Gäfgen v. Germany: threat of torture to save a life?

In Gäfgen v. Germany , the Grand Chamber of the European Court of Human Rights was confronted with a difficult issue: can police officers threaten to torture a suspect if they believe this may save the life of an innocent child? The Court clearly answered that they cannot. However, it did leave what could at first sight be interpreted as an opening for such conduct: it held that the Convention had not been violated by the domestic decision declaring the evidence obtained as a result of the threat of torture admissible.

Gäfgen v. Germany concerned the following facts. A man had lured a child into his flat, killed him through suffocation and hidden the body. Afterwards he demanded a ransom of the parents who were unaware that their child had already been murdered. They paid the ransom after which the police followed and arrested the suspect. During his interrogation the police, acting under the assumption that the child was still alive, threatened the suspect with considerable suffering if he persisted in refusing to disclose the child’s whereabouts. The suspect subsequently confessed to the crime and disclosed the whereabouts of the child’s body. The German courts, having established that the confession of the suspect had been extracted under duress, did not allow it as evidence during the ensuing criminal trial. However, they did declare the evidence obtained as a result of the ill-treatment, including the child’s body and the tire tracks found at the dumping site, admissible. During the trial the suspect confessed again, despite having been made aware of his right to remain silent and of the inadmissibility of his earlier confession as evidence.

This case offers clear similarities to the ticking time bomb scenario that certain politicians, philosophers and lawyers use to claim that it is justified to torture one person, someone who is suspected of having planted a bomb somewhere, in order to save the lives of – possibly thousands of – others. This case also shows that too many factors of such a scenario are uncertain and that it can thus never take hold in reality.

The ‘perfect’ scenario in which we know, not merely suspect, that the person has planted a bomb and know, not merely hope, that obtaining information through the use of torture will result in the saving of – thousands of – lives, simply does not exist. In Gäfgen, the police officers threatened the suspect with torture because they thought it would save the life of the child. But he was already dead. No matter how far they would – hypothetically speaking – go, eventually even resorting to infliction on the suspect of the worst pain imaginable, they could never save the child. And I would argue that, even if under such a scenario they could save the child, they could nevertheless never justifiably – morally, nor legally – torture the suspect. Torture violates the essence of a person’s autonomy and human dignity so deeply that it can never be justified. Which is why it is a truly absolute right under the European Convention of Human Rights.

The position of the Grand Chamber in Gäfgen on the alleged violation of art. 3 must thus be welcomed. The Court held that the threat of torture in the instant case constituted inhuman treatment and made it very clear that no situation can justify an infringement of art. 3. The Court stated that “[t]orture, inhuman or degrading treatment cannot be inflicted even in circumstances where the life of an individual is at risk” and –under its assessment of the alleged violation of art. 6 – “[b]eing absolute, there can be no weighing of other interests against article 3. 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.” The absolute prohibition of torture and inhuman or degrading treatment thus remains protected to its full extent against any scenario, including the ticking time bomb one.

Nonetheless, certain commentators and also some of the judges of the Grand Chamber have held that the Court’s judgment in Gäfgen v.  Germany reveals a chink in the armour protecting individuals from ill-treatment. They find this chink in the Court’s reasoning under art. 6. The applicant had claimed that his right to a fair trial had been violated by the fact that the evidence obtained as a result of the threat of torture had been declared admissible for use during the criminal trial. The majority of the Grand Chamber found against him and held that art. 6 had not been violated. It did so because “contrary to Article 3, Article 6 does not enshrine an absolute right”, a “criminal trial’s fairness [is] only at stake if it has been shown that the breach of Article 3 had a bearing on the outcome of the proceedings” and in the present case the “conviction [was] based exclusively on the new, full confession made by the applicant at the trial”. The Court thus held that the causal link between the threat of torture and the conviction had been broken: “the breach of Article 3 in the investigation proceedings had no bearing on the applicant’s confession at the trial”.

