44
GÄFGEN v. GERMANY JUDGMENT
of the Convention. As regards the way in which the impugned evidence had
been obtained, they contested that the applicant had had to walk without
shoes or had been subjected to further threats either in Birstein or on the
return journey.
155. The Government accepted that the Regional Court had decided at
the outset of the trial that the impugned items of evidence found in Birstein
would be admitted as evidence at the trial. Nevertheless, the applicant had
confirmed before the domestic courts that he had volunteered his confession
at the trial out of remorse and because he wanted to take responsibility for
his crime, even though he could also have remained silent or could have lied
to the court. He might have changed his defence strategy in the hope that he
would receive a more lenient sentence, but this decision had not been
related to the use of the impugned items of evidence. It was not correct that
the applicant had had no choice but to confess at the trial because, as the
trial court had confirmed, it was possible that he might not have been found
guilty of murder had he not confessed anew. Following a qualified
instruction by the trial court, he had confessed, on the second day of his
trial, and it was clear from this confession that he had killed J. intentionally.
The difference between the first trial confession and the later one was
comparatively minor in that the former had not included an admission that
the death of J. had been part of his plan from the outset. This additional
admission was not a necessary element to prove murder.
156. The Government underlined that the applicant’s conviction had
been based on the confession he had volunteered at his trial. The items of
evidence secured after the journey to Birstein, such as J.’s corpse and the
autopsy report thereon and the tyre tracks from the applicant’s car at the
pond, had been of an accessory nature only and had been used merely to test
the veracity of the applicant’s confession at the trial. This was clearly stated
in the reasoning of the Regional Court’s judgment convicting the applicant.
157. The Government noted that Article 6 of the Convention did not lay
down any rules on the admissibility of evidence, as such, which was
primarily a matter for regulation under national law. They underlined their
obligation under the Convention to apply the criminal law against a
murderer. The public interest in having the murderer of an abducted child
convicted was of very serious weight. The Government further argued that
the case-law of the United States Supreme Court, which went furthest in
prohibiting the use of the “fruit of the poisonous tree”, needed careful
analysis. In the leading case of Nix v. Williams (decision of 11 June 1984,
467 US 431; see paragraph 73 above), for instance, that court had held that a
body found after an improper investigation could be admitted into evidence
in circumstances where it would have been found in any event. It was likely
in the present case that J.’s corpse, hidden at a place which the applicant had
previously visited, would have been found sooner or later.
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