CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 1 juin 2010

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text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s58B8AE49 { clear:both; mso-column-break-before:always } .sCD61FA93 { font-family:Arial; font-size:9.33pt; vertical-align:super; color:#0069d6 } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s3133A7C8 { font-family:Arial; color:#0069d6 }     GRAND CHAMBER             CASE OF GÄFGEN v. GERMANY   (Application no. 22978/05)                     JUDGMENT   This version was rectified on 3 June 2010 under Rule 81 of the Rules of Court.   STRASBOURG   1 June 2010       In the case of Gäfgen v. Germany, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Jean-Paul Costa, President ,   Christos Rozakis,   Nicolas Bratza,   Françoise Tulkens,   Josep Casadevall,   Anatoly Kovler,   Ljiljana Mijović,   Renate Jaeger,   Sverre Erik Jebens,   Danutė Jočienė,   Ján Šikuta,   Ineta Ziemele,   George Nicolaou,   Luis López Guerra,   Ledi Bianku,   Ann Power,   Nebojša Vučinić, judges , and Erik Fribergh, Registrar , Having deliberated in private on 18 March 2009 and on 24 March 2010, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 22978/05) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Magnus Gäfgen (“the applicant”), on 15 June 2005. The applicant was granted legal aid. 2.     The applicant alleged that the treatment to which he had been subjected during police interrogation concerning the whereabouts of a boy, J., on 1 October 2002 constituted torture prohibited by Article 3 of the Convention. He claimed that he remained a victim of this violation. He further alleged that his right to a fair trial as guaranteed by Article 6 of the Convention, comprising a right to defend himself effectively and a right not to incriminate himself, had been violated in that evidence which had been obtained in violation of Article 3 had been admitted at his criminal trial. 3.     The application was allocated to the Third Section and, subsequently, to the Fifth Section of the Court (Rule 52 § 1 of the Rules of Court). By a decision of 10 April 2007, it was declared partly admissible by a Chamber of the latter Section, composed of Peer Lorenzen, President, Snejana Botoucharova, Volodymyr Butkevych, Margarita Tsatsa-Nikolovska, Rait Maruste, Javier Borrego Borrego, Renate Jaeger, judges, and Claudia Westerdiek, Section Registrar. 4.     On 30 June 2008 a Chamber of the Fifth Section, composed of Peer Lorenzen, President, Rait Maruste, Volodymyr Butkevych, Renate Jaeger, Isabelle Berro-Lefèvre, Mirjana Lazarova Trajkovska, Zdravka Kalaydjieva, judges, and Claudia Westerdiek, Section Registrar, delivered its judgment. The Chamber decided unanimously that it was not necessary to rule on the Government’s preliminary objection of non-exhaustion of domestic remedies. It held, by six votes to one, that the applicant could no longer claim to be the victim of a violation of Article 3 of the Convention. It further held, by six votes to one, that there had been no violation of Article   6 of the Convention. 5.     By submissions dated 19 September 2008, received at the Court’s Registry on 26 September 2008, the applicant requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention and Rule 73, maintaining his claim that there had been a violation of both Article 3 and Article 6 of the Convention. On 1 December 2008 a panel of the Grand Chamber accepted that request. 6.     The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. 7.     The applicant and the German Government (“the Government”) each filed a memorial on the merits and replied in writing to each other’s memorials. In addition, third-party comments were received from Mr Friedrich von Metzler and Mrs   Sylvia von Metzler, the parents of J., who had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2) and who were represented by Mr E. Kempf and Ms H. Schilling, lawyers practising in Frankfurt am Main. Additional third-party submissions were received from the Redress Trust, a London-based international human rights non-governmental organisation, which had been granted leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 §§ 2 and 3) and which was represented by Ms C. Ferstman, Director, and Mr L. Oette, Adviser. The parties replied to those submissions (Rule 44 § 5). 8.     A hearing took place in public in the Human Rights Building, Strasbourg, on 18 March 2009 (Rule 59 § 3). There appeared before the Court: (a)     for the Government Ms   A. Wittling-Vogel , Ministerialdirigentin ,     Federal Ministry of Justice,   Agent , Mr   J.A. Frowein , Director (emeritus) of the     Max Planck Institute for Comparative Public Law     and International Law,   Counsel , Mr   M. Bornmann , Public Prosecutor, Mr   J. Koch , District Court Judge,   Advisers ; (b)     for the applicant Mr   M. Heuchemer , lawyer,   Counsel , Mr   D. Schmitz , lawyer, Mr   B. von Becker , lawyer, Mr   J. Schulz-Tornau , lawyer,   Advisers , Mr   S. Ströhm, Mr   M. Bolsinger,   Assistants .   The Court heard addresses by Mr Heuchemer and Mr Frowein as well as their replies to questions put by the Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 9.     The applicant was born in 1975 and is currently detained in Schwalmstadt Prison, Germany. A.     The kidnapping of J. and the police investigation 10.     