Belgrade Law Faculty
Master-Course
Human Rights and Non-Discrimination
Personal Integrity
Prof. Thomas Fleiner
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
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 accordingly plan life, decisions and actions
(Kant)
Social and political capacity
Emotions
Religious believes
Capacity to communicate (language),
learn and adapt
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
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
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
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 sentence of a court following his conviction of
a crime for which this penalty is provided
by law.
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 enshrines 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 circumstances, including such matters as the relevant legal or regulatory framework in place and the planning and control of
the actions under examination
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
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 secure the right to life by putting in place effective criminal-law
provisions to deter the commission of offences against the person, 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 obligation on the authorities to take preventive operational measures 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
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
History of Torture
Canon Law replacing the middle age
Ordeal
Procedure for severe crimes:
Either two testimonials or a confesSion 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
History of Cases of the Court
Inhuman Treatment and Torture
Hooded Men in Britain of 1971
Hooding, Noise bombardment, food depreviation, 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)
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.
Justifications
of Torture?
The ticking bomb justification
In theory but not in practice
107107 However, it is necessary to underline that, having regard 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
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
Prohibition of inhuman or degrading
treatment or punishment
Stepfather beats his child with a garden cane
A. v. United Kingdom September 1998
B. 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 particular, are entitled to State protection, in the form of effective
deterrence, against such serious breaches of personal integrity