JOINT DISSENTING OPINION OF JUDGES WOJTYCZEK AND PEJCHAL

1. We respectfully disagree with our colleagues because we consider that Article 6 has not been violated in the instant case.

2. The Convention for the Protection of Human Rights and Fundamental Freedoms cannot be applied in a legal vacuum but has to be construed and applied in the context of other sources of law, which include, inter alia , relevant international treaties between the High Contracting Parties, customary international law and universally recognised general principles of law (see the sources of international law listed in Article 39, paragraph 1 (a) to (c), of the Statute of the International Court of Justice (ICJ)). The interpretation should also duly take into account – in particular – judicial decisions of international and national courts and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law (see Article 39, paragraph 1 (d), of the ICJ Statute). Relevant sources may further include legally binding resolutions of international organisations as well as instruments of soft law, starting with the Universal Declaration of Human Rights, which is explicitly mentioned in the Preamble to the Convention.

We further note that the Preamble to the Convention refers to “a common understanding and observance of the Human Rights” and also to “European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law”. On the one hand, legal principles common to the High Contracting Parties ( ius commune europaeum ) are an important source to be taken into account in the interpretation and application of the Convention. On the other hand, the references to the “common understanding of the Human Rights” and to the “common heritage of political traditions, ideals, freedom and the rule of law” constitute the legal basis for inferring the directive that the Convention should be interpreted in a way which protects national constitutional and – more broadly – legal identities (compare the concurring opinion of Judge Wojtyczek appended to the judgment in Mugemangango v. Belgium [GC], no. 310/15, 10 July 2020).

3. Without attempting to present all external rules that are potentially relevant for the interpretation of the Convention, we note briefly that the prohibition of torture is a rule of customary international law regarded as ius cogens (see International Court of Justice, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) , Judgment of 20 July 2012, § 99; International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Anto Furundžija (Trial Judgement) , (IT ‑ 95-17/1-T), 10 December 1998, §§ 144 and 153-57; and Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 60, ECHR 2001 ‑ XI).

4. The prohibition of torture is also enshrined in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Convention against Torture”), rightly cited in the judgment among the relevant sources of law (see paragraph 42), Article 1 § 1 of which defines torture as follows (emphasis added):

“For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

Therefore the exclusionary rule in Article 15 of that convention applies to any statement which is established to have been made as a result of torture inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity.

The drafters of the Convention against Torture deliberately adopted a definition of torture that was limited to ill-treatment by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity, because such ill-treatment is fundamentally different from that inflicted by private parties without any kind of instigation or consent or acquiescence by public officials. A breach of the law is always much more serious when committed by public officials because it erodes the State and corrodes the rule of law. In our view, the prohibition of torture as a customary rule of international law does not go beyond the scope of the prohibition set forth in the Convention against Torture.

It is worth noting that the Extraordinary Chambers in the Courts of Cambodia, in an important case revealing the difficulties arising from Article 15 of the Convention against Torture, expressed the following view concerning the interpretation of this provision:

“... it is a mechanism to prevent the use of statements made by an accused or by others under torture as evidence of the truthfulness of admissions or other matters asserted in the statement, because in such circumstances this evidence is intrinsically unreliable. The Chamber considers that information contained within a torture-tainted statement may be used to establish facts other than the truth of the statement, but only for the purpose of determining what action resulted based on the fact that a statement was made. The reliability of the information contained in the tainted evidence is not implicated if it its use is limited in this way.” (Extraordinary Chambers in the Courts of Cambodia, Trial Chamber, Decision of 5 February 2016 on Evidence Obtained Through Torture, Case 002/19-09-2007/ECCC/TC, § 75).

5. The interpretation of the Convention for the Protection of Human Rights and Fundamental Freedoms should take into account any relevant universally recognised general principles of law. We note in this context that universal standards of criminal justice have been codified in the Rome Statute of the International Criminal Court. Article 69 § 7 of this instrument is couched in the following terms:

“Evidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be admissible if:

(a) The violation casts substantial doubt on the reliability of the evidence; or

(b) The admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings.”

