DignITA Database

DATA: 08/02/2012

STRUMENTI CORRELATI:

NOTE:

Ruling:

The ECHR holds unanimously that there has been a substantive violation of Article 3 of the Convention. However, it holds that there has been no procedural violation of the same article. The Court also concluded that there was a violation of Article 8, which guarantees the right to respect for private and family life. It determined that a separate examination of the complaint under Article 12 was not necessary, and that there was no violation of Article 13, which concerns the right to an effective remedy. By six votes to one, the Court decided that no separate examination was needed under Article 14, which deals with non-discrimination.

Reference to obligations of criminalization:

Relevant provisions providing obligations of criminalization are:

Art. 1 of the Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine.
Arts. 12, 16 of the UN Convention on the Elimination of All Forms of Discrimination against Women.

Reference to human dignity:

Paragraph 105: “Finally, the Court reiterates that the very essence of the Convention is respect for human dignity and human freedom. It has held that in the sphere of medical assistance, even where the refusal to accept a particular treatment might lead to a fatal outcome, the imposition of medical treatment without the consent of a mentally competent adult patient would interfere with his or her right to physical integrity”.

DATA: 01/06/2010

STRUMENTI CORRELATI:

NOTE:

Ruling:

For these reasons, the Court, unanimously, […] Holds by eleven votes to six that there has been a violation of Article 3 of the Convention;

Reference to obligations of criminalization:

Paragraph 117. As regards the requirement of a thorough and effective investigation, the Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention”, requires by implication that there should be an effective official investigation. Such an investigation, as with one under Article 2, should be capable of leading to the identification and punishment of those responsible (see, inter alia, Assenov and Others, cited above, § 102; Labita, cited above, § 131; Çamdereli, cited above, §§ 36-37; and Vladimir Romanov, cited above, § 81). For an investigation to be effective in practice it is a prerequisite that the State has enacted criminal-law provisions penalising practices that are contrary to Article 3 (compare, mutatis mutandis, M.C. v. Bulgaria, no. 39272/98, §§ 150, 153 and 166, ECHR 2003-XII; Nikolova and Velichkova, cited above, § 57; and Çamdereli, cited above, § 38).

Reference to human dignity:

Several references to human dignity (paras 40, 48, 56-57, 120, 145). However, all of these reflect the reasoning of Germany’s Federal Constitutional Court rather than that of the ECHR.

DATA: 07/01/2010

STRUMENTI CORRELATI:

NOTE:

Ruling:

For these reasons, the Court, unanimously […] Holds that there has been a procedural violation of Article 2 of the Convention by Cyprus because of the failure to conduct an effective investigation into Ms Rantseva’s death; Holds that there has been a violation of Article 4 of the Convention by Cyprus by not affording to Ms Rantseva practical and effective protection against trafficking and exploitation in general and by not taking the necessary specific measures to protect her, Holds that there has been a violation of Article 4 of the Convention by Russia of its procedural obligations to investigate the alleged trafficking; Holds that there has been a violation of Article 5 of the Convention by Cyprus;

Reference to obligations of criminalization:

Paragraphs 244, 282, 285, 288, 289

Reference to human dignity:
282. There can be no doubt that trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention. In view of its obligation to interpret the Convention in light of present-day conditions, the Court considers it unnecessary to identify whether the treatment about which the applicant complains constitutes “slavery”, “servitude” or “forced and compulsory labour”. Instead, the Court concludes that trafficking itself, within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention, falls within the scope of Article 4 of the Convention. The Russian Government’s objection of incompatibility ratione materiae is accordingly dismissed.

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

DATA: 19/05/2006

STRUMENTI CORRELATI:

NOTE:

Ruling:

Paragraph 9.6 The Committee is consequently of the opinion that the State party has not fulfilled its obligations under article 5, paragraph 2, of the Convention.
Paragraph 9.9 Consequently and notwithstanding the time that has elapsed since the initial submission of the communication, the Committee is of the opinion that the State party has not fulfilled its obligations under article 7 of the Convention.
Paragraph 9.11 The Committee considers that, by refusing to comply with the extradition request, the State party has again failed to perform its obligations under article 7 of the Convention.

