EHRM, 01-06-2010, nr. 22978/05

On 9 April 2003, the first day of the hearing, the applicant, represented by counsel, made a preliminary application for the proceedings to be discontinued. The basis of his claim was that during interrogation and prior to confessing he had been threatened by detective officer E. with being subjected to severe pain and sexual abuse. He argued that this treatment had been in breach of Article 136a of the Code of Criminal Procedure (see paragraph 61 below) and Article 3 of the Convention and warranted the discontinuation of the proceedings against him.

The applicant also lodged an alternative preliminary application seeking a declaration that owing to the continuous effect (Fortwirkung) of the threat of violence against him on 1 October 2002, all statements which he had made to the investigation authorities should not be relied upon in the criminal proceedings. Moreover, the applicant sought a declaration that on account of the violation of Article 136a of the Code of Criminal Procedure, the use in the criminal proceedings of all items of evidence, such as the child's corpse, which had become known to the investigation authorities because of the confession extracted — the so-called ‘fruit of the poisonous tree’ — was prohibited (‘Fernwirkung’).

In response to the first preliminary application the Frankfurt am Main Regional Court on 9 April 2003 dismissed the applicant's application for the discontinuation of the criminal proceedings. The court noted that in the applicant's submission, detective officer E. had threatened that a specialist was on his way to the police station by helicopter who, without leaving any traces, would inflict on him intolerable pain the likes of which he had never before experienced, if he continued to refuse to disclose J.'s whereabouts. To underpin the threat, E. had imitated the sound of the rotating blades of a helicopter. E. had further threatened that the applicant would be locked up in a cell with two big ‘Negroes’ who would anally assault him. He would wish that he had never been born. The court found as a fact that the applicant had been threatened with the infliction of considerable pain if he refused to disclose the victim's whereabouts. However, the court did not find it established that the applicant had also been threatened with sexual abuse or had been otherwise influenced. The threat to inflict pain upon the applicant had been illegal pursuant to Article 136a of the Code of Criminal Procedure, and also pursuant to Article 1 and Article 104 § 1 of the Basic Law (see paragraphs 59–60 below) and in violation of Article 3 of the Convention.

However, notwithstanding this breach of the applicant's constitutional rights the court found that the criminal proceedings were not, in consequence, barred and could proceed. It found that the use of the investigation methods in question, though prohibited in law, had not so restricted the rights of the defence that the criminal proceedings could not be pursued. In view of the seriousness of the charges against the applicant on the one hand, and the severity of the unlawful conduct during investigation on the other, there had not been such an exceptional and intolerable violation of the rule of law as to bar the continuation of the criminal proceedings.

In response to the applicant's second preliminary application the Frankfurt am Main Regional Court found that in accordance with Article 136a § 3 of the Code of Criminal Procedure, all confessions and statements hitherto made by the applicant before the police, a public prosecutor and a district court judge were inadmissible as evidence in the criminal proceedings because they were obtained through the use of prohibited methods of interrogation.

The court found that on 1 October 2002 detective officer E. had used prohibited methods of interrogation within the meaning of Article 136a § 1 of the Code by threatening the applicant with intolerable pain if he did not disclose the child's whereabouts. Therefore, any statements which the applicant had made as a consequence of this forbidden investigative measure were inadmissible as evidence. This exclusion of evidence (Beweisverwertungsverbot) did not only comprise the statements made immediately after the unlawful threat. It covered all further statements which the applicant had made to the investigation authorities since that date in view of the continuous effect of the violation of Article 136a of the Code.

The procedural irregularity caused by the use of a prohibited method of investigation could only have been remedied if the applicant had been informed before his subsequent questioning that his earlier statements made as a consequence of the threat of subjection to pain could not be used as evidence against him. However, the applicant had only been instructed about his right not to testify, without having been informed about the inadmissibility of the evidence that had been improperly obtained. He had therefore not been given the necessary ‘qualified instruction’ (qualifizierte Belehrung) before making further statements.

