Tuesday 1 June 2010

Gäfgen Grand Chamber Judgment: Threatening with Torture and Fair Trial Rights

The Grand Chamber of the European Court of Human Rights just issued its keenly awaited judgment in the case of Gäfgen v. Germany today. 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 here. 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

Article 3

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 deliberate manner.

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.

Article 6

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 evidence.

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.