PARTLY DISSENTING OPINION OF JUDGE BO Å NJAK

1 . I regret that I am unable to agree with the majority in the Chamber as to the finding that there has been no violation of Article 6 § 1 in the present case.

2 . In the light of our well-established jurisprudence in this respect, I cannot agree that, in the present case, a written document signed by the applicant did not amount to a statement which would accordingly have been protected under Article 6 § 1 of the Convention. I will argue that the Court has never before considered a document signed by an applicant to amount to an item of real evidence and the same approach is borne out by comparative jurisprudence.

3 . Furthermore, I am also unable to agree with the majority concerning the exact extent to which the impugned evidence was used against the applicant in the domestic proceedings. In fact, the uncertainty of this issue is yet another argument in favour of applying the exclusionary rule in the present case. In this context, the fact that the seizure certificate was admitted in evidence in the domestic proceedings against the applicant should have led the Chamber to find a violation of Article 6 § 1 of the Convention, as has been found time and again by the Court in past cases.

4 . The Court has previously held that, under Article 6 of the Convention, a defendant in criminal proceedings has the right to a fair trial, and that the fairness of those proceedings may be called into question if domestic courts use evidence obtained as a result of a violation of the prohibition of inhuman treatment under Article 3, one of the core and absolute rights guaranteed by the Convention. There is a vital public interest in preserving the integrity of the judicial process and thus the values of civilised societies founded upon the rule of law (see Gäfgen v. Germany [GC], no. 22978/05, § 175, ECHR 2010 ).

5 . Indeed, the Court has previously acknowledged that, in spite of the important interests at stake in the context of Article 6, Article 3 of the Convention enshrines an absolute right (see, among other authorities, Jalloh v. Germany [GC], no. 54810/00, § 99, ECHR 2006-IX ). Being absolute, there can be no weighing of other interests against it, such as the seriousness of the offence under investigation or the public interest in effective criminal prosecution, for to do so would undermine its absolute nature. Thus, the Court has expressly stated that neither the protection of human life nor the securing of a criminal conviction may be obtained at the cost of compromising the protection of the absolute right not to be subjected to ill-treatment proscribed by Article 3, as this would sacrifice those values and discredit the administration of justice (see Gäfgen , cited above, § 176).

6 . In the light of the high importance of protecting individuals against violations of their rights guaranteed by Article 3 of the Convention, including those committed as part of criminal proceedings, and as recognised by the majority in the present case, the Court has found that the admission in evidence of statements obtained as a result of torture (compare Örs and Others v. Turkey , no. 46213/99, § 60, 20 June 2006; Harutyunyan v. Armenia, no. 36549/03, §§ 63, 64 and 66, ECHR 2007-III; and Levinţa v. Moldova , no. 17332/03, §§ 101 and 104-05, 16 December 2008) or of other ill-treatment in breach of Article 3 (compare Söylemez v. Turkey , no. 46661/99, §§ 107 and 122-124, 21 September 2006, and Göçmen v. Turkey , no. 72000/01, §§ 73-74, 17 October 2006), in order to establish the relevant facts in criminal proceedings, will render the proceedings as a whole unfair. This finding applies irrespective of the probative value of the statements and whether or not their use was decisive in securing the defendant ’ s conviction (see Gäfgen , cited above, §§ 166-167; El Haski v. Belgium, no. 649/08, § 85, 25 September 2012 ; Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 254, 13 September 2016; and Almaši v. Serbia , no. 21388/15, § 101, 8 October 2019 ).

7 . This also holds true for the use of real evidence obtained as a direct result of acts of torture (see Gäfgen , cited above, § 173). However, by contrast, the admission of such evidence obtained as a result of an act characterised as inhuman treatment in breach of Article 3, but falling short of torture, will only breach Article 6 if it has been shown that the breach of Article 3 had a bearing on the outcome of the proceedings against the defendant, that is, if it had an impact on his or her conviction or sentence (see Gäfgen , cited above, § 178, and El Haski , cited above, § 85).

8 . The relevant case-law of the Court having thus been described, what remains to be done is to apply its principles to the facts of the present case.

9 . As rightly and unanimously established by the Chamber in this case in the context of the Article 3 complaint, the present applicant was ill-treated, but not tortured. In order to adjudicate upon the complaint under Article 6 § 1 of the Convention, it is necessary to determine whether the seizure certificate at issue amounted to a statement or to real evidence.