This finding diverges from the earlier finding of the court in Jalloh v. Germany that “incriminating real evidence obtained as a result of torture, should never be relied on as proof of the victim’s guilt.” However, Gäfgen concerned evidence obtained as a result of inhuman treatment, not of torture. The Court has thus apparently created a difference between evidence obtained as a result of torture and evidence obtained as a result of inhuman treatment. The six dissenting Judges criticized the majority for having done so. They held that the only possible answer to the questions raised by this case was the exclusion of any evidence obtained in violation of art. 3. They stated that “[f]rom the moment of arrest to the handing down of sentence, criminal proceedings form an organic and inter-connected whole. An event that occurs at one stage may influence and, at times, determine what transpires at another. When that event involves breaching, at the investigation stage, a suspect’s absolute right not to be subjected to inhuman or degrading treatment, the demands of justice require, in our view, that the adverse effects that flow from such a breach be eradicated entirely from the proceedings.” The dissenters also question the effects of the Court’s reasoning: “the Court has concluded that real evidence obtained by inflicting inhuman treatment upon an accused person may be admitted into trial and that such a trial may nevertheless be regarded as “fair” so long as such evidence has no bearing on the outcome of proceedings. If it can have no bearing, what, one wonders, is the purpose of its admission? And why, in principle, should the same reasoning not now apply to real evidence obtained by torture?”

I fully agree with the argument of the dissenters that one cannot argue that the causal link between the inhuman treatment and the conviction had been broken by the second confession. We can only speculate on the reasons for the suspect to have confessed again while not under duress. It might well be that he experienced a sense of true remorse that led him to confess. But we can never exclude the possibility that the admission of the evidence obtained through inhuman treatment had an influence on his decision to confess again, simply because we cannot speculate on what the suspect would have done if the evidence had not been allowed. Thus, if we are truly committed to an absolute prohibition of all forms of ill-treatment, the only correct conclusion would be to disallow the use of evidence obtained as a result of such ill-treatment.

I also find the first question of the dissenters – “If [the evidence] can have no bearing, what, one wonders, is the purpose of its admission?” – worth coming back to. In my opinion the evidence should have never been allowed, not only for principled reasons, but also for the practical reason referred to by the dissenters. Let us put ourselves in the position of national authorities that are confronted with a similar situation – evidence obtained as a result of inhuman treatment – in the future. They can rely on the opinion of the ECtHR expressed in Gäfgen v. Germany, to identify the possibilities. I think there are two such possibilities. The first is that the evidence they will obtain through the infliction of inhuman treatment will have a bearing on the outcome of the proceedings in the sense that conviction will not be obtained without it. In such a case, Gäfgen v. Germany makes it clear that the evidence cannot be declared admissible, since it would violate art. 6. The second possibility is that the evidence obtained will not have a bearing on the outcome of the proceedings, for instance if the suspect would confess again out of remorse. In that case, allowing the evidence would not violate art. 6, but there would also be no practical reason to do so. The evidence obtained will not be necessary to secure a conviction and thus, by extension, also the infliction of the inhuman treatment will not be necessary as it will not make any difference whatsoever. Therefore,  also under the second possibility the national authorities should not resort to inhuman treatment.

Moreover, we must not forget that the Court made it very clear that any treatment contrary to art. 3 can never be justified. So the national authorities could never escape a violation of art. 3. And we should assume that the authorities are intent on complying with the Court’s jurisprudence.

If we combine all the above elements, I think that the practical effect of Gäfgen v. Germany, even if some rightfully criticize the theoretical chink in the armour of art. 3, is that police officers cannot, under any interpretation of the case, justifiably engage in inhuman treatment – be it through threats of torture or through physical violence. Having established this, it becomes even more incomprehensible that the majority of the Court did not simply come to the only correct conclusion: the use of any evidence obtained contrary to art. 3 violates art. 6.

7 thoughts on “Gäfgen v. Germany: threat of torture to save a life?

  1. Smug article. You say early on that the perfect scenario,by which I suspect you mean one in which lives can truly be saved by torturing a criminal,does not exist. Silly thing to say. Of course it might exist. I think you are trying to destroy the obvious Utilitarian counter argument that the greater happiness of a greater number of people is what matters. Well,I’m not a Utilitarian but I would certainly agree with the torture, even killing of one person if it meant saving innocents. A man is flying a plane towards a nuclear plant hoping to set off an explosion and kill millions. Would I shoot down the plane? Damn right. The problem with your absolutes is inflexibility. You find yourself defending a principle and killing half the world.

