Daschner trial

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Wolfgang Daschner (2011)

Under the name Daschner process one is criminal in front of the 27 Great Criminal Chamber of the Frankfurt Regional Court became known, the Frankfurt against the former deputy police chief Wolfgang Daschner on suspicion of incitement of a subordinate to a crime and against the co-accused Kriminalhauptkommissar Ortwin Ennigkeit on suspicion was conducted on coercion in office . The trial ended on December 20, 2004 with a guilty verdict against the two defendants. The court issued a warning to both and set a fine of 90 daily rates of 120 euros each (totaling 10,800 euros) against Daschner and one of 60 daily rates of 60 euros each (totaling 3,600 euros) against Ennigkeit, subject to a probation period of one year. Both the public prosecutor's office and the defense waived their right to appeal against the judgment, so that it became final after it was announced .

The Daschner case has sparked public debates in the German public about the admissibility of the state's threats and use of force to force statements in criminal proceedings in relation to certain dilemmas (so-called rescue torture ).

Sequence of events

The subject of the criminal proceedings was Daschner's behavior in 2002 in his function as deputy Frankfurt police chief in the case of the kidnapping of Jakob von Metzler . In the course of the police investigation, the kidnapper Magnus Gäfgen was arrested . Although he confessed to the kidnapping, he was not prepared to give the location where he was holding the kidnapping victim Jakob von Metzler.

Daschner decided to threaten the kidnapper with the use of direct coercion through his subordinate detective chief inspector Ennigkeit, and then tried to justify himself by stating that he feared for the life of the victim. According to Magnus Gäfgen, the officer threatened with "pain as he has never experienced it". A police “specialist” for such measures is already on the way to guests by helicopter to carry out the threat. In addition, Gäfgen has alleged that he was threatened with being locked in a cell with two “big negroes ” who were sexually interested in him.

The official's statements were different. Accordingly, there were no threats with "big negroes" or a torture specialist. He merely continued to appeal to the kidnapper's conscience and made it clear to him that the boy's face and eyes will always remain in the kidnapper's mind when the boy dies. The officer also denied having touched Gäfgen.

Under the impression of this threat, Gäfgen provided the requested information about the whereabouts of the kidnapping victim. The police rescue operation ordered immediately, however, did not lead to success, as the victim could only be found dead, which Gäfgen knew beforehand. Daschner, who was fully aware of the legal dubiousness of his approach, made a memo on his own actions, which ultimately provided the impetus for the opening of criminal proceedings against him.

Chronology of the Metzler kidnapping and Daschner trial

  • September 27, 2002: The German law student Magnus Gäfgen kidnaps the banker's son Jakob von Metzler on his way to school. He then suffocates the boy and hides the body.
  • September 29, 2002: Gäfgen receives a ransom of 1 million euros. The police observed the money transfer and from then on monitored Gäfgen in order to find out the whereabouts of Metzler.
  • September 30, 2002: As Gäfgen makes no attempt to visit his hostage and instead books a trip, he is arrested.
  • October 1, 2002: Gäfgen tries to mislead the police by making false statements . Police Vice President Daschner then threatened him with pain, whereupon Gäfgen reveals the hiding place of the dead child. Daschner creates a written note on the file and informs the public prosecutor's office of his approach.
  • January 27, 2003: The public prosecutor's office begins investigating Daschner on suspicion of extortion. Daschner is released from his police duties and is deployed in the Hessian Ministry of the Interior until further notice.
  • July 28, 2003: Gäfgen is sentenced to life imprisonment in two cases for murder, for unit of crime involving extortion and death, and for false suspicion in unit of crime with deprivation of liberty. The particular gravity of the guilt is determined.
  • November 18, 2004: Trial against Daschner begins at the Frankfurt Regional Court.
  • December 9, 2004: The public prosecutor's office demands a fine against Daschner.
  • December 16, 2004: The defense pleads for acquittal.
  • December 20, 2004: Daschner's conviction.

Appeals from the prosecution and defense

The public prosecutor's office demanded a conviction of the detective chief commissioner involved, Ennigkeit, for coercion in office , i.e. for coercion in a particularly serious case according to Section 240 (4) No. 3 of the Criminal Code . An extortion according to Section 343 of the Criminal Code, on the other hand, was not taken into account, as the declaration required was only intended to serve preventive police purposes. A punishment was demanded for Daschner for inducing a subordinate to coerce ( Section 357 (1) of the Criminal Code ). This accusation of a serious violation of the defendant's rights guaranteed in the German legal system and in particular of the unconditional protection of the human dignity of every citizen derived from Art. 1 GG is all the more serious as Daschner is a high-ranking representative of the state in a leading position act with a corresponding role model function.