However, the court limited the inadmissible evidence to the aforesaid statements. It went on to dismiss the applicant's application for a declaration that on account of the prohibited investigation methods, the use in the criminal proceedings of all items of evidence, such as the child's corpse, which had become known to the investigation authorities as a consequence of the statements extracted from the applicant ought to be excluded from trial (‘Fernwirkung’). The court found:

Following the above ruling on the applicant's preliminary applications made on the opening day of the trial, the proceedings continued. The next day, in his statement on the charges, the applicant admitted having killed J., but stated that he had not initially intended to do so. His defence counsel submitted that by confessing, the applicant wanted to take responsibility for his offence notwithstanding the interrogation methods used on 1 October 2002. As the trial proceeded, all further items of evidence found as a consequence of the applicant's original statement and which the applicant sought to have excluded were adduced. At the close of the trial on 28 July 2003 the applicant admitted that he had also intended from the outset to kill the child. He described his second confession as ‘the only way to accept his deep guilt’ and as the ‘greatest possible apology for the murder of the child’.

On 28 July 2003 the Frankfurt am Main Regional Court convicted the applicant, inter alia, of murder and kidnapping with extortion causing the death of the victim. It sentenced him to life imprisonment and declared that his guilt was of particular gravity, warranting a maximum sentence (see paragraph 63 below).

The court found that at the hearing the applicant had been instructed anew about his right to remain silent and about the fact that none of his earlier statements could be used as evidence against him and had thereby been given the necessary qualified instruction. However, the applicant had, following the qualified instruction, confessed that he had kidnapped and killed J. His statements at the trial concerning the planning of his offence formed the essential, if not the only, basis for the court's findings of fact. They were corroborated by the testimony of J.'s sister, the blackmail letter and the note concerning the planning of the crime found in the applicant's flat. The findings of fact concerning the execution of the crime were exclusively based on the applicant's confession at the trial. Further items of evidence showed that he had told the truth also in this respect. These included the findings of the autopsy as to the cause of the child's death, the tyre tracks left by the applicant's car near the pond where the child's corpse had been found, and the discovery of money from the ransom which had been found in his flat or paid into his accounts.

In assessing the gravity of the applicant's guilt, the court observed that he had killed his eleven-year-old victim and demanded one million euros in ransom in order to preserve his self-created image of a rich and successful young lawyer. It did not share the views expressed by the Public Prosecutor's Office and the private accessory prosecutors that the applicant's confession ‘was worth nothing’ as the applicant had only confessed to what had in any event already been proven. The fact that the applicant had volunteered a full confession at the trial, even though all his earlier confessions could not be used as evidence pursuant to Article 136a § 3 of the Code of Criminal Procedure, was a mitigating factor. However, even without his confession, the applicant would have been found guilty of kidnapping with extortion causing the death of the victim. The applicant had been kept under police surveillance after he had collected the ransom, which had later been found in his flat or paid into his accounts. Furthermore, it was proved by the autopsy on J.'s corpse that the boy had been suffocated, and tyre tracks left by the applicant's car had been detected at the place where J.'s body had been found.

The court further observed that in questioning the applicant, methods of interrogation prohibited under Article 136a of the Code of Criminal Procedure had been employed. Whether and to what extent detective officer E. and the deputy chief of the Frankfurt police, D., were guilty of an offence because of these threats had to be determined in the criminal investigations then pending against them. However, their allegedly illegal acts did not mitigate the applicant's own guilt. The misconduct of police officers, belonging to the executive power, could not prevent the judiciary from assessing findings of fact in accordance with the law.

Materials before the Court show that there is no clear consensus in the States Parties to the Convention on the scope of the exclusionary rule.

The United Nations Human Rights Committee stated in its General Comment No. 7 on torture or cruel, inhuman or degrading treatment or punishment (Article 7 of the ICCPR) of 30 May 1982:

General Comment No. 7 concerning prohibition of torture and cruel treatment or punishment was replaced by General Comment No. 20 of 10 March 1992. In the latter, it is stated:

The Committee against Torture, which monitors the implementation of the United Nations Convention against Torture, recommended in its Concluding Observations on Germany of 11 May 1998 (doc. no. A/53/44) that ‘further legislative attention be paid to the strict enforcement of article 15 of the Convention and that all evidence obtained directly or indirectly by torture be strictly prevented from reaching the cognizance of the deciding judges in all judicial proceedings’ (see § 193).