J. was the youngest son of a banking family in Frankfurt am Main. He got to know the applicant, a law student, as an acquaintance of his sister. 11.     On 27 September 2002 the applicant lured J., aged 11, into his flat in Frankfurt am Main by pretending that the child’s sister had left a jacket there. He then killed the boy by suffocating him. 12.     Subsequently, the applicant deposited a ransom note at J.’s parents’ place of residence stating that J. had been kidnapped and demanding one   million euros. The note further stated that if the kidnappers received the ransom and managed to leave the country, then the child’s parents would see their son again. The applicant then drove to a pond located on a private property near Birstein, approximately one hour’s drive from Frankfurt, and hid J.’s corpse under a jetty. 13.     On 30 September 2002 at around 1 a.m. the applicant picked up the ransom at a tram station. From then on he was under police surveillance. He paid part of the ransom money into his bank accounts and hid the remainder of the money in his flat. That afternoon, he was arrested at Frankfurt am Main airport with the police pinning him face down on the ground. 14.     After having been examined by a doctor at the airport’s hospital on account of shock and skin lesions, the applicant was taken to the Frankfurt am Main police headquarters. He was informed by detective officer M. that he was suspected of having kidnapped J. and was instructed about his rights as a defendant, notably the right to remain silent and to consult a lawyer. He was then questioned by M. with a view to finding J. Meanwhile, the police, having searched the applicant’s flat, found half of the ransom money and a note concerning the planning of the crime. The applicant intimated that the child was being held by another kidnapper. At 11.30 p.m. he was allowed to consult a lawyer, Z., for thirty minutes at his request. He subsequently indicated that F.R. and M.R. had kidnapped the boy and had hidden him in a hut by a lake. 15.     Early in the morning of 1 October 2002, before M. came to work, Mr   Daschner (“D.”), deputy chief of the Frankfurt police, ordered another officer, Mr Ennigkeit (“E.”), to threaten the applicant with considerable physical pain, and, if necessary, to subject him to such pain in order to make him reveal the boy’s whereabouts. D.’s subordinate heads of department had previously and repeatedly opposed such a measure (see also paragraph 47 below). Detective officer E. thereupon threatened the applicant with subjection to considerable pain at the hands of a person specially trained for such purposes if he did not disclose the child’s whereabouts. According to the applicant, the officer further threatened to lock him in a cell with two huge black men who would sexually abuse him. The officer also hit him several times on the chest with his hand and shook him so that, on one occasion, his head hit the wall. The Government disputed that the applicant had been threatened with sexual abuse or had been physically assaulted during the questioning. 16.     For fear of being exposed to the measures he was threatened with, the applicant disclosed the whereabouts of J.’s body after approximately ten minutes. 17.     The applicant was then driven with M. and numerous other police officers to Birstein. He had refused to go with detective officer E. The police waited for a video camera to be brought to the scene. Then, the applicant, on the communicated order of the police officer in command and while being filmed, pointed out the precise location of the body. The police found J.’s corpse under the jetty at the pond near Birstein as indicated by the applicant. The applicant claimed that he had been obliged to walk without shoes through woods to where he had left the corpse and, on the orders of the police, he had had to point out its precise location. The Government disputed that the applicant had had to walk without shoes. 18.     Upon forensic examination of the scene, the police discovered tyre tracks left by the applicant’s car near the pond near Birstein. Under questioning by detective officer M. on the return journey from Birstein the applicant confessed to having kidnapped and killed J. He was then taken by the police to various other locations indicated by him where they secured J.’s school exercise books, a backpack, J.’s clothes and a typewriter used for the blackmail letter in containers. An autopsy carried out on J.’s corpse on 2   October 2002 confirmed that J. had died of suffocation. 19.     Having returned to the police station, the applicant was then permitted to consult his lawyer, En., who had been instructed to act on his behalf by his mother and who had tried, in vain, to contact and advise the applicant earlier that morning. 20.     In a note for the police file dated 1 October 2002, the deputy chief of the Frankfurt police, D., stated that he believed that that morning J.’s life had been in great danger, if he was still alive at all, given his lack of food and the temperature outside. In order to save the child’s life, he had therefore ordered the applicant to be threatened by detective officer E. with considerable pain which would not leave any trace of injury. He confirmed that the treatment itself was to be carried out under medical supervision. D. further admitted that he had ordered another police officer to obtain a “truth serum” to be administered to the applicant. According to the note, the threat to the applicant was exclusively aimed at saving the child’s life rather than furthering the criminal proceedings concerning the kidnapping. As the applicant had disclosed the whereabouts of J.’s body, having been threatened with pain, no measures had in fact been carried out. 21.     