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GAFGEN v. GERMANY - 22978/05 [2010] ECHR 759 (1 June 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/759.html
Cite as:
[2010] ECHR 759,
(2010) 52 EHRR 1,
28 BHRC 463,
[2010] Crim LR 865,
(2011) 52 EHRR 1,
52 EHRR 1
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GRAND
CHAMBER
CASE OF
GÄFGEN v. GERMANY
(Application
no. 22978/05)
JUDGMENT
STRASBOURG
1 June
2010
This
judgment is final but may be subject to editorial revision.
In the case of Gäfgen v. Germany,
The
European Court of Human Rights, sitting as a Grand Chamber composed
of:
Jean-Paul
Costa,
President,
Christos
Rozakis,
Nicolas
Bratza,
Françoise
Tulkens,
Josep
Casadevall,
Anatoly
Kovler,
Ljiljana
Mijović,
Renate
Jaeger,
Sverre
Erik Jebens,
Danutė
Jočienė,
Ján
Šikuta,
Ineta
Ziemele,
George
Nicolaou,
Luis
López Guerra,
Ledi
Bianku,
Ann
Power,
Nebojša
Vučinić,
judges,
and Erik
Fribergh, Registrar,
Having
deliberated in private on 18 March 2009 and on 24 March 2010,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 22978/05) against the Federal
Republic of Germany lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a German national, Mr
Magnus Gäfgen (“the applicant”), on 15 June 2005.
The applicant was granted legal aid.
The
applicant alleged that the treatment to which he had been subjected
during police interrogation concerning the whereabouts of a boy, J.,
on 1 October 2002 constituted torture prohibited by Article 3 of the
Convention. He claimed that he remained a victim of this violation.
He further alleged that his right to a fair trial as guaranteed by
Article 6 of the Convention, comprising a right to defend himself
effectively and a right not to incriminate himself, had been violated
in that evidence which had been obtained in violation of Article 3
had been admitted at his criminal trial.
The
application was allocated to the Third Section and, subsequently, to
the Fifth Section of the Court (Rule 52 § 1 of the Rules of
Court). By a decision of 10 April 2007 it was declared partly
admissible by a Chamber of the latter Section, composed of the
following judges: Peer Lorenzen,
President,
Snejana Botoucharova, Volodymyr Butkevych, Margarita
Tsatsa-Nikolovska, Rait Maruste, Javier Borrego Borrego, Renate
Jaeger, and also of Claudia Westerdiek, Section
Registrar.
On
30 June 2008 a Chamber of the Fifth Section, composed of the
following judges: Peer Lorenzen, President, Rait Maruste,
Volodymyr Butkevych, Renate Jaeger, Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska, Zdravka Kalaydjieva, and also of Claudia
Westerdiek, Section Registrar, delivered its judgment.
The Chamber decided, unanimously, that it was not necessary to rule
on the Government's preliminary objection of non-exhaustion of
domestic remedies. It held, by six votes to one, that the applicant
could no longer claim to be the victim of a violation of Article 3 of
the Convention. It further held, by six votes to one, that there had
been no violation of Article 6 of the Convention.
By
submissions dated 19 September 2008, received at the Court's Registry
on 26 September 2008, the applicant requested that the case be
referred to the Grand Chamber under Article 43 of the Convention and
Rule 73 of the Rules of Court, maintaining his claim that there
had been a violation of both Article 3 and Article 6 of the
Convention.
On 1 December 2008 the Panel of the Grand Chamber
accepted that request.
The
composition of the Grand Chamber was determined according to the
provisions of Article 27 §§ 2 and 3 of the Convention and
Rule 24 of the Rules of Court.
The
applicant and the Government each filed a memorial on the merits and
replied in writing to each other's memorials. In addition,
third-party comments were received from Mr Friedrich von Metzler
and Mrs Sylvia von Metzler, the parents of J., who had been
given leave by the President of the Fifth Section to intervene in the
written procedure (Article 36 § 2 of the Convention and
Rule 44 § 2) and who were represented by Mr E. Kempf and Ms H.
Schilling, lawyers practising in Frankfurt am Main. Additional
third-party submissions were received from the Redress Trust, a
London-based international human rights
non-governmental
organisation, which had been granted leave by the President to
intervene in the written procedure (Article 36 § 2 of the
Convention and Rule 44 §§ 2 and 3) and which was
represented by
Ms C. Ferstman, Director, and Mr L. Oette,
Adviser. The parties replied to those submissions (Rule 44 § 5).
A
hearing took place in public in the Human Rights Building,
Strasbourg, on 18 March 2009 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mrs A. Wittling-vogel,
Ministerialdirigentin,
Federal Ministry of
Justice, Agent,
Mr J. A. Frowein, Director (emeritus) of
the
Max Planck Institute for Comparative Public Law
and
International Law, Counsel,
Mr M. Bornmann, Public
Prosecutor,
Mr J. Koch, District Court Judge, Advisers;
(b) for the applicant
Mr M. Heuchemer,
lawyer, Counsel,
Mr D. Schmitz, lawyer,
Mr B. von
Becker, lawyer,
Mr J. Schulz-Tornau, lawyer, Advisers,
Mr S.
Ströhm,
Mr M. Bolsinger, Assistants.
The
Court received oral submissions from Mr Heuchemer and Mr Frowein
as well as their replies to questions put to them.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1975 and is currently
detained in Schwalmstadt prison, Germany.
A. The kidnapping of J. and the police investigation
J.
was the youngest son of a banking family in Frankfurt am Main. He got
to know the applicant, a law student, as an acquaintance of his
sister.
On
27 September 2002 the applicant lured J., aged eleven, into his flat
in Frankfurt am Main by pretending that the child's sister had left a
jacket there. He then killed the boy by suffocating him.
Subsequently,
the applicant deposited a ransom note at J.'s parents' place of
residence stating that J. had been kidnapped and demanding one
million euros. The note further stated that if the kidnappers
received the ransom and managed to leave the country, then the
child's parents would see their son again. The applicant then drove
to a pond located on a private property near Birstein, approximately
one hour's drive from Frankfurt, and hid J.'s corpse under a jetty.
On
30 September 2002 around 1 a.m. the applicant picked up the ransom at
a tram station. From then on he was under police surveillance.
He
lodged part of the ransom money into his bank accounts and hid the
remainder of the money in his flat. That afternoon, he was arrested
at Frankfurt am Main airport with the police pinning him face down on
the ground.
After
having been examined by a doctor at the airport's hospital on account
of shock and skin lesions, the applicant was taken to the Frankfurt
am Main Police Headquarters. He was informed by detective officer M.
that he was suspected of having kidnapped J. and was instructed about
his rights as a defendant, notably the right to remain silent and to
consult a lawyer.
He was then questioned by M. with a view to
finding J. Meanwhile, the police, having searched the applicant's
flat, found half of the ransom money and a note concerning the
planning of the crime. The applicant intimated that the child was
being held by another kidnapper. At 11.30 p.m. he was allowed to
consult a lawyer, Z., for thirty minutes at his request.
He
subsequently indicated that F.R. and M.R. had kidnapped the boy and
had hidden him in a hut by a lake.
Early
in the morning of 1 October 2002, before M. came to work, Mr Daschner
(D.), Deputy Chief of the Frankfurt police, ordered another officer,
Mr Ennigkeit (E.), to threaten the applicant with considerable
physical pain, and, if necessary, to subject him to such pain in
order to make him reveal the boy's whereabouts. D.'s subordinate
heads of department had previously and repeatedly opposed such a
measure (see also paragraph 47 below). Detective officer E. thereupon
threatened the applicant with subjection to considerable pain at the
hands of a person specially trained for such purposes if he did not
disclose the child's whereabouts. According to the applicant, the
officer further threatened to lock him into a cell with two huge
black men who would sexually abuse him. The officer also hit him
several times on the chest with his hand and shook him so that, on
one occasion, his head hit the wall. The Government disputed that the
applicant had been threatened with sexual abuse or had been
physically assaulted during the questioning.
For
fear of being exposed to the measures he was threatened with, the
applicant disclosed the whereabouts of J.'s body some ten minutes
thereafter.
The
applicant was then driven with M. and numerous other police officers
to Birstein. He had refused to go with detective officer E.
The
police waited for a video camera to be brought to the scene. Then,
the applicant, on the communicated order of the police officer in
command and whilst being filmed, pointed out the precise location of
the body. The police found J.'s corpse under the jetty at the pond
near Birstein as indicated by the applicant. The applicant claimed
that he had been obliged to walk without shoes through woods to where
he had left the corpse and, on the orders of the police, he had had
to point out its precise location. The Government disputed that the
applicant had had to walk without shoes.
Upon
forensic examination of the scene, the police discovered tyre tracks
left by the applicant's car near the pond near Birstein. Under
questioning by detective officer M. on the return journey from
Birstein the applicant confessed to having kidnapped and killed J. He
was then taken by the police to various other locations indicated by
him where they secured J.'s school exercise books, a backpack, J.'s
clothes and a typewriter used for the blackmail letter in containers.
An autopsy carried out on J.'s corpse on
2 October 2002 confirmed
that J. had died of suffocation.
Having
returned to the police station, the applicant was then permitted to
consult his lawyer En., who had been instructed to act on his behalf
by his mother and who had tried, in vain, to contact and advise the
applicant earlier that morning.
In
a note for the police file dated 1 October 2002, the deputy chief of
the Frankfurt police, D., stated that he believed that that morning
J.'s life had been in great danger, if he was still alive at all,
given his lack of food and the temperature outside. In order to save
the child's life, he had therefore ordered the applicant to be
threatened by police officer E. with considerable pain which would
not leave any injuries. He confirmed that the treatment itself was to
be carried out under medical supervision. D. further admitted that he
had ordered another police officer to obtain a “truth serum”
to be administered to the applicant. According to the note, the
threat to the applicant was exclusively aimed at saving the child's
life rather than furthering the criminal proceedings concerning the
kidnapping. As the applicant had disclosed the whereabouts of J.'s
body, having been threatened with pain, no measures had in fact been
carried out.
A
medical certificate issued by a police doctor on 4 October 2002
confirmed that the applicant had a haematoma (7 cm x 5 cm) below his
left collarbone, skin lesions and blood scabs on his left arm and his
knees and swellings on his feet. A further medical certificate dated
7 October 2002 noted that following an examination of the applicant
on 2 October 2002, two haematomas on the applicant's left chest of a
diameter of some 5 cm and 4 cm were confirmed, together with
superficial skin lesions or blood scabs on his left arm, his knees
and his right leg and closed blisters on his feet. According to the
certificate, these discreet traces of injuries indicated that the
injuries had been caused a few days before the examination.
The
precise cause of the injuries could not be diagnosed.
During
subsequent questioning by the police on 4 October 2002, by a public
prosecutor on 4, 14 and 17 October 2002, and by a district court
judge on 30 January 2003 the applicant confirmed the confession he
had made on 1 October 2002.
In
January 2003 the Frankfurt am Main Public Prosecutor's Office opened
criminal investigation proceedings against the deputy chief of the
Frankfurt police, D., and detective officer E. on the basis of the
applicant's allegations of having been threatened on 1 October 2002.
B. The criminal proceedings against the applicant
1. Proceedings in the Frankfurt am Main Regional Court
(a) The preliminary applications
concerning the prohibition of the proceedings and the inadmissibility
of evidence
On
9 April 2003, the first day of the hearing, the applicant,
represented by counsel, made a preliminary application for the
proceedings to be discontinued. The basis of his claim was that
during interrogation and prior to confessing he had been threatened
by detective officer E. with being subjected to severe pain and
sexual abuse. He argued that this treatment had been in breach of
Article 136a of the Code of Criminal Procedure (see paragraph 61
below) and Article 3 of the Convention and warranted the
discontinuation of the proceedings against him.
The
applicant also lodged an alternative preliminary application seeking
a declaration that owing to the continuous effect (Fortwirkung)
of the threat of violence against him on 1 October 2002, all
statements which he had made to the investigation authorities should
not be relied upon in the criminal proceedings. Moreover, the
applicant sought a declaration that on account of the violation of
Article 136a of the Code of Criminal Procedure, the use in the
criminal proceedings of all items of evidence, such as the child's
corpse, which had become known to the investigation authorities
because of the confession extracted – the so-called “fruit
of the poisonous tree” – was prohibited (“Fernwirkung”).
In
response to the first preliminary application the Frankfurt am Main
Regional Court on 9 April 2003 dismissed the applicant's
application for the discontinuation of the criminal proceedings. The
court noted that in the applicant's submission, detective officer E.
had threatened that a specialist was on his way to the police station
by helicopter who, without leaving any traces, would inflict on him
intolerable pain the likes of which he had never before experienced,
if he continued to refuse to disclose J.'s whereabouts. To underpin
the threat, E. had imitated the sound of the rotating blades of a
helicopter. E. had further threatened that the applicant would be
locked up in a cell with two big “Negroes” who would
anally assault him. He would wish that he had never been born. The
court found as a fact that the applicant had been threatened with the
infliction of considerable pain if he refused to disclose the
victim's whereabouts. However, the court did not find it established
that the applicant had also been threatened with sexual abuse or had
been otherwise influenced.
The threat to inflict pain upon the
applicant had been illegal pursuant to Article 136a of the Code
of Criminal Procedure, and also pursuant to Article 1 and
Article 104 § 1 of the Basic Law (see paragraphs 59-60 below)
and in violation of Article 3 of the Convention.
However,
notwithstanding this breach of the applicant's constitutional rights
the court found that the criminal proceedings were not, in
consequence, barred and could proceed. It found that the use of the
investigation methods in question, though prohibited in law, had not
so restricted the rights of the defence that the criminal proceedings
could not be pursued. In view of the seriousness of the charges
against the applicant on the one hand, and the severity of the
unlawful conduct during investigation on the other, there had not
been such an exceptional and intolerable violation of the rule of law
as to bar the continuation of the criminal proceedings.
In
response to the applicant's second preliminary application the
Frankfurt am Main Regional Court found that in accordance with
Article 136a § 3 of the Code of Criminal Procedure, all
confessions and statements hitherto made by the applicant before the
police, a public prosecutor and a district court judge were
inadmissible as evidence in the criminal proceedings because they
were obtained through the use of prohibited methods of interrogation.
The
court found that on 1 October 2002 detective officer E. had used
prohibited methods of interrogation within the meaning of Article
136a § 1 of the Code by threatening the applicant with
intolerable pain if he did not disclose the child's whereabouts.
Therefore, any statements which the applicant had made as a
consequence of this forbidden investigative measure were inadmissible
as evidence. This exclusion of evidence (Beweisverwertungsverbot)
did not only comprise the statements made immediately after the
unlawful threat. It covered all further statements which the
applicant had made to the investigation authorities since that date
in view of the continuous effect of the violation of Article 136a of
the Code.
The
procedural irregularity caused by the use of a prohibited method of
investigation could only have been remedied if the applicant had been
informed before his subsequent questioning that his earlier
statements made as a consequence of the threat of subjection to pain
could not be used as evidence against him. However, the applicant had
only been instructed about his right not to testify, without having
been informed about the inadmissibility of the evidence that had been
improperly obtained. He had therefore not been given the necessary
“qualified instruction” (qualifizierte Belehrung)
before making further statements.
However,
the court limited the inadmissible evidence to the aforesaid
statements. It went on to dismiss the applicant's application for a
declaration that on account of the prohibited investigation methods,
the use in the criminal proceedings of all items of evidence, such as
the child's corpse, which had become known to the investigation
authorities as a consequence of the statements extracted from the
applicant ought to be excluded from trial (“Fernwirkung”).
The court found:
“... there is no long-range effect of the
breach of Article 136a of the Code of Criminal Procedure meaning that
the items of evidence which have become known as a result of the
statement may likewise not be used [as evidence]. The Chamber agrees
in this respect with the conciliatory view (Mittelmeinung)
taken by scholars and in court rulings ... according to which a
balancing [of interests] in the particular circumstances of the case
had to be carried out, taking into account, in particular, whether
there had been a flagrant violation of the legal order, notably of
provisions on fundamental rights, and according to which the
seriousness of the offence investigated also had to be considered.
Balancing the severity of the interference with the defendant's
fundamental rights – in the present case the threat of
physical violence – and the seriousness of the offence he was
charged with and which had to be investigated – the completed
murder of a child – makes the exclusion of evidence which
has become known as a result of the defendant's statement – in
particular the discovery of the dead child and the results of the
autopsy – appear disproportionate.”
(b) The Regional Court's judgment
Following
the above ruling on the applicant's preliminary applications made on
the opening day of the trial, the proceedings continued. The next
day, in his statement on the charges, the applicant admitted having
killed J., but stated that he had not initially intended to do so.
His defence counsel submitted that by confessing, the applicant
wanted to take responsibility for his offence notwithstanding the
interrogation methods used on 1 October 2002. As the trial proceeded,
all further items of evidence found as a consequence of the
applicant's original statement and which the applicant sought to have
excluded were adduced. At the close of the trial on 28 July 2003 the
applicant admitted that he had also intended from the outset to kill
the child. He described his second confession as “the only way
to accept his deep guilt” and as the “greatest possible
apology for the murder of the child”.
On
28 July 2003 the Frankfurt am Main Regional Court convicted the
applicant, inter alia, of murder and kidnapping with extortion
causing the death of the victim. It sentenced him to life
imprisonment and declared that his guilt was of particular gravity,
warranting a maximum sentence (see paragraph 63 below).
The
court found that at the hearing the applicant had been instructed
anew about his right to remain silent and about the fact that none of
his earlier statements could be used as evidence against him and had
thereby been given the necessary qualified instruction. However, the
applicant had, following the qualified instruction, confessed that he
had kidnapped and killed J. His statements at the trial concerning
the planning of his offence formed the essential, if not the only,
basis for the court's findings of fact. They were corroborated by the
testimony of J.'s sister, the blackmail letter and the note
concerning the planning of the crime found in the applicant's flat.
The findings of fact concerning the execution of the crime were
exclusively based on the applicant's confession at the trial. Further
items of evidence showed that he had told the truth also in this
respect. These included the findings of the autopsy as to the cause
of the child's death, the tyre tracks left by the applicant's car
near the pond where the child's corpse had been found, and the
discovery of money from the ransom which had been found in his flat
or paid into his accounts.