The prohibition on using, in any manner prejudicial to the accused, information derived from facts learned as a result of the unlawful acts of State agents (the so-called doctrine of the fruit of the poisonous tree) is firmly rooted in the legal tradition of the United States of America (see, for instance, U.S. Supreme Court, no. 82-651, Nix v. Williams, decision of 11 June 1984, 467 U.S. 431 (1984), pp. 441 et seq.; U.S. Supreme Court, no. 82-5298, Segura v. United States, decision of 5 July 1984, 468 U.S. 796 (1984), pp. 796–97 and 815; and U.S. Supreme Court, no. 07-513, Herring v. United States, decision of 14 January 2009, 555 U.S. … (2009), part II. A. with further references). The prohibition applies to information obtained from coerced confessions (see on the issue of coercion U.S. Supreme Court, no. 50, Blackburn v. Alabama, decision of 11 January 1960, 361 U.S. 199, pp. 205–207, and U.S. Supreme Court, no. 8, Townsend v. Sain, decision of 18 March 1963, 372 U.S. 293 (1963), pp. 293 and 307–309), meaning that if the confession leads to additional evidence, such evidence is also inadmissible in court in addition to the confession itself (compare Nix, cited above, p. 441, and Segura, cited above, p. 804). The evidence is to be excluded, however, only if the illegality is the proximate cause of the discovery of the evidence. In other words, evidence will be excluded if it can be shown that ‘but for’ the illegal conduct it would not have been found. The exclusionary rule does not apply where the connection between the illegal police conduct and the discovery of the evidence is so remote as to dissipate the taint. This is the case, for example, where the police relied on an independent source to find the evidence (see Nix, cited above, pp. 441–44, and Segura, cited above, pp. 796–97, 804–05 and 815 with further references) or where the evidence would ultimately or inevitably have been discovered even had no violation of any constitutional provision taken place (see Nix, cited above, pp. 441–44).

The exclusionary rule is also applied in other jurisdictions. The Supreme Court of Appeal of South Africa found in its recent judgment of 10 April 2008 in the case of Mthembu v. The State, case no. 379/2007, [2008] ZASCA 51:

The Chamber considered that the applicant had been threatened by detective officer E. on the instructions of the deputy chief of the Frankfurt am Main police, D., with physical violence causing considerable pain in order to make him disclose J.'s whereabouts. It found that further threats alleged by the applicant or alleged physical injuries inflicted during the interrogation had not been proved beyond reasonable doubt. Having regard to all the circumstances of the case, the Chamber characterised this threat of violence as inhuman treatment prohibited by Article 3.

The Chamber considered that the applicant could no longer claim to be the victim of a violation of Article 3. It found that the domestic courts had expressly acknowledged, both in the criminal proceedings against the applicant and in the criminal proceedings against the police officers D. and E., that the applicant's treatment during his interrogation by E. had violated Article 3. Moreover, the applicant had been afforded sufficient redress for this breach at national level. The two police officers involved in threatening him had been convicted and punished and had suffered prejudice in their careers. In the circumstances of the present case, these convictions had to be considered sufficient in affording redress in a manner other than by way of monetary compensation. Furthermore, the use of the proscribed methods of investigation had resulted in sanctions in that none of the applicant's pre-trial statements had been admitted into evidence at his trial.

The Government objected before the Grand Chamber that the applicant had failed to exhaust domestic remedies for the same reasons as those they had relied on in the proceedings before the Chamber. They submitted, firstly, as regards the applicant's claim that his criminal trial had been unfair as it should have been discontinued on account of the threats against him, that the Federal Constitutional Court had declared his constitutional complaint inadmissible for failure to provide sufficient substantiation. It had been up to the applicant to explain why constitutional law did not only require the exclusion of the statements made during the questioning by the police, but also the discontinuation of the proceedings.

