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Article 3 | Anti-torture and inhumane treatment

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Art.3 European Convention on Human Rights provides as follows:

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

This provision corresponds with Art.4 of the EU Charter which has the same wording.

Theoretically, treatment must reach an intense level of severity for a challenge under this provision to succeed. The Strasbourg authorities originally set a high threshold for treatment falling within the scope of Art.3 ; it must exceed “a certain roughness of treatment” (The Greek Case (1969) Application Nos 00003321-3/67, 11 YbK of the ECHR 501).

In principle the rule is that conditions in the home State, however appalling, do not engage the responsibility of the deporting country. However, Art. 3 is often cited in deportation and asylum cases and allegations of institutional “torture”  and “degrading treatment” in the receiving states, advanced by intervening NGOs,  are hard to disprove.

Following the judgment in  D v United Kingdom (1997) 24 EHRR 423, that an HIV patient could not be returned to a state of origin where medical treatment was inadequate, Art. 3 has been extended to cover conditions of impoverishment and social decay in non-Convention states. In R(Adam, Limbuela and Tesema) v Home Secretary [2005] UKHL 66 the House of Lords applied this extended right to overrule legislation denying social support to asylum seekers who fail to submit their claims as soon as “reasonably practicable”. That the denial of social support was deemed to amount to torture and inhuman treatment shows how far the Convention has developed its reach as a social and economic rights instrument, where claims to social services, accommodation and a high standard of medical care can be made out under the prohibition that was drafted into the Convention in order to prevent the repeat of the sort of atrocities perpetrated in Nazi Germany. Indeed, in 2008 the Strasbourg Court stated in terms that the prohibtion on deportation extends to

the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised medical treatment which may not be so readily available in the applicant’s country of origin or which may be available only at substantial cost.(N v UK, 27 May 2008)

The Strasbourg Court has recently started  to distinguish “torture” from “inhuman and degrading treatment” as separate elements of Article 3 although the results in practice are the same. In  the case of Gäfgen v. Germany (1 June 2010) the Grand Chamber considered that police officers threatening the applicant imminent pain for the purpose of extracting information  constituted “inhuman treatment” falling within the scope of Article 3. But they also held that this method of interrogation did not reach the level of cruelty to attain the threshold of torture under that provision. On the other hand, the bar for offending treatment may being set somewhat lower according to more recent case law from Strasbourg. For example, the Court found degrading treatment in breach of Article 3 when a person was deprived of his spectacles (Slyusarev v Russia 20 April 2010) even though there was no evidence of impairment to the eyes caused by the delayed replacement. The fact that the applicant could not read or write normally was sufficient to amount to treatment in breach of Art.3.   When riot police burst into schools used as shelters by G8 protestors and meted out punishment with riot sticks, this was found to have reached the level of torture under Art.3: Cesaro v Italy, 7 April 2015.  Where a prisoner with chronic health conditions and a medical note recommending the avoidance of cigarettes was confined almost all day in overcrowded cells where the other occupants smoked, the passive smoking element was relevant in the finding of conditions incompatible with Art. 3 (Florea v Romania 14 September 2010). The Court has also stated that states are under an obligation to take measures to protect prisoners from passive smoking where their state of health so requires (Elefteriadis v Romania, 25 January 2011).

Article 3 imposes an obligation on the state to ensure the health and well-being of persons deprived of their liberty, although they are not expected to provide equivalent health care in prisons as compared with the outside world (Aleksanyan v Russia, 22 December 2008).  In McGlinchey v UK the failure by the prison medical staff to properly monitor the state of the applicant, who was vomiting repeatedly under withdrawal symptoms, and suffering from dehydration, disclosed treatment in breach of Article 3 (29 April 2003). Outside the prison walls there is less case law, and the threshold is higher; for example lack of access by cancer patients to potentially life-saving experimental drugs which were not yet authorised did not amount to treatment in breach of Art.3 (Hristozov v Bulgaria, 13 November 2012).  Leaving an asylum seeker to fend for himself on the street for over a year, without provision for shelter, food or other needs, breached Art.3 in MSS v Greece and Belgium (2011).