The wording of this provision does not contain an absolute rule excluding any evidence obtained by means of a violation of this Statute or internationally recognised human rights, but instead formulates rather vague guidelines (“substantial doubt on the reliability”, “serious damage to the integrity”) for an a casu ad casum appreciation, leaving very wide discretion to the International Criminal Court.

6. While discussing the normative context, as relevant for the interpretation of Article 6 of the Convention, we would like to note here two further points in connection with general principles which guide the argumentation and structure of the reasoning in the instant case.

Firstly, the Court in its case-law has constantly reaffirmed that States are free to legislate on evidence in judicial proceedings. It has expressed in particular the following views in this respect: “While Article 6 of the Convention guarantees the right to a fair trial, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law” (see Schenk v. Switzerland , 12 July 1988, § 46, Series A no. 140; see also Heglas v. the Czech Republic , no. 5935/02, § 84-85, 1 March 2007, and Teixeira de Castro v. Portugal , 9 June 1998, § 34, Reports of Judgments and Decisions 1998-IV); and “[i]t is not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, unlawfully obtained evidence – may be admissible or, indeed, whether the applicant was guilty or not” (see Khan v. the United Kingdom , no. 35394/97, § 34, ECHR 2000-V).

Under this logic, the power of the States to legislate freely in matters of evidence is the rule and any restrictions inferred from the Convention are an exception. It is the exception which requires justification, not the opposite.

Secondly, the modern criminal trial in continental Europe is based upon the principle of free assessment of evidence. This principle was seen as a major step in the development of the rule of law and human rights protection in criminal procedure (on this development see for instance W. Frisch, “Beweiswürdigung und richterliche Überzeugung”, Zeitschrift für Internationale Strafrechtsdogmatik , vol. 11 (2016), no. 10, pp. 708-14; compare also P.J.A. Ritter von Feurerbach, Betrachtugen über das Geschwornen-Gericht , Landshut 1813, pp. 132-35) . Free assessment of evidence is the rule and any exception to this requires a particularly strong justification. Free assessment of evidence is closely connected with the principle of free admission of evidence. In principle, all available evidence has to be accepted and then freely assessed unless there are particularly strong reasons to exclude certain types of evidence. Facultas probationum non est angustanda . Unjustified exclusion of available evidence, while protecting one party, may entail unfairness of the trial for other parties and especially the alleged victims.

We would like to add that legal rules regulating the assessment of evidence reflect distrust in the courts. The principles of free admission and free assessment of evidence presuppose minimum trust in the integrity of the judges. They could be established only with the growing confidence of the public in the judicial system (see W. Frisch, op. cit., p. 709).

It is important to note that the principles of free admission and free assessment of evidence are applicable in the proceedings before the European Court of Human Rights (see for instance: Ireland v. the United Kingdom , 18 January 1978, § 210, Series A no. 25; Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, § 208, ECHR 2013; Merabishvili v. Georgia [GC], no. 72508/13, § 315, 28 November 2017; and S.F. and Others v. Bulgaria , no. 8138/16, § 72, 7 December 2017). We are aware, nonetheless, that the two principles are not universally accepted and are called into question in certain regions of the world (see, for instance, the Inter-American Commission on Human Rights, Report on the Situation of Human Rights in the Republic of Nicaragua , 1981, Chapter IV, § 14). In our view, however, the criticism of these principles is not sufficiently supported by empirical evidence gathered by the sociology of law.

For the two reasons explained above, the burden of argumentation shifts onto those who try to justify a legal rule excluding certain types of evidence.

7. We further agree with the following view quoted in paragraph 74 of the judgment (taken from Othman (Abu Qatada) v. the United Kingdom , no. 8139/09, § 264, ECHR 2012):

“More fundamentally, no legal system based upon the rule of law can countenance the admission of evidence – however reliable – which has been obtained by such a barbaric practice as torture. The trial process is a cornerstone of the rule of law. Torture evidence damages irreparably that process; it substitutes force for the rule of law and taints the reputation of any court that admits it. Torture evidence is excluded to protect the integrity of the trial process and, ultimately, the rule of law itself.”

