GÄFGEN v. GERMANY JUDGMENT – SEPARATE OPINIONS 63 defence was restricted substantially, if not entirely, and a conviction for the charges upon which he stood accused was all but inevitable. That such inevitability was articulated by the prosecuting parties who participated in the trial confirms us in our view that serious doubt must be cast over the capacity of the applicant, at the outset of the trial, to defend himself effectively. 8. Neither the applicant’s confession at trial nor the ostensibly limited reliance upon that coerced evidence to establish the veracity of the said confession was capable of curing the manifest defect in the proceedings that was caused by the admission into evidence of such tainted materials. The only way to ensure effective protection of the applicant’s fundamental right to a fair hearing would have been to exclude all impugned evidence and to have proceeded (albeit on other charges, such as kidnapping with extortion causing death; see paragraph 35 of the judgment) on the basis of the noncontaminated evidence that was available to the prosecution. To allow evidence obtained by a breach of Article 3 to be admitted into a criminal trial weakens, inevitably, the protection which that provision confers and signals a certain ambivalence about how far that protection goes. 9. We find it disturbing that the Court has introduced, for the first time, a dichotomy in principle between the types of conduct prohibited by Article 3 at least in so far as the consequences for a trial’s fairness are concerned where breaches of that provision occur. In effect, the Court has concluded that real evidence obtained by inflicting inhuman treatment upon an accused person may be admitted into trial and that such a trial may nevertheless be regarded as “fair” so long as such evidence has no bearing on the outcome of proceedings. If it can have no bearing, what, one wonders, is the purpose of its admission? And why, in principle, should the same reasoning not now apply to real evidence obtained by torture? If a break in the causal chain from torture to conviction can be established – where, for example, a torture victim chooses to confess during trial – why not permit the admission of such evidence at the outset of his trial and wait to see if any break in the causal chain might occur? The answer is manifestly obvious. Societies that are founded upon the rule of law do not tolerate or sanction, whether directly, indirectly or otherwise, the perpetration of treatment that is absolutely prohibited by Article 3 of the Convention. Neither the wording of Article 3 nor that of any other provision of the Convention makes a distinction between the consequences to be attached to torture and those attaching to inhuman and degrading treatment. There is thus no legal basis, in our view, for regarding inhuman treatment as different from torture in terms of the consequences that flow from the perpetration thereof. Neither “a break in the causal chain” nor any other intellectual construct can overcome the inherent wrong that occurs when evidence obtained in violation of Article 3 is admitted into criminal proceedings.