scholarly journals The legal meaning of the terms "torture", "inhuman treatment or punishment", "degrading treatment or punishment" and their distinction in the decisions of the European commission of human rights and the European court of human rights

2021 ◽  
pp. 26-33
Author(s):  
Khrystyna YAMELSKA
Keyword(s):  
Human Rights ◽  
European Commission ◽  
Criminal Code ◽  
European Convention ◽  
European Court ◽  
Convention Against Torture ◽  
Degrading Treatment ◽  
The Individual ◽  
Jus Cogens ◽  
Legal Meaning

The paper reveals the legal meaning of the terms "torture", "inhuman treatment or punishment", "treatment or punishment that degrades human dignity". A distinction between these concepts is made on the examples of court decisions of European courts, taking into account the individual circumstances of each case. The genesis of the origin of the above concepts is investigated through a prism of the decisions of the European Commission of Human Rights and the European Court of Human Rights. The paper reveals the absolute nature of the "jus cogens" norm of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The author proposes to modernize the Ukrainian criminal legislation on the reception of the position of the European Court of Human Rights on the delimitation of these concepts. In contrast to the European convention regulation of ill-treatment, torture, inhuman or degrading treatment or punishment, the author notes that the Ukrainian legislation regulates this issue quite succinctly. The Article 127 of the Criminal Code of Ukraine provides a definition only of torture, which in essence coincides with the definition of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the position of the European Court of Human Rights. The paper notes that the practice of Ukrainian courts shows that a distinction (similar to that provided by the European Court of Human Rights) is not implemented.

scholarly journals Cо-perpetrators of torture: national and convention definition framework

2021 ◽  
Vol 1 (15) ◽  
pp. 91-110
Author(s):  
Yuliia Serhiivna Tavolzhanska ◽  
Iryna Anatoliivna Kopyova
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Criminal Code ◽  
Theoretical Modeling ◽  
Public Official ◽  
Criminal Offense ◽  
Human Rights Organizations ◽  
European Court ◽  
Convention Against Torture ◽  
Degrading Treatment

The article is prepared in continuation of development of author's dissertation researches. The paper reveals the peculiarities of objective and subjective features of cо-perpetration in torture (both on the basis of the provisions of the Criminal Code of Ukraine, and taking into account the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. When interpreting national criminal law norms in the light of convention provisions, the requirements of two-frame criminal law research are met. The authors' positions are supported by message from human rights organizations, decisions of the European Court of Human Rights, and theoretical modeling. The article contains the following conclusions. A co-perpetrator of torture may commit this criminal offense by his or her own actions or omissions, use another person as a “means” of committing a criminal offense, or delegate the commission of a criminal offense to another person. A co-perpetrator of torture may join in committing torture at any stage of the commission of this criminal offense. If, under the circumstances of complicity in torture, a public official or other person acting in an official capacity direct torture, he or she is the perpetrator (co-perpetrator) of the offense. If, in complicity in torture, a public official or other person acting in an official capacity creates the conditions for committing the offense, he or she should be recognized as the organizer, instigator or accomplice of the torture (depending on the role he or she has played). If, in complicity in torture, a public official or other person acting in an official capacity doesn't interfere of torture, he or she is the accomplice to torture. Not preventing torture should not be confused with the mental violence that can be used to torture. Article 1 of the 1984 Convention also covers cases of involvement in the torture of public official or other person acting in an official capacity.

scholarly journals Rethinking Suresh: Refoulement to Torture Under Canada’s Charter of Rights and Freedoms

2009 ◽  
pp. 125-160
Author(s):  
David Jenkins
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Supreme Court Of Canada ◽  
European Court ◽  
Canadian Law ◽  
The Supreme Court ◽  
Convention Against Torture ◽  
Protection Of Human Rights ◽  
United Nations Convention ◽  
Degrading Treatment

This article takes the European Court of Human Rights’ decision in Saadi v. Italy and uses it as an opportunity to re-examine the Canadian case of Suresh v. Canada (Minister of Citizenship and Immigration). The author argues that the national security exception in Suresh is no longer tenable in light of subsequent developments in both international and Canadian law. The author concludes that the Supreme Court of Canada should reject the Suresh exception at its first opportunity and adopt an approach to review of refoulement cases similar to that under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the European Convention for the Protection of Human Rights and Fundamental Freedoms.

