The Problem of Using Evidence Obtained by Threat of Torture in Criminal Proceedings in the Context of the Gäfgen Judgment of the European Court of Human Rights

2014Murat Volkan DülgerArticle

Abstract

This work was written in Turkish. The summary on this page is a translation; the citation gives the original title in parentheses.

With its judgment in Gäfgen v. Germany, delivered in 2010, the European Court of Human Rights (ECtHR) made an unending debate in the field of criminal procedure even more intractable. With the motive of saving the life of an eleven-year-old child, a confession was taken from the suspect Magnus Gäfgen under threat of torture. Both the German courts and the ECtHR considered whether the use of evidence obtained on the basis of that confession, for the purpose of corroborating the suspect’s confession, affected the fairness of the trial.

In the end, both the national courts and the ECtHR stated that the suspect had been informed before the trial began that the confession taken from him under threat of torture was unlawful and would not be used at trial; that the suspect had nevertheless confessed of his own free will; that the real evidence obtained on the basis of the unlawfully taken confession had been used only to verify the truthfulness of the confessions the suspect had lawfully made; and that this had not rendered the trial unfair. While there are views that this judgment is lawful, there are also opposing views which maintain that the use of unlawfully obtained evidence renders the trial unfair in every case. In our article, by way of a detailed analysis of the judgment, it is essentially these two opposing views that are examined, and in conclusion our own view is stated.