Relatively Absolute? The Undermining of Article 3 ECHR in Ahmad v UK

The recent decision of the European Court of Human Rights in Ahmad v UK dangerously undermines the well-established case law of the Court on counter-terrorism and non-refoulement towards torture, inhuman and degrading treatment or punishment. Although ostensibly rejecting the ‘relativist’ approach to Article 3 ECHR adopted by the House of Lords in Wellington v Secretary of State for the Home Department, the Court appeared to accept that what is a breach of Article 3 in a domestic context may not be a breach in an extradition or expulsion context. This statement is difficult to reconcile with the jurisprudence constante of the Court in the last fifteen years, according to which Article 3 ECHR is an absolute right in all its applications, including non-refoulement, regardless of who the potential victim of torture, inhuman or degrading treatment is, what she may have done, or where the treatment at issue would occur.

Crime, Punishment and Article 3 ECHR: Puzzles and Prospects of Applying an Absolute Right in a Penal Context

Article 3 of the European Convention on Human Rights (ECHR), which provides that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’, is considered to enshrine an absolute right. Yet it contains an under-explored element: inhuman and degrading punishment. While torture has been the subject of extensive academic commentary, and inhuman and degrading treatment has been examined to some extent, the prohibition of inhuman and degrading punishment has not been explored in significant depth, in spite of its considerable potential to alter the penal landscape.

This paper elucidates the key doctrinal elements of inhuman and degrading punishment ‘and treatment associated with it’, in the words of the European Court of Human Rights (ECtHR). It addresses a number of ‘puzzles’ or problems which arise in applying the absolute right enshrined in Article 3 of the ECHR to sentencing and imprisonment, clarifies ECtHR doctrine and highlights some of its key implications. Bringing a theoretically informed understanding to bear on the application of Article 3 of the ECHR in a penal context, the paper provides clarity and coherence to a complex and crucial intersection between human rights and penology.

Bouyid v Belgium: The “minimum level of severity” and Human Dignity's Role in Article 3 ECHR

The Grand Chamber of the European Court of Human Rights recently delivered an important judgment on Article 3 ECHR in the case of Bouyid v Belgium. In Bouyid, the Grand Chamber was called upon to consider whether slaps inflicted on a minor and an adult in police custody were in breach of Article 3 ECHR, which provides that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’. Overruling the Chamber judgment in the case, the Grand Chamber ruled by 14 votes to 3 that there had been a substantive violation of Article 3 in that the applicants had been subjected to degrading treatment by members of the Belgian police; it found that there had been a breach of the investigative duty under Article 3 also. In this comment, I focus on the fundamental basis of disagreement between the majority of the Grand Chamber and those who found themselves in dissent, on the question of whether there had been a substantive breach of Article 3. The crux of the disagreement lay in the understanding and application of the test of ‘minimum level of severity’, which the ECtHR has established as decisive of whether a particular form of ill-treatment crosses the Article 3 threshold, seen also in light of Article 3’s absolute character, which makes it non-displaceable – that is, immune to trade-offs of the type applicable in relation to qualified rights such as privacy and freedom of expression. I consider the way the majority of the Grand Chamber unpacked and applied the concept of dignity – or ‘human dignity’ – towards finding a substantive breach of Article 3, and briefly distil some of the principles underpinning the understanding of human dignity emerging in the Court’s analysis.

Article 6 ECHR, Civil Rights and the Enduring Role of the Common Law

This article examines the role that the common law has played in Human Rights Act 1998 case law on the protection of 'civil rights' within the meaning of Article 6 ECHR. Focusing on Article 6 ECHR's 'disclosure' and 'full jurisdiction' requirements, it highlights an increasingly nuanced relationship between the ECHR and common law in cases under and outside the Human Rights Act 1998. Although the general pattern within the case law has been one of domestic court fidelity to the ECHR - something that is wholly consistent with section 2 of the Human Rights Act 1998 - the article notes areas in which the courts have been reluctant to adapt common law principles, as well as instances of common law protections exceeding those available under Article 6 ECHR. The article suggests that such lines of reasoning reveal a robustness within the common law that brings a multi-dimensional quality to the Human Rights Act 1998. It also suggests that such robustness can be analysed with reference to 'common law constitutionalism' and a corresponding imagery of 'dialogue' between the domestic courts and European Court of Human Rights.

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.

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.

The International Protection of Refugees and Asylum Seekers: the Role of Article 3 of the European Convention on Human Rights

This book presents a comprehensive assessment of regional responses to the crisis in the asylum/refugee system and critically examines how different regions tackle the problem. The chapters consider the fundamental challenges which undermine an effective asylum process as well as regional difficulties with the various circumstances surrounding asylum seekers. With contributions on Africa, Europe, Latin America, South Asia and the Middle East, and the Pacific, the collection strives to appreciate what informs each region’s approach to the asylum process and asks if there are issues common to every region and if regions can learn from one another. The book seeks an understanding of the existing legal regime for the protection of asylum seekers and how regional institutions such as human rights commissions and regional courts enforce and adjudicate the law.

Non-Refoulement between 'Common Article 1' and 'Common Article 3'

This article considers whether, in the context of armed conflicts, certain non-refoulement obligations of non-belligerent States can be derived from the 1949 Geneva Conventions. According to Common Article 1 (CA1) thereof, all High Contracting Parties (HCPs) undertake to ‘respect and to ensure respect’ for the four conventions ‘in all circumstances’. It is contended that CA1 applies both in international armed conflicts (IACs) and in non-international armed conflicts (NIACs). In turn, it is suggested that Common Article 3 (CA3) which regulates conduct in NIACs serves as a ‘minimum yardstick’ also applicable in IACs. It is widely (though not uniformly) acknowledged that the undertaking to ‘ensure respect’ in a given armed conflict extends to HCPs that are not parties to it; nevertheless, the precise scope of this undertaking is subject to scholarly debate. This article concerns situations where, in the course of an (international or non-international) armed conflict, persons ’taking no active part in hostilities’ flee from States where violations of CA3 are (likely to be) occurring to a non-belligerent State. Based on the undertaking in CA1, the central claim of this article is that, as long as risk of exposure to these violations persists, persons should not be refouled notwithstanding possible assessment of whether they qualify as refugees based on the 1951 Refugee Convention definition, or could be eligible for complementary or subsidiary forms of protection that are regulated in regional arrangements. The analysis does not affect the explicit protection from refoulement that the Fourth Geneva Convention accords to ‘protected persons’ (as defined in Article 4 thereof). It is submitted that CA1 should be read in tandem with other obligations of non-belligerent States under the 1949 Geneva Conventions. Most pertinently, all HCPs are required to take specific measures to repress ‘grave breaches’ and to take measures necessary for the suppression of all acts contrary to the 1949 Geneva Conventions other than the grave breaches. A HCP that is capable of protecting displaced persons from exposure to risks of violations of CA3 and nonetheless refoules them to face such risks is arguably failing to take lawful measures at its disposal in order to suppress acts contrary to the conventions and, consequently, fails to ‘ensure respect’ for the conventions. KEYWORDS Non-refoulement; International Armed Conflict; Non-International Armed Conflict; Common Article 1; Common Article 3