CASE OF GÄFGEN v. GERMANY
No longer a victim of a violation of Art. 3;No violation of Art. 6
Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
6. The applicant was born in 1975 and is currently detained in Schwalmstadt. 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. J. was the youngest son of a renowned banking family in Frankfurt am Main. He got to know the applicant, a law student, as an acquaintance of his sister. 9. 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 suffocated J. 10. Subsequently, the applicant deposited a letter at J.’s parents’ place of residence, stating that J. had been kidnapped by several persons. Only if the kidnappers received one million euros and managed to leave the country would the child’s parents see their son again. The applicant then drove to a pond at a private property near Birstein, one hour’s drive from Frankfurt, and hid J.’s corpse under a jetty at the pond. 11. On 30 September 2002 around 1 a.m. the applicant picked up the ransom at a tram station. From then on he was secretly observed by the police. He paid part of the ransom into his accounts and hid the remainder of the money in his flat. That afternoon, the police arrested him at Frankfurt am Main airport. 12. After having seen a doctor at the airport’s hospital on account of circulation trouble 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. In reply, he suggested that the child was being held by another kidnapper. He was allowed to consult a lawyer, Z., for thirty minutes at his request. He subsequently stated that F.R. and M.R. had kidnapped the boy and had hidden him in a hut by a lake. M. and the applicant thereupon agreed to resume the questioning the following morning. 13. Early in the morning of 1 October 2002, before M. came to work, detective officer E., acting on the orders of the deputy chief of the Frankfurt police, D., told the applicant that he would suffer 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 people who would sexually abuse him. The officer also hit him once on the chest with his hand and shook him so that his head hit the wall on one occasion. The Government disputed that the applicant had been threatened with sexual abuse. 14. For fear of being exposed to the measures he was threatened with, the applicant disclosed the precise whereabouts of the child after approximately ten minutes of questioning. 15. As the applicant had declared that he would only agree to go to the place where he had hidden J. in the presence of detective officer M., he was then driven with M. and numerous other police officers to Birstein, without detective officer E. being present any longer. The police found J.’s corpse under the jetty at the pond near Birstein as indicated by the applicant. They recorded the discovery of the corpse on videotape. 16. The police detected tyre tracks left by the applicant’s car at the pond near Birstein. When questioned by detective officer M. on the way back from Birstein to the police station the applicant confessed to having kidnapped and killed J. The police further secured J.’s school exercise books, a backpack, clothes worn by J. when he was kidnapped and the typewriter used for the blackmail letter in containers indicated by the applicant on the way back to Frankfurt am Main. They further found almost all the ransom money and a note concerning the planning of the crime in the applicant’s flat. According to the autopsy carried out on J.’s corpse on 2 October 2002, the boy had died of suffocation. 17. The applicant consulted his lawyer En., who had been instructed by his mother and had tried in vain to contact and advise the applicant in the morning at the police station, on 1 October 2002 on his return from Birstein. 18. In a note for the police file dated 1 October 2002, the deputy chief of the Frankfurt police, D., stated 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 questioned by police officer E. under the threat of pain which would not cause any injuries. The treatment itself was to be carried out under medical supervision. D. further stated that he had ordered another police officer to obtain a “truth serum” to be administered to the applicant. According to the note, the applicant’s questioning was exclusively aimed at saving the child’s life rather than furthering the criminal proceedings concerning the kidnapping. As the applicant had already made a confession after having been threatened with pain by detective officer E., no measures had been carried out. 19. The applicant maintained his confession when questioned 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. 20. On 9 April 2003, the first day of the hearing, the applicant, represented by counsel, lodged an application for the proceedings to be discontinued. He claimed that he had been threatened by detective officer E. on instructions from the deputy chief of the Frankfurt am Main police, D., with being subjected to severe pain and sexual abuse. He argued that his treatment had been in breach of Article 136a of the Code of Criminal Procedure and Article 3 of the Convention and warranted the discontinuation of the proceedings against him. 21. The applicant further lodged an application for a declaration that owing to the continuous effect (Fortwirkung) of the threat of violence against him on 1 October 2002, all further statements which he had made to the investigation authorities until the beginning of the hearing could 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 statements extracted from the applicant – the so-called “fruit of the poisonous tree” – was prohibited (“Fernwirkung”). 22. On 9 April 2003 the Frankfurt am Main Regional Court dismissed the applicant’s application for the criminal proceedings against him to be discontinued. It found that the applicant had been threatened with 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 mere threat to cause the applicant pain had been illegal pursuant to Article 136a of the Code of Criminal Procedure, and also pursuant to Article 1 and Article 104 § 1, second sentence, of the Basic Law (see paragraphs 55-56 below) and Article 3 of the Convention, which underlay that provision. 23. However, this breach of constitutional rights did not bar criminal proceedings as such. In accordance with Article 136a § 3 of the Code, statements obtained through the use of prohibited methods of interrogation could not be relied upon in the criminal proceedings against the defendant. Likewise, the use of the investigation methods in question had not restricted the rights of the defence to such an extent that the criminal proceedings could no longer be conducted. Having regard to the seriousness of the charges against the applicant on the one hand, and to the severity of the unlawful conduct in the investigation proceedings on the other hand, there had not been such an exceptional and intolerable violation of the rule of law in the investigation proceedings as to bar the continuation of criminal proceedings. 