Secondly, the applicant had not exhausted domestic remedies in so far as he complained about the refusal to exclude the admission of certain items of evidence in the proceedings. As confirmed by the Federal Constitutional Court, he had failed to substantiate in detail in the proceedings before the Federal Court of Justice, as required by the applicable rules on procedure, that he was also challenging the use of the evidence found in Birstein, which was a completely different claim compared to his application to discontinue the proceedings. In particular, the applicant had not corrected the Federal Public Prosecutor's statement of 9 March 2004 which contained the latter's evaluation of the scope of the appeal on points of law to the effect that the applicant had not alleged a violation of Article 136a § 3 of the Code of Criminal Procedure.

The applicant contested this view and argued that he had exhausted domestic remedies. In his appeal before the Federal Court of Justice, he had lodged the broadest possible application, aimed at discontinuing the criminal proceedings because of the manner in which evidence had been obtained. His broad appeal had included the narrower application regarding the inadmissibility of the real evidence obtained as a result of the confession extracted from him. In lodging his appeal, he had included full copies of his preliminary applications of 9 April 2003. His appeal on points of law had been dismissed without the Federal Court of Justice furnishing any reasons.

The applicant further stressed that in his subsequent complaint to the Federal Constitutional Court, he had substantiated his claim fully, explaining in detail and with reference to leading decisions of that court how the failure to discontinue the proceedings and to exclude the impugned items of evidence had breached his rights under Articles 1 and 104 of the Basic Law.

In the applicant's submission, the admission of real evidence obtained in breach of Article 3 had rendered his criminal trial unfair in violation of Article 6. Once that evidence had been admitted, he had been deprived, entirely, of his right to defend himself. He had also been deprived of the protection afforded by the principle against self-incrimination. He claimed that the evidence recovered in Birstein and on the return journey therefrom had been obtained by the police order directly forcing him to point out its precise whereabouts. He had been obliged to walk, without shoes, through woods to the place where he had hidden J.'s corpse. The fact that his directions as to where he had hidden the corpse and its consequent discovery had been recorded on videotape demonstrated that the events at Birstein had not been about the child's rescue but about the recovery of evidence in a manner aimed at securing his conviction.

The applicant argued that the impugned real evidence had been decisive in, and not merely accessory to, securing his conviction. Though other charges would have been possible, the self-incriminating evidence obtained as a result of his extracted confession was wholly necessary for the charge of and conviction for murder. There had been no other hypothetical clean path which would have led the police to this evidence at the relevant time. Whether they would ever have found it was a matter of pure speculation.

As the trial court at the outset of the trial had rejected his application to exclude the evidence obtained in violation of Article 3, the outcome of the trial had, at that point, effectively, been determined. Every possible defence strategy, such as relying on the right to remain silent or alleging that J. had been killed accidentally or volunteering at an early stage a full confession in the hope of mitigation of sentence, had become ineffective. He had partially confessed on the second day of the trial and had only admitted to having killed J. intentionally at the end of the trial after all the impugned items of evidence which he had sought to have excluded had been adduced. Indeed, even the prosecution and the accessory prosecutors, in opposing any possibility of mitigation of sentence, had pointed out that he had only confessed to what had already been proven.

The applicant further submitted that, regardless of whether the method of interrogation was to be classified as torture or as inhuman treatment, the Convention (he referred, in particular, to the Court's judgment in the case of Jalloh, cited above) and provisions of public international law (Article 14 of the ICCPR, Articles 15 and 16 of the United Nations Convention against Torture) warranted the exclusion of all evidence obtained by means of a violation of the absolute prohibition of torture and inhuman treatment. Contrary to the view taken by the domestic courts and by the Chamber, protection of the absolute right under Article 3 could not and should not be weighed against other interests, such as the satisfaction of securing a conviction. As a matter of principle, the exclusion of the evidence in question was essential for removing all incentives for engaging in torture or ill-treatment and thus for preventing such conduct in practice.

The Government invited the Grand Chamber to confirm the Chamber's finding that there had been no violation of Article 6 §§ 1 and 3 of the Convention. As regards the way in which the impugned evidence had been obtained, they contested that the applicant had had to walk without shoes or had been subjected to further threats either in Birstein or on the return journey.

