GÄFGEN v. GERMANY JUDGMENT
47
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 doubts 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; and the judgment in Jalloh,
cited above, § 96). In this connection, the Court further attaches weight to
whether the evidence in question was or was not decisive for the outcome of
the proceedings (compare, in particular, Khan, cited above, §§ 35 and 37).
165. 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, including respect for the applicant’s defence
rights and the quality and importance of the evidence in question (compare,
inter alia, Khan, cited above, §§ 35-40; P.G. and J.H. v. the United
Kingdom, cited above, §§ 77-79; and Bykov v. Russia [GC], no. 4378/02,
§§ 94-98, 10 March 2009, in which no violation of Article 6 was found).
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; the judgment in Jalloh, cited above, §§ 99 and 104;
Göçmen v. Turkey, no. 72000/01, §§ 73-74, 17 October 2006; and
Harutyunyan, cited above, § 63).
166. Accordingly, the Court has found in respect of confessions, as such,
that the admission of statements obtained as a result of torture (compare Örs
and Others v. Turkey, no. 46213/99, § 60, 20 June 2006; Harutyunyan, cited
above, §§ 63, 64 and 66; and Levinţa v. Moldova, no. 17332/03, §§ 101 and
104-05, 16 December 2008) or of other ill-treatment in breach of Article 3
(compare Söylemez v. Turkey, no. 46661/99, §§ 107 and 122-24,
21 September 2006, and Göçmen, cited above, §§ 73-74) as evidence to
establish the relevant facts in criminal proceedings rendered the proceedings
as a whole unfair. This finding applied irrespective of the probative value of
the statements and irrespective of whether their use was decisive in securing
the defendant’s conviction (ibid.).
167. As to the use at the trial of real evidence obtained as a direct result
of ill-treatment in breach of Article 3, the Court has considered that
incriminating real evidence obtained as a result of acts of violence, at least if
those acts had to be characterised as torture, should never be relied on as
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