JALLOH v. GERMANY JUDGMENT –
CONCURRING OPINION OF JUDGE BRATZA
37
change according to the gravity of the suspected offence or the urgency of
the need to obtain evidence of the offence.
For the same reason, I do not consider that the question whether
particular treatment violates Article 3 should depend on whether or not the
aim sought by the use of the treatment (in this case, the evidence of drug
dealing) could be obtained by other methods which did not involve such
treatment. The relevance of the fact that, according to the material before
the Court, few if any other member States appear to permit the forcible
administration of emetics to suspected drug offenders, under any
circumstances and whatever the gravity of the suspected offence, seems to
me to lie in the confirmation it provides of what is to be regarded as
acceptable treatment of suspects.
In my view, for the other reasons set out in the judgment with which I
fully concur, the treatment to which the applicant was subjected did reach
the threshold of Article 3 and was in violation of that Article.
Article 6
The Court’s finding of a violation of Article 6 of the Convention is based
on the principal ground that the use in evidence of drugs obtained by the
forcible administration of emetics in violation of Article 3 of the
Convention rendered his trial as a whole unfair. The Court, however, goes
on in its judgment to address the applicant’s additional argument that the
manner in which the evidence was obtained and the use made of it at his
trial undermined his right not to incriminate himself, before concluding that
it would have been prepared to find a violation of Article 6 on this further
basis.
I can, in general, agree with the Court’s principal ground, and its
reasoning, for finding a violation of Article 6 and would echo the words of
Mr Justice Frankfurter, in delivering the opinion of the Supreme Court of
the United States in Rochin v. California, that “the proceedings by which
this conviction was obtained do more than offend some fastidious
squeamishness or private sentimentalism about combating a crime too
energetically”. While, as the Court has frequently observed, the Convention
does not lay down any rules on evidence as such, the admissibility of
evidence being primarily a matter for regulation by national law, the use of
evidence obtained by treatment violating the fundamental values enshrined
in Article 3 appears to me to offend against the whole concept of a fair trial,
even if the admission of such evidence is not – as it was in the present case
– decisive in securing a conviction. As in the case of the use of coerced
confessions, it is the offensiveness to civilised values of fairness and the
detrimental effect on the integrity of the judicial process, as much as the
unreliability of any evidence which may be obtained, which lies at the heart
of the objection to its use.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents