CASE OF GÄFGEN v. GERMANY
Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);No violation of Art. 6-1 and 6-3
Anatoly Kovler;Christos Rozakis;Françoise Tulkens;George Nicolaou;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Ledi Bianku;Luis López Guerra;Margarita Tsatsa-Nikolovska;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Sverre Erik Jebens;Volodymyr Butkevych;Zdravka Kalaydjieva
9. The applicant was born in 1975 and is currently detained in Schwalmstadt Prison, Germany. 10. 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. 11. On 27 September 2002 the applicant lured J., aged 11, 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. 12. 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. 13. On 30 September 2002 at around 1 a.m. the applicant picked up the ransom at a tram station. From then on he was under police surveillance. He paid 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. 14. 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. 15. 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 in 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. 16. For fear of being exposed to the measures he was threatened with, the applicant disclosed the whereabouts of J.’s body after approximately ten minutes. 17. 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 while 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. 18. 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. 19. 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. 20. 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 detective officer E. with considerable pain which would not leave any trace of injury. 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. 21. 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 left-hand side of the applicant’s chest of a diameter of around 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. 22. 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. 23. 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 that he had been threatened on 1 October 2002. 24. On 9 April 2003, the first day of the hearing, the applicant, represented by counsel, lodged 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. 25. 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). 26. On 9 April 2003, in response to the first preliminary application, the Frankfurt am Main Regional Court 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. 27. 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. 28. 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 had been obtained through the use of prohibited methods of interrogation. 29. 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 of Criminal Procedure 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 of Criminal Procedure. 30. 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 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. 31. However, the court limited the inadmissible evidence to the above-mentioned 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 as follows: “... 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’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.” 32. Following the above ruling on the applicant’s preliminary applications lodged 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”. 33. 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). 34. 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. 35. In assessing the gravity of the applicant’s guilt, the court observed that he had killed his 11-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 had been 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. 36. 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. 37. On the day following his 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). 38. 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. 39. 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. 40. 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’ 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. 41. On 14 December 2004 the Federal Constitutional Court, sitting as a panel of three judges, held that the applicant’s constitutional complaint was inadmissible. 42. 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. 43. 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. 44. 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. 45. 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 duress, 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. 46. The decision was served on the applicant’s lawyer on 22 December 2004. 47. On 20 December 2004 the Frankfurt am Main 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 D. 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.’s body under a jetty at a pond near Birstein. 48. 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. 49. 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. 50. 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. 51. The judgment became final on 20 December 2004. 52. Subsequently, D. was appointed chief of the Police Headquarters for Technology, Logistics and Administration. 53. 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. 54. 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. 55. On 28 August 2006 the Frankfurt am Main Regional Court dismissed the applicant’s application for legal aid and the applicant appealed. 56. 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 detective 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. 57. 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. 58. The remitted proceedings are still pending before the Frankfurt am Main Regional Court. 59. 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 authorities.” 60. 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.” 61. 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 sub-paragraphs 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.” 62. According to 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 intent to cover up another offence. Murder is punishable by life imprisonment. 63. 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. 64. The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the United Nations Convention against Torture”), which was adopted by the United Nations General Assembly on 10 December 1984 (Resolution 39/46) and which came into force on 26 June 1987, provides: “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. ...” “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.” “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. ...” 65. 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. 66. 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 ... 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 ... 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 recognised 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 [on Human Rights], 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.” 67. 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.” (paragraph 3) He pointed out that “the fear of physical torture may itself constitute mental torture” (paragraph 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.” (paragraph 8) 68. 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 as follows regarding the author of the communication, a concert pianist: “The author 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.” (paragraph 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) (paragraph 10). 69. 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. 70. 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; ...” 71. General Comment No. 7 was replaced by General Comment No. 20 concerning prohibition of torture and cruel treatment or punishment 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.” 72. The United Nations Committee against Torture, which monitors the implementation of the United Nations Convention against Torture, stated in its Concluding Observations on Germany of 11 May 1998 (UN Doc. A/53/44) as follows: “The Committee recommends 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 cognisance of the deciding judges in all judicial proceedings.” (paragraph 193) 73. 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, US Supreme Court, no. 82-1651, Nix v. Williams, decision of 11 June 1984, 467 US 431 (1984), pp. 441 et seq.; US Supreme Court, no. 82-5298, Segura v. United States, decision of 5 July 1984, 468 US 796 (1984), pp. 796-97 and 815; and US Supreme Court, no. 07-513, Herring v. United States, decision of 14 January 2009, 555 US ... (2009), part II. A., with further references). The prohibition applies to information obtained from coerced confessions (see, on the issue of coercion, US Supreme Court, no. 50, Blackburn v. Alabama, decision of 11 January 1960, 361 US 199 (1960), pp. 205-07, and US Supreme Court, no. 8, Townsend v. Sain, decision of 18 March 1963, 372 US 293 (1963), pp. 293 and 307-09), 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). 74. 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 as follows: “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 [a] 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. ...”