10 . However, in that respect, the majority in the Chamber, instead of applying the above-mentioned principles reiterated by the Court in numerous cases such as Gäfgen , Jalloh , Ibrahim and Others and Almaši (all cited above), choose to give a new meaning to them and consider that a written document incriminating the applicant and signed by him as the result of ill-treatment by the police does not amount to a statement, but instead either falls somewhere between a statement and real evidence, or possibly amounts to the latter. They moreover find this without clearly specifying the reasons for such a puzzling choice.

11 . I respectfully, but strongly, disagree.

12 . Indeed, an analysis of the Court ’ s case-law and comparative jurisprudence, even a rapid one, suffices to conclude that never before has a document signed by an applicant amounted to anything other than a statement, in the context of a complaint under Article 6 of the Convention, nor has such a document ever been treated as real evidence.

13 . The contrary conclusion reached by the majority in this respect seems therefore to be at odds with our well-established jurisprudence and that of the vast majority of the world ’ s legal systems.

14 . The Grand Chamber case of Gäfgen (cited above), the leading authority in this area, may shed some light on the issue of what, at least in that particular case , amounted to statements and what amounted to real evidence. In this regard, the Grand Chamber noted that the domestic court had held that statements made by the applicant following threats issued during his interrogation were inadmissible (ibid. , §§ 28-30), whereas it had regarded as admissible the real evidence which had become known as a result of such statements, or in other words, the items of evidence which the investigation authorities had secured as a result of the statements he had made under the continuous effect of his treatment in breach of Article 3 (ibid. , §§ 31 and 172).

15 . The Grand Chamber also noted that in the proceedings before the domestic courts, the impugned real evidence had been classified as evidence which had become known to the investigation authorities as a consequence of the statements extracted from the applicant (the “long-range effect” ( Fernwirkung ) – ibid. , § 31). For the purposes of its own assessment under Article 6, it considered it decisive that there had been a causal link between the applicant ’ s interrogation in breach of Article 3 and the real evidence secured by the authorities as a result of the applicant ’ s indications, including the discovery of the victim ’ s body and the autopsy report thereon, the tyre tracks left by the applicant ’ s car at the pond where the victim ’ s corpse had been found, as well as the victim ’ s backpack, clothes and the applicant ’ s typewriter. In other words, the impugned real evidence had been secured as a direct result of his interrogation by the police that breached Article 3 (ibid. , § 171).

16 . In the Grand Chamber case of Jalloh (cited above), where the Court first dealt with real evidence as opposed to statements, the applicant alleged, in particular, that the forcible administration of emetics in order to obtain evidence of a drugs offence constituted inhuman and degrading treatment prohibited by Article 3 of the Convention, and further claimed that the use of this illegally obtained evidence at his trial breached his right to a fair trial guaranteed by Article 6 (ibid., § 3). The Court recognised that the use at the trial of “real” evidence – as opposed to a confession – obtained by forcible interference with the applicant ’ s bodily integrity was at issue in that case (ibid., § 110).

17 . By contrast, the very nature of “statements” considered on their own is, for obvious reasons, ordinarily much less described. Thus, in cases such as Örs and Others (cited above, § 60), Harutyunyan (cited above, §§ 63, 64 and 66), Levinţa (cited above, §§ 101 and 103-05), and Göçmen (cited above, §§ 9 and 75), all cited in Gäfgen ( cited above , § 166), the impugned evidence consisted of statements obtained in violation of Article 3 and which had been made by applicants who were not assisted by their legal counsel at the time of making them, and which incriminated them and later on were used against them in the criminal proceedings. In those cases the Court also referred to such evidence as “confessions”, or more generally as statements that were later on held admissible by the domestic authorities (see, for example, Örs and Others , cited above , § 53).

18 . Finally, I cannot but note that the issues arising in the present case are closely linked to the privilege against self-incrimination and to the right to silence which are also protected by Article 6 of the Convention (see, for example, Funke v. France , 25 February 1993, § 44, Series A no. 256 ‑ A; Saunders v. the United Kingdom [GC], 17 December 1996, § 68, Reports 1996-VI; Jalloh , cited above, § 100; and Ibrahim and Others , cited above, § 267). Be that as it may, the applicant in the present case did not mention this principle in his complaints, and I will therefore refrain from examining it in detail.