The Government accepted that the Regional Court had decided at the outset of the trial that the impugned items of evidence found in Birstein would be admitted into evidence at the trial. Nevertheless, the applicant had confirmed before the domestic courts that he had volunteered his confession at the trial out of remorse and because he wanted to take responsibility for his crime, even though he could also have remained silent or could have lied to the court. He might have changed his defence strategy in the hope that he would receive a more lenient sentence, but this decision had not been related to the use of the impugned items of evidence. It was not correct that the applicant had had no choice but to confess at the trial because, as the trial court had confirmed, it was possible that he might not have been found guilty of murder had he not confessed anew. Following a qualified instruction by the trial court, he had confessed, on the second day of his trial, and it was clear from this confession that he had killed J. intentionally. The difference between the first trial confession and the later one was comparatively minor in that the former had not included an admission that the death of J. had been part of his plan from the outset. This additional admission was not a necessary element to prove murder.

The Government underlined that the applicant's conviction had been based on the confession he had volunteered at his trial. The items of evidence secured after the journey to Birstein, such as J.'s corpse and the autopsy report thereon and the tyre tracks from the applicant's car at the pond, had been of an accessory nature only and had been used merely to test the veracity of the applicant's confession at the trial. This was clearly stated in the reasoning of the Regional Court's judgment convicting the applicant.

The Government noted that Article 6 of the Convention did not lay down any rules on the admissibility of evidence, as such, which was primarily a matter for regulation under national law. They underlined their obligation under the Convention to apply the criminal law against a murderer. The public interest in having the murderer of an abducted child convicted was of very serious weight. The Government further argued that the case-law of the United States Supreme Court, which went furthest in prohibiting the use of the ‘fruit of the poisonous tree’, needed careful analysis. In the leading case of Nix v Williams (11 June 1984 (467 U.S. 431), see paragraph 73 above), for instance, that court had held that a body found after an improper investigation could be admitted into evidence in circumstances where it would have been found in any event. It was likely in the present case that J.'s corpse, hidden at a place which the applicant had previously visited, would have been found sooner or later.

The Court reiterates that its duty, pursuant to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Schenk v. Switzerland, 12 July 1988, §§ 45–46, Series A no. 140; Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports 1998-IV; and Heglas v. the Czech Republic, no. 5935/02, § 84, 1 March 2007).

It is, therefore, not the role of the Court to determine, as a matter of principle, whether particular types of evidence — for example, evidence obtained unlawfully in terms of domestic law — may be admissible. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the unlawfulness in question and, where the violation of another Convention right is concerned, the nature of the violation found (see, inter alia, Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000-V; P.G. and J.H. v. the United Kingdom, no. 44787/98, § 76, ECHR 2001-IX; and Allan v. the United Kingdom, no. 48539/99, § 42, ECHR 2002-IX).

In determining whether the proceedings as a whole were fair, regard must also be had as to whether the rights of the defence have been respected. In particular, it must be examined whether the applicant was given an opportunity to challenge the authenticity of the evidence and to oppose its use. In addition, the quality of the evidence must be taken into consideration, as must the circumstances in which it was obtained and whether these circumstances cast doubts on its reliability or accuracy. While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see, inter alia, Khan, cited above, §§ 35 and 37; Allan, cited above, § 43; and Jalloh, cited above, § 96). In this connection, the Court further attaches weight to whether the evidence in question was or was not decisive for the outcome of the proceedings (compare, in particular, Khan, cited above, §§ 35 and 37).

As to the examination of the nature of the Convention violation found, the Court reiterates that the question whether the use as evidence of information obtained in violation of Article 8 rendered a trial as a whole unfair contrary to Article 6 has to be determined with regard to all the circumstances of the case, including, respect for the applicant's defence rights and the quality and importance of the evidence in question (compare, inter alia, Khan, cited above, §§ 35–40; P.G. and J.H. v. the United Kingdom, cited above, §§ 77–79; and Bykov v. Russia [GC], no. 4378/02, §§ 94–98, ECHR 2009-…, in which no violation of Article 6 was found). However, particular considerations apply in respect of the use in criminal proceedings of evidence obtained in breach of Article 3. The use of such evidence, secured as a result of a violation of one of the core and absolute rights guaranteed by the Convention, always raises serious issues as to the fairness of the proceedings, even if the admission of such evidence was not decisive in securing a conviction (see İçöz v. Turkey (dec.), no. 54919/00, 9 January 2003; Jalloh, cited above, §§ 99 and 104; Göçmen v. Turkey, no. 72000/01, §§ 73–74, 17 October 2006; and Harutyunyan, cited above, § 63).