In
assessing the gravity of the applicant's guilt, the court observed
that he had killed his eleven-year-old victim and demanded one
million euros in ransom in order to preserve his self-created image
of a rich and successful young lawyer. It did not share the views
expressed by the Public Prosecutor's Office and the private accessory
prosecutors that the applicant's confession “was worth nothing”
as the applicant had only confessed to what had in any event already
been proven. The fact that the applicant had volunteered a full
confession at the trial, even though all his earlier confessions
could not be used as evidence pursuant to Article 136a § 3
of the Code of Criminal Procedure, was a mitigating factor. However,
even without his confession, the applicant would have been found
guilty of kidnapping with extortion causing the death of the victim.
The applicant had been kept under police surveillance after he had
collected the ransom, which had later been found in his flat or paid
into his accounts. Furthermore, it was proved by the autopsy on J.'s
corpse that the boy had been suffocated, and tyre tracks left by the
applicant's car had been detected at the place where J.'s body had
been found.
The
court further observed that in questioning the applicant, methods of
interrogation prohibited under Article 136a of the Code of Criminal
Procedure had been employed. Whether and to what extent detective
officer E. and the deputy chief of the Frankfurt police, D., were
guilty of an offence because of these threats had to be determined in
the criminal investigations then pending against them. However, their
allegedly illegal acts did not mitigate the applicant's own guilt.
The misconduct of police officers, belonging to the executive power,
could not prevent the judiciary from assessing findings of fact in
accordance with the law.
2. Proceedings in the Federal Court of Justice
On
the day following the conviction, the applicant lodged an appeal on
points of law with the Federal Court of Justice. He complained that
the Regional Court, in its decision of 9 April 2003, had refused his
preliminary application to discontinue the criminal proceedings
against him. It had further refused to declare that the use in the
criminal proceedings of all other items of evidence, such as the
child's corpse, which had become known to the investigation
authorities because of the statements unlawfully extracted was
prohibited. The applicant included a full copy of these applications
of 9 April 2003, including the grounds given for them.
He further
included a copy of the Regional Court's decision of 9 April 2003
dismissing his application for the proceedings to be discontinued and
argued in respect of the police's threats of torture against him
that, developing the case-law of the Federal Court of Justice, such
conduct “leapt beyond” the exclusion of evidence and led
to an impediment to the proceedings (“dass ein derartiges
Verhalten das Verwertungsverbot 'überspringt' und ein
Verfahrenshindernis begründet”).
In
his observations dated 9 March 2004 the Federal Public Prosecutor
objected that the applicant's appeal on points of law was manifestly
ill-founded. He argued that the use of prohibited methods of
interrogation did not lead to an impediment to the criminal
proceedings. Article 136a of the Code of Criminal Procedure expressly
provided that the use of any of the prohibited methods enumerated
entailed only the exclusion of evidence. The applicant had not
complained of a breach of Article 136a § 3 of the Code of
Criminal Procedure. In any event, there would be no grounds for such
a complaint as the Regional Court had only used the applicant's
confession at the trial, which he had made after having been informed
that his previous statements had not been admitted as evidence.
On
21 May 2004 the Federal Court of Justice, without giving further
reasons, dismissed the applicant's appeal on points of law as
ill-founded.
3. Proceedings in the Federal Constitutional Court
On
23 June 2004 the applicant lodged a complaint with the Federal
Constitutional Court. Summarising the facts underlying the case and
the content of the impugned decisions, he complained under Article 1
§ 1 and Article 104 § 1, second sentence, of the Basic Law
about the way in which he had been questioned by the police on the
morning of 1 October 2002.
He argued that he had been threatened
with being subjected to torture and sexual abuse if he did not
disclose the child's whereabouts. In the circumstances of the case,
this treatment amounted to torture within the meaning of Article 3 of
the Convention and infringed Article 104 § 1 of the Basic
Law. It also violated his absolute right to human dignity under
Article 1 of the Basic Law, which lay at the heart of the
provisions in question. These unjustifiable human-rights violations
ought to have been a bar to the criminal proceedings for murder and a
prohibition on using the evidence obtained as a consequence of the
confession extracted from him by means of prohibited measures.
On
14 December 2004 the Federal Constitutional Court, sitting as a panel
of three judges, held that the applicant's constitutional complaint
was inadmissible.
Firstly,
in so far as the applicant complained of the failure of the criminal
courts to discontinue the proceedings against him, the court found
that he had not sufficiently substantiated his complaint. It observed
that the Regional Court had already stated that the police's threat
to inflict pain on the applicant had violated Article 136a of the
Code of Criminal Procedure and Article 3 of the Convention and that
the applicant's rights under Article 1 § 1 and Article 104
§ 1, second sentence, of the Basic Law had been disregarded.
However,
the violation of fundamental rights outside the trial did not
necessarily warrant the conclusion that the judgment delivered by a
criminal court, which was based on the findings made during the
trial, breached constitutional law. In the present case, the criminal
courts had found that the methods of investigation used by the police
had been prohibited, but had differed from the applicant as to the
legal consequences that flowed from that finding. They had taken the
view that the statements obtained as a result of the measures in
question could not be used but that there was no bar to the specific
criminal proceedings being pursued.
According
to the Federal Constitutional Court, the procedural flaw of having
used prohibited investigation measures could be regarded as having
been remedied by the criminal courts, because they had prohibited the
admission of the statements obtained thereby. Such a prohibition was
prescribed by Article 136a § 3 of the Code of Criminal Procedure
in order to compensate for a prior infringement of the rights of the
person concerned. However, the circumstances in which substantial
procedural irregularities might entail a bar to criminal proceedings
were not laid down in law.
In these circumstances, the applicant
had failed to explain why the contested methods of investigation had
not only required a prohibition on using the statements obtained
thereby as evidence, but should also lead to a bar to criminal
proceedings against him.
Secondly,
the Federal Constitutional Court found that, in so far as the
applicant complained that the Regional Court had refused to exclude
the use in the proceedings of all items of evidence obtained as a
result of the confession extracted under threat, his constitutional
complaint was likewise inadmissible. It held that the applicant had
failed to raise this issue in the proceedings before the Federal
Court of Justice.
The
decision was served on the applicant's lawyer on
22 December
2004.
C. Subsequent events
1. The criminal proceedings against the police officers
On
20 December 2004 the Regional Court delivered judgments against the
deputy chief of the Frankfurt police, D., and detective officer E.
The court found that on the morning of 1 October 2002 D. had ordered
that the applicant was to be questioned while being subjected to pain
in the manner set out in his subsequent note for the police file (see
paragraph 20 above). By doing so, he had acted against the advice of
all his subordinate heads of department entrusted with the
investigation into J.'s kidnapping. The heads of department had
opposed this measure, which he had previously ordered on the evening
of 30 September 2002 and then twice on the morning of 1 October 2002.
The heads of department had resisted the orders, proposing instead
further questioning and confrontation of the applicant with J.'s
family. D. had then issued an order to detective officer E. directing
him to comply with his instructions that the applicant should be
threatened with torture and, if necessary, subjected thereto. The
subjection to pain was to be carried out under medical supervision,
without any traces being left, by another specially trained police
officer, who would be brought to the police station by helicopter. A
police doctor had agreed to supervise the execution of D.'s order.
The court noted that the measure had been aimed at finding out where
the applicant had hidden J., whose life D. believed was at great
risk. Therefore, E. had threatened the applicant in the manner
ordered by D. and had also informed him that a truth serum would be
administered. After approximately ten minutes, the applicant
confessed that he had hidden J. under a jetty at a pond near
Birstein.
The
Regional Court observed that the method of investigation had not been
justified. It rejected the defence of “necessity” because
the method in question violated human dignity, as codified in Article
1 of the Basic Law. Respect for human dignity also lay at the heart
of Article 104 § 1, second sentence, of the Basic Law and
Article 3 of the Convention.
The protection of human dignity was
absolute, allowing of no exceptions or any balancing of interests.
The
Frankfurt am Main Regional Court convicted detective officer E. of
coercion committed by an official in the course of his duties.
However, in terms of penalty, it cautioned the defendant and imposed
a suspended fine of 60 euros (EUR) per diem for 60 days, which the
defendant would be required to pay if he committed another offence
during the probation period. Furthermore, the court convicted the
deputy chief of the Frankfurt police, D., of having incited E., a
subordinate, to commit coercion in the course of his duties. It also
cautioned D. and imposed on him a suspended fine of EUR 120 per diem
for 90 days. The applicant had given evidence as a witness in these
proceedings.
In
determining the sentences, the Regional Court considered that there
were significant mitigating factors to be taken into account. It took
into consideration that the defendants' sole concern had been to save
J.'s life and that they had been under extreme pressure because of
their respective responsibilities vis-à-vis the
superior authority and the public. They had been exhausted at the
relevant time and had acted in a very tense and hectic situation.
They did not have any previous convictions. Moreover, D. had taken
responsibility for his acts by admitting and explaining them in a
note for the police file on the same day. The proceedings had lasted
a long time and had attracted immense media attention. The defendants
had suffered prejudice in their professional career: D. had been
transferred to the Hessian Ministry of the Interior, and E. had been
prohibited from acting in the prosecution of criminal offences.
Furthermore, it was the first time that a conflict situation such as
the one in the defendants' case had been assessed by a German
criminal court. The court took into consideration as aggravating
factors that D. had not acted spontaneously as he had already
directed the use of force on the evening before he had given the
order to E. Moreover, by their acts, the defendants had risked
compromising the applicant's conviction for murder. The court further
found that the preservation of the legal order did not warrant the
enforcement of the fines imposed. Through the defendants' criminal
conviction it had been made clear that an order by a State agent to
use force to obtain information was illegal.
The
judgment became final on 20 December 2004.
Subsequently,
D. was appointed as chief of the Police Headquarters for Technology,
Logistics and Administration.
2. The official liability proceedings brought by the
applicant
On
28 December 2005 the applicant applied to the Frankfurt am Main
Regional Court for legal aid for bringing official liability
proceedings against the Land of Hesse for the payment of
compensation. He claimed that he had been traumatised and in need of
psychological treatment because of the methods deployed during the
police investigation.
In
its submissions dated 27 March 2006 the Frankfurt am Main Police
Headquarters contested that E.'s conduct when questioning the
applicant in the morning of 1 October 2002 was to be legally
classified as coercion and amounted to a breach of official duties.
On
28 August 2006 the Frankfurt am Main Regional Court dismissed the
applicant's application for legal aid and the applicant appealed.
On
28 February 2007 the Frankfurt am Main Court of Appeal dismissed the
applicant's appeal. Endorsing the reasons given by the Regional
Court, it confirmed, in particular, that police officers D. and E.,
when threatening the applicant, had infringed human dignity, which
was inviolable, and had thus breached their official duties. However,
the applicant would face difficulties establishing causation between
the threats of torture and alleged mental damage allegedly
necessitating psychological treatment. The officers' threat was
negligible compared to the traumatisation caused by the fact of
having killed a child. Moreover, even assuming that the applicant
would be able to prove that police officer E. had shaken him, causing
him to hit his head against a wall, or had once hit him on the chest,
allegedly causing a haematoma, such physical damage would be too
minor to necessitate the payment of compensation. Furthermore, the
violation of his human dignity by the threat of torture did not
warrant the payment of compensation since the applicant had obtained
sufficient satisfaction for this by the exclusion of his statements
as evidence and the criminal conviction of the police officers.
On
19 January 2008 the Federal Constitutional Court, allowing a
constitutional complaint by the applicant, quashed the Court of
Appeal's decision and remitted the case to that court. It found that
in refusing to grant the applicant legal aid, the Court of Appeal had
violated the principle of equal access to court. In particular, that
court had speculated that the applicant would not be able to prove
that the threat to torture him had led to mental damage. In addition
to that, it was not obvious that the physical injuries the applicant
claimed to have suffered in the course of the interrogation, during
which he had been handcuffed, could be considered to be of minor
importance. Moreover, the question whether the violation of the
applicant's human dignity necessitated the payment of damages despite
the satisfaction he had already obtained was a difficult legal
question on which no precedent existed in a judgment of a court of
final instance. It should, therefore, not be determined in an
application for legal-aid proceedings.
The
remitted proceedings are still pending before the Frankfurt am Main
Regional Court.
II. RELEVANT DOMESTIC, PUBLIC INTERNATIONAL AND
COMPARATIVE LAW AND PRACTICE
A. Provisions of domestic law
1. The Basic Law
Article
1 § 1 of the Basic Law, on the protection of human dignity,
reads as follows:
“Human dignity shall be inviolable. To respect and
protect it shall be the duty of all State authority.”
Article
104 § 1, second sentence, of the Basic Law, on the rights of
persons in detention, provides:
“Persons taken into custody may not be subjected
to mental or to physical
ill-treatment.”
2. The Code of Criminal Procedure
Article
136a of the Code of Criminal Procedure, on prohibited methods of
interrogation (verbotene Vernehmungsmethoden), provides:
“(1) The freedom of the accused to make
decisions and to manifest his will shall not be impaired by
ill-treatment, induced fatigue, physical interference, the
administration of drugs, torment, deception or hypnosis. Coercion may
be used only in so far as it is permitted by the law on criminal
procedure. Threatening the accused with measures that are not
permitted under the law on criminal procedure or holding out the
prospect of an advantage that is not contemplated by statute shall be
prohibited.
(2) Measures which impair the accused's
memory or ability to understand and accept a given situation
(Einsichtsfähigkeit) shall not be permitted.
(3) The prohibition under subsections (1) and
(2) shall apply even if the accused has consented [to the proposed
measure]. Statements obtained in breach of this prohibition shall not
be used [in evidence], even if the accused has agreed to their use.”
3. The Criminal Code
By
Article 211 of the Criminal Code, the intentional killing of a person
is to be classified as murder if certain aggravating elements are
present such as cupidity, treachery or in order to cover up another
offence. Murder is punishable by life imprisonment.
A
declaration by the sentencing court that the defendant's guilt is of
a particular gravity may, inter alia, have a bearing on a
subsequent decision regarding suspension of the latter part of the
defendant's prison sentence on probation. Article 57a of the Criminal
Code states that the court is to suspend the remainder of a life
sentence on probation if the convicted person has served fifteen
years of his sentence, provided that this can be justified in the
interests of public security and the particular gravity of the
defendant's guilt does not warrant the continued execution of the
sentence.
B. Provisions of public international law
The
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, which was adopted by the United Nations
General Assembly on 10 December 1984 (resolution 39/46) and
which entered into force on 26 June 1987, provides:
Article 1
“1. For the purposes of this
Convention, the term 'torture' means any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on
a person for such purposes as obtaining from him or a third person
information or a confession, punishing him for an act he or a third
person has committed or is suspected of having committed, or
intimidating or coercing him or a third person, or for any reason
based on discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity. It does not include pain or suffering arising only
from, inherent in or incidental to lawful sanctions.”
Article 15
“Each State Party shall ensure that any statement
which is established to have been made as a result of torture shall
not be invoked as evidence in any proceedings, except against a
person accused of torture as evidence that the statement was made.”
Article 16
“1. Each State Party shall undertake to
prevent in any territory under its jurisdiction other acts of cruel,
inhuman or degrading treatment or punishment which do not amount to
torture as defined in article 1, when such acts are committed by
or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity. In
particular, the obligations contained in articles 10, 11, 12 and 13
shall apply with the substitution for references to torture of
references to other forms of cruel, inhuman or degrading treatment or
punishment.”
C. Practice of the courts of other States and of other
human-rights monitoring bodies
1. The legal qualification of threats of torture
Several
institutions which monitor observance of the prohibition of torture
and of other inhuman or degrading treatment have addressed the
question of the scope of that prohibition in the context of threats
of subjecting a person to physical harm.
The
Inter-American Court of Human Rights, in its judgment of
27
November 2003 (Merits, Reparations and Costs) in the case of
Maritza Urrutia v. Guatemala (Series C No. 103), found:
“85. With
regard to the treatment that the State officials afforded to Maritza
Urrutia while she was unlawfully and arbitrarily detained, the Court
has considered proven that the alleged victim's head was covered by a
hood, she was kept handcuffed to a bed, in a room with the light on
and the radio at full volume, which prevented her from sleeping. In
addition, she was subjected to very prolonged interrogations, during
which she was shown photographs of individuals who showed signs of
torture or had been killed in combat and she was threatened that she
would be found by her family in the same way. The State agents also
threatened to torture her physically or to kill her or members of her
family if she did not collaborate. To this end, they showed her
photographs of herself and her family and correspondence from her to
her former husband (supra para. 58.6). Lastly, Maritza Urrutia was
obliged to film a video, which was subsequently broadcast by two
Guatemalan television channels, in which she made a statement against
her will, the contents of which she was forced to ratify at a press
conference held after her release (supra paras. 58.8 and 58.9). ...
92. An international juridical regime of
absolute prohibition of all forms of torture, both physical and
psychological, has been developed and, with regard to the latter, it
has been recognized that the threat or real danger of subjecting a
person to physical harm produces, under determined circumstances,
such a degree of moral anguish that it may be considered
'psychological torture'. ...
98. In light of the foregoing, the Court
declares that the State violated Article 5 of the American
Convention, in relation to Article 1(1) thereof, and the obligations
established in Articles 1 and 6 of the Inter-American Convention
against Torture, to the detriment of Maritza Urrutia.”
The
United Nations Special Rapporteur for the Commission on Human Rights
found in his report of 3 July 2001 to the General Assembly on the
question of torture and other cruel, inhuman or degrading treatment
or punishment (UN Doc. A/56/156) as follows: “As stated by
the Human Rights Committee in its General Comment No. 20 (10 April
1992), on article 7 of the International Covenant on Civil and
Political Rights, the Special Rapporteur would like to remind
Governments that the prohibition of torture relates not only to acts
that cause physical pain but also to acts that cause mental suffering
to the victim, such as intimidation and other forms of threats”
(§ 3). He pointed out that “the fear of physical
torture may itself constitute mental torture” (§ 7).