24. In a separate decision also delivered on 9 April 2003 the Frankfurt am Main Regional Court, granting the applicant’s application to that effect, decided that in accordance with Article 136a § 3, second sentence, 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 could not be used as evidence in the criminal proceedings against him. 25. 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 that the applicant would suffer pain if he did not disclose the child’s whereabouts. Therefore, it was prohibited to use as evidence statements which the applicant had made as a consequence of the use of this forbidden investigative measure. This exclusion of evidence (Beweisverwertungsverbot) did not only comprise the statements made immediately after the threat on 1 October 2002. Owing to the continuous effect (Fortwirkung) of the violation of Article 136a of the Code, all further statements which the applicant had made to the investigation authorities since that date could not be relied upon in the criminal proceedings. 26. 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 the earlier statements he had made as a consequence of the use of forbidden investigation methods could not be used as evidence against him. However, the applicant had merely been instructed about his right as an accused not to testify, without having additionally been informed about the exclusion of the evidence that had been improperly obtained. He had therefore not been given the necessary “qualified instruction” (qualifizierte Belehrung) in the course of any of his hearings until then. 27. On the contrary, the Regional Court dismissed the applicant’s application for 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 as a result of the statements extracted from the applicant – the so-called “fruit of the poisonous tree” – was prohibited (“Fernwirkung”). That court found: “On the contrary, 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 ...’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.” 28. In his statement on the charges, made on the second day of the trial, the applicant admitted having killed J., but stated that he had not initially planned to do so. On the contrary, in his final statement at the close of the trial, after evidence had been taken between 9 April and 28 July 2003, he admitted that he had also planned from the outset to kill the child and had acted with that intent. He then described his confession as “the only way to accept his deep guilt” and as the “greatest possible apology for the murder of the child”. 29. 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 (besondere Schwere der Schuld; see paragraph 59 below). 30. The court found that at the hearing the applicant had been instructed anew about his right as a defendant to remain silent and about the fact that all his earlier statements could not be used as evidence against him, and had thereby been given the necessary qualified instruction. The applicant had nevertheless again 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 supported 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 also told the truth 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. 31. In assessing the gravity of the applicant’s guilt, the court observed that he had killed his eleven-year-old victim in order to be able to live in luxury with his wealthy friends and his girlfriend and to preserve his self-created image of a rich and successful young lawyer. It found that, contrary to the views expressed by the Public Prosecutor’s Office and the private accessory prosecutors, 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. 32. 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 inasmuch as the applicant had been threatened with pain in order to make him disclose the child’s whereabouts. 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 pending criminal investigations against them. However, their possibly 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. 33. On 29 July 2003 the applicant lodged an appeal on points of law with the Federal Court of Justice, submitting his grounds of appeal on 1 December 2003 in particular. He complained that the Regional Court, in its decision of 9 April 2003, had refused to discontinue the criminal proceedings against him. He argued that on 9 April 2003, he had lodged an application for the proceedings to be discontinued. At the same time, he had applied for a declaration that owing to the continuous effect (Fortwirkung) of the threat of violence on 1 October 2002, all further statements which he had made to the investigation authorities could not be relied upon in the criminal proceedings. He had also requested the court to declare that since the confession had been obtained from him by threats, 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 statements extracted from him was prohibited (“Fernwirkung”). The applicant included a full copy of these applications of 9 April 2003, including the grounds given for them, in his submissions giving reasons for his appeal on points of law. 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 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”). 34. In his observations dated 9 March 2004 the Federal Public Prosecutor argued that the applicant’s appeal on points of law should be dismissed as manifestly ill-founded. He argued that the use of prohibited methods of interrogation, such as a threat of torture, 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 full confession at the trial, which he had made after having been informed that his previous statements had not been admitted as evidence. 35. 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. 36. 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 severe pain and sexual abuse if he did not disclose the child’e 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. Because of these unjustifiable human-rights violations, there was both a bar to the criminal proceedings against him and a prohibition on using the items of evidence obtained as a consequence of the confession extracted from him in the course of the proceedings. 37. On 14 December 2004 the Federal Constitutional Court, sitting as a panel of three judges, refused to accept the applicant’s constitutional complaint for examination as it was inadmissible. 38. 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. Because of this threat, the applicant’s rights under Article 1 § 1 and Article 104 § 1, second sentence, of the Basic Law had been disregarded in the investigation proceedings. 39. 