A medical certificate issued by a police doctor on 4 October 2002 confirmed that the applicant had a haematoma (7 cm x 5 cm) below his left collarbone, skin lesions and blood scabs on his left arm and his knees and swellings on his feet. A further medical certificate dated 7 October 2002 noted that, following an examination of the applicant on 2 October 2002, two haematomas on the left-hand side of the applicant’s chest of a diameter of around 5 cm and 4 cm were confirmed, together with superficial skin lesions or blood scabs on his left arm, his knees and his right leg and closed blisters on his feet. According to the certificate, these discreet traces of injuries indicated that the injuries had been caused a few days before the examination. The precise cause of the injuries could not be diagnosed. 22.     During subsequent questioning by the police on 4 October 2002, by a public prosecutor on 4, 14 and 17 October 2002, and by a district court judge on 30 January 2003 the applicant confirmed the confession he had made on 1 October 2002. 23.     In January 2003 the Frankfurt am Main public prosecutor’s office opened criminal investigation proceedings against the deputy chief of the Frankfurt police, D., and detective officer E. on the basis of the applicant’s allegations that he had been threatened on 1 October 2002. B.     The criminal proceedings against the applicant 1.     The proceedings in the Frankfurt am Main Regional Court (a)     The preliminary applications concerning the discontinuation of the proceedings and the inadmissibility of evidence 24.     On 9 April 2003, the first day of the hearing, the applicant, represented by counsel, lodged a preliminary application for the proceedings to be discontinued. The basis of his claim was that during interrogation and prior to confessing he had been threatened by detective officer E. with being subjected to severe pain and sexual abuse. He argued that this treatment had been in breach of Article 136a of the Code of Criminal Procedure (see paragraph 61 below) and Article 3 of the Convention and warranted the discontinuation of the proceedings against him. 25.     The applicant also lodged an alternative preliminary application seeking a declaration that, owing to the continuous effect ( Fortwirkung ) of the threat of violence against him on 1 October 2002, all statements which he had made to the investigation authorities should not be relied upon in the criminal proceedings. Moreover, the applicant sought a declaration that on account of the violation of Article 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 confession extracted – the so-called “fruit of the poisonous tree” – was prohibited ( Fernwirkung ). 26.     On 9 April 2003, in response to the first preliminary application, the Frankfurt am Main Regional Court dismissed the applicant’s application for the discontinuation of the criminal proceedings. The court noted that in the applicant’s submission, detective officer E. had threatened that a specialist was on his way to the police station by helicopter who, without leaving any traces, would inflict on him intolerable pain the likes of which he had never before experienced, if he continued to refuse to disclose J.’s whereabouts. To underpin the threat, E. had imitated the sound of the rotating blades of a helicopter. E. had further threatened that the applicant would be locked up in a cell with two big “Negroes” who would anally assault him. He would wish that he had never been born. The court found as a fact that the applicant had been threatened with the infliction of considerable pain if he refused to disclose the victim’s whereabouts. However, the court did not find it established that the applicant had also been threatened with sexual abuse or had been otherwise influenced. The threat to inflict pain upon the applicant had been illegal pursuant to Article 136a of the Code of Criminal Procedure, and also pursuant to Article 1 and Article 104 § 1 of the Basic Law (see paragraphs 59-60 below) and in violation of Article 3 of the Convention. 27.     However, notwithstanding this breach of the applicant’s constitutional rights, the court found that the criminal proceedings were not, in consequence, barred and could proceed. It found that the use of the investigation methods in question, though prohibited in law, had not so restricted the rights of the defence that the criminal proceedings could not be pursued. In view of the seriousness of the charges against the applicant on the one hand, and the severity of the unlawful conduct during investigation on the other, there had not been such an exceptional and intolerable violation of the rule of law as to bar the continuation of the criminal proceedings. 28.     