Furthermore, the Special Rapporteur was of the opinion that “serious
and credible threats, including death threats, to the physical
integrity of the victim or a third person can amount to cruel,
inhuman or degrading treatment or even to torture, especially when
the victim remains in the hands of law enforcement officials”
(§ 8).
The
United Nations Human Rights Committee, in its Views adopted on 29
March 1983 in the case of Estrella v. Uruguay (Communication
No. 74/1980), found that the author of the communication, a
concert pianist, “was subjected to severe physical and
psychological torture, including the threat that the author's hands
would be cut off by an electric saw, in an effort to force him to
admit subversive activities” (§ 8.3). The Human Rights
Committee held that the author had been subjected to torture in
violation of Article 7 of the International Covenant on Civil and
Political Rights (ICCPR) (§ 10).
2. The admission of evidence procured as a result of
torture or other prohibited ill-treatment: the exclusionary rule
(a) The States Parties to the Convention
Materials
before the Court show that there is no clear consensus in the States
Parties to the Convention on the scope of the exclusionary rule.
(b) Other human-rights monitoring bodies
The
United Nations Human Rights Committee stated in its General Comment
No. 7 on torture or cruel, inhuman or degrading treatment or
punishment (Article 7 of the ICCPR) of 30 May 1982:
“1. ... it follows from article 7, read
together with article 2 of the Covenant, that States must ensure an
effective protection through some machinery of control. Complaints
about ill-treatment must be investigated effectively by competent
authorities. Those found guilty must be held responsible, and the
alleged victims must themselves have effective remedies at their
disposal, including the right to obtain compensation. Among the
safeguards which may make control effective are ... provisions making
confessions or other evidence obtained through torture or other
treatment contrary to article 7 inadmissible in court; ...”
General
Comment No. 7 concerning prohibition of torture and cruel treatment
or punishment was replaced by General Comment No. 20 of
10 March
1992. In the latter, it is stated:
“12. It is important for the
discouragement of violations under article 7 that the law must
prohibit the use of admissibility in judicial proceedings of
statements or confessions obtained through torture or other
prohibited treatment.”
The
Committee against Torture, which monitors the implementation of the
United Nations Convention against Torture, recommended in its
Concluding Observations on Germany of 11 May 1998 (doc. no. A/53/44)
that “further legislative attention be paid to the strict
enforcement of article 15 of the Convention and that all evidence
obtained directly or indirectly by torture be strictly prevented from
reaching the cognizance of the deciding judges in all judicial
proceedings” (see § 193).
(c) Case-law of the courts of other States
The
prohibition on using, in any manner prejudicial to the accused,
information derived from facts learned as a result of the unlawful
acts of State agents (the so-called doctrine of the fruit of the
poisonous tree) is firmly rooted in the legal tradition of the United
States of America (see, for instance, U.S. Supreme Court, no.
82-1651, Nix v. Williams, decision of
11 June 1984, 467
U.S. 431 (1984), pp. 441 et seq.; U.S. Supreme Court, no. 82-5298,
Segura v. United States, decision of 5 July 1984, 468 U.S. 796
(1984), pp. 796-97 and 815; and U.S. Supreme Court, no. 07-513,
Herring v. United States, decision of 14 January 2009, 555
U.S. ... (2009), part II. A. with further references). The
prohibition applies to information obtained from coerced confessions
(see on the issue of coercion U.S. Supreme Court, no. 50, Blackburn
v. Alabama, decision of 11 January 1960, 361 U.S. 199, pp.
205-207, and U.S. Supreme Court, no. 8, Townsend v. Sain,
decision of 18 March 1963, 372 U.S. 293 (1963), pp. 293 and 307-309),
meaning that if the confession leads to additional evidence, such
evidence is also inadmissible in court in addition to the confession
itself (compare Nix, cited above, p. 441, and Segura,
cited above, p. 804). The evidence is to be excluded, however, only
if the illegality is the proximate cause of the discovery of the
evidence. In other words, evidence will be excluded if it can be
shown that “but for” the illegal conduct it would not
have been found. The exclusionary rule does not apply where the
connection between the illegal police conduct and the discovery of
the evidence is so remote as to dissipate the taint. This is the
case, for example, where the police relied on an independent source
to find the evidence (see Nix, cited above, pp. 441-44,
and Segura, cited above, pp. 796-97, 804-05 and 815 with
further references) or where the evidence would ultimately or
inevitably have been discovered even had no violation of any
constitutional provision taken place (see Nix, cited above,
pp. 441-44).
The
exclusionary rule is also applied in other jurisdictions.
The
Supreme Court of Appeal of South Africa found in its recent judgment
of 10 April 2008 in the case of Mthembu v. The State, case
no. 379/2007, [2008] ZASCA 51:
“Summary: The evidence of an accomplice extracted
through torture, (including real evidence derived from it), is
inadmissible ...
33. ... The Hilux and the metal box were real
evidence critical to the State's case against the appellant on the
robbery counts. Ordinarily, as I have mentioned, such evidence would
not be excluded because it exists independently of any constitutional
violation. But these discoveries were made as result of the police
having tortured Ramseroop. There is no suggestion that the
discoveries would have been made in any event. If they had the
outcome of this case might have been different.
34. Ramseroop made his
statement to the police immediately after the metal box was
discovered at his home following his torture. That his subsequent
testimony was given apparently voluntarily does not detract from the
fact that the information contained in that statement pertaining to
the Hilux and metal box was extracted through torture. ... therefore,
there is an inextricable link between his torture and the nature of
the evidence that was tendered in court. The torture has stained the
evidence irredeemably. ...
36. To admit Ramseroop's testimony regarding
the Hilux and metal box would require us to shut our eyes to the
manner in which the police obtained this information from him. More
seriously, it is tantamount to involving the judicial process in
'moral defilement'. This 'would compromise the integrity of the
judicial process (and) dishonour the administration of justice'. In
the long term, the admission of torture-induced evidence can only
have a corrosive effect on the criminal justice system. The public
interest, in my view, demands its exclusion, irrespective of whether
such evidence has an impact on the fairness of the trial.
37. For all these reasons I consider
Ramseroop's evidence relating to the Hilux and metal box to be
inadmissible. ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that he had been subjected to torture contrary
to Article 3 of the Convention in the context of his police
interrogation on 1 October 2002. He argued that he was still a victim
of that breach of Article 3, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
Government contested that view, arguing that the applicant could no
longer claim to be the victim of a violation of Article 3.
A. The applicant's victim status
Article
34 of the Convention provides, where relevant:
“The Court may receive applications from any
person ... claiming to be the victim of a violation by one of the
High Contracting Parties of the rights set forth in the Convention or
the Protocols thereto. ...”
The
Court considers that in the present case it cannot answer the
question whether the applicant subsequently lost his initial status
as the victim of a breach of Article 3 of the Convention within the
meaning of Article 34 of the Convention without having first
established how the applicant was treated in the context of his
questioning, and without having assessed the severity of that
treatment in the light of Article 3. Thereafter, the adequacy or
otherwise of the authorities' response thereto can be considered.
1. Whether the impugned treatment was contrary to
Article 3
(a) The Chamber judgment
The
Chamber considered that the applicant had been threatened by
detective officer E. on the instructions of the deputy chief of the
Frankfurt am Main police, D., with physical violence causing
considerable pain in order to make him disclose J.'s whereabouts. It
found that further threats alleged by the applicant or alleged
physical injuries inflicted during the interrogation had not been
proved beyond reasonable doubt. Having regard to all the
circumstances of the case, the Chamber characterised this threat of
violence as inhuman treatment prohibited by Article 3.
(b) The parties' submissions
(i) The applicant
The
applicant claimed that during his interrogation by detective officer
E. on 1 October 2002, he had been subjected to treatment
prohibited by Article 3. Detective officer E. had threatened that
“intolerable pain the likes of which he had never experienced”
would be inflicted on him if he did not disclose J.'s whereabouts. He
had threatened that this pain would be inflicted without leaving any
traces and that an officer, specially trained in such techniques, was
en route to the police station in a helicopter.
To underpin the
threat, E. had imitated the rotating blades of a helicopter and had
described the pain of the torture in graphic detail. The applicant
alleged that concrete measures had in fact been taken at that time in
that a police doctor had subsequently confirmed that she had been
prepared to be present during the torture so as to prevent the
applicant from losing consciousness or the procedure from leaving any
traces.
The
applicant further alleged that he had been threatened with sexual
abuse in that he would be locked up in a cell with two large
“Negroes” who would anally assault him. Physical injuries
had also been inflicted on him during the interrogation. E. had hit
him several times on the chest, causing bruising, and on one occasion
had pushed him, causing his head to hit the wall. He produced two
medical certificates of 4 and 7 October 2002 issued by police doctors
to support this claim (see paragraph 21 above).
He claimed that
afterwards, he had been taken to Birstein against his will and had
been obliged to walk without shoes through woods to where he had left
the corpse and, at the command of the police, he had to point out its
precise location. He had also been forced to disclose other evidence
on the return journey from Birstein. He claimed that he had been
threatened by the police at a time when they had already been aware
that J. was dead and had therefore been forced to incriminate himself
solely in order to further the criminal investigations against him.
Referring,
in particular, to Articles 1 and 15 of the United Nations Convention
against Torture (see paragraph 64 above), the applicant argued that
the treatment to which he had been subjected in order to force him to
confess should be characterised as torture.
(ii) The Government
As
in their submissions before the Chamber, the Government recognised
that, regrettably, Article 3 had been violated during the applicant's
questioning on 1 October 2002. They stressed, however, that the
applicant had only been threatened with severe pain if he did not
inform the police about J.'s whereabouts. They contested that there
had been additional threats of sexual assault upon the applicant.
They further contested that the injuries the applicant had suffered
had been caused during the interrogation in question and that he had
been forced to walk without shoes at Birstein. He had suffered skin
lesions when he was arrested at Frankfurt airport.
They
underlined that until now, the applicant had claimed that E. had hit
him only once on the chest and that his head had only once hit the
wall.
The domestic courts had not found the additional threats or
injuries to have been established.
The
Government further pointed out that police officers D. and E. had
resorted to the method of interrogation in question in order to save
the life of J., which they had considered to be at great risk. They
had not known that J. had already been killed at that time.
(iii) The third-party interveners
(α) J.'s parents
J.'s
parents endorsed the Government's submissions. They pointed out that
the applicant's various injuries, including the injury below his
collarbone, were now for the first time alleged to have been
inflicted during the interrogation on 1 October 2002. However, the
applicant had previously admitted that he had already sustained those
injuries during his arrest on
30 September 2002. This admission
was contained in a book he had published in 2005 (Allein mit Gott
– der Weg zurück (“Alone with God – The
Way Back”), pp. 57-61), dealing, inter alia, with the
criminal investigations and the trial against him. In a chapter
entitled “The Arrest”, the applicant reproduced a copy of
the medical certificate issued by a police doctor on 4 October
2002 (see paragraph 21 above) in order to show which injuries had
been inflicted on him during his arrest on 30 September 2002. Now
that same certificate was being used by him in order to support his
claim that the injuries were sustained during his interrogation. His
injuries were not, therefore, connected with his interrogation on 1
October 2002.
(β) The Redress Trust
Referring,
in particular, to the Convention institutions' findings in the Greek
case (Commission's report of 5 November 1969, (1969) 12 Yearbook
170, p. 461) and in the case of Akkoç v. Turkey
(nos. 22947/93 and 22948/93, §§ 25 and 116-17, ECHR
2000 X), the Redress Trust stressed that for a particular act to
constitute torture it was not necessary for physical injury to be
caused. Mental harm in and of itself was a prevalent form of torture.
Moreover, the Court had confirmed that a mere threat of conduct
prohibited by Article 3 could itself give rise to a violation of that
Article (the third party cited Campbell and Cosans v. the United
Kingdom, 25 February 1982, § 26, Series A no. 48).
Various international bodies, including, inter alia, the
Inter-American Court of Human Rights
(see paragraph 66 above),
the UN Special Rapporteur on Torture
(see paragraph 67 above) and
the UN Human Rights Committee
(see paragraph 68 above), had
likewise found that a threat of serious physical injury could,
depending on the circumstances and the impact on the particular
individual, constitute torture or another form of ill-treatment.
In
any event, making a distinction between torture and other
ill-treatment was unnecessary in relation to Article 3 of the
Convention since, unlike the United Nations Convention against
Torture in Articles 1, 15 and 16
(see paragraph 64 above), the
relevant Convention Article did not attach any different legal
consequences to torture compared to other forms of prohibited
ill-treatment. Referring, inter alia, to the case of Labita
v. Italy ([GC], no. 26772/95, § 119, ECHR 2000 IV),
the Redress Trust underlined that the prohibition on torture and
other cruel, inhuman and degrading treatment was absolute and
afforded no exceptions, justifications or limitations, irrespective
of the circumstances of the case or the conduct of the victim.
(c) The Court's assessment
(i) Recapitulation of the relevant
principles
The
Court reiterates that Article 3 of the Convention enshrines one of
the most fundamental values of democratic societies. Unlike most of
the substantive clauses of the Convention, Article 3 makes no
provision for exceptions and no derogation from it is permissible
under Article 15 § 2 even in the event of a public emergency
threatening the life of the nation (see Selmouni v. France
[GC], no. 25803/94, § 95, ECHR 1999-V, and Labita, cited
above, § 119). The Court has confirmed that even in the most
difficult circumstances, such as the fight against terrorism and
organised crime, the Convention prohibits in absolute terms torture
and inhuman or degrading treatment or punishment, irrespective of the
conduct of the person concerned (see Chahal v. the United Kingdom,
15 November 1996, § 79, Reports of Judgments and Decisions
1996-V, and Labita, cited above, § 119). The nature
of the offence allegedly committed by the applicant is therefore
irrelevant for the purposes of Article 3 (see V. v. the United
Kingdom [GC], no. 24888/94, § 69, ECHR 1999-IX; Ramirez
Sanchez v. France [GC], no. 59450/00, § 116, ECHR
2006-IX; and Saadi v. Italy [GC], no. 37201/06, § 127,
ECHR 2008 ...).
In order for ill-treatment to fall within the scope of
Article 3 it must attain a minimum level of severity. The assessment
of this minimum depends on all the circumstances of the case, such as
the duration of the treatment, its physical or mental effects and, in
some cases, the sex, age and state of health of the victim (see
Ireland v. the United Kingdom,
18 January 1978, § 162,
Series A no. 25, and Jalloh v. Germany [GC], no. 54810/00,
§ 67, ECHR 2006-IX). Further factors include the purpose
for which the treatment was inflicted together with the intention or
motivation behind it (compare, inter alia, Aksoy v. Turkey,
18 December 1996, § 64, Reports 1996-VI; Egmez v.
Cyprus, no. 30873/96, § 78, ECHR 2000 XII;
and Krastanov v. Bulgaria, no. 50222/99, § 53,
30 September 2004), as well as its context, such as an atmosphere of
heightened tension and emotions (compare, for instance, Selmouni,
cited above, § 104, and Egmez, loc. cit.).
The
Court has considered treatment to be “inhuman” because,
inter alia, it was premeditated, was applied for hours at a
stretch and caused either actual bodily injury or intense physical
and mental suffering (see Labita, cited above, § 120, and
Ramirez Sanchez, cited above, § 118). Treatment has been
held to be “degrading” when it was such as to arouse in
its victims feelings of fear, anguish and inferiority capable of
humiliating and debasing them and possibly breaking their physical or
moral resistance, or when it was such as to drive the victim to act
against his will or conscience (see, inter alia, Keenan v.
the United Kingdom, no. 27229/95, § 110, ECHR 2001-III,
and Jalloh, cited above, § 68).
In
determining whether a particular form of ill-treatment should be
classified as torture, consideration must be given to the
distinction, embodied in Article 3, between this notion and that of
inhuman or degrading treatment. As noted in previous cases, it
appears that it was the intention that the Convention should, by
means of such a distinction, attach a special stigma to deliberate
inhuman treatment causing very serious and cruel suffering (see
Ireland v. the United Kingdom, cited above, § 167; Aksoy,
cited above, § 63; and Selmouni, cited above, § 96).
In addition to the severity of the treatment, there is a purposive
element to torture, as recognised in the United Nations Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, which in Article 1 defines torture in terms of the
intentional infliction of severe pain or suffering with the aim,
inter alia, of obtaining information, inflicting
punishment or intimidating (see Akkoç, cited above, §
115).
The
Court further reiterates that a threat of conduct prohibited by
Article 3, provided it is sufficiently real and immediate, may fall
foul of that provision. Thus, to threaten an individual with torture
may constitute at least inhuman treatment (compare Campbell and
Cosans, cited above, § 26).
In
assessing the evidence on which to base the decision as to whether
there has been a violation of Article 3, the Court adopts the
standard of proof “beyond reasonable doubt”. However,
such proof may follow from the coexistence of sufficiently strong,
clear and concordant inferences or of similar unrebutted presumptions
of fact (see Jalloh, cited above, § 67, and Ramirez
Sanchez, cited above, § 117). The Court has held, in
particular, that where an individual is taken into police custody in
good health but is found to be injured at the time of release, it is
incumbent on the State to provide a plausible explanation of how
those injuries were caused, failing which a clear issue arises under
Article 3 of the Convention (compare Tomasi v. France, 27
August 1992, § 110, Series A no. 241 A; Ribitsch v.
Austria,
4 December 1995, § 34, Series A no. 336; Aksoy,
cited above, § 61; and Selmouni, cited above, § 87).
Where
allegations are made under Article 3 of the Convention the Court must
apply a particularly thorough scrutiny (see Matko v. Slovenia,
no. 43393/98, § 100, 2 November 2006, and Vladimir Romanov v.
Russia, no. 41461/02, § 59, 24 July 2008). Where domestic
proceedings have taken place, however, it is not the Court's task to
substitute its own assessment of the facts for that of the domestic
courts and, as a general rule, it is for those courts to assess the
evidence before them (see Klaas v. Germany,
22 September
1993, § 29, Series A no. 269, and Jasar v. “the
former Yugoslav Republic of Macedonia”, no. 69908/01,
§ 49, 15 February 2007). Although the Court is not bound by the
findings of domestic courts, in normal circumstances it requires
cogent elements to lead it to depart from the findings of fact
reached by those courts.