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 conclusions to be drawn from that finding. They had taken the view that the use as evidence of the statements obtained as a result of the measures in question had been prohibited but that there had been no bar to the criminal proceedings altogether. 40. According to the Federal Constitutional Court, there would not have been a violation of fundamental rights if the procedural flaw of having applied prohibited methods of investigation could be regarded as having been remedied by the criminal courts, because they had prohibited the use as evidence 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. On the contrary, 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 entailed a prohibition on using the statements obtained thereby as evidence, but had led to a bar to criminal proceedings against him. 41. 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 extorted from him by threats (“Fernwirkung”), his constitutional complaint was likewise inadmissible. The applicant had failed to raise this issue in the proceedings before the Federal Court of Justice. 42. The decision was served on the applicant’s lawyer on 22 December 2004. 43. On 20 December 2004 the Frankfurt am Main Regional Court convicted detective officer E. of coercion committed by an official in the course of his duties. It cautioned the defendant and imposed a suspended fine amounting to 60 daily payments of 60 euros (EUR), 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 amounting to 90 daily payments of EUR 120. The applicant had given evidence as a witness in these proceedings. 44. The Regional 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. 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 disapproved of the measure he had ordered and had proposed an approach entailing further questioning and confrontation of the applicant with third persons instead. D. had personally ordered detective officer E. to threaten the applicant with physical violence, which was to be carried out by another specially trained police officer. The measure had been aimed at finding out immediately where the applicant had hidden J., whose life he had considered to be at great risk. In order to save J.’s life, E. had threatened the applicant in the manner ordered by D. 45. The Regional Court observed that the method of investigation had not been justified as an act of necessity, because it 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 exceptions or a balancing of interests would breach a taboo. 46. In determining the sentences, the Regional Court notably 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 completely exhausted at the relevant time and had acted in a very tense and hectic situation. Moreover, D. had openly 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. Both 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 carrying out measures relevant to 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. 47. The judgment became final on 20 December 2004. 48. D. was subsequently transferred to the Police Headquarters for Technology, Logistics and Administration and was appointed its chief. 49. On 28 December 2005 the applicant applied to the Frankfurt am Main Regional Court for legal aid with a view to bringing official liability proceedings against the Land of Hesse for the payment of compensation. He claimed that he had been traumatised by the methods of police investigation applied against him, inter alia the threat of being subjected to pain if he did not disclose J.’s whereabouts, further threats of sexual abuse and slaps, and was in need of psychological treatment. 50. 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 qualified as coercion and amounted to a breach of official duties. 51. On 28 August 2006 the Frankfurt am Main Regional Court dismissed the applicant’s application for legal aid. 52. On 28 February 2007 the Frankfurt am Main Court of Appeal dismissed an appeal by the applicant against the refusal to grant him legal aid. Endorsing the reasons given by the Regional Court, it confirmed in particular that the 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 not be able to prove that the threats of torture uttered against him had caused mental damage necessitating psychological treatment. It was obvious that the officers’ threat for a short period of time was negligible compared to the traumatisation caused by the fact that he had killed a child. Moreover, even assuming that the applicant would be able to prove that police officer E. had shaken him, as a result of which his head had hit a wall on one occasion, and had once hit him on the chest, allegedly causing a haematoma near his collarbone, the physical damage caused thereby would be too minor to necessitate the payment of compensation for non-pecuniary damage. The violation of the applicant’s human dignity by the threat of torture did not warrant the payment of compensation either as the applicant had obtained sufficient satisfaction by the exclusion of his statements as evidence and the criminal conviction of the police officers responsible for the threats. 53. 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 and had thus refused to take the necessary evidence (in the main proceedings). In addition to that, it was not obvious that the physical injuries the applicant claimed to have suffered in the course of the interrogation could be considered to be of secondary importance in view of the threats uttered against him. Moreover, the question whether the violation of the applicant’s human dignity necessitated the payment of damages despite the satisfaction he had obtained as a result of the criminal conviction of the police officers involved was a difficult legal question on which no precedent existed in a judgment of a court of final instance, and which should therefore not be determined in legal-aid proceedings. 54. The proceedings are currently pending before the Frankfurt am Main Court of Appeal. 55. 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.” 56. Article 104 § 1, second sentence, of the Basic Law, on the rights of persons in detention, provides: “Persons taken into custody may neither be subjected to mental nor to physical ill-treatment.” 57. 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.” 58. By Article 211 of the Criminal Code, the intentional killing of a person is to be qualified as murder if certain aggravating elements are present. A murderer is notably a person who kills another out of cupidity, treacherously or in order to cover up another offence. Murder is punishable by life imprisonment. 59. A declaration by the sentencing court that the defendant’s guilt is of a particular gravity may, among other things, have a bearing on a subsequent decision as to whether or not to suspend the remainder 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.