PARTLY DISSENTING OPINION OF JUDGE CASADEVALL JOINED BY JUDGES KOVLER [12] , MIJOVIĆ, JAEGER, JOČIENĖ AND LÓPEZ GUERRA

(Translation)

1. I am unable to agree with the conclusions reached by the majority in this case regarding the applicant’s victim status and the finding of a violation of Article 3 of the Convention. The case was admittedly delicate in terms of the applicant’s legitimate rights, but was all the more delicate and difficult for the prosecuting authorities, who were faced with an extremely serious and tragic situation culminating in the murder of an 11-year-old child.

2. It is not disputed that the threats of violence against the applicant amounted to inhuman and degrading treatment proscribed by Article 3 of the Convention. This was formally acknowledged by the German judicial authorities: the Frankfurt am Main Regional Court stated that “the threat to cause the applicant pain in order to extract a statement from him had not only constituted a prohibited method of interrogation under Article 136a of the Code of Criminal Procedure; the threat had also disregarded Article 3 of the Convention”, and the Federal Constitutional Court found that “the applicant’s human dignity and the prohibition on subjecting prisoners to ill-treatment ... had been disregarded” (see paragraph 120 of the judgment).

3. The Chamber held in its judgment that the applicant could no longer claim to be the victim of a violation of Article 3 after the domestic courts had acknowledged the violation and afforded sufficient redress for it, seeing that the two police officers involved in the events in question had been convicted and punished. I support that conclusion in the present case.

4. The majority of the Grand Chamber, endorsing the Chamber’s findings, consider that the domestic courts “acknowledged expressly and in an unequivocal manner that the applicant’s interrogation had violated Article 3 of the Convention” (see paragraph 120 in fine of the judgment); that the investigation and the criminal proceedings were “sufficiently prompt and expeditious to meet the standards set by the Convention” (see paragraphs 121 and 122); and that “the police officers were found guilty of coercion and incitement to coercion, respectively, under the provisions of German criminal law” (see paragraph 123). However, they conclude that the applicant can still claim to be a victim and that there has been a violation of Article 3.

5. This assessment appears to be based mainly on the leniency of the penalties imposed on the police officers, because

(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 – had already expressly and unequivocally acknowledged in their three decisions of 2003 and 2004: the applicant, having been threatened with torture in order to make him disclose the child’s whereabouts, was subjected to “inhuman treatment as prohibited by Article 3” (see paragraph 131 of the judgment). On this precise issue all of us – the national judicial authorities, the Government, the applicant and the judges of the Court – are in agreement.

10. Ultimately, this judgment will not even result in an award to the applicant by way of just satisfaction.

[1] Rectified on 3 June 2010: the name of Judge Kovler has been added.

[2] . However, with regard to Article 6 of the Convention, we consider, unlike the majority, that there was a violation of that Article, and we refer to the joint partly dissenting opinion of Judges Rozakis, Tulkens, Jebens, Ziemele, Bianku and Power.

[3] . G. Kellens, Punir. Pénologie et Droit des Sanctions Pénales , (Liège: Editions juridiques de l’Université de Liège), 2000, pp. 59 et seq.; P. Poncela, Droit de la Peine , (Paris: PUF), coll. Thémis, 2nd edition, 2001, pp. 458 et seq.

[4] . Schenk v. Switzerland , 12 July 1988, Series A no. 140; Khan v. the United Kingdom , no. 35394/97, ECHR 2000 ‑ V; P.G. and J.H. v. the United Kingdom , no. 44787/98, ECHR 2001 ‑ IX; Allan v. the United Kingdom , no. 48539/99, ECHR 2002 ‑ IX; Perry v. the United Kingdom , no. 63737/00, ECHR 2003 ‑ IX; Jalloh v. Germany [GC], no. 54810/00, ECHR 2006 ‑ IX; and Bykov v. Russia [GC], no. 4378/02, 10 March 2009.

[5] . Perry v. the United Kingdom (dec.), no. 63737/00, 26 September 2002.

[6] . Harutyunyan v. Armenia , no. 36549/03, §§ 63 and 66, ECHR 2007 ‑ III.

[7] . Göçmen v. Turkey , no. 72000/01, §§ 74-75, 17 October 2006.

[8] . Jalloh , cited above, § 99.

[9] . Ibid., § 107.

[10] . Salduz v. Turkey [GC], no. 36391/02, § 58, ECHR 2008.

[11] . See, inter alia , Chahal v. the United Kingdom , 15 November 1996, § 79, Reports of Judgments and Decisions 1996 ‑ V; V. v. the United Kingdom [GC], no. 24888/94, § 69, ECHR 1999-IX; Ramirez Sanchez v. France [GC], no. 59450/00, § 116, ECHR 2006-IX; and Saadi v. Italy [GC], no. 37201/06, § 127, ECHR 2008.

[12] Rectified on 3 June 2010: the name of Judge Kovler has been added.