19 . However, an analysis of some principles concerning the privilege against self-incrimination may shed additional light upon the distinction between statements and real evidence which is of concern here. Such a perspective is traditionally accepted in many of the world ’ s jurisdictions, such as in the United States.

20 . Thus it should be noted that the Court considers that the privilege against self-incrimination does not cover material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of his or her will such as, inter alia , documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing (see Saunders , cited above , § 69, and Jalloh , cited above , § 112).

21 . Similarly, building upon the principles established in Boyd v. United States , 116 U.S. 616 (1886), the Supreme Court of the United States in Schmerber v. California, 384 U.S. 757, 765 (1966), noted that the protection against self-incrimination applies specifically to compelled communications or testimony, thus excluding anything that is neither testimony nor evidence relating to some communicative act or writing by the accused.

22 . Applying these principles to the facts of the present case, it is clear that the seizure certificate could not have had an existence independent of the will of the suspect, and nor was it obtained pursuant to a warrant. In essence, it constituted a document signed by the applicant communicating a particular position on a given matter and was dependent upon the applicant ’ s will. This document clearly conveyed his recognition that a given object, which was subsequently declared, or rather confirmed, to be incriminating, had been seized from him. Thus it seems clear to me that it amounted to a statement.

23 . In any event, in the light of the absence of any unequivocal definition of what amounts to a statement as opposed to real evidence, the lack of any explanation to justify such a peculiar position as the one taken by the majority in this respect, and the uncertainty as to whether they consider the impugned evidence to constitute something in-between a statement and real evidence, or simply the latter, make this even more questionable.

24 . Moreover, in an attempt to find a potential justification for such a stance it could be deduced that perhaps the majority in the Chamber, although they never clearly mention this, found that the statement given by the applicant did not fully incriminate him at the time when it was given. This fact alone, however, would not seem to distinguish the present case from any other similar case, such as Gäfgen , where the statement given by the applicant in which he told the police where he had hidden the body of the victim was nevertheless not held to be admissible by the domestic courts, unlike the real evidence found as a consequence of it. It could be surmised that, the moment that the statement was given, it did not clearly incriminate the applicant straight away, but only when the corpse was actually found . In any event, as emphasised by the Grand Chamber, it was the second, untainted, confession of the applicant that, along with other evidence, had the consequence that the domestic courts found him to be guilty as charged (see Gäfgen , cited above, § 180).

25 . In any event, the Court has never held that a statement obtained in violation of Article 3 had to be fully incriminating, or that it had to be incriminating the moment it was given, in order to be protected by Article 6 § 1 of the Convention.

26 . In fact, in relation once again to the privilege against self-incrimination, the Court has previously held that this right cannot reasonably be confined to statements which are directly incriminating. Indeed, even testimony obtained under compulsion which appears on its face to be of a non-incriminating nature, such as exculpatory remarks or mere information on questions of fact, may be deployed in criminal proceedings in support of the prosecution case, for example to contradict or cast doubt upon other statements of the accused or evidence given by him during the trial, or to otherwise undermine his credibility (see Saunders , cited above, § 69, and Ibrahim and Others , cited above, § 268).

27 . Therefore, all in all, one fails to see exactly in what way the majority in the Chamber can conclude that the evidence at issue in the present case does not consist of a “statement”, since, if we follow the well-established approach of the Court in this regard, we can only come to the opposite conclusion, thereby entailing a breach of Article 6 § 1 of the Convention.

28 . Moreover, this is even more problematic in the light of the fact that the majority in the Chamber in the present case are not only advocating something that has never been thus far considered by this Court, they are also failing to take a clear position in this respect, since nothing in the majority ’ s wording suggests that we are indeed dealing with real evidence. All that is clear from the majority ’ s unexplained position is that in their view we are presumably not dealing with a statement.

