Tuesday, 1 June 2010 Gäfgen Grand Chamber Judgment: Threatening with
Torture and Fair Trial
Grand Chamber of the European Court of Human Rights just issued its keenly
awaited judgment in the case of Gäfgen v. Germany
The case centres on the fact that the applicant was threatened with torture
when being questioned by the police. For the facts of the case and my
analysis of the earlier Chamber judgment in 2008, see
The Grand Chamber disagreed with the Chamber on a key point and decided that
Mr Gäfgen, who had kidnapped and killed a young boy, could still be
considered a victim, even though the German authorities had recognised
violations of his human rights already at the national level. Specifically,
it held that the punishments of the police officers involved had been
relatively modest and did not function as sufficient deterrent for future
violations. Thus, the Grand Chamber clearly once more wanted to send a
strong signal on the absoluteness of the ban on torture (and even on the
threat of torture). From this it followed that Article 3 ECHR had been
violated. National authorities thus have to deal with such aberrations of
their own personnel with utmost seriousness, even if the victim itself may
not arouse a single grain of sympathy.
The Grand Chamber followed the ordinary chamber by holding that there had
been no violation of Gäfgen's fair trial rights under Article 6 ECHR. Under
both Articles (3 and 6) the Grand Chamber was divided (in both cases eleven
votes to six). The various separate opinions are worhtwhile reading for some
insights on the Article 3 discussions within the Court.
This is an excerpt from the press release:
Decision of the Court
Treatment contrary to Article 3
It had been established by the German courts that a police officer, acting
on the instructions of the Deputy Chief of Frankfurt Police, had threatened
the applicant with being subjected to intolerable pain in order to make him
disclose J.’s whereabouts. The Court considered that these immediate threats
of deliberate and imminent ill-treatment had to have caused the applicant
considerable fear and mental suffering. It observed that, as established by
the domestic courts, the deputy police chief had ordered his subordinates on
several occasions to use force against the applicant, his order could
therefore not be regarded as a spontaneous act, but had been calculated in a
The Court accepted that the police officers had been motivated by the
attempt to save a child’s life. However, the prohibition on ill-treatment
applied irrespective of the conduct of the victim or the motivation of the
authorities; it allowed no exception, not even where the life of an
individual was at risk. The Court considered that in the present case the
immediate threats against the applicant for the purpose of extracting
information from him were sufficiently serious to be qualified as inhuman
treatment falling within the scope of Article 3. Having regard to its
case-law and to the views taken by other international human rights
monitoring bodies, it found, however, that the method of interrogation to
which the applicant had been subjected had not reached the level of cruelty
to attain the threshold of torture.
The applicant’s victim status
The Court was satisfied that the domestic courts, both in the criminal
proceedings against the applicant and against the police officers, had
acknowledged expressly and in an unequivocal manner that the applicant’s
interrogation had violated Article 3.
It observed, however, that the police officers, having been found guilty of
coercion and incitement to coercion, respectively, had been sentenced only
to very modest and suspended fines. The domestic courts had taken into
consideration a number of mitigating circumstances, in particular the fact
that the officers had aimed to save J.’s life. While the Court accepted that
the present case was not comparable to cases concerning arbitrary acts of
brutality by State agents, it nevertheless considered that the punishment of
the police officers did not have the necessary deterrent effect in order to
prevent further Convention violations of this kind. Moreover, the fact that
one of the police officers had subsequently been appointed chief of a police
agency raised serious doubts as to whether the authorities’ reaction
reflected adequately the seriousness involved in a breach of Article 3.
As regards compensation to remedy the Convention violation, the Court noted
that the applicant’s request for legal aid to bring liability proceedings,
following a remittal, had been pending for more than three years and that no
decision had yet been taken on the merits of his compensation claim. The
domestic courts’ failure to decide on the merits of the claim raised serious
doubts as to the effectiveness of the official liability proceedings.
In the light of these findings, the Court considered that the German
authorities did not afford the applicant sufficient redress for his
treatment in breach of Article 3.
The Court concluded, by eleven votes to six, that the applicant could still
claim to be the victim of a violation of Article 3 and that Germany had
violated Article 3.
As the Court had established in its case-law, the use of evidence obtained
by methods in breach of Article 3 raised serious issues regarding the
fairness of criminal proceedings. It therefore had to determine whether the
proceedings against the applicant as a whole had been unfair because such
evidence had been used.
The Court found that the effective protection of individuals from the use of
investigation methods in breach of Article 3 may require, as a rule, the
exclusion from use at trial of real evidence obtained as a result of a
breach of that Article. It considered that this protection and a criminal
trial’s fairness were only at stake however if the evidence obtained in
breach of Article 3 had an impact on the defendant’s conviction or sentence.
In the present case, it was the applicant’s new confession at the trial –
after having been informed that all his earlier statements could not be used
as evidence against him – which formed the basis for his conviction and his
sentence. The evidence in dispute had therefore not been necessary to prove
him guilty or determine his sentence.
As regards the question whether the breach of Article 3 in the investigation
proceedings had a bearing on the applicant’s confession during the trial,
the Court observed that he had stressed in his statements at the trial that
he was confessing freely out of remorse and in order to take responsibility
for his offence, despite the threats uttered against him by the police. The
Court therefore had no reason to assume that the applicant would not have
confessed if the courts had decided at the outset to exclude the disputed
In the light of these considerations, the Court found that, in the
particular circumstances of the case, the failure of the domestic courts to
exclude the impugned evidence, secured following a statement extracted by
means of inhuman treatment, had not had a bearing on the applicant’s
conviction and sentence. As the applicant’s defence rights had been
respected, his trial as a whole had to be considered to have been fair.
The Court concluded, by eleven votes to six, that there had been no
violation of Article 6.
Article 41 (just satisfaction)
The applicant did not claim any award for pecuniary or non-pecuniary damage,
but stressed that the objective of his application was to obtain a retrial.
As there had been no violation of Article 6, the Court considered that there
was no basis for the applicant to request a retrial or the reopening of the
case before the domestic courts.