JOINT PARTLY CONCURRING OPINION OF JUDGES TULKENS, ZIEMELE AND BIANKU

(Translation)

1. With regard to Article 3 of the Convention, we agree with the conclusion reached in the judgment [2] that the applicant may still claim to be a “victim” within the meaning of Article 34 of the Convention and that Article 3 has therefore been breached. However, our reasoning on the issue of the applicant’s victim status differs from that adopted by the majority.

2. In order to determine whether or not the applicant had lost his status as a victim, the Court was required to examine, in accordance with its case-law, whether the domestic authorities had acknowledged and afforded redress for the alleged breach of Article 3.

3. The breach was indisputably acknowledged since the judicial authorities expressly admitted that the methods of investigation employed constituted “ill-treatment” and could not be justified on the ground of “necessity”, which was not a defence to a violation of the absolute protection of human dignity under Article 1 of the Basic Law and Article 3 of the Convention.

4. However, the judgment considers that appropriate and sufficient redress was not afforded, basing that finding on what it views as shortcomings in the conduct of the criminal proceedings resulting in the police officers’ conviction. While it finds that the criminal investigation in respect of the police officers who threatened the applicant with torture was compatible with the requirements of the Convention, the same does not apply to the penalties imposed on the police officers. The judgment concludes that they were not “adequate” and were “manifestly disproportionate” to the seriousness of the offence; accordingly, they did not have “the necessary deterrent effect in order to prevent further violations of the prohibition of ill-treatment in future difficult situations” (see paragraphs 123 and 124 of the judgment).

5. Admittedly, this assessment by the Court of the scope of the State’s duty to punish is not new and has been found in many previous judgments. However, in our view it raises three questions, especially in the present case. Firstly, sentencing is one of the most delicate and difficult tasks in the administration of criminal justice. It requires a range of factors to be taken into account, as well as knowledge of, and hence closeness to, the facts, situations and persons concerned. It is normally the role of the national courts and not the Court, which should involve itself in this process only with the utmost caution and in cases of absolute necessity. Secondly, we wonder whether the Court, in making the assumption that more severe criminal penalties have a deterrent effect, is not at risk of creating or maintaining an illusion. The (general or individual) preventive effect of sentences has long been the subject of extensive studies and research, particularly of an empirical nature. Such studies have concluded that this effect is relative, if not limited [3] . Lastly, even – and no doubt especially – where criminal punishment serves the purpose of protecting rights and freedoms, at the risk of obscuring the fact that it is also a threat to rights and freedoms, we should not lose sight of the subsidiarity principle, which is a basic axiom of criminal law: use of the weapon of punishment is acceptable only if there are no other means of protecting the values or interests at stake.

6. As the Court never tires of repeating, the rights protected by the Convention cannot be theoretical and illusory but must be practical and effective. However, in the present case was the police officers’ criminal trial, which clearly had to take place, the only possible means of preventing further violations of Article 3, a provision that forms part of the core rights protected by the Convention? We do not think so.

7. According to the Court’s case-law as reiterated in the judgment, the appropriateness and sufficiency of redress for a Convention violation must be assessed with due regard to all the circumstances of the case (see paragraph 116 of the judgment). In the present case we consider that the most appropriate form of redress for the violation of Article 3 that was found and acknowledged would have been the exclusion from the trial of the evidence obtained in breach of the Convention; as this did not happen, our conclusion is that the applicant may still claim to be a “victim” within the meaning of Article 34 of the Convention.

8. It is, however, interesting to observe that, at the end of its analysis, the Court does not in principle rule out the possibility of excluding evidence as an additional measure:

“... in cases in which the deployment of a method of investigation prohibited by Article 3 led to disadvantages for an applicant in criminal proceedings against him, appropriate and sufficient redress for that breach may have to entail, in addition to the above-mentioned requirements, measures of restitution addressing the issue of the continuing impact of that prohibited method of investigation on the trial, in particular the exclusion of evidence obtained by breaching Article 3.” (see paragraph 128 in fine )