GÄFGEN v. GERMANY JUDGMENT – SEPARATE OPINIONS
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(i) in the criminal proceedings they were sentenced “only to very modest
and suspended fines” (see paragraph 123), which were “almost token” and
“manifestly disproportionate” (see paragraph 124); and
(ii) the disciplinary sanctions, consisting in their transfer to posts which
no longer involved direct association with the investigation of criminal
offences, were too lenient as the officers were not “suspended from duty
while being investigated or tried” or dismissed after being convicted (see
paragraph 125).
6. In the very particular circumstances of this case, regard being had to
the fact that after the interrogation D., the deputy chief of police, drew up a
note for the police file in which he described – and admitted – the manner in
which the events had occurred and provided reasons, or indeed justification,
for them; that the domestic courts (the Regional Court and the Federal
Constitutional Court) expressly declared that there had been a breach of the
Basic Law and the Convention; and that the two police officers were found
guilty and received criminal and disciplinary sanctions, the question of the
quantum of the penalties should no longer be relevant. The Court points out
that, except in manifestly arbitrary cases, “it is not its task to rule on the
degree of individual guilt ... or to determine the appropriate sentence of an
offender, those being matters falling within the exclusive jurisdiction of the
national criminal courts” (see paragraph 123 of the judgment). There are
good reasons for such judicial restraint, namely the lack of familiarity with
the criminal case that resulted in the conviction and the fact that the
convicted persons do not take part in the proceedings before the Court.
7. Applying the criterion of the severity of the penalty imposed, one may
wonder what degree of punishment the majority might have accepted in
order to find that the applicant was no longer a victim. In other words,
should the applicant’s victim status depend on the severity of the penalty
imposed on the police officers? In my opinion the answer is “no”.
8. This leaves the question of the additional requirement of
compensation and the doubts as to the effectiveness of the official liability
proceedings instituted by the applicant (see paragraphs 126 and 127 of the
judgment). I have two observations on this point: (a) the applicant did not
bring his compensation claim at national level until after his application to
the Court had been communicated and his request for legal aid granted, that
is, three years after the alleged damage; and (b) the case is pending before
the domestic courts and there is no cause to prejudge either the effectiveness
or the eventual outcome of this remedy. In addition, the fact that the
applicant did not seek any award for non-pecuniary damage (see
paragraph 190 of the judgment) is fairly significant.
9. The question also arises as to what useful purpose is served by the
operative provisions of the judgment. In the final analysis, the majority of
the Grand Chamber simply confirm what the German judicial authorities –
the Frankfurt am Main Regional Court and the Federal Constitutional Court
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