CONCURRING OPINION OF JUDGE YUDKIVSKA

1. I fully share the reasoning and conclusions of the Chamber. My only intention is to highlight an important development that is made in the present judgment, namely an expansion of the so-called “fruits of the poisonous tree” doctrine, which owes its metaphoric name to Justice Felix Frankfurter, who firstly pronounced it in Nardone v. United States [1] . This set term of common law is used in the context of unlawful investigations and of whether unlawfully obtained evidence can be used in trial. The metaphor is obvious: if the tree (the source of evidence) is contaminated, its fruit (the evidence) contains the same contaminant and can kill its consumer (the trial).

2. The Court’s case-law is solid and unequivocal in respect of the use in criminal proceedings of evidence obtained as a result of a violation of Article 3: such a use, “irrespective of the classification of the treatment as torture, inhuman or degrading treatment – renders the proceedings as a whole automatically unfair, in breach of Article 6” (see El Haski v. Belgium , no. 649/08, § 85, 25 September 2012, and Gäfgen v. Germany [GC], no. 22978/05, § 166, ECHR 2010). There is a long jurisprudential line where the Court, having found it established that an applicant was ill-treated with the aim of obtaining his or her statements, found a violation of Article 6 “irrespective of the probative value of the statements and irrespective of whether their use was decisive in securing the defendant’s conviction” (ibid.)

3. This stance aligns with that of the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Article 15 of which provides that “Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made” ( emphasis added ).

4. For the first time in its case-law – to the best of my knowledge – having explicitly rejected the complaint under Article 3 in its substantive limb, i.e. not having established that the applicant was ill-treated, the Court has found that a failure to properly investigate “the alleged manner in which the key evidence against the applicant was obtained... particularly the failure of the domestic courts to adequately examine the applicant’s allegations of the inhuman and degrading nature of the strip search... was such that the overall fairness of the applicant’s trial appears to have been irretrievably prejudiced” (see paragraph 96 of the present judgment).

5. In other words, a “mere” procedural violation of Article 3 as regards an allegation of ill-treatment in order to obtain evidence is enough to render the trial unfair.

6. The logic of this finding relates to a failure by the domestic court to assess the quality of the evidence, i.e. “whether the circumstances in which it was obtained cast doubt on its reliability or accuracy”. Interestingly enough, the majority seeks support for this position in three cases, cited in paragraph 94 ( Mehmet Duman v. Turkey , no. 38740/09, 23 October 2018, Abdulkadyrov and Dakhtayev v. Russia , no. 35061/04, 10 July 2018 and Turbylev v. Russia , no. 4722/09, 6 October 2015). However, in contrast to the present case, in the last two of these cases the Court did find a violation of the substantive limb of Article 3, and in the first case it was prevented from examining the relevant complaint since it was submitted too late.

7. In the case of Jannatov v. Azerbaijan [2] the applicant complained of ill ‑ treatment by the police and the subsequent use of the statements obtained under duress in the trial against him. As in the present case, no substantive violation of Article 3 was found, as a result of a deficient investigation. Assessing the applicant’s complaint under Article 6 as to reliance on the applicant’s confession during the investigation, the Court underlined that it had been unable to establish a substantive violation of Article 3 of the Convention with regard to the alleged ill-treatment. Having, however, reiterated that “particular considerations apply in respect of the use in criminal proceedings of evidence obtained in breach of Article 3”, it went on to assess other evidence before concluding that the quality of that evidence and the domestic courts’ failure to address the applicant’s objection regarding its use against him, rendered the proceedings as a whole unfair (see Jannatov , §§ 75-83).

8. In the present case, the mere fact that the domestic courts neglected their duty to address properly the applicant’s allegation that the physical evidence had been obtained by ill-treatment led to the trial being “irretrievably prejudiced” (see paragraph 96 of the judgment).

9. The rationale of the exclusionary rule, as developed in international jurisprudence, suggests that this development in the Court’s case-law is most welcome.

10. It is widely accepted that the very logic of the “fruits of the poisonous tree” doctrine is connected to the so-called “deterrent theory”, according to which the possibility of exclusion of evidence should discourage the law-enforcement authorities from resorting to unlawful conduct in future.

11. A judge excludes unlawfully obtained evidence from criminal proceedings, thus making it pointless for police to obtain evidence by improper means. Consequently, the exclusionary rule decreases the number of violations committed by law-enforcement authorities in the course of investigations.

12. This deterrent doctrine was explicitly indicated in the case of Elkins v. United States [3] , in which the Supreme Court stated that the admission of unlawfully obtained evidence by a federal court had served to defeat the State’s effort to assure obedience to the Constitution. “...if it is understood that the fruit of an unlawful search by state agents will be inadmissible in a federal trial, there can be no inducement to subterfuge and evasion”. In other words, exclusion of illegally obtained evidence is an important way to eliminate any motivation to violate the law. The rights of the accused in future cases are thus protected.

13. In the same case the US Supreme Court referred to another rationale for the application of exclusionary rules, namely the integrity of the justice system. It quoted Justice Holmes’ viewpoint, expressed in Olmstead v. United States [4] : “no distinction can be taken between the Government as prosecutor and the Government as judge... In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means - to declare that the Government may commit crimes in order to secure the conviction of a private criminal - would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.”

14. Or, as was stated much later, “by admitting unlawfully seized evidence, the judiciary becomes a part of what is, in fact, a single governmental action” [5] . It is clear that the courts should not be perceived as forgiving serious breaches of the law – their legitimacy must be preserved, and a strict position by them, refusing to benefit from lawlessness by the police, safeguards the general public. As argued, the goal of preserving the legitimacy of the justice system may trump the goal of factual accuracy, because it is legitimacy, rather than truth finding, which is the ultimate goal of the process [6] .

15. This Court has also expressed its position on the moral incompatibility of using evidence obtained “as a result of acts of violence or brutality” with judicial integrity - “Any other conclusion would only serve to legitimate 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 ..., to “afford brutality the cloak of law” (see Jalloh v. Germany [GC], no. 54810/00, § 105, ECHR 2006 ‑ IX). “Indeed, there is also 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 , cited above, § 175).

16. The nature of the underlying rationale for the exclusion of illegally obtained evidence – be it deterrence or the integrity of the judicial system – serves as the basis for taking the same approach to the exclusion of evidence that might have been obtained as a result of ill-treatment, but where the relevant complaints were not properly addressed and thus the purity of the source of evidence remains uncertain.

17. The same purpose, that of avoiding judicial complicity with police illegality, whilst it concerns unlawful indifference by the police to complaints of ill-treatment, serves as a basis for barring evidence which the accused claims to be a result of ill-treatment, and doubts about that were not removed. Equally, the courts should not encourage any further failure to shed light on the circumstances of an alleged breach of Article 3 in the hope of preserving important evidence for a future trial. So doing, they might be seen as sanctioning illegal passivity on the part of the investigative authorities. Evidence obtained in a doubtful manner cannot be accepted without an impact on the moral authority and integrity of the judicial system.

18. The present judgment is a clear indication to the domestic courts that they must suppress not only evidence which is established to have been obtained as a result of ill-treatment, but must also discount any evidence where such treatment is prima facia alleged but cannot be proved on account of the police’s reluctance to conduct an effective investigation in this respect. Otherwise the admission of evidence – where there are unresolved doubts that it may have been obtained in breach of the most fundamental value of the Convention – undermines the integrity of the justice system and public confidence in it.