50
GÄFGEN v. GERMANY JUDGMENT
of acts of torture made the proceedings as a whole automatically unfair, in
breach of Article 6 (ibid.).
174. The Court notes that there is no clear consensus among the
Contracting States to the Convention, the courts of other States and other
human rights monitoring institutions about the exact scope of application of
the exclusionary rule (see the references in paragraphs 69 to 74 above). In
particular, factors such as whether the impugned evidence would, in any
event, have been found at a later stage, independently of the prohibited
method of investigation, may have an influence on the admissibility of such
evidence.
175. The Court is further aware of the different competing rights and
interests at stake. On the one hand, the exclusion of – often reliable and
compelling – real evidence at a criminal trial will hamper the effective
prosecution of crime. There is no doubt that the victims of crime and their
families as well as the public have an interest in the prosecution and
punishment of criminals, and in the present case that interest was of high
importance. Moreover, the instant case is particular also in that the
impugned real evidence was derived from an illegal method of interrogation
which was not in itself aimed at furthering a criminal investigation, but was
applied for preventive purposes, namely in order to save a child’s life, and
thus in order to safeguard another core right guaranteed by the Convention,
namely Article 2. On the other hand, a defendant in criminal proceedings
has the right to a fair trial, which may be called into question if domestic
courts use evidence obtained as a result of a violation of the prohibition of
inhuman treatment under Article 3, one of the core and absolute rights
guaranteed by the Convention. Indeed, there is also a vital public interest in
preserving the integrity of the judicial process and thus the values of
civilised societies founded upon the rule of law.
176. While having regard to the above interests at stake in the context of
Article 6, the Court cannot but take note of the fact that Article 3 of the
Convention enshrines an absolute right. Being absolute, there can be no
weighing of other interests against it, such as the seriousness of the offence
under investigation or the public interest in effective criminal prosecution,
for to do so would undermine its absolute nature (compare also, mutatis
mutandis, Saadi, cited above, §§ 138-39). In the Court’s view, neither the
protection of human life nor the securing of a criminal conviction may be
obtained at the cost of compromising the protection of the absolute right not
to be subjected to ill-treatment proscribed by Article 3, as this would
sacrifice those values and discredit the administration of justice.
177. The Court also takes note, in this connection, of the Government’s
argument that they were obliged under the Convention to apply the criminal
law against a murderer, and thus to protect the right to life. The Convention
indeed requires that the right to life be safeguarded by the Contracting
States (see, among many other authorities, Osman v. the United Kingdom,
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