Belgrade Law FacultyMaster-Course

Human Rights and Non-Discrimination

Personal Integrity

Prof. Thomas Fleiner

Introduction

What is human dignity?

What Obligations and Rights?

What is the content of the right to lifeIncluding the obligation for preventivemeasures?Prohibition of Torture and Slavery in Convention:

Prohibition of inhuman treatment

Human Dignity

Depends on the view of Human Nature

Homo Sapiens: able to evaluate what is good and bad for one self and accor-dingly plan life, decisions and actions(Kant)Social and political capacity

Emotions

Religious believes

Capacity to communicate (language), learn and adapt

EC 1: Human dignity is inviolable. it must be respected and protected.

General Obligations

EHRC 1:Obligation to secure to everyone the Rights and freedoms of section 1

EHRC 13:Right to effective remedy

EHRC 17:Prohibition of abuse Rights

EHRC 41Just satisfaction to the injured party

EHRC 46Binding force and execution by theCommittee of ministers

Right that state abstainsObligation to abstain Obligation to respect

Right that states protectObligation to protect

Right that states performObligation to perform to fulfil

Rights

Obligations

Substantive e.g. Obligation of the stateTo prevent gas explosions in a slum Quarter (Oneryldiz v. Turkey ECHR 2004-XII )

Procedural: Obligation of the state to makeIndependent and efficient investigation Nachova v. Bulgaria, ECHR 2005: Case Shooting by police of two Roma conscripts trying to escape

Obligations with regard to personalIntegrity

EHRC 2 Right to life:

1 Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sen-tence of a court following his conviction of a crime for which this penalty is provided by law.

Right to life

Nachova v. Bulgaria a police officer shoots twoRoma conscripts allegedly trying to escape

93.  Article 2, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention and enshri-nes one of the basic values of the democratic societies making up the Council of Europe. The Court must subject allegations of a breach of this provision to the most careful scrutiny. In cases concerning the use of force by State agents, it must take into consideration not only the actions of the agents of the State who actually administered the force but also all the surrounding cir-cumstances, including such matters as the relevant legal or re-gulatory framework in place and the planning and control of the actions under examination

110.  The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force

ÖNERYILDIZ v. TURKEY November 200489.  The positive obligation to take all appropriate steps to safeguard life for the purposes of Article 2 (see paragraph 71 above) entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life

Preventive measuresGONGADZE v. UKRAINE 2006 164.  The Court reiterates that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. This involves a primary duty on the State to se-cure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the per-son, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. It also extends, in appropriate circumstances, to a positive obli-gation on the authorities to take preventive operational measur-es to protect an individual or individuals whose lives are at risk from the criminal acts of another individual.

EHRC 3 Prohibition of Torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

EHRC 4 Prohibition of Slavery and forcedlabour

1 No one shall be held in slavery or servitude.2 No one shall be required to perform forced or compulsory labour.3…

No derogation in times of emergency of2, 3 and 4 par. 1

Prohibition of Torture and Slavery

Canon Law replacing the middle ageOrdeal Procedure for severe crimes:Either two testimonials or a confes-Sion thus torture became routine inEurope in order to compel confessionCesare Beccaria Treatise on Crime andPunishment 1766Abolished between 1734 an 1788 inSweden, Denmark, France, HabsburgRussia and Spain early 19th cent.

History of Torture

But USA Guantanamo, Abu Ghraib

Totalitarian Regimes 20th century

Hooded Men in Britain of 1971Hooding, Noise bombardment, food de-previation, sleep depriviation, forcedWall standing 1972: Lord Parker:Against terrorists morally acceptable

EHRC: Ireland v. United Kingdom 1978Commission: Torture Court: inhuman treatment Art. 3 of the Convention (no. 167)

History of Cases of the CourtInhuman Treatment and Torture

Selmouni v. France: Burden of proof87.  The Court considers that where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention 105 Under these circumstances, the Court is satisfied that the physical and mental violence, considered as a whole, committed against the applicant’s person caused “severe” pain and suffering and was particularly serious and cruel. Such conduct must be regarded as acts of torture for the purposes of Article 3 of the Convention.

Justificationsof Torture?

The ticking bomb justificationIn theory but not in practice

Torture lite as justificationWhere to stop?

Detention and coerced confessionMiranda

False and unreliable information

107107  However, it is necessary to underline that, having re-gard to the provision of Article 3 the prohibition on ill-treatment of a person applies irrespective of the conduct of the victim or the motivation of the authorities. Torture, inhuman or degrading treatment cannot be inflicted even in circumstances where the life of an individual is at risk. Gäfgen v. Germany 2010

Torture and Death Penalty

Soering v. United Kingdom July 1989167.) In order for a punishment or treatment associated with it to be 'inhuman' or 'degrading,' the suffering or humiliation involved must in any event go beyond that inevitable elementof suffering or humiliation connected with a given form of legitimate punishment. (See TYRER V UNITEDKINGDOM, loc cit.) In this connection, account is to be taken not only of the physical pain experienced but also, where there is a considerable delay before execution of the punishment, of the sentenced person's mental anguish ofanticipating the violence he is to have inflicted on him.

However wellintentioned and even potentially beneficial is the provisionof the complex of postsentence procedures in Virginia, the consequence is that the condemned prisoner has toendure for many years the conditions on death row and the anguish and mounting tension of living in the everpresentshadow of death.

Prohibition of inhuman or degradingtreatment or punishment

A. v. United Kingdom September 1998 B. 22.  It remains to be determined whether the State should be held responsible, under Article 3, for the beating of the applicant by his stepfather.The Court considers that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals (see, mutatis mutandis, the H.L.R. v. France judgment of 29 April 1997, Reports 1997-III, p. 758, § 40). Children and other vulnerable individuals, in par-ticular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity

Stepfather beats his child with a garden cane