In response to the applicant’s second preliminary application, the Frankfurt am Main Regional Court found that, in accordance with Article   136a § 3 of the Code of Criminal Procedure, all confessions and statements hitherto made by the applicant before the police, a public prosecutor and a district court judge were inadmissible as evidence in the criminal proceedings because they had been obtained through the use of prohibited methods of interrogation. 29.     The court found that on 1 October 2002 detective officer E. had used prohibited methods of interrogation within the meaning of Article 136a § 1 of the Code of Criminal Procedure by threatening the applicant with intolerable pain if he did not disclose the child’s whereabouts. Therefore, any statements which the applicant had made as a consequence of this forbidden investigative measure were inadmissible as evidence. This exclusion of evidence ( Beweisverwertungsverbot ) did not only comprise the statements made immediately after the unlawful threat. It covered all further statements which the applicant had made to the investigation authorities since that date in view of the continuous effect of the violation of Article   136a of the Code of Criminal Procedure. 30.     The procedural irregularity 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 his earlier statements made as a consequence of the threat of pain could not be used as evidence against him. However, the applicant had only been instructed about his right not to testify, without having been informed about the inadmissibility of the evidence that had been improperly obtained. He had therefore not been given the necessary “qualified instruction” ( qualifizierte Belehrung ) before making further statements. 31.     However, the court limited the inadmissible evidence to the above-mentioned statements. It went on to dismiss the applicant’s application for a declaration that, on account of the prohibited investigation methods, 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 as a consequence of the statements extracted from the applicant ought to be excluded from trial ( Fernwirkung ). The court found as follows: “... there is no long-range effect of the breach of Article 136a of the Code of Criminal Procedure meaning that the items of evidence which have become known as a result of the statement may likewise not be used [as evidence]. The Chamber agrees in this respect with the conciliatory view ( Mittelmeinung ) taken by scholars and in court rulings ... according to which a balancing [of interests] in the particular circumstances of the case had to be carried out, taking into account, in particular, whether there had been a flagrant violation of the legal order, notably of provisions on fundamental rights, and according to which the seriousness of the offence investigated also had to be considered. Balancing the severity of the interference with the defendant’s fundamental rights – in the present case the threat of physical violence – and the seriousness of the offence he was charged with and which had to be investigated – the completed murder of a child – makes the exclusion of evidence which has become known as a result of the defendant’s statement – in particular the discovery of the dead child and the results of the autopsy – appear disproportionate.” (b)     The Regional Court’s judgment 32.     Following the above ruling on the applicant’s preliminary applications lodged on the opening day of the trial, the proceedings continued. The next day, in his statement on the charges, the applicant admitted having killed J., but stated that he had not initially intended to do so. His defence counsel submitted that by confessing, the applicant wanted to take responsibility for his offence notwithstanding the interrogation methods used on 1 October 2002. As the trial proceeded, all further items of evidence found as a consequence of the applicant’s original statement and which the applicant sought to have excluded were adduced. At the close of the trial on 28 July 2003 the applicant admitted that he had also intended from the outset to kill the child. He described his second confession as “the only way to accept his deep guilt” and as the “greatest possible apology for the murder of the child”. 33.     On 28 July 2003 the Frankfurt am Main Regional Court convicted the applicant, inter alia , of murder and kidnapping with extortion causing the death of the victim. It sentenced him to life imprisonment and declared that his guilt was of particular gravity, warranting a maximum sentence (see paragraph 63 below). 34.     The court found that at the hearing the applicant had been instructed anew about his right to remain silent and about the fact that none of his earlier statements could be used as evidence against him and had thereby been given the necessary qualified instruction. However, the applicant had, following the qualified instruction, confessed that he had kidnapped and killed J. His statements at the trial concerning the planning of his offence formed the essential, if not the only, basis for the court’s findings of fact. They were corroborated by the testimony of J.’s sister, the blackmail letter and the note concerning the planning of the crime found in the applicant’s flat. The findings of fact concerning the execution of the crime were exclusively based on the applicant’s confession at the trial. Further items of evidence showed that he had told the truth also in this respect. These included the findings of the autopsy as to the cause of the child’s death, the tyre tracks left by the applicant’s car near the pond where the child’s corpse had been found, and the discovery of money from the ransom which had been found in his flat or paid into his accounts. 