Belgrade Law Faculty Master-Course Human Rights and Non-Discrimination

1. Belgrade Law Faculty Master-Course Human Rights and Non-Discrimination Personal Integrity Prof. Thomas Fleiner

2. Introduction What is human dignity? What Obligations and Rights? What is the content of the right to life Including the obligation for preventive measures? Prohibition of Torture and Slavery in Con vention: Prohibition of inhuman treatment

3. Human Dignity EC 1: Human dignity is inviolable. it must be respected and protected. Depends on the view of Human Nature Homo Sapiens: able to evaluate what is good and bad for one self and accor- dingly plan life, decisions and actions (Kant) Social and political capacity Emotions Religious believes Capacity to communicate (language), learn and adapt

4. General Obligations EHRC 1: Obligation to secure to everyone the Rights and freedoms of section 1 EHRC 13: Right to effective remedy EHRC 17: Prohibition of abuse Rights EHRC 41 Just satisfaction to the injured party EHRC 46 Binding force and execution by the Committee of ministers

5. Rights Right that state abstains Obligation to abstain Obligation to respect Right that states protect Obligation to protect Right that states perform Obligation to perform to fulfil

6. Obligations Substantive e.g. Obligation of the state To prevent gas explosions in a slum Quarter (Oneryldiz v. Turkey ECHR 2004-XII ) Procedural: Obligation of the state to make Independent and efficient investigation Nachova v. Bulgaria, ECHR 2005: Case Shooting by police of two Roma conscripts trying to escape

7. Right to life Obligations with regard to personal Integrity EHRC 2 Right to life: 1 Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sen- tence of a court following his conviction of a crime for which this penalty is provided by law.

8. Nachova v. Bulgaria a police officer shoots two Roma conscripts allegedly trying to escape 93.  Article 2, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention and enshri- nes one of the basic values of the democratic societies making up the Council of Europe. The Court must subject allegations of a breach of this provision to the most careful scrutiny. In cases concerning the use of force by State agents, it must take into consideration not only the actions of the agents of the State who actually administered the force but also all the surrounding cir- cumstances, including such matters as the relevant legal or re- gulatory framework in place and the planning and control of the actions under examination

9. 110.  The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force

10. Preventive measures GONGADZE v. UKRAINE 2006 164.  The Court reiterates that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. This involves a primary duty on the State to se- cure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the per- son, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. It also extends, in appropriate circumstances, to a positive obli- gation on the authorities to take preventive operational measur- es to protect an individual or individuals whose lives are at risk from the criminal acts of another individual. ÖNERYILDIZ v. TURKEY November 2004 89.  The positive obligation to take all appropriate steps to safeguard life for the purposes of Article 2 (see paragraph 71 above) entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life

11. Prohibition of Torture and Slavery EHRC 3 Prohibition of Torture No one shall be subjected to torture or to inhuman or degrading treatment or punishment. EHRC 4 Prohibition of Slavery and forced labour 1 No one shall be held in slavery or servitude. 2 No one shall be required to perform forced or compulsory labour. 3… No derogation in times of emergency of 2, 3 and 4 par. 1

12. History of Torture Canon Law replacing the middle age Ordeal Procedure for severe crimes: Either two testimonials or a confes- Sion thus torture became routine in Europe in order to compel confession Cesare Beccaria Treatise on Crime and Punishment 1766 Abolished between 1734 an 1788 in Sweden, Denmark, France, Habsburg Russia and Spain early 19th cent. Totalitarian Regimes 20th century But USA Guantanamo, Abu Ghraib

13. History of Cases of the Court Inhuman Treatment and Torture Hooded Men in Britain of 1971 Hooding, Noise bombardment, food de- previation, sleep depriviation, forced Wall standing 1972: Lord Parker: Against terrorists morally acceptable EHRC: Ireland v. United Kingdom 1978 Commission: Torture Court: inhuman treatment Art. 3 of the Convention (no. 167)

14. Selmouni v. France: Burden of proof 87.  The Court considers that where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention 105 Under these circumstances, the Court is satisfied that the physical and mental violence, considered as a whole, committed against the applicant’s person caused “severe” pain and suffering and was particularly serious and cruel. Such conduct must be regarded as acts of torture for the purposes of Article 3 of the Convention.

15. Justifications of Torture? The ticking bomb justification In theory but not in practice 107107  However, it is necessary to underline that, having re- gard to the provision of Article 3 the prohibition on ill-treatment of a person applies irrespective of the conduct of the victim or the motivation of the authorities. Torture, inhuman or degrading treatment cannot be inflicted even in circumstances where the life of an individual is at risk. Gäfgen v. Germany 2010 Torture lite as justification Where to stop? False and unreliable information Detention and coerced confession Miranda

16. Torture and Death Penalty Soering v. United Kingdom July 1989 167.) In order for a punishment or treatment associated with it to be 'inhuman' or 'degrading,' the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate punishment. (See TYRER V UNITED KINGDOM, loc cit.) In this connection, account is to be taken not only of the physical pain experienced but also, where there is a considerable delay before execution of the punishment, of the sentenced person's mental anguish of anticipating the violence he is to have inflicted on him. However wellintentioned and even potentially beneficial is the provisionof the complex of postsentence procedures in Virginia, the consequence is that the condemned prisoner has to endure for many years the conditions on death row and the anguish and mounting tension of living in the everpresent shadow of death.

17. Prohibition of inhuman or degrading treatment or punishment Stepfather beats his child with a garden cane • v. United Kingdom September 1998 • 22.  It remains to be determined whether the State should be • held responsible, under Article 3, for the beating of the applicant • by his stepfather. • The Court considers that the obligation on the High Contracting • Parties under Article 1 of the Convention to secure to everyone • within their jurisdiction the rights and freedoms defined in • the Convention, taken together with Article 3, requires States • to take measures designed to ensure that individuals within • their jurisdiction are not subjected to torture or inhuman or • degrading treatment or punishment, including such ill-treatment • administered by private individuals (see, mutatis mutandis, • the H.L.R. v. France judgment of 29 April 1997, Reports 1997-III, • p. 758, § 40). Children and other vulnerable individuals, in par- • ticular, are entitled to State protection, in the form of effective • deterrence, against such serious breaches of personal integrity