CONCURRING OPINION OF JUDGE BRATZA

I have voted with the majority of the Court on all aspects of the case but have reservations about certain parts of the reasoning in the judgment in respect of both Article 3 and Article 6 of the Convention.

Article 3

My principal reservation with regard to the reasoning on A rticle 3 relates to paragraph 77 of the judgment in which, in reaching the conclusion that the treatment to which the applicant was subjected was inhuman and degrading, the majority place particular emphasis on the fact that the forcible medical intervention was not “necessary” to obtain the evidence that the applicant had been dealing in drugs. It is said that, because the applicant was only a street dealer and had, at the time of his arrest, clearly not been dealing in drugs on a large scale, the forcible administration of emetics was not indispensable to obtain the evidence against him and the prosecuting authorities could simply have waited for the drugs to have passed through the applicant ’ s system naturally in accordance with the practice in many other member S tates of the Council of Europe.

I readily accept that States are confronted with particularly acute problems i n combating the scourge of drug trafficking, notably in obtaining admissible evidence to secure convictions of major drug dealers. I can accept, too, that if a medical “necessity” is convincingly shown to exist for forcibly administering emetics rather than waiting for nature to take its course, this would, according to the constant jurisprudence of the Court, constitute a very relevant factor in determining whether the treatment to which an applicant was subjected contravened Article 3 of the Convention (see paragraph 69 of the judgment). What I cannot, however, accept is the implication in paragraph 77 that, even where no medical necessity can be shown to exist, the gravity of the suspected offence and the urgent need to obtain evidence of the offence, should be regarded as relevant factors in determining whether a particular form of treatment violates Article 3. The Court has repeatedly emphasised the special character of the guarantees under Article 3, which prohibits in absolute terms the use of torture or inhuman or degrading treatment or punishment, irrespective of the nature of the victim ’ s conduct and which does not allow for the balancing of competing public interests against the use of treatment which attains the Article 3 threshold. Just as the urgent need to obtain evidence of a serious offence would not therefore justify resort to treatment which would otherwise attain that threshold, so also I consider that the threshold cannot

change according to the gravity of the suspected offence or the urgency of the need to obtain evidence of the offence.

For the same reason, I do not consider that the question whether particular treatment violates Article 3 should depend on whether or not the aim sought by the use of the treatment (in this case, the evidence of drug dealing) could be obtained by other methods which did not involve such treatment. The relevance of the fact that, according to the material before the Court, few if any other member States appear to permit the forcible administration of emetics to suspected drug offenders, under any circumstances and whatever the gravity of the suspected offence, seems to me to lie in the confirmation it provides of what is to be regarded as ac ceptable treatment of suspects.

In my view, for the other reasons set o ut in the judgment with which I fully concur, the treatment to which the applicant was subjected did reach the threshold of Article 3 and was in violation of that Article.

Article 6

The Court ’ s finding of a violation of Article 6 of the Convention is based on the principal ground that the use in evidence of drugs obtained by the forcible administration of emetics in violation of Article 3 of the Convention rendered his trial as a whole unfair. The Court, however, goes on in its judgment to address the applicant ’ s additional argument that the manner in which the evidence was obtained and the use made of it at his trial undermined his right not to incriminate himself, before concluding that it would have been prepared to find a violation of A rticle 6 on this further basis.

I can, in general, agree with the Court ’ s principal ground, and its reasoning, for finding a violation of Article 6 and would echo the words of Mr Justice Frankfurter, in delivering the opinion of the Supreme Court of the United States in Rochin v. California , that “the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combating a crime too energetically”. While, as the Court has frequently observed, the Convention does not lay down any rules on evidence as such, the admissibility of evidence being primarily a matter for regulation by national law, the use of evidence obtained by treatment violating the fundamental values enshrined in Article 3 appears to me to offend against the whole concept of a fair trial, even if the admission of such evidence is not – as it was in the present case – decisive in securing a conviction. As in the case of the use of coerced confessions, it is the offensiveness to civilised values of fairness and the detrimental effect on the integrity of the judicial process, as much as the unreliability of any evidence which may be obtained, which lies at the heart of the objection to its use.

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 ill-treatment 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 treat ment to which he was subjected.

Having reached this conclusion, I have not found it necessary or appropriate to address the applicant ’ s addit ional 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 problem s of exceptional co mplexity and difficulty.