The TV series 24 – whose shtick is its real time format, where every second on your TV equates to a second of plot development – was originally pitched with a plot about a couple on their wedding day. But it was quickly switched to a terrorism drama, which it has maintained for six seasons now. Terrorism is a natural for the real time format, because of the recurrence of ticking bombs, inevitably with red LED countdowns, or their equivalents: ticking viruses, ticking nerve gas, ticking nukes, ticking deaths of all varieties.
And all that ticking has given the show its signature moral dilemma: what do you do when the one person who knows where the bomb (or equivalent) is won’t tell you? For Jack Bauer, the series protagonist, there’s no dilemma at all. He just tortures them with whatever’s handy: drugs, an electric cord, even a towel. The series writers know where they stand, because Bauer’s approach usually (though not always) saves more lives than its costs.
But, in real life, there’s a legal issue. In 1999, the Supreme Court of Israel was asked to rule on the legality of torture in a hypothetical ticking bomb situation, in a case on whether the state security service could apply low level torture methods (akin to those approved by Bush) on suspected terrorists:
In the course of their argument, the state presented the “ticking bomb” argument. A given suspect is arrested by the GSS. He holds information regarding the location of a bomb that was set and will imminently explode. There is no way to diffuse the bomb without this information. If the information is obtained, the bomb may be neutralized. If the bomb is not neutralized, scores will be killed and injured. Is a GSS investigator authorized to employ physical means in order to obtain this information?
The Supreme Court ruled that the criminal law defence of necessity could not provide any advance authority for torture, because the nature of the defence was an improvised response to an emergency. However, the Court did not resolve two further questions:
We are not dealing with the criminal liability of a GSS investigator who employed physical interrogation methods under circumstances of “necessity.” Nor are we addressing the issue of the admissibility or probative value of evidence obtained as a result of a GSS investigator’s application of physical means against a suspect.
In the last couple of years, Germany’s courts have had to deal with both of these questions in an extraordinary non-terrorism case. And, this Monday, the European Court of Human Rights will have to resolve the second one.
In 2002, 11-year-old Jakob von Metzler disappeared shortly after getting off his school bus. An hour later, a ransom letter was sent to the boy’s family – his father was a senior bank executive – demanding 1 million Euro. The money was dropped off at a tram station and the police observed a law student, Magnus Gäfgen, the brother of a friend of Jakob’s, picking it up. Gäfgen, who later said that he wanted to impress his wealthy girlfriend and lead a life of luxury that matched his planned status as a lawyer, banked part of the money. He was arrested at Frankfurt airport trying to leave the country. At his interrogation in Frankfurt’s central police station, the law student accused others of perpetrating the kidnapping and claimed that the boy was alive, citing several hiding places none of which yielded Jakob. Cue the ticking clock.
Concerned that the boy was starving or exposed to the elements somewhere, the Vice President of the Frankfurt police, Wolfgang Daschner, signed an official note ordering a subordinate to inflict pain on Gäfgen (without causing ‘injuries’) under medical supervision. Within ten minutes of being confronted with this threat (which Gäfgen claimed included the prospect of being raped by fellow detainees) and without any inflicting of actual pain, Gäfgen confessed that he had killed Jakob and directed the police to the lake where the body had been dumped and other evidence tied Gäfgen to the kidnapping. Gäfgen later confessed to the murder and kidnapping to the police and before a court. These events created an extreme dilemma for the German courts. What were they to do now with Gäfgen and Daschner?
The answer: they were both prosecuted and they were both convicted. Daschner and his subordinate were charged with misdemeanors. The court rejected the defence of necessity, finding that it was inconsistent with the right to dignity in the German basic law, but it issued the non-punishments of suspended fines, citing the pairs’ motives of wanting to save young Jakob, the exigencies of the situation and the career damage both had suffered. A later civil claim by Gäfgen against the state of Hesse was rejected on the basis that the criminal convictions were sufficient satisfaction Gäfgen, of course, was also convicted of kidnapping, extortion and murder; indeed, he confessed again at his trial (although he maintained that he only did so after it became clear that sufficient evidence would be admitted to convict him in any case.) He didn’t get off so lightly. It is Gäfgen’s conviction and life sentence that are now before the European Court of Human Rights, who has to decide whether the conviction breached Gäfgen’s rights under the ECHR that are equivalent to these Charter rights:
10 A person must not be- (a) subjected to torture; or (b) treated or punished in a cruel, inhuman or degrading way…
24(1) A person charged with a criminal offence… has the right to have the charge… decided… after a fair… hearing.
Of course, there’s no doubt that Daschner breached Gäfgen’s right against torture. But that’s not the end of the matter. Against Gäfgen, there’s the possibility that his right against torture might be limited by Jakob’s competing (albeit only apparent) right to life. For Gäfgen, there’s the question of whether the state can benefit from Gäfgen’s torture via the resulting evidence when it comes to a prosecution. Interestingly, the German courts approached this question in exactly the way that Victorian courts would. Here’s the summary in the ECtHR admissibility (leave) decision:
The court found that on 1 October 2002 detective officer E. had used prohibited methods of investigation within the meaning of section 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 section 136a of the Code, all further statements which the applicant had made to the investigation authorities since then could not be relied upon in the criminal proceedings.
The procedural irregularity which had been 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 methods of investigation 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 improperly obtained. He had therefore not been given the necessary “qualified instruction” (qualifizierte Belehrung) in the course of any of his hearings until then.
On the contrary, the Regional Court rejected the applicant’s application for a declaration that on account of the violation of section 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”). It argued that the severity of the infringement of the applicant’s human rights – by means of a threat of physical violence – had to be weighed against the seriousness of the offence he was charged with, namely the murder of a child. Balancing these factors, it was proportionate to use the items of evidence obtained as a result of the confession extracted from the applicant, notably the child’s corpse and the results of the autopsy, in the criminal proceedings against him.
But was this approach compatible with the rights of Gäfgen against torture and to a fair hearing? We’ll be getting all the answers – and presumably many many more questions – on Monday.