35.     In assessing the gravity of the applicant’s guilt, the court observed that he had killed his 11-year-old victim and demanded one million euros in ransom in order to preserve his self-created image of a rich and successful young lawyer. It did not share the views expressed by the public prosecutor’s office and the private accessory prosecutors that the applicant’s confession “was worth nothing” as the applicant had only confessed to what had in any event already been proven. The fact that the applicant had volunteered a full confession at the trial, even though all his earlier confessions could not be used as evidence pursuant to Article 136a § 3 of the Code of Criminal Procedure, was a mitigating factor. However, even without his confession, the applicant would have been found guilty of kidnapping with extortion causing the death of the victim. The applicant had been kept under police surveillance after he had collected the ransom, which had later been found in his flat or paid into his accounts. Furthermore, it had been proved by the autopsy on J.’s corpse that the boy had been suffocated, and tyre tracks left by the applicant’s car had been detected at the place where J.’s body had been found. 36.     The court further observed that in questioning the applicant, methods of interrogation prohibited under Article 136a of the Code of Criminal Procedure had been employed. Whether and to what extent detective officer E. and the deputy chief of the Frankfurt police, D., were guilty of an offence because of these threats had to be determined in the criminal investigations then pending against them. However, their allegedly illegal acts did not mitigate the applicant’s own guilt. The misconduct of police officers, belonging to the executive power, could not prevent the judiciary from assessing findings of fact in accordance with the law. 2.     The proceedings in the Federal Court of Justice 37.     On the day following his conviction, the applicant lodged an appeal on points of law with the Federal Court of Justice. He complained that the Regional Court, in its decision of 9 April 2003, had refused his preliminary application to discontinue the criminal proceedings against him. It had further refused to declare that the use in the criminal proceedings of all other items of evidence, such as the child’s corpse, which had become known to the investigation authorities because of the statements unlawfully extracted was prohibited. The applicant included a full copy of these applications of 9 April 2003, including the grounds given for them. He further included a copy of the Regional Court’s decision of 9 April 2003 dismissing his application for the proceedings to be discontinued and argued in respect of the police’s threats of torture against him that, developing the case-law of the Federal Court of Justice, such conduct “leapt beyond” the exclusion of evidence and led to an impediment to the proceedings ( dass ein derartiges Verhalten das Verwertungsverbot “überspringt” und ein Verfahrenshindernis begründet ). 38.     In his observations dated 9 March 2004 the Federal Public Prosecutor objected that the applicant’s appeal on points of law was manifestly ill-founded. He argued that the use of prohibited methods of interrogation did not lead to an impediment to the criminal proceedings. Article 136a of the Code of Criminal Procedure expressly provided that the use of any of the prohibited methods enumerated entailed only the exclusion of evidence. The applicant had not complained of a breach of Article 136a §   3 of the Code of Criminal Procedure. In any event, there would be no grounds for such a complaint as the Regional Court had only used the applicant’s confession at the trial, which he had made after having been informed that his previous statements had not been admitted as evidence. 39.     On 21 May 2004 the Federal Court of Justice, without giving further reasons, dismissed the applicant’s appeal on points of law as ill-founded. 3.     The proceedings in the Federal Constitutional Court 40.     On 23 June 2004 the applicant lodged a complaint with the Federal Constitutional Court. Summarising the facts underlying the case and the content of the impugned decisions, he complained under Article 1 § 1 and Article 104 § 1, second sentence, of the Basic Law about the way in which he had been questioned by the police on the morning of 1 October 2002. He argued that he had been threatened with being subjected to torture and sexual abuse if he did not disclose the child’s whereabouts. In the circumstances of the case, this treatment amounted to torture within the meaning of Article 3 of the Convention and infringed Article 104 § 1 of the Basic Law. It also violated his absolute right to human dignity under Article   1 of the Basic Law, which lay at the heart of the provisions in question. These unjustifiable human rights violations ought to have been a bar to the criminal proceedings for murder and a prohibition on using the evidence obtained as a consequence of the confession extracted from him by means of prohibited measures. 41.     On 14 December 2004 the Federal Constitutional Court, sitting as a panel of three judges, held that the applicant’s constitutional complaint was inadmissible. 