GÄFGEN v. GERMANY JUDGMENT
41
circumstances, the Court is persuaded that, in accordance with the
requirements of its case-law, the applicant raised the substance of his
complaint under Article 6 in the proceedings before the Federal Court of
Justice. In particular, it cannot speculate as to whether the Federal Public
Prosecutor’s possibly different interpretation of the scope of the applicant’s
appeal was adopted by that court. As the applicant again argued before the
Federal Constitutional Court that the use of the unconstitutional methods of
investigation should have entailed a prohibition on the admission of the
impugned items of evidence at his trial (see paragraph 40 above), the Court
finds that he raised the substance of his complaint under Article 6
throughout the proceedings before the domestic courts.
145. The Court further observes that the applicant, in addition, argued
before the Regional Court, the Federal Court of Justice and the Federal
Constitutional Court that the criminal proceedings against him ought to
have been discontinued because of the use of unconstitutional methods of
investigation (see paragraphs 24, 37 and 40 above). As with his application
mentioned above (see paragraph 144), this request concerned the legal
consequences in a criminal trial of the use of evidence obtained by
prohibited methods of interrogation in pre-trial investigation proceedings.
The Federal Constitutional Court declared his constitutional complaint on
this account inadmissible for failure to substantiate it sufficiently. The Court
notes, however, that in its decision, the Federal Constitutional Court
confirmed that the police officers’ threat to inflict pain on the applicant in
the investigation proceedings had violated human dignity and the
prohibition on subjecting the applicant to ill-treatment, as enshrined in the
Basic Law. That court further held that the procedural flaw of having
applied unconstitutional methods of investigation had been sufficiently
remedied by the criminal courts by the exclusion from trial of the statements
made under threat and had not, in addition, required the discontinuation of
the criminal proceedings (see paragraphs 42-44 above). The Court considers
that through these observations, the Constitutional Court examined, at least
partly, the substance of the applicant’s constitutional complaint concerning
the discontinuation of the criminal proceedings against him. Therefore, nonexhaustion of domestic remedies cannot be held against him in this respect
either.
146. The Court finds that the applicant thus provided the domestic courts
with the opportunity to put right the alleged violation and concludes that the
Government’s objection of non-exhaustion of domestic remedies must be
dismissed.
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