62 GÄFGEN v. GERMANY JUDGMENT – SEPARATE OPINIONS in principle, by the Court in its consideration of the importance of the investigation stage for the preparation of criminal proceedings by finding that the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial. Thus, in Salduz v. Turkey (which involved restrictions on the applicant’s access to a lawyer while in police custody) the Court found that neither the legal assistance provided subsequently nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred during the time spent in police custody and it proceeded to find a violation of Article 61. If that is so when considering a breach of the right to consult a lawyer, then surely the same reasoning must apply with even greater force when confronted with a breach of a suspect’s right not to be subjected to inhuman treatment and the subsequent admission into criminal proceedings of the evidence obtained as a result of such a breach. 6. Instead of viewing the proceedings as an organic whole, the majority’s modus operandi was to compartmentalise, parse and analyse the various stages of the criminal trial, separately, in order to conclude that the terminus arrived at (conviction for murder warranting maximum sentence) was not affected by the route taken (admission of evidence obtained in violation of Article 3). Such an approach, in our view, is not only formalistic; it is unrealistic since it fails altogether to have regard to the practical context in which criminal trials are conducted and to the dynamics operative in any given set of criminal proceedings. The majority’s judgment pays no regard to the fact that the applicant’s confession which, it is claimed, “broke” the causal chain, was made immediately after his failed attempt to exclude the incriminating evidence and that it was repeated, more fully, only after all of that evidence had been adduced at trial. Having failed to have it excluded, he cannot but have been aware that the trial court would have before it forensic and other compelling evidence which he himself had pointed out on the order of the police authorities and which would clearly establish his guilt. We consider it telling that both the Federal Public Prosecutor and counsel for J.’s parents argued that the applicant’s confession “was worth nothing” since he had only confessed to what had, in any event, already been proven (see paragraph 35 of the judgment). Therein lies the core of the problem and it is difficult to disagree with their submissions in this regard. 7. In our view, the evidence secured in breach of Article 3 and thereafter admitted into trial cannot be regarded as having had no bearing upon the subsequent development and outcome of the proceedings. The exclusion only of the applicant’s pre-trial statements afforded little if any benefit to him in terms of curing the defect caused by the violation of Article 3. Once the incriminating evidence had been admitted, his freedom to mount a 1. Salduz v. Turkey [GC], no. 36391/02, § 58, ECHR 2008.