    • Interesting reaction. I do think there are some problems with it though. First of all, let us be clear: utilitarianism – and certainly the version of Jeremy Bentham you refer to – needs to be rejected for reasons explained by, among others, John Rawls, Judith Jarvis Thomson and Ronald Dworkin. Secondly, the example you give of the man flying a plane towards a nuclear plant hoping to set off an explosion and kill millions. You mention “hoping to set off” yourself, but let us make it so that the crash will set off an explosion with certainty and that – with equal certainty – that explosion will kill millions. Now, if that man were the only one on the plane, I would agree: we should shoot him down. That is called self-defence (or use of lethal force to defend others against a threat to their lives). But it is not an example in which torturing someone would make a difference. Thirdly, your reaction shows that you do not only take issue with my position on the absolute prohibition of torture, but also with that of the Court (and many other actors, scholars, practicioners and human rights defenders). Remember that the Court said in Gäfgen that there will be no balancing of art. 3 ECHR against any other rights, including the right to life. So I would say that, from a legal perspective, you are in the minority opinion. It does not mean you are wrong, obviously, but it does mean my “smug article” is not something I grasped out of thin air. I am not defending any onorthodox position, rather on the contrary. Please allow me to finish by reversing your argument: when is it no longer allowed to torture someone for a certain gain? Where do we draw the line? If saving millions of lives definitely warrants torturing someone for some, what about five lives? One life? The life of someone who will die within a month? To save someone from breaking a leg? To save someone from scraping their knee? If a million people will get an icecream by torturing one person (this is one example why utilitarianism should be outright rejected – or at least the forms that do not offer countermeasures for such a perverted result)? You see, things are not as clearcut as you seem to think either. In the end, this is an extremely difficult matter, morally speaking. Both your opinion (let us make it “torturing one to save thousands”) and mine (“even if we can save thousands, we should not resort to torture”) are morally defensible, for different reasons. But from the viewpoint of the ECHR, there is only one right choice: the second. And when we leave the realm of morals and enter that of the law, we need to face the fact – and I stand by this – that the perfect scenario, in which we know 100% sure that there is a bomb, 100% sure that we have the person who planted the bomb in custody, 100% sure that he/she will talk if we torture him/her and 100% sure that we will be in time to save thousands of lives by torturing him/her, does not exist.

  2. Very useful article about the leading case “gafgen c. germany”. Anyway, the European Court Of Human Rights seems to recognize the latin principle of: “male captum bene retentum” stated by the italian Franco Cordero about seizure preceded by illegal research.
    Sorry for english

  3. Those that are for torture to save lives are a majority, not, as claimed, a minority., Just read the replies here and ask others. Not to try to save lives because it MAY not work is inhumane .How would you feel if your beloved were the victims?

  4. “Having established this, it becomes even more incomprehensible that the majority of the Court did not simply come to the only correct conclusion: the use of any evidence obtained contrary to art. 3 violates art. 6.”
    Following your logic, Gafgen would have never been imprisoned, even having killed a person.

    Eight years have passed from the date of publication of this article. Many terrorist acts were performed, many people killed.
    I wonder, whether the author reviewed his position.

    The problem with this ‘100% legal/illegal’ approach, from my perspective, is that judges and legal scholars, sitting in their warm armchairs in Strassbourg or Geneva or somewhere else, forget whom the law is intended to protect – innocent people.

    Such situations, as in Gafgen, I beleive, should be decided strictly and exclusively on a case-to-case basis, without maximalist assumptions on how all the cases must be dealt with.
    From strict uniformity of judicial practice and saving people, I choose the latter.
    In extremely grave situations, where there is no other choice, than to resort to torture – when people’s lives are at stake, it should be authorised.

    We can go on forever that ‘such situations are impossible’ – what is more important, is general principle, and the ECtHR crossed out a slightest possibility of treating cases like Gafgen, or even more ruthless ones, differently.

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