The defense, on the other hand, took the view that Daschner had found himself in a grave and unprecedented dilemma in which he had to weigh up the human dignity of the kidnapped child and that of the kidnapper. After exhausting all investigative possibilities, he ultimately decided in favor of the kidnapping victim. A decision to the contrary would also have meant that the state would have made itself a “murder assistant” by sparing the perpetrator and thus jeopardized its own credibility. Rather, with reference to the emergency aid derived from Section 32 of the Criminal Code ( self-defense measures in favor of a third party) , Daschner was allowed to and had to exceed the usual limits of the investigation procedure in order to avert harm to the victim. At least, however, a conflict of obligations that excludes guilt can be assumed.

Judgment and grounds for judgment

The criminal chamber came to the verdict that the threat of pain ordered by Daschner with the aim of forcing a testimony had no basis in Hessian police law and was illegal. The aspect of emergency aid claimed by the defense should also be rejected, as the violation of the perpetrator's human dignity was accepted in the pursuit of this. A violation of the most fundamental human right , however, cannot be justified by anything; this is tantamount to breaking a taboo, which - not least with a view to German history during National Socialism - should not be tolerated. In addition, contrary to the representation of the defense, the conventional investigative measures were not exhausted, since z. B. the confrontation of the perpetrator with the sister of the victim was considered, but was then rejected again. The “singularity” of the case claimed by the defense as a justification was also not given. In this context, the court recalled the challenge to the German constitutional state posed by the RAF terrorism in the 1970s and emphasized that if the Schleyer kidnappers had not succeeded in turning the state off its hinges, then kidnappers may do the same today and child murderers fail.

As a mitigating measure, the court held Daschner in favor of the fact that, as the chief investigator, he was undisputedly in an almost hopeless situation. His decision to exceed the limits of what is legally permissible for the benefit of the crime victim was based on an “honorable, responsible disposition of the accused”. The fact that Daschner himself, with the memorandum made by him, significantly facilitated the criminal investigation of the incident, which began only three weeks later, if not even made it possible in the first place, speaks in his favor.

In addition to the guilty verdict, the court found that a fine of 90 daily rates of 120 euros each (a total of 10,800 euros) against Daschner and one of 60 daily rates of 60 euros each (a total of 3,600 euros) against Ennigkeit was appropriate, warned both and reserved in the sense of a warning with reservation of punishment according to § 59 StGB the conviction to the mentioned fines, whereby a probation period of one year was fixed. According to the unanimous opinion, the court was thus at the absolute lowest limit of a criminal law reaction, since the law basically provides for imprisonment between six months and five years in such cases . In this case, however, the court saw "massively mitigating circumstances that stand in the way of the application of the increased penalty framework [...] and make it appear inappropriate", despite the presence of the standard example of Section 240 (4) No. 3 StGB .

The warning with reservation of punishment is a reaction of its own. It presupposes a guilty verdict, but does not initially (and finally in the case of probation) represent the imposition of the reserved penalty. Due to the expiry of the deadline, the reservation became irrelevant. Daschner therefore has no criminal record.

discussion

Daschner's critics see his behavior as an inexcusable violation of the legal system, which he threatened in its fundamental basic principles. The liberal constitutional state is also precisely defined by the limits that it has to set itself in order not to endanger civil liberties. An extreme situation like the one in the Metzler kidnapping case shows in all tragedy that these freedoms sometimes have a price that has to be paid, however. Otherwise, you open the field to a police state that only adheres to the rule of law at its own discretion. The mere threat was already of torture as torture-like psycho-technique to be considered.

The debate was also sparked by equating the purpose of averting danger in question with that of criminal prosecution. At least during the interrogation of the accused, it is already forbidden to lie to the accused (for example: "Your accomplice has already confessed to everything."). Furthermore, the accused must be explained to the suspect before the questioning begins, why he is being questioned; The question: "You know why we are here?" is therefore also inadmissible. The reason for this procedure is the nemo tenetur principle , which states that no one has to actively participate in its transfer (Latin: nemo tenetur se ipsum accusare ). The consequence of this is that silence on the part of the accused may never be interpreted by the judge to the disadvantage of the accused.

According to Article 1 of the Basic Law, torture, or the threat of it, is forbidden without exception and without the need for practical concordance with concerns of victim protection , after long largely undisputed fundamental rights dogmatics , since human dignity does not allow it to be degraded to a mere object of state action, both in the case of torture as well as in the case of their threat.

