"Imagine that you are creating a fabric of human destiny with the object of making men happy in the end [...], but that it was essential and inevitable to torture to death only one tiny creature [...], would you consent to be the architect on those conditions?". There, Fyodor Dostoevsky asked the controversial question: can torture be ever justified? This issue was examined during the “long-awaited judgment” of the Gäfgen case , where, on the 27 September 2002, the applicant lured Jakob, a 11 year old boy, into his flat in Frankfurt am Main and killed him by suffocation. On the same day he asked his parents for a ransom of €1 million, while he hid the corpse under a “jetty” . Three days after, while collecting the ransom, he was arrested by the police, after having been informed of the charges against him and his rights as a defendant. The Deputy Chief of the Frankfurt police, Daschner, ordered E to threaten the applicant and if necessary to inflict actual pain, in order to discover the child's whereabouts. E threatened the applicant with possible “subjection to considerable pain at the hands of a person specially trained for such purposes” . The applicant also claimed that E threatened him to be locked in a cell with two other people who would sexually abuse him. Further in the ill-treatment, the police officer hit Gäfgen several times. Finally, the applicant revealed the whereabouts of the child ten minutes later. At that time, the police was firmly convinced that Jakob was still alive, and therefore they conducted the interrogation with the goal to save the child's life. Gäfgen was then driven to the place he indicated to show the exact location of the corpse. Going back to the police station, the applicant confessed the kidnapping and the murder of the child. On January 2003, the prosecutor opened investigation proceedings.
In that case, the Courts – German courts, but also the ECHR – had to consider whether or not in extreme circumstances such as the kidnapping of a child, torture can be justified to save a life.
A worldwide opinion poll testing this argument showed that 59% of the world's population consider that torture cannot be inflicted, even in extreme circumstances where the life of a person – or a group of person – is at stake . The question as to who is right and who is wrong does not have any static answer. Can torture be ever justified? Every response can be argued. However, if one considers that “yes” is the right one, then, what are the circumstances which would justify the use of torture?
After having examined the reasoning of the ECHR in the Gäfgen case (i), one should consider the absolute character of the prohibition of torture through the decision of the Strasbourg Court (ii). Finally, one should debate the circumstances in which torture can be justified, if at all (iii).
[...] In the same way, the UN human Rights Committee also asserted that evidence including not only statements, but also real evidence obtained by torture or inhuman treatment must be inadmissible in court.[37] In Gäfgen, the court had the opportunity to extent this rule established in Jalloh, to inhuman treatment, but failed to do so[38]. The court only stated that article 3 may require the exclusion of real evidence obtained as a result of inhuman treatment out of the trial. Martha Spurrier argued that danger of this decision lies in its message to law enforcers; the bottom line is that real evidence obtained in violation of article 3 may be admitted”. [...]
[...] 22978/05, European Court of Human Rights (Grand Chamber), June Par See BBC world, Ethic guide, the Ticking bomb problem, worldwide opinion, available at www.bbc.co.uk/ethics/torture/ethics/tickingbomb_1.shtml#h2 (last accessed on the 24th December 2011) Article 3 of the European Convention on Human Rights states one shall be subjected to torture or to inhuman or degrading treatment or punishment” Gäfgen v Germany, Application No. 22978/05, European Court of Human Rights (Grand Chamber), June Par Gäfgen v Germany, Application No. 22978/05, European Court of Human Rights (Grand Chamber), June Par Gäfgen v Germany, Application No. [...]
[...] 611-612 See Cheryln Chang, The absolute prohibition on torture : extra-legal action and ex post ratification, UCL Juris. Rev Supp (Supp), p.27 See Steven Greer, Should police threats to torture suspects always be severely punished ? Reflections on the Gafgen Case, H.R.L. Rev 11(1) See Kate Kovarovic, Our Jack Bauer culture : eliminating the ticking bomb exception to torture Fla. J. Int'l L (2010) See also Amos N. Guiora and Erin M. Page, The Unholy Trinity: Intelligence, Interrogation and Torture CASE W. [...]
[...] 22978/05, European Court of Human Rights (Grand Chamber), June Par The German Basic Law, Article states Human dignity shall be inviolable UN Convention ratified on December 1984 (resolution 39/46 GA) and entered into force on 26 June 1987 See Article of the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment See also Liese Andrea, Exceptional Necessity How Liberak Democracies Contest the Prohibition of Torture and Ill-Treatment When Countering Terrorism J. Int'l L & Int'l Rel UN Committee Against Torture General Comment No. [...]
[...] Although this decision was criticized by Human Rights defenders[71], it seems to conform to international criminal law. Indeed, the Statute of the International Criminal Court, article 31 established that the defence of necessity is available for anyone who committed a crime prohibited within the jurisdiction of the Court. In 2001, the committee against torture received a report from Israel stating that balance had to be struck between the human rights of detainees and the human rights of the population”[74]. Indeed, it is well accepted that it is necessary to balance human rights and the moral and legal obligation to defend the state. [...]
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