DATA: 03/12/2003

STRUMENTI CORRELATI:

NOTE:

Ruling:

(paragraph 1081) For RTLM broadcasts in 1994 advocating ethnic hatred or inciting violence against the Tutsi population, the Chamber finds Nahimana guilty of crimes against humanity (persecution) under Article 3(h), pursuant to Article 6(1) and Article 6(3) of the Statute.
(paragraph 1082) For RTLM broadcasts in 1994 advocating ethnic hatred or inciting violence against the Tutsi population, the Chamber finds Barayagwiza guilty of crimes against humanity (persecution) under Article 3(h), pursuant to Article 6(3) of the Statute of the Tribunal
(paragraph 1083) For his own acts and for the activities of CDR that avocated ethnic hatred or incited violence against the Tutsi population, the Chamber finds Barayagwiza guilty of crimes against humanity (persecution) under Article 3(h), pursuant to Article 6(1) of the Statute.
(paragraph 1084) The Chamber finds Ngeze guilty of crimes against humanity (persecution) under Article 3(h), pursuant to Article 6(1) of the Statute of the Tribunal.

Reference to obligations of criminalization:

Indirect reference.
(paragraph 1076) The Chamber considers that hate speech (Which is a discriminatory form of aggression that destroys the dignity of those in the group under attack) that expresses ethnic and other forms of discrimination violates the norm of customary international law prohibiting discrimination.

Reference to human dignity:

(paragraph 1072) The Chamber considers it evident that hate speech targeting a population on the basis of ethnicity, or other discriminatory grounds, reaches this level of gravity and constitutes persecution under Article 3(h) of its Statute.
Hate speech is a discriminatory form of aggression that destroys the dignity of those in the group under attack. It creates a lesser status not only in the eyes of the group members themselves but also in the eyes of others who perceive and treat them as less than human. The denigration of persons on the basis of their ethnic identity or other group membership in and of itself, as well as in its other consequences, can be an irreversible harm.

DATA: 14/01/2000

STRUMENTI CORRELATI:

NOTE:

Ruling:

The Trial Chamber found several accused guilty for the crimes against humanity of persecution, murder, and other inhumane acts. The Trial Chamber found not guilty the accused for the other counts of CAH and WC. The Trial Chamber acquitted the accused Dragan Papic of all the charges and ordered his immediate release.

Reference to obligations of criminalization:

Human dignity – though the Martens Clause – has been relied upon by the Trial Chamber for (indirectly) supporting the following obligation to criminalise:
cumulative attacks on military objectives causing incidental damages to civilians (para. 526)
reprisals against civilians in combat zones but not in the hands of the adversary (para. 527)

Reference to human dignity:

Martens Clause: paras. 521-536.

DATA: 10/12/1998

STRUMENTI CORRELATI:

NOTE:

Ruling:

FOR THE FOREGOING REASONS, having considered all of the evidence and the arguments of the parties, the Statute and the Rules, the TRIAL CHAMBER finds, and imposes sentence, as follows:
With respect to the accused, ANTO FURUNDZIJA:
Count 13: GUILTY of a Violation of the Laws or Customs of War (torture).
For torture as a Violation of the Laws or Customs of War, the Trial
Chamber sentences Anto Furundzija to 10 years’ imprisonment.

Reference to obligations of criminalization:

Paragraph 156. Furthermore, at the individual level, that is, that of criminal liability, it would seem that one of the consequences of the jus cogens character bestowed by the international community upon the prohibition of torture is that every State is entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction.

Reference to human dignity:
Paragraph 162. […] As apparent from this enumeration of criteria, the Trial Chamber considers that among the possible purposes of torture one must also include that of humiliating the victim. This proposition is warranted by the general spirit of international humanitarian law: the primary purpose of this body of law is to safeguard human dignity.
Paragraph 183. The Trial Chamber holds that the forced penetration of the mouth by the male sexual organ constitutes a most humiliating and degrading attack upon human dignity.

DATA: 25/05/1993

STRUMENTI CORRELATI:

NOTE:

Ruling:

THE COURT, Holds by eight votes to one that there has been no breach of Article 7 (art. 7).

Reference to obligations of criminalization:

(Paragraph 40) The Court has already noted that the wording of many statutes is not absolutely precise. The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague (see, for example and mutatis mutandis, the Müller and Others v. Switzerland judgment of 24 May 1988, Series A no. 133, p. 20, para. 29). Criminal-law provisions on proselytism fall within this category. The interpretation and application of such enactments depend on practice. (…)

Reference to human dignity:

(paragraph 52) The Court points out that Article 7 para. 1 (art. 7-1) of the Convention is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage. It also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy; it follows from this that an offence must be clearly defined in law. This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him liable. (…)