The fruits of torture

Previously on Charterblog:

Freidrich von Metzler, banker: “My son has disappeared and someone wants… one million Euros!”

Magnus Gäfgen, law student: “Jakob’s still alive, but I won’t say where!”

Wolfgang Daschner, Vice President of the Frankfurt Police: “Tell me where or my colleague will inflict great pain (but no injuries!)”

Magnus Gäfgen: “I killed Jakob. I’ll show you where to find his body and some other evidence implicating me!”

Frankfurt Regional Court: “Daschner, I sentence you to a suspended fine. Gäfgen, I sentence you to life imprisonment! ”

Magnus Gäfgen: “What about my human rights? Also, I want money!”

The following takes place between Article 3 (right against torture) and Article 6(1) (right to a fair hearing) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (but the rights are the same in the Charter.) Events take place in surreal time.

In last night’s decision, Gäfgen v Germany [2008] ECHR 565, a seven judge chamber of the European Court of Human Rights, despite rejecting Gäfgen’s claims that he was threatened with rape and pain even after the police realised that Jakob was dead, held that the young law student, killer and incompetent blackmailer was treated inhumanely, albeit with ‘mitigating factors’:

The Court would like to underline in this connection that in view of the absolute prohibition of treatment contrary to Article 3 irrespective of the conduct of the person concerned and even in the event of a public emergency threatening the life of the nation – or, a fortiori, of an individual – the prohibition on ill-treatment of a person in order to extract information from him applies irrespective of the reasons for which the authorities wish to extract a statement, be it to save a person’s life or to further criminal investigations. Moreover, the applicant’s treatment must be considered to have caused him considerable mental suffering, which is also illustrated by the fact that, having persistently refused to make correct statements until then, he confessed under the influence of such treatment where he had hidden J. Thus, the Court finds that the treatment the applicant was threatened with would, if carried out, amount to torture.

However, the questioning lasted for some ten minutes only and, as was established in the criminal proceedings against the police officers (see paragraph 46 above), took place in an atmosphere of heightened tension and emotions owing to the fact that the police officers, who were completely exhausted and under extreme pressure, believed that they had only a few hours to save J.’s life, elements which can be regarded as mitigating factors… Furthermore, the threats of ill-treatment were not put into practice and have not been shown to have had any serious long-term consequences for the applicant’s health. 70. In the light of the above, the Court considers that in the course of the questioning by E. on 1 October 2002 the applicant was subjected to inhuman treatment prohibited by Article 3 of the Convention.

But six judges of the court held that the German courts had already provided Gäfgen with sufficient remedies for his treatment, as they had recognised that the law student was treated illegally and that his rights were breached, exposed his tormentors to career penalties and thrown out the confessions Gäfgen made in the days and weeks after the treatment:

It is true that the applicant has not to date obtained payment of any compensation in the official liability proceedings he instituted against the Land of Hesse; these proceedings are currently still pending. Having regard to all the circumstances of the case, the Court finds, however, that in a case such as the present one, in which the breach of Article 3 lies in a threat of ill-treatment (as opposed to actual physical ill-treatment attaining the threshold for Article 3 to apply), redress for this breach is essentially granted by the effective prosecution and conviction of the persons responsible. The Court finds that, not least in view of the wide public approval of the treatment to which the applicant was subjected, the criminal conviction of the police officers responsible, which acknowledged in an unequivocal manner that the applicant had been the victim of prohibited ill-treatment, was essential in affording him redress in a manner other than by the payment of a sum of money.

So, Gägner might have got some money if he had been courageous in the face of the threat of torture to the point where the German police actually had to torture him. Or if the German people hadn’t been so solid in their support for the threats. Or if his almost-torturers hadn’t been given a slap on the wrist…

And what about the small matter that Gäfgen is serving a life sentence based on a trial that was full of evidence that he had directed the police to immediately after he was threatened with torture? The majority took comfort in the fact that the body and other forensic evidence wasn’t the main evidence in the trial; rather, it played a subsidiary role to Gäfgen’s own open-court confession, which came immediately after the court had ruled that all the real evidence would be admissible:

[T]he Court finds that the use during the applicant’s trial of the items of evidence in question does not fall within the category of cases in which such use rendered the trial automatically unfair under all circumstances. The Court finds, though, that there is a strong presumption that the use of items of evidence obtained as the fruit of a confession extracted by means contrary to Article 3 renders a trial as a whole unfair in the same way as the use of the extracted confession itself. It is thus necessary for the Court to determine the fairness of the proceedings against the applicant in the light of all the circumstances of the case, having regard, in particular, to the circumstances established by untainted evidence, to the weight attached to the impugned items of evidence and to whether the applicant’s defence rights were respected, notably the opportunity for him to challenge the admission and use of such evidence at his trial….

As to the applicant’s fresh confession at the trial, the Court further notes that in the proceedings before it, the applicant claimed that he had made this confession only because the impugned items of evidence would be, and indeed had been, used as evidence against him. It observes, however, that in the proceedings before the domestic courts, the applicant always confirmed that he had volunteered his confession out of remorse and in order to apologise. In any event, having regard to the Regional Court’s reasoning stressing the crucial importance of the applicant’s confession for its findings concerning the execution of his offence (see paragraphs 30-31 above), which might otherwise have led to only a less serious offence being proved, and the fact that the applicant was assisted by his defence counsel, it is not persuaded that he could not have remained silent and no longer had any defence option but to confess at the trial. He indeed confessed at the outset of the trial and at its end in different terms, whereby he could be said to have varied his defence strategy. His confession cannot, therefore, be regarded as the result of measures that extinguished the essence of his defence rights at his trial.