Indeed, State organs while detecting, prosecuting and punishing crimes should strictly observe the law and, especially, respect human rights. In particular, the quest for the truth in criminal matters can never justify ill-treatment of any person, let alone torture.

8. We agree with the finding that K.G. was subjected by private parties to ill-treatment contrary to Article 3 of the Convention (see paragraph 84 of the judgment). We note in this context that the present case illustrates not only the barbarity of the organised criminal groups but also their mode of operation. Threats of ill-treatment and actual ill-treatment are used not only as a tool against non-members but are also an essential instrument of power within the group, ensuring strict obedience to the bosses. Within such groups, the division between victims and perpetrators blurs rapidly as most of the members sooner or later become victims of ill-treatment inflicted by other members.

The majority rightly point to the obligation to protect individuals against ill-treatment enshrined in Article 3 of the Convention (see paragraph 63 of the judgment). Under both Article 2 and Article 3, the High Contracting Parties have an obligation to protect effectively the life and physical integrity of persons in relations between private parties. We would like to add that the only method of protecting persons involved in organised crime against ill-treatment by other fellow members of the same criminal group consists in effective measures aimed at the full dismantlement of such groups through detection, prosecution and punishment of crimes, in strict observance of the rule of law.

9. We note that in the instant case, K.G., a member of an organised criminal group was subjected to ill-treatment by private persons belonging to the same organised criminal group whose boss wanted to extort certain information from him. The scene of the ill-treatment was taped. There is no evidence suggesting that public bodies instigated or consented or acquiesced to ill-treatment. There is no evidence suggesting that the extraction of information through ill-treatment was carried out with the direct or indirect intent of using the recording in any proceedings before public bodies. The tape was seized by the domestic authorities in conformity with domestic law. The prosecuting authorities obtained by legal methods a certain item of evidence and the domestic courts could not ignore it under the domestic law. The domestic courts admitted the tape in evidence and analysed the events which were recorded. They carefully distinguished the utterances of K.G. from any witness statements. Therefore the evidence thus admitted does not consist in witness statements obtained by ill-treatment but is a tape which documents a situation in which K.G., while being ill-treated, passed certain information to other members of the gang concerning the criminal activities he had carried out together with the applicant. The events recorded on the tape really did happen and did not involve State agents. The extremely brutal settling of scores within the criminal group is part of the relevant factual circumstances of the criminal case and it would be difficult not to take it into consideration (compare the decision of the Extraordinary Chambers in the Courts of Cambodia, cited above, §§ 80-87).

We further underline that the admission of the tape in question in evidence cannot be equated with acquiescence within the meaning of Article 1 § 1 of the Convention against Torture. Even assuming hypothetically that acquiescence to torture could be expressed ex post facto , no reasonable person could perceive either this admission in evidence or other State organs’ acts as an indication that the perpetrators of the ill-treatment of K.G. might expect to be treated more clemently, let alone that the authorities would refrain from prosecuting them. Moreover, there are no reasons to consider – generally speaking – that the respondent State, despite having reasonable grounds to believe that acts of torture are carried out by private persons, fails to prevent, investigate, prosecute and punish such acts of ill-treatment and therefore gives a general acquiescence to it (on this general question, see M. Nowak, M. Birk, G. Monina (eds), United Nations Convention against Torture and Its Optional Protocol: A Commentary , 2nd ed., Oxford University Press, Oxford, 2019, p. 62).

10. In the instant case, the tape in question was not decisive for the conviction. It only corroborated the information stemming from other evidential sources. The domestic courts took into account its specific nature and assessed its evidential value. Had it been excluded, there are strong reasons to consider that the outcome of the criminal proceedings against the applicant would nevertheless have been the same.

11. In paragraph 89 of the judgment the majority state the following:

“The Court considers that the above-mentioned principle is equally applicable to the admission of evidence obtained from a third party as a result of ill-treatment proscribed by Article 3 when such ill-treatment was inflicted by private individuals, irrespective of the classification of that treatment.”

The majority’s main argument relies therefore on analogy. They consider that for purposes of establishing exclusionary rules, ill-treatment by a private party is similar to ill-treatment by a State agent.