29 . Ultimately, it is deeply regrettable that, by considering that a written document signed by the applicant and which was later on held to be admissible in criminal proceedings against him did not amount to a statement, irrespective of the extent to which it was, or at least seemed to be, used by the domestic courts, the majority seem to be tacitly creating a new and unjustified exception to the general rule against the admission of evidence obtained in breach of Article 3, one that may encourage domestic authorities to violate Article 3 as part of their criminal investigations. Indeed, this result allows the use of methods contrary to the very basic principles of democratic societies enshrined in Article 3 of the Convention to be tolerated. In my view, such an outcome constitutes an unacceptable violation of the key values defended by our Court.

30 . Even if it is assumed that the impugned seizure certificate did not amount to a statement, one cannot exclude the importance of the influence of this piece of evidence upon the outcome of the domestic proceedings against the applicant.

31 . First of all, the Supreme Court of Cassation itself noted that the fact that the applicant had been in possession of cannabis had been established on the basis of the police officers ’ testimony and that this was “not solely based on” the seizure certificate (see paragraph 30 of the judgment). It cannot be denied that the use of the word “solely” in this context clearly implies that the Supreme Court of Cassation considered that the impugned evidence had been used by the domestic courts against the applicant to at least some extent. In the light of the principle of subsidiarity, I find it highly questionable for our Court to diverge from the findings of the Supreme Court of Cassation in this respect.

32 . Nevertheless, even if we disregard the findings of the Supreme Court of Cassation and only look at the reasoning of the first and second instance courts, which may lead us to believe that they convicted the applicant on the basis of other evidence, I am of the opinion that it still cannot be excluded that the conviction was influenced by the seizure certificate at least to a certain extent.

33 . First of all, the whole point of preventing domestic authorities from admitting evidence obtained as the result of torture or ill-treatment in criminal proceedings, or the so-called exclusionary rule, which is extensively provided for by both national and international instruments (see Jalloh , cited above, § 105, and Gäfgen , cited above, § 161), is precisely to preserve the integrity of the judicial process itself, since one cannot know for sure to what extent a given item of evidence which came to the knowledge of a judge or juror has influenced their final decision.

34 . This is closely linked to the danger of the “psychological contamination” of a judge or juror by inadmissible evidence.

35 . Firstly, concerning jurors, although it is traditionally presumed that limiting instructions should reduce the possibility of prejudice to an acceptable level [1] , many scholars and judges find this assumption to be nothing other than unmitigated fiction [2] . Once jurors are acquainted with inadmissible evidence or information, the circumstances of a given case may at times require a new trial to take place. This was for instance the case in United States v. Brown , 108 F.3d 863 (8th Cir. 1997) where, without any action on the part of the prosecution, the trial judge decided to grant a new trial after it appeared that, during the initial trial, news accounts of the guilty plea of a corporate co-defendant had been read by certain jurors who, as was revealed after trial, considered this information in their deliberations.

36 . A number of scholars, and even some courts and legislators, have now accepted that judges may also be prone to such “contamination”. Indeed, some experiments conducted to determine whether judges can ignore such information found that they were generally unable to avoid being influenced by relevant but inadmissible information of which they had become aware [3] . Once judges acquaint themselves with inadmissible evidence, they are inevitably exposed to the danger that they may examine other evidence in the light of it. Moreover, even if the inadmissible evidence is not mentioned in a court ’ s opinion, the latter does not necessarily disclose the mental analysis that led the judges to find an applicant guilty. This danger may be weaker than it is in the case of jurors, but it is far from being non-existent.

37 . As a result, a number of lawmakers and courts now even go a step further than the exclusionary rule, which in essence only bars courts from referring to inadmissible evidence, without being able to erase it entirely from their reasoning, even when such reasoning is not fully conscious. In order to genuinely prevent the proceedings from being tainted by inadmissible evidence, some sources propose that a judge who has become acquainted with such evidence should withdraw entirely from the trial [4] .

38 . Such a solution provides a very effective answer to prevent both jurors and judges from basing their decisions on inadmissible evidence, be it consciously or unconsciously, and thus may very well find increasing support in future years.

39 . Be that as it may, the rationale behind the exclusionary rule is not only linked to the issue of the particular extent to which impugned evidence has been used against an applicant in criminal proceedings, but also to that of the potential extent to which it could have been used and that of the motivation of those who perpetrated the ill-treatment or torture.

