Gäfgen v Germany (third party intervention)

Magnus Gäfgen is a German national who kidnapped and killed an 11-year-old child. During questioning, and allegedly to try to save the child’s life, authorities threatened Gäfgen with torture, after which he confessed.  


After being convicted for kidnapping and killing based on a confession, which Gäfgen alleged was obtained through torture, and other evidence obtained after this confession (including the location of the child’s corpse), he claimed Germany had violated his right to be free from torture, his right to a fair trial (including the right to defend himself effectively) and the right not to incriminate himself.  

The European Court of Human Rights (ECtHR) held on 30 June 2008 that Gäfgen had been granted redress (by way of the prosecution and conviction of the police officers responsible for the threats) and could no longer claim to be the victim of torture (Article 3) and that there had been no violation of his fair trial rights (Article 6). The case was referred to the Grand Chamber of the ECtHR, at which point REDRESS intervened. 


REDRESS intervened in this case on 3 February 2009. 

REDRESS argued that a mere threat could amount to torture (as previously held by the ECtHR) and that principles of non-derogability, the exclusionary rule and adequacy of redress apply equally to both torture and ill-treatment. 

The intervention also clarified that the adequacy of redress is to be measured by the effectiveness in eliminating the consequences of the illegal act, including thorough investigation and prosecution, an effective criminal justice system to prevent future violations, appropriate civil remedies, restitution, and measures of non-repetition. 

Finally, REDRESS highlighted the significance of the exclusionary rule and its impact on reducing impunity for torture, pointing to previous ECtHR case law stating that the use of evidence obtained by torture rendered a trial as a whole unfair. 


On 1 June 2010 the Grand Chamber of the European Court of Human Rights agreed with REDRESS’s interpretation of the prohibition of both torture and ill-treatment as absolute and non-derogable, and that a mere threat of torture, with no physical injury, can amount to ill-treatment. The Grand Chamber held that the threat of torture in this case, in light of its duration, impact, intent and context, amounted to inhuman treatment. 

The Grand Chamber overturned the earlier ECtHR decision, finding that the disproportionate fines imposed on the police officers involved and the excessive delays in compensation, rendered the domestic redress granted to the victim inadequate as a whole. 

However, the Grand Chamber ultimately held that there was no direct link between the ill-treatment (which led to the first confession) and the conviction. Rather, they concluded that the German Regional Court’s reliance on Gäfgen’s second confession at trial and other evidence (evidence which was ‘untainted’ by the first confession) was sufficient to prove the applicant’s guilt and was not in violation of the exclusionary rule. Some of the judges disagreed with the majority decision and expressed concern that evidence obtained by torture should be excluded at all times, even where such evidence does not have an impact on the outcome of the case. 


Case name: Gäfgen v Germany (Application no. 22978/05) 

Court/Body: European Court of Human Rights (Grand Chamber) 

Date intervention filed: 3 February 2009 

Current status: Decision reached 

Date of final decision: 1 June 2010 


Exclusionary Rule: The rule that evidence obtained illegally, such as through torture, cannot be used in court. 

Non-derogable: A non-derogable right is a right that cannot be taken away.