03 Jul ECHR Decision on Confessions Under the Threat of Torture
Antoine Buyse at the ECHR Blog has posted an analysis of Gafgen v. Germany, a decision handed down by the ECHR on Monday concerning the admissibility of evidence resulting from statements made under the threat of torture. Here’s the background:
In 2003, the applicant, Magnus Gäfgen, was sentenced to life imprisonment for the murder of J., the eleven year old son, of a rich bankers family from Frankfurt am Main. Gäfgen had lured the boy into his home and subsequently killed him. That same day he dropped the corpse of the boy into a pond. He had then demanded a ransom of one million euros from the family, without disclosing that J. was already dead. Shortly after picking up the ransom, Gäfgen was arrested.
The case centres on what occurred next: thinking that the boy was still alive but in grave danger, the police officers questioning Gäfgen threatened him with considerable pain if he did not reveal where the child was. As a result, Gäfgen disclosed where the corpse could be found. At the start of the trial, Gäfgen complained that his confession had been made under the threat of torture.
Buyse explains that:
The Court first concluded that the threat, would it have been carried out, would have amounted to torture and that a threat of torture amounted to inhuman treatment. The threat itself, however, was not torture.
The opinion then states:
the Court finds that the treatment the applicant was threatened with would, if carried out, amount to torture. However, the questioning lasted for some ten minutes only and, as was established in the criminal proceedings against the police officers (…), took place in an atmosphere of heightened tension and emotions owing to the fact that the police officers, who were completely exhausted and under extreme pressure, believed that they had only a few hours to save J.’s life, elements which can be regarded as mitigating factors…
Buyse’s post considers this issue of mitigation (which he finds “somewhat puzzling” in light of the absolute prohibition on torture) and the balancing test that the ECHR seems to use in deciding whether or not torture has taken place. For a full explanation of these issues, as well as how this affects evidentiary and fair trial issues under the European Convention, see his full post.
Judge Kalaidjieva’s dissenting opinion is pretty convincing. I’m glad that she represents my country in the ECHR.
Judge Kalaidjieva’s dissenting opinion is pretty convincing. I’m glad that she represents my country in the ECHR.
I agree that Judge K’s dissent is pretty convincing. What I don’t agree with is the statement in her dissent in which she dismisses the debate about ‘fruits of a poisonous tree’ as merely theoretical. She is beyond any doubt arguing for a per se rule that the use of any evidence obtained from coercion or threat of coercion, directly or indirectly, is impermissible. Such a strong variant of the exclusionary rule has never been accepted in continental criminal procedure, so Judge K’s admonishment of the majority is departing from the Court’s earlier case law rings a bit hollow. Nonetheless, an extremely interesting case, and a pointed and well argued dissent.
This is a very interesting case and is sometimes cited as the “ticking time bomb” case. I believe this case has been the subject of much debate among German legal academics. I believe others have argued that it is not the “ticking time bomb” case because the boy is dead. Torturing the suspect, who one knows is the right suspect, who one knows has the knowledge, for the information, to save the boy, that one knows is alive. That would be the pure “ticking time bomb” case it would seem and that set of facts was absent here. If the bomb has already exploded (the equivalent to the boy being dead) the “ticking time bomb” has exploded and we fall outside of the hypothesis. I would like to focus on the question of the “fruit of the poisonous tree” part of the case. I am not a comparativist of great skill so I wonder whether the manner in which that idea occurs in the german system is similar to the manner in which those exclusions occur in the US system. I suspect the introduction of the “balancing” test is about how much the German court is doing a kind of… Read more »
Such a strong variant of the exclusionary rule has never been accepted in continental criminal procedure
Maybe true, but there is a difference between adopting it in cases of use or threat of use of torture or severe violence and cases of confessions not Mirandized with no violence.