As to the opportunities for the applicant to challenge the impugned evidence, the Court observes that he successfully challenged the use of the statements he had made before the trial. The Regional Court excluded not only the extracted statements as such, but also all other statements that might have been made as a result of the continuous effect of the treatment in breach of Article 3. The applicant further could and did object to the use of the – reliable – items of real evidence at his trial. The Regional Court, which had discretion to exclude this evidence, declared in a thoroughly reasoned decision weighing up all the interests involved that the evidence was admissible. In view of this, the Court finds that the applicant’s defence rights cannot be considered to have been disregarded in this respect either.

The judgment rests on three policy judgments that are heavily relied upon in the common law: the distinction between confessions and real evidence; the reluctance to ascribe anything other than genuine motives to an open-court confession; and the utility of a post facto excerise of a public policy discretion informed by notions of reliability as a remedy for breaches of human rights by investigators. Count me as a skeptic on all three notions and a fan of the approach of the US Supreme Court, which rejects at least the first and the last. I can’t see for the life of me what disincentive this judgment creates whatsoever for future threats of torture.

So, I’m with dissenting Bulgarian Judge Kalaydjieva:

The Court has never accepted that a mere payment of compensation could remove the victim status of a person subjected to ill-treatment, because that would encourage a “pay-and-torture” policy in cases “of importance”. I believe that the approach of the national courts in the present case is dangerous for a similar reason: the authorities may be tempted to extract evidence in violation of Article 3, where the price of punishing an officer and paying compensation is judged to be acceptable compared to the benefit to be reaped, namely securing the suspect’s conviction in a difficult case….

It appears that the use of the impugned evidence was of crucial importance in support of the charges, which were reclassified from kidnapping to premeditated murder as a result of the applicant’s statements at the investigation stage. There is a difference between the punishment prescribed for kidnapping and the one for premeditated murder, in respect of which the applicant was sentenced. Indeed, the applicant now bears full responsibility for his terrible crime, as he stated he wished to. In view of the proceedings described, I believe that he was also held responsible and punished for his self-incriminatory acts carried out under coercion.

In the present case the majority used the approach of assessment and balance, similar to the one applied to complaints of an unfair trial as a result of violations of the rights under Article 8 of the Convention. Given the absolute prohibition in Article 3, I believe that in so far as the use of evidence obtained as a result of an acknowledged violation of Article 3 is established by the national authorities, the Court should not be required to perform a further assessment of the extent and manner in which the fairness of the proceedings was affected. The very fact that such evidence was used seems to me sufficient to find a violation of the right not to incriminate oneself. A victim’s opportunity to challenge and, where appropriate, to effectively prevent the use of such evidence in criminal proceedings cannot be a part of a balancing test between the severity of the ill-treatment and the person’s dangerousness for the purposes of a fair trial. The existence of such opportunities should be regarded as an issue relating to exhaustion of domestic remedies for the purposes of admissibility of the complaints and to the duties of the signatory States to the Convention under Article 13. Where, as in the present case, the domestic remedies failed to exclude the use of such evidence and its effect on the outcome of the criminal proceedings, the prosecution cannot be seen to be “seeking 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”. Such recourse should lead to conclusions as regards the presumption of innocence and the fairness of the criminal trial.

The majority’s approach risks introducing into the Court’s jurisprudence the practice of reassessment of a violation of Article 3 that has already been established. More importantly, this approach is capable of undermining the absolute character of the prohibition in Article 3 and of opening the way for calculation of the appropriate extent of admissible coercion and its use in relation to particular accusations, contrary to the principles of a fair trial. I am far from having any sympathy with the applicant’s acts and I share the grave concerns raised by the terrible crime against an innocent child. To my regret, however, I am unable to share the conclusions of the majority on the applicant’s continuing victim status and the fairness of the proceedings in his case. Given the insufficient protection of his right not to incriminate himself, in my view he continued to be a victim of coercion, which affected the fairness of the criminal proceedings against him. In my view an opportunity for the applicant to have a retrial should be capable of correcting both these defects.

Indeed. There was room for balance in this case, given the ample evidence of Gäfgen’s kidnapping prior to the threat of torture by the Frankfurt police. Indeed, there also seems enough evidence to get him for manslaughter. In this case, at least, there was no need to choose between freeing a criminal and forgiving the use of torture. Alas, the ECtHR nevertheless made its choice, without the excuse of a ticking bomb.

Coming soon on Charterblog:

“Joe”, CIA agent: “Tell us about your dealings with Al Qaeda or we’ll send someone to Australia to rape your wife!”

Joseph Thomas, to the AFP: “I took money from Al Qaeda but I was never going to commit terrorism!”

Phillip Cummins, judge: “Your confession is admissible!”

Jury: “He took money from Al Qaeda but was never going to commit terrorism!”

Joseph Thomas, on Four Corners: “I took money from Al Qaeda but I was never going to commit terrorism!”

Court of Appeal: “Your confession to the AFP was inadmissible. Your human rights are vindicated. Also, because of your Four Corners interview, you can be convicted of taking money from Al Qaeda. [Wink!]”

Jack Bauer, AFP agent: “I read you loud and clear!”

Tick. Tick. Tick. Tick…