DISSENTING OPINION OF JUDGE KALAYDJIEVA

T o my regret, I am unable to join the majority ’ s conclusions concerning the applicant ’ s status as a victim of coercion and the fairness of the criminal proceedings. Both issues are relevant to the privilege not to incriminate oneself, which “lie[s] at the heart of the notion of a fair procedure under Article 6 ... [Its] rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities ... ” ( Saunders v. the United Kingdom , judgment of 17 December 1996, Reports of Judgments and Decisions 1996 ‑ VI, § 68). In my view the majority ’ s conclusions deviate from the established case-law of the Convention institutions on the standards of protection against violations of Article 3, in finding for the first time that the use of evidence obtained in violation of this provision did not affect the fairness of the criminal proceedings .

Improper coercion in relation to criminal accusations should be distinguished from any other forms of ill-treatment on account of its specific aims – self-incrimination – and its result – an unfair trial – which are also contrary to the Convention.

What remedies should be considered appropriate to afford relief to the victim of an acknowledged violation of Article 3 in the present case? As coercion with a view to self-incrimination is aimed at influencing the proceedings, in my view effective protection in such cases must involve guarantees and, where appropriate, effective remedies not only in respect of the prohibited treatment suffered, but also in respect of its possible effect on the fairness of the proceedings.

In the present case the national authorities acknowledged that the applicant ’ s will was subjected to coercion, amounting to a violation of Article 3. They declared that both his subsequent statements and his other self-incriminatory acts had been influenced by the lasting effect of this treatment, namely fear of torture. In these circumstances the prosecution of the police officers responsible and the possibility for the applicant to obtain compensation may be seen as a remedy only for the direct effect of the ill-treatment suffered. As compared to an effective opportunity to challenge evidence obtained in this manner, this remedy n either aim s at healing the achieved aim of coercion – self-incrimination – nor does it lead to any “result obtained from [its] us[e] ” ( Scordino v. Italy (no. 1) [GC], no. 36813/97, § 192 , ECHR 2006 ‑ V) as regards the possible effect – an unfair trial .

The applicant was deprived of the procedural guarantee provided explicitly by the national law: the requirement of a special warning about the consequences of acts resulting from coercion. His lawyer ’ s efforts to advise him on the meaning of threats and self-incrimination were in vain. In my view the applicant ’ s opportunity to challenge the evidence obtained

and have it declared inadmissible failed to meet the essential requirements for the protection of his rights. The Frankfurt Regional Court declared that this evidence was “tainted” by coercion. However, only “ statements [as compared to other evidence] obtained through the use of prohibited methods of interrogation could not be relied upon in the criminal proceedings against the defendant” ( see par agraphs 22-23 of the judgment ) . The national court went to reason this decision:

“Balancing the severity of the interference with the defendant ’ s fundamental rights – in the present case the threat of physical violence – and the seriousness of the offence he was charged with and which had to be investigated – the completed murder of a child – makes the exclusion of evidence which has become known as a result of the defendant ’ s statement – in particular the discovery of the dead child and the results of the autopsy – appear disproportionate.” (see paragraph 27)

The case-law of the Court makes no distinction between statements and evidence obtained through coercion . In the recent judgment in Saadi v. Italy [GC] (no. 37201/06, §§ 139-140, ECHR 2008 ‑ ... ) the Grand Chamber reaffirmed that balancing the “risk” or level of severity of ill-treatment and the “dangerousness to the community” is misconceived as “[ i ]t amounts to ascertaining that ... protection of national security justifies accepting more readily a risk of ill-treatment for the individual”. The values of a fair trial and the absolute prohibition of ill-treatment cannot be graded or weighed against each other. This approach seems equally unable to serve as an effective remedy in cases of acknowledged coercion to bring about self-incrimination and its effect on the right to a fair trial .

W here evidence obtained by coercion has been used, a finding that the applicant has lost his victim status merely as a result of the prosecution of the officers responsible may be interpreted as legitimi s ing coercion as a method of obtaining evidence in criminal proceedings . It may justify and encourage violations of the prohibition of torture and inhuman or degrading treatment in the name of justice.

The Court has never accepted that a mere payment of compensation could remove the victim status of a person subjected to ill-treatment, because that would encourage a “pay-and-torture” policy in cases “of importance”. I believe that the approach of the national courts in the present case is dangerous for a similar reason: the authorities may be tempted to extract evidence in violation of Article 3, where the price of punishing an officer and paying compensation is judged to be acceptable compared to the benefit to be reaped, namely securing the suspect ’ s conviction in a difficult case.

It is true that the Court sees the regulations on the (in)admissibility of evidence as falling within the discretion of the national authorities. Yet the Court has never failed to declare criminal proceedings unfair where evidence obtained in violation of Article 3 was used.