40 . Admission of evidence obtained in breach of a prohibition of ill-treatment is even more problematic in a situation where, as in the present case, it had not been established prior to its admission whether the evidence in question was indeed obtained by ill-treatment. In such a situation, a judge or juror is not alerted beforehand to the fact that such evidence is tainted by a violation of an absolute human right and that, consequently, he or she should disregard it in the course of the decision-making process. In such a scenario, a danger of “psychological contamination” is accordingly greater. Therefore, it is all the more necessary for the issue of admissibility of evidence to be resolved before that evidence is actually produced at trial. The failure of the domestic authorities in the present case to address the applicant ’ s objection to admission of the seizure certificate further increased the probability that this evidence would influence the course and the outcome of the case (see also below, paragraphs 52 et seq.).

41 . Indeed, sanctioning a domestic court for admitting evidence obtained in breach of Article 3 of the Convention does not only prevent intrinsically unreliable evidence from being admitted or used (see Söylemez v. Turkey , no. 46661/99, § 122, 21 September 2006, and Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, § 264, ECHR 2012 (extracts)), but, most importantly, it has the merit of removing any incentive to use ill-treatment or torture against a suspect in order to obtain incriminating evidence (see Gäfgen , cited above, § 160) since the use of evidence obtained in violation of Article 3 is often the reason why acts of ill-treatment are initially used. As emphasised by the Court, admission of such evidence to establish a person ’ s guilt is therefore incompatible with the guarantees of Article 6 of the Convention (see Söylemez , cited above, § 122).

42 . It can thus be seen how the exclusionary rule constitutes the first and essential shield against violations of Article 3 of the Convention as part of criminal proceedings. If we accept that domestic courts can admit such evidence upon the condition that they simply expressly state that they are not basing their judgment upon it, then we accept that domestic authorities may resort to torture and ill-treatment to obtain evidence in general. If, on the contrary, we consider that merely admitting evidence obtained through the use of torture or ill-treatment renders the whole proceedings unfair, then domestic authorities are no longer tempted to have recourse to such methods of investigation.

43 . This is precisely why I find so questionable the Government ’ s claim in the present case according to which the impugned evidence did not have any bearing on the applicant ’ s final conviction, which instead was based on the testimony of the very police officers who arrested him.

44 . This justification is not unknown to the Court, which has previously rejected an argument by a respondent Government to the effect that, although the impugned evidence had been held to be admissible, it had nevertheless not been used to convict the applicant (see Söylemez , cited above , § 120). In this respect, the Court noted that, during the relevant proceedings, the applicant ’ s testimony, extorted under duress during police custody, was one element among others which had served as the basis for his conviction ( ibid. , § 77) since the domestic courts had not taken into consideration the alleged inadmissibility of this piece of evidence. As a result, they had never considered whether the applicant ’ s statements ought to have been excluded from the case file ( ibid. , § 124).

45 . Similarly, the Court has also previously rejected a respondent Government ’ s argument according to which, in spite of the fact that the impugned evidence had been admissible, the applicant ’ s conviction had not been solely based upon it, but instead on an entire body of evidence (see Örs and Others , cited above, § 60, and Göcmen , cited above, § 74). Indeed, the Court did not consider it necessary to assess whether the applicant ’ s conviction had been based in a conclusive way on the statements which he had allegedly given to the police under duress. It sufficed for it to note that some of the facts established by the domestic authorities were based on the applicant ’ s statements obtained as a result of ill-treatment and in the absence of legal counsel (see Şahiner , Yakış , Yalgın and Others v. Turkey ( dec. ), no. 33370/96, 11 January 2000; Fikret Doğan v. Turkey ( dec. ), no. 33363/96, 11 January 2000; and Örs and Others , cited above, § 60). Therefore, this entailed a violation of Article 6 of the Convention ( Örs and Others , cited above,§ 61, and Göcmen , cited above, § 75).

46 . By contrast, in Gäfgen , there were particular circumstances which contributed to the Grand Chamber ’ s conclusion that the impugned evidence had not been necessary in securing the applicant ’ s conviction. In that case, the Court found that it was the applicant ’ s second confession at the trial which – alone or corroborated by further untainted real evidence – formed the basis of his conviction for murder and kidnapping with extortion and of his sentence. The impugned real evidence was not necessary and was not used to prove him guilty or to determine his sentence. The Court observed that it could thus be said that th ere was a break in the causal chain leading from the prohibited methods of investigation to the applicant ’ s conviction and sentence in respect of the impugned real evidence ( Gäfgen , cited above, § 180).