Domestic courts may be rowing back from their earlier generous approach to Article 3 claims – see R (on the application of EW) v Secretary of State for the Home Department, [2009] EWHC 2957 and our post on the case. More recently, the Court of Appeal has confirmed that foreign nationals may be removed from the UK even where their lives will be drastically shortened due to a lack of healthcare in their home states. Removal in those circumstances does not breach Articles 3 or 8 ECHR except in the most exceptional cases (GS (India) and Ors v SSHD  [2015] EWCA Civ 40. D v UK is rarely followed in current times, as signatory states’ medical and social services become more pressed and cash strapped.

However it remains the case that Article 3 has been interpreted to cover not only state sponsored persecution but the acts of private individuals as well, since it obliges governments not to return or deport anyone to a destination country where they might be exposed to danger, whether at the hands of state agents or rebel groups.  This interpretation of Article 3 has prevented the deportation of a convicted armed robber to Somali because of the risk that he might get caught up in the civil war there – see Ahmed v Austria (1997) 24 EHRR 278.

Chahal v UK (1997) 23 EHRR 413 set a strong precedent for preventing states from deporting individuals to countries where they risk treatment in breach of Article 3. In Saadi v Italy (2008) No. 37201/06 the Court emphasised that Art.3 imposes an obligation not to extradite or expel any person who, in the receiving country, would run the real risk of being subjected to inhumane treatment. The conduct of the person concerned, however undesirable or dangerous, cannot be taken into account. The prospect that he may pose a serious threat to the community if not returned does not reduce in any way the degree of risk of ill treatment that the person may be subject to on return.  In Othman (Abu Qatada) v UK [2012] ECHR 56 the Court accepted that the UK and the Jordanian governments had made genuine efforts to provide detailed assurances that the applicant would not be ill treated on his return to Jordan; although in fact the applicant won on the basis of Article 6, as the Court found that he faced a flagrant denial of his right to a fair trial if deported.

The Strasbourg Court has also attracted criticism from high places for applying Article 3 to the way Parliament regulates the “reasonable chastisement” of children by their parents in the home (A v UK (1999) 27 EHRR 611).

 

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Article 3: absolute or not really?

Jobeth Barrett

The protection afforded by Article 3 is classified as “one of the fundamental values of the democratic societies making up the Council of Europe.”[1] This general fundamental freedom lacks detail, definitions and sentencing guidelines, although it is to be expected that skeletal norms such as the right to be free from torture will be fleshed out through state practice.[2] The effect of this is that there is an undefined discretion for the application of what is presumed to be an absolute right.

This essay will consider how case law has defined and developed Article 3, discussing what constitutes an absolute right before briefly explaining proportionality. It will also be necessary to look at what is meant by the limitation of a Convention (European Convention on Human Rights, hereafter ‘ECHR’ or ‘the Convention’) right. Finally, this essay will examine how case law has applied and interpreted Article 3 in both absolute and qualified circumstances.

Throughout the essay Gäfgen v Germany[3] will be given particular prominence as the case provides an interesting insight into the numerous conflicts the European Court of Human Rights (hereafter ‘the Court’) faces, including moral dilemmas, calculating which rights are to take priority when all are considered absolute, and whether the right to be free from torture has or can ever be applied in absolute terms.

1.What Is Article 3?

