GÄFGEN v. GERMANY JUDGMENT
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91. The Court further reiterates that a threat of conduct prohibited by
Article 3, provided it is sufficiently real and immediate, may fall foul of that
provision. Thus, to threaten an individual with torture may constitute at least
inhuman treatment (compare Campbell and Cosans, cited above, § 26).
92. In assessing the evidence on which to base the decision as to whether
there has been a violation of Article 3, the Court adopts the standard of
proof “beyond reasonable doubt”. However, such proof may follow from
the coexistence of sufficiently strong, clear and concordant inferences or of
similar unrebutted presumptions of fact (see Jalloh, cited above, § 67, and
Ramirez Sanchez, cited above, § 117). The Court has held, in particular, that
where an individual is taken into police custody in good health but is found
to be injured at the time of release, it is incumbent on the State to provide a
plausible explanation of how those injuries were caused, failing which a
clear issue arises under Article 3 of the Convention (compare Tomasi v.
France, 27 August 1992, § 110, Series A no. 241-A; Ribitsch v. Austria,
4 December 1995, § 34, Series A no. 336; Aksoy, cited above, § 61; and
Selmouni, cited above, § 87).
93. Where allegations are made under Article 3 of the Convention the
Court must apply a particularly thorough scrutiny (see Matko v. Slovenia,
no. 43393/98, § 100, 2 November 2006, and Vladimir Romanov v. Russia,
no. 41461/02, § 59, 24 July 2008). Where domestic proceedings have taken
place, however, it is not the Court’s task to substitute its own assessment of
the facts for that of the domestic courts and, as a general rule, it is for those
courts to assess the evidence before them (see Klaas v. Germany,
22 September 1993, § 29, Series A no. 269, and Jasar v. “the former
Yugoslav Republic of Macedonia”, no. 69908/01, § 49, 15 February 2007).
Although the Court is not bound by the findings of domestic courts, in
normal circumstances it requires cogent elements to lead it to depart from
the findings of fact reached by those courts.
(ii) Application of these principles to the present case
(α) The Court’s assessment of the facts
94. In assessing the treatment to which the applicant was subjected on
1 October 2002, the Court notes that it is uncontested between the parties
that during the interrogation that morning, the applicant was threatened by
detective officer E., on the instructions of the deputy chief of the Frankfurt
am Main police, D., with intolerable pain if he refused to disclose J.’s
whereabouts. The process, which would not leave any traces, was to be
carried out by a police officer specially trained for that purpose, who was
already on his way to the police station by helicopter. It was to be conducted
under medical supervision. This was, indeed, established by the Frankfurt
am Main Regional Court both in the criminal proceedings against the
applicant (see paragraph 26 above) and in the criminal proceedings against
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