JOINT PARTLY DISSENTING OPINION OF JUDGES ROZAKIS, TULKENS, JEBENS, ZIEMELE, BIANKU AND POWER

1. We do not share the majority’s opinion that there has been no violation of Article 6 §§ 1 and 3 of the Convention. In our view, there was a breach of Article 6 because real evidence which had been secured as a direct result of a violation of Article 3 was admitted into the applicant’s criminal trial. The breach was compounded by the fact that this evidence had also been obtained in circumstances that were self-incriminating.

2. The admission into criminal proceedings of any evidence obtained in violation of Article 3 raises a fundamental and vitally important question of principle. While the Court’s case-law was clear in so far as the admission of confession statements obtained in violation of Article 3 is concerned, (such statements being always inadmissible regardless of whether they were obtained by torture or inhuman or degrading treatment) the question of the consequences for a trial’s fairness of admitting other types of evidence (“real evidence”) obtained as a result of treatment falling short of torture but still within the ambit of Article 3, remained to be settled. Difficult though this case was, it presented the Grand Chamber with an opportunity to rule upon the precise scope of the exclusionary rule in respect of any evidence obtained by a breach of Article 3. The Court could have answered that question categorically by asserting, in an unequivocal manner, that irrespective of the conduct of an accused, fairness, for the purpose of Article 6, presupposes respect for the rule of law and requires, as a self-evident proposition, the exclusion of any evidence that has been obtained in violation of Article 3. A criminal trial which admits and relies, to any extent, upon evidence obtained as a result of breaching such an absolute provision of the Convention cannot a fortiori be a fair one. The Court’s reluctance to cross that final frontier and to establish a clear or “bright-line” rule in this core area of fundamental human rights is regrettable.

3. It is clear from the Court’s case-law that the admission of evidence obtained in violation of Article 3 has always been subject to different considerations than those arising where other Convention rights, such as those protected under Article 8, are concerned [4] . Heretofore, the Court took the view that even if proper procedural safeguards are in place, it would be unfair to rely on material if its nature and source were tainted by any oppression or coercion [5] . The use of statements obtained as a result of violence, brutality or other conduct which could be characterised as torture [6] or ill-treatment [7] in breach of Article 3 always rendered the proceedings as a whole unfair, irrespective of whether such evidence was decisive in securing the applicant’s conviction. Whether that principle applied with equal force to other types of evidence remained to be considered. In Jalloh , the Court indicated that an issue may arise under Article 6 § 1 in respect of any evidence obtained in violation of Article 3 even if its admission was not decisive in securing a conviction [8] . On the facts of that case, the general question as to whether the use of real evidence obtained by an act falling short of torture but still within the scope of Article 3 automatically renders a trial unfair was left open [9] . Regrettably, the answer now given and the reasoning adopted by the majority risks undermining the effectiveness of the absolute rights guaranteed by Article 3. A distinction has been introduced into the Court’s jurisprudence between the admissibility of statements obtained in breach of the absolute prohibition of inhuman and degrading treatment and the admissibility of other evidence obtained in the same manner. Such a distinction is difficult to sustain.

4. The majority accepts that the real evidence against the applicant in this case, which was admitted into trial, “was secured as a direct result of his interrogation by the police that breached Article 3” (see paragraph 171 of the judgment). That prohibited conduct resulted in a coerced confession followed by a journey to the scene of vital evidence where the applicant, upon the order of the police, pointed out the locus of the body (while being filmed) and, thereafter, assisted in the gathering of other self-incriminating evidence. There is no doubt from the proceedings before the domestic courts that this evidence was then admitted, adduced, examined and relied upon at the trial and referred to in the Regional Court’s judgment (see paragraphs 32 and 34). Notwithstanding the foregoing, the majority has nevertheless concluded that the applicant’s trial was fair because of “a break in the causal chain” (see paragraph 180) leading from that breach to the applicant’s conviction and sentence. We do not agree with its finding or with the reasoning upon which it is based.

5. From the moment of arrest to the handing down of sentence, criminal proceedings form an organic and interconnected whole. An event that occurs at one stage may influence and, at times, determine what transpires at another. When that event involves breaching, at the investigation stage, a suspect’s absolute right not to be subjected to inhuman or degrading treatment, the demands of justice require, in our view, that the adverse effects that flow from such a breach be eradicated entirely from the proceedings. This approach has previously been confirmed and underlined, 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 6 [10] . 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 defence was restricted substantially, if not entirely, and a conviction for the charges upon which he stood accused was all but inevitable. That such inevitability was articulated by the prosecuting parties who participated in the trial confirms us in our view that serious doubt must be cast over the capacity of the applicant, at the outset of the trial, to defend himself effectively.