ON THE ISSUE OF CRIMINALIZATION OF INHUMAN TREATMENT OR PUNISHMENT AND TREATMENT OR PUNISHMENT THAT DEGRADES HUMAN DIGNITY

2017 ◽  
Author(s):  
Khrystyna Yamelska ◽  
Keyword(s):  
Human Rights ◽  
Human Dignity ◽  
Criminal Code ◽  
United Nation Convention ◽  
European Court ◽  
Special Part ◽  
Convention Against Torture ◽  
Degrading Treatment ◽  
Objective Side ◽  
United Nation

The article identifies theoretical and practical determinants of criminalization of types of ill treatment. Articles 1,3,21 and 28 of the Constitution of Ukraine in their system interrelation are analyzed. These articles of the Constitution of Ukraine comply with international norms - the United Nation Convention against Torture and the practice of the European Court of Human Rights. The author notes about the need to improve Article 127 of the Criminal Code of Ukraine. The article propose the focus on the case law of the European Court of Human Rights, the UN Convention against Torture 1984, soft law acts of quasi-judicial institutions (Council of Europe, UN bodies), norms of special parts of the criminal codes of continental Europe, where there is a certain distinction and torture, inhuman and degrading treatment. The author distinguished between the concepts of "torture", "inhuman treatment or punishment", "treatment or punishment that degrades human dignity" through the prism of the decisions of the European Court of Human Rights in cases of violation of Article 3 of the Convention for the Protection of Fundamental Freedoms. Based on the analysis of Article 127 of the Criminal Code of Ukraine, the author identifies the following shortcomings: - the objective side does not contain "inaction" or "conscious inaction", - the absence of a special subject of the crime - an official, - the disadvantage of the subjective side - the lack of indirect intent and a special purpose that characterizes inhuman or degrading treatment. In this regard, the author to supplement a special part of the Criminal Code of Ukraine with a special provision of Article 127 for ill-treatment that has no signs of torture - a special purpose or direct intent, but causes serious physical or mental suffering to a person.

Is the assessment under Article 8 ECHR for migrants justifiable?

2021 ◽  
pp. 1023263X2110614
Author(s):  
Jennie Edlund ◽  
Václav Stehlík
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Case Law ◽  
European Convention ◽  
Individual Rights ◽  
Foreign Nationals ◽  
European Court ◽  
The Family ◽  
The Individual ◽  
The Way

The paper analyses the protection granted under Article 8 of the European Convention of Human Rights for different immigration cases. The way the European Court of Human Rights determines compliance with Article 8 for settled migrants differs from the way the Court determines compliance for foreign nationals seeking entry or requesting to regularize their irregular migration status. The paper argues that the European Court of Human Rights application of different principles when determining a States’ positive and negative obligations is contradicting its own case law. It also argues that the absence of justification grounds for the refusal of foreign nationals who are seeking entry lacks legitimacy. By treating all immigration cases under Article 8(2) the paper suggests that the differentiation between cases should be based on how a refusal of entry or an expulsion would impact on the family life. The paper also suggests that more consideration should be given towards the insiders interests when balancing the individual rights against the state's interests. These changes would lead to a more consistent and fair case law and generate a more convergent practice by the states which will increase the precedent value of the Court's judgements.

