Torture does not pay

As you consider the ongoing saga of US treatment of detainees at Abu Ghraib, Guantanamo and elsewhere, spare a thought for Wolfgang Daschner. As I wrote in an earlier post, Daschner, Frankfurt’s former deputy police commissioner, faced trial for threatening one Magnus G?fgen with torture. G?fgen had kidnapped young Jakob von Metzler, and the police were trying desperately to find the boy. What they didn’t know at the time was that G?fgen had murdered him very shortly after the abduction and disposed of his body in a lake.

Daschner struck me as a model of the “well-meaning torturer”. He couldn’t have known that Metzler was already dead, and was frantic to find him. But when G?fgen kept shtum, Daschner decided to use torture as an ultima ratio. Well, he didn’t actually use it; but he threatened it, and that was enough both to make G?fgen talk and to make Daschner face criminal charges. In my earlier post, I had said that, if the court found Daschner guilty,

he should be punished. I would hope that the court, in meting out a punishment, would take into account the inhumanly impossible position Daschner found himself in (and the Criminal Code does allow for significantly milder penalties for criminal coercion than a three-year prison term)…. But I cannot accept that his deed be dismissed … because he was acting in good faith and sought to achieve a desirable result.

As the S?ddeutsche reports (in German, alas), the State Court in Frankfurt has now found Daschner guilty. His punishment, though, is mild indeed.

Daschner was sentenced to a Geldstrafe, or ‘monetary punishment’. (Note that a Geldstrafe is a criminal penalty that may be imposed only upon conviction; it is not a mere fine). And the court made Daschner’s penalty subject to probation; if he keeps his nose clean (as there is every reason to think he will), he will not in fact have to pay. The amount of the punishment is ?10,800 (or, under the complicated German system, 90 daily units at ?120 per day, the amount of each daily unit being set in accordance with the defendant’s income). The choice of 90 daily units is important. Had it been more (in normal circumstances, it can be up to 360), Daschner would thereafter have had the status of a Vorbestrafter, an ‘ex-con’. At 90 days, he won’t.

Daschner’s defence had, understandably, pleaded for a verdict of ‘not guilty’. Even the prosecution, however, had asked the court to impose only a monetary punishment (though they’d asked for more than twice as much), and had requested that the penalty be on probation, on the grounds of the ‘massively mitigating circumstances’ in this case.

Things could hardly have turned out better for Daschner. This was about the mildest possible penalty the court could have imposed. For a while there, it looked as though Daschner might have had to reckon with worse. A number of journalists suggested that Daschner had not in fact exhausted all other possibilities before communicating the threat of torture. For example, Metzler’s sister was on hand at the police station where G?fgen was being interrogated, and volunteered to confront him. (G?fgen was an acquaintance of the von Metzler family, and had been friendly with Jakob’s older siblings.) In the event, Daschner did not send her in to face G?fgen. If he failed to do that, asked the journalists, then surely he hadn’t tried everything legitimate before threatening torture. I am glad that the court appears not to have been swayed by this thinking. It is easy to be the hurler on the ditch. It’s more difficult for the police officer who must make the decisions in the real world. Perhaps his considered judgement was that confronting G?fgen with Metzler’s sister would not have worked. Perhaps he thought it unacceptable to put her in such a position, for all her apparent willingness. Who knows — perhaps sending the woman into the interrogation room would have been the best decision. But we cannot, I think, fairly demand that policemen (or anybody else) always make 100% optimal decisions. We can demand that they make the best decisions they can according to their lights, after exercising the care and judgement one would reasonably expect from somebody in their position. And I think that is exactly what Daschner did.

As the S?ddeutsche noted, the only better outcome for Daschner could have been a decision by the court to ‘suspend proceedings, subject to conditions’ pursuant to ? 153a of the Code of Criminal Procedure — i.e., dropped the matter in exchange for (say) a donation to some charitable organisation. In fact, this happens fairly often. Before a formal charge is made, the prosecutor’s office may do it with the consent of court and defendant; if the prosecution has already charged the defendant, the court may do so (again, subject to the prosecution’s and the defendant’s consent). Suspension of proceedings is permissible if the conditions imposed on the defendant render moot the public’s interest in prosecution and if the defendant’s guilt (assuming it proven) would not be sufficiently severe to make the measure inappropriate. (Suspension on conditions is available only in the case of misdemeanours, not felonies. A felony is anything with a minimum punishment of one year’s imprisonment. Criminal coercion, the crime with which Daschner was charged, carries a maximum tariff of three years, but the sentence may be less than one year, so it is a misdemeanour.)

I think it right that the court did not opt to suspend the proceedings. Seen in vacuo, what Daschner did wasn’t all that terrible. He threatened to have somebody roughed up a little (he had specified ‘pain, but no injury’) unless that person coughed up some information. If Daschner were a private person whose car had been stolen, and he told the thief he’d slap him around a bit unless the thief revealed where the car was hidden, perhaps The People In Its Majesty would be satisfied to see the charges dropped if Daschner agreed to donate a sum to the Home for Battered Thieves and take an anger-management course. But Daschner was not a private person; he was a very high-ranking officer of the police. And, in investigating a terrible crime, he was making use of the state’s monopoly on the legitimate use of force. But he used (or threatened to use) force in a way that this state deems illegitimate, even when it is the agent. When a state accepts that is bound by the rule of law, it is important that it police itself carefully (no pun intended).

