Tuesday 1 July 2008

Evidence Obtained Through Violation of Article 3 ECHR

In what must have been one of its the most difficult cases, the European Court yesterday ruled in Gäfgen v. Germany. Yesterday's judgment is the apex of long and highly publicised judicial proceedings. In 2003, the applicant, Magnus Gäfgen, was sentenced to life imprisonment for the murder of J., the eleven year old son, of a rich bankers family from Frankfurt am Main. Gäfgen had lured the boy into his home and subsequently killed him. That same day he dropped the corpse of the boy into a pond. He had then demanded a ransom of one million euros from the family, without disclosing that J. was already dead. Shortly after picking up the ransom, Gäfgen was arrested.

The case centres on what occurred next: thinking that the boy was still alive but in grave danger, the police officers questioning Gäfgen threatened him with considerable pain if he did not reveal where the child was. As a result, Gäfgen disclosed where the corpse could be found. At the start of the trial, Gäfgen complained that his confession had been made under the threat of torture. The German courts acknowledged that the threats uttered against him were contrary to Article 3 and that his resulting testimony could not be regarded as proof during the trial. The consequences of this, however, such as the corpse of the boy, could be used at trial, according to the German judges. In addition, Gäfgen had later - during the trial itself - again admitted several times that he had committed the murder, although he was under no further threat. On the basis of these matters Gäfgen was convicted.

In Strasbourg, the applicant mainly complained about violations of Articles 3 (prohibition of torture) and 6 (fair trial - right not to incriminate oneself) of the European Convention. The Court first concluded that the threat, would it have been carried out, would have amounted to torture and that a threat of torture amounted to inhuman treatment. The threat itself, however, was not torture. As the Court put it in paras. 69-70 of the judgment:

The Court would like to underline in this connection that in view of the absolute prohibition of treatment contrary to Article 3 irrespective of the conduct of the person concerned and even in the event of a public emergency threatening the life of the nation – or, a fortiori, of an individual – the prohibition on ill-treatment of a person in order to extract information from him applies irrespective of the reasons for which the authorities wish to extract a statement, be it to save a person's life or to further criminal investigations. Moreover, the applicant's treatment must be considered to have caused him considerable mental suffering, which is also illustrated by the fact that, having persistently refused to make correct statements until then, he confessed under the influence of such treatment where he had hidden J. Thus, the Court finds that the treatment the applicant was threatened with would, if carried out, amount to torture. However, the questioning lasted for some ten minutes only and, as was established in the criminal proceedings against the police officers (...), took place in an atmosphere of heightened tension and emotions owing to the fact that the police officers, who were completely exhausted and under extreme pressure, believed that they had only a few hours to save J.'s life, elements which can be regarded as mitigating factors (compare Egmez, cited above, § 78, and Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004). Furthermore, the threats of ill-treatment were not put into practice and have not been shown to have had any serious long-term consequences for the applicant's health.
70. In the light of the above, the Court considers that in the course of the questioning by E. on 1 October 2002 the applicant was subjected to inhuman treatment prohibited by Article 3 of the Convention.

The part about the mitigating circumstances are somewhat puzzling, especially in the light of the absolute nature of Article 3. It seems to be another expression of what the Court has been doing more often: the prohibition of Article 3 is absolute, but the assessment of whether a situation reaches the threshold of that prohibition seems to include some kind of balancing (or in this case, the fine line between torture and inhuman treatment!).

The judgment then takes a twist, by focussing on the loss of victim status of the applicant. The Court indeed concluded that Gäfgen could no longer be considered a victim, since the national authorities had explictly akcnowledged that the questioning method had been contrary to Article 3 and the police officers involved had been prosecuted and punished. Moreover, the confession thus obtained had been excluded as proof in the trial of the applicant. Interestingly, although the applicant's proceedings for compensation on the national level were still pending, the Court held that in cases of a threat of torture (as opposed to "actual physical" treatment contrary to Article 3), the redress provided by Germany was sufficient. the outcome of the compensation proceedings thereby became irrelevant!

The applicant was equally unsuccessful in arguing a violation of the right to a fair trial under Article 6. Although the Convention contains no rules on the acceptability of different kinds of proof in a trial, the Court reiterated that incriminating 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." Of course, in this case, the Court had characterised the treatment as inhuman, but not amounting to torture. This gave the Court leeway to look at the proceedings as a whole instead of finding a violation of Article 6 right away. And those "circumstances as a whole" led to a different result. The essential basis for the applicant's conviction in German courts had not been the confession obtained under the threat of torture, but the acknowledgements of guilt during the trial. Other evidence, such as the body of the boy, had only been acessory evidence in the Corut's view.

It is difficult to predict what the Court would do if indeed the corpse (and possibly DNA evidence) had been the core evidence. Such a situation - even more difficult to decide upon - may present itself in the future. One may also wonder why the Court only referred to the dangers of physical torture. Especially considering the increased use of psychological torture (which leaves no physical traces) in the fight against terrorism, this is a very contentious point and it could open doors which the Court may have preferred to keep closed and locked. Such dangers are alluded to in the dissenting opinion of judge Kalaydjieva. In spite of these caveats, the outcome appeals to a deep sense of justice in the particular case. The situation was another complicated Gordian knot for the Court to cut and the judgment is bound to raise further discussion in the weeks and months to come.

For a contrasting judgment, see Jalloh v. Germany on the forced administration of emetics to the applicant to obtain drugs concealed in his body. In that 2006 case, a heavily divided Grand Chamber found violations of Articles 3 and 6 ECHR. The concurring and dissenting opinions are well worth reading!

The earlier (partial) admissibility decision can be found here. Click here for the press release and here for the video of the judgment delivery (a rarity in Strasbourg!). For a background report of a few years ago by Amnesty International on police violence in Germany (also featuring the Gäfgen case), see here.