CONCURRING OPINION OF JUDGE ZUPANČIČ

Although I am in agreement with the result reached in this important case, so far as it goes, I believe tha t (1) this indeed is a classic case concerning torture stricto sensu , (2) that contaminated evidence obtained via this “shocking” behaviour of police should be strictly excluded , and (3) that the reasons for excluding the contaminated evidence do not derive from the torture per se . L egal process is a civilised replacement of the resolution of conflicts by uncivilised physical prevalence, and the abandonment of violence is its foremost purpose. Indeed, it is its constitutive component. It is no accident that under different similar dictions the formula “ nemo tenetur seipsum prodere ” goes back to the very orig ins of Western legal tradition.

In Selmouni v. France we integrated Article 1 of the United Nations Convention against Torture [1] (hereinafter “the UNCAT ” ) into our own case ‑ law. Because in the case before us the meaning of “severe pain and suffering” determines everything else, the excellent definition of torture in Article 1 of the UNCAT, which the European Convention does not contain, bears reiterating:

“[T]he term ‘ torture ’ means any act by which [1] severe pain or suffering , whether physical or mental, is [2] intentionally inflicted on a person for such purposes as [a] obtaining from him or a third person information or a confession, [b] punishing him for an act he or a third person has committed or is suspected of having committed, or [c] intimidating or coercing him or a third person, or [d] 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 [3] 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. ” (emphasis added)

Torture, in other words, is (1) a delictum proprium ; it can only be committed by a public official or other person acting in an official capacity.

(2) It requires specific intent ( dolus specialis ), namely, conduct must be intended or acquiesced in not only to inflict severe pain or suffering, but also (a) to obtain from the person tortured or from a third person information or a confession, (b) to punish him for an act he or a third person has committed or is suspected of having committed, (c) to intimidate or coerce him or a third person, or (d) to so act for any reason based on discrimination of any kind.

Because acquiescence on the part of the public official suffices, the above dolus specialis may at a minimum also be dolus eventualis in cases where, for example, the public official in charge at the police station knowingly acquiesces in torture perpetrated by his subordinates. Moreover, the phrase defining the specific intent is open-ended (“for such purposes as”), that is to say, it permits the use of analogia inter legem . Finally, torture is a result crime ; there is no crime of torture unless there is, (3) as a consequence of the conduct of the public officials, (4) severe physical or mental pain or suffering .

Therefore, the key question in the case before us, and increasingly so in other similar considerations, is whether a particular conduct causes “severe pain and suffering ” – or something less than that [2] . Torture, in other words, is an aggravated form of inhuman and degrading treatment [3] . Whether in a particular case the pain or suffering of the victim of inhuman and degrading treatment was severe, is a question of fact to be determined by the criminal court in which the offence of torture is being prosecuted. According to medical science, the subjective threshold of pain may vary a great deal from one person to another. Moreover, the physical invasiveness of the procedure is not decisive. Letting water drop for hours on the shaved head of a person, as in a well-known Japanese form of torture during the Second World War, may not seem very invasive, yet it clearly caused severe suffering. Co ncerning the practice of force- feeding at Guantanamo , the United N ations Special Reporter on Torture, Manfred Nowak, carefully stated: “ If these allegations are true then this definitely amounts to an additional cruel treatment .” [4] If, in the considered opinion of one of the world ’ s leading experts on human rights , force- feeding amounts to “cruel treatment” then forced vomiting, at a minimum, is also “cruel”. The crucial differ ence, of course, is that force- feeding is presumably in the interest of the person subjected to it, whereas, despite feeble allegations to the contrary, forced vomiting is not. The purpose of forced vomitin g is to obtain evidence. Force- feeding introduces nourishment, whereas the forced insertion of the tube in the case before us introduces an e metic. The consequence of force- feeding is the nutritional restoration of the starved individual, the consequence of forced vomiting is convulsive involuntary vomiting and sometimes death. The force- feeding may be accompanied by anxiety due to the physical insertion of the tube but not as to the consequences of its insertion. In the case of forced vomiting, especially if the person subjected to this procedure is aware of preceding instances of concomitant death, the anxiety is subjectively more severe and objectively , at that, well-founded. Force- feeding lacks the specific intent necessary for the perpetrated conduct to amount to torture yet it can nevertheless be “inhuman and degrading”. The specific intent in cases of forced vomiting fits the definition of torture as regards the required subjective motivation of the perpetrator of this conduct, which in the language of Mr Justice Frankfurter, shocks the conscience.

Nevertheless, except in extreme cases of mistreatment (electroshocks, Palestinian hanging, falaka , etc. ), it is impossible to generalise. The U nited N ations Convention a gainst Torture is predica ted on the idea that the States P arties will incriminate torture pr ecisely as defined in the above-cited A rticle 1, which Germany has not done although it has repeatedly been urged to do so by the U nited N ations Committee against Torture. Once prosecuted, the consequences of mistreatment can become a question of fact at the trial of the alleged torturer. This question of fact may be determined , for example, by questioning the victim. In other words, the definition of torture in the UNCAT is not predicated on the possibility that a State Signatory to the Convention will introduce and perpetuate a practice of obtaining evidence that not only results in its refraining from prosecuting the perpetrators but also gives official endorsement for such abhor rent conduct. The applicant, Mr Jalloh, has not been treated as a victim in any German criminal proceedings and has thus never been given the possibility to testify. In other words, M r Jalloh could not claim that his pain and suffering were severe and the German courts have never been given the opportunity to examine this non ‑ prosecuted issue.

