Legally regulated torture - the Daschner case and the political trap
01 March 2003
A suspect was told that unless he disclosed the whereabouts of the kidnapped Jakob von Metzler, the police holding him would inflict more pain on him than he had never experienced before. This is what Frankfurt police officers, on order from their Deputy Chief Constable (Polizeivizepräsident) threatened the kidnapper with in October 2002. Although threats of violence from the police may be unsurprising, since this case became public in February this year, the German public has been discussing the limits of the ban on torture and thereby have fallen into a trap.
If Frankfurt Deputy Chief Constable, Wolfgang Daschner, had been caught trying to smuggle one kilogram of cocaine through customs the minimum sentence would be two years imprisonment ( 30 Betäubungsmittelgesetz - Germany's Controlled Substances Law) with no chance of probation. The media might have commented:
In effect the only issue is the length of sentence. Although the presumed perpetrator has publicly confessed, he has not shown any signs of remorse and in such situations it is normal for the courts to give the maximum possible sentence even if only to make an example
This would also have been the view of politicians, lawyers and not least the German public.
However, in the case of the hypothetical drugs courier Daschner if a confession had been extracted by torture the case should not have reached court and if it did then it should have been thrown out. The law laid down in legal and internationally binding norms is unambiguous: coercing statements ( 343 Strafgesetzbuch (StGB) - German Criminal Code), that is the threat or use of physical violence or mental pain by a public officer with the aim of coercing a person to give a statement in legal proceedings, is a crime. It is punished with at least one year imprisonment, which, different from smuggling illegal drugs, allows for the perpetrator to receive a sentence on probation. Torture and other forms of interrogation that break a person's will, are prohibited under 136a of the Strafprozessordnung (German Criminal Procedure's Act). The prohibition also applies to the interrogation of persons obliged to give evidence under police regulations ( 12.4 Hessian Law on Public Security and Order - Sicherheits- und Ordnungsgesetz). It is anchored in the UN Anti-Torture Convention as well as in the European Human Rights Convention and it is clearly laid down in Article 1 of the Grundgesetz (Germany's Constitution or Basic Law), which declares the dignity of human beings to be inviolable. There is no exception here. The Daschner case is resolved and does not require any further explanation or court proceedings.
"Human sympathy"
In taking up the debate, the public immediately stepped into a trap laid down by Daschner & Co.. The principles of this trap are:
1. Harmlessness of torture: there would not have been any physical consequences for the person concerned,
2. Ethical conflict and legitimate reason for torture: it was argued that the life of an innocent (the 11 years old Jakob von Metzler) would have to be saved: 'we had no choice',
3. The incident was exceptional and excusable, and if necessary a legal basis for these situations should be created.
In various interviews, Daschner successfully attempted to reject the image of a brutal torturer. He would not have accepted beatings or injuries, but merely "simple physical influence, for instance through overstretching the wrist joints...there are certain places around the ear...where you press...and it hurts a lot without causing any injuries."
The torture would not have been carried out by a "specialist" but by a police officer "with a training license from the German Sports Association...with the cooperation of a police doctor...in order to prevent injuries." (1)
However, the lack of consequences for the victim is nothing less than the description of modern torture techniques which can be sold to the public in a "democratic" society based on the rule of<