The Prohibition of Torture and its Implications in the European Legal Sphere (original) (raw)
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The complexity indicated in the title of this paper does not refer purely to the internal structure of the prohibition of torture, but also to the obligations of States party to the ECHR that are tied to this prohibition. This is because it is not restricted to negative obligations understood as a duty on the part of the State to abstain from certain interferences by the public authorities and which was the fundamental purpose of the ECHR and as such was entered explicit into the norma-tive structure of the freedoms and rights defined in the ECHR , but embraces – firstly – positive obligations which result in a command to take measures for the purpose of ensuring freedom from the said torture for persons under the jurisdiction of States that are party to the ECHR, both in horizontal and vertical relations, and – secondly – a procedural obligations which, year by year, is achieving an ever more autonomous position among the types of commitment resulting from the ECHR for States and the essence of which is the effective clarification of circumstances in the violation of the prohibition of torture.
2018
The present dissertation elucidates the principle of absoluteness and revisits the question as to whether the prohibition of torture or inhuman or degrading treatment or punishment as enshrined Article 3 of the European Convention on Human Rights is truly absolute or not. It does so from both a theoretical and practical point of view. While setting up the theoretical framework in which it defines the underlying principles, it has regard the case-law of the European Court of Human Rights in this complex and interesting field of law. This dissertation demonstrates that, while the Court is a staunch advocate of the so-called "principle of absoluteness", some flaws can be detected in its jurisprudence on Article 3 of the Convention. Indeed, scholarship shows that the Court uses elements of legitimacy, proportionality and balancing while adjudicating on this absolute prohibition. In addition, both the conundrum of conflicts of rights or obligations under this provision and the preconceived legitimacy inherent in the concepts of "punishment" and the "use of force" leave the Court with some challenges. It will be demonstrated that the threshold of application, the minimum threshold of severity and the process of contextualisation are of utmost importance in order to provide for an answer to the question whether Article 3 ECHR is truly absolute. In the end, it appears that this question is one of definition and that the Court should start to devote some of its time to define the "principle of absoluteness" in the context of the absolute prohibition of torture or inhuman or degrading treatment or punishment.
Academic Journal of Interdisciplinary Studies, 2016
One of the main principles of the rule of law and in the core of a democracy itself are the human rights and fundamental freedoms. These freedoms, for the importance that represent in the democratic socities, are reflected in many national and international important documents. The legal mechanism that foresee the guarantee and the respect of the human rights and fundamental freedoms, is the European Court of Human Rights. In the heart of the human rights stand the right to live, free from torture, free from inhuman or humiliating tretament or punishment. Usually the human rights violations occur aganist people who are arrested, under custody, the conditions where they serve their sentence, extradiction, deportation, house and property destruction, forced displacement and discrimination. These rights are included in article 3 of the European Convention on Human Rights. It is seen that the Convention doesn't give an expressed definition what torture or inhuman treatment means, but just gives a rule of the absolut prohibition of the toruture or inhuman treatment. This stand does not constitute a forgetfulness or lapse of the Convention. The reason of this stand of the Convention is based on the fact, that intepretation of the torture or inhuman treatment should be a dinamic interpretation. The definiton whether we have to do with torture or inhuman treatment should be done based on the conditions, circumstances and evolution of these terms in time. Also the Convention foresees control instruments for the respect of human rights, from each state member.
Torture is one of the most brutal and horrendous human right violation, constituting direct attack on the core of human dignity. Though a number of international legal frameworks incorporate the right against torture, it is the convention against torture which provides the most prominent definition of torture. So this paper dedicated to explore the definition of torture in light of the practices and jurisprudence of the international bodies. Accordingly, there are four essential elements of the definition torture, which play a significant role in qualifying an "act" or "conduct" as torture. Apart from this, the paper has critically assessed the state obligation that flows from the definition provision. It has also discussed that the definition of torture is in continual process of evolution. In general, it is made clear that article one plays a pivotal in understanding the whole notion of the concept of torture, and implicating the state obligation with regard to torture.
Prohibition of torture in the framework of Inter-American system for the protection of human rights
Slovak Yearbook of International Law, 2022
Prohibition of torture as a right is part of the ius cogens system of international law. The prohibition as such is derived from the necessity of maintaining the physical and mental integrity of person, which is embedded in the humanity itself. Therefore, the prohibition of torture is not just an absolute and un-derogable, but also a fundamental and natural law, which has to be collectively guaranteed. Many regional human rights systems explicitly protect the values of this right. The Inter-American system for the protection of human rights is not an exception in this matter. The author follows theoretical perspectives of the prohibition of torture and later on analyzes some examples of the case-law, which deals with the issues related to acts of torture or other degrading or inhuman punishment.