Bringing People Down

2021 ◽  
Vol 24 (3) ◽  
pp. 433-466
Author(s):  
John Vorhaus
Keyword(s):  
Health Care ◽  
Human Rights ◽  
Corporal Punishment ◽  
European Convention ◽  
Human Beings ◽  
European Court ◽  
The Status ◽  
Relational Concept ◽  
Degrading Treatment ◽  
As If

Under Article 3 of the European Convention on Human Rights, degrading treatment and punishment is absolutely prohibited. This paper examines the nature of and wrong inherent in treatment and punishment of this kind. Cases brought before the European Court of Human Rights (the Court) as amounting to degrading treatment and punishment under Article 3 include instances of interrogation, conditions of confinement, corporal punishment, strip searches, and a failure to provide adequate health care. The Court acknowledges the degradation inherent in imprisonment generally, and does not consider this to be in violation of Article 3, but it also identifies a threshold at which degradation is so severe as to render impermissible punishments that cross this threshold. I offer an account of the Court’s conception of impermissible degradation as a symbolic dignitary harm. The victims are treated as inferior, as if they do not possess the status owed to human beings, neither treated with dignity nor given the respect owed to dignity. Degradation is a relational concept: the victim is brought down in the eyes of others following treatment motivated by the intention to degrade, or treatment which has a degrading effect. This, so I will argue, is the best account of the concept of degradation as deployed by the Court when determining punishments as in violation of Article 3.

scholarly journals Khlaifia and Others v. Italy

2018 ◽  
Vol 112 (2) ◽  
pp. 274-280
Author(s):  
Jill I. Goldenziel
Keyword(s):  
Human Rights ◽  
Asylum Seekers ◽  
European Convention ◽  
Individual Rights ◽  
Detention Centers ◽  
European Court ◽  
Grand Chamber ◽  
The Individual ◽  
The Arab Spring ◽  
Domestic Law

In Khlaifia and Others v. Italy, the Grand Chamber of the European Court of Human Rights (Grand Chamber or Court) released a landmark opinion with broad implications for how states must respect the individual rights of migrants. In the judgment, issued on December 15, 2016, the Court held that Italy's treatment of migrants after the Arab Spring violated the requirement of the European Convention on Human Rights (ECHR) that migrants receive procedural guarantees that enable them to challenge their detention and expulsion. The Court also held that Italy's treatment of migrants in detention centers did not violate the ECHR's prohibition on cruel and inhuman treatment, in part due to the emergency circumstances involved. The Court further held that Italy's return of migrants to Tunisia did not violate the prohibition on collective expulsion in Article 4 of Protocol 4 of the ECHR. Enforcement of the judgment would require many European states to provide a clear basis in domestic law for the detention of migrants and asylum-seekers. Given the global diffusion of state practices involving migrants, and other states’ desires to restrict migration, this case has broad implications for delineating the obligations of states to migrants and the rights of migrants within receiving countries.

I respingimenti in mare di migranti alla luce della Convenzione europea dei diritti umani

2009 ◽  
pp. 591-607
Author(s):  
Alfredo Terrasi
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
North African ◽  
European Court ◽  
Degrading Treatment ◽  
Migration Flows ◽  
High Seas

- Italian authorities have recently undertaken a new policy to face migration flows from north african coasts. Since May, 6th 2009 Italian coastguard and financial police vessels have intercepted a large number of boats carrying migrants and returned them to Libya, in force of a readmission agreement between Italy and Libya. These operations, even if they take place on the high seas, have to comply with the European Convention for Human Rights, considering that the migrants fall under jurisdiction of Italian authorities within the meaning of art. 1 of the Convention. In particular, on the basis of the European Court of Human Rights case law, it can be argued that returning migrants to Libya, as long as they can be exposed to torture or inhuman and degrading treatment, is prohibited by art. 3. Moreover, art. 4 or the Fourth Protocol prohibits the collective expulsions of aliens. Notwithstanding, it's uncertain whether forcible return of aliens is consistent with the latter provision considering that the European Court requires that aliens ‘leave the country' in order to apply art. 4. In the end the praxis of Italian authorities is inconsistent with the Convention non-refoulement obligation deriving from art. 3.

