man or degrading treatment.324 The obligation to protect individuals and to provide an effective deterrent against all forms of ill-treatment therefore should be seen as combining to create an obligation to enact national legislation criminalising torture and some or all inhuman or degrading treatment.325 Furthermore, the court will consider the adequacy of such legislation, which must be effectively enforced.326 Article 6(1) of the ECHR provides in part: “In the determination of… any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” The European Court held in Jalloh v Germany that “incriminating evidence – whether in the form of a confession or real evidence – obtained as a result of acts of violence or brutality or other forms of treatment which can be characterised as torture – should never be relied on as proof of the victim’s guilt, irrespective of its probative value. Any other conclusion would only serve to legitimate indirectly the sort of morally reprehensible conduct which the authors of Article 3 of the Convention sought to proscribe.”327 Thus, any use of evidence obtained by torture automatically violates Article 6(1) as well as Article 3. The European Regional System 2.2.4 Duty to exclude evidence obtained by torture or other ill-treatment 2 The Court explicitly left open the question of whether the use of evidence obtained by a ‘lesser’ breach of Article 3, i.e. an act qualified as inhuman or degrading treatment, would automatically render a trial unfair.328 In any such determination, the Court will take into account “the nature and degree of the compulsion, the existence of any relevant safeguards in the procedures and the use to which any material so obtained is put.”329 However, “It cannot be excluded that on the facts of a particular case the use of evidence obtained by intentional acts of See section 1.2.3. It should be noted that, while the Committee against Torture requires States to adopt legislation creating or defining a crime specifically named ‘torture,’ the corresponding obligation under the ECHR does not necessarily specifically require that the crimes be called ‘torture, ’ ‘inhuman treatment,’ or ‘degrading treatment’; it is probably sufficient that every aspect of these abuses be covered in some way, however the offence is named. 326 See, for example, A v UK (1998), op. cit., §24; M.C. v Bulgaria, op. cit., §167; Macovei and Others v Romania, no. 5048/02, judgement of 21 June 2007. 327 Jalloh v Germany, no. 54810/00, judgement of 11 July 2006, §105. The Court referred to Article 15 of the UNCAT in this context. 328 Ibid. §107. 329 Ibid. §101. 324 325 69