47 . Moreover, the Court confirmed that the breach of Article 3 in the investigation proceedings had had no bearing on the applicant ’ s confession at trial (ibid., § 181), since, prior to it, the applicant had been instructed about his right to remain silent and about the fact that none of the statements he had previously made on the charges could be used as evidence against him (see paragraph 34 of the judgment). The Court was therefore satisfied that domestic legislation and practice did attach consequences to confessions obtained by means of prohibited ill-treatment (contrast Hulki Güneş v. Turkey , no. 28490/95, § 91, ECHR 2003-VII, and Göçmen , cited above, § 73) and that the status quo ante was restored, that is, to the situation that the applicant had found himself in prior to the breach of Article 3, in this respect (see Gäfgen , cited above, § 182).

48 . Thus the Grand Chamber clearly contrasted the facts of Gäfgen with those described in Göçmen , among others, since in Gäfgen the Court was satisfied that the domestic legislation and practice did attach consequences to the confessions obtained by means of prohibited ill-treatment. Yet the present case seems to be more akin to Göçmen or Söylemez in this regard, as well as in the exact extent to which the impugned evidence was, or at the very least could have been, used against the applicant.

49 . In the end, even outside the issues strictly relating to Article 3 of the Convention, I reiterate here my position concerning what is, to my mind, governed by Article 6 of the Convention. There is a school of thought according to which the fairness of the outcome of the proceedings has particular importance , thereby entailing that the issue of whether a given item of evidence had some influence upon it may also matter. Nonetheless, I consider on the contrary that Article 6 of the Convention is about the fairness of the proceedings as a whole, not the fairness of the outcome. Here I would refer to my separate opinion in Murtazaliyeva v. Russia ([GC], no. 36658/05, 18 December 2018).

50 . I cannot but conclude that it is therefore, in any event, not of crucial importance to consider the effect that the impugned item of evidence had on the applicant ’ s final conviction.

***

51 . Ultimately, I believe that fundamental principles of fairness require the Court to sanction, under Article 6 § 1 of the Convention, domestic courts which have admitted evidence obtained in breach of Article 3 of the Convention.

52 . Moreover, it should be noted that Article 6 of the Convention also requires domestic courts to admit evidence only if they have first verified, in view of elements specific to the case, that they had not been obtained as a result of ill-treatment or torture. This is inherent in a court ’ s responsibility to ensure that those appearing before it are guaranteed a fair hearing, and in particular to verify that the fairness of the proceedings is not undermined by the conditions in which the evidence on which it relies has been obtained (see El Haski , cited above, §§ 89 and 99 ).

53 . A failure to assess whether evidence had been obtained as a result of ill-treatment or torture has therefore entailed a violation of Article 6 in many cases, such as in Söylemez (cited above), where the Court observed that the criminal court had convicted the applicant even though the criminal proceedings against the police officers whom he accused of having ill-treated him were still pending (ibid., § 123). Moreover, the Court also pointed out in that case that no further investigation had been ordered either to determine the reality of the facts or the identity of the perpetrators of the alleged ill-treatment (contrast Ferrantelli and Santangelo v. Italy , 7 August 1996, Reports 1996-III, § 49-50, and compare Örs and Others , cited above, § 61, and Söylemez , cited above, § 124).

54 . In Örs and Others (cited above), the Court went even further in noting that the security court had not considered it necessary, for example, to refer a preliminary question to the criminal court before which the proceedings were taking place against the police officers accused of having tortured the applicant (ibid., § 59).

55 . Thus, in the light of the above-mentioned jurisprudence, it is clear that, in the present case, the failure of the domestic courts to examine the applicant ’ s arguments concerning the ill-treatment to which he had been subjected in order to obtain incriminating statements, instead considering that this was a separate issue, is an important element affecting the fairness of the proceedings as a whole.

