JALLOH v. GERMANY JUDGMENT – CONCURRING OPINION OF JUDGE ZUPANČIČ 43 Rehnquist, to a manipulable instrumental rule deriving from the need to deter police misconduct. As such it was yet interpreted, absurdly, in terms of its marginal utility. A different kind of misunderstanding is apparent in Saunders v. the United Kingdom (17 December 1996, Reports 1996-VI) – our own leading case on the exclusion of contaminated evidence: “68. The Court recalls that, although not specifically mentioned in Article 6 of the Convention, the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6 ... The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence contained in Article 6 § 2 of the Convention. 69. The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing. ...” (emphasis added) Thus in Saunders our Court, presumably because it derived both the privilege against self-incrimination and the exclusionary rule from the presumption of innocence, came to the suggestion that only audible words extracted from the mouth of the suspect are inadmissible in evidence. Moreover, by the same token evidence extracted by the cruellest torture – imagine that the suspect in our case was intentionally tormented in order to make him cough up the package – is admissible as long as “it has an existence independent of the will of the suspect”. This is in clear contradiction with Article 15 of the United Nations Convention against Torture. That provision mandates the strict exclusion of all evidence from the direct or indirect cognisance of the judges if it is obtained through torture. No insubstantial distinction is made here between verbal and non-verbal evidence1. In other words, while Saunders is an important case especially because it inextricably connects the two features 1. UNCAT, Article 15: “Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.” (emphasis added)