Analogy is an argument that is particularly difficult to handle in judicial discourse. The argument based on analogy requires one, in particular, to show convincingly that a certain situation under consideration and not belonging to the scope of application of a legal rule or principle is similar to situations belonging to the scope of application of the legal rule or principle in question. It is not sufficient to say that a certain legal principle is equally applicable to certain situations, it is essential to explain why a certain legal principle is equally applicable to certain situations (on argument based on analogy see for instance: J.H. Farrar, A.M. Dugdale, Introduction to Legal Method , Sweet and Maxwell, London 1990, pp. 87-88; B. Brożek, “Analogical Arguments” in G. Bongiovanni et al. (eds), Handbook of Legal Reasoning and Argumentation , Springer Nature 2018 ). A failure to explain the similarity undermines completely the reasoning per analogiam . This flaw becomes even more problematic when analogy is relied upon to extend exceptions to a rule, because in principle exceptiones non sunt extendendae .

12. The exclusionary rule which disqualifies evidence obtained through ill-treatment by public bodies is based on two major arguments both closely linked to the dangers of abuse of public power by State organs. We would like to underline in this context that private parties do not have the capacity to abuse public power and breaches of law committed by them do not have the same corrosive force for the rule of law.

The first argument may be summarised as follows: torture evidence is excluded to protect the integrity of the trial. State bodies by way of ill-treatment may easily force confessions or other desired statements and thus manipulate the criminal procedure by fabricating false or inaccurate evidence. Any criminal trial in which such evidence is used obviously becomes unfair. The procedural unfairness stems from this possibility of manipulating the procedure by introducing to it false or inaccurate evidence.

In the case of evidence which was created without any form of participation of public bodies, the risk that such bodies will manipulate the procedure does not exist. Accepting such evidence, which pre-exists any action of State agents in connection with the criminal case under consideration, neither gives any unfair advantage nor causes any unfair disadvantage to any party.

The second argument may be stated briefly as follows: torture evidence is excluded to protect the rule of law itself. If evidence obtained by ill-treatment had to be accepted there may be a strong temptation for the law-enforcement agencies to ill-treat someone in order to influence the trial and secure conviction. The possible use of evidence at the trial stage is an incitement to ill-treatment. The law-enforcement officer may have the feeling that the ill-treatment has been rewarded by a conviction. The exclusionary rule eliminates this risk by discouraging ill-treatment (compare Human Rights Committee, CCPR General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), 10 March 1992, § 12). There is a clear causal link between the exclusionary rule and the behaviour of the law-enforcement agents. The exclusionary rule is an important guarantee that law-enforcement agencies will obey the law. The extension of the exclusionary rule to evidence created with the use of ill-treatment by private persons does not reinforce the protection against ill-treatment. Its impact on potential perpetrators is null. The acceptance of evidence like that in question in the instant case does not encourage torture by private parties. It certainly does not substitute force for the rule of law.

In our view, the two arguments which justify the rule which disqualifies evidence obtained through ill-treatment by public bodies do not apply to evidence obtained through ill-treatment by private parties. The exclusionary rule stated and relied on by the majority would require justification relying on different arguments.

A third argument usually invoked to justify an exclusionary rule which disqualifies evidence obtained through ill-treatment by public bodies is linked with the right of the accused to remain silent and not incriminate himself (see for instance Human Rights Committee, General Comment No. 32, Article 14, Right to equality before courts and tribunals and to fair trial, CCPR/C/GC/32, 23 August 2007, paragraph 41). Accordingly, the admission in evidence of self-incriminating statements obtained by ill-treatment of the accused violates these rights.

We note in this context that the tape created during the ill-treatment of K.G. was used in the trial of another person, namely the applicant. Had it been the trial of K.G., then the whole issue would look different and reasons to exclude the utterances in question would prevail. In any event, protection against self-incrimination does not justify per se a general exclusionary rule disqualifying evidence obtained through ill-treatment of one person, if this evidence is to be used in proceedings against another person.

