Threat of Torture during Interrogation Amounts to Inhuman Treatment

Gafgen v Germany [2010] ECHR 759 (1 June 2010)

The Grand Chamber of the European Court of Human Rights has found, by majority, that a threat of torture amounted to inhuman treatment, but was not sufficiently cruel to amount to torture within the meaning of the European Convention on Human Rights.  The Court also considered that the applicant remained a victim of the violation, despite limited remedial actions taken by the State party.  Further, it held that the applicant had been afforded a fair trial, because his confessions obtained by way of the breach had been excluded from evidence, even though real evidence obtained as a result of the confession evidence was not excluded.


On 27 September 2002, Magnus Gafgen, the applicant, lured the eleven year old son of a wealthy family into his flat and suffocated him.  He then sent a ransom note to the boy’s parents, claiming the boy was still alive and demanding one million euros.

Three days later Gafgen collected the ransom money.  He was apprehended later that day at Frankfurt airport.  During the arrest the police pinned him to the ground, causing shock and minor lesions.

Gafgen was taken to the police station for questioning.  He was advised of his rights, including the right to remain silent and consult a lawyer.  He was then questioned in an attempt to discover his victim’s whereabouts.  He had a thirty minute consultation with a lawyer.  He subsequently indicated that two other people had kidnapped the boy and hidden him in a hut by a lake.

Early on 1 October 2002, having failed to elicit the boy’s whereabouts, Mr Daschner, Deputy Chief of Frankfurt Police, ordered an officer, Mr Ennigkeit, to threaten Gafgen with the infliction of considerable pain if he did not reveal the boy’s whereabouts.  Daschner had previously ordered other officers to do so but they had refused.  Ennigkeit, however, made the threats.  Within ten minutes Gafgen revealed he had killed the boy and disclosed the whereabouts of his body.  Gafgen was then driven to the location of the body.

Immediately afterwards Daschner wrote a statement admitting that, in the belief that the child was still alive and in danger, he had ordered that Gafgen be threatened with considerable pain which would not leave any injuries.  He confirmed that the treatment would be carried out under medical supervision.  He had also ordered another police officer to obtain a ‘truth serum’ to be administered to Gafgen.  Because Gafgen had revealed that the boy was dead and where his body was, these threats had not been carried out.

Gafgen claimed he had been physically assaulted and threatened with being sexually abused during the interrogation.  He also claimed he was made to walk to the location of the boy’s body barefooted.

While there was some evidence of bruising, lesions and closed blisters on Gafgen’s feet, the Court found that his allegations of physical abuse were not proven beyond reasonable doubt, because the medical evidence could have supported a finding that the injuries occurred during the arrest.

The Court found that Gafgen had been threatened as described in Daschner’s statement.


Inhuman treatment

The Court found that, while ‘the fear of physical torture may itself constitute mental torture’, the threat in this case was ‘sufficiently serious to amount to inhuman treatment prohibited by Article 3, but…did not reach the level of cruelty required to attain the threshold of torture’.


It was held that sufficient redress for a violation of art 3 would be ‘a thorough and effective investigation capable of leading to the identification and punishment of those responsible’ as well as ‘an award of compensation…where appropriate’.

The majority held that the investigation of the responsible officers had been appropriate, but their punishment of suspended sentences and fines was ‘manifestly disproportionate to a breach of one of the core rights of the Convention’, and did not ‘have the necessary deterrent effect’.  However, a minority of judges said it was not the Court’s role to question the domestic court’s decision as to appropriate criminal punishments.

The majority also criticised the domestic courts for not considering the merits of the applicant’s compensation claim, after three years.

Because Gafgen had not had sufficient redress, it was held that he remained a victim of the violation of art 3.

Right to a fair trial

The applicant claimed that he was a victim of a breach of art 6, which guarantees the right to a fair trial.  The basis of this claim was that, while his admissions under threat had been excluded from evidence during the domestic trial, the real evidence discovered as a result of those admissions was admitted.  The majority noted prior decisions that ‘incriminating real evidence obtained as a result of acts of violence, at least if those acts had to be characterised as torture, should never be relied on as proof of the victim’s guilt, irrespective of its probative value.  Any other conclusion would only serve to legitimise, indirectly, the sort of morally reprehensible conduct which the authors of Article 3 of the Convention sought to proscribe’.

The Court noted the competing rights and interests at stake, the potential that the real evidence would have been discovered anyway and the fact that the applicant gave two confessions at trial after having been advised that his previous confessions were inadmissible.  It observed that art 6, unlike art 3, did not enshrine an absolute right, although acknowledging that ‘the admission of evidence obtained by conduct absolutely prohibited by art 3 might be an incentive for law-enforcement officers to use such methods notwithstanding such absolute prohibition’.

However, the majority concluded that:

it was the applicant’s second confession at the trial which – alone or corroborated by further untainted real evidence – formed the basis of his conviction for murder and kidnapping with extortion and his sentence.  The impugned real evidence was not necessary, and was not used to prove him guilty or to determine his sentence.  It can thus be said that there was a break in the causal chain leading from the prohibited methods of investigation to the applicant’s conviction and sentence in respect of the impugned real evidence.

It was therefore held that the failure to exclude the real evidence had not denied the applicant his right to a fair trial.

This decision was criticised in minority judgments on the basis that it:

  • weakens the absolute nature of art 3 of the Convention;
  • provides an incentive for law enforcement officers to violate art 3; and
  • is nonsensical in its finding that real evidence obtained by way of inhuman treatment could be admitted if it was not the basis on which the accused is convicted, because such evidence would, as a matter of logic, be irrelevant.


The applicant did not claim any award of compensation, he only sought a retrial.  This application was denied on the basis that his art 6 rights had not been violated.

Relevance to the Victorian Charter

Section 10 of the Victorian Charter provides a right to be free from torture and cruel, inhuman or degrading conduct.  This case underlines that this right is absolute and non-derogable, even in cases of extreme pressure or emergency.  It also demonstrates that even relatively low level threats may violate this right.

However, this case may provide a basis upon which the absolute nature of the right under s 10 can be weakened.  While it held that it would be a violation of the right to a fair trial to admit into evidence in a criminal trial admissions obtained by way of a violation of the right to be free from torture and inhuman treatment, it allowed real evidence, obtained by way of that violation, to be admitted.  This may be able to be used to base an argument for admission of evidence, obtained in such a way, where a Victorian court is undertaking a balancing exercise with regards to such evidence under s 138 of the Evidence Act 2008 (Vic).  This would weaken the right to redress afforded to a victim of a violation of s 10 and would also provide incentive for law enforcement officers to engage in violations of s 10, if they believe that admissible real evidence might be obtained. As a result, it may also serve to weaken the nature of the right to a fair hearing provided under s 24 of the Charter.

The decision is available at

Megan Fitzgerald, Lawyer, Lander & Rogers, on secondment to the Human Rights Law Resource Centre