What is an absolute right? Deciphering absoluteness in the context of Article 3 of the European Convention on Human Rights

The answer to the question of what it means to say that a right is absolute is often taken for granted, yet still sparks doubt and scepticism. This article investigates absoluteness further, bringing rights theory and the judicial approach on an absolute right together. A theoretical framework is set up that addresses two distinct but potentially related parameters of investigation: the first is what I have labelled the ‘applicability’ criterion, which looks at whether and when the applicability of the standard referred to as absolute can be displaced, in other words whether other considerations can justify its infringement; the second parameter, which I have labelled the ‘specification’ criterion, explores the degree to which and bases on which the content of the standard characterised as absolute is specified. This theoretical framework is then used to assess key principles and issues that arise in the Strasbourg Court’s approach to Article 3. It is suggested that this analysis allows us to explore both the distinction and the interplay between the two parameters in the judicial interpretation of the right and that appreciating the significance of this is fundamental to the understanding of and discourse on the concept of an absolute right.

Ancestors of Governmentality: Accounting and Pastoral Power in the 15th Century

Foucault identified the roots of governmentality in religious beliefs and religious history with its genealogical core the equivalent of pastoral power, the art of governing people by relying on a dualistic logic; individualization and totalization. This technology of power arose and matured within the Roman Catholic Church and provided a model for many states in the achievement and exercise of power. Informed by the work of Foucault on pastoral power the present work examines the genealogical core of governmentality in the context of the Roman Catholic Church at a time of great crisis in the 15th century when the Roman Catholic Church was undergoing reform instituted by Pope Eugenius IV (1431-1447). The contributions of accounting to pastoral power are shown in this study to have been pivotal in restoring the Church’s standing and influence. Accounting was one of the technologies that allowed the bishops to control both the diocese as a whole and each priest, to subjugate the priests to the bishops’ authority and, thereby, to govern the diocese through a never-ending extraction of truth.

Güler and Öngel v Turkey: Article 3 of the European Convention on Human Rights and Strasbourg’s discourse on the justified use of force

This article discusses the discourse on the justified use of force in the Strasbourg Court’s analysis of Article 3. With particular focus on the judgment in Güler and Öngel v Turkey, a case concerning the use of force by State agents against demonstrators, it addresses the question of the implications of such discourse, found in this and other cases, on the absolute nature of Article 3. It offers a perspective which suggests that the discourse on the justified use of force can be reconciled with Article 3’s absolute nature.

Inhuman and Degrading Punishment, Dignity, and the Limits of Retribution

The recent judgment of the Grand Chamber of the European Court of Human Rights (ECtHR) in Vinter and others v United Kingdom provides a much needed clarification of the parameters of the prohibition on inhuman and degrading punishment under Article 3 of the European Convention on Human Rights (ECHR) as it applies to whole life orders of imprisonment under mandatory life sentences – essentially, life imprisonment without parole. The Grand Chamber’s judgment refines Strasbourg doctrine on life imprisonment and the prospect of release and illuminates key principles concerning inhuman and degrading punishment under Article 3 of the ECHR. This article considers the judgment’s profound significance in relation to both human rights and penology.