With my 3 July 2008 comments on Gafgen v Germany still at the forefront of your consciousness, you will be surprised that I have let a few days slip by before referring to the Grand Chamber's decision in the same case: Gafgen v Germany  ECHR 759 (1 June 2010). The Court held 11 to 6 that although there had been a breach of Mr Gafgen's article 3 right not to be subjected to inhumane treatment (para 131), there was no breach of his fair trial rights under article 6 (para 187-188). Mr Gafgen had not sought a monetary award for the breach of article 3, merely a retrial, but this was not awarded as he had received a fair trial (190-191).
The Grand Chamber reiterated the law on article 3 (para 87-93), and applied it to this case (107):
"In this connection, the Court accepts the motivation for the police officers' conduct and that they acted in an attempt to save a child's life. However, it is necessary to underline that, having regard to the provision of Article 3 and to its long-established case-law (see paragraph 87 above), the prohibition on ill-treatment of a person applies irrespective of the conduct of the victim or the motivation of the authorities. Torture, inhuman or degrading treatment cannot be inflicted even in circumstances where the life of an individual is at risk. No derogation is allowed even in the event of a public emergency threatening the life of the nation. Article 3, which has been framed in unambiguous terms, recognises that every human being has an absolute, inalienable right not to be subjected to torture or to inhuman or degrading treatment under any circumstances, even the most difficult. The philosophical basis underpinning the absolute nature of the right under Article 3 does not allow for any exceptions or justifying factors or balancing of interests, irrespective of the conduct of the person concerned and the nature of the offence at issue."
And, a remedy for breach of article 3 cannot be confined merely to compensation (119):
"In cases of wilful ill-treatment the breach of Article 3 cannot be remedied only by an award of compensation to the victim. This is so because, if the authorities could confine their reaction to incidents of wilful ill-treatment by State agents to the mere payment of compensation, while not doing enough to prosecute and punish those responsible, it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity, and the general legal prohibition of torture and inhuman and degrading treatment, despite its fundamental importance, would be ineffective in practice (see, among many other authorities, Krastanov, cited above, § 60; Çamdereli, cited above, § 29; and Vladimir Romanov, cited above, § 78)."
This means that the fairness of the trial must be examined, because Mr Gafgen had exhausted his domestic remedies (146). It is a quirk of Strasbourg jurisdiction that the Court assesses fairness without reference to the admissibility of evidence, which is a matter for domestic courts (162-163), although this limitation is obscured by the importance of article 3 (165):
" ... 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 ... ."
For example, confessions obtained in breach of article 3 have led to trials being held to be unfair irrespective of the role of such confessions in prosecution cases (166), and violence in the nature of torture leading to the discovery of real evidence will also result in trial unfairness (167). Similarly, breach of the right to silence and the privilege against self-incrimination also lie at the heart of the right to a fair trial (168). The article 3 rights are absolute (176):
"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 then noted that the article 6 right is not absolute (178):
"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."
I pause here to comment that treating the article 6 right as "not absolute" must be done with care. Article 6 does not contain one right only. The right to a "fair and public hearing" is not subject to limitations, but it is "derogable" in times of "war or other public emergency threatening the life of the nation" (article 15). That is the sense in which the right to a fair hearing is not an absolute right. The first sentence of para 178 did not need to refer to the non-absolute nature of the right to a fair hearing, as the second sentence makes it plain that effective protection of this right must be secured.
As noted in my earlier comment on this case, events at trial eclipsed the breach of article 3, and the admission at trial of the challenged evidence did not affect the fairness of the hearing.
Here, Mr Gafgen had made two confessions at trial, the second of which was crucial to his conviction (34-35,184). There is a little judicial sleight of hand on this (183):
"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." [emphasis added]
The non sequitur in the italicised passage is obvious. A "free" and "remorseful" confession after a ruling that real evidence is admissible is not really "free" and "remorseful" – to be such it would need to have been given before the admissibility ruling.
Gafgen illustrates how an accused person's legal manoeuvring at trial can ultimately produce a result that he didn't want. The final appellate court makes the final legal manoeuvre.
I do not think that the issue of trial fairness should come down to the glib bluff-calling that occurred here. The Strasbourg Court needs to decide whether trial fairness means the same thing for all member states. It needs to define what trial fairness means, and to avoid irrelevant references to derogation. It needs to decide whether admissibility of improperly obtained evidence is a question that is relevant to the determination of trial fairness, and whether deference to local decisions on admissibility is necessarily appropriate. The Court needs to sort out the relationship between exclusion of evidence for reasons of public policy and exclusion of evidence to protect trial fairness. A ruling on trial fairness requires detailed consideration of the critical decisions made at trial in order to determine when they are a product of impropriety.
My suggestions: If all people are equally deserving of the protection of rights then the right to a fair trial must mean the same thing for everyone. Recognising that laws differ does not mean that trial fairness differs. A fair trial is one in which the law, whatever it may be, is applied correctly to facts that are determined impartially. Impartially means without bias and without an error that affects the proper assessment of what is admissible evidence and what is the true probative value of the admissible evidence. The admissibility of improperly obtained evidence is governed by judgment involving a balancing of policy values. If that balancing judgment is done incorrectly, there can be an impact on trial fairness through the creation of partiality in the determination of the facts. Deference to local decisions is not appropriate because a decision about trial fairness requires assessment of the correctness of admissibility decisions. An admissibility decision can affect the tactical decisions made by an accused in the course of conducting a defence, so if evidence has been wrongly admitted it is necessary to ask whether that could have affected the proper determination of the facts.
The trial fairness question in this case comes down to whether the trial court was correct to admit the real evidence. This is an issue of whether the real evidence is "fruit of the poisoned tree", and that, in the German court, was decided by a balancing of values: see the passage quoted in para 27 of the Chamber judgment Gafgen v Germany  ECHR 565. In other jurisdictions this issue may be treated as a question of causation: whether there remains a causal link between the improper official conduct and the finding of the real evidence. Sometimes it is treated as a question of time and context. Notwithstanding the varied approaches to the admissibility of downstream evidence, the question here is whether the German approach is wrong. It would be difficult to show that it is. The Grand Chamber avoided dealing with this interesting problem; vile facts do not present a good opportunity for development of the law on trial fairness.