8. Neither the applicant’s confession at trial nor the ostensibly limited reliance upon that coerced evidence to establish the veracity of the said confession was capable of curing the manifest defect in the proceedings that was caused by the admission into evidence of such tainted materials. The only way to ensure effective protection of the applicant’s fundamental right to a fair hearing would have been to exclude all impugned evidence and to have proceeded (albeit on other charges, such as kidnapping with extortion causing death; see paragraph 35 of the judgment) on the basis of the non-contaminated evidence that was available to the prosecution. To allow evidence obtained by a breach of Article 3 to be admitted into a criminal trial weakens, inevitably, the protection which that provision confers and signals a certain ambivalence about how far that protection goes.

9. We find it disturbing that the Court has introduced, for the first time, a dichotomy in principle between the types of conduct prohibited by Article 3 at least in so far as the consequences for a trial’s fairness are concerned where breaches of that provision occur. In effect, the Court has concluded that real evidence obtained by inflicting inhuman treatment upon an accused person may be admitted into trial and that such a trial may nevertheless be regarded as “fair” so long as such evidence has no bearing on the outcome of proceedings. If it can have no bearing, what, one wonders, is the purpose of its admission? And why, in principle, should the same reasoning not now apply to real evidence obtained by torture? If a break in the causal chain from torture to conviction can be established – where, for example, a torture victim chooses to confess during trial – why not permit the admission of such evidence at the outset of his trial and wait to see if any break in the causal chain might occur? The answer is manifestly obvious. Societies that are founded upon the rule of law do not tolerate or sanction, whether directly, indirectly or otherwise, the perpetration of treatment that is absolutely prohibited by Article 3 of the Convention. Neither the wording of Article 3 nor that of any other provision of the Convention makes a distinction between the consequences to be attached to torture and those attaching to inhuman and degrading treatment. There is thus no legal basis, in our view, for regarding inhuman treatment as different from torture in terms of the consequences that flow from the perpetration thereof. Neither “a break in the causal chain” nor any other intellectual construct can overcome the inherent wrong that occurs when evidence obtained in violation of Article 3 is admitted into criminal proceedings.

10. The Court has repeatedly stated that Article 3 is an absolute right and that no derogation from it is permissible under Article 15 § 2 – even in the event of a public emergency [11] . Being absolute, all violations thereof are serious and, in our view, the most effective way of guaranteeing that absolute prohibition is a strict application of the exclusionary rule when it comes to Article 6. Such an approach would leave State agents who are tempted to perpetrate inhuman treatment in no doubt as to the futility of engaging in such prohibited conduct. It would deprive them of any potential incentive or inducement for treating suspects in a manner that is inconsistent with Article 3.

11. We are mindful of the consequences that flow from a strict application of the exclusionary rule where violations of Article 3 are concerned. We recognise that, at times, often reliable and compelling evidence may have to be excluded and that the effect upon the prosecution of a crime may thereby be compromised. Furthermore, the exclusion of such evidence may result in an accused person receiving a lighter sentence than he or she might otherwise have received. However, where this occurs the ultimate responsibility for any such “advantage” to the accused lies, firmly, with the State authorities whose agents, irrespective of their motivation, permitted the perpetration of inhuman treatment and thereby risked compromising the subsequent conduct of criminal proceedings.

12. We are also cognisant of the fact that victims of crime, their families and the public at large all have an interest in the prosecution and punishment of those who engage in criminal activities. However, in our view, there is an equally vital, compelling and competing public interest in the preservation of the values of civilised societies founded upon the rule of law. In such societies, recourse to subjecting individuals to inhuman or degrading treatment, regardless of its purpose, can never be permitted. There is, in addition, a critical public interest in ensuring and maintaining the integrity of the judicial process and the admission into a trial of evidence obtained in violation of an absolute human right would undermine and jeopardise the integrity of that process. In our view, criminal activity may not be investigated nor an individual’s conviction secured at the cost of undermining the absolute right not to be subjected to inhuman treatment as guaranteed under Article 3. To hold otherwise would involve sacrificing core values and bringing the administration of justice into disrepute.

13. As with the majority, we acknowledge that the State agents in this case acted in a difficult and highly charged situation. This does not, however, alter the fact that they obtained, by a breach of Article 3, real evidence which was subsequently used and relied upon at the criminal trial of the applicant. Though the situation in this case was critical it is precisely in times of crisis that absolute values must remain uncompromised.