Article 3 of the ECHR permits no derogation, even in times of war or public emergency, from the fundamental[4] values it seeks to protect. The enshrining of this right as an established element within the normative hierarchy of international law is recognised as being jus cogens.[5] The Court described the Convention as a ‘living instrument’ in Selmouni,[6] thereby affirming that the definition of Article 3 is relative[7] and subject to change dependent on circumstances, society and preceding case law. Though prima facie this approach would seem to be advantageous to parties concerned, it also provides confusion in that treatment or punishment that only satisfies degrading treatment in one case may be classified as torture only a few short years later. A real example of this ‘living instrument’ approach can be found in the similar cases of Costello- Roberts[8] and A v United Kingdom.[9] Though only five years apart, the Court departed from the interpretation applied in Costello- Roberts when assessing the circumstances in A. The Court deemed it necessary to expand the scope of the obligation to protect against private ill treatment rather than the corporal punishment in the school setting of Costello- Roberts. It is perhaps important to consider the vulnerability of individuals in private settings and the need to protect them. However, it is submitted that at the precise moment an individual becomes at risk, of torture, they too become a vulnerable person and therefore deserve the protection of the full scope of Article 3, even where this requires abandoning a narrow interpretation.[10] Unfortunately, this would also reflect a need for a purposive interpretation of Article 3, which offends the narrow interpretation usually demanded by an absolute right.

1. A. Case Law Definitions

Article 3 provides perhaps the least guidance in terms of application and interpretation in comparison to the other Convention rights. It has been the responsibility of case law to develop definitions of the terms used and the scope to which they can legitimately be applied. The orthodox starting point is the Greek Case from 1969[11], a series of claims against Greece in which police action was held to constitute “unjustifiable treatment”. Following this, the next case that provided any steadfast guidance on the definition of torture was Ireland v United Kingdom.[12] In the years following this judgment the definitions adopted have proved to be problematic and controversial, most notoriously because the five techniques of torture identified and found to exist in this case were held by the Court as only sufficient to constitute ‘degrading treatment’. The Court was concerned that the treatment complained of “did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood” neither did it deserve the stigma that would accompany such a finding.[13] However, the Strasbourg Court held in Aksoy,[14] for the first time, that ‘deliberate inhuman treatment causing serious and cruel suffering’ was sufficient to constitute torture, in spite of this being the same definition used to find no torture had occurred less than twenty years previously in Ireland. The Court, however, has made it very clear from its judgments that it does not expect to be bound by its previous definitions, even as an aid or for guidance to interpretation. More recently the Court found, quite controversially when compared to previous cases, that ‘inhuman’ and ‘degrading’ need not always be distinguished.[15] On the other hand, the Court has demonstrated that they will only address cases in which the torture claimed has attained a minimum level of severity.[16]

It is clear from the case law that although, as a general rule, the Court treats inhuman, degrading and torture as varying in degrees of seriousness it is important to remember that all three within this hierarchy are still prohibited. The decision as to which bracket the treatment falls in ‘depends on all the circumstances’.[17] With this in mind it is inevitable to note that the “threshold is relative.”[18] The question is simply whether this prohibition can be mitigated at any stage by any other circumstances.

Further to this, in Vincent v France[19] the Court held that it was not necessary to possess an intention to torture for the violation to exist. This lack of mens rea for the actus reus to be complete allows scope for violations of Article 3 to take place in forms alternate to a positive commission. Cyprus v Turkey[20] established that Article 3 also contained an implied positive obligation to prevent the commission of torture or ill treatment within a framework of law that will provide adequate protection.[21]

2.What Is ‘Absolute’?

It is important to note that Article 3 does not expressly state that its terms are absolute; it is something that academics argue has been assumed. However, in the judgement of the locus classicus, Ireland v United Kingdom,[22] Judge Fitzmaurice held in his separate opinion that there may be temptation to lower the threshold demanded by Article 3, especially in times of emergency, to permit certain acts however; “if they are not actually caught by the strict language of the Convention, they deserve to be…because…they are nevertheless irreconcilable with the high ideal of human rights.”[23] Unfortunately, Judge Fitzmaurice seems to contradict himself here a little, in stating that Article 3 requires a strict interpretation unless a behaviour is not included in the Act which society feels should be prohibited, in which case it is permitted to adopt a more purposive interpretation. This case provides a number of problematic conclusions, however; this particular contradiction is the element to be further considered in this essay.

