EL HASKI v. BELGIUM JUDGMENT
29
violation of another Convention right is concerned, the nature of the
violation found (see, inter alia, Khan v. the United Kingdom, no. 35394/97,
§ 34, ECHR 2000-V; P.G. and J.H. v. the United Kingdom, no. 44787/98,
§ 76, ECHR 2001-IX; Allan v. the United Kingdom, no. 48539/99, § 42,
ECHR 2002-IX; and Gäfgen, cited above, § 163).
83. In determining whether the proceedings as a whole were fair, regard
must also be had as to whether the rights of the defence have been
respected. In particular, it must be examined whether the applicant was
given an opportunity to challenge the authenticity of the evidence and to
oppose its use. In addition, the quality of the evidence must be taken into
consideration, as must the circumstances in which it was obtained and
whether these circumstances cast doubt on its reliability or accuracy. While
no problem of fairness necessarily arises where the evidence obtained was
unsupported by other material, it may be noted that where the evidence is
very strong and there is no risk of its being unreliable, the need for
supporting evidence is correspondingly weaker (see, inter alia, Khan, cited
above, §§ 35 and 37; Allan, cited above, § 43; Jalloh, cited above, § 96; and
Gäfgen, cited above, § 164). In this connection, the Court further attaches
weight to whether the evidence in question was or was not decisive for the
outcome of the criminal proceedings (see Gäfgen, cited above, § 164).
84. As to the examination of the nature of the Convention violation
found, the Court reiterates that the question whether the use as evidence of
information obtained in violation of Article 8 rendered a trial as a whole
unfair contrary to Article 6 has to be determined with regard to all the
circumstances of the case, and in particular to the question of respect for the
applicant’s defence rights and the quality and importance of the evidence in
question (ibid.).
85. However, particular considerations apply in respect of the use in
criminal proceedings of evidence obtained in breach of Article 3. The use of
such evidence, secured as a result of a violation of one of the core and
absolute rights guaranteed by the Convention, always raises serious issues
as to the fairness of the proceedings, even if the admission of such evidence
was not decisive in securing a conviction (see İçöz v. Turkey (dec.),
no. 54919/00, 9 January 2003; Jalloh, cited above, §§ 99 and 104; Göçmen
v. Turkey, no. 72000/01, §§ 73-74, 17 October 2006; Harutyunyan, cited
above, § 63; and Gäfgen, cited above, § 165).
Therefore, the use in criminal proceedings of statements obtained as a
result of a violation of Article 3 – irrespective of the classification of the
treatment as torture, inhuman or degrading treatment – renders the
proceedings as a whole automatically unfair, in breach of Article 6 (see
Gäfgen, cited above, §§ 166-167 and 173). This also holds true for the use
of real evidence obtained as a direct result of acts of torture (ibid., § 173);
the admission of such evidence obtained as a result of an act qualified as
inhuman treatment in breach of Article 3, but falling short of torture, will
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents