Blog Symposium “Strasbourg Observers turns ten” (3) – Gäfgen v. Germany: Some Reflections, Ten Years On

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. Continue reading

Othman (Abu Qatada) v. the United Kingdom: Questioning Gäfgen?

The European Court of Human Rights recently delivered its judgment in Othman (Abu Qatada) v. the United Kingdom, a case concerning the deportation of a terrorism suspect from the UK to Jordan. The applicant, Mr. Othman, had arrived in the United Kingdom in 1993, having fled Jordan. He requested asylum, alleging that he had been detained and tortured by the Jordanian authorities. He was recognised as a refugee in 1994 and granted leave to remain in the UK for an initial period of four years. In 1998 he applied for indefinite leave to remain in the UK. In 2002, while his application was still under consideration, he was arrested and taken into detention under the Anti-terrorism, Crime and Security Act of 2001. In August 2005 he was served with a notice of intention to deport. He challenged his possible deportation, thereby eventually reaching the European Court of Human Rights, alleging that there was a real risk that he would be subjected to torture upon his return to Jordan, in violation of article 3 ECHR. He also feared that he would face a retrial for offences (conspiracy to cause explosions and membership of a terrorist organisation) for which he had been convicted in Jordan in absentia in 1999. He claimed, inter alia, that there was a real risk that evidence obtained by torture – either of him, his co-defendants or other prisoners – would be admitted against him during the retrial, in violation of article 6 ECHR.

The Court ruled that article 3 would not be violated if the applicant were to be deported to Jordan, holding that sufficient safeguards were put in place to prevent the applicant’s torture through the signing of a Memorandum of Understanding between Jordan and the United Kingdom in which the latter had obtained diplomatic assurances that the applicant would not be tortured in Jordan. In this post I will  not address the article 3 part of the judgment in further detail, but will focus on the article 6 claim instead, since it raises possible concerns of compatibility with the Court’s leading judgment on the use of evidence obtained through inhuman treatment, Gäfgen v. Germany (1 June 2010).

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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.

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