Article 3 expresses its freedoms in specific unqualified terms. There is no provision for negation of criminal liability through consent or circumstances in which derogation would be permitted. Henry Shue asserted thirty years ago that Pandora’s Box was already open, suggesting that to even discuss circumstances in which we might permit the use of torture opens the door for those situations to not only become legally permitted but also morally acceptable.[24] “The question has now become not whether, but how to debate torture.”[25]

3.What Is or Where Can Proportionality Be Found?

Webber quotes Beatty as maintaining that proportionality is an “essential, unavoidable part of every constitutional text”.[26] Furthermore, Robert Alexy submits that balancing is “ubiquitous in law”.[27] Proportionality does not fall within the orthodox view, and accordingly it is often found to incite fear in society: Corlett defined proportionality as referring to “the punishment and/or compensation one is forced to undergo and/or pay is commensurate with the harm(s) caused to others”; in essence the punishment and/or the compensation must fit the crime actually committed.[28] Considering another application of the torture definition, Corlett referred to Kant’s typically anti-consequentialist analysis that “a human being may never be manipulated merely as a means to the purposes of something else.”[29] The Court held in Tyrer[30] that it was “never permissible to have recourse to punishments which are contrary to Article 3, whatever their deterrent effect may be.”[31] Similarly, most utilitarians maintain that punishing the innocent is not permissible.[32]

It should be noted however, that torture is not only adopted as a means of punishment. Gäfgen[33] illustrates the juxtaposed argument of preventive and interrogational torture:[34] preventive torture being motivated by the desire to prevent a crime from being committed or completed- the typical example for this scenario is the ‘ticking bomb’. Furthermore, Jessberger opines that a human rights based interpretation of reasonableness inevitably leads to the conclusion that the use of preventive torture is always unreasonable. As a result it is possible to infer that, such treatment could never be considered commensurate. Greer considers the significance of balancing competing rights and interests in situations such as the facts presented in Gäfgen, alongside the legitimacy of doing so.

Webber clarifies that moral correctness opposes and yet does not struggle with the proper application of proportionality in the technical sense. The reality is that the discussion of balancing takes place ‘hand in hand’ with assumptions of absoluteness.[35] It is clear, therefore, that applying proportionality to Article 3 results in a lack of absoluteness inevitably forcing the provision of freedom from torture to become a qualified right. Çali inverts this discourse in that he argues ‘if human rights provisions are not absolute, the balancing exercise is inevitable or that qualifying human rights requires balancing,”[36] with which view this essay agrees.

4.What Does Limitation Mean?

The terms of any limitation in the application of a Convention freedom can normally be found within the Article itself in the second paragraph. However, in some instances where the Article does not stand alone, it is necessary to read the right in conjunction with Article 15;[37] which provides circumstances that permit derogation from otherwise fundamental and ‘absolute’ rights. Greer[38] outlined the two limitations that were acknowledged in Osman v United Kingdom.[39] Firstly, the obligation found in Article 3 must be interpreted in a manner which does not impose ‘an impossible or disproportionate burden on the authorities.’ It can clearly be seen that the Court in 1998 was reluctant to bind the authority of the Member State by forcing them to apply an absolute protection in terms of Article 3. This refers not only to restraining themselves from torturing people but also to ensuring that torture is not carried out at all within its jurisdiction. This reluctance can also be found in the Court’s application and decision making regarding other convention rights.[40] Secondly, ‘due process and other guarantees which legitimately place restraints on the scope of…action to investigate crime and bring offenders to justice, including the guarantees in Articles 5 and 8 of the Convention’ must be respected.It is significant to note, this limitation appears to try to negate the harsh terms of the previous one by specifically outlining protections the State must provide.[41]

5.Application Of Article 3 As An Absolute

Deontologists adhere to established moral duties regardless of any consequences that ensue; it follows then that even “‘preventive torture’ could not be justified or excused by the fact that it is applied in order to prevent the death of innocent persons.”[42] Hauke Brunkhorst insists specifically that the legal prohibition on torture must remain ‘notstandfest’ – firm - whatever the emergency.[43] “Unfortunately, neither the Court nor the Commission has devoted much time to defining the notion of an absolute right”,[44] and have instead relied heavily on the general tendency to ‘assume’ absoluteness[45] which appears to succinctly abide by the strict values of the deontologists. The “shifting boundaries”[46] represented in the case law highlight the ‘working definition’ utilised by the Court as well as Member States. It clearly follows that these varying standards run serious risk of inconsistency,[47] thereby undermining any chance for survival of the principle of effective protection.

