JALLOH v. GERMANY JUDGMENT – CONCURRING OPINION OF JUDGE ZUPANČIČ 45 III Most worrisome of all in all of this, however, is the already apparent change in the zeitgeist and the consequent degradation of minimal standards. What in 1952 was patently “conduct that shocked the conscience”1 has in 2006 become an issue that must be extensively – and not just in this case – pondered, argued and debated. Despite their apparent evolution, this transmutation has little to do with the scholarly differentiation of juristic standards as, for example, between “inhuman and degrading treatment” on the one hand and “torture” on the other. Particular conduct on the part of the police will or will not shock the conscience of those appointed to consider it and to assess it. If it does they will condemn it as torture. If it does not they will deem it tolerable. This assessment derives from a certain hierarchy of values – assimilated by everyone from the policeman holding down the person in whom a tube is to be inserted through which an emetic will be administered, to the medical doctor administering the tube and the emetic, to the judge admitting evidence so cruelly obtained. These hierarchies of values are the real origin of all the secondary ratiocination and, more worrisome, often the apparent lack of sensibility and interest. In other words, human rights are not only a matter of pedantic legal reasoning. They are also a subject matter of a value judgment. True, only when this value judgment is converted into a verbally articulate legal standard can it sustain the rule of law. It is a mistake, however, to forget that underneath – at the origin of the very legal standard to be subsequently applied – lies the moral resolution of those who not only have opinions or even convictions, but also the courage of those convictions. 1. See Rochin v. California, cited above, p. 172: “[W]e are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combating crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach's contents – this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.”