(ii) Application of these principles to
the present case
(α) The Court's assessment of the facts
In
assessing the treatment to which the applicant was subjected on
1
October 2002, the Court notes that it is uncontested between the
parties that during the interrogation that morning, the applicant was
threatened by detective officer E., on the instructions of the deputy
chief of the Frankfurt am Main police, D., with intolerable pain if
he refused to disclose J.'s whereabouts. The process, which would not
leave any traces, was to be carried out by a police officer specially
trained for that purpose, who was already on his way to the police
station by helicopter. It was to be conducted under medical
supervision. This was, indeed, established by the Frankfurt am Main
Regional Court both in the criminal proceedings against the applicant
(see paragraph 26 above) and in the criminal proceedings against the
police officers (see paragraph 47 above). Furthermore, it is clear
both from D.'s note for the police file (see paragraph 20 above) and
from the domestic court's finding in the criminal proceedings against
D.
(see paragraph 47 above) that D. intended, if necessary, to
carry out that threat with the help of a “truth serum”
and that the applicant had been warned that the execution of the
threat was imminent.
As
D. had ordered his subordinate heads of department on several
occasions to use force against the applicant, if necessary, before
finally ordering E. to threaten the applicant with torture (see
paragraph 47 above), his order cannot be regarded as a spontaneous
act and a clear element of intention was present. It further appears
that the applicant, while detained, was handcuffed in the
interrogation room (see paragraph 57 above) and was therefore in a
situation of particular vulnerability and constraint. The Court,
having regard to the findings of the domestic courts and to the
material before it, is persuaded that the police officers resorted to
the method of interrogation in question in the belief that J.'s life
might be saved.
The
Court further observes that the applicant alleged that he had also
been physically assaulted and injured and threatened with sexual
abuse during interrogation. In assessing whether these allegations,
which were contested by the Government, have been proven beyond
reasonable doubt, the Court finds that in view of the medical
certificates furnished by the applicant, his assertion of assault
during his interrogation is not wholly without foundation. These
certificates indicate that the applicant had indeed sustained
bruising to his chest in the days prior to the medical examinations.
However,
the Court also notes the Government's explanation as to the cause of
the applicant's injuries, together with the submissions of J.'s
parents on this point. They argued, by reference to the applicant's
own statements in his book published in 2005, that all of the
injuries, including lesions to his skin, which the applicant had
incontestably sustained had been caused during his arrest when he was
pinned, face down, on the ground
(see paragraphs 13 and 14
above). The Court further notes that the domestic courts did not find
any of the applicant's additional allegations to have been
established. It would appear that before the domestic courts, which
heard and evaluated the evidence, the applicant had not made the
allegations of physical injuries having been sustained during
interrogation, at least not to the same extent as the way in which he
did before this Court (see, in particular, paragraph 26 above).
Moreover, the medical certificates contain no indication as to
probable causation of injuries (see paragraph 21).
In
view of the foregoing, the Court is unable to conclude that the
applicant's complaints concerning physical assaults and injuries
together with the alleged threat of sexual abuse during interrogation
have been established beyond reasonable doubt.
The
Court further observes that in the applicant's submission, he was
again subjected to treatment prohibited by Article 3 in that he was
obliged to walk without shoes through woods in Birstein and was
directly forced to point out the precise location of the corpse and
to disclose other items of evidence. These allegations are likewise
contested by the Government.
The Court notes that according to
the findings of the domestic authorities, the applicant, following
his interrogation, had agreed to accompany the police officers to the
pond where he had hidden J.'s corpse (see paragraph 17 above). There
is nothing to indicate that the applicant was verbally threatened en
route to Birstein by any of the police officers present in order to
make him indicate the precise location of the corpse. However, the
question as to whether and to what extent the disclosure of evidence
by the applicant in Birstein was causally connected to the threats
issued at the police station remains a question to be determined
under Article 6. In view of the fact that the medical certificates
contained a diagnosis of swellings and blisters on the applicant's
feet (see paragraph 21 above), the Court finds that his allegation
that he had been obliged to walk without shoes is not entirely
without foundation. However, the domestic courts, having examined the
evidence before them, did not consider this allegation – which
the applicant does not appear to have mentioned from the outset in
the domestic proceedings either – to have been proven (see in
particular paragraph 26 above). The cause of the injuries was not
established by the examining doctors. In these circumstances, the
Court does not consider the applicant's allegations in this regard to
have been proven beyond reasonable doubt.
In
view of the foregoing, the Court considers it established that the
applicant was threatened in the morning of 1 October 2002 by the
police with being subjected to intolerable pain in the manner set out
in paragraphs 94-95 above in order to make him disclose J.'s
whereabouts.
(β) Legal qualification of the treatment
The
Court notes the Government's acknowledgment that the treatment the
applicant was subjected to by E. violated Article 3 of the
Convention. However, having regard to the serious allegations of
torture made by the applicant and the Government's claim of loss of
victim status, the Court considers it necessary to make its own
assessment of whether this treatment can be said to have attained the
minimum level of severity to bring it within the scope of Article 3
and, if so, how it is to be classified. Having regard to the relevant
factors indicated in the Court's case-law
(see paragraphs 88-91
above), it will examine, in turn, the duration of the treatment to
which the applicant was subjected, its physical or mental effects on
him, whether it was intentional or otherwise, its purpose and the
context in which it was inflicted.
In
so far as the duration of the impugned conduct is concerned, the
Court notes that the interrogation under threat of ill-treatment
lasted for approximately ten minutes.
As
to its physical and mental effects, the Court notes that the
applicant, who had previously refused to disclose J.'s whereabouts,
confessed under threat as to where he had hidden the body.
Thereafter, he continued to elaborate in detail on J.'s death
throughout the investigation proceedings. The Court therefore
considers that the real and immediate threats of deliberate and
imminent ill-treatment to which the applicant was subjected during
his interrogation must be regarded as having caused him considerable
fear, anguish and mental suffering. The applicant, however, did not
submit medical certificates to establish any long-term adverse
psychological consequences suffered or sustained as a result.
The
Court further observes that the threat was not a spontaneous act but
was premeditated and calculated in a deliberate and intentional
manner.
As
regards the purpose of the threats, the Court is satisfied that the
applicant was intentionally subjected to such treatment in order to
extract information on J.'s whereabouts.
The
Court further notes that the threats of deliberate and imminent
ill-treatment were made in the context of the applicant being in the
custody of law-enforcement officials, apparently handcuffed, and thus
in a state of vulnerability. It is clear that D. and E. acted in the
performance of their duties as State agents and that they intended,
if necessary, to carry out that threat under medical supervision and
by a specially trained officer. Moreover, D.'s order to threaten the
applicant was not a spontaneous decision, since he had given such an
order on a number of earlier occasions and had become increasingly
impatient at the non-compliance of his subordinates with his
directions. The threat took place in an atmosphere of heightened
tension and emotions in circumstances where the police officers were
under intense pressure, believing that J.'s life was in considerable
danger.
In
this connection, the Court accepts the motivation for the police
officers' conduct and that they acted in an attempt to save a child's
life. However, it is necessary to underline that, having regard to
the provision of Article 3 and to its long-established case-law (see
paragraph 87 above), the prohibition on ill-treatment of a person
applies irrespective of the conduct of the victim or the motivation
of the authorities. Torture, inhuman or degrading treatment cannot be
inflicted even in circumstances where the life of an individual is at
risk. No derogation is allowed even in the event of a public
emergency threatening the life of the nation. Article 3, which has
been framed in unambiguous terms, recognises that every human being
has an absolute, inalienable right not to be subjected to torture or
to inhuman or degrading treatment under any circumstances, even the
most difficult.
The philosophical basis underpinning the absolute
nature of the right under Article 3 does not allow for any exceptions
or justifying factors or balancing of interests, irrespective of the
conduct of the person concerned and the nature of the offence at
issue.
Having
regard to the relevant factors for characterising the treatment to
which the applicant was subjected, the Court is satisfied that the
real and immediate threats against the applicant for the purpose of
extracting information from him attained the minimum level of
severity to bring the impugned conduct within the scope of Article 3.
It reiterates that according to its own case-law (see paragraph 91
above), which also refers to the definition of torture in Article 1
of the United Nations Convention against Torture (see paragraphs 90
and 64 above), and according to the views taken by other
international human-rights monitoring bodies
(see paragraphs
66-68 above), to which the Redress Trust likewise referred, a threat
of torture can amount to torture, as the nature of torture covers
both physical pain and mental suffering. In particular, the fear of
physical torture may itself constitute mental torture. However, there
appears to be broad agreement, and the Court likewise considers, that
the classification of whether a given threat of physical torture
amounted to psychological torture or to inhuman or degrading
treatment depends upon all the circumstances of a given case,
including, notably, the severity of the pressure exerted and the
intensity of the mental suffering caused. Contrasting the applicant's
case to those in which torture has been found to be established in
its case-law, the Court considers that the method of interrogation to
which he was subjected in the circumstances of this case was
sufficiently serious to amount to inhuman treatment prohibited by
Article 3, but that it did not reach the level of cruelty required to
attain the threshold of torture.
2. Whether the applicant lost his victim status
(a) The Chamber judgment
The
Chamber considered that the applicant could no longer claim to be the
victim of a violation of Article 3. It found that the domestic courts
had expressly acknowledged, both in the criminal proceedings against
the applicant and in the criminal proceedings against the police
officers D. and E., that the applicant's treatment during his
interrogation by E. had violated Article 3. Moreover, the applicant
had been afforded sufficient redress for this breach at national
level. The two police officers involved in threatening him had been
convicted and punished and had suffered prejudice in their careers.
In the circumstances of the present case, these convictions had to be
considered sufficient in affording redress in a manner other than by
way of monetary compensation. Furthermore, the use of the proscribed
methods of investigation had resulted in sanctions in that none of
the applicant's
pre-trial statements had been admitted into
evidence at his trial.
(b) The parties' submissions
(i) The applicant
The
applicant argued that he had not lost his status as a victim of a
breach of Article 3. The domestic courts had failed to acknowledge
clearly a breach of his Convention right in a legally binding manner.
They had merely mentioned Article 3 in their decisions dismissing the
applicant's applications and complaints.
Furthermore,
the applicant claimed that he had not received adequate redress for
the breach of the prohibition of torture. He had not derived any
personal benefit from the convictions of D. and E., who, in any
event, had been sentenced to very modest, suspended fines and who had
otherwise suffered no disciplinary consequences for their conduct. D.
had even been promoted following his conviction. The official
liability proceedings, in which the applicant had claimed
compensation for the damage resulting from his treatment in breach of
Article 3, were still pending before the civil courts and, to date,
he had not received any compensation. Furthermore, he argued that the
status quo ante could only have been restored by the
exclusion, at trial, of all items of evidence which had been obtained
as a direct result of the violation of Article 3. This evidence, the
admissibility of which had been determined at the outset of his
trial, had secured his conviction and, by implication, the imposition
of the maximum applicable penalty. The exclusion only of the
pre-trial statements he had made as a result of coercion was not
sufficient redress as such statements were not necessary for the
prosecution's case against him once the real evidence had been
admitted.
(ii) The Government
The
Government asked the Grand Chamber to confirm the Chamber's finding
that the applicant had lost his status as the victim of a violation
of Article 3. Three German courts – namely the Regional Court
and the Federal Constitutional Court in the criminal proceedings
against the applicant and the Regional Court in the criminal
proceedings against the police officers – had expressly
acknowledged the breach of Article 3. These courts had underlined
that human dignity was inviolable and that torture was prohibited
even if the life of a person were at stake.
In
the Government's submission, the applicant had also been afforded
sufficient redress. The two police officers involved had been
convicted in criminal proceedings and sentenced. The Government
stressed that for a police officer to be tried and convicted of
coercion was a very serious matter. Moreover, both police officers
had been removed from their posts. The Government admitted that the
applicant had not yet received compensation, but argued that since he
had brought official liability proceedings before the domestic courts
only after lodging his application with the Court, the fact that
those proceedings were still pending could not be taken into
consideration as far as the loss of his victim status was concerned.
Moreover, the Frankfurt am Main Regional Court had excluded the
admissibility not only of the confession of 1 October 2002, but also
of all subsequent confessions made by the applicant before the
police, the prosecution and a judge prior to his trial. However, the
applicant, after having been instructed that his previous confessions
could not be used in evidence, had nevertheless made a new full
confession on the second day of his trial, before any other evidence
had been introduced.
(iii) The third-party interveners (Redress
Trust)
In
the Redress Trust's submission, international jurisprudence had
recognised that adequate and sufficient remedies in cases of torture
and other prohibited ill-treatment included, in particular, the
following forms of reparation which could be relevant cumulatively in
a particular case. Firstly, an investigation capable of leading to
the identification and punishment of those responsible for any
ill-treatment was required (it cited, inter alia, Assenov
and Others v. Bulgaria, 28 October 1998, § 102,
Reports 1998 VIII). Secondly, States were obliged to
have an effective criminal justice system capable of effectively
punishing those who perpetrated torture and other prohibited
ill-treatment and of deterring the commission of future offences. The
punishment for a violation of Article 3 should reflect the gravity of
the offence and the State's obligation to punish the agents
responsible had to be complied with seriously and not as a mere
formality (by way of comparison, it cited Nikolova and Velichkova
v. Bulgaria, no. 7888/03, § 63, 20 December 2007).
Thirdly, adequate and sufficient remedies for torture and other forms
of ill-treatment included effective civil remedies, in particular,
compensation for pecuniary and non-pecuniary damage. The Court itself
had repeatedly found that a judgment per se was not sufficient
to constitute just satisfaction in cases of serious violations, such
as those of Article 3, and had made an award for non-pecuniary damage
(it cited, for instance, Selçuk and Asker v. Turkey,
24 April 1998, §§ 117-18, Reports 1998 II).
Fourthly, a restoration of rights addressing the continuing impact of
the torture, such as the exclusion of involuntary confessions, was
required. Fifthly, the State had to provide for measures guaranteeing
the non-recurrence of the prohibited conduct.
(c) The Court's assessment
(i) Recapitulation of the relevant
principles
The
Court reiterates that it falls, firstly, to the national authorities
to redress any violation of the Convention. In this regard, the
question whether an applicant can claim to be the victim of the
violation alleged is relevant at all stages of the proceedings under
the Convention (see, inter alia, Siliadin v. France,
no. 73316/01, § 61, ECHR 2005-VII, and Scordino v. Italy
(no. 1) [GC], no. 36813/97, § 179, ECHR 2006 V). A
decision or measure favourable to the applicant is not, in principle,
sufficient to deprive him of his status as a “victim” for
the purposes of Article 34 of the Convention unless the national
authorities have acknowledged, either expressly or in substance, and
then afforded redress for the breach of the Convention
(see,
inter alia, Eckle v. Germany, 15 July 1982, § 66,
Series A no. 51; Dalban v. Romania [GC], no. 28114/95, §
44, ECHR 1999-VI; Siliadin, cited above, § 62; and
Scordino (no. 1), cited above, § 180).
As
to the redress which is appropriate and sufficient in order to remedy
a breach of a Convention right at national level, the Court has
generally considered this to be dependent on all the circumstances of
the case, having regard, in particular, to the nature of the
Convention violation at stake (compare, for instance, Scordino
(no. 1), cited above, § 186).
In cases of wilful
ill-treatment by State agents in breach of Article 3, the Court has
repeatedly found that two measures are necessary to provide
sufficient redress. Firstly, the State authorities must have
conducted a thorough and effective investigation capable of leading
to the identification and punishment of those responsible (see, inter
alia, Krastanov, cited above, § 48; Çamdereli
v. Turkey, no. 28433/02, §§ 28-29, 17 July 2008; and
Vladimir Romanov, cited above, §§ 79 and 81).
Secondly, an award of compensation to the applicant is required where
appropriate (see Vladimir Romanov, cited above, § 79,
and, mutatis mutandis, Aksoy, cited above, § 98,
and Abdülsamet Yaman v. Turkey, no. 32446/96, § 53,
2 November 2004 (both in the context of Article 13)) or, at
least, the possibility of seeking and obtaining compensation for the
damage which the applicant sustained as a result of the ill-treatment
(compare, mutatis mutandis, Nikolova and Velichkova,
cited above, § 56 (concerning a breach of Article 2);
Çamdereli, cited above, § 29; and Yeter v.
Turkey, no. 33750/03, § 58, 13 January 2009).
As
regards the requirement of a thorough and effective investigation,
the Court reiterates that where an individual raises an arguable
claim that he has been seriously ill-treated by the police or other
such agents of the State unlawfully and in breach of Article 3, that
provision, read in conjunction with the State's general duty under
Article 1 of the Convention to “secure to everyone within their
jurisdiction the rights and freedoms defined in ... [the]
Convention”, requires by implication that there should be an
effective official investigation. Such an investigation, as with one
under Article 2, should be capable of leading to the identification
and punishment of those responsible (see, inter alia, Assenov
and Others, cited above, § 102; Labita, cited above,
§ 131; Çamdereli, cited above, §§ 36-37;
and Vladimir Romanov, cited above, § 81). For an
investigation to be effective in practice it is a prerequisite that
the State has enacted criminal-law provisions penalising practices
that are contrary to Article 3 (compare, mutatis mutandis,
M.C. v. Bulgaria, no. 39272/98, §§ 150,
153 and 166, ECHR 2003-XII; Nikolova and Velichkova, cited
above, § 57; and Çamdereli, cited
above, § 38).
Concerning
the requirement for compensation to remedy a breach of Article 3 at
national level, the Court has repeatedly found that, in addition to a
thorough and effective investigation, it is necessary for the State
to have made an award of compensation to the applicant, where
appropriate, or at least to have given him or her the possibility of
seeking and obtaining compensation for the damage he or she sustained
as a result of the ill-treatment (see in detail the references in
paragraph 116 above). The Court has already had occasion to indicate
in the context of other Convention Articles that an applicant's
victim status may depend on the level of compensation awarded at
domestic level, having regard to the facts about which he or she
complains before the Court (see, for instance, Normann v. Denmark
(dec.), no. 44704/98, 14 June 2001, and Scordino (no.
