"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).
[...] Regarding the definition of self-defence set out in the ICC status[82], it requires at least two component : the immediacy of the threat, and the ‘need' of the action taken[83]. The “Caroline criteria” require that states which are claiming under self- defence, show that “necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation. It will be for it to show, also, that the local authorities [ ] did nothing unreasonable or excessive”. According to this definition, for a state to prove self- defence, it must show three elements : necessity, reasonableness, and proportionality. [...]
[...] Some authors, supporting the law in this area, highlight the fact that, in any case, torture is useless. For example, Paola Gaeta emphasizes the fact that the perpetrators can never be entirely sure that the suspect being tortured has the necessary information, that he will disclose the information at all, or that the information would be correct. All this to support the idea that torture can never be justified, because there is almost always another way to obtain the information. [...]
[...] The ECHR merely established that to decide the circumstances in which the real evidence can be relied on, one has to consider the weight attached to the evidence in deciding the conviction. It let open the idea that inhuman treatment may be justified in order to obtain information[44]. Moreover, the Court recognized that both evidence are “secured as a direct result of his interrogation by the police that breached Article [45]. Therefore, why make a distinction between these two types of evidence? According to Martha Spurrier, the ruling raises the problem of incompatibility with the absolute prohibition of inhuman treatment[46]. [...]
[...] In addition, the theory of the slippery slope is often argued to defend this idea. This means that if one considers torture to be justified in extreme circumstances, this would open the door to a justification of torture in ‘less desperate situations'[98]. In his interview, Roth affirmed that you start opening the door, making a little exception here, a little exception there, you've basically sent the signal that the end justify the means”. IV) CONCLUSION The court's majority decision in Gäfgen derived from the absolute prohibition of torture. [...]
[...] Germany tends to view article 3 as a non-absolute prohibition since it recognized that mitigating factors can diminish the liability of perpetrators. And what would be the actual justification for such an act? Necessity. The question as to whether torture should be justified can be discussed through the ticking bomb scenario. The typical situation is well- explained by a BBC article a terrorist group has planted a bomb in London, the police captures the leader who pretends to know where the bomb is but refuses to disclose the information. He is about to kill hundreds of people. [...]
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