Obligations under Article
3 of the ECHR
Role of Judiciary
Ankara / 15 April 2010
E. Svanidze
Article 3
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“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
Definitional Indications
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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
Scope of the Prohibition of
Ill-treatment
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Consequences of malfunctioning
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Malfunctioning of judiciary = procedural
violations under Article 3
(To be discussed)
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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
Substantial violations
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Inaction in cases of disappearances in lifethreatening 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 (???)
Substantial violations
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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
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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
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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
Menesheva v. Russia
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
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Judicial Deterrence
Ill-treatment attributable to the State
Valeriu and Nicolae Rosca v. Moldova
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Bekos and Koutropoulos v. Greece
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Ill-treatment administered by private
individuals
97 members of the Gldani Congregation of
Jehovah’s Witnesses and 4 Others v.
Georgia
Opuz v. Turkey
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
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