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.