With reference to the previously discussed levels of absoluteness it is necessary to consider the application of such varying levels according to the parties and their circumstances, involved in the situation. Gldani,[48] Costello- Roberts, and A v United Kingdom are all examples of Drittwirkung, or horizontal violations of ECHR freedoms, where it was necessary for the Court to comment on sentencing and case investigation methods applied to private individuals. Yet, inversely, in many instances of vertical violations, where the State or its representatives have breached a fundamental freedom, the criminal liability is established but the punishment appears to consistently be mitigated or completely forgotten.[49]

Most importantly, however, it is necessary to remember the spirit with which Article 3 was created. Unfortunately, cases are still decided which fundamentally undermine this purpose and as a result violate the ‘absolute guarantee’ it outlines.[50] In a statement to the UN General Assembly, Rodley maintained “that any temptation to resort to torture or similar ill treatment … must be firmly resisted.”[51] This essay affirms that such a solid stance should similarly be upheld within all Member States.

6.Non- Absolute Application Of Article 3- The Qualified Approach

Qualified human rights are a special construction; they reflect a view that the implementation of human rights is inherently reliant on the considerations that exist independent of the human rights issue in question.[52] This is the view of the consequentialist that a judgment should be made according to the possible consequences of an action or rule and, breaking the moral rule becomes justifiable when the consequences cross a certain threshold.[53] The elements of justifiability of otherwise absolute terms were first considered in the Greek Case.[54] Further to this, Moore’s ‘threshold deontology’ submits to the fact that otherwise absolute moral rules give way at some unspecified point where the consequences of adhering to them become overwhelmingly terrible.[55] This is supported by the implied view of the ECHR that a “narrow and limited interpretation is unhelpful”.[56]

Ward quotes Brunkhorst’s view regarding the application of proportionality in times of emergency to fundamental rights and freedoms, as involving a “tragic choice…between incommensurable evils”.[57] Moore’s ‘threshold deontology’ seems to be echoed in the views of a number of other scholars. Uwe Steinhoff finds the moral and legal justification for allowing torture to exist only in the protection of others.[58] The Court’s torn attitude is represented in an extension of this view by Belvisi, who would maintain the absolute legal prohibition against torture whilst simultaneously endorsing it in the ‘right circumstances’; unfortunately once again these ‘circumstances’ are yet to be clarified.[59]

Case law appears to illustrate that, especially in circumstances of vertical violations of Article 3 by the police[60] that even in situations where violations are found by the domestic Court, albeit reluctantly, mitigating circumstances are introduced to allow leniency in sentencing. In the Gäfgen judgment the Court affirmed that the torture legislation within the ECHR makes no provision for sentencing, and resultantly allowed for a very lenient punishment. However, it is clear that this would offend the purpose of the Article. The judges in Gäfgen provide that the sentence given to the offending police officers should be based on the establishing of their guilt, returning to the sentiment portrayed in Vincent v France. In addition to support from international criminal law it is, therefore, legally possible that allowances could be made “for consideration of special circumstances and ‘life saving motivation of the preventive torturer’ in determining the sentence,”[61] thus proving quite conclusively that such an interpretation of Article 3 would not allow for absolute application.

Çali questions whether the balancing of human rights and communal interests is really a suitable redress to the operation of human rights; he opines that to avoid criticism regarding the application of balancing exercises it is imperative that a strong commitment is made to the application of proportionality.[62] This approach may indeed be logical, but it also affirms the view that Article 3 cannot be applied absolutely, whatever the method of interpretation that is adopted.

