Should Police Threats to Torture Suspects Always be Severely Punished? Reflections on the Gafgen Case

In Gäfgen v Germany the majority of a Chamber of the European Court of Human Rights affirmed that police threats to torture suspects always violate Article 3 of the European Convention on Human Rights, but that in certain circumstances such as those presented by this case, charging and convicting but leniently punishing the officers concerned provides adequate redress. A majority of the Grand Chamber held that, on the contrary, such violations should always be severely punished even when motivated, as here, by the urgent imperative of rescuing a kidnapped child. This article argues that, on Article 3, the majority of the Chamber reached the right result but not entirely for the right reasons, while the judgment of the majority of the Grand Chamber is methodologically, substantively and morally flawed. Having explored the central underlying normative dilemma neglected by all judges on both panels—how should conflicts between two competing instances of the same ‘absolute’ human right be resolved?—it concludes that, in such circumstances, courts have no legitimate alternative but to make a moral rather than a legal choice taking fully into consideration what is at stake for both parties in the widest possible senses. The verdict of the majorities on both panels that there was no violation of the applicant’s right to a fair trial is also defended, and the issues raised by the Gäfgen case are contrasted with the much-debated ‘ticking bomb’ scenario with which it is easily but mistakenly confused.

Acquittal · Convention · Dilemma · Harm · Human rights · Normative · Political science · Redress · Sociology · Torture · Verdict · Criminal Law and Evidence · International Law and Human Rights · Law · Philosophy · Torture, Ethics, and Law

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