GÄFGEN v. GERMANY JUDGMENT 53 his attempt to have the impugned real evidence excluded. There is no reason, therefore, for the Court to assume that the applicant did not tell the truth and would not have confessed if the Regional Court had decided at the outset of the trial to exclude the impugned real evidence and that his confession should thus be regarded as a consequence of measures which extinguished the essence of his defence rights. 184. In any event, it is clear from the Regional Court’s reasoning that the applicant’s second confession on the last day of the trial was crucial for securing his conviction for murder, an offence of which he might otherwise not have been found guilty (see paragraphs 34 and 35 above). The applicant’s confession referred to many additional elements which were unrelated to what could have been proven by the impugned real evidence. Whereas that evidence showed that J. had been suffocated and that the applicant had been present at the pond in Birstein, his confession notably proved his intention to kill J., as well as his motives for doing so. In view of these elements, the Court is not persuaded that, further to the failure to exclude the impugned evidence at the outset of the trial, the applicant could not have remained silent and no longer had any defence option but to confess. Therefore, the Court is not satisfied that the breach of Article 3 in the investigation proceedings had a bearing on the applicant’s confession at the trial either. 185. As regards the rights of the defence, the Court further observes that the applicant was given, and availed himself of, the opportunity to challenge the admission of the impugned real evidence at his trial and that the Regional Court had discretion to exclude that evidence. Therefore, the applicant’s defence rights were not disregarded in this respect either. 186. The Court notes that the applicant claimed that he had been deprived of the protection afforded by the privilege against selfincrimination at his trial. As shown above (see paragraph 168), the right not to incriminate oneself presupposes that the prosecution prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the latter’s will. The Court refers to its above findings that the domestic courts based the applicant’s conviction on his second confession at the trial, without having recourse to the impugned real evidence as necessary proof of his guilt. The Court therefore concludes that the privilege against self-incrimination was complied with in the proceedings against the applicant. 187. The Court concludes that in the particular circumstances of the applicant’s case, the failure to exclude the impugned real evidence, secured following a statement extracted by means of inhuman treatment, did not have a bearing on the applicant’s conviction and sentence. As the applicant’s defence rights and his right not to incriminate himself have likewise been respected, his trial as a whole must be considered to have been fair.