Article 3 of the ECHR : relative interpretations of a universal right?

Abstract

Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, enshrining the prohibition of torture and inhuman or degrading treatment or punishment, was chosen as the subject of this article because, couched as it is in absolute terms and not being subject to derogations under the Convention, it is one of the Convention's most basic provisions. It has been asserted that the universal rules enshrined in Article 3 ECHR serve as a transcultural criterion for making moral and legal judgements about pain and suffering; they represent a part of the modern secular concept of what it means to be truly human. Yet we should not forget that they are given much of their operative content historically and culturally. In this regard, even the classical relativist argument that human rights are a product of Western thought may be misleading in so far as it could lead some to assume that there exists an absolute consensus as to the interpretation of human rights in "the West". The focus having been placed on analyzing Western and non-Western differences in interpretation, the fact may have been ignored, that even within Western legal discourse, human rights interpretation is far from homogenous. The judicial interpretation of Article 3 ECHR is one clear example of how, even within the context of what is often thought of as homogenous "European culture", divergences still arise in determining whether a particular act is in breach or otherwise of Article 3. Article 3 is very generic in its terminology, thus leaving it to the Convention's supervisory organs to determine its scope with reference to the facts of each case. Inevitably, this is a process which does not lend itself to a fully objective analysis. Research on the jurisprudence of the Strasbourg organs and on the works of authors in this area highlight the fact that the interpretation of the prohibition enshrined in Article 3 ECHR is far from settled as regards the determination of its constituent elements and the extent of its application.