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Article 3, or, I love the smell of controversy in the morning September 21, 2010

Posted by Fiona in Big things, Breaking the fourth wall, Law.

(This is a law post, not so much a knitting post.  I actually published it a while back, but wasn’t particularly happy with it, so got rid of it.  And now I am happy with it, and quite interested to hear what people have to say about it.)

At some point last term, I read about the judgment of the Grand Chamber in the European Court of Human Rights in a case called Gäfgen v Germany.  It’s kind of famous in some circles, and one of those situations where I’m really, really glad I’m not sitting on the Grand Chamber.  The facts are thus: Mr Gäfgen was threatened with torture while being held in custody in Germany for the kidnapping and murder of an eleven-year-old boy.  He was later found guilty – he killed the boy, and then contacted the boy’s parents asking for a ransom, and was detained just after picking it up.  There’s really no doubt that he did it.  Thinking that the boy was still alive, the police officers involved threatened Mr Gäfgen with torture.

The national courts in Germany acknowledged that threatening to torture him was a bit of a bad thing, and kind of half-heartedly told the policemen involved how naughty they’d been.  The case was up before the ECtHR because Mr Gäfgen alleged that his human rights had been breached: not to be tortured, under Article 3, and to a fair trial, under Article 6.  He argued that the national redress for the violation of Article 3 was not enough to provide a deterrent to doing it again, and that his confession was invalid because of the techniques used beforehand – although his confession under threat of torture was not used at trial.

Particularly, Article 3 reads, in its entirety:

‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’

There are two tiers to the European Court of Human Rights, the Chamber, and the Grand Chamber, and every case that gets to the Court goes to the Chamber.  The Grand Chamber is a bit like the Court of Appeal, and involves more judges.

In Gäfgen’s case, the Chamber decided that torture was a breach of Article 3, but the threat of torture wasn’t, and therefore there was no violation.

It’s very easy, I think, to side with the Chamber here.  Mr Gäfgen is a bad man.  Not a character, a real person, who brutally murdered an eleven-year-old boy and dropped his body in a pond.  When I think about some of the eleven-year-olds I know, I get a lump in my throat and a not insignificant rage.  On top of which, it’s very easy to say well, he wasn’t physically hurt, they didn’t do anything to him, therefore the Chamber was right.  I had a tutorial on this case in which there was a very clear split between people who thought that the seriousness of Mr Gäfgen’s crimes, and the fact that he wasn’t actually physically tortured, meant that he wasn’t entitled to any protection, and people who didn’t think so.  Even if this is pretty extreme, it’s clear that Mr Gäfgen had done far worse to the boy and his parents than was done to him.

The Grand Chamber thought that the mere threat of torture was enough to constitute ‘inhuman treatment’ under Article 3 (and also that the trial was fair, because the confession extracted under threat of torture was not used).

Article 3 of the European Convention on Human Rights is an odd one.  It’s very controversial.  On the face of it, everyone thinks that not torturing people is a good thing, it’s fair, and it’s right that it should be absolute.  In a case like Gäfgen v Germany, though, opinion is so divided.  How far does it go?  Does it extend beyond peacetime?  Does it extend to people for whom nobody has any sympathy, or who have done horrible, utterly reprehensible things?  And what about if the perpetrator thinks there is some real, tangible and vitally important reason for acting as they did, like saving a human life?  In some ways, Gäfgen is a bit of a paradigm thought experiment.  In other ways, it’s as real as you and I are – real people, real emotions, real fear, stress and pain.  These people, Mr Gäfgen, the boy’s parents, the policemen, they’re still alive and they’re living with this.  Who are we to punish and pass judgement?  And at the same time, who are we not to?

The other problem a lot of people have with Gäfgen v Germany is that the threat of torture was seen as inhuman treatment.  Well, it is.  Psychological torture has been used through the centuries, and is still used.  I went to a talk last year hosted by the Durham Law Society where the gentleman speaking told us in detail about how the threat of torture was used on him.  But it isn’t physical pain, and sticks and stones and all that, so in a case so marginal and controversial as this one, does the fact that there was no physical torture tip the balance?  The Chamber obviously thought so.

When I think of all the things I’m glad of in life, more and more frequently these days, ‘not being a judge’ enters the list.



1. Lucy - September 27, 2010

I’m very glad that you did publish this. J has been explaining various Legal Stuff to me recently, and it’s fascinating, it really is.

Fiona - September 29, 2010

What kind of legal stuff? I’m sure he knows far more about this kind of thing than I do. As a well-established member of the Armchair Judiciary, I love pretending I know what I’m talking about. This one bruises my principles a bit, though.

Lucy - September 29, 2010

I asked him and he said he didn’t recognise the case. No, just the principles on which you form a legally tight judgement in court, how you define things, why legal definitions can get so ridiculously twisted when somebody with actual common sense says “Ah, but…”

(Much as I’d like to elaborate more on the context, it’s his news not mine, and I’m not sure that he’d want me to talk about it on here. Save for general excitement!)

I now completely see how similar it is to Maths from many respects and why you chose it for the reasons that you did!

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