By Stijn Smet, Assistant Professor of Constitutional Law at Hasselt University
I was sitting on the grass outside a classroom at the University of Vienna when I first understood why notions like control, power(lessness) and vulnerability are central to the interpretation of the absolute prohibition of torture. It was a warm and sunny day in Spring, and Manfred Nowak had led us out of the classroom and onto the grass for one of his lectures. Nowak was UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment at the time, and we were enrolled in his university course on torture.
The two scenarios Nowak presented to us that afternoon, as we were sitting comfortably on the grass, decisively shaped my understanding of torture. Nowak asked us which treatment we would qualify as torture: a police officer shooting a suspect in the leg, from behind, as he was fleeing down the streets (in my recollection, it was the left leg); or that same police officer putting out a cigarette on the hand of a suspect in custody. Nowak’s intention was, of course, to encourage us to reflect on the essence of torture. He invited us to consider the idea that powerlessness of the victim and control by the authorities may be at least as important factors as the severity of the physical harm inflicted.
A few years later, when I was a first year PhD Candidate at Ghent University, the Grand Chamber of the ECtHR reiterated in Gäfgen v. Germany that ‘[t]orture, inhuman or degrading treatment cannot be inflicted even in circumstances where the life of an individual is at risk’, since ‘[b]eing absolute, there can be no weighing of other interests against article 3’. For this series, celebrating the tenth anniversary of the wonderful and essential Strasbourg Observers blog, I was invited to reflect on the longer-term implications of the judgment, on which I first commented ten years ago. In the (somewhat random) thoughts that follow, I focus entirely on the article 3 ECHR claim in Gäfgen and disregard the article 6 ECHR claim.
The paradox of Gäfgen…
Going over the list of judgments selected for inclusion in this anniversary series, it struck me that Gäfgen may well be the odd one out. Gäfgen is ‘a unique aberration’, a case so peculiar in its factual constellation as to be evocative of ‘works of fiction’ (this film, released in the same year as the Grand Chamber judgment, might qualify). It is also the closest real-life case we have to the ticking time bomb scenario (even if the analogy is contested). Even if Gäfgen is ‘a unique aberration’, or perhaps because it is, the judgment has garnered widespread attention. Call it the paradox of Gäfgen.
Although Gäfgen is much – much! – less relevant to legal practice than Hirsi Jamaa and Others v. Italy or even Delfi AS v. Estonia, the exceptional dilemma at the heart of the case cannot but resonate strongly with those who read the judgment. I am fairly confident, then, that I am not the only one has used it for teaching purposes, safe in the knowledge that a lively debate is guaranteed to follow when law students are introduced to the case about the German law student who kidnapped an 11-year old boy, killed him, hid the body and was subsequently threatened with torture by police officers who desperately believed the boy was still alive.
… A source of protracted scholarly debate…
Nowhere is the attention for Gäfgen more evident than in the scholarly debate. In the Human Rights Law Review alone, six – 6! – contributions on Gäfgen have been published over the course of the past decade (including one of mine). In 2011, Steven Greer argued that the unique facts of the case generated a normative dilemma in the form of a conflict between two competing instances of the same absolute human right. This dilemma, Greer had discovered to his own consternation, revealed that ‘the article 3 prohibition against police threats to torture suspects is not quite as “absolute” as it had hitherto seemed’. In 2013, I replied to Greer, rejecting his claim that Gäfgen entailed a conflict between two instances of the prohibition of torture and arguing that it instead involved a clash between articles 3 and 2 ECHR. In the process, I ‘salvaged’ the absolute nature of article 3 (although that was not my primary interest in the article). Undeterred by my critique and that of several others, in 2015 Greer reiterated that his own ‘unwavering faith in the absolutist cause’ had been ‘shattered’ by the exceptional circumstances of the Gäfgen case. He confirmed his earlier claim that Gäfgen shows why the prohibition of torture should only be considered ‘virtually absolute’, rather than ‘strictly absolute’.
To this, Natasa Mavronicola and Neil Graffin replied in 2017 (remember, all of this is still taking place exclusively in the Human Rights Law Review; I am not engaging with the many other journal articles on Gäfgen). Mavronicola responded to Greer’s anti-absoluteness thesis by arguing that much of it ‘glosses over the issue of responsibility for human rights violations at law’, ‘eliding […] the distinction in human rights law between negative and positive obligations’. Graffin, for his part, argued that not only is it immoral to threaten individuals held for police questioning, but there are also clear policy reasons for criminally punishing police officers who use threats of torture (eg. to safeguard the integrity of the criminal justice system). Still unconvinced, Greer rebutted his critics one final time in 2018. In ‘a brief response to set the record straight’, he insisted that ‘head-in-the-sand’ recitation of the ‘absolutist orthodoxy’ is damaging to the ECHR system and ‘the human rights ideal itself’.