1), cited above, § 202, in respect of a complaint under
Article 6, or Jensen and Rasmussen v. Denmark (dec.), no.
52620/99, 20 March 2003, in respect of a complaint under Article 11).
This finding applies, mutatis mutandis, to complaints
concerning a breach of Article 3.
In
cases of wilful ill-treatment the breach of Article 3 cannot be
remedied only by an award of compensation to the victim. This is so
because, if the authorities could confine their reaction to incidents
of wilful ill-treatment by State agents to the mere payment of
compensation, while not doing enough to prosecute and punish those
responsible, 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 (see, among many other authorities,
Krastanov, cited above, § 60; Çamdereli,
cited above, § 29; and Vladimir Romanov, cited above, §
78).
(ii) Application of these principles to
the present case
The
Court thus has to examine, firstly, whether the national authorities
have acknowledged, either expressly or in substance, the breach of
the Convention. It notes in this connection that in the criminal
proceedings against the applicant, the Frankfurt am Main Regional
Court, in its decision dated 9 April 2003, expressly stated that the
threat to cause the applicant pain in order to extract a statement
from him had not only constituted a prohibited method of
interrogation under Article 136a of the Code of Criminal Procedure.
The threat had also disregarded Article 3 of the Convention, which
underlay that provision of the Code
(see paragraph 26
above). Likewise, the Federal Constitutional Court, referring to the
Regional Court's finding of a violation of Article 3, observed that
the applicant's human dignity and the prohibition on subjecting
prisoners to ill-treatment (Article 1 and Article 104 § 1,
second sentence, of the Basic Law) had been disregarded (see
paragraph 42 above). In addition to that, in its judgment of 20
December 2004 convicting the police officers, the Frankfurt am Main
Regional Court found that such methods of investigation could not be
justified as an act of necessity because “necessity” was
not a defence to a violation of the absolute protection of human
dignity under Article 1 of the Basic Law, which also lay at the heart
of Article 3 of the Convention (see paragraph 48 above).
In view
of this, the Grand Chamber, which agrees with the findings of the
Chamber in this respect, is satisfied that the domestic courts which
were called upon to rule on this issue acknowledged expressly and in
an unequivocal manner that the applicant's interrogation had violated
Article 3 of the Convention.
In
assessing whether the national authorities further afforded the
applicant appropriate and sufficient redress for the breach of
Article 3, the Court must determine, in the first place, whether they
carried out a thorough and effective investigation against those
responsible in compliance with the requirements of its case-law. In
doing so, the Court has previously taken into account several
criteria. Firstly, important factors for an effective investigation,
viewed as a gauge of the authorities' determination to identify and
prosecute those responsible, are its promptness (compare, inter
alia, Selmouni, cited above, §§ 78-79; Nikolova
and Velichkova, cited above, § 59; and Vladimir
Romanov, cited above, §§ 85 et seq.) and its expedition
(compare Mikheyev v. Russia, no. 77617/01, § 109, 26
January 2006, and Dedovskiy and Others v. Russia, no. 7178/03,
§ 89, 15 May 2008). Furthermore, the outcome of the
investigations and of the ensuing criminal proceedings, including the
sanction imposed as well as disciplinary measures taken, have been
considered decisive. It is vital in ensuring that the deterrent
effect of the judicial system in place and the significance of the
role it is required to play in preventing violations of the
prohibition of
ill-treatment are not undermined (compare Ali
and Ayşe Duran v. Turkey, no. 42942/02, §
62, 8 April 2008; Çamdereli, cited above, § 38;
and Nikolova and Velichkova, cited above, §§ 60 et
seq.).
The
Court notes in the present case that criminal investigations against
the police officers D. and E. were opened some three to four months
after the applicant's questioning on 1 October 2002 (see paragraph 23
above) and that the officers were convicted in a final judgment some
two years and three months after that date. Even though the Court
notes that the Frankfurt am Main Regional Court mitigated their
sentence in view of, among many other factors, the long duration of
the proceedings
(see paragraph 50 above), it is prepared to
accept that the investigation and the criminal proceedings were,
nevertheless, sufficiently prompt and expeditious to meet the
standards set by the Convention.
The
Court further observes that the police officers were found guilty of
coercion and incitement to coercion, respectively, under the
provisions of German criminal law, for their conduct in their
interrogation of the applicant which was in contravention of Article
3. However, the Court notes that they were sentenced for this
contravention only to very modest and suspended fines. The Court
reiterates in this connection that it is not its task to rule on the
degree of individual guilt (see Öneryıldız v.
Turkey [GC], no. 48939/99, § 116, ECHR 2004 XII, and
Nachova and Others v. Bulgaria [GC], nos. 43577/98 and
43579/98, § 147, ECHR 2005 VII), or to determine the
appropriate sentence of an offender, those being matters falling
within the exclusive jurisdiction of the national criminal courts.
However, under Article 19 of the Convention and in accordance with
the principle that the Convention is intended to guarantee rights
that are not theoretical or illusory, but practical and effective,
the Court has to ensure that a State's obligation to protect the
rights of those under its jurisdiction is adequately discharged (see
Nikolova and Velichkova, cited above, § 61, with further
references). It follows that while the Court acknowledges the role of
the national courts in the choice of appropriate sanctions for
ill treatment by State agents, it must retain its supervisory
function and intervene in cases of manifest disproportion between the
gravity of the act and the punishment imposed. Otherwise, the States'
duty to carry out an effective investigation would lose much of its
meaning (see Nikolova and Velichkova, cited above, § 62;
compare also Ali and Ayşe Duran, cited above, §
66).
The
Court does not overlook the fact that the Frankfurt am Main Regional
Court, in determining D.'s and E.'s sentences, took into
consideration a number of mitigating circumstances (see paragraph 50
above). It accepts that the present application is not comparable to
other cases concerning arbitrary and serious acts of brutality by
State agents which the latter then attempted to conceal, and in which
the Court considered that the imposition of enforceable prison
sentences would have been more appropriate (compare, for instance,
Nikolova and Velichkova, cited above, § 63, and Ali
and Ayşe Duran, cited above, §§ 67-72).
Nevertheless, imposing almost token fines of 60 and 90 daily payments
of EUR 60 and EUR 120, respectively, and, furthermore, opting to
suspend them, cannot be considered an adequate response to a breach
of Article 3, even seen in the context of the sentencing practice in
the respondent State. Such punishment, which is manifestly
disproportionate to a breach of one of the core rights of the
Convention, does not have the necessary deterrent effect in order to
prevent further violations of the prohibition of ill-treatment in
future difficult situations.
As
to the disciplinary sanctions imposed, the Court notes that during
the investigation and trial of D. and E., both were transferred to
posts which no longer involved direct association with the
investigation of criminal offences (see paragraph 50 above). D. was
later transferred to the Police Headquarters for Technology,
Logistics and Administration and was appointed its chief (see
paragraph 52 above). In this connection, the Court refers to its
repeated finding that where State agents have been charged with
offences involving ill treatment, it is important that they
should be suspended from duty while being investigated or tried and
should be dismissed if convicted (see, for instance, Abdülsamet
Yaman, cited above, § 55; Nikolova and Velichkova,
cited above, § 63; and Ali and Ayşe Duran,
cited above, § 64). Even if the Court accepts that the facts of
the present case are not comparable to those at issue in the cases
cited herein, it nevertheless finds that D.'s subsequent appointment
as chief of a police authority raises serious doubts as to whether
the authorities' reaction reflected, adequately, the seriousness
involved in a breach of Article 3 – of which he had been found
guilty.
As
to the additional requirement of compensation in order to remedy a
breach of Article 3 at national level, the Court observes that the
applicant availed himself of the possibility of seeking compensation
for the damage sustained as a result of the violation of Article 3.
However, his application for legal aid to bring such official
liability proceedings, following a remittal, has itself, apparently,
been pending for more than three years and, consequently, no hearing
has yet been held and no judgment given on the merits of his claim.
The Court would observe that, in practice, it has made awards under
Article 41 of the Convention in respect of
non-pecuniary
damage in view of the seriousness involved in a violation of Article
3 (see, among many other authorities, Selçuk and Asker,
cited above, §§ 117-118).
In
any event, it considers that appropriate and sufficient redress for a
Convention violation can only be afforded on condition that an
application for compensation remains itself an effective, adequate
and accessible remedy. Excessive delays in an action for
compensation, in particular, will render the remedy ineffective
(compare, mutatis mutandis, Scordino (no. 1),
cited above, § 195, in respect of compensation for
non-compliance with the “reasonable time” requirement of
Article 6). It finds that the domestic courts' failure to decide on
the merits of the applicant's compensation claim for more than three
years raises serious doubts as to the effectiveness of the official
liability proceedings in the circumstances of the present case.
The
authorities do not appear to be determined to decide on the
appropriate redress to be awarded to the applicant and thus have not
reacted adequately and efficiently to the breach of Article 3 at
issue.
The
Court further notes that in the applicant's submission, redress for
the authorities' breach of Article 3 could only have been granted by
also excluding, at his trial, all items of evidence obtained as a
direct result of the violation of that Article. It observes that in
its case-law as it stands, it has generally considered compliance
with the requirements of an investigation and compensation both
necessary and sufficient in order for a respondent State to provide
adequate redress at national level in cases of ill-treatment by its
agents breaching Article 3 (see paragraphs 116-119 above). However,
it has also found that the question as to what measures of redress
are appropriate and sufficient in order to remedy a breach of a
Convention right depends on all the circumstances of the case (see
paragraph 116 above).
It would not therefore exclude the
possibility that in cases in which the deployment of a method of
investigation prohibited by Article 3 led to disadvantages for an
applicant in criminal proceedings against him, appropriate and
sufficient redress for that breach may have to entail, in addition to
the above-mentioned requirements, measures of restitution addressing
the issue of the continuing impact of that prohibited method of
investigation on the trial, in particular the exclusion of evidence
obtained by breaching Article 3.
In
the present case, the Court does not, however, have to determine that
issue and does not, therefore, have to examine at this stage whether
the prohibited method of interrogation in the investigation
proceedings can be said to have had a continuing impact on the
applicant's trial and to have entailed disadvantages for him. Having
regard to its above findings, it considers that, in any event, the
different measures taken by the domestic authorities failed to comply
fully with the requirement of redress as established in its case-law.
The respondent State therefore did not afford the applicant
sufficient redress for his treatment in breach of Article 3.
It
follows that the applicant may still claim to be the victim of a
violation of Article 3 within the meaning of Article 34 of the
Convention.
B. Compliance with Article 3
The
Court refers to its above finding (see paragraphs 94-108) that while
being interrogated by the police on 1 October 2002 the applicant was
threatened with torture in order to make him disclose J.'s
whereabouts and that this method of interrogation constituted inhuman
treatment as prohibited by Article 3.
There
has therefore been a violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant further submitted that his right to a fair trial had been
violated, in particular, by the admission and use of evidence that
had been obtained only as a result of the confession extracted from
him in breach of Article 3. Article 6, in so far as relevant,
provides:
“1. In the determination ... of any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence
has the following minimum rights: ...
(c) to defend himself in person or through
legal assistance of his own choosing ...”
A. Scope of the case before the Grand Chamber
The
Court notes that before the Grand Chamber, the applicant also
repeated his complaint under Article 6 that he had been deliberately
refused contact with his defence counsel on 1 October 2002 until all
the evidence against him had been secured. According to its case-law,
the “case” referred to the Grand Chamber is the
application as it has been declared admissible by the Chamber (see,
inter alia, K. and T. v. Finland [GC], no. 25702/94,
§ 141, ECHR 2001-VII; Göç v. Turkey
[GC], no. 36590/97, § 36, ECHR 2002 V; and
Cumpǎnǎ and Mazǎre v. Romania [GC], no.
33348/96, § 66, ECHR 2004 XI). As the Chamber, in its
decision on admissibility of 10 April 2007, found that the
applicant had failed to exhaust domestic remedies as required by
Article 35 § 1 of the Convention in respect of the complaint
concerning consultation of his defence counsel, the Grand Chamber has
no jurisdiction to examine it.
B. The Government's preliminary objection
The
Government objected that the applicant had failed to exhaust domestic
remedies as required by Article 35 § 1 of the Convention in
respect of his remaining complaint under Article 6. He had not
properly raised before the domestic courts his complaints about the
failure to discontinue the criminal proceedings against him and the
failure to exclude the use in those proceedings of items of evidence
obtained as a result of the prohibited methods of investigation.
1. The Chamber judgment
The
Chamber did not consider it necessary to rule on the Government's
preliminary objection, which it had joined to the merits of the
complaint under Article 6, as it found that there had been no
violation of Article 6 (see paragraph 86 of the Chamber judgment).
2. The parties' submissions
(a) The Government
The
Government objected before the Grand Chamber that the applicant had
failed to exhaust domestic remedies for the same reasons as those
they had relied on in the proceedings before the Chamber. They
submitted, firstly, as regards the applicant's claim that his
criminal trial had been unfair as it should have been discontinued on
account of the threats against him, that the Federal Constitutional
Court had declared his constitutional complaint inadmissible for
failure to provide sufficient substantiation. It had been up to the
applicant to explain why constitutional law did not only require the
exclusion of the statements made during the questioning by the
police, but also the discontinuation of the proceedings.
Secondly,
the applicant had not exhausted domestic remedies in so far as he
complained about the refusal to exclude the admission of certain
items of evidence in the proceedings. As confirmed by the Federal
Constitutional Court, he had failed to substantiate in detail in the
proceedings before the Federal Court of Justice, as required by the
applicable rules on procedure, that he was also challenging the use
of the evidence found in Birstein, which was a completely different
claim compared to his application to discontinue the proceedings. In
particular, the applicant had not corrected the Federal Public
Prosecutor's statement of
9 March 2004 which contained the
latter's evaluation of the scope of the appeal on points of law to
the effect that the applicant had not alleged a violation of Article
136a § 3 of the Code of Criminal Procedure.
(b) The applicant
The
applicant contested this view and argued that he had exhausted
domestic remedies. In his appeal before the Federal Court of Justice,
he had lodged the broadest possible application, aimed at
discontinuing the criminal proceedings because of the manner in which
evidence had been obtained. His broad appeal had included the
narrower application regarding the inadmissibility of the real
evidence obtained as a result of the confession extracted from him.
In lodging his appeal, he had included full copies of his preliminary
applications of 9 April 2003. His appeal on points of law had been
dismissed without the Federal Court of Justice furnishing any
reasons.
The
applicant further stressed that in his subsequent complaint to the
Federal Constitutional Court, he had substantiated his claim fully,
explaining in detail and with reference to leading decisions of that
court how the failure to discontinue the proceedings and to exclude
the impugned items of evidence had breached his rights under Articles
1 and 104 of the Basic Law.
3. The Court's assessment
The
Grand Chamber has jurisdiction to examine the preliminary objection
as the Government previously raised that same objection before the
Chamber in their observations on the admissibility of the application
(see paragraph 84 of the Chamber judgment), in accordance with Rules
55 and 54 of the Rules of Court (see N.C. v. Italy [GC], no.
24952/94, § 44, ECHR 2002-X; Azinas v. Cyprus [GC], no.
56679/00, §§ 32 and 37, ECHR 2004 III; and
Sejdovic v. Italy [GC], no. 56581/00, § 41,
ECHR 2006-II).
The
Court reiterates that the purpose of Article 35 is to afford the
Contracting States the opportunity of preventing or putting right the
violations alleged against them before those allegations are
submitted to it (see, inter alia, Civet v. France [GC],
no. 29340/95, § 41, ECHR 1999 VI). Whereas Article 35 §
1 of the Convention must be applied with some degree of flexibility
and without excessive formalism, it does not require merely that
applications should be made to the appropriate domestic courts and
that use should be made of effective remedies designed to challenge
decisions already given. It normally requires also that the
complaints intended to be brought subsequently before the Court
should have been made to those same courts, at least in substance and
in compliance with the formal requirements and time-limits laid down
in domestic law (see, among other authorities, Cardot v. France,
19 March 1991, § 34, Series A no. 200, and Elçi and
Others v. Turkey, nos. 23145/93 and 25091/94, §§ 604
and 605,
13 November 2003).
Consequently,
domestic remedies have not been exhausted when an appeal is not
accepted for examination because of a procedural mistake by the
applicant. However, non-exhaustion of domestic remedies cannot be
held against him if, in spite of his failure to observe the forms
prescribed by law, the competent authority has nevertheless examined
the substance of the appeal (compare, inter alia, Mitropolia
Basarabiei Si Exarhatul Plaiurilor and Others v. Moldova (dec.),
no. 45701/99, 7 June 2001; Skałka v. Poland (dec.), no.
43425/98, 3 October 2002; Jalloh v. Germany (dec.),
no. 54810/00, 26 October 2004; and Vladimir Romanov,
cited above, § 52).
The
Court observes that the applicant complained before it that his
criminal trial had been unfair owing to the admission into trial of
items of evidence obtained as a direct result of confessions
extracted from him.
He raised this issue, specifically, before
the Regional Court in particular in his preliminary application of 9
April 2003 seeking a declaration that the use in the criminal
proceedings of all items of evidence which had become known to the
investigation authorities because of the statements unlawfully
extracted was prohibited (see paragraph 25 above). The Court notes
that in his appeal on points of law to the Federal Court of Justice,
the applicant referred to that application and submitted a full copy
of it to that court
(see paragraph 37 above). The Federal Court
of Justice itself dismissed his appeal as ill-founded without giving
reasons for its decision. In these circumstances, the Court is
persuaded that, in accordance with the requirements of its case-law,
the applicant raised the substance of his complaint under Article 6
in the proceedings before the Federal Court of Justice. In
particular, it cannot speculate as to whether the Federal Public
Prosecutor's possibly different interpretation of the scope of the
applicant's appeal was adopted by that court. As the applicant again
argued before the Federal Constitutional Court that the use of the
unconstitutional methods of investigation should have entailed a
prohibition on the admission of the impugned items of evidence at his
trial (see paragraph 40 above), the Court finds that he raised the
substance of his complaint under Article 6 throughout the proceedings
before the domestic courts.
