TheGäfgen Judgmentof the European Court of Human Rights: On the Consequences of the Threat of Torture for Criminal Proceedings

Abstract

Whether or not the prohibition of torture allows exemptions is controversial not only in Germany but worldwide. The European Court of Human Rights (ECHR) had to answer this question in the case of Gäfgen versus Germany (App. 22978/05). The Grand Chamber of the Strasbourg court delivered its judgment on 1 June 2010. It held that the prohibition of torture (Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms) does not grant any exemptions, even if the life of another is at risk. The present case commentary agrees with this result of the judgment. The next question is even more interesting from the legal point of view: What are the legal consequences of a violation of Article 3 of the Convention, especially with regard to criminal court cases against the offender and the victim of torture? The ECHR emphasizes the necessity of the effectiveness of the protection of the fundamental rights under the Convention. As a result, it argues for a thorough investigation and deterrent punishment of the offenders on the one hand and for an extensive exclusion of evidence obtained as a consequence of torture from the proceedings against the victim of torture on the other.