But I also think it right that the court was mild in its chastisement. The court having found that Daschner was guilty of threatening torture, it is right and important that the state formally reprove him by imposing a penalty. But given the extreme circumstances in which Daschner found himself, and the unquestionably good ends to which he applied his unquestionably bad means, it is also right and important that the state be lenient.

9 thoughts on “Torture does not pay

  1. I also think the verdict is rather appropriate. Although, I suppose a part of the Strafe should not have been on probation, if that is possible in the StPO, I don’t know.

    As for the sister, I heard from a legal expert on police law (in the “heute journal”) that it’s allegedly almost permissable for non-officials, certainly relatives, of a threathened person to use physical violence against the perpetrator, a privilege not available to state officials, for good reason. So, in the future, is a more proactive role for brothers, sisters, other relatives in interrogations of this kind conceivable? I mean, if she’d “found” a baseball bat lying around and security had been on a “coffee break” while she threatened him, wouldn’t that then be (almost?) legal, or would it be just a circumvention?

    This stuff is tricky.

  2. Well, I don’t know that the StPO makes it quite permissible for non-officials, esp. relatives, to beat up interogees. But non-officials are not subject to the specific prohibitions of StPO ? 136a that apply to the police. In any event, I do not think Daschner hoped Ms von Metzler would attack G?fgen (if he’d thought that, he could have saved himself a world of trouble); rather, that her presence would fill him with remorse, leading him to divulge the whereabouts of her brother (at that time, still thought to be alive). I am not confident this would have worked; from all reports, G?fgen is a sociopathic type, and I wonder whether he feels remorse for anything, other than for being caught.

    ? 56 StGB forbids probation for only a part of a prison sentence (i.e., in advance; ? 57 deals with Aussetzung zur Bew?hrung of the rest of a prison term already partly served, but that is, I believe, closer to what the English-speaking world would call parole). Without doing a bit of homework, I confess that I do not know what rules would apply to probation for a monetary penalty.

  3. As for the sister, I heard from a legal expert on police law (in the “heute journal”) that it’s allegedly almost permissable for non-officials, certainly relatives, of a threathened person to use physical violence against the perpetrator, a privilege not

    The term here is “Nothilfe” (= selfdefense by proxy). A private person is allowed to use any force necessary against a criminal threatening an innocent person’s life. That’s a matter of federal criminal law, not state police law.
    Isn’t that the case in every jurisdiction?

    However the police is required by law to protect anybody it has arrested against attack.

    This leaves us in the awkward situation that the police arresting a criminal might endanger the victim. And, of course, why could police kill him if the need arose, but not torture him?

    On the third hand parliament has passed a law allowing airliners to be shot down to prevent them being used for a 9/11 style attack. The constitutionality of that is questionable, but clearly equality before the law is violated here.

  4. Oliver,

    certainly a non-policeman may, under the StGB’s doctrine of Nothilfe, use force against another to prevent a crime. So too may a policeman, of course. At issue here, though, is not Notwehr (a factor that, if present, means that an act is not illegal (rechtswidrig) even if the act fulfils all the elements of a crime (Tatbestandsmerkmale); Nothilfe being simply Notwehr in defence of a third party rather than oneself). What is at issue is a specific clause of the StPO (which is, BTW, like the StGB, a federal law, not Hessian state police law) that prohibits the police from using torture and other illegitimate methods on a suspect. That clause would not apply to Ms von Metzler, who is not a law-enforcement official; it does apply to Daschner.

    Whether a hypothetical Ms von Metzler threatening a hypothetical G?fgen in the interrogation room with a baseball bat to make him disclose the location of her brother would constitute Nothilfe is an interesting question. If I remember my Strafrechtsvorlesungen correctly, probably not. But it’s a question I gladly leave to the German courts.

    BTW, even under Notwehr one can’t simply do any old thing; it’s not the Tony Martin Act, you know. If it goes beyond what’s necessary, it’s not Notwehr and the act is illegal. Under certain circumstances, though (e.g., the actor goes beyond what’s necessary out of terror), an actor may be non-punishable (wird nicht bestraft) even though the act was illegal.

  5. Smart post. I think I mis-pegged you slightly from your comments at CT.

    Incidentally, I agree with your assessments.

  6. I think the Daschner case turned out for the best all the way around. Yes, torture and the threat of torture is and should be a crime for any agent of the state. But I also want police officers with a conscience who, in extreme situations, are willing to take the risk of losing their career and being convicted of a crime for a greater good. It should be clear to those in extreme situations that should they step over that line, their decisions will be subjectively evaluated by a court of law.

    I don’t know if Dascher took the best course of action, but it was a course of action that as a fellow citizen I can live with.

  7. I have no problem with “guilty with extenuation”. Laws cannot possibly cover all conceiveable circumstances and acting in the spirit rather than the word of the law seems a reasonable thing for society to condone. My problem is not the subjective nature of the offences, but the subjective nature of the punishments.

    Dascher was in a black and white situation. He had the choice to do what he did or not to do what he did. He could’t half-threaten the guy with torture and anything more than he did would have been actual torture. If society says that what he did was wrong but justified in that context – fine, he is exonerated. If what he did, despite the circumstances, was wrong in society’s eyes then he is punished depending on the severity – which was great. However, here we seem to have society saying: “you were right, but we don’t want to send a wrong message so we are going to punish you just a little bit.”

    The objective, surely, is to define for the next person in that position what society considers right and wrong, and verdicts like this don’t tell me that. They’re judicial cop-outs.

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