Accordingly, the Court has found in respect of confessions, as such, that the admission of statements obtained as a result of torture (compare Örs and Others v. Turkey, no. 46213/99, § 60, 20 June 2006; Harutyunyan, cited above, §§ 63, 64 and 66; 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 122–24, 21 September 2006, and Göçmen, cited above, §§ 73–74) as evidence to establish the relevant facts in criminal proceedings rendered the proceedings as a whole unfair. This finding applied irrespective of the probative value of the statements and irrespective of whether their use was decisive in securing the defendant's conviction (ibid.).

As to the use at the trial of real evidence obtained as a direct result of ill-treatment in breach of Article 3, the Court has considered that incriminating real evidence obtained as a result of acts of violence, at least if those acts had to 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, in other words, to ‘afford brutality the cloak of law’ (see Jalloh, cited above, § 105). In its Jalloh judgment, the Court 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, that is, irrespective of, in particular, the weight attached to the evidence, its probative value and the opportunities of the defendant to challenge its admission and use at trial (ibid., §§ 106–07). It found a breach of Article 6 in the particular circumstances of that case (ibid., §§ 107–08).

As regards the use of evidence obtained in breach of the right to silence and the privilege against self-incrimination, the Court reiterates that these are generally recognised international standards which lie at the heart of the notion of fair procedures under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek 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 (see, inter alia, Saunders v. the United Kingdom, 17 December 1996, § 68, Reports 1996-VI; Heaney and McGuinness v. Ireland, no. 34720/97, § 40, ECHR 2000-XII; and Jalloh, cited above, § 100).

As the requirements of Article 6 § 3 concerning the rights of the defence and the principle against self-incrimination are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1, the Court will examine the complaints under those two provisions taken together (compare, among other authorities, Windisch v. Austria, 27 September 1990, § 23, Series A no. 186; Lüdi v. Switzerland, 15 June 1992, § 43, Series A no. 238; Funke v. France, 25 February 1993, § 44, Series A no. 256-A; and Saunders, cited above, § 68).

In examining whether, in the light of the above principles, the criminal proceedings against the applicant, who, from the outset, had objected to the use of evidence obtained in breach of his Convention rights, can be deemed to have been fair as a whole, the Court must consider, firstly, the nature of the Convention violation at issue and the extent to which the impugned evidence was obtained thereby. It refers to its above finding that the applicant's statement on the morning of 1 October 2002 during his interrogation by E. was extracted in violation of Article 3 (see paragraph 108 above). It further concluded that there was nothing to indicate that the applicant had been threatened for a second time by the police, at Birstein or during the journey to and from that place, in order to make him disclose real evidence (see paragraph 99 above).

The Court notes the Regional Court's finding that the applicant's statements made following the threat, including those made at Birstein and those made on the return trip to the police station, had been made under the continuous effect of the threats issued during interrogation and were therefore inadmissible (see paragraph 29 above), whereas it regarded the real evidence which had become known as a result of such statements as admissible. The Court notes that in the proceedings before the domestic courts, the impugned real evidence was classified as evidence which had become known to the investigation authorities as a consequence of the statements extracted from the applicant (long-range effect (‘Fernwirkung’) — see paragraph 31 above). For the purposes of its own assessment under Article 6, it considers it decisive that there is 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 J.'s body and the autopsy report thereon, tyre tracks left by the applicant's car at the pond, as well as J.'s backpack, clothes and the applicant's typewriter. In other words, the impugned real evidence was secured as a direct result of his interrogation by the police that breached Article 3.