In contrast, the proponents of Daschner's approach take the view that the state should not allow criminals to put itself into a situation in which it can no longer guarantee the protection of its citizens through a lack of willingness to cooperate. It is by no means a matter of introducing torture as a “normal investigative measure”, but rather of providing the state with the ultimate weapon in combating crime, which can be used in extreme situations for the benefit of the citizens. It is also pointed out that under certain circumstances the police are even entitled to use firearms against criminals, which can have even more serious consequences for life and health than torture carried out under medical supervision. In addition, one of the objections raised against the criticism of Daschner was that the mere threat of torture was no more reprehensible than many other threats. A ban on the threat of torture emerges neither from the UN Convention against Torture nor from the ECHR . The constitutional and international law teacher Matthias Herdegen ( University of Bonn ) referred to a less strict interpretation of the ban on torture in the context of saving lives on the part of the European Court of Human Rights . The legal derivation of the exclusion of everyone's right to emergency aid with regard to public officials, which is advocated in such cases, is also controversial in the discussion.

A third group, which is also one of the supporters of Daschner's approach, denies the state's right to torture, but not the right of every individual to put their conscience above the law in exceptional situations: “No one can be compelled by the law to oppose his conscience to act! ”Critics of this view point out, among other things, that persons acting accordingly are unsuitable for the police service and should in any case be punished.

Basically, it should be noted that the question of whether Daschner has made himself punishable through his behavior - as an individual - must be viewed completely separately from whether Gäfgen's "confession", which is based on Daschner's behavior, was used by the state in criminal proceedings against Gäfgen could be used. It is entirely possible to refuse the usability of the confession and nevertheless, in view of the misjudgment he made that Metzler was still alive, to grant Daschner a mistake in terms of the law. This problem remains unresolved; a supreme court decision of the case could have increased legal certainty.

graduation

In terms of civil servant law, the conviction had no consequences for Daschner. According to Section 24 of the Civil Service Status Act, the civil servant relationship expires if the civil servant has been sentenced to imprisonment of at least one year in the ordinary criminal proceedings by the final judgment of a German court for an intentional act. Fined convictions have no effect on civil servant status, but such convictions can be assessed in disciplinary proceedings.

On April 19, 2005, the Hessian Interior Minister Volker Bouffier stopped the disciplinary proceedings initiated against Daschner without imposing any disciplinary measures against him. Daschner was transferred from Frankfurt to Wiesbaden, where he was promoted and took over the management of the Presidium for Technology, Logistics and Administration of the Hessian Police. He was retired on May 1, 2008 because he had reached the statutory age limit.

In July 2005 the convicted Magnus Gäfgen appealed against the Federal Republic of Germany to the European Court of Human Rights (ECHR). The subject of the complaint is the threat of torture issued by order of Wolfgang Daschner, which the complainant classifies as "the most massive violation of human rights and the prohibition of torture that has become known and provable in post-war Germany ". The aim of the complaint was to reopen the proceedings against Gäfgen, since in Gäfgen's opinion the court had insufficiently considered the hindrance to the initially planned defense strategy.

On June 30, 2008, the ECHR rejected Gäfgen's complaint. He expressly confirmed that Gäfgen's rights under Article 3 of the European Convention on Human Rights (prohibition of torture and inhuman or degrading treatment) had been violated - even if the threat of torture against him was not torture, but “only” inhuman treatment. Furthermore, he also emphasized that any treatment in violation of Art. 3 ECHR - including to save the life of an individual or, in the event of an emergency, for the entire state - is inadmissible, which means that " rescue torture " continues to be excluded as a valid means of solving crimes is. He stated, however, that Gäfgen had been given “sufficient satisfaction” due to the express recognition of the violation of his human rights by the German courts and the conviction of Daschner and the second police officer. Gäfgen could therefore no longer claim to have been the victim of an injury and could no longer hope to have his case reopened. Gäfgen applied for referral to the Grand Chamber of the ECHR against this decision. This ruled on June 1, 2010. In contrast to the lower court, it did not consider the satisfaction granted by the German courts to be sufficient. The Court criticized, among other things, the penalties against Daschner and Ennigkeit, which, despite mitigating circumstances, could not be regarded as an appropriate response to a violation of Article 3 ECHR and would be obviously disproportionate in view of the violation of one of the core rights of the Convention. The pronounced penalties would not have the necessary dissuasive effect to prevent further violations of the prohibition of ill-treatment in difficult situations in the future. Gäfgen could therefore continue to claim to be the victim of a violation of Article 3 ECHR.

