26
GÄFGEN v. GERMANY JUDGMENT
the police officers (see paragraph 47 above). Furthermore, it is clear both
from D.’s note for the police file (see paragraph 20 above) and from the
Regional Court’s finding in the criminal proceedings against D. (see
paragraph 47 above) that D. intended, if necessary, to carry out that threat
with the help of a “truth serum” and that the applicant had been warned that
the execution of the threat was imminent.
95. As D. had ordered his subordinate heads of department on several
occasions to use force against the applicant, if necessary, before finally
ordering E. to threaten the applicant with torture (see paragraph 47 above),
his order cannot be regarded as a spontaneous act and a clear element of
intention was present. It further appears that the applicant, while detained,
was handcuffed in the interrogation room (see paragraph 57 above) and was
therefore in a situation of particular vulnerability and constraint. The Court,
having regard to the findings of the domestic courts and to the material
before it, is persuaded that the police officers resorted to the method of
interrogation in question in the belief that J.’s life might be saved.
96. The Court further observes that the applicant alleged that he had also
been physically assaulted and injured and threatened with sexual abuse
during interrogation. In assessing whether these allegations, which were
contested by the Government, have been proven beyond reasonable doubt,
the Court finds that in view of the medical certificates furnished by the
applicant, his assertion of assault during his interrogation is not wholly
without foundation. These certificates indicate that the applicant had indeed
sustained bruising to his chest in the days prior to the medical examinations.
97. However, the Court also notes the Government’s explanation as to
the cause of the applicant’s injuries, together with the submissions of J.’s
parents on this point. They argued, by reference to the applicant’s own
statements in his book published in 2005, that all of the injuries, including
lesions to his skin, which the applicant had incontestably sustained had been
caused during his arrest when he was pinned, face down, on the ground (see
paragraphs 13 and 14 above). The Court further notes that the domestic
courts did not find any of the applicant’s additional allegations to have been
established. It would appear that before the domestic courts, which heard
and evaluated the evidence, the applicant had not made the allegations of
physical injuries having been sustained during interrogation, at least not to
the same extent as the way in which he did before this Court (see, in
particular, paragraph 26 above). Moreover, the medical certificates contain
no indication as to the probable causation of injuries (see paragraph 21
above).
98. In view of the foregoing, the Court is unable to conclude that the
applicant’s complaints concerning physical assaults and injuries together
with the alleged threat of sexual abuse during interrogation have been
established beyond reasonable doubt.
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