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EUROPEAN COURT OF HUMAN RIGHTS   30.6.2008   Press release issued by the Registrar   CHAMBER JUDGMENT GÄFGEN v. GERMANY   The European Court of Human Rights has today delivered at a public hearing its Chamber judgment[1] in the case of Gäfgen v. Germany (application no. 22978/05).   The Court held by six votes to one that:   the applicant might no longer claim to be the victim of a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the European Convention on Human Rights; and,   that there had been: no violation of Article 6 (right to a fair trial) of the Convention.   The press release (in English, French and German) and the text of the judgment (in English and French) will be available after the hearing on the Court’s Internet site (http://www.echr.coe.int).   1.  Principal facts   The applicant, Magnus Gäfgen, is a German national who was born in 1975. He is currently in prison in Schwalmstadt (Germany).   The case concerned Mr Gäfgen’s complaint, in particular, that he was threatened with ill-treatment by the police in order to make him confess to the whereabouts of J., the youngest son of a well-known banking family in Frankfurt am Main, and that the ensuing trial against him was not fair.   In July 2003 Mr Gäfgen was sentenced to life imprisonment for the abduction and murder of J.. The court found that his guilt was of a particular gravity, meaning that the remainder of his prison sentence cannot be suspended on probation after 15 years of detention.   The child, aged 11, had got to know the applicant, who at the time was a law student, through his sister. On 27 September 2002 the applicant lured J. into his flat by pretending that J.’s sister had left a jacket there. He then suffocated the child.   Subsequently, the applicant deposited a ransom demand at J.’s parents’ home, requiring them to pay one million euros to see their child again. He abandoned J.’s corpse under the jetty of a pond one hour’s drive away from Frankfurt.   On 30 September 2002 at around 1 a.m. Mr Gäfgen collected the ransom at a tram station. He was placed under police surveillance and was arrested by the police several hours later.   On 1 October 2002 one of the police officers responsible for questioning Mr Gäfgen, on the instructions of the Deputy Chief of Frankfurt Police, warned the applicant that he would face considerable suffering if he persisted in refusing to disclose the child’s whereabouts. They considered that threat necessary as J.’s life was in great danger from lack of food and the cold. As a result of those threats, the applicant disclosed where he had hidden the child’s body. Following that confession, the police secured further evidence, notably the tyre tracks of the applicant’s car at the pond and the corpse.   At the outset of the criminal proceedings against the applicant, Frankfurt am Main Regional Court decided that all his confessions made throughout the investigation could not be used as evidence at trial as they had been obtained under duress, in breach of Article 136a of the Code of Criminal Procedure and Article 3 of the European Convention. However, the regional court did allow the use in the criminal proceedings of evidence obtained as a result of the statements extracted from the applicant under duress.   Ultimately, on 28 July 2003 the applicant was found guilty of abduction and murder and was sentenced to life imprisonment. It was found that, despite the fact that the applicant had been informed at the beginning of his trial of his right to remain silent and that all his earlier statements could not be used as evidence against him, he nevertheless again confessed that he had kidnapped and killed J. The court’s findings of fact concerning the crime were essentially based on that confession. They were also supported by: the evidence secured as a result of the first extracted confession, namely the autopsy report and the tyre tracks at the pond; and, other evidence obtained as a result of the applicant being observed after he had collected the ransom money, later discovered in his flat or paid into his accounts.   The applicant lodged an appeal on points of law which was dismissed by the Federal Court of Justice on 21 May 2004. He subsequently lodged a complaint with the Federal Constitutional Court, which on 14 December 2004 refused to examine it. That court confirmed the regional court’s finding that threatening the applicant with pain in order to extract a confession from him constituted a prohibited method of interrogation under domestic law and violated Article 3 of the Convention.   On 20 December 2004 the two police officers involved in threatening the applicant were convicted of coercion and incitement to coercion while on duty and were given suspended fines.   On 28 December 2005 the applicant applied for legal aid in order to bring official liability proceedings against the Land of Hesse to obtain compensation for being traumatised by the investigative methods of the police. Those proceedings are currently still pending.   2.  Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 15 June 2005 and declared partly admissible on 10 April 2007.   The President granted leave to Mr and Mrs Friedrich and Sylvia von Metzler, the parents of J., to intervene in the proceedings as a third party.   Judgment was given by a Chamber of seven judges, composed as follows:   Peer Lorenzen (Danish), President, Rait Maruste (Estonian), Volodymyr Butkevych (Ukrainian), Renate Jaeger (German), Isabelle Berro-Lefèvre (Monegasque), Mirjana Lazarova Trajkovska (citizen of “the former Yugoslav Republic of Macedonia”), Zdravka Kalaydjieva (Bulgarian), judges, and also Claudia Westerdiek, Section Registrar.   3.  