GÄFGEN v. GERMANY JUDGMENT – SEPARATE OPINIONS
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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.
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