42.     Firstly, in so far as the applicant complained of the failure of the criminal courts to discontinue the proceedings against him, the court found that he had not sufficiently substantiated his complaint. It observed that the Regional Court had already stated that the police’s threat to inflict pain on the applicant had violated Article 136a of the Code of Criminal Procedure and Article 3 of the Convention and that the applicant’s rights under Article   1 § 1 and Article 104 § 1, second sentence, of the Basic Law had been disregarded. 43.     However, the violation of fundamental rights outside the trial did not necessarily warrant the conclusion that the judgment delivered by a criminal court, which was based on the findings made during the trial, breached constitutional law. In the present case, the criminal courts had found that the methods of investigation used by the police had been prohibited, but had differed from the applicant as to the legal consequences that flowed from that finding. They had taken the view that the statements obtained as a result of the measures in question could not be used but that there was no bar to the specific criminal proceedings being pursued. 44.     According to the Federal Constitutional Court, the procedural flaw of having used prohibited investigation measures could be regarded as having been remedied by the criminal courts, because they had prohibited the admission of the statements obtained thereby. Such a prohibition was prescribed by Article 136a § 3 of the Code of Criminal Procedure in order to compensate for a prior infringement of the rights of the person concerned. However, the circumstances in which substantial procedural irregularities might entail a bar to criminal proceedings were not laid down in law. In these circumstances, the applicant had failed to explain why the contested methods of investigation had not only required a prohibition on using the statements obtained thereby as evidence, but should also lead to a bar to criminal proceedings against him. 45.     Secondly, the Federal Constitutional Court found that, in so far as the applicant complained that the Regional Court had refused to exclude the use in the proceedings of all items of evidence obtained as a result of the confession extracted under duress, his constitutional complaint was likewise inadmissible. It held that the applicant had failed to raise this issue in the proceedings before the Federal Court of Justice. 46.     The decision was served on the applicant’s lawyer on 22 December 2004. C.     Subsequent events 1.     The criminal proceedings against the police officers 47.     On 20 December 2004 the Frankfurt am Main Regional Court delivered judgments against the deputy chief of the Frankfurt police, D., and detective officer E. The court found that on the morning of 1 October 2002 D. had ordered that the applicant was to be questioned while being subjected to pain in the manner set out in his subsequent note for the police file (see paragraph 20 above). By doing so, he had acted against the advice of all his subordinate heads of department entrusted with the investigation into J.’s kidnapping. The heads of department had opposed this measure, which D. had previously ordered on the evening of 30 September 2002 and then twice on the morning of 1 October 2002. The heads of department had resisted the orders, proposing instead further questioning and confrontation of the applicant with J.’s family. D. had then issued an order to detective officer E. directing him to comply with his instructions that the applicant should be threatened with torture and, if necessary, subjected thereto. The subjection to pain was to be carried out under medical supervision, without any traces being left, by another specially trained police officer, who would be brought to the police station by helicopter. A police doctor had agreed to supervise the execution of D.’s order. The court noted that the measure had been aimed at finding out where the applicant had hidden J., whose life D. believed was at great risk. Therefore, E. had threatened the applicant in the manner ordered by D. and had also informed him that a “truth serum” would be administered. After approximately ten minutes, the applicant confessed that he had hidden J.’s body under a jetty at a pond near Birstein. 48.     The Regional Court observed that the method of investigation had not been justified. It rejected the defence of “necessity” because the method in question violated human dignity, as codified in Article 1 of the Basic Law. Respect for human dignity also lay at the heart of Article 104 § 1, second sentence, of the Basic Law and Article 3 of the Convention. The protection of human dignity was absolute, allowing of no exceptions or any balancing of interests. 49.     The Frankfurt am Main Regional Court convicted detective officer E. of coercion committed by an official in the course of his duties. However, in terms of penalty, it cautioned the defendant and imposed a suspended fine of 60 euros (EUR) per diem for 60 days, which the defendant would be required to pay if he committed another offence during the probation period. Furthermore, the court convicted the deputy chief of the Frankfurt police, D., of having incited E., a subordinate, to commit coercion in the course of his duties. It also cautioned D. and imposed on him a suspended fine of EUR 120 per diem for 90 days. The applicant had given evidence as a witness in these proceedings. 