The disposals’ characterisation of art.3 (The European Convention on Human Rights )
In the most briefly wording, art.3 of the Convention disposes that nobody can be tortured, nor to any punishments or to inhuman , degrading treatments. The formulation is both precise and imperative. This disposal has a main goal the protection of the human person’s moral and physical integrity , it’s dignity. The interdiction imposed by art.3 is absolute; there is no derogation of the Convention allowed. As a consequence, the right appears as intangible. The right of not being liable to treatments opposite to human dignity is the inalienable attribute of the human person, based on the central values of “ common heritage” of Council of Europe’s member states, stated in the Preamble of the Convention.[1]
The European Court has decided in the meaning that the art.3 of the Convention states one of the fundamental values of democratic societies. Even in the most difficult circumstances , as the fight against terrorism and organized crime, the Convention totally forbids torture and punishments or inhumane, degrading treatments. Art.3 doesn’t provide restrictions, thing that is contrary to the majority of the normative disposals from the Convention and from the Protocols no. 1 and no. 4 and , as it is stated in the art.15 paragraph 2 of the Convention, doesn’t involve any derogation , not even in the situation when a public danger threatens the nation’s life.
The interdiction of torture’s application and the interdiction of punishments or inhuman , degrading treatments is also absolute related to the behaviour of the person to whom these would be applied to; as a consequence , the crime’s nature that the complainant would be charged with has no excuse in the meaning of art. 3 of the Convention.
The consequences of the interdiction’s absolute character
The absolute character constituted by this interdiction has important practical consequences , especially regarding the obligations devolved upon the contracted-party states on the basis of its disposals, as the lack of pertinence of the eventual reprehensible behaviour of the victim , which might fall under the power of the most rough criminal sanctions.
As a general rule, on the base of art.3 , the states have assumed in the Convention a real objective responsibility regarding their agents’ behaviour; the state’s authorities couldn’t claim in their defence the – real or hypothetical – imposibility to ensure the observance of the interdiction, which was imposed by the text.
The absolute character of this interdiction has other consequeces too. First of all, the ex- Commission has decided in the meaning that the states don’t have the alternative of respecting the obligation imposed in art.3 and giving a recoupment to the victim of an eventual contravention of its disposals, even though in case of , for example, bad treatments , a damage action represents , as principle , a legally way which must be used in order to exploit the internal legally ways, in the Convention’s meaning.
Second of all, the right of not being tortured or the subject of any inhuman, degrading punishments or treatments , prohibits the states to invoke , in this field , the Proportionality Principle[2]. This principle has been created by the jurisprudence of the Convention’s organs and has been related to the liberty and rights which are protected by the Convention, and which can have authorized limitations regarding the rights that are governed by the Convention in determined circumstances.
This principle has given the Court the possibility to examine , after it eventually noticed a unwarrantable interference of a local authority in the exercise of the authorized right, “ if this was necessary in a democratic society” and if it was “proportional” with the vested scope which was the result of its happening[3].
It is also true that , in a constant jurisprudence , the organs of the Convention have decided that , to be in the area described by the art.3 , the determined “treatment” applied to the victim must go over a certain “gravity level”. In other matter of speech , in all the cases examined under this article, there always must be determined the point from which one person’s sufferance cannot be considered a simple “ brutality” , as in the situation when , for example, a person might not agree with his recording, but that it is that serious as to be qualified as inhuman or degrading treatment or even torture[4].
Third of all, the absolute character of the right in discussion authorises the European Court to take notice ex oficio with the examination of its own contravention , even in the hypothesis that the victim has not invoked it , as a distinct claim in its complaint, but when the facts impose that. Therefore, in a case in which the father of a pupil has upheld that the application of physical punishments as disciplinary measures in a Scotish school represents an entrenchment of the disposals of art.2 of the Convention’s Protocole no. 1 , which protects the right to education according to the parents’ religious and phylosofical beliefs , the Court has considered, ex oficio, that it is necessary to relate the facts to the disposals of art. 3 too, as being an “inhuman” treatment .
On the general plan , regarding the interdiction imposed by this text , it must be take in consideration the assignation made by the ex-Commission meaning that the right granted by these disposals cannot be invoked by the legal entities. So , it decided that the right of not being tortured or the subject of an inhuman , degrading treatment or punishment it is not , in its nature, capable of being exerted by a private law association.