Summary of the judgment[2]   Complaints   The applicant complained that he was subjected to torture when questioned by the police. He further submitted that his right to a fair trial was violated notably by the use at his trial of evidence secured as a result of his confession obtained under duress. He relied on Articles 3 (prohibition of torture) and 6 (right to a fair trial).   Decision of the Court   Article 3   Treatment contrary to Article 3   The Court noted that, according to the findings of the German criminal courts, a police officer had threatened the applicant with physical violence which would have caused him considerable pain in order to make him reveal J.’s whereabouts. The applicant had therefore been subjected to sufficiently real and immediate threats of deliberate ill-treatment.   As to the qualification of the ill-treatment, the Court underlined the absolute nature of the prohibition of treatment contrary to Article 3, irrespective of the conduct of the person concerned and even if the ill-treatment was to extract information in order to save a person’s life. The applicant’s treatment had to have caused him considerable mental suffering, which had indeed been illustrated by the fact that, having persistently refused to make correct statements until then, he had confessed to where he had hidden J. when threatened. The Court therefore found that the treatment the applicant had been threatened with would, if carried out, have amounted to torture.   However, as the questioning had only lasted ten minutes and had taken place in an atmosphere of heightened tension and emotions owing to the fact that the police officers, completely exhausted and under extreme pressure, had believed that they had just a few hours to save J.’s life, the Court considered that the applicant had been subjected to treatment during his interrogation on 1 October 2002 which it considered inhuman, in breach of Article 3.   Loss of victim status   The Court was satisfied that the German courts had acknowledged expressly and in an unequivocal manner that the applicant’s treatment when questioned on 1 October 2002 had violated Article 3. Frankfurt am Main Regional Court and the Federal Constitutional Court had stated that the threat to cause the applicant pain in order to extract a statement from him had not only constituted a prohibited method of interrogation under domestic law but had also violated Article 3.   Moreover, redress had been granted to the applicant because the two police officers involved in threatening the applicant had been convicted of coercion and incitement to coercion in the course of their duties and had been punished.   Furthermore, the exclusion from the criminal proceedings of all statements made under threat had been an effective method of redressing disadvantages the applicant had suffered during the criminal proceedings against him and served to discourage future use of interrogation methods prohibited by Article 3.   Although the applicant had not to date obtained compensation in the official liability proceedings, the Court found that in the applicant’s case, where the breach of Article 3 lay in a threat of ill-treatment (as opposed to actual physical ill-treatment), redress was essentially granted by the effective prosecution and conviction of the police officers responsible.   The Court was therefore satisfied that the domestic courts had afforded the applicant sufficient redress and concluded that he could no longer claim to be the victim of a violation of Article 3.   Article 6   The Court found that the use of evidence obtained under duress, just like the use of a confession obtained under duress, led to a strong presumption that the applicant’s trial could, as a whole, have been unfair.   However, the Court considered that it had been the applicant’s new confession at the trial which had been the essential basis for the regional court’s judgment, whereas all other items of evidence had been of an accessory nature and had only been used to test the veracity of that confession.   The applicant claimed that he had made the new confession only because the items of evidence secured as a result of his first confession obtained under duress (the tyre tracks, J.’s corpse) would be, and indeed had been, used as evidence against him. In the proceedings before the domestic courts, the Court observed, on the other hand, that the applicant had consistently confirmed that he had volunteered his confession out of remorse and in order to apologise. In any event, given that the regional court stressed the crucial importance of the applicant’s new confession for its findings and the fact that the applicant had been assisted by his defence counsel, the Court was not persuaded that he could not have remained silent and no longer had any defence option but to confess at his trial. Indeed, it could be said that he had simply varied his defence strategy. His confession could not, therefore, be regarded as having been the result of measures that had infringed his defence rights at trial.   The Court therefore concluded that, in the particular circumstances of the applicant’s case, especially given the reliable evidence available (obtained as a result of the police having observed the applicant after he had collected the ransom), the items of evidence obtained as a result of the extracted confession had only been accessory in securing the applicant’s conviction. The applicant’s defence rights had not therefore been compromised as a result of their admission and their use had not made the applicant’s trial as a whole unfair. Accordingly, there had been no violation of Article 6 §§ 1 and 3.     Judge Kalaydjieva expressed a dissenting opinion, which is annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).   Press contacts Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone: 00 33 (0)3 90 21 54 91) Sania Ivedi (telephone: 00 33 (0)3 90 21 59 45)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17‑member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.