GÄFGEN v. GERMANY JUDGMENT – SEPARATE OPINIONS 61 violence, brutality or other conduct which could be characterised as torture 1 or ill-treatment2 in breach of Article 3 always rendered the proceedings as a whole unfair, irrespective of whether such evidence was decisive in securing the applicant’s conviction. Whether that principle applied with equal force to other types of evidence remained to be considered. In Jalloh, the Court indicated that an issue may arise under Article 6 § 1 in respect of any evidence obtained in violation of Article 3 even if its admission was not decisive in securing a conviction3. On the facts of that case, the general question as to whether the use of real evidence obtained by an act falling short of torture but still within the scope of Article 3 automatically renders a trial unfair was left open4. Regrettably, the answer now given and the reasoning adopted by the majority risks undermining the effectiveness of the absolute rights guaranteed by Article 3. A distinction has been introduced into the Court’s jurisprudence between the admissibility of statements obtained in breach of the absolute prohibition of inhuman and degrading treatment and the admissibility of other evidence obtained in the same manner. Such a distinction is difficult to sustain. 4. The majority accepts that the real evidence against the applicant in this case, which was admitted into trial, “was secured as a direct result of his interrogation by the police that breached Article 3” (see paragraph 171 of the judgment). That prohibited conduct resulted in a coerced confession followed by a journey to the scene of vital evidence where the applicant, upon the order of the police, pointed out the locus of the body (while being filmed) and, thereafter, assisted in the gathering of other self-incriminating evidence. There is no doubt from the proceedings before the domestic courts that this evidence was then admitted, adduced, examined and relied upon at the trial and referred to in the Regional Court’s judgment (see paragraphs 32 and 34). Notwithstanding the foregoing, the majority has nevertheless concluded that the applicant’s trial was fair because of “a break in the causal chain” (see paragraph 180) leading from that breach to the applicant’s conviction and sentence. We do not agree with its finding or with the reasoning upon which it is based. 5. From the moment of arrest to the handing down of sentence, criminal proceedings form an organic and interconnected whole. An event that occurs at one stage may influence and, at times, determine what transpires at another. When that event involves breaching, at the investigation stage, a suspect’s absolute right not to be subjected to inhuman or degrading treatment, the demands of justice require, in our view, that the adverse effects that flow from such a breach be eradicated entirely from the proceedings. This approach has previously been confirmed and underlined, 1. 2. 3. 4. Harutyunyan v. Armenia, no. 36549/03, §§ 63 and 66, ECHR 2007-III. Göçmen v. Turkey, no. 72000/01, §§ 74-75, 17 October 2006. Jalloh, cited above, § 99. Ibid., § 107.