GÄFGEN v. GERMANY JUDGMENT
27
99. The Court further observes that in the applicant’s submission, he was
again subjected to treatment prohibited by Article 3 in that he was obliged
to walk without shoes through woods in Birstein and was directly forced to
point out the precise location of the corpse and to disclose other items of
evidence. These allegations are likewise contested by the Government. The
Court notes that, according to the findings of the domestic authorities, the
applicant, following his interrogation, had agreed to accompany the police
officers to the pond where he had hidden J.’s corpse (see paragraph 17
above). There is nothing to indicate that the applicant was verbally
threatened en route to Birstein by any of the police officers present in order
to make him indicate the precise location of the corpse. However, the
question as to whether and to what extent the disclosure of evidence by the
applicant in Birstein was causally connected to the threats issued at the
police station remains a question to be determined under Article 6. In view
of the fact that the medical certificates contained a diagnosis of swellings
and blisters on the applicant’s feet (see paragraph 21 above), the Court finds
that his allegation that he had been obliged to walk without shoes is not
entirely without foundation. However, the domestic courts, having
examined the evidence before them, did not consider this allegation – which
the applicant does not appear to have mentioned from the outset in the
domestic proceedings either – to have been proven (see, in particular,
paragraph 26 above). The cause of the injuries was not established by the
examining doctors. In these circumstances, the Court does not consider the
applicant’s allegations in this regard to have been proven beyond reasonable
doubt.
100. In view of the foregoing, the Court considers it established that the
applicant was threatened in the morning of 1 October 2002 by the police
with being subjected to intolerable pain in the manner set out in
paragraphs 94 to 95 above in order to make him disclose J.’s whereabouts.
(β) Legal qualification of the treatment
101. The Court notes the Government’s acknowledgment that the
treatment the applicant was subjected to by E. violated Article 3 of the
Convention. However, having regard to the serious allegations of torture
made by the applicant and the Government’s claim of loss of victim status,
the Court considers it necessary to make its own assessment of whether this
treatment can be said to have attained the minimum level of severity to
bring it within the scope of Article 3 and, if so, how it is to be classified.
Having regard to the relevant factors indicated in the Court’s case-law (see
paragraphs 88-91 above), it will examine, in turn, the duration of the
treatment to which the applicant was subjected, its physical or mental
effects on him, whether it was intentional or otherwise, its purpose and the
context in which it was inflicted.
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