56 . From a wider perspective, I believe that the importance of values protected jointly by Articles 3 and 6 of the Convention must not be underestimated. Indeed, even the absence of an admissible Article 3 complaint does not, in principle, preclude the Court from taking into consideration an applicant ’ s allegations that the statements made before the police had been obtained using methods of coercion or oppression and that their admission to the case file, relied upon by the trial court, therefore constituted a violation of the fair trial guarantee of Article 6 (see Mehmet Duman v. Turkey , no. 38740/09, § 42, 23 October 2018, and Aydın Çetinkaya v. Turkey , no. 2082/05, § 104, 2 February 2016).

57 . Moreover, the general principle applies not only where the victim of the treatment contrary to Article 3 is the actual defendant but also where third parties are concerned (see El Haski , cited above, § 85, and Kaçiu and Kotorri v. Albania , nos. 33192/07 and 33194/07, § 128, 25 June 2013).

58 . Furthermore, the Court previously held that incriminating evidence – whether in the form of a confession or even real evidence – obtained as a result of acts of violence or brutality or other forms of treatment which can be characterised as torture – should never be relied on as proof of the victim ’ s guilt, irrespective of its probative value. Any other conclusion would only serve to legitimise, indirectly, the sort of morally reprehensible conduct which the authors of Article 3 of the Convention sought to proscribe or, as it was so well put in the United States Supreme Court ’ s judgment in the Rochin case (see Jalloh , cited above, § 50), to “afford brutality the cloak of law” (ibid., §§ 99 and 105; Harutyunyan , cited above, § 63; and Gäfgen , cited above, § 167).

59 . Finally, it cannot be overlooked that the Grand Chamber in Gäfgen expressly recognised that in the light of its case-law (see Gäfgen , cited above, §§ 165-167), the use of evidence secured as a result of a breach of Article 3 raised serious issues as to the fairness of the proceedings. It added that, admittedly, in the context of Article 6, the admission of evidence obtained by conduct absolutely prohibited by Article 3 might be an incentive for law-enforcement officers to use such methods notwithstanding such absolute prohibition. The repression of, and the effective protection of individuals from, the use of investigatory methods that breach Article 3 may therefore also require, as a rule, the exclusion from use at trial of real evidence which has been obtained as a result of any violation of Article 3, even though that evidence may be more remote from that violation than evidence extracted immediately as a consequence of a violation of that Article. Otherwise, the trial as a whole will be rendered unfair.

60 . The different conclusion ultimately reached by the majority in the Grand Chamber in Gäfgen was the result of a number of factors, namely the lack of a clear consensus among the Contracting Parties to the Convention, the courts of other States and other human rights monitoring institutions about the exact scope of application of the exclusionary rule as far as real evidence is concerned (see Gäfgen , cited above, § 174), and the different competing rights and interests at stake, bearing in mind that the interest in considering the trial as being fair in that particular case was particularly high, and that the impugned real evidence was derived from an illegal method of interrogation which was not in itself aimed at furthering a criminal investigation, but was applied for preventive purposes, namely in order to save a child ’ s life, and thus in order to safeguard another core right guaranteed by the Convention, Article 2 (ibid., § 175).

61 . The wide range of reasons set forth by the Court in justifying this limitation with regard to real evidence obtained as a result of ill-treatment falling short of torture by all means shows how broad the general principle is and how critical it is to give sufficient grounds in any reasoning to the contrary.

62 . In the present judgement, however, the majority in the Chamber fail to give sufficient reasons to depart from the well-established jurisprudence of the Court in this regard, in that they simply assert that a written document signed by the applicant did not amount to a statement, and thus imply that it constituted real evidence, therefore allowing the limitation to the general principle stated in Gäfgen , but without in any way explaining why such a document should be considered as anything other than a statement under our jurisprudence.

63 . In the end, it seems that the crucial nature of the values protected jointly by Articles 3 and 6 of the Convention in every democratic society has not been sufficiently recognised by the majority in the Chamber in the present judgement.

64 . In this connection, I would also refer with approval to the views expressed by Judges Rozakis , Tulkens , Jebens, Ziemele , Bianku and Power in their separate opinion in the case of Gäfgen (cited above). Indeed, I firmly agree with their view according to which 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 (see § 7 of the said joint partly dissenting opinion in Gäfgen ). As rightly observed in their separate opinion, 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 (see § 2 of the said opinion).

65 . I also fully endorse their view that the most effective way of guaranteeing the absolute prohibition of violations of Article 3 is a strict application of the exclusionary rule when it comes to Article 6 (see § 10 of the said opinion).