Furthermore, an issue arises under Article 6 in respect of evidence obtained as a result of methods in violation of Article 3 only if such evidence was not excluded from use at the applicant's criminal trial. The Court notes that at the trial the Regional Court did not admit any of the confessions the applicant had made in the investigation proceedings under threat or as a result of the continuous effects of the threat (see paragraphs 28–30 above). However, that court, rejecting the applicant's motion at the outset of the trial, refused to bar the admission of items of evidence which the investigation authorities had secured as a result of his statements made under the continuous effect of his treatment in breach of Article 3 (see paragraph 31 above).

The Court is therefore called upon to examine the consequences for a trial's fairness of the admission of real evidence obtained as a result of an act qualified as inhuman treatment in breach of Article 3, but falling short of torture. As shown above (see paragraphs 166–167), in its case-law to date, it has not yet settled the question whether the use of such evidence will always render a trial unfair, that is, irrespective of other circumstances of the case. It has, however, found that both the use in criminal proceedings of statements obtained as a result of a person's treatment in breach of Article 3 — irrespective of the classification of that treatment as torture, inhuman or degrading treatment — and the use of real evidence obtained as a direct result of acts of torture made the proceedings as a whole automatically unfair, in breach of Article 6 (see paragraphs 166–167 above).

The Court notes that there is no clear consensus among the Contracting States to the Convention, the courts of other States and other human-rights monitoring institutions about the exact scope of application of the exclusionary rule (see the references in paragraphs 69–74 above). In particular, factors such as whether the impugned evidence would, in any event, have been found at a later stage, independently of the prohibited method of investigation, may have an influence on the admissibility of such evidence.

The Court is further aware of the different competing rights and interests at stake. On the one hand, the exclusion of — often reliable and compelling — real evidence at a criminal trial will hamper the effective prosecution of crime. There is no doubt that the victims of crime and their families as well as the public have an interest in the prosecution and punishment of criminals, and in the present case that interest was of high importance. Moreover, the instant case is particular also in 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, namely Article 2. On the other hand, a defendant in criminal proceedings has the right to a fair trial, which 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. 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.

While having regard to the above interests at stake in the context of Article 6, the Court cannot but take note of the fact that Article 3 of the Convention enshrines an absolute right. 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 (compare also, mutatis mutandis, Saadi v. Italy, cited above, §§ 138–39). In the Court's view, 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.

The Court also takes note, in this connection, of the Government's argument that they were obliged under the Convention to apply the criminal law against a murderer, and thus to protect the right to life. The Convention indeed requires that the right to life be safeguarded by the Contracting States (see, among many other authorities, Osman v. the United Kingdom, 28 October 1998, §§ 115–16, Reports 1998-VIII). However, it does not oblige States to do so by conduct that violates the absolute prohibition of inhuman treatment under Article 3 or in a manner that breaches the right of every defendant to a fair trial under Article 6 (compare, mutatis mutandis, Osman, cited above, § 116). The Court accepts that the State agents in this case acted in a difficult and stressful situation and were attempting to save a life. This does not, however, alter the fact that they obtained real evidence by a breach of Article 3. Moreover, it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies (compare Salduz v. Turkey [GC], no. 36391/02, § 54, ECHR 2008-…).

However, contrary to Article 3, Article 6 does not enshrine an absolute right. The Court must therefore determine what measures are to be considered both necessary and sufficient in criminal proceedings concerning evidence secured as the result of a breach of Article 3 in order to secure effective protection of the rights guaranteed by Article 6. As established in its case-law (see paragraphs 165–167 above), the use of such evidence raises serious issues as to the fairness of the proceedings. 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 investigation 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 the result of any violation of Article 3, even though that evidence is more remote from the breach of Article 3 than evidence extracted immediately as a consequence of a violation of that Article. Otherwise, the trial as a whole is rendered unfair. However, the Court considers that both a criminal trial's fairness and the effective protection of the absolute prohibition under Article 3 in that context are only at stake 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, had an impact on his or her conviction or sentence.

