The prohibition of torture and inhuman or degrading treatment or punishment : an appraisal in the light of Article 3 of the European Convention on Human Rights

Abstract

Article 3 of the European Convention on Human Rights, enshrining the prohibition of torture and inhuman or degrading treatment or punishment, has been chosen as the subject of this thesis 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. The Strasbourg organs have in fact remarked that it 'enshrines one of the fundamental values of the democratic societies making up the Council of Europe'. Research on the jurisprudence of the Strasbourg organs and on the works of authors, as well as on the attempts in the international sphere to eradicate the practice of torture and other ill-treatment, has shown that the fight against this abhorrent violation of human rights is far from having been won. The considerable amount of case-law of the Strasbourg organs dealing with this subject also stands as witness to the fact that the old continent is far from being immune to such abuses. The main thrust of this thesis is not only concerned with defining the concepts enshrined in Article 3 and analysing the contexts in which it has been applied, but perhaps most importantly, it seeks to provide insight into the development and evolution which has occurred in the above areas as a result of the dynamic approach adopted by the Strasbourg organs in interpreting Article 3. For this purpose, the analysis of judgments and decisions, particularly the most recent pronouncements of the Commission and Court on the subject, constitute an aspect of fundamental importance in this study. Likewise, the debates, controversies and discussions surrounding some of the most important judgments delivered by the Court provide a strong indication that the apparent simplicity of the concepts enshrined in Article 3 mask the complexity inherent in interpreting them. This study is rendered complete by an analysis of local jurisprudence on the subject and the approach taken by the Maltese judiciary in interpreting both Article 3 of the Convention as incorporated into Maltese law through Act XIV of 1987, as well as its counterpart in Article 36 of the Constitution of Malta.