Information Note on the Court’s case-law No. 109
June 2008
Gäfgen v. Germany - 22978/05
Judgment 30.6.2008 [Section V]
Article 3
Inhuman treatment
Nature of threats of physical harm made by police interrogators in an attempt to secure information from a suspected child abductor regarding the missing child’s whereabouts: inhuman treatment
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Decision by criminal court to admit evidence obtained from information provided in confessions it had ruled inadmissible: no violation
Article 34
Victim
Domestic redress for ill-treatment by police officers including express judicial condemnation, the officers’ conviction and the exclusion of the applicant’s confession: loss of victim status
[This case was referred to the Grand Chamber on 1 December 2008]
Facts: The applicant was placed under surveillance and arrested after collecting a substantial ransom for an eleven-year-old boy who had been abducted. He was questioned by the police and initially gave false information about the boy’s whereabouts and the identity of his abductors. The questioning was adjourned till the following morning, by which time the police were concerned that the boy’s life was in great danger from the cold and a lack of food. On the orders of the deputy chief of police, the officers questioning the applicant warned him that he would suffer considerable pain at the hands of a specially trained person unless he disclosed the boy’s whereabouts. As a result, the applicant revealed the precise location of the child. He later accompanied the police officers to the scene, where the boy’s body was found, and confessed that it was he who had kidnapped and killed the child. He was charged with the boy’s abduction and murder. The trial court decided to exclude the confessions and statements he had made during the investigation as having been obtained under duress, but ruled that the evidence obtained as a result of the confessions was admissible. In returning a guilty verdict, it noted that, despite being informed at the beginning of his trial of his right to remain silent and that none of his earlier statements could be used as evidence against him, the applicant had nevertheless again confessed to the abduction and killing of the boy. The trial court’s findings of fact were essentially based on that confession, but were also supported by evidence – including the body and tyre tracks – secured as a result of his initial confession and by evidence obtained through the surveillance operation. The applicant was sentenced to life imprisonment. His appeal on points of law was dismissed by the Federal Court of Justice and the Federal Constitutional Court refused to examine a constitutional complaint, although it did endorse the trial court’s finding that threatening the applicant with pain in order to extract a confession was prohibited under domestic law and violated Article 3 of the Convention. The two police officers involved in threatening the applicant were later convicted of coercion and incitement to coercion while on duty and given suspended fines. A claim for compensation against the authorities for the trauma allegedly caused by the police’s investigative methods is still pending. Before the European Court the applicant complained that he had been subjected to torture when questioned by the police and that his right to a fair trial had been violated by the use of evidence secured as a result of his confession under duress.
Law: Article 3 – (a) Nature of the ill-treatment: According to the findings of the domestic criminal courts, a police officer had threatened the applicant with physical violence which would have caused him considerable pain in order to make him reveal the abducted child’s whereabouts. The applicant had therefore been subjected to sufficiently real and immediate threats of deliberate ill-treatment. The prohibition of treatment contrary to Article 3 was absolute and applied irrespective of the conduct of the person concerned, even if the purpose was to extract information in order to save someone’s life. The applicant’s treatment must have caused him considerable mental suffering and the threats would have amounted to torture had they been carried out. However, the questioning had lasted only ten minutes and had taken place in an atmosphere of heightened tension and emotions as the police officers, who were completely exhausted and under extreme pressure, believed that they had just a few hours to save the boy’s life. The threats of ill-treatment had not been put into practice or shown to have had any serious long-term consequences for the applicant’s health. The Court therefore considered that the treatment to which the applicant was subjected during his interrogation was inhuman.
(b) Victim status: The Court was satisfied that the domestic courts had expressly and unequivocally acknowledged that the applicant’s treatment by the police had violated Article 3. Both the trial court and the Federal Constitutional Court had stated that threatening pain in order to extract a statement not only was prohibited under domestic law but also violated the Convention. The two police officers involved had been convicted of coercion and incitement to coercion and punished, while the exclusion of the confessions and statements made under duress was an effective method of redressing the disadvantages the applicant had suffered and served to discourage the future use of interrogation methods prohibited by Article 3. Although the applicant had yet to obtain compensation, the Court considered that where the breach of Article 3 lay in the threat of (as opposed to actual) ill-treatment, redress was essentially granted by the effective prosecution and conviction of those responsible. The domestic courts had thus afforded the applicant sufficient redress and he could no longer claim to be a victim of a violation of Article 3.
Conclusion: loss of victim status (six votes to one).
Article 6 – The domestic courts had refused to bar the use of evidence obtained as a result of the statements extracted from the applicant (the so-called “fruit of the poisonous tree”) and at least some of that evidence had been used to prove the veracity of the confession made by the applicant at the trial. However, there was nothing to indicate that the applicant had been further threatened by any of the officers during the journey to and from the place where the body was hidden with a view to making him disclose items of real evidence. Accordingly, unlike the position in Jalloh v. Germany (no. 54810/00, Information Note no. 88), the investigation authorities had secured the impugned evidence only as an indirect, not a direct, result of the confession. It followed that the use of that evidence did not render the trial automatically unfair, although it led to a strong presumption of unfairness. The applicant’s new confession at the trial was the essential basis for the trial court’s judgment; the other evidence was of an accessory nature and was only used to test the veracity of that confession. The applicant’s assertion that he had made the new confession only because of the evidence secured as a result of his initial confession obtained under duress was at odds with his consistent claims before the domestic courts that he had volunteered it out of remorse and the Court was not persuaded that he could not have remained silent or that his only defence option had been to make a confession at his trial. Indeed, it could be said that he had simply varied his defence strategy. As to the opportunities to challenge the impugned evidence, the trial court had had a discretion to exclude evidence improperly obtained and had weighed up all the interests involved in a thoroughly reasoned decision. In the particular circumstances of the applicant’s case, including the police surveillance of the applicant after he collected the ransom and the available untainted evidence, the evidence obtained as a result of the initial confession was only accessory in securing the applicant’s conviction and his defence rights had not been compromised as a result.
Conclusion: no violation (six votes to one).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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