készíti: Gellért Ádám
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“The only necessary for "evil" to triumph is for a few good men to do nothing”

2010. június 11., péntek

Strasbourgi döntés a német gyermekgyilkosság ügyben: még közvetlen életveszély esetén sem szabad kínzással fenyegetni a gyanúsítottat

A strasbourgi emberi jogi bíróság Nagytanácsa június elején hozta meg ítéletét a Gäfgen v. Germany (Application no. 22978/05, 11-6 arányú döntés) ügyben:

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 eleven, 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 around 1 a.m. the applicant picked up the ransom at a tram station. From then on he was under police surveillance.
He lodged 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 into 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 some ten minutes thereafter.

107. In this connection, the Court accepts the motivation for the police officers’ conduct and that they acted in an attempt to save a child's life. However, it is necessary to underline that, having regard to the provision of Article 3 and to its long-established case-law (see paragraph 87 above), the prohibition on ill-treatment of a person applies irrespective of the conduct of the victim or the motivation of the authorities. Torture, inhuman or degrading treatment cannot be inflicted even in circumstances where the life of an individual is at risk. No derogation is allowed even in the event of a public emergency threatening the life of the nation. Article 3, which has been framed in unambiguous terms, recognises that every human being has an absolute, inalienable right not to be subjected to torture or to inhuman or degrading treatment under any circumstances, even the most difficult.

108. …Contrasting the applicant's case to those in which torture has been found to be established in its case-law, the Court considers that the method of interrogation to which he was subjected in the circumstances of this case was sufficiently serious to amount to inhuman treatment prohibited by Article 3, but that it did not reach the level of cruelty required to attain the threshold of torture.

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