The
Court further observes that the applicant, in addition, argued before
the Regional Court, the Federal Court of Justice and the Federal
Constitutional Court that the criminal proceedings against him ought
to have been discontinued because of the use of unconstitutional
methods of investigation (see paragraphs 24, 37 and 40 above). As
with his application mentioned above (see paragraph 144), this
request concerned the legal consequences in a criminal trial of the
use of evidence obtained by prohibited methods of interrogation in
pre-trial investigation proceedings. The Federal Constitutional Court
declared his constitutional complaint on this account inadmissible
for failure to substantiate it sufficiently. The Court notes,
however, that in its decision, the Federal Constitutional Court
confirmed that the police's threat to inflict pain on the applicant
in the investigation proceedings had violated human dignity and the
prohibition on subjecting the applicant to ill-treatment, as
enshrined in the Basic Law. That court further held that the
procedural flaw of having applied unconstitutional methods of
investigation had been sufficiently remedied by the criminal courts
by the exclusion from trial of the statements made under threat and
had not, in addition, required the discontinuation of the criminal
proceedings (see paragraphs 42-44 above). The Court considers that
through these observations, the Constitutional Court examined, at
least partly, the substance of the applicant's constitutional
complaint concerning the discontinuation of the criminal proceedings
against him. Therefore,
non-exhaustion of domestic remedies
cannot be held against him in this respect either.
The
Court finds that the applicant thus provided the domestic courts with
the opportunity to put right the alleged violation and concludes that
the Government's objection of non-exhaustion of domestic remedies
must be dismissed.
C. Compliance with Article 6 of the Convention
1. The Chamber judgment
The
Chamber held that there had been no violation of Article 6 §§
1 and 3. It observed that the Regional Court had excluded the use at
trial of all pre-trial statements made by the applicant to the
investigation authorities owing to the continuous effects of the
prohibited methods of interrogation in the investigation proceedings.
The domestic court had, however, used some items of evidence secured
as an indirect result of the statements extracted from the applicant.
The Chamber considered that there was a strong presumption that the
use of items of evidence obtained as the fruit of a confession
extracted by means contrary to Article 3 rendered a trial as a whole
unfair in the same way as the use of the extracted confession itself.
However, in the particular circumstances of the case, it had been the
applicant's new confession at the trial which had been the essential
basis for his conviction. Other items of evidence, including the
impugned real evidence, had been of an accessory nature only and had
been relied upon merely to prove the veracity of that confession.
The
Chamber was not persuaded that the applicant had no longer had any
defence option left to him but to confess at the trial in view of the
admission of the impugned items of evidence. In the domestic
proceedings, in which he had been assisted by counsel, he had
confirmed that he had volunteered his confession out of remorse. The
fact that his confessions at the trial had differed could be seen as
a variation in his defence strategy. The applicant had also taken the
opportunity to challenge the impugned real evidence at his trial, and
the Chamber acknowledged that the Regional Court had weighed up all
the interests involved in deciding to admit that evidence.
In
view of these elements, the Chamber concluded that the use of the
impugned items of evidence had not rendered the applicant's trial as
a whole unfair.
2. The parties' submissions
(a) The applicant
In
the applicant's submission, the admission of real evidence obtained
in breach of Article 3 had rendered his criminal trial unfair in
violation of Article 6. Once that evidence had been admitted, he had
been deprived, entirely, of his right to defend himself. He had also
been deprived of the protection afforded by the principle against
self-incrimination.
He claimed that the evidence recovered in
Birstein and on the return journey therefrom had been obtained by the
police order directly forcing him to point out its precise
whereabouts. He had been obliged to walk, without shoes, through
woods to the place where he had hidden J.'s corpse. The fact that his
directions as to where he had hidden the corpse and its consequent
discovery had been recorded on videotape demonstrated that the events
at Birstein had not been about the child's rescue but about the
recovery of evidence in a manner aimed at securing his conviction.
The
applicant argued that the impugned real evidence had been decisive
in, and not merely accessory to, securing his conviction. Though
other charges would have been possible, the self-incriminating
evidence obtained as a result of his extracted confession was wholly
necessary for the charge of and conviction for murder. There had been
no other hypothetical clean path which would have led the police to
this evidence at the relevant time. Whether they would ever have
found it was a matter of pure speculation.
As
the trial court at the outset of the trial had rejected his
application to exclude the evidence obtained in violation of Article
3, the outcome of the trial had, at that point, effectively, been
determined.
Every possible defence strategy, such as relying on
the right to remain silent or alleging that J. had been killed
accidentally or volunteering at an early stage a full confession in
the hope of mitigation of sentence, had become ineffective. He had
partially confessed on the second day of the trial and had only
admitted to having killed J. intentionally at the end of the trial
after all the impugned items of evidence which he had sought to have
excluded had been adduced. Indeed, even the prosecution and the
accessory prosecutors, in opposing any possibility of mitigation of
sentence, had pointed out that he had only confessed to what had
already been proven.
The
applicant further submitted that, regardless of whether the method of
interrogation was to be classified as torture or as inhuman
treatment, the Convention (he referred, in particular, to the Court's
judgment in the case of Jalloh, cited above) and provisions of
public international law (Article 14 of the ICCPR, Articles 15 and 16
of the United Nations Convention against Torture) warranted the
exclusion of all evidence obtained by means of a violation of the
absolute prohibition of torture and inhuman treatment. Contrary to
the view taken by the domestic courts and by the Chamber, protection
of the absolute right under Article 3 could not and should not be
weighed against other interests, such as the satisfaction of securing
a conviction. As a matter of principle, the exclusion of the evidence
in question was essential for removing all incentives for engaging in
torture or ill-treatment and thus for preventing such conduct in
practice.
(b) The Government
The
Government invited the Grand Chamber to confirm the Chamber's finding
that there had been no violation of Article 6 §§ 1 and 3 of
the Convention. As regards the way in which the impugned evidence had
been obtained, they contested that the applicant had had to walk
without shoes or had been subjected to further threats either in
Birstein or on the return journey.
The
Government accepted that the Regional Court had decided at the outset
of the trial that the impugned items of evidence found in Birstein
would be admitted into evidence at the trial. Nevertheless, the
applicant had confirmed before the domestic courts that he had
volunteered his confession at the trial out of remorse and because he
wanted to take responsibility for his crime, even though he could
also have remained silent or could have lied to the court. He might
have changed his defence strategy in the hope that he would receive a
more lenient sentence, but this decision had not been related to the
use of the impugned items of evidence. It was not correct that the
applicant had had no choice but to confess at the trial because, as
the trial court had confirmed, it was possible that he might not have
been found guilty of murder had he not confessed anew. Following a
qualified instruction by the trial court, he had confessed, on the
second day of his trial, and it was clear from this confession that
he had killed J. intentionally. The difference between the first
trial confession and the later one was comparatively minor in that
the former had not included an admission that the death of J. had
been part of his plan from the outset. This additional admission was
not a necessary element to prove murder.
The
Government underlined that the applicant's conviction had been based
on the confession he had volunteered at his trial. The items of
evidence secured after the journey to Birstein, such as J.'s corpse
and the autopsy report thereon and the tyre tracks from the
applicant's car at the pond, had been of an accessory nature only and
had been used merely to test the veracity of the applicant's
confession at the trial. This was clearly stated in the reasoning of
the Regional Court's judgment convicting the applicant.
The
Government noted that Article 6 of the Convention did not lay down
any rules on the admissibility of evidence, as such, which was
primarily a matter for regulation under national law. They underlined
their obligation under the Convention to apply the criminal law
against a murderer. The public interest in having the murderer of an
abducted child convicted was of very serious weight. The Government
further argued that the case-law of the United States Supreme Court,
which went furthest in prohibiting the use of the “fruit of the
poisonous tree”, needed careful analysis. In the leading case
of Nix v Williams (11 June 1984 (467 U.S. 431), see paragraph
73 above), for instance, that court had held that a body found after
an improper investigation could be admitted into evidence in
circumstances where it would have been found in any event. It was
likely in the present case that J.'s corpse, hidden at a place which
the applicant had previously visited, would have been found sooner or
later.
(c) The third-party interveners
(i) J.'s parents
In
the submission of J.'s parents, the applicant's trial had fulfilled
the requirements of Article 6. At the trial the applicant had never
indicated that he had felt coerced to confess but had repeated that
he was making his statements freely and out of respect for his
victim's family. They claimed that the applicant had already
confessed on the second day of the trial that he had suffocated J.,
even though he had denied, at that moment, that he had planned to do
so before abducting him. In his later statement he had subsequently
admitted that he had planned from the outset to kill the boy.
J.'s
parents further underlined that the applicant had confirmed in his
final statement that owing to the exclusion of his pre-trial
statements, he had been given the choice of remaining silent or of
making a confession and that it was not as if everything had been
established. He had claimed that he had made a full and free
confession even though he had recognised the risk that it would not
have any (mitigating) effect on the trial court's judgment. In a book
published subsequently by the applicant (entitled Alone with God –
The Way Back) there was no mention that his confession at the
trial had been caused as a consequence of the police interrogation.
In that book, he had confirmed, regarding his motives for making a
new confession at his trial, that he had wished to express remorse
and had therefore described his acts in detail, at the risk –
which materialised – that his confession might not have any
effect on his sentence (see pp. 225 26). His conduct in the
proceedings had not, therefore, been a response to the trial court's
decision to admit the impugned evidence.
(ii) The Redress Trust
The
Redress Trust underlined that the rationale of the exclusionary rule
which prohibited the admission of evidence obtained by torture or
ill-treatment was based upon (i) the unreliability of evidence
obtained as a result of torture; (ii) the outrage to civilised values
caused and represented by torture; (iii) the public-policy objective
of removing any incentive to undertake torture anywhere in the world;
(iv) the need to ensure protection of the fundamental rights (to due
process and fairness) of the party against whose interest the
evidence was tendered; and (v) the need to preserve the integrity of
the judicial process.
Numerous
international declarations, rules, resolutions and conventions
prohibited the admission of statements obtained by torture or inhuman
treatment as evidence in judicial proceedings. In the Redress Trust's
view, it was arguable that the exclusionary rule covered not only
confessions but also derivative evidence found as a result of a
statement made under torture, notwithstanding that Article 15 of the
United Nations Convention against Torture (see paragraph 64 above),
in particular, was cast in narrower terms. The UN Human Rights
Committee, for instance, in its General Comment No. 7 of 30 May 1982
(see paragraph 70 above) had found that in order to secure effective
control of the prohibition of torture, it was essential to make both
confessions and other evidence obtained through torture or inhuman or
degrading treatment inadmissible in court. Likewise, the Supreme
Court of Appeal of South Africa, in its judgment of
10 April 2008
in the case of Mthembu v. The State (see paragraph 74
above), had held that any use of evidence obtained by torture,
including real evidence derived from it, rendered proceedings unfair.
This had to apply in equal measure to other forms of ill-treatment.
The findings of the Court in its cases of Jalloh (cited above,
§§ 99 and 104-07) and Harutyunyan v. Armenia
(no. 36549/03, § 63, ECHR 2007 VIII) pointed in
the same direction.
3. The Court's assessment
(a) Recapitulation of the relevant
principles
The
Court reiterates that its duty, pursuant to Article 19 of the
Convention, is to ensure the observance of the engagements undertaken
by the Contracting States to the Convention. In particular, it is not
its function to deal with errors of fact or of law allegedly
committed by a national court unless and in so far as they may have
infringed rights and freedoms protected by the Convention. While
Article 6 guarantees the right to a fair hearing, it does not lay
down any rules on the admissibility of evidence as such, which is
primarily a matter for regulation under national law
(see Schenk
v. Switzerland, 12 July 1988, §§ 45-46, Series A no.
140; Teixeira de Castro v. Portugal, 9 June 1998, § 34,
Reports 1998 IV; and Heglas v. the Czech
Republic, no. 5935/02, § 84, 1 March 2007).
It
is, therefore, not the role of the Court to determine, as a matter of
principle, whether particular types of evidence – for example,
evidence obtained unlawfully in terms of domestic law – may be
admissible.
The question which must be answered is whether the
proceedings as a whole, including the way in which the evidence was
obtained, were fair. This involves an examination of the unlawfulness
in question and, where the violation of another Convention right is
concerned, the nature of the violation found (see, inter alia,
Khan v. the United Kingdom, no. 35394/97, § 34, ECHR
2000 V; P.G. and J.H. v. the United Kingdom, no.
44787/98, § 76, ECHR 2001-IX; and Allan v. the United
Kingdom, no. 48539/99, § 42, ECHR 2002 IX).
In
determining whether the proceedings as a whole were fair, regard must
also be had as to whether the rights of the defence have been
respected. In particular, it must be examined whether the applicant
was given an opportunity to challenge the authenticity of the
evidence and to oppose its use. In addition, the quality of the
evidence must be taken into consideration, as must the circumstances
in which it was obtained and whether these circumstances cast doubts
on its reliability or accuracy. While no problem of fairness
necessarily arises where the evidence obtained was unsupported by
other material, it may be noted that where the evidence is very
strong and there is no risk of its being unreliable, the need for
supporting evidence is correspondingly weaker (see, inter alia,
Khan, cited above, §§ 35 and 37; Allan,
cited above, § 43; and Jalloh, cited above, § 96).
In this connection, the Court further attaches weight to whether the
evidence in question was or was not decisive for the outcome of the
proceedings (compare, in particular, Khan, cited above, §§
35 and 37).
As
to the examination of the nature of the Convention violation found,
the Court reiterates that the question whether the use as evidence of
information obtained in violation of Article 8 rendered a trial as a
whole unfair contrary to Article 6 has to be determined with regard
to all the circumstances of the case, including, respect for the
applicant's defence rights and the quality and importance of the
evidence in question (compare, inter alia, Khan, cited
above, §§ 35-40; P.G. and J.H. v. the United Kingdom,
cited above, §§ 77-79; and Bykov v. Russia [GC],
no. 4378/02, §§ 94-98, ECHR 2009-..., in which no
violation of Article 6 was found). However, particular considerations
apply in respect of the use in criminal proceedings of evidence
obtained in breach of Article 3. The use of such evidence, secured as
a result of a violation of one of the core and absolute rights
guaranteed by the Convention, always raises serious issues as to the
fairness of the proceedings, even if the admission of such evidence
was not decisive in securing a conviction (see İçöz
v. Turkey (dec.), no. 54919/00,
9 January 2003; Jalloh,
cited above, §§ 99 and 104; Göçmen v.
Turkey, no. 72000/01, §§ 73-74, 17 October
2006; and Harutyunyan, cited above, § 63).
Accordingly,
the Court has found in respect of confessions, as such, that the
admission of statements obtained as a result of torture (compare Örs
and Others v. Turkey, no. 46213/99, § 60, 20 June 2006;
Harutyunyan, cited above, §§ 63, 64 and 66; and
Levinţa v. Moldova, no. 17332/03, §§ 101 and
104-05, 16 December 2008) or of other ill-treatment in breach of
Article 3 (compare Söylemez v. Turkey, no. 46661/99, §§
107 and 122-24,
21 September 2006, and Göçmen,
cited above, §§ 73-74) as evidence to establish the
relevant facts in criminal proceedings rendered the proceedings as a
whole unfair. This finding applied irrespective of the probative
value of the statements and irrespective of whether their use was
decisive in securing the defendant's conviction (ibid.).
As
to the use at the trial of real evidence obtained as a direct result
of ill-treatment in breach of Article 3, the Court has considered
that incriminating real evidence obtained as a result of acts of
violence, at least if those acts had to be characterised as torture,
should never be relied on as proof of the victim's guilt,
irrespective of its probative value. Any other conclusion would only
serve to legitimise, indirectly, the sort of morally reprehensible
conduct which the authors of Article 3 of the Convention sought to
proscribe or, in other words, to “afford brutality the cloak of
law” (see Jalloh, cited above, § 105). In its
Jalloh judgment, the Court left open the question whether the
use of real evidence obtained by an act classified as inhuman and
degrading treatment, but falling short of torture, always rendered a
trial unfair, that is, irrespective of, in particular, the weight
attached to the evidence, its probative value and the opportunities
of the defendant to challenge its admission and use at trial (ibid.,
§§ 106-07).
It found a breach of Article 6 in the
particular circumstances of that case (ibid., §§ 107-08).
As
regards the use of evidence obtained in breach of the right to
silence and the privilege against self-incrimination, the Court
reiterates that these are generally recognised international
standards which lie at the heart of the notion of fair procedures
under Article 6. Their rationale lies, inter alia, in the
protection of the accused against improper compulsion by the
authorities, thereby contributing to the avoidance of miscarriages of
justice and to the fulfilment of the aims of Article 6. The right not
to incriminate oneself, in particular, presupposes that the
prosecution in a criminal case seek to prove their case against the
accused without resort to evidence obtained through methods of
coercion or oppression in defiance of the will of the accused (see,
inter alia, Saunders v. the United Kingdom,
17
December 1996, § 68, Reports 1996-VI; Heaney and
McGuinness v. Ireland, no. 34720/97, § 40, ECHR
2000-XII; and Jalloh, cited above, § 100).
(b) Application of these principles to the
present case
As
the requirements of Article 6 § 3 concerning the rights of the
defence and the principle against self-incrimination are to be seen
as particular aspects of the right to a fair trial guaranteed by
Article 6 § 1, the Court will examine the complaints under those
two provisions taken together (compare, among other authorities,
Windisch v. Austria, 27 September 1990, § 23, Series
A no. 186; Lüdi v. Switzerland,
15 June 1992, §
43, Series A no. 238; Funke v. France, 25 February 1993, § 44,
Series A no. 256 A; and Saunders, cited above, §
68).