66 . Such an approach would indeed leave State agents who are tempted to perpetrate inhuman treatment in no doubt as to the futility of engaging in such prohibited conduct. Furthermore, it would deprive them of any potential incentive or inducement for treating suspects in a manner that is inconsistent with Article 3 (see § 10 of the said opinion).

67 . As also rightly highlighted in that opinion, this is so because 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 (see § 12 of the said opinion).

68 . That being said, the exclusionary rule comes with a price to pay, and as recognised in that joint partly dissenting opinion, at times this price may be very high. However, I also fully endorse their view that, where this occurs, the ultimate responsibility for any “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 (see § 11 of the said opinion).

69 . I hope that one day such a stance will prevail in the Court ’ s jurisprudence. In any event, even with the case-law as it stands right now, the mere admission in evidence of the impugned seizure certificate in the present case should be found to entail a violation of Article 6 § 1, for the reasons outlined above.

[1] See , e.g. , United States v. Kilcullen , 546 F.2d 435, 447 (1st Cir. 1976).

[2] See, e.g., Krulewitch v. United States , 336 U.S. 440, 453 (1949) (Jackson, J., concurring).

[3] See , e.g. , J. Rachlinski, A. Wistrich and C. Guthrie, “ Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding ” , University of Pennsylvania Law Review , Vol. 153, 2005, pp. 1251-1345. Available at SSRN: https://ssrn.com/abstract=696781

[4] Courts in s ome jurisdictions hold that the hearing of inadmissible evidence by the trial judge generally requires his or her withdrawal . Concerning this issue, see for example People v. McKee , 39 Ill. 2d 265, 271, 235 N.E.2d 625, 629 (1968). Concerning the requirement for a different judge to hear a case, see for example United States ex rel. Spears v. Rundle , 268 F. Supp. 691, 695-696 (E.D. Pa. 1967), aff'd, 405 F.2d 1037 (3d Cir. 1969) (per curiam) (stating that we cannot “ require a judge who has heard evidence of guilt, to objectively and coldly assess a distinct issue as to the voluntariness of the confession. Objectivity cannot be guaranteed, and reliability must be questioned. … The only method, … which the court could have adopted during [the defendant’s] trial was upon learning that he placed the confession in issue, to order a separate hearing to be held by another judge unfamiliar with the case and testimony) ; also concerning a withdrawal after a judge heard evidence of the defendant’s guilt and assessed the voluntariness of his confession, see United States v. Parker , 447 F.2d 826, 829-847 (7th Cir. 1971); similarly, see United States ex rel. Owens v. Cavell, 254 F. Supp. 154, 154-155 (M.D. Pa. 1966) (questioning, in another case where an allegedly involuntary confession was admitted into evidence, “ whether a judge sitting as fact-finder would be able to pass on guilt or innocence without being influenced by evidence relating to the voluntariness issue ”).

See also, for a European perspective on the influence of irrelevant factors and circumstances, including inadmissible evidence, on judicial decision-making, M. Bergius, E. Ernberg, C. Dahlman and F. Sarwar, “Are judges influenced by legally irrelevant circumstances?”, Law, Probability and Risk , Vol. 19, 2020, pp. 157-164, DOI: 10.1093/lpr/mgaa008, and B. Englich, T. Mussweiler and F. Strack, “Playing Dice With Criminal Sentences: The Influence of Irrelevant Anchors on Experts’ Judicial Decision Making”, PSPB , Vol. 32, No. 2, 2006, pp. 188-200, DOI: 10.1177/0146167205282152; see also M. Pantazi, O. Klein and M. Kissine, “ Is justice blind or myopic? An examination of the effects of meta-cognitive myopia and truth bias on mock jurors and judges ” , Judgment and Decision Making , Vol. 15, No. 2, 2020, pp. 214-229 (demonstrating that judges tend to believe the information they receive, even if it is clearly flagged as false).

In the European context, by way of example, the concept of “psychological contamination” was embraced by the Constitutional Court of Slovenia in its decision number U-I-92/96, finding it unconstitutional for a judge to sit i n a case if acquainted with inadmissible evidence. On the basis of this decision, the Criminal Procedure Act was amended accordingly in order to provide for the mandatory withdrawal of a judge in such a case.