JALLOH v. GERMANY JUDGMENT 39 CONCURRING OPINION OF JUDGE ZUPANČIČ Although I am in agreement with the result reached in this important case, so far as it goes, I believe that (1) this indeed is a classic case concerning torture stricto sensu, (2) that contaminated evidence obtained via this “shocking” behaviour of police should be strictly excluded, and (3) that the reasons for excluding the contaminated evidence do not derive from the torture per se. Legal process is a civilised replacement of the resolution of conflicts by uncivilised physical prevalence, and the abandonment of violence is its foremost purpose. Indeed, it is its constitutive component. It is no accident that under different similar dictions the formula “nemo tenetur seipsum prodere” goes back to the very origins of Western legal tradition. In Selmouni v. France we integrated Article 1 of the United Nations Convention against Torture1 (hereinafter “the UNCAT”) into our own case-law. Because in the case before us the meaning of “severe pain and suffering” determines everything else, the excellent definition of torture in Article 1 of the UNCAT, which the European Convention does not contain, bears reiterating: “[T]he term ‘torture’ means any act by which [1] severe pain or suffering, whether physical or mental, is [2] intentionally inflicted on a person for such purposes as [a] obtaining from him or a third person information or a confession, [b] punishing him for an act he or a third person has committed or is suspected of having committed, or [c] intimidating or coercing him or a third person, or [d] for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a [3] public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” (emphasis added) Torture, in other words, is (1) a delictum proprium; it can only be committed by a public official or other person acting in an official capacity. 1. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, A/RES/39/46 (annex, 39 UN GAOR Supp. (no. 51) at p. 197, UN Doc. A/39/51 (1984)), which came into force on 26 June 1987. The United Nations Committee against Torture has urged Germany to adopt Article 1 of the UNCAT as a definition of the offence of torture in its own substantive criminal law. Germany was urged, too, to apply strictly the rule excluding all evidence derived from torture from the cognisance of the deciding judges. The failure to follow these early warnings of the United Nations monitoring body contributed to the emergence of the practice that is the subject matter of this case. See, Concluding Observations of the Committee against Torture: Germany, 11/05/98, A/53/44, §§ 179-95 (Concluding Observations/Comments), §§ 185 and 193. In the context of the case at hand it may also be indicative that the International Covenant on Civil and Political Rights, 1966, in its Article 7 treats torture on a par with medical or scientific experimentation: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”