1 / 12

Obligations under Article 3 of the ECHR

Obligations under Article 3 of the ECHR. Role of Judiciary Ankara / 15 April 2010 E. Svanidze. Article 3. “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

jana
Download Presentation

Obligations under Article 3 of the ECHR

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Obligations under Article 3 of the ECHR Role of Judiciary Ankara / 15 April 2010 E. Svanidze

  2. Article 3 • “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” • Definitional elements of the prohibition that make a treatment or punishment unacceptable: • Torture • Inhuman • Degrading

  3. Definitional Indications • Torture • Exceptional severity – ‘stigma of torture’ • Specific purposes (confession etc.) • State agents • Inhuman - connotations of cruel and uncivilized nature • Degrading - humiliating and debasing effects or consequences • Additional aspects - evolution of perceptions - relative approach

  4. Scope of the Prohibition of Ill-treatment TORTURE THRESHOLD INHUMAN DEGRADING MINIMUM LEVEL OF SEVERITY

  5. Consequences of malfunctioning • Malfunctioning of judiciary = procedural violations under Article 3 (To be discussed) • Malfunctioning of judiciary / miscarriage of justice = substantial violations of Article 3 It can result in suffering that attains the minimum level of severity under Article 3

  6. Substantial violations • Inaction in cases of disappearances in life-threatening situations Ipek v. Turkey ; Baysayeva v. Russia • Flagrant disregard of fair trial requirements leading to significant human anguish sentencing to death Ocalan v. Turkey • Miscarriage of justice that seriously endanger crucial human rights such as life, prohibition of ill-treatment, liberty and security (???)

  7. Substantial violations • Unlawful arrest can intensify suffering of the victim and contribute to attaining the minimum level of severity (violation of Article 5 violation of Article 3) Trepashkin v Russia • Disregard of the justified grievances of the persecuted members of the Roma community by the authorities (prosecutors and courts both in criminal and civil cases) amounted to degrading treatment Moldovan v. Romania • Humiliating situation in the court-room can amount to degrading treatment Sarban v. Moldova; Ramishvili and Kokhreidze v. Georgia

  8. Positive obligations attributable to judiciary • Positive obligations = Article 3 + Article 1 ‘secure to everyone’ • Absolute prohibition of ill-treatment - Legal basis in the Convention law (text of Article 3, Article 15) - Questionable benefits of using torture / no practical reasons (delusion) • Procedural obligations • The obligation to prevent ill-treatment by means of judicial deterrence

  9. Interrelation with other rights - Article 6 (fair trial) Harutyunyan v. Armenia Gafgen v. Germany - Article13 (effective remedies) 3+13=3 Afanasyev v. Ukraine Bati and Others v. Turkey - Civil claims for compensation –Article 13 Meneshevav. Russia

  10. Judicial deterrence • Proper application of legislation passed specifically to address ill-treatment - classification of acts of ill-treatment Valeriu and Nicolae Rosca v. Moldova - adequate punishment Valeriu and Nicolae Rosca v. Moldova Okkali v. Turkey

  11. Judicial Deterrence • Ill-treatment attributable to the State Valeriu and Nicolae Rosca v. Moldova Bekos and Koutropoulos v. Greece • Ill-treatment administered by private individuals 97 members of the Gldani Congregation of Jehovah’s Witnesses and 4 Others v. Georgia Opuz v. Turkey

  12. Judicial Deterrence • Ensure a sufficient deterrent effect to prevent such acts in general Okkali v. Turkey Valeriu and Nicolae Rosca v. Moldova • Deter particular perpetrators Opuz v. Turkey “Custodians of the laws designed to protect people's physical and psychological integrity” Okkali v. Turkey

More Related