Conclusion

“The right to be free from torture is part and parcel of jus cogens and thereby constitutes a peremptory norm of international law, but the ground[s] for excluding liability are not.”[63] Unfortunately, in terms of vertical violations of Article 3, it is important to remember the ‘choice of evils’ that state agents are all too often faced with; the decision to risk their own criminal liability or losing innocent lives.[64] This in itself presents one of the largest problems and criticisms with the use of torture in ‘ticking bomb’ situations – to what extent is it possible to be certain of all the facts and circumstances that are necessary, or that causing a significant substantive breach of Article 3 will directly result in the provision of the information necessary to save innocent lives.[65] In Gäfgen the police officer claimed to be acting as a direct result of the information given by the accused, that the child was still alive when in actual fact he had already been killed, and the assumption that the information was correct. The police officers believed their actions were justified by the means which they sought to achieve. Kant would refuse to accept such a justification however; in an opinion poll it was claimed 60% of Germans would have supported the police officer’s use of the threats or use of torture to find the living child.[66]

The Regional Court in Gäfgen “stopped short of a categorical ruling that torture could never be justified, alluding to the borderline cases.”[67] This is comparable to the Court’s approach to rulings on rights such as the Article 2; where it seems the Court avoids taking a decisive stance to ensure they leave themselves room to make adjustments and even substantially different judgments in the future. The Court allows policy to play a role in its decision making. It avoids holding a firm opinion on a particular matter to attempt to prevent displeasing a particular Member State through voicing a binding interpretation of a Convention right with which the State does not agree.

Applying a strict and narrow interpretation of rights such as those within Article 3 becomes particularly problematic, as we exemplified in the case law, when it comes into competition with the application of other Convention rights. Gäfgen saw the appearance of a moral paradox between Magnus Gäfgen’s Article 3 right and Jacob von Metzler’s Article 2 right.[68] It is assumed in theory that Article 3 is absolute, whereas Article 2 is not. Derogations from Article 2 are permitted “in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”[69] Furthermore, Article 2(2) provides an additional 3 exceptions to the protection afforded in paragraph 1.

This essay concludes by expanding upon the sentiment expressed by Simonson: in that the Court relies heavily on the same rhetoric for the majority of cases, the general rule of absolutivism exists, with each case simply providing exceptions to enhance the existence of the rule. This clear contradiction has proved to be problematic for both the Court and Member States.However, it will continue to be an issue until the Court is decisive on the approach that should be taken regarding the interpretation of Article 3. For the assumed absolute character to withstand criticism and abuse it is of fundamental importance that a narrow interpretation is held as binding. The consequence of failing to do so is accepting the morally questionable conclusion that Article 3, like the majority of the other Convention rights, is not absolute at all, thereby abandoning the traditional, presumed and idealistic view of the application of the right to be free from torture. Accordingly, Gewirth states that not all rights can be absolute, however, those that survive conflicts with other rights are credible candidates for the label ‘absolute’; “not all rights can be absolute” and more significantly, currently none are.[70]



[1] Yutaka Arai- Yokoi, Grading Scale of Degradation: Identifying the Threshold of Degrading Treatment of Punishment Under Article 3 ECHR (2003) 21 Netherlands Quarterly of Human Rights 385.

[2] Michael K Addo & Nicholas Grief, Does Article 3 of The European Convention on Human Rights Enshrine Absolute Rights? (1998) 9 European Journal of International Law 510.

[3] Gäfgen v Germany App No 22978/05 (ECHR 30 June 2008) 52 EHRR 1.

[4]Aksoy v Turkey21987/93 (ECHR 18 December 1996).

[6]Selmouni v France App No 25803/94 (ECHR 28 July 1999).

[7] Addo & Grief (n 2) 511.

[8]Costello- Roberts v The United Kingdom App No 13134/87 (ECHR 25 March 1993).

[9]A v The United KingdomApp no 25599/94 (ECHR 23 September 1998).

