CONCURRING OPINION OF JUDGE BIANKU

I agree with the conclusions of the Chamber that there has been a violation of Article 3, in both its substantive and procedural aspects, as regards the first applicant and a violation of Article 6 § 1 of the Convention as regards the first and second applicants (points 4, 5 and 7 of the operative provisions of the judgment). However, with regret, I am unable to agree with the reasoning of my learned colleagues on two related issues in this case .

A. Whether torture was used against the first applicant?

The first applicant, Mr Kaçiu, was arrested on 18 April 2000. He alleged that one day later, on 19 April 2000, he was questioned by a prosecutor and made statements incriminating the second applicant because of the force used against him by police officers that same day. On 20 April 2000 he was allegedly carried by police officers into the court room. The allegation that force had been used against him is confirmed by the record of the hearing of the same date (paragraphs 11-14 of the judgment). Regrettably, to say the least, it does not seem that these allegations were examined by the Albanian authorities, despite the plea of the first applicant ’ s court-appointed lawyer. In view of these elements, there is no doubt that there has been a procedural violation of Article 3 of the Convention in respect of the first applicant and I agree with the conclusions of the Chamber in this connection.

Has there been a substantive violation of Article 3 as well? The Government did not react to the allegations of the applicant and of his lawyer about the use of force by police officers on 19 April 2000, nor did they give any explanation whatsoever for the marks on the first applicant ’ s body and his state of health in the court room on 20 April 2000.

In determining whether a particular form of treatment reaches the general threshold of Article 3, the Court has adopted the standard of proof “beyond reasonable doubt” adding that “such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact” (see Ireland v. the United Kingdom , 18 January 1978, § 167, Series A no. 25). Ever since that judgment, the Court has repeatedly confirmed that “in order for ill-treatment to fall within the scope of Article 3 it must attain a minimum level of severity. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim”. The Court has added that “further factors include the purpose for which the treatment was inflicted together with the intention or motivation behind it ..., as well as its context, such as an atmosphere of heightened tension and emotions” (see Gäfgen v. Germany [GC], no. 22978/05, § 88, ECHR 2010). All of these principles, together with the purposive element characterising torture, have been clearly underlined in paragraphs 87-93 of the Chamber judgment in the inst ant case .

For me, the problem lies in the way the Chamber applied these general principles in the concrete case. First of all, the judgment accepts “the lack of any description of the injuries sustained” by the first applicant (paragraph 95 of the judgment). Further on in the same paragraph it is suggested that the first applicant ’ s allegations “created a presumption of fact that the applicant had been subjected to ill-treatment proscribed by Article 3 at the hands of State agents”. Given that these allegations were not investigated by the authorities, the Chamber rightly finds a violation of the procedural limb of Article 3. The fact that no medical or other evidence was provided led to the conclusion that these allegations remained a mere “presumption of fact”. Subsequently, one finds in the judgment the expressions “inferences can be drawn” that the treatment was intentional (paragraph 98 of the judgment), or “most likely” for assessing the length of the ill-treatment, its nature and even the purposive element. I am not convinced that this analysis is compatible with the “proof beyond reasonable doubt” requirement. In a situation where the first applicant has not specifically complained of torture, and such has not been established at national level or from any other source (paragraph 91 of the judgment), for our Court to jump in and to conclude that the applicant had been tortured produces, to my mind, an extremely far-reaching and unsafe conclusion. The standard of proof, namely “ beyond reasonable doubt ” , and the related evidentiary considerations set out above, must, in my opinion, be very carefully applied when it comes to allegations of torture – the gravest form of treatment proscribed by Article 3 – and therefore cannot be established by presumption, inference nor likeliness (compare with Selmouni v. France [GC], no. 25803/94, §§ 91-106, ECHR 1999 ‑ V; Gäfgen , cited above, § 94; Dedovskiy and Others v. Russia , no. 7178/03, §§ 39-50, 59-61 and 80-86, ECHR 2008 (extracts); Savitskyy v. Ukraine, no. 38773/05 , §§ 15-18 and 129-139, 2 6 July 2012 ; Virabyan v. Armenia , no. 40094/05 , §§ 17-29 and 31 , 2 October 2012; and, Lenev v. Bulgaria , no. 41452/07 , § § 111-18 , 4 December 2012 ).

I also wonder whether the judgment in this case sends the wrong message, namely that simple allegations of ill-treatment by applicants, as long as they have not been investigated at national level - with the result that there is a violation of the procedural limb of Article 3 - automatically lead to a substantive violation of Article 3 on account of torture?! My reading of the case-law of this Court is that, in such cases, the failure of the authorities to provide a plausible explanation for injuries sustained by a person under their control leads to a conclusion that there has also been a substantive violation of Article 3 (see, among others, Tomasi v. France , 27 August 1992, §§ 108-11, Series A no. 241 ‑ A; Ribitsch v. Austria , 4 December 1995, § 34, Series A no. 336; and, Selmouni , cited above, § 87). However, in order to ascertain whether torture has been used, the other evidentiary standards and requirements explained above must also be fulfilled. In view of our Court ’ s case-law and of the factual circumstances of this case, I am unable to conclude that the applicant was tortured, although I fully agree that there has been a substantive violation of Article 3 of the Convention [1] .

B. Whether there has been violation of Article 6 § 1 of the Convention regarding the first and second applicants because of the use of acts contrary to Article 3 against the first applicant?

In view of my first point that torture has not been established in the first applicant ’ s case, but an unspecified violation of the substantive limb of Article 3, I turn now to my second point: whether there has been a violation of Article 6 § 1 in relation to the first and second applicants because of the use of force, not qualified as torture, against the first applicant.