To sum up this part of the opinion: we note that the majority extended the scope of exceptions to the principles of free admission and free assessment of evidence while failing to provide any arguments to explain the similarity between ill-treatment by private parties and ill-treatment by State agents. We have just explained above why we consider that the two situations are fundamentally different. We do not exclude that there might have been arguments to support the assertion that the similarities are stronger than the fundamental differences we identify. Yet, the majority simply decided not to engage in this debate. The result is a reasoning based upon abusive reference to analogy.

13. In paragraph 89 of the judgment, quoted above, the majority have established a new general legal rule which they apply to the present case. This rule may be restated in the following way: the use in criminal proceedings of evidence obtained as a result of a person’s treatment in breach of Article 3 – irrespective of whether that treatment is classified as torture, inhuman or degrading treatment – inflicted by private individuals makes the proceedings as a whole automatically unfair, in breach of Article 6.

As argued above, this general exclusionary rule does not reinforce the protection against ill-treatment and may not only entail the unfairness of the criminal proceedings but may also result in substantively unjust judgments. In our view, imposing such a general exclusionary rule upon the criminal justice systems of the High Contracting Parties is not justified under the Convention and the issue of admissibility of the type of evidence under consideration requires rather an a casu ad casum approach (compare the decision of 5 February 2016, Extraordinary Chambers in the Courts of Cambodia, § 88).

Interestingly, the new general rule restated above is expressed in the part of the reasoning entitled “(b) Application of the above principles to the case” (a heading suggesting that this part of the reasoning explains the subsumption and formulates the conclusion of the legal syllogism) and not in the part of the reasoning entitled “(a) General principles” (which states the major premise of the legal syllogism). General principles have a much stronger value than considerations concerning a specific case. It is not clear why the majority did not wish to state the new rule among other general principles and thus confer to it unequivocal prominence but decided instead to downgrade the rule under consideration to the “application part” as if they were somewhat hesitant as to its validity and legitimacy.

14. In the instant case, the evidence created through ill-treatment was used in criminal proceedings to the disadvantage of the accused. The transcripts of the recording, although not transmitted to the Court, were referred to in the proceedings before this Court, which took this element into consideration in order to establish that K.G. had been subjected to ill-treatment contrary to Article 3 of the Convention (see paragraphs 83 and 84 of the judgment, with reference to the domestic courts’ judgments which have been summarised in paragraphs 17, 19, 25 and 32).

There may be cases in which such evidence could be relevant to help the defence of an accused in criminal trials before domestic courts. What should be done if the evidence to be excluded is decisive – not for establishing the very fact of ill-treatment but for undermining the prosecution case by enabling the defence to establish certain other relevant factual elements (compare the decision of Extraordinary Chambers in the Courts of Cambodia, cited above)?

15. With the development of technology, there is a growing tendency in criminal proceedings to attempt to introduce evidence created by private parties. We agree with the view expressed by some scholars and legal practitioners that courts should display the utmost diligence when considering any evidence created by private parties, including evidence put forward by the alleged victims. In such situations, there may also be a temptation to manipulate the course of the proceedings. Any private taping of utterances, even those apparently free from coercion, requires utmost caution from the courts which should consider, inter alia, whether such evidence was created for the purpose of bringing it before the courts. We reiterate here that the evidence in question in the instant case was not created with the aim of using it in any proceedings before public bodies.

16. In our view, as stated above, there are no sufficient grounds to impose under the Convention a general exclusionary rule applying to all evidence obtained though ill-treatment by private persons. The admission of evidence in question in the instant case did not render the criminal proceedings against the applicant unfair when seen as a whole. The judicial decisions taken by the domestic court remain within the boundaries of public power as defined by the Convention provisions.

The rule of law begins with reliance upon the strength of legal argument and with the quality of judicial reasoning. The European Court of Human Rights, as the highest judicial body in Europe, bears a special responsibility for promoting the highest standards in this domain.

The instant judgment decides an important legal question. A question of this nature would deserve full legal reasoning carefully weighing all pros and cons. We regret that the majority decided to evade the most fundamental issues and limited the core of the reasoning to a bare statement of analogy. The reasoning therefore substitutes judicial fiat for the rule of law. Instead of a landmark judgment we end up with a mere illustration of how difficult it is to use, and how easy it is to misuse, analogy in judicial discourse.