1 The Court Over Sixty Years

2020 ◽  
Author(s):  
Nussberger Angelika
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Peace Treaty ◽  
Member States ◽  
Human Rights Protection ◽  
Rights Protection ◽  
European Court ◽  
Definition Of ◽  
The Individual ◽  
Violent Conflicts

This introductory chapter provides a background of the European Convention on Human Rights (ECHR), a multilateral treaty based on humanism and rule of law. Similar to the—albeit non-binding—Universal Declaration of Human Rights (UDHR), the ECHR is a document that marks a change in philosophy and gives a new definition of the responsibility of the State towards the individual. It fixes basic values in times of change and paves the way towards reconciliation in Europe. Unlike in a peace treaty, not all wartime enemies participate in its elaboration, but, one by one, all the European States accede to it, signalling their consent to the values fixed by a small community of States in the early 1950s. Seven decades later, forty-seven European States have ratified the Convention. Admittedly, the new start based on common values could not prevent the outbreak of violent conflicts between Member States. At the same time, the resurgence of anti-democratic tendencies could not be successfully banned in all Member States, but such tendencies could be stigmatized as grave human rights violations in binding judgments of the European Court of Human Rights (ECtHR). Thus, it is not surprising that the European model of human rights protection has been attractive and inspirational for other parts of the world. Nevertheless, there was and is a debate in some Member States to withdraw from the Convention as the Court’s jurisprudence is seen to be too intrusive on national sovereignty.

scholarly journals “Tatprovokation” – The Legal Issue of Entrapment in Germany and Possible Solutions

2019 ◽  
Vol 20 (4) ◽  
pp. 496-509
Author(s):  
Franziska Görlitz ◽  
Juliane Hubert ◽  
Jasmin Kucher ◽  
Moritz Scheffer ◽  
Patrick Wieser
Keyword(s):  
Human Rights ◽  
Police Officers ◽  
Federal Court ◽  
Legal Issue ◽  
European Convention ◽  
National Courts ◽  
European Court ◽  
Federal Court Of Justice ◽  
The Individual ◽  
Procedural Rights

AbstractIncitement by police officers is a well-known and often utilized police measure in the German investigation process. Yet, when it comes to prosecuting the perpetrators, a moral conflict arises. Should a State, bound by its own constitution and committed to protect its citizens, be allowed to incite or support a possible offender and afterwards judge on his or her wrongful actions? After Germany’s higher courts had to deal with multiple cases of entrapped perpetrators, there has been a strong debate about the admissibility, requirements, and consequences of entrapment within the German legal system. International and national courts as well as scholars represent different legal standpoints in this regard. In particular, the approaches of the European Court of Human Rights and the German Federal Court of Justice differ significantly in their results. As Germany ratified the European Convention on Human Rights and therefore has to adhere to the European Court of Human Rights’ ruling, an additional legal conflict arises. This article depicts and discusses the most relevant approaches to resolve this moral and legal conflict and satisfy both the need for effective prosecution and the procedural rights of the individual person subject to the act of entrapment. Additionally, recent legislative ambitions are presented.

Cestaro v. Italy: The European Court of Human Rights on the Duty to Criminalise Torture and Italy’s Structural Problem

2017 ◽  
Vol 17 (3) ◽  
pp. 567-585
Author(s):  
Domenico Carolei
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Code ◽  
European Convention ◽  
Structural Problem ◽  
European Court ◽  
The One ◽  
Definition Of ◽  
Normative Content ◽  
Italian Legislation

In April 2015, the European Court of Human Rights (ECtHR) ruled that Italian legislation is inadequate to criminalise acts of torture (Cestaro v. Italy). Following the ECtHR’s decision, the Italian Parliament approved the bill A.C. 2168 which aimed to introduce the crime of torture (Article 613-bis) in the Italian Criminal Code. The bill does not seem to comply with the definition of torture provided by international law, and also neglects the legislative guidelines outlined by the ECtHR in Cestaro v. Italy. The purpose of this article is twofold. On the one hand, it will assess the ECtHR’s decision focusing on Italy’s structural problem and its duty to enact and enforce efficient criminal provisions under Article 3 of the European Convention. On the other hand, it will analyse the normative content of Article 613-bis in order to highlight its weaknesses and propose, on each of them, suggestions for amendment.

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