In
examining whether, in the light of the above principles, the criminal
proceedings against the applicant, who, from the outset, had objected
to the use of evidence obtained in breach of his Convention rights,
can be deemed to have been fair as a whole, the Court must consider,
firstly, the nature of the Convention violation at issue and the
extent to which the impugned evidence was obtained thereby. It refers
to its above finding that the applicant's statement on the morning of
1 October 2002 during his interrogation by E. was extracted in
violation of Article 3
(see paragraph 108 above). It further
concluded that there was nothing to indicate that the applicant had
been threatened for a second time by the police, at Birstein or
during the journey to and from that place, in order to make him
disclose real evidence (see paragraph 99 above).
The
Court notes the Regional Court's finding that the applicant's
statements made following the threat, including those made at
Birstein and those made on the return trip to the police station, had
been made under the continuous effect of the threats issued during
interrogation and were therefore inadmissible (see paragraph 29
above), whereas it regarded the real evidence which had become known
as a result of such statements as admissible. The Court notes
that in the proceedings before the domestic courts, the impugned real
evidence was classified as evidence which had become known to the
investigation authorities as a consequence of the statements
extracted from the applicant (long-range effect (“Fernwirkung”)
– see paragraph 31 above). For the purposes of its own
assessment under Article 6, it considers it decisive that there is a
causal link between the applicant's interrogation in breach of
Article 3 and the real evidence secured by the authorities as a
result of the applicant's indications, including the discovery of
J.'s body and the autopsy report thereon, tyre tracks left by the
applicant's car at the pond, as well as J.'s backpack, clothes and
the applicant's typewriter. In other words, the impugned real
evidence was secured as a direct result of his interrogation by the
police that breached Article 3.
Furthermore,
an issue arises under Article 6 in respect of evidence obtained as a
result of methods in violation of Article 3 only if such evidence was
not excluded from use at the applicant's criminal trial.
The
Court notes that at the trial the Regional Court did not admit any of
the confessions the applicant had made in the investigation
proceedings under threat or as a result of the continuous effects of
the threat
(see paragraphs 28-30 above). However, that court,
rejecting the applicant's motion at the outset of the trial, refused
to bar the admission of items of evidence which the investigation
authorities had secured as a result of his statements made under the
continuous effect of his treatment in breach of Article 3 (see
paragraph 31 above).
The
Court is therefore called upon to examine the consequences for a
trial's fairness of the admission of real evidence obtained as a
result of an act qualified as inhuman treatment in breach of Article
3, but falling short of torture. As shown above (see paragraphs
166-167), in its case-law to date, it has not yet settled the
question whether the use of such evidence will always render a trial
unfair, that is, irrespective of other circumstances of the case. It
has, however, found that both the use in criminal proceedings of
statements obtained as a result of a person's treatment in breach of
Article 3 – irrespective of the classification of that
treatment as torture, inhuman or degrading treatment – and the
use of real evidence obtained as a direct result of acts of torture
made the proceedings as a whole automatically unfair, in breach of
Article 6 (see paragraphs 166-167 above).
The
Court notes that there is no clear consensus among the Contracting
States to the Convention, the courts of other States and other
human-rights monitoring institutions about the exact scope of
application of the exclusionary rule (see the references in
paragraphs 69-74 above).
In particular, factors such as whether
the impugned evidence would, in any event, have been found at a later
stage, independently of the prohibited method of investigation, may
have an influence on the admissibility of such evidence.
The
Court is further aware of the different competing rights and
interests at stake. On the one hand, the exclusion of – often
reliable and compelling – real evidence at a criminal trial
will hamper the effective prosecution of crime. There is no doubt
that the victims of crime and their families as well as the public
have an interest in the prosecution and punishment of criminals, and
in the present case that interest was of high importance. Moreover,
the instant case is particular also in that the impugned real
evidence was derived from an illegal method of interrogation which
was not in itself aimed at furthering a criminal investigation, but
was applied for preventive purposes, namely in order to save a
child's life, and thus in order to safeguard another core right
guaranteed by the Convention, namely Article 2. On the other hand, a
defendant in criminal proceedings has the right to a fair trial,
which may be called into question if domestic courts use evidence
obtained as a result of a violation of the prohibition of inhuman
treatment under Article 3, one of the core and absolute rights
guaranteed by the Convention. Indeed, there is also a vital public
interest in preserving the integrity of the judicial process and thus
the values of civilised societies founded upon the rule of law.
While
having regard to the above interests at stake in the context of
Article 6, the Court cannot but take note of the fact that Article 3
of the Convention enshrines an absolute right. Being absolute, there
can be no weighing of other interests against it, such as the
seriousness of the offence under investigation or the public interest
in effective criminal prosecution, for to do so would undermine its
absolute nature (compare also, mutatis mutandis, Saadi v.
Italy, cited above, §§ 138-39). 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, as this would sacrifice those values and discredit
the administration of justice.
The
Court also takes note, in this connection, of the Government's
argument that they were obliged under the Convention to apply the
criminal law against a murderer, and thus to protect the right to
life. The Convention indeed requires that the right to life be
safeguarded by the Contracting States (see, among many other
authorities, Osman v. the United Kingdom, 28 October
1998, §§ 115-16, Reports 1998 VIII). However,
it does not oblige States to do so by conduct that violates the
absolute prohibition of inhuman treatment under Article 3 or in a
manner that breaches the right of every defendant to a fair trial
under Article 6 (compare, mutatis mutandis, Osman,
cited above, § 116). The Court accepts that the State agents in
this case acted in a difficult and stressful situation and were
attempting to save a life. This does not, however, alter the fact
that they obtained real evidence by a breach of Article 3. Moreover,
it is in the face of the heaviest penalties that respect for the
right to a fair trial is to be ensured to the highest possible degree
by democratic societies (compare Salduz v. Turkey [GC],
no. 36391/02, § 54, ECHR 2008-...).
However,
contrary to Article 3, Article 6 does not enshrine an absolute right.
The Court must therefore determine what measures are to be considered
both necessary and sufficient in criminal proceedings concerning
evidence secured as the result of a breach of Article 3 in order to
secure effective protection of the rights guaranteed by Article 6. As
established in its case-law (see paragraphs 165-167 above), the use
of such evidence raises serious issues as to the fairness of the
proceedings. Admittedly, in the context of Article 6, the admission
of evidence obtained by conduct absolutely prohibited by Article 3
might be an incentive for
law-enforcement officers to use such
methods notwithstanding such absolute prohibition. The repression of,
and the effective protection of individuals from, the use of
investigation methods that breach Article 3 may therefore also
require, as a rule, the exclusion from use at trial of real evidence
which has been obtained as the result of any violation of Article 3,
even though that evidence is more remote from the breach of Article 3
than evidence extracted immediately as a consequence of a violation
of that Article. Otherwise, the trial as a whole is rendered unfair.
However, the Court considers that both a criminal trial's fairness
and the effective protection of the absolute prohibition under
Article 3 in that context are only at stake if it has been shown that
the breach of Article 3 had a bearing on the outcome of the
proceedings against the defendant, that is, had an impact on his or
her conviction or sentence.
The
Court notes that, in the present case, the Regional Court expressly
based its findings of fact concerning the execution of the crime
committed by the applicant – and thus the findings decisive for
the applicant's conviction for murder and kidnapping with extortion –
exclusively on the new, full confession made by the applicant at the
trial (see paragraph 34 above). Moreover, that court also considered
the new confession the essential, if not the only, basis for its
findings of fact concerning the planning of the crime, which likewise
played a role in the applicant's conviction and sentence (ibid.). The
additional evidence admitted at the trial was not used by the
domestic court against the applicant to prove his guilt, but only to
test the veracity of his confession.
This evidence included the
results of the autopsy as to the cause of J.'s death and the tyre
tracks left by the applicant's car near the pond where the child's
corpse had been found. The domestic court further referred to
corroborative evidence which had been secured independently of the
first confession extracted from the applicant under threat, given
that the applicant had been secretly observed by the police since the
collection of the ransom and that his flat had been searched
immediately after his arrest. This evidence, which was “untainted”
by the breach of Article 3, comprised the testimony of J.'s sister,
the wording of the blackmail letter, the note found in the
applicant's flat concerning the planning of the crime, as well as
ransom money which had been found in the applicant's flat or had been
paid into his accounts (ibid.).
In
the light of the foregoing, the Court considers that it was the
applicant's second confession at the trial which – alone or
corroborated by further untainted real evidence – formed the
basis of his conviction for murder and kidnapping with extortion and
his sentence. The impugned real evidence was not necessary, and was
not used to prove him guilty or to determine his sentence. It can
thus be said that there was a break in the causal chain leading from
the prohibited methods of investigation to the applicant's conviction
and sentence in respect of the impugned real evidence.
In
the light of these findings, the Court further has to examine whether
the breach of Article 3 in the investigation proceedings had a
bearing on the applicant's confession at the trial. It notes that in
his application before the Court, the applicant submitted that this
had been the case. In his submission, he had not had any other
defence option at the trial but to confess once the Regional Court,
at the outset of the trial, had dismissed his request to exclude the
real evidence obtained in violation of Article 3.
The
Court observes in the first place that prior to his confession on the
second day of the trial, the applicant had been instructed about his
right to remain silent and about the fact that none of the statements
he had previously made on the charges could be used as evidence
against him
(see paragraph 34 above). It is therefore satisfied
that domestic legislation and practice did attach consequences to the
confessions obtained by means of prohibited ill-treatment (contrast
Hulki Güneş v. Turkey, no. 28490/95, § 91,
ECHR 2003-VII, and Göçmen, cited above, § 73)
and that the applicant was restored to the status quo ante,
that is, to the situation he was in prior to the breach of Article 3,
in this respect.
Moreover,
the applicant, who was represented by defence counsel, stressed in
his statements on the second day and at the end of the trial that he
was confessing freely out of remorse and in order to take
responsibility for his offence despite the events of 1 October 2002
(see paragraph 32 above). He did so notwithstanding the fact that he
had previously failed in his attempt to have the impugned real
evidence excluded. There is no reason, therefore, for the Court to
assume that the applicant did not tell the truth and would not have
confessed if the Regional Court had decided at the outset of the
trial to exclude the impugned real evidence and that his confession
should thus be regarded as a consequence of measures which
extinguished the essence of his defence rights.
In
any event, it is clear from the Regional Court's reasoning that the
applicant's second confession on the last day of the trial was
crucial for securing his conviction for murder, an offence of which
he might otherwise not have been found guilty (see paragraphs 34 and
35 above).
The applicant's confession referred to many additional
elements which were unrelated to what could have been proven by the
impugned real evidence. Whereas that evidence showed that J. had been
suffocated and that the applicant had been present at the pond in
Birstein, his confession notably proved his intention to kill J., as
well as his motives for doing so. In view of these elements, the
Court is not persuaded that, further to the failure to exclude the
impugned evidence at the outset of the trial, the applicant could not
have remained silent and no longer had any defence option but to
confess. Therefore, the Court is not satisfied that the breach of
Article 3 in the investigation proceedings had a bearing on the
applicant's confession at the trial either.
As
regards the rights of the defence, the Court further observes that
the applicant was given, and availed himself of, the opportunity to
challenge the admission of the impugned real evidence at his trial
and that the Regional Court had discretion to exclude that evidence.
Therefore, the applicant's defence rights were not disregarded in
this respect either.
The
Court notes that the applicant claimed that he had been deprived of
the protection afforded by the privilege against
self-incrimination
at his trial. As shown above (see paragraph 168), the right not to
incriminate oneself presupposes that the prosecution prove their case
against the accused without resort to evidence obtained through
methods of coercion or oppression in defiance of the latter's will.
The Court refers to its above findings that the domestic courts based
the applicant's conviction on his second confession at the trial,
without having recourse to the impugned real evidence as necessary
proof of his guilt. The Court therefore concludes that the privilege
against self-incrimination was complied with in the proceedings
against the applicant.
The
Court concludes that in the particular circumstances of the
applicant's case, the failure to exclude the impugned real evidence,
secured following a statement extracted by means of inhuman
treatment, did not have a bearing on the applicant's conviction and
sentence. As the applicant's defence rights and his right not to
incriminate himself have likewise been respected, his trial as a
whole must be considered to have been fair.
Accordingly,
there has been no violation of Article 6 §§ 1 and 3 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant did not claim any award for pecuniary or
non-pecuniary
damage, stressing that the objective of his application was to obtain
a retrial before the domestic courts. The Government did not comment
on this issue.
The
Court accordingly does not make an award in respect of damage. As to
the specific measure requested by the applicant in compensation, the
Court considers, in view of the conclusion reached under Article 6,
that there is no basis for the applicant to request a retrial or the
reopening of the case before the domestic courts.
B. Costs and expenses
Submitting
documentary evidence, the applicant upheld his claims made before the
Chamber and requested the payment of the costs of the criminal
proceedings which the Regional Court had directed him to pay
following his conviction. These amounted to 72,855.60 euros (EUR).
He left it to the Court's discretion to decide which of these
costs (which included, inter alia, expert and other witness
costs together with counsel's fees) had to be regarded as having been
caused by violations of his Convention rights. He argued that the
costs of lodging an appeal on points of law and a constitutional
complaint to the Federal Constitutional Court (the amount of which
has not been further specified) had been incurred solely in an
attempt to rectify the violations of the Convention.
The
applicant, who had been granted legal aid, further claimed a total of
EUR 22,647.85 in costs and expenses incurred in the proceedings
before the Court. These vouched or invoiced costs included legal
fees, fees for accessing case files from the domestic proceedings and
for legal experts' reports, copying costs, and travel, subsistence
and accommodation expenses, together with the costs of further
proceedings pending before the domestic courts.
The
Government did not comment on the applicant's claims before the Grand
Chamber. Before the Chamber, they had argued that the costs awarded
against the applicant by the Regional Court had not been incurred in
order to prevent or redress a violation of his Convention rights.
The applicant had not specified any costs incurred in the
proceedings before the Federal Court of Justice or before the Federal
Constitutional Court.
If the proceedings were to be reopened
before the domestic courts following a finding of a violation of the
applicant's Convention rights and if the applicant were to be
acquitted, then the decision on the costs of the proceedings before
the Regional Court would be reviewed.
The
Government further left it to the Court's discretion to decide on the
reasonableness or otherwise of the lawyers' fees, as claimed.
According
to the Court's established case-law, costs and expenses will not be
awarded under Article 41 unless it is established that they were
actually and necessarily incurred and were reasonable as to quantum.
Furthermore, legal costs are only recoverable in so far as they
relate to the violation found (see, for example, Beyeler v. Italy
(just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002;
Kafkaris v. Cyprus [GC], no. 21906/04, § 176, ECHR
2008 ...; and Sahin v. Germany [GC], no. 30943/96,
§ 105, ECHR 2003 VIII).
As
to the costs and expenses incurred in the proceedings before the
domestic courts, the Court notes that the applicant left it to its
discretion to assess what portion of the costs of the criminal
proceedings against him before the Regional Court could be attributed
to his attempt at preventing a violation of the Convention. It notes,
however, that, whereas it has found that Article 3 was disregarded in
the investigation proceedings, it has concluded that the criminal
proceedings against the applicant complied with the requirements of
the Convention. As the applicant failed to specify the costs incurred
in all proceedings before the domestic authorities which were aimed
at remedying the breach of Article 3, the Court cannot make an award
of costs under this head.
As
to the costs and expenses incurred in the proceedings before it, the
Court considers that the amounts claimed by the applicant were in
part not necessarily incurred and are as a whole excessive. Moreover,
the applicant's claims before the Court were only partly successful.
It therefore considers it reasonable to award the applicant EUR 4,000
under this head, less EUR 2,276.60 received by way of legal aid from
the Council of Europe, making a total of EUR 1,723.40, plus any tax
that may be chargeable to the applicant on that amount.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
Dismisses unanimously the Government's
preliminary objection in respect of the applicant's complaint under
Article 6 of the Convention;
Holds by eleven votes to six that the applicant
may still claim to be the “victim” of a violation of
Article 3 of the Convention for the purposes of Article 34 of the
Convention;
Holds by eleven votes to six that there has been
a violation of Article 3 of the Convention;
Holds by eleven votes to six that there has been
no violation of Article 6 §§ 1 and 3 of the
Convention;
Holds by ten votes to seven
(a) that
the respondent State is to pay the applicant, within three months,
EUR 1,723.40 (one thousand seven hundred and twenty-three euros and
forty cents) in respect of costs and expenses, plus any tax that may
be chargeable to the applicant;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 1 June 2010.
Erik Fribergh Jean-Paul
Costa
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following separate opinions are
annexed to this judgment:
(a) joint
partly concurring opinion of Judges Tulkens, Ziemele and Bianku;
(b) joint
partly dissenting opinion of Judges Rozakis, Tulkens, Jebens,
Ziemele, Bianku and Power;
(c) partly
dissenting opinion of Judge Casadevall joined by Judges Mijović,
Jaeger, Jočiene and López Guerra.
J.-P.C.
E.F.
JOINT PARTLY CONCURRING OPINION OF JUDGES TULKENS,
ZIEMELE AND BIANKU
(Translation)
With
regard to Article 3 of the Convention, we agree with the conclusion
reached in the judgment
that the applicant may still claim to be a “victim”
within the meaning of Article 34 of the Convention and that Article 3
has therefore been breached. However, our reasoning on the issue of
the applicant's victim status differs from that adopted by the
majority.
In
order to determine whether or not the applicant had lost his status
as a victim, the Court was required to examine, in accordance with
its
case-law, whether the domestic authorities had acknowledged
and afforded redress for the alleged breach of Article 3.
The
breach was indisputably acknowledged since the judicial authorities
expressly admitted that the methods of investigation employed
constituted “ill-treatment” and could not be justified on
the ground of “necessity”, which was not a defence to a
violation of the absolute protection of human dignity under Article 1
of the Basic Law and Article 3 of the Convention.
However,
the judgment considers that appropriate and sufficient redress was
not afforded, basing that finding on what it views as shortcomings in
the conduct of the criminal proceedings resulting in the police
officers' conviction. While it finds that the criminal investigation
in respect of the police officers who threatened the applicant with
torture was compatible with the requirements of the Convention, the
same does not apply to the penalties imposed on the police
officers. The judgment concludes that they were “not adequate”
and “manifestly disproportionate” to the seriousness of
the offence; accordingly, they did not have “the necessary
deterrent effect in order to prevent further violations of the
prohibition of ill-treatment in future difficult situations”
(see paragraphs 123 and 124 of the judgment).