The respondent Government point out that “[n]either the Convention nor public international law prohibit the use at the trial of items of evidence (as opposed to the confession itself) obtained by treatment proscribed by Article 3” ( see para graph 91 of the judgment ) . It seems that the discussion of the applicability of the doctrine of “the fruit of the poisonous tree” is of a rather theoretical nature in the present circumstances. The facts indicate that the applicant not only made self-incriminatory statements. Accompanied by numerous police officers, he directly indicated the corpse of the child and, later on the same morning, other substantial self-incriminatory evidence. I have no reason to doubt that “it was more than likely that J. ’ s corpse and further items of evidence would have been found at a later stage anyway” (see paragraph 92) , but in my view it is not for the Court to speculate on this. In analysing the effective exercise of the right not to incriminate oneself, the Court must determine whether “the prosecution in a criminal case s[ought] 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” . It is not contested that the impugned “evidence [was] obtained through methods of coercion ... in defiance of the will of the accused” and used at the criminal trial. The applicant ’ s ineffective opportunities to challenge th e use of this evidence were discussed above.

As to the extent of this use of evidence, t he majority agreed that “the applicant ’ s new confession at the trial ... was the essential basis [ for finding him guilty], whereas ... the impugned real evidence [was] of an accessory nature and [was] only used to test the veracity of this confession. As the applicant had fully confessed and incriminated himself by his statements, the accessory evidence could even be said not to have been used to his detriment” (see paragraph 106 of the judgment).

It is not for the Court to speculate on the different possible scenarios if the applicant had chosen to behave differently and exercised his right to remain silent at the trial stage. I fail to share any confidence in his sincere intentions to confess , after first seeking a ruling on the inadmissibility of the impugned evidence. Moreover, according to the national law , his mere confessions could not be used or would at least have be en insufficient to find him guilty of premeditated murder without testing their veracity against the impugned evidence. [T] he Regional Court “stress[ ed ] the crucial importance of the applicant ’ s confession for its findings concerning the execution of his offence, which might otherwise have led to only a less serious offence being proved ” (see paragraph 107 of the judgment). In this regard t he majority also observed that “according to the evidence before the Regional Court , even without his confession ... , there had been ample evidence to prove the applicant guilty at least of kidnapping with extortion” (see paragraph 106). It appears that the use of the impugned evidence was of crucial importance in support of the charges, which were reclassified from kidnapping to premeditated murder as a result of the applicant ’ s statements at the investigation stage. There is a difference between the punishment prescribed for kidnapping and the one for premeditated murder, in respect of which the applicant was sentenced. Indeed, the applicant now b ears full responsibility for his terrible crime , as he stated he wished to. In view of the proceedings described, I believe that he was also held responsible and punished for his self-incriminatory acts carried out under coercion.

I n the present case the majority used the approach of assessment and balance, similar to the one applied to complaints of an unfair trial as a result of violations of the rights under Article 8 of the Convention. Given the absolute prohibition in Article 3, I believe that in so far as the use of evidence obtained as a result of an acknowledged violation of Article 3 is established by the national authorities, the Court should not be required to perform a further assessment of the extent and manner in which the fairness of the proceedings was affected. The very fact that such evidence was used seems to me sufficient to find a violation of the right not to incriminate oneself.

A victim ’ s opportunity to challenge and, where appropriate, to effectively prevent the use of such evidence in criminal proceedings cannot be a part of a balancing test between the severity of the ill-treatment and the person ’ s dangerousness for the purposes of a fair trial. The existence of such opportunities should be regarded as an issue relating to exhaustion of domestic remedies for the purposes of admissibility of the complaints and to the duties of the signatory States to the Convention under Article 13. Where , as in the present case, the domestic remedies failed to exclude the use of such evidence and its effect on the outcome of the criminal proceedings, the prosecution can not be seen to be “ seeking 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” . Such recourse should lead to conclusions as regards the presumption of innocence and the fair ness of the criminal trial. The majority ’ s approach risks introducing into the Court ’ s jurisprudence the practice of reassessment of a violation of Article 3 that has already been established. More importantly, this approach is capable of undermining the absolute character of the prohibition in Article 3 and of opening the way for calculation of the appropriate extent of admissible coercion and its use in relation to particular accusations , contrary t o the principles of a fair trial.

I am far from having any symp athy with the applicant ’ s acts and I shar e the grave concerns raised by the terrible crime against an innocent child . T o my regret , however, I am unable to share the conclusions of the majority on the applicant ’ s continuing victim status and the fairness of the proceedings in his case. Given the insufficient protection of his right not to incriminate himself, in my view he continued to be a victim of coercion, which affected the fairness of the criminal proceedings against him. In my view an opportunity for the applicant to have a retrial should be capable of correcting both these defects.