[1] Selejan Gutan B., The European protection of the human rights , Ed. All Beck , Bucharest , 2004 p. 89
[2]Constantin Barsan The European Convention on Human Rights . Comments on articles . Volume I .Rights and Freedoms , Ed. All Beck , Bucharest , 2005 , p. 200
[3] Idem, p. 201
[4] Ibidem
In the most briefly wording, art.3 of the Convention disposes that nobody can be tortured, nor to any punishments or to inhuman , degrading treatments. The formulation is both precise and imperative. This disposal has a main goal the protection of the human person’s moral and physical integrity , it’s dignity. The interdiction imposed by art.3 is absolute; there is no derogation of the Convention allowed. As a consequence, the right appears as intangible. The right of not being liable to treatments opposite to human dignity is the inalienable attribute of the human person, based on the central values of “ common heritage” of Council of Europe’s member states, stated in the Preamble of the Convention.[1]
The European Court has decided in the meaning that the art.3 of the Convention states one of the fundamental values of democratic societies. Even in the most difficult circumstances , as the fight against terrorism and organized crime, the Convention totally forbids torture and punishments or inhumane, degrading treatments. Art.3 doesn’t provide restrictions, thing that is contrary to the majority of the normative disposals from the Convention and from the Protocols no. 1 and no. 4 and , as it is stated in the art.15 paragraph 2 of the Convention, doesn’t involve any derogation , not even in the situation when a public danger threatens the nation’s life.
The interdiction of torture’s application and the interdiction of punishments or inhuman , degrading treatments is also absolute related to the behaviour of the person to whom these would be applied to; as a consequence , the crime’s nature that the complainant would be charged with has no excuse in the meaning of art. 3 of the Convention.
The consequences of the interdiction’s absolute character
The absolute character constituted by this interdiction has important practical consequences , especially regarding the obligations devolved upon the contracted-party states on the basis of its disposals, as the lack of pertinence of the eventual reprehensible behaviour of the victim , which might fall under the power of the most rough criminal sanctions.
As a general rule, on the base of art.3 , the states have assumed in the Convention a real objective responsibility regarding their agents’ behaviour; the state’s authorities couldn’t claim in their defence the – real or hypothetical – imposibility to ensure the observance of the interdiction, which was imposed by the text.
The absolute character of this interdiction has other consequeces too. First of all, the ex- Commission has decided in the meaning that the states don’t have the alternative of respecting the obligation imposed in art.3 and giving a recoupment to the victim of an eventual contravention of its disposals, even though in case of , for example, bad treatments , a damage action represents , as principle , a legally way which must be used in order to exploit the internal legally ways, in the Convention’s meaning.
Second of all, the right of not being tortured or the subject of any inhuman, degrading punishments or treatments , prohibits the states to invoke , in this field , the Proportionality Principle[2]. This principle has been created by the jurisprudence of the Convention’s organs and has been related to the liberty and rights which are protected by the Convention, and which can have authorized limitations regarding the rights that are governed by the Convention in determined circumstances.
This principle has given the Court the possibility to examine , after it eventually noticed a unwarrantable interference of a local authority in the exercise of the authorized right, “ if this was necessary in a democratic society” and if it was “proportional” with the vested scope which was the result of its happening[3].
It is also true that , in a constant jurisprudence , the organs of the Convention have decided that , to be in the area described by the art.3 , the determined “treatment” applied to the victim must go over a certain “gravity level”. In other matter of speech , in all the cases examined under this article, there always must be determined the point from which one person’s sufferance cannot be considered a simple “ brutality” , as in the situation when , for example, a person might not agree with his recording, but that it is that serious as to be qualified as inhuman or degrading treatment or even torture[4].
Third of all, the absolute character of the right in discussion authorises the European Court to take notice ex oficio with the examination of its own contravention , even in the hypothesis that the victim has not invoked it , as a distinct claim in its complaint, but when the facts impose that. Therefore, in a case in which the father of a pupil has upheld that the application of physical punishments as disciplinary measures in a Scotish school represents an entrenchment of the disposals of art.2 of the Convention’s Protocole no. 1 , which protects the right to education according to the parents’ religious and phylosofical beliefs , the Court has considered, ex oficio, that it is necessary to relate the facts to the disposals of art. 3 too, as being an “inhuman” treatment .
On the general plan , regarding the interdiction imposed by this text , it must be take in consideration the assignation made by the ex-Commission meaning that the right granted by these disposals cannot be invoked by the legal entities. So , it decided that the right of not being tortured or the subject of an inhuman , degrading treatment or punishment it is not , in its nature, capable of being exerted by a private law association.
[1] Selejan Gutan B., The European protection of the human rights , Ed. All Beck , Bucharest , 2004 p. 89
[2]Constantin Barsan The European Convention on Human Rights . Comments on articles . Volume I .Rights and Freedoms , Ed. All Beck , Bucharest , 2005 , p. 200
[3] Idem, p. 201
[4] Ibidem