With a judgment of October 10, 2012, the Higher Regional Court (OLG) Frankfurt ruled - ten years after Gäfgen's murder of the banker's son Jakob von Metzler - in the second instance that the State of Hesse had to pay Magnus Gäfgen compensation of 3,000 euros because of the threat of torture in the police interrogation. It thus rejected the appeal of the State of Hesse against an earlier judgment of the regional court. In its judgment, the regional court relied on the provisions of the ECHR from 2010 in the Gäfgen case.

filming

See also

literature

  • Volker Erb : Self-defense as a human right - At the same time a criticism of the decision of the LG Frankfurt am Main in the "Daschner case". In: New Journal for Criminal Law (NStZ), 2005, p. 593 ff.
  • Rolf Dietrich Herzberg : Torture and Human Dignity. In: JuristenZeitung (JZ), 2005, p. 321 ff.
  • Christian Jäger : The prohibition of torture as an expression of the dignity of the state. In: Holm Putzke, Bernhard Hardtung, Tatjana Hörnle, Reinhard Merkel, Jörg Scheinfeld, Horst Schlehofer, Jürgen Seier (eds.): Criminal law between system and telos. Festschrift for Rolf Dietrich Herzberg on his seventieth birthday on February 14, 2008. Mohr Siebeck, Tübingen 2008, ISBN 978-3-16-149570-0 , p. 539 ff.
  • Adrienne Lochte: They won't find you. The case of Jakob von Metzler. Droemer-Knaur, Munich 2004, ISBN 3-426-27345-4 (human touch story about the social and psychological background of the crime.)
  • Jan Philipp Reemtsma : Torture under the rule of law? Hamburger Edition HIS, Hamburg 2005, ISBN 3-936096-55-4 (Detailed reconstruction of the case including earlier discussions about torture in Germany.)
  • Hit, kick, break fingers for truth & morality. To the trial of ex-Vice-Police President Wolfgang Daschner. In: analysis & criticism . No. 489, November 19, 2004, p. 21.
  • Stefanie Schmahl , Dominik Steiger: Implications of the Daschner case under international law. In: Archiv des Völkerrechts (AVR), Vol. 43 (2005), pp. 358–374.
  • Georg Wagenländer: On the criminal assessment of rescue torture. Duncker & Humblot, Berlin 2006, ISBN 3-428-12056-6 .
  • Robert Zagolla: In the name of the truth. Torture in Germany from the Middle Ages to the present day. be.bra, Berlin 2006, ISBN 3-89809-067-1 (On pp. 196–202 contains a detailed description of the events and discussions in the Frankfurt police headquarters: Daschner was largely alone in his decision among colleagues.)
  • Ole Ziegler: The prohibition of torture in police practice. The Daschner case as evidence of the constitutional absoluteness of the prohibition of torture. In: Critical quarterly journal for legislation and jurisprudence (KritV), 87th year, 2004, pp. 50–66.
  • Volker Erb : Essay. In: Die Zeit , No. 51/2004; with links also to the opposite view

Web links

Individual evidence

  1. ↑ AZ : 5/27 KLs 7570 Js 203814/03 (4/04)
  2. ↑ cf. on the term rescue torture Clemens Breuer: The torture of people. The difference between the claim for a worldwide ban and its practical disregard and the question of the possible approval of rescue torture . In: Gerhard Beestermöller, Hauke ​​Brunkhorst (ed.): Return of the torture. The rule of law in the twilight? Munich 2006, pp. 11-23. Breuer also explicitly cites the Daschner case as an example of rescue torture.
  3. ^ LG Ffm and v. July 28, 2003 5/22 Ks 2/03 3490 Js 230118/02 , in OpenJur, accessed on November 12, 2019.
  4. ^ Christian Geyer : Gäfgen judgment: Strasbourg confirms the ban on torture . In: FAZ , June 30, 2008
  5. ^ Case of Gäfgen v. Germany . HUDOC . June 1, 2010. Accessed August 30, 2012. (English)
  6. ↑ Case G. v. Germany (individual complaint No. 22978/05) - judgment of the Grand Chamber at the Federal Ministry of Justice
  7. ↑ ECHR Gäfgen v. Germany, judgment of the Grand Chamber of June 1, 2010, No. 22978/05, § 124
  8. ↑ Child murderer Gäfgen is compensated for threats of torture . Retrieved October 10, 2012