Admittedly,
this assessment by the Court of the scope of the State's duty to
punish is not new and has been found in many previous judgments.
However, to our mind it raises three questions, especially in the
present case. Firstly, sentencing is one of the most delicate and
difficult tasks in the administration of criminal justice. It
requires a range of factors to be taken into account, as well as
knowledge of, and hence closeness to, the facts, situations and
persons concerned. It is normally the role of the national courts and
not the Court, which should involve itself in this process only with
the utmost caution and in cases of absolute necessity. Secondly, we
wonder whether the Court, in making the assumption that more severe
criminal penalties have a deterrent effect, is not at risk of
creating or maintaining an illusion. The (general or individual)
preventive effect of sentences has long been the subject of extensive
studies and research, particularly of an empirical nature. Such
studies have concluded that this effect is relative, if not limited.
Lastly, even – and no doubt especially – where criminal
punishment serves the purpose of protecting rights and freedoms, at
the risk of obscuring the fact that it is also a threat to rights and
freedoms, we should not lose sight of the subsidiarity principle,
which is a basic axiom of criminal law: use of the weapon of
punishment is acceptable only if there are no other means of
protecting the values or interests at stake.
As
the Court never tires of repeating, the rights protected by the
Convention cannot be theoretical and illusory but must be practical
and effective. However, in the present case was the police officers'
criminal trial, which clearly had to take place, the only possible
means of preventing further violations of Article 3, a provision that
forms part of the core rights protected by the Convention? We do not
think so.
According
to the Court's case-law as reiterated in the judgment, the
appropriateness and sufficiency of redress for a Convention violation
must be assessed with due regard to all the circumstances of the case
(see paragraph 116 of the judgment). In the present case we
consider that the most appropriate form of redress for the violation
of Article 3 that was found and acknowledged would have been the
exclusion from the trial of the evidence obtained in breach of
the Convention; as this did not happen, our conclusion is that the
applicant may still claim to be a “victim” within the
meaning of Article 34 of the Convention.
It
is, however, interesting to observe that, at the end of its analysis,
the Court does not in principle rule out the possibility of excluding
evidence as an additional measure: “in cases in which the
deployment of a method of investigation prohibited by Article 3 led
to disadvantages for an applicant in criminal proceedings against
him, appropriate and sufficient redress for that breach may have to
entail, in addition to the above-mentioned requirements, measures of
restitution addressing the issue of the continuing impact of that
prohibited method of investigation on the trial, in particular the
exclusion of evidence obtained by breaching Article 3” (see
paragraph 128 in fine).
JOINT PARTLY DISSENTING OPINION OF JUDGES ROZAKIS,
TULKENS, JEBENS, ZIEMELE, BIANKU AND POWER
We
do not share the majority's opinion that there has been no violation
of Article 6 §§ 1 and 3 of the Convention. In our view,
there was a breach of Article 6 because real evidence which had been
secured as a direct result of a violation of Article 3 was admitted
into the applicant's criminal trial. The breach was compounded by the
fact that this evidence had also been obtained in circumstances that
were self-incriminating.
The
admission into criminal proceedings of any evidence obtained in
violation of Article 3 raises a fundamental and vitally important
question of principle. While the Court's case law was clear insofar
as the admission of confession statements obtained in violation of
Article 3 is concerned, (such statements being always inadmissible
regardless of whether they were obtained by torture or inhuman or
degrading treatment) the question of the consequences for a trial's
fairness of admitting other types of evidence (“real evidence”)
obtained as a result of treatment falling short of torture but still
within the ambit of Article 3, remained to be settled. Difficult
though this case was, it presented the Grand Chamber with an
opportunity to rule upon the precise scope of the exclusionary rule
in respect of any evidence obtained by a breach of Article 3. The
Court could have answered that question categorically by asserting,
in an unequivocal manner, that irrespective of the conduct of an
accused, fairness, for the purpose of Article 6, presupposes
respect for the rule of law and requires, as a
self-evident
proposition, the exclusion of any evidence that has been obtained in
violation of Article 3. A criminal trial which admits and relies, to
any extent, upon evidence obtained as a result of breaching such an
absolute provision of the Convention cannot a fortiori be a
fair one.
The Court's reluctance to cross that final frontier and
to establish a clear or “bright-line” rule in this core
area of fundamental human rights is regrettable.
It
is clear from the Court's case-law that the admission of evidence
obtained in violation of Article 3 has always been subject to
different considerations than those arising where other Convention
rights, such as, those protected under Article 8, are concerned.
Heretofore, the Court took the view that even if proper procedural
safeguards are in place, it would be unfair to rely on material if
its nature and source were tainted by any oppression or coercion.
The use of statements obtained as a result of violence,
brutality or other conduct which could be characterised as torture
or ill-treatment
in breach of Article 3 always rendered the proceedings as a whole
unfair, irrespective of whether such evidence was decisive in
securing the applicant's conviction. Whether that principle applied
with equal force to other types of evidence remained to be
considered. In Jalloh v. Germany, the Court indicated
that an issue may arise under Article 6 § 1 in respect of
any evidence obtained in violation of Article 3 even if its admission
was not decisive in securing a conviction.
On the facts of that case, the general question as to whether the use
of real evidence obtained by an act falling short of torture but
still within the scope of Article 3 automatically renders a trial
unfair was left open.
Regrettably, the answer now given and the reasoning adopted by the
majority risks undermining the effectiveness of the absolute rights
guaranteed by Article 3. A distinction has been introduced into the
Court's jurisprudence between the admissibility of statements
obtained in breach of the absolute prohibition of inhuman and
degrading treatment and the admissibility of other evidence obtained
in the same manner. Such a distinction is difficult to sustain.
The
majority accepts that the real evidence against the applicant in this
case, which was admitted into trial, “was secured as a direct
result of his interrogation by the police that breached Article 3”
(see § 171).
That prohibited conduct resulted in a coerced
confession followed by a journey to the scene of vital evidence where
the applicant, upon the order of the police, pointed out the locus of
the body (whilst being filmed) and, thereafter, assisted in the
gathering of other self-incriminating evidence. There is no doubt
from the proceedings before the domestic courts that this evidence
was then admitted, adduced, examined and relied upon at the trial and
referred to in the Regional Court's judgment (see §§ 32 and
34). Notwithstanding the foregoing, the majority has nevertheless
concluded that the applicant's trial was fair because of “a
break in the causal chain” (§ 180) leading from that
breach to the applicant's conviction and sentence. We do not agree
with its finding nor with the reasoning upon which it is based.
From
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. This approach has
previously been confirmed and underlined, in principle, by the Court
in its consideration of the importance of the investigation stage for
the preparation of criminal proceedings by finding that the evidence
obtained during this stage determines the framework in which the
offence charged will be considered at the trial. Thus, in Salduz
v. Turkey (which involved restrictions on the applicant's
access to a lawyer while in police custody) the Court found that
neither the legal assistance provided subsequently nor the
adversarial nature of the ensuing proceedings could cure the defects
which had occurred during the time spent in police custody and it
proceeded to find a violation of Article 6.
If that is so when considering a breach of the right to consult a
lawyer, then surely the same reasoning must apply with even greater
force when confronted with a breach of a suspect's right not to be
subjected to inhuman treatment and the subsequent admission into
criminal proceedings of the evidence obtained as a result of such a
breach.
Instead
of viewing the proceedings as an organic whole, the majority's modus
operandi was to compartmentalise, parse and analyse the various
stages of the criminal trial, separately, in order to conclude that
the terminus arrived at (conviction for murder warranting maximum
sentence) was not affected by the route taken (admission of evidence
obtained in violation of Article 3). Such an approach, in our view,
is not only formalistic; it is unrealistic since it fails altogether
to have regard to the practical context in which criminal trials are
conducted and to the dynamics operative in any given set of criminal
proceedings. The majority's judgment pays no regard to the fact that
the applicant's confession which, it is claimed, “broke”
the causal chain, was made immediately after his failed attempt to
exclude the incriminating evidence and that it was repeated, more
fully, only after all of that evidence had been adduced at trial.
Having failed to have it excluded, he cannot but have been aware that
the trial court would have before it forensic and other compelling
evidence which he himself had pointed out on the order of the police
authorities and which would clearly establish his guilt. We consider
it telling that both the Public Prosecutor and Counsel for J's
parents argued that the applicant's confession “was worth
nothing” since he had only confessed to what had, in any event,
already been proven (§ 35). Therein lies the core of the problem
and it is difficult to disagree with their submissions in this
regard.
In
our view, the evidence secured in breach of Article 3 and thereafter
admitted into trial cannot be regarded as having had no bearing upon
the subsequent development and outcome of the proceedings. The
exclusion only of applicant's pre-trial statements afforded little if
any benefit to him in terms of curing the defect caused by the
violation of Article 3. Once the incriminating evidence had been
admitted, his freedom to mount a defence was restricted
substantially, if not entirely, and a conviction for the charges upon
which he stood accused was all but inevitable. That such
inevitability was articulated by the prosecuting parties who
participated in the trial confirms us in our view that serious doubt
must be cast over the capacity of the applicant, at the outset of the
trial, to defend himself effectively.
Neither
the applicant's confession at trial nor the ostensibly limited
reliance upon that coerced evidence to establish the veracity of the
said confession was capable of curing the manifest defect in the
proceedings that was caused by the admission into evidence of such
tainted materials.
The only way to ensure effective protection of
the applicant's fundamental right to a fair hearing would have been
to exclude all impugned evidence and to have proceeded (albeit on
other charges, such as, kidnapping with extortion causing death, see
§ 35) on the basis of the non-contaminated evidence that was
available to the prosecution. To allow evidence obtained by a breach
of Article 3 to be admitted into a criminal trial weakens,
inevitably, the protection which that provision confers and signals a
certain ambivalence about how far that protection goes.
We
find it disturbing that the Court has introduced, for the first time,
a dichotomy in principle between the types of conduct prohibited by
Article 3 at least insofar as the consequences for a trial's fairness
are concerned where breaches of that provision occur. In effect, 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? If a break in the causal
chain from torture to conviction can be established – where,
for example, a torture victim chooses to confess during trial –
why not permit the admission of such evidence at the outset of his
trial and wait to see if any break in the causal chain might occur?
The answer is manifestly obvious. Societies that are founded upon the
rule of law do not tolerate or sanction, whether directly, indirectly
or otherwise, the perpetration of treatment that is absolutely
prohibited by Article 3 of the Convention. Neither the wording of
Article 3 nor that of any other provision of the Convention makes a
distinction between the consequences to be attached to torture and
those attaching to inhuman and degrading treatment. There is thus no
legal basis, in our view, for regarding inhuman treatment as
different from torture in terms of the consequences that flow from
the perpetration thereof. Neither “a break in the causal chain”
nor any other intellectual construct can overcome the inherent wrong
that occurs when evidence obtained in violation of Article 3 is
admitted into criminal proceedings.
The
Court has repeatedly stated that Article 3 is an absolute right and
that no derogation from it is permissible under Article 15 § 2 –
even in the event of a public emergency.
Being absolute, all violations thereof are serious and, in our view,
the most effective way of guaranteeing that absolute prohibition is a
strict application of the exclusionary rule when it comes to Article
6. Such an approach would leave State agents who are tempted to
perpetrate inhuman treatment in no doubt as to the futility of
engaging in such prohibited conduct. It would deprive them of any
potential incentive or inducement for treating suspects in a manner
that is inconsistent with Article 3.
We
are mindful of the consequences that flow from a strict application
of the exclusionary rule where violations of Article 3 are concerned.
We recognise that, at times, often reliable and compelling evidence
may have to be excluded and that the effect upon the prosecution of a
crime may thereby be compromised. Furthermore, the exclusion of such
evidence may result in an accused person receiving a lighter sentence
than he or she might otherwise have received. However, where this
occurs the ultimate responsibility for any such “advantage”
to the accused lies, firmly, with the State authorities whose agents,
irrespective of their motivation, permitted the perpetration of
inhuman treatment and thereby risked compromising the subsequent
conduct of criminal proceedings.
We
are also cognisant of the fact that victims of crime, their families
and the public at large all have an interest in the prosecution and
punishment of those who engage in criminal activities. However, in
our view, there is an equally vital, compelling and competing public
interest in the preservation of the values of civilised societies
founded upon the rule of law. In such societies, recourse to
subjecting individuals to inhuman or degrading treatment, regardless
of its purpose, can never be permitted. There is, in addition, a
critical public interest in ensuring and maintaining the integrity of
the judicial process and the admission into a trial of evidence
obtained in violation of an absolute human right would undermine and
jeopardize the integrity of that process. In our view, criminal
activity may not be investigated nor an individual's conviction
secured at the cost of undermining the absolute right not to be
subjected to inhuman treatment as guaranteed under Article 3. To hold
otherwise would involve sacrificing core values and bringing the
administration of justice into disrepute.
As
with the majority, we acknowledge that the state agents in this case
acted in a difficult and highly charged situation. This does not,
however, alter the fact that they obtained, by a breach of Article 3,
real evidence which was subsequently used and relied upon at the
criminal trial of the applicant. Though the situation in this case
was critical it is precisely in times of crisis that absolute values
must remain uncompromised.
PARTLY DISSENTING OPINION OF JUDGE CASADEVALL JOINED BY
JUDGES MIJOVIĆ, JAEGER, JOČIENĖ AND LÓPEZ
GUERRA
(Translation)
I
am unable to agree with the conclusions reached by the majority in
this case regarding the applicant's victim status and the finding of
a violation of Article 3 of the Convention. The case was admittedly
delicate in terms of the applicant's legitimate rights, but was all
the more delicate and difficult for the prosecuting authorities, who
were faced with an extremely serious and tragic situation culminating
in the murder of an eleven-year-old child.
It
is not disputed that the threats of violence against the applicant
amounted to inhuman and degrading treatment proscribed by Article 3
of the Convention. This was formally acknowledged by the German
judicial authorities: the Frankfurt am Main Regional Court stated
that the threat to cause the applicant pain in order to extract a
statement from him had not only constituted a prohibited method of
interrogation under Article 136a of the Code of Criminal Procedure
but had also disregarded Article 3 of the Convention, and the
Federal Constitutional Court found that the applicant's human
dignity and the prohibition on subjecting prisoners to ill-treatment
had been disregarded (see paragraph 120 of the judgment).
The
Chamber held in its judgment that the applicant could no longer claim
to be the victim of a violation of Article 3 after the domestic
courts had acknowledged the violation and afforded sufficient redress
for it, seeing that the two police officers involved in the events in
question had been convicted and punished. I support that conclusion
in the present case.
The
majority of the Grand Chamber, endorsing the Chamber's findings,
consider that the domestic courts acknowledged expressly and in an
unequivocal manner that the applicant's interrogation had violated
Article 3 of the Convention (see paragraph 120 in fine of
the judgment); that the investigation and the criminal proceedings
were sufficiently prompt and expeditious to meet the standards set by
the Convention (see paragraphs 121 and 122); and that the police
officers were found guilty of coercion and incitement to coercion,
respectively, under the provisions of German criminal law (see
the start of paragraph 123). However, they conclude that the
applicant can still claim to be a victim and that there has been a
violation of Article 3.
This
assessment appears to be based mainly on the leniency of the
penalties imposed on the police officers, because:
–
in the criminal proceedings they were sentenced “only to
very modest and suspended fines” (see paragraph 123), which
were “almost token” and “manifestly
disproportionate” (see paragraph 124);
–
the disciplinary sanctions, consisting in their transfer to posts
which no longer involved direct association with the investigation of
criminal offences, were too lenient as the officers were not
suspended from duty while being investigated or tried or
dismissed after being convicted
(see paragraph 125).
In
the very particular circumstances of this case, regard being had to
the fact that after the interrogation D., the deputy chief of police,
drew up a note for the police file in which he described – and
admitted – the manner in which the events had occurred and
provided reasons, or indeed justification, for them; that the
domestic courts (the Regional Court and the Federal Constitutional
Court) expressly declared that there had been a breach of the Basic
Law and the Convention; and that the two police officers were found
guilty and received criminal and disciplinary sanctions, the question
of the quantum of the penalties should no longer be relevant. The
Court points out that, except in manifestly arbitrary cases, “it
is not its task to rule on the degree of individual guilt or to
determine the appropriate sentence of an offender, those being
matters falling within the exclusive jurisdiction of the national
criminal courts” (see paragraph 123 of the judgment). There are
good reasons for such judicial restraint, namely the lack of
familiarity with the criminal case that resulted in the conviction
and the fact that the convicted persons do not take part in the
proceedings before the Court.
Applying
the criterion of the severity of the penalty imposed, one may wonder
what degree of punishment the majority might have accepted in order
to find that the applicant was no longer a victim. In other words,
should the applicant's victim status depend on the severity of the
penalty imposed on the police officers? In my opinion the answer is
“no”.
This
leaves the question of the additional requirement of compensation and
the doubts as to the effectiveness of the official liability
proceedings instituted by the applicant (see paragraphs 126 and 127).
I have two observations on this point: (a) the applicant did not
bring his compensation claim at national level until after his
application to the Court had been communicated and his request for
legal aid granted, that is, three years after the alleged damage, and
(b) the case is pending before the domestic courts and there is no
cause to prejudge either the effectiveness or the eventual outcome of
this remedy. In addition, the fact that the applicant did not seek
any award for non-pecuniary damage (see paragraph 190) is fairly
significant.
The
question also arises as to what useful purpose is served by the
operative provisions of the judgment. In the final analysis, the
majority of the Grand Chamber simply confirm what the German judicial
authorities – the Frankfurt am Main Regional Court and the
Federal Constitutional Court – had already expressly and
unequivocally acknowledged in their three decisions of 2003 and 2004:
the applicant, having been threatened with torture in order to make
him disclose the child's whereabouts, was subjected to inhuman
treatment prohibited by Article 3 (see paragraph 131). On this
precise issue all of us – the national judicial authorities,
the Government, the applicant and the judges of the Court – are
in agreement.
Ultimately,
this judgment will not even result in an award to the applicant by
way of just satisfaction.
