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

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

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

Scope of the Prohibition of Ill-treatment

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

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

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) 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 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 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 Moldovan v. Romania Humiliating situation in the court-room can amount to degrading treatment Humiliating situation in the court-room can amount to degrading treatment Sarban v. Moldova; Ramishvili and Kokhreidze v. Georgia Sarban v. Moldova; Ramishvili and Kokhreidze v. Georgia

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

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

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

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

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