Völkerrechtliche Implikationen des Falls Daschner Völkerrechtliche Implikationen des Falls Daschner

1. In September 2002, a German student kidnapped an 11 year old boy. After the boy had been kidnapped for four days, the Vice President of the Frankfurt/M. Police Department Daschner threatened the kidnapper with the infliction of intense harm in order to reveal the hiding-place. By this threat, Daschner, who did not know that the boy was already dead, hoped to save the boy's life. On December 20, 2004, the District Court (Landgericht) Frankfurt/M. condemned Daschner for coercion. Nevertheless, taking into account Daschner's intentio recta, the Court released his penalty on licence and imposed an admonishment (Verwarnung) according to Section 59 of the German Criminal Code. Therefore, Daschner is not previously convicted; the admonishment is no penalty in the sense of the German Criminal Code but a sanction sui generis.2. The article deals with the implications that public international law has on this case. Daschner's threat of torture has to be considered as degrading treatment which cannot be justified:a) Various human rights treaties on the regional and the international level prohibit torture, cruel, inhuman, and degrading treatment in an absolute manner. Furthermore, the prohibition of torture is regarded as a peremptory norm of international law. Even in a state of necessity, the prohibition of torture remains a non-derogable right.b) Torture has to be differentiated from cruel, inhuman, and degrading treatment. This differentiation has to comply with the intensity of suffering caused to the victim on the one hand, and with the object and purpose of the ill-treatment on the other. In all cases, the suffering can merely be mental; a physical harm is not necessary. A threat of torture which has a humbling affect on the victim might thus be considered as degrading treatment.3. It follows from the human rights standards that it is implicit in the duty to pass and enforce legislation that perpetrators of torture, cruel, inhuman, or degrading treatment, be appropriately punished. As the human rights treaties do not establish exact criteria, the punishment must be appropriate to the general system of penalties foreseen by the respective national legal order.4. Daschner's conviction is consistent with international standards. Even if an admonishment regularly does not suffice to punish torturers strictu sensu, it might be regarded as adequate for punishing the degrading treatment in question. Nevertheless, it is deplorable that the District Court Frankfurt/M. – besides the mere quoting of art. 3 ECHR – did not rely at all on international human rights law for its reasoning.