GÄFGEN v. GERMANY JUDGMENT
13
and hectic situation. They did not have any previous convictions. Moreover,
D. had taken responsibility for his acts by admitting and explaining them in
a note for the police file on the same day. The proceedings had lasted a long
time and had attracted immense media attention. The defendants had
suffered prejudice in their professional career: D. had been transferred to the
Hessian Ministry of the Interior, and E. had been prohibited from acting in
the prosecution of criminal offences. Furthermore, it was the first time that a
conflict situation such as the one in the defendants’ case had been assessed
by a German criminal court. The court took into consideration as
aggravating factors that D. had not acted spontaneously as he had already
directed the use of force on the evening before he had given the order to E.
Moreover, by their acts, the defendants had risked compromising the
applicant’s conviction for murder. The court further found that the
preservation of the legal order did not warrant the enforcement of the fines
imposed. Through the defendants’ criminal conviction it had been made
clear that an order by a State agent to use force to obtain information was
illegal.
51. The judgment became final on 20 December 2004.
52. Subsequently, D. was appointed chief of the Police Headquarters for
Technology, Logistics and Administration.
2. The official liability proceedings brought by the applicant
53. On 28 December 2005 the applicant applied to the Frankfurt am
Main Regional Court for legal aid for bringing official liability proceedings
against the Land of Hesse for the payment of compensation. He claimed that
he had been traumatised and in need of psychological treatment because of
the methods deployed during the police investigation.
54. In its submissions dated 27 March 2006 the Frankfurt am Main
police headquarters contested that E.’s conduct when questioning the
applicant in the morning of 1 October 2002 was to be legally classified as
coercion and amounted to a breach of official duties.
55. On 28 August 2006 the Frankfurt am Main Regional Court
dismissed the applicant’s application for legal aid and the applicant
appealed.
56. On 28 February 2007 the Frankfurt am Main Court of Appeal
dismissed the applicant’s appeal. Endorsing the reasons given by the
Regional Court, it confirmed, in particular, that police officers D. and E.,
when threatening the applicant, had infringed human dignity, which was
inviolable, and had thus breached their official duties. However, the
applicant would face difficulties establishing causation between the threats
of torture and alleged mental damage allegedly necessitating psychological
treatment. The officers’ threat was negligible compared to the
traumatisation caused by the fact of having killed a child. Moreover, even
assuming that the applicant would be able to prove that detective officer E.
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