What are some cases of extreme inhumanity

Torture and the rule of law

Winfried Brugger

To person

LL.M., born 1950; Professor for public law and legal philosophy at the University of Heidelberg, Friedrich-Ebert-Anlage 6-10, 69117 Heidelberg, and Fellow at the Max-Weber-Kolleg of the University of Erfurt.
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The article first describes the arguments that are put forward against the admissibility of such "rescue torture", but then advocates a narrowly limited exception to the absolute prohibition of torture.


In September 2002, the 11-year-old banker's son Jakob von Metzler was kidnapped by the student Magnus Gäfgen in Frankfurt am Main. Gäfgen demanded a large ransom from the Metzler family. He was arrested shortly after the money was handed over. At the interrogation he did not provide any information about Jakob's whereabouts. When the Frankfurt police vice-president Wolfgang Daschner Gäfgen threatened violence in order to find out where the kidnap was hiding, the kidnapped man named the place where he was found. The dead child was discovered there. Magnus Gäfgen was sentenced to life imprisonment for kidnapping and murder. The police vice-president got away with a minor sentence. The court saw no justification for the extortion of testimony and justified the low sentence with Daschner's honest intention to save the life of the kidnapped Jakob.

This kidnapping case sparked a discussion that touched on a taboo that had hitherto been in effect in Germany: the police may not torture under any circumstances; even a discussion about possible limits to the ban on torture shakes the foundations of the rule of law. It is feared that the dignity of every human being, which is absolutely protected in Art. 1 of the Basic Law (GG), precisely in averting the injustice regime of the National Socialists, will get caught up in a balancing act in which it loses against real or supposed needs of danger prevention and criminal prosecution.

Despite these fears, the taboo could no longer be upheld. After all, it was about saving Jacob's life, not prosecuting the kidnapper. It was clear that the kidnapper, and not just a suspect, was caught. The police were allowed to assume, to the best of their knowledge and belief, that Jakob was still alive. Is it then exceptionally justified if physical violence is threatened against the kidnapper and, if necessary, also used? This is how the Frankfurt Police President Daschner saw it, and depending on the survey, half or about two thirds of the population saw it, at least with regard to the threat of physical violence. Lawyers and commentators, on the other hand, almost unanimously see and see the concerns outlined above and insist on an absolute ban on torture. The policemen's moral dilemma is admitted. But anyone who tortures as an official must be prosecuted under criminal and disciplinary law. Some believe the sentence could be lessened. Others vote for a later pardon. Still others insist on the severity of the law; but they pay moral respect to the police officer who threatens the captured blackmailer with physical coercion or even uses it and takes the punishment for it.