The issue comes totally unexplored before this Court. However, as in other analogous situations, the burden would clearly be on the State to show that Mr Jalloh, despite the fact that he had to be restrained by several policemen during this traumatis ing invasive procedure, possessed a sufficiently elevated threshold of pain and a sufficiently stable nervous system for the procedure of forced vomiting not to cause him severe anxiety, anguish, fear, and physical pain – no t to mention the medical sequel ae. For this reason, I maintain that the issue is not only whether in general forced vomiting produces severe pain and suffering but whether in this particular case such pain and suffering did in fact occur.

The burden is on the Government. In the absence of proof to the contrary and given the principle that everyone is presumed to know the natural consequences of their acts, I am constrained to maintain that the pain and the suffering in this particular case were severe. Thus, we ought to speak of torture.

II

The second question concerns the use, by the German Courts, of the extracted cocaine packag e as evidence i nstrumental in obtaining Mr Jalloh ’ s conviction.

In Rochin v. California [5] Mr Justice Douglas stated: “I think that words taken from [the suspect ’ s] lips, capsules taken from his stomach, blood taken from his veins are all inadmissible provided they are taken from him without his consent. They are inadmissible because of the command of the Fifth Amendment.” [6] There are seemingly pragmatic reasons for this prescriptive position to have been weakened by subsequent case-law to the contrary (see paragraphs 51-52 of the judgment).

Essentially, however, the problem was that the rationale for the prescriptive norm treated as such by Mr Justice Douglas is too elemental – see infra the quote from Wigmore – to be immediately discernible. As a consequence, the exclusionary rule, which is simply the preventive remedy and the alter ego of the privilege against self-incrimination, has been reduced, mostly through the consistent commitment of Mr Justice 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 1 996, 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 fulfi lment 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 cruel l est torture – imagine that the suspect in our case was intentionally torme nted 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 A rticle 15 of the U nited N ations Convention against Torture. That provision mandates the strict exclusion of all evidence from the direct or indirect cogni s ance of the judges if it is obtained through torture. No insubstantial distinction is made here between verbal and non ‑ verbal evidence [7] . In other words, while Saunders is an important case especially because it inextricably connects the two features of the same principle – the privilege against self-incrimination and the exclusionary rule – its rationale is not likely to withstand the test of time.

Yet the true raison d ’ être for the privilege against self - incrimination is very simple.

The reasons must be sought in the rudimentary rationale of the wh ole legal process as the civilis ed alternative to the resolution of conflict by combat. This very rationale was put succinctly by John Henry Wigmore, the foremost authority on the law of evidence :

“ to comply with the prevailing ethic that the individual is sovereign and that proper rules of battle between government and individual require that the individual not be bothered for less than good reason and not be conscripted by his opponent to defeat himself ...” [8]

Wigmore ’ s reference to the “proper rules of battle” may have been so understood, but it is certainly not a metaphor. In the context of a legal process as a civilised alternative to barbaric combat, “proper rules of battle” most certainly do not contain a licence to use force, any force. The purpose of the “legal battle” is precisely to replace the logic of the real combat, that is, to replace the logic of power with the power of logic. In legal process, most fundamentally, the use of force as a means of conflict resolution is replaced with logical compulsion. The mere fact that the battle happens between “government and individual”, as in criminal law, cannot change this most basic implication.

If force is nevertheless used to obtain evidence whose unwilling source is Wigmore ’ s in dividual facing the powerful S tate police apparatus it is fair to say there has been a regression to combat and that the whole criminal process in its principal intention is subverted and deprived of legitimac y. The executive branch of the S tate, in other words, has relapse d into pre rule of law routine. To paraphrase Mr Justice Frankfurter, these are barbaric methods too close to war of everybody against everybody to permit of legalistic differentiation.

The courts that admit such evidence, because at a minimum they acquiesce in such cruel practices, are ex post facto accomplices to such cruel practices.

The issue, th erefore, is not only whether Mr Jalloh had been tortured or treated inhumanly and degradingly. The whole system of law enforcement was exposed to degradation that was far more critical and perilous.

III

Most worrisome of all in all of this, however, is the already apparent change in the z eitgeist and the consequent degradation of minimal standards. What in 1952 was patently “conduct that shocked the conscience” [9] has in 2006 become an issue that must be extensively – and not just in this case – pondered, argued and debated. Despite their apparent evolution, this transmutation has little to do with the scholarly differentiation of juristic standards as, for example, between “inhuman and degrading treatment” on the one hand and “torture” on the other. Particular conduct on the part of the police will or will not shock the conscience of those appointed to consider it and to assess it. If it does they will condemn it as torture. If it does not they will deem it tolerable.

This assessment derives from a certain hierarchy of values – assimilated by everyone from the policeman holding down the person in whom a tube is to be inserted through which an emetic will be administered, to the medical doctor administering the tube and the emetic, to the judge admitting evidence so cruelly obtained. These hierarchies of values are the real origin of all the secondary ratiocination and, more worrisome, often the apparent lack of sensibility and interest.

In other words , human rights are not only a matter of pedantic legal reasoning. They are also a subject matter of a value judgment. True, only when this value judgment is converted into a verbally articulate legal standard can it sustain the rule of law. It is a mistake, however, to forget that underneath – at the origin of the very legal standa rd to be subsequently applied – lies the moral resolution of those who not only hav e opinions or even convictions, but also the courage of those convictions.