.
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