Unless a future episode is still in the works (like an unexpected extra episode of your favourite Netflix show that – in this iteration – none of your non-lawyer friends have even heard of), this concludes a protracted debate in which anything but the kitchen sink was thrown at the opponent’s arguments (obviously – and disappointingly perhaps, for your non-academic friends – always in civil terms, marked by collegial spirit and a healthy dose of respect). Even trolleys came rushing by in the debate. All this for a case that may well be a unique aberration. One cannot help but wonder, ten years on, if we have perhaps given Gäfgen disproportionate attention.
… But did it have any actual impact?
Did this ‘unique case’ have a lasting impact beyond (pre-)occupying a bunch of scholars in several rounds of debate? Greer certainly thought it did: ‘[w]hile the Gäfgen case may itself be a unique aberration, it nevertheless reveals important principles with wider application’. To Greer, Gäfgen revealed, in particular, ‘how a conceptually flawed interpretation of a fundamental norm in international human rights law can lead to substantive injustice in hitherto unforeseen contingencies[, resulting in] “legal fetishism”’.
In this anniversary post, I am more interested in the extent to which Gäfgen – and the important principles enunciated or reiterated therein – has had an impact on the Court’s subsequent article 3 case law. A rudimentary search in HUDOC teaches us that a potential total of 324 subsequent judgments reference Gäfgen, 183 of which do so in relation to article 3 ECHR claims. The latter group includes ten Grand Chamber judgments. It could be interesting to analyse, based on systematic research, the overall influence on the Court’s case law of an exceptional case like Gäfgen. That is not what I have done for this blog post. All I have done is identify all references to Gäfgen in the ten Grand Chamber judgments. Of these ten judgments, and somewhat to my surprise, only five contain relevant references to Gäfgen.
In Jeronovičs v. Latvia, for instance, the Grand Chamber relied on Gäfgen for the principle that
[i]n cases of wilful ill-treatment the breach of Article 3 cannot be remedied only by an award of compensation to the victim […] because [then] it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity, and the general legal prohibition of torture and inhuman and degrading treatment, despite its fundamental importance, would be ineffective in practice.
But apart from possibly Bouyid v. Belgium (more on that immediately below), the other four Grand Chamber judgments that reference Gäfgen do not really build or rely on it. Does this mean Gäfgen has had no longer-term impact on the Court’s case law? Not necessarily, but whatever influence there is, it may well be more minimal than I, for one, had expected heading into this exploratory exercise.
… Or is Bouyid more influential going forward?
Be that as it may, the passages in Gäfgen confirming the absolute nature of article 3 ECHR ‘even in the most difficult of circumstances’ and ‘regardless of the conduct of the person concerned’ could have opened the door for the later evolution towards what some – including judges within the Court itself (see the dissent) – consider an ‘expansive’ understanding of article 3 ECHR in Bouyid. If verbal threats against a suspect by police officers in a kidnapping case involving a minor constitute inhuman treatment, as the Court held they did in Gäfgen, it is difficult to subsequently exclude physical slaps of minors by police officers from the scope of article 3 altogether. And thus the Grand Chamber found in Bouyid that
The fact that the slap may have been administered thoughtlessly by an officer who was exasperated by the victim’s disrespectful or provocative conduct is irrelevant … As the Court has previously pointed out, even under the most difficult circumstances, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned.
The Grand Chamber further held that
persons who are held in police custody or are even simply taken or summoned to a police station for an identity check or questioning … and more broadly all persons under the control of the police or a similar authority, are in a situation of vulnerability. The authorities are consequently under a duty to protect them.
a slap inflicted by a law-enforcement officer on an individual who is entirely under his control constitutes a serious attack on the individual’s dignity … when [a] slap is inflicted by law-enforcement officers on persons under their control, [this] highlights the superiority and inferiority which by definition characterise the relationship between the former and the latter.
And, so, with Bouyid we have come full circle. We are back on the grass outside a classroom in Vienna. Manfred Nowak is teaching us that the interpretation of the prohibition of torture, inhuman and degrading treatment depends on interrelated circumstances of control, powerlessness and vulnerability. Given the salience of that interrelation, perhaps Bouyid is ultimately a more influential judgment for the interpretation of article 3 ECHR than Gäfgen ever was.
 I feel free to heap well-deserved praise on the blog and its team, now that I am no longer part of either!
 Pun intended (any smile provoked by me putting this in footnote also intended; frowns ditto).
 Incidentally, Nowak presented the linked report to the General Assembly the same year the Grand Chamber delivered its judgment in Gäfgen. His interpretation of the absolute prohibition of torture was confirmed by later UN Special Rapporteurs (see also A/HRC/43/49, released in advanced edited version on 20 March 2020).
 Khlaifa and Others v. Italy and Simeonovi v. Bulgaria provide some initial, anecdotal support for this hypothesis, in that both judgments rely more heavily on Bouyid and the principles enunciated (or reiterated) therein than they do on Gäfgen.