Opinio Juris

Antoine Buyse at the ECHR Blog has posted an analysis of Gafgen v. Germany, a decision handed down by the ECHR on Monday concerning the admissibility of evidence resulting from statements made under the threat of torture. Here's the background:

In 2003, the applicant, Magnus Gäfgen, was sentenced to life imprisonment for the murder of J., the eleven year old son, of a rich bankers family from Frankfurt am Main. Gäfgen had lured the boy into his home and subsequently killed him. That same day he dropped the corpse of the boy into a pond. He had then demanded a ransom of one million euros from the family, without disclosing that J. was already dead. Shortly after picking up the ransom, Gäfgen was arrested.

The case centres on what occurred next: thinking that the boy was still alive but in grave danger, the police officers questioning Gäfgen threatened him with considerable pain if he did not reveal where the child was. As a result, Gäfgen disclosed where the corpse could be found. At the start of the trial, Gäfgen complained that his confession had been made under the threat of torture.

Buyse explains that:

The Court first concluded that the threat, would it have been carried out, would have amounted to torture and that a threat of torture amounted to inhuman treatment. The threat itself, however, was not torture.

The opinion then states:

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 (...), 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...

Buyse's post considers this issue of mitigation (which he finds "somewhat puzzling" in light of the absolute prohibition on torture) and the balancing test that the ECHR seems to use in deciding whether or not torture has taken place. For a full explanation of these issues, as well as how this affects evidentiary and fair trial issues under the European Convention, see his full post.