ECHR Decision on Confessions Under the Threat of Torture

by Chris Borgen

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.

5 Responses

  1. Judge Kalaidjieva’s dissenting opinion is pretty convincing. I’m glad that she represents my country in the ECHR.

  2. Judge Kalaidjieva’s dissenting opinion is pretty convincing. I’m glad that she represents my country in the ECHR.

  3. 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.

  4. 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 totality of the circumstances kind of analysis in determining just how much the evidence on which the gentleman was convicted was based on the “poisonous tree”.

    Also, it did appear that the unsuccesful effort to cancel the German criminal proceedings (as opposed to the exclusion of the statements) on the basis of the threat of torture seems to fall in a similar territory in a different system as the effort in the Padilla case for a motion to dismiss for outrageous governmental conduct (motion denied with the judge placing great emphasis on the evidence being brought in not being tainted by what had allegedly happened to Padilla in military custody). Said motion, I understand in US domestic criminal proceedings, is very difficult to get to succeed.

    I suspect some comparative criminalist with German and English skills is hard at work on this and it would be interesting to see their analysis in due course.

    On the international plane, is the ECHR stepping back from the absolute prohibition? One does have a sense of the court winking at this case through the characterization of this as a threat of torture.

    Having made a speech yesterday about Thurgood Marshall on his one hundredth birthday, I was struck by the exact nature of the alleged threat of physical and sexual abuse described in the decision, to wit:

    According to the applicant, the officer further threatened to lock him into a cell with two huge black people who would sexually abuse him.

    This allegation is not confirmed in the rest of the opinion nor is it denied. I find it fascinating as a threat as it clearly plays upon a black sexuality and violence stereotype that has been a leitmotiv from at least slavery days in the United States, but also in Europe (and I suspect around the world).

    For Germany, if we go back to the beginning of the last century, we can think of the treatment of the fear of the black French colonial soldiers (the famous Tirailleurs Senegalais) and the viewing of them as savages.

    We can think back to the forced sterilization of the Rhineland Bastards – mixed children of white German women and Africans – all that purity of the race hatred from the Hitler period.

    In the pre-WWI colonial period there was legislation about the status of the offspring of white Germans with Africans from the colonies – with (if I remember right) a final decision that those children would not be considered germans.

    And, in the Nuremberg laws it is sometimes little known that there were references also to blacks.

    I would commend on this point a french book called “Noirs dans les camps nazis” (Blacks in the Nazi Camps) and the related documentary. I picked the book up in Paris several years ago and unfortunately can not find the full cite to it as I seem to have misplaced it in my office. Part of the documentary that is particularly moving is the stories told by some of the old Black Germans.

    I wonder whether the reaction would have been the same if the threat had been to put him into a room where a special gas would be used on him. That would hark back to the death camps and pull on that part of German history. I would think that the nature of the abusive threat might have pulled on other parts of the European conscious in that setting. I wonder if that would have led to a different result.

    What I suspect, and again I am only thinking through this out loud here, is that this type of threat (in the context of what is seen on police shows on television etc) is a garden variety prison rape threat mixed with a black sexuality and violence stereotype. It is a prejudice/fear that might be so integrated into the background that it does not have a particular bite to it when examined by the judge.

    I believe I have read that this was a huge case that was picked up in the press and the requirement of criminal proceedings against the police was a political necessity – again in the context of German history once the story got out. I thought the compensation decision appears to reflect the downplaying of the threat of torture and the disdain for the murderer.

    Still a very interesting case.



  5. 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.

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