The Court notes that, in the present case, the Regional Court expressly based its findings of fact concerning the execution of the crime committed by the applicant — and thus the findings decisive for the applicant's conviction for murder and kidnapping with extortion — exclusively on the new, full confession made by the applicant at the trial (see paragraph 34 above). Moreover, that court also considered the new confession the essential, if not the only, basis for its findings of fact concerning the planning of the crime, which likewise played a role in the applicant's conviction and sentence (ibid.). The additional evidence admitted at the trial was not used by the domestic court against the applicant to prove his guilt, but only to test the veracity of his confession. This evidence included the results of the autopsy as to the cause of J.'s death and the tyre tracks left by the applicant's car near the pond where the child's corpse had been found. The domestic court further referred to corroborative evidence which had been secured independently of the first confession extracted from the applicant under threat, given that the applicant had been secretly observed by the police since the collection of the ransom and that his flat had been searched immediately after his arrest. This evidence, which was ‘untainted’ by the breach of Article 3, comprised the testimony of J.'s sister, the wording of the blackmail letter, the note found in the applicant's flat concerning the planning of the crime, as well as ransom money which had been found in the applicant's flat or had been paid into his accounts (ibid.).

In the light of the foregoing, the Court considers 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 his sentence. The impugned real evidence was not necessary, and was not used to prove him guilty or to determine his sentence. It can thus be said that there 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.

In the light of these findings, the Court further has to examine whether the breach of Article 3 in the investigation proceedings had a bearing on the applicant's confession at the trial. It notes that in his application before the Court, the applicant submitted that this had been the case. In his submission, he had not had any other defence option at the trial but to confess once the Regional Court, at the outset of the trial, had dismissed his request to exclude the real evidence obtained in violation of Article 3.

The Court observes in the first place that prior to his confession on the second day of the trial, 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 above). It is therefore satisfied that domestic legislation and practice did attach consequences to the 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 applicant was restored to the status quo ante, that is, to the situation he was in prior to the breach of Article 3, in this respect.

Moreover, the applicant, who was represented by defence counsel, stressed in his statements on the second day and at the end of the trial that he was confessing freely out of remorse and in order to take responsibility for his offence despite the events of 1 October 2002 (see paragraph 32 above). He did so notwithstanding the fact that he had previously failed in his attempt to have the impugned real evidence excluded. There is no reason, therefore, for the Court to assume that the applicant did not tell the truth and would not have confessed if the Regional Court had decided at the outset of the trial to exclude the impugned real evidence and that his confession should thus be regarded as a consequence of measures which extinguished the essence of his defence rights.

In any event, it is clear from the Regional Court's reasoning that the applicant's second confession on the last day of the trial was crucial for securing his conviction for murder, an offence of which he might otherwise not have been found guilty (see paragraphs 34 and 35 above). The applicant's confession referred to many additional elements which were unrelated to what could have been proven by the impugned real evidence. Whereas that evidence showed that J. had been suffocated and that the applicant had been present at the pond in Birstein, his confession notably proved his intention to kill J., as well as his motives for doing so. In view of these elements, the Court is not persuaded that, further to the failure to exclude the impugned evidence at the outset of the trial, the applicant could not have remained silent and no longer had any defence option but to confess. Therefore, the Court is not satisfied that the breach of Article 3 in the investigation proceedings had a bearing on the applicant's confession at the trial either.

As regards the rights of the defence, the Court further observes that the applicant was given, and availed himself of, the opportunity to challenge the admission of the impugned real evidence at his trial and that the Regional Court had discretion to exclude that evidence. Therefore, the applicant's defence rights were not disregarded in this respect either.

The Court notes that the applicant claimed that he had been deprived of the protection afforded by the privilege against self-incrimination at his trial. As shown above (see paragraph 168), the right not to incriminate oneself presupposes that the prosecution prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the latter's will. The Court refers to its above findings that the domestic courts based the applicant's conviction on his second confession at the trial, without having recourse to the impugned real evidence as necessary proof of his guilt. The Court therefore concludes that the privilege against self-incrimination was complied with in the proceedings against the applicant.

The Court concludes that in the particular circumstances of the applicant's case, the failure to exclude the impugned real evidence, secured following a statement extracted by means of inhuman treatment, did not have a bearing on the applicant's conviction and sentence. As the applicant's defence rights and his right not to incriminate himself have likewise been respected, his trial as a whole must be considered to have been fair.

Accordingly, there has been no violation of Article 6 §§ 1 and 3 of the Convention.