DignITA Database

DATA: 19/02/2009

STRUMENTI CORRELATI:

Art. 5 ECHR; Art. 3 ECHR; Art. 13 ECHR.

NOTE:

The Court held unanimously that there had been:
– no violation of Article 3 (prohibition of torture and inhuman or degrading treatment) taken alone or in conjunction with Article 13 (right to an effective remedy) of the European Convention on Human Rights in respect of all the applicants, except the Moroccan applicant whose complaints under these articles were declared inadmissible;
– a violation of Article 5.1 (right to liberty and security) of the Convention in respect of all the applicants, except the Moroccan and French applicants who had elected to leave the United Kingdom, since it could not be said that the applicants were detained with a view to deportation and since, as the House of Lords had found, the derogating measures which permitted their indefinite detention on suspicion of terrorism discriminated unjustifiably between nationals and non-nationals;
– a violation of Article 5.4 (right to have lawfulness of detention decided by a court) in respect of two of the Algerian applicants, the stateless and Tunisian applicants, because they had not been able effectively to challenge the allegations against them; and,
– a violation of Article 5.5 in respect of all the applicants, except the Moroccan and French applicants, on account of the lack of an enforceable right to compensation for the above violations.

The Court recognized that indefinite detention without formal charges undermines human dignity and is not compatible with the rule of law, even in times of emergency. (paragraph 128)

DATA: 28/02/2008

STRUMENTI CORRELATI:

NOTE:

Ruling:

The Court holds that, if the decision to deport the applicant to Tunisia were to be enforced, there would be a violation of Article 3 of the Convention.

Reference to obligations of criminalization:

Indirect reference to obligations of criminalization.
(paragraph 127) Article 3, which prohibits in absolute terms torture and inhuman or degrading treatment or punishment, enshrines one of the fundamental values of democratic societies.
(paragraph 138) Since protection against the treatment prohibited by Article 3 is absolute, that provision imposes an obligation not to extradite or expel any person who, in the receiving country, would run the real risk of being subjected to such treatment.

Reference to human dignity:

Indirect reference.
(paragraph 136) In order to determine whether any particular form of ill-treatment should be qualified as torture, regard must be had to the distinction drawn in Article 3 between this notion and that of inhuman or degrading treatment. This distinction would appear to have been embodied in the Convention to allow the special stigma of “torture” to attach only to deliberate inhuman treatment causing very serious and cruel suffering.
(paragraph 146) In these circumstances, the Court considers that in the present case substantial grounds have been shown for believing that there is a real risk that the applicant would be subjected to treatment contrary to Article 3 of the Convention if he were to be deported to Tunisia. […]Consequently, the visits by the International Committee of the Red Cross cannot exclude the risk of subjection to treatment contrary to Article 3 in the present case.
(paragraph 143) In the present case the Court has had regard, firstly, to the reports of Amnesty International and Human Rights Watch on Tunisia (see paragraphs 65-79 above), which describe a disturbing situation. […] In particular, these reports mention numerous and regular cases of torture and ill-treatment meted out to persons accused under the 2003 Prevention of Terrorism Act. The practices reported – said to be often inflicted on persons in police custody with the aim of extorting confessions – include hanging from the ceiling, threats of rape, administration of electric shocks, immersion of the head in water, beatings and cigarette burns, all of these being practices which undoubtedly reach the level of severity required by Article 3