GÄFGEN v. GERMANY JUDGMENT
11
42. Firstly, in so far as the applicant complained of the failure of the
criminal courts to discontinue the proceedings against him, the court found
that he had not sufficiently substantiated his complaint. It observed that the
Regional Court had already stated that the police’s threat to inflict pain on
the applicant had violated Article 136a of the Code of Criminal Procedure
and Article 3 of the Convention and that the applicant’s rights under
Article 1 § 1 and Article 104 § 1, second sentence, of the Basic Law had
been disregarded.
43. However, the violation of fundamental rights outside the trial did not
necessarily warrant the conclusion that the judgment delivered by a criminal
court, which was based on the findings made during the trial, breached
constitutional law. In the present case, the criminal courts had found that the
methods of investigation used by the police had been prohibited, but had
differed from the applicant as to the legal consequences that flowed from
that finding. They had taken the view that the statements obtained as a result
of the measures in question could not be used but that there was no bar to
the specific criminal proceedings being pursued.
44. According to the Federal Constitutional Court, the procedural flaw
of having used prohibited investigation measures could be regarded as
having been remedied by the criminal courts, because they had prohibited
the admission of the statements obtained thereby. Such a prohibition was
prescribed by Article 136a § 3 of the Code of Criminal Procedure in order to
compensate for a prior infringement of the rights of the person concerned.
However, the circumstances in which substantial procedural irregularities
might entail a bar to criminal proceedings were not laid down in law. In
these circumstances, the applicant had failed to explain why the contested
methods of investigation had not only required a prohibition on using the
statements obtained thereby as evidence, but should also lead to a bar to
criminal proceedings against him.
45. Secondly, the Federal Constitutional Court found that, in so far as
the applicant complained that the Regional Court had refused to exclude the
use in the proceedings of all items of evidence obtained as a result of the
confession extracted under duress, his constitutional complaint was likewise
inadmissible. It held that the applicant had failed to raise this issue in the
proceedings before the Federal Court of Justice.
46. The decision was served on the applicant’s lawyer on 22 December
2004.
C. Subsequent events
1. The criminal proceedings against the police officers
47. On 20 December 2004 the Frankfurt am Main Regional Court
delivered judgments against the deputy chief of the Frankfurt police, D., and
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