The question of the use of evidence obtained in circumstances contrary to Article 3 of the Convention has been the subject of several judgments of this Court. Quoting Gäfgen (cited above, §§ 165-66), the Chamber judgment reiterates that “particular considerations apply in respect of the use in criminal proceedings of evidence obtained in breach of Article 3. Thus, the admission of statements obtained as a result of torture or of other ill-treatment in breach of Article 3 as evidence to establish the relevant facts in criminal proceedings renders the proceedings as a whole unfair, irrespective of the probative value of the statements and irrespective of whether their use is decisive in secur ing the defendant ’ s conviction” (paragraph 117 of the judgment) .

But must the treatment be qualified as torture before a violation of Article 3 can also lead to a violation of Article 6 § 1 of the Convention? Two Grand Chamber judgments have either left open the question whether the use of real evidence obtained by an act classified as inhuman and degrading treatment, but falling short of torture, always rendered a trial unfair ( Jalloh v. Germany [GC], no. 54810/00, §§ 106-07, ECHR 2006 ‑ IX) or avoided answering directly the question in general terms, due to the particular circumstances of the case and the lack of a causal link between the prohibited methods of investigation and the applicant ’ s conviction and sentence ( Gäfgen , cited above, § 180). As in the joint dissenting opinion in the Gäfgen judgment of several Judges of that Grand Chamber composition, I would reiterate that “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 [2] .”

In my opinion, regardless of the qualification of the proscribed treatment in finding a substantive violation of Article 3 of the Convention, a violation of Article 6 § 1 of the Convention should have been found in this case in relation to the first and second applicants. This is more so because, unlike in Gäfgen (cited above, §§ 32 and 147), no subsequent statements were made by the first applicant confirming in court the incriminating statements made by him earlier in custody. On the contrary, the first applicant insisted that these statements had been obtained from him as a result of the use of force (paragraphs 28, 31, 33 and 49 of the present judgment). This is all the more so in a situation where the allegations of the first applicant about being subjected to treatment contrary to Article 3 of the Convention met with the total silence and passivity of the Albanian authorities, notwithstanding their procedural obligations under Article 3 and their awareness of the allegations including at the time of the criminal proceedings against the two applicants. In my opinion, especially in such case where the first applicant made statements incriminating the second applicant, we should have asked ourselves whether, leaving aside the issue of torture, a lesser form of ill-treatment proscribed by Article 3 used against the first applicant in order to obtain those statements may be sufficient for concluding that the fairness of the second applicant ’ s trial was compromised on account of their use. In my view, the Chamber should have opted for a broader application of the scope of the exclusionary rule in respect of evidence obtained as a result of a breach of Article 3. This would also have led to a clarification of our case-law on the matter [3] and would have strengthened the consistenc y of its application.

The choice of the majority, seen from the perspective of the facts of the present case, discloses another problem. As already pointed out in the above-mentioned partly dissenting opinion in the Gäfgen judgment, it would be difficult for a Court that has accepted that the absence of a lawyer in the initial stages of an investigation renders the entire trial unfair ( Salduz v. Turkey [GC], no. 36391/02, 27 November 2008), to limit the scope of the exclusionary rule only to evidence obtained by torture. Or, to put it differently, not to have the courage to broaden the scope of the exclusionary rule so as to cover all evidence obtained in violation of Article 3. The facts of the present case offered the Court the advantage, or indeed the disadvantage, of having both Salduz and Gäfgen elements. While the Chamber in paragraph 120 of the judgment accepts that the absence of a lawyer in the initial stages of the proceedings against the first applicant rendered the entire trial unfair, according to the Salduz principle, it seems to require the impugned acts to be qualified as torture in order to conclude that there has been a violation of the fair trial guarantee. Does this mean that the Salduz principle is more stringent that the Jalloh or Gäfgen one? This would be difficult, if not impossible, to assert considering the nature of the Articles in play, Article 6 guaranteeing non-absolute rights on the one hand and, on the other hand, Article 3 and its absolute character.

For the above reasons, I believe that the Chamber should have found a violation of Article 6 § 1 of the Convention without having to reach, as a preliminary matter, a conclusion that the first applicant had been subjected to torture, which I consider to be an unsafe conclusion on the facts of the case. The fact that the first applicant was ill-treated contrary to Article 3 would have been of itself sufficient to ground a breach of Article 6 in respect of both applicants. This solution would not have changed anything for the applicants, but it would have produced a result which would have been clearer and more consistent with our case-law under Articles 3 and 6 .

[1] 1. The Court has consistently found general violations of the substantive limb of Article 3 in several cases without specifying the form of ill-treatment suffered (see, among others, Taraburca v. Moldova , no. 18919/10, §§ 48-53, 6 December 2011; and Yusuf Gezer v. Turkey , no. 21790/04 , §§ 31-33, 1 December 2009).

[2] 2 . See paragraph 2 of the Joint Partly Dissenting Opinion of Judges Rozakis, Tulkens, Jebens, Ziemele, Bianku and Power in the Gäfgen judgment. See also paragraph 3.2 of the Dissenting Opinion of Judge Cabral Barreto in the Grand Chamber judgment in the case of Bykov v. Russia [GC], no. 4378/02, 10 March 2009).

[3] 3. For judgment accepting the exclusionary rule in cases where the violation of Article 3 ha not been qualified as torture, see Hulki GüneÅŸ v. Turkey , no. 28490/95, ECHR 2003 ‑ VII (extracts); Söylemez v. Turkey , no. 46661/99, 21 September 2006; and, Göçmen v. Turkey , no. 72000/01, 17 October 2006 .