50.     In determining the sentences, the Regional Court considered that there were significant mitigating factors to be taken into account. It took into consideration that the defendants’ sole concern had been to save J.’s life and that they had been under extreme pressure because of their respective responsibilities vis-à-vis the superior authority and the public. They had been exhausted at the relevant time and had acted in a very tense and hectic situation. They did not have any previous convictions. Moreover, D. had taken responsibility for his acts by admitting and explaining them in a note for the police file on the same day. The proceedings had lasted a long time and had attracted immense media attention. The defendants had suffered prejudice in their professional career: D. had been transferred to the Hessian Ministry of the Interior, and E. had been prohibited from acting in the prosecution of criminal offences. Furthermore, it was the first time that a conflict situation such as the one in the defendants’ case had been assessed by a German criminal court. The court took into consideration as aggravating factors that D. had not acted spontaneously as he had already directed the use of force on the evening before he had given the order to E. Moreover, by their acts, the defendants had risked compromising the applicant’s conviction for murder. The court further found that the preservation of the legal order did not warrant the enforcement of the fines imposed. Through the defendants’ criminal conviction it had been made clear that an order by a State agent to use force to obtain information was illegal. 51.     The judgment became final on 20 December 2004. 52.     Subsequently, D. was appointed chief of the Police Headquarters for Technology, Logistics and Administration. 2.     The official liability proceedings brought by the applicant 53.     On 28 December 2005 the applicant applied to the Frankfurt am Main Regional Court for legal aid for bringing official liability proceedings against the Land of Hesse for the payment of compensation. He claimed that he had been traumatised and in need of psychological treatment because of the methods deployed during the police investigation. 54.     In its submissions dated 27 March 2006 the Frankfurt am Main police headquarters contested that E.’s conduct when questioning the applicant in the morning of 1 October 2002 was to be legally classified as coercion and amounted to a breach of official duties. 55.     On 28 August 2006 the Frankfurt am Main Regional Court dismissed the applicant’s application for legal aid and the applicant appealed. 56.     On 28 February 2007 the Frankfurt am Main Court of Appeal dismissed the applicant’s appeal. Endorsing the reasons given by the Regional Court, it confirmed, in particular, that police officers D. and E., when threatening the applicant, had infringed human dignity, which was inviolable, and had thus breached their official duties. However, the applicant would face difficulties establishing causation between the threats of torture and alleged mental damage allegedly necessitating psychological treatment. The officers’ threat was negligible compared to the traumatisation caused by the fact of having killed a child. Moreover, even assuming that the applicant would be able to prove that detective officer E. had shaken him, causing him to hit his head against a wall, or had once hit him on the chest, allegedly causing a haematoma, such physical damage would be too minor to necessitate the payment of compensation. Furthermore, the violation of his human dignity by the threat of torture did not warrant the payment of compensation since the applicant had obtained sufficient satisfaction for this by the exclusion of his statements as evidence and the criminal conviction of the police officers. 57.     On 19 January 2008 the Federal Constitutional Court, allowing a constitutional complaint by the applicant, quashed the Court of Appeal’s decision and remitted the case to that court. It found that in refusing to grant the applicant legal aid, the Court of Appeal had violated the principle of equal access to court. In particular, that court had speculated that the applicant would not be able to prove that the threat to torture him had led to mental damage. In addition to that, it was not obvious that the physical injuries the applicant claimed to have suffered in the course of the interrogation, during which he had been handcuffed, could be considered to be of minor importance. Moreover, the question whether the violation of the applicant’s human dignity necessitated the payment of damages despite the satisfaction he had already obtained was a difficult legal question on which no precedent existed in a judgment of a court of final instance. It should, therefore, not be determined in an application for legal-aid proceedings. 58.     The remitted proceedings are still pending before the Frankfurt am Main Regional Court. II.     RELEVANT DOMESTIC, PUBLIC INTERNATIONAL AND COMPARATIVE LAW AND PRACTICE A.     Provisions of domestic law 1.     The Basic Law 59.     Article 1 § 1 of the Basic Law, on the protection of huma