SEPARATE CONCURRING OPINION OF JUDGE DE GAETANO

1. While I agree with the five heads of the operative part of the judgment, I regret that the reasons advanced, and the muted language used, in §§ 62-69 do not do justice to the gravity of the violation in this case.

2. In this case there is not simply a violation of Article 6 § 1, but a “flagrant denial of justice” in the sense described in § 259 of the judgment of 17 January 2012 in the case Othman (Abu Qatada) v. the United Kingdom (no. 8139/09). Like Article 2, Article 3 lies at the very core of the Convention – indeed, in some sense it can be considered as even more “fundamental” than Article 2 since, unlike Article 2, it admits of no exceptions or qualifications. Even in time of emergency, no derogation can be made to Article 3 (see Article 15 § 2). As was emphasised in El Haski v. Belgium (no. 649/08), the use in criminal proceedings of statements obtained as a result of a violation of Article 3, irrespective of the classification of the treatment as torture, inhuman or degrading treatment, renders the proceedings as a whole automatically unfair and in breach of Article 6 (and this applies also for the use of real evidence obtained as a direct result of acts of torture – if the real evidence is obtained as a result of acts which are in breach of Article 3 but which fall short of torture, there would be a breach of Article 6 only if that real evidence had a bearing on the outcome of the proceedings against the defendant) (see § 85 of El Haski ). The necessity for this stringent automaticity was explained in Othman (Abu Qatada) at § 264. It is true that in that case Article 3 was being considered specifically in the context of torture, and of statements extracted under torture, but to my mind the same reasoning applies if statements are extracted under duress amounting to inhuman or degrading treatment. Admitting statements – whether made by the accused or by third parties – obtained in these circumstances “would only serve to legitimate indirectly the sort of morally reprehensible conduct which the authors of Article 3 of the Convention sought to proscribe” ( ibid. )

3. In the instant case, it has been clearly established that the statements had been obtained from the defendant in breach of Article 3. The Riga Regional Court said so in its judgment of 11 October 2004 (see § 33). This was confirmed by the executive branch of Government in its letter of 20 October 2011 to the Court admitting the breach of Articles 3 and 13 (see Cēsnieks v. Latvia (dec.) (partial striking out), no. 9278/06, § 32, 6 March 2012). The Supreme Court was of a different persuasion. The pons asinorum appears to have been the distinction between the truthfulness of the applicant’s statements (see § 40) and their admissibility or inadmissibility as evidence (see § 41). Now, it is true that at the time when the Supreme Court pronounced itself (for the first time) on 26 April 2005 , there was as yet in force no provision to the effect that evidence obtained through ill-treatment would be inadmissible (§ 49). However the 2005 Criminal Procedure Law had been adopted on 21 April 2005 , even though it was to come into force only on 1 October 2005. The Supreme Court (like the Senate of that court which later dismissed a further appeal on formalistic grounds, § 45) must have been aware of the provisions of the new section 130 of that law. Nevertheless it forged ahead with its decision of 26 April 2005, in effect riding roughshod over the applicant’s fundamental human rights. I find that extraordinary.

4. Even more extraordinary, however, is the fact that with all the above as a backdrop to this case, and with the applicant serving a sentence of eleven years’ imprisonment plus confiscation of property (§ 42), the respondent Government saw fit to contest the Article 6 violation as regards the use of evidence. Inconsistency of behaviour verging on the pathological is clearly not the prerogative of physical persons.

[1] In some parts the text is not visible on the copy.

[2] In some parts the text is illegible or is not visible on the copy. It also appears that the date of 22 March was written on top of the date of 21 March.

[3] In some parts the text is not visible on the copy.

[4] In some parts the text is not visible on the copy.