Abu Ghraib, Guantanamo – frankfurt am main? cazul daschner
Abu Ghraib, Guantanamo – Frankfurt am Main? The Daschner Case

Summary/Abstract: The study discusses the matter of interdiction of torture both from the viewpoint of criminal law, and from the perspective of a fundamental human right, stated in the German constitution and in international treaties, the right to human dignity. The controversies on this subject have been caused by the duress techniques employed by German police officers on a person under criminal investigation, threatened with the infliction of physical pain if he did not offer information relevant for the inquiry. Aside from the ethical and moral concepts scrutinized by the German public opinion, the article offers an articulate analysis of the judicial arguments involved. The author mainly focuses on issues concerning material criminal law, as opposed to procedural matters. In the foreground of the study, he places an examination of self defense legislation from the dogmatic viewpoint of justifying causes in the German criminal code. This analysis is founded on the European tripartite notion of the offence: typicality, unlawfulness and guilt. Starting from this premise, the question that needs a comprehensive answer is whether the threat of a public authority agent to inflict physical pain on a person under criminal investigation, with the purpose of preventing an attack against another person, can be justified through self-defense? The study attains distinctive significance in its second part. It brings into discussion the issue of fundamental human rights from the German constitutional viewpoint, on the one hand, while on the other hand invoking the provisions of international conventions on the banning of torture. The fundamental query in this context is to what extent is the agent of a public authority aiming to get hold of information in an investigation permitted to inflict physical pain on a person or to threaten with the infliction of such pain, as these acts are suitable of falling under the incidence of international treaties on the banning of torture The final part of the article briefly deals with the possibility of invoking necessity as a defense in this situation, and mentions the punishment decided in the case by the German court.

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