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Chpater Two. The European Law of Torture
- University of Michigan Press
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chapter two The European Law of Torture I consider the European law of torture in this chapter in order to follow the analysis of international law in chapter 1 with a discussion of a multilateral body of human rights law that is arguably more in›uential and certainly more operational than the ICCPR or the Convention against Torture. In the course of describing doctrines that have developed in European case law, I hope also to continue showing the ways in which—despite its rhetoric of an absolute ban—law continues to accommodate and make room for state violence and abusive treatment. I leave issues involving the twentieth-century practices of speci‹c European countries for chapter 5. Every state in Europe is a party to the European Convention for the Protection of Human Rights and Fundamental Freedoms, known as the European Convention on Human Rights, of 1950. Among the “protections” provided by the convention is Article 3, which declares, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment ”—although the convention offers no de‹nition of the terms torture, inhuman, or degrading. Article 5 buttresses these protections by adding, “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty [except pursuant to a lawful arrest or detention].”1 The convention allows derogations “[i]n time of war or other public emergency threatening the life of the nation,” but the power to derogate does not encompass Article 3. In other words, the ban on torture and inhuman or degrading treatment—and the interpretation of that ban as applying to extradition and deportation cases—is absolute and nonderogable. The convention also requires member states to provide effective remedies for violations of its provisions, and it created the European Commission of Human Rights and the European Court of Human Rights to buttress this remedial structure. In 1998, the commission was abolished, and individuals can now bring claims directly to the court. Decisions of the court are not binding in the sense that, for example, countries must release people from jail in compliance with its judgments, but the court does have the power to award monetary compensation.2 44 The Council of Europe has also adopted the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment , which every European state has signed. This convention strengthens enforcement of Article 3 of the European Convention on Human Rights by creating the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The committee has the authority to conduct “visits . . . to any place within its jurisdiction where persons are deprived of their liberty by a public authority.” The committee produces reports of its visits, which are designed to publicize instances of ill-treatment and thereby aid those suffering from abuse and also deter future harm, but the Convention for the Prevention of Torture does not create substantive, enforceable individual rights.3 The General Jurisprudence of the European Court of Human Rights The European Convention on Human Rights is a treaty, not a constitution, but the existence of enforcement mechanisms, including the Court of Human Rights, gives it a meaningful presence in the law of European countries . More pointedly, there is a general sense among commentators that the convention “articulates . . . an ‘abstract constitutional identity’ prescribing limits, in terms of human rights, to the exercise of public power in European liberal democracies committed to the rule of law,” which suggests that the convention’s status is constitutive, even if not formally constitutional.4 The Court of Human Rights seems to share that view, despite its insistence on being“sensitive to the subsidiary nature of its role and . . . cautious in taking on the role of a ‹rst-instance tribunal of fact.” It also emphasizes that “the machinery of protection established by the Convention” requires “the national systems themselves [to] provide redress for breaches of its provisions,” with the court taking a “supervisory role subject to the principle of subsidiarity.”Nonetheless, the court has no dif‹culty characterizing its judgments in terms of foundational law for a post–World War II democratic Europe. In the Article 3 context, for example, the court has insisted that the ban on torture and inhuman or degrading treatment “enshrines one of the most fundamental values of a democratic society.”5 The constitutive aspect of the court’s role creates tension with the goal of ensuring basic human rights for people living in Europe...