[10] Tom L Beauchamp & James F Childress, Principles of Biomedical Ethics (6th Edition OUP 2008), Chapter 3.

[11]Greek Case (1969) 12 Yearbook ECHR 1.

[12]Ireland v The United Kingdom App No 5310/79 (ECHR 18 January 1978) 2 EHRR 25.

[13] Pieter van Dijk, Fried van Hoof, Arjen van Rijn, Leo Zwaak, Theory and Practice of the European Convention on Human Rights (4th Edition Intersentia 2006) 406- 407.

[15]II v Bulgaria 2005 App No 44082/98 (ECHR 9 June2005).

[16]Jalloh v Germany App No 54810/00 (ECHR 11 July 2006).

[17] Ireland (n 12) Para 162.

[18] Addo & Grief (n 2) 511.

[19]Vincent v France App No 6253/03 (ECHR 24 October 2006).

[20]Cyprus v Turkey App No 25781/94 (ECHR 10 May 2001).

[21]Kaya (Mahmut) v Turkey App No 22535/93 (ECHR 28 March 2000).

[23] Judge Fitzmaurice Separate Opinion Ireland v United Kingdom (n 12).

[24] Dr Tony Ward Is Torture Ever Permissible (2009) 185 Prison Service Journal3, 5.

[26] Grégoire Webber, Proportionality Balancing, and the Cult of Constitutional Rights Scholarship (2010) Vol XXIII Canadian Journal of Law and Jurisprudence 179.

[27] Robert Alexy, On Balancing and Subsumption. A Structural Comparison (2003) 16 Ratio Juris 433, 436.

[28] J Angelo Corlett, Making More Sense of Retributivism: Desert as Responsibility and Proportionality (2003) 78 Philosophy 279, 286.

[30]Tyrer v The United Kingdom App No 5856/72 (ECHR 25 April 1978).

[34] Florian Jessberger, Bad Torture – Good Torture (2005) Journal of International Criminal Justice 1059, 1061.

[36] Başak Çali, Balancing Human Rights? Methodological Problems (2007) 29 Human Rights Quarterly 251, 253.

[37] European Convention on Human Rights and Fundamental Freedoms 1950.

[38] Steven Greer, Should police threats to torture suspects always be severely punished? Reflections on the Gafgen Case (2011) 11 (1) Human Rights Law Review 67.

[39]Osman v The United Kingdom App No 23452/94 (ECHR 28 October 1998).

[40]Vo v FranceApp No 53924/00 (2005) 40 EHRR 12: for the Court’s consideration on the application of Article 2.

[41]Smith v The United Kingdom App No 33985/96 (2000) 29 EHRR 493: Government failed to protect the applicants Article 8 rights, resulting in a change of the law.

[42] Jessberger (n 34) 1063.

[44] Addo & Grief (n 2) 513.

[46] Addo & Grief (n 2) 514.

[47] Addo & Grief (n 2) 518.

[48]Members of the Gldani Congregation of Jehovah’s Witnesses and 4 Others v Georgia App No 71156/01 (ECHR 3May 2007).

[49]Maslova and Nalbandov v RussiaApp No 839/02 (ECHR 24 January 2008).

[50]Klaas v Germany Series A No 269 (ECHR 22 September 1993), (1994) 18 EHRR 305.

[51] Nigel S Rodley, The Prohibition of Torture: Absolute Means Absolute (2006) 34 Denver Journal of International Law and Policy 145, 159.

[52] Jessberger (n 34) 251-252.

[53] Addo & Grief (n 2) 522.

[56] Addo & Grief (n 2) 512.

[60] Gäfgen (n 3), Gldani (n 48).

[61] Jessberger (n 34) 1073.

[63] Jessberger (n 34) 1072.

[69] Art 2(1) European Convention on Human Rights and Fundamental Freedoms 1950.

[70] Alan Gewirth Human Rights Essays on Justifications and Applications, (University of Chicago Press 1982) Chapter 9, 219.

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