2012 CDP 11 (2012)
Gafgen versus Germany: A Time for Reflection and A Lot of Questions

handle is hein.journals/crimlwr2012 and id is 467 raw text is: J DOCTRINA

Gafgen c. Germania:
un moment de reflectie si multe intrebAri
Diana IONESCU
Gafgen versus Germany:
a time for reflection and a lot of questions
[ ABSTRACT
The study analyzes the European Court of Human Right's judgment in Gdfgen vs.
Germany. In this case, the applicant claimed that he was threatened by the police with
considera ble pain in order to make him reveal information about the child he was supposed
to have kidnapped. Thus, the Court had to decide if there had been a violation of article
3 of the Convention, as well as whether the use at trial of the real evidence discovered as
a result of a constrained statement infringed article 6 of the Convention. By eleven votes
to six, the Court ruled that there has been a violation of Article 3 of the Convention and
that there no violation of Article 6 occurred.
Examining the solution and the reasons used by the European Court of Human
Rights, the author supports the conclusion that the decision is contradictory. On one
hand, the Court has pointed out the absolute character of the rule prohibiting torture,
inhuman or degrading treatment (provided by article 3), and, on the other hand, stated
that the use of real evidence secured as an indirect result of the statements extractedfrom
the applicant does notprejudice the right to a fair trial (provided by article 6) only if the
evidence effect on the conviction or the sentence.
Although article 3 does not make any distinction, the Court chose to support two
distinctions regarding the relationship between this article and article 6. These are,
primarily, the distinction between torture and inhuman or degrading treatment and,
secondly, the distinction between statements and real evidence. Combining these
hypotheses, the Court ruled that the right to a fair trial is automatically prejudiced by the
use of evidence secured by torture, regardless of the category they belong to, and also by
the use of statements obtained by torture. The use of real evidence secured by inhuman
or degrading treatment may be compatible with the dueprocess when these do not inflict
on the conviction itself or the sentence.
In the author's opinion, the Court's findings are invalid and therefore it is weakening
the protection granted under article 3 and article 6 of the Convention.
J  KEYWORDS: torture, inhuman or degrading treatment, fair trial, exclusion of
evidence, derivative evidence, human rights.

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