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JALLOH v. GERMANY JUDGMENT –
CONCURRING OPINION OF JUDGE BRATZA
It is true that the treatment to which the applicant was subjected has been
found to be inhuman and degrading rather than torture and that the
exclusionary rule in Article 15 read in conjunction with Article 16 of the
United Nations Convention against Torture (see paragraph 48 of the
judgment) expressly distinguishes between the admission of evidence
obtained by torture and that obtained by the other forms of ill-treatment.
However, not only is the borderline between the various forms of illtreatment neither immutable nor capable of precise definition, as the Court
has previously recognised, but the fairness of the judicial process is in my
view irreparably damaged in any case where evidence is admitted which has
been obtained by the authorities of the State concerned in violation of the
prohibition in Article 3.
I would thus be prepared to go further than the majority of the Court who
preferred to leave open the general question whether the use of evidence
obtained by acts qualified as inhuman and degrading would automatically
render a trial unfair, limiting themselves to a finding of unfairness in the
particular circumstances of the present case. While I could accept this
narrower basis for finding a violation of Article 6, where, again, I differ
from the majority of the Court is in the suggestion in paragraph 107 of the
judgment that the result under Article 6 might have been different if the
applicant had not been dealing in drugs on a small scale and if the public
interest in securing the applicant’s conviction could thus be considered to be
of greater weight. For substantially the same reasons as I have already
expressed under Article 3, the scale of the drug dealing involved seems to
me to be immaterial to the Convention issues raised under Article 6. The
public interest in securing the applicant’s conviction could not in my view
in any circumstances have justified the use in evidence of drugs obtained by
the treatment to which he was subjected.
Having reached this conclusion, I have not found it necessary or
appropriate to address the applicant’s additional argument relating to
self-incrimination and would not base my finding of a violation of Article 6
on this further ground, which gives rise to problems of exceptional
complexity and difficulty.
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