Practicing ill-treatment

In Davydov and others v. Ukraine, the European Court of Human Rights was confronted with particularly disturbing facts. The case concerned ill-treatment committed by special forces on prisoners during training exercises. Not during an actual emergency situation of riot in the prison. No, during exercises. Twice.

The prisoners were not warned about the exercises. They were beaten, struck, hit, stepped upon, forced to strip naked and humiliated during the exercises. They did not receive any medical assistance for their injuries and their complaints were not taken seriously. Moreover, some of them were threatened to withdraw their complaints to the Court and were punished through solitary confinement for having submitted their application.

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Gäfgen v. Germany: threat of torture to save a life?

In Gäfgen v. Germany , the Grand Chamber of the European Court of Human Rights was confronted with a difficult issue: can police officers threaten to torture a suspect if they believe this may save the life of an innocent child? The Court clearly answered that they cannot. However, it did leave what could at first sight be interpreted as an opening for such conduct: it held that the Convention had not been violated by the domestic decision declaring the evidence obtained as a result of the threat of torture admissible.

Gäfgen v. Germany concerned the following facts. A man had lured a child into his flat, killed him through suffocation and hidden the body. Afterwards he demanded a ransom of the parents who were unaware that their child had already been murdered. They paid the ransom after which the police followed and arrested the suspect. During his interrogation the police, acting under the assumption that the child was still alive, threatened the suspect with considerable suffering if he persisted in refusing to disclose the child’s whereabouts. The suspect subsequently confessed to the crime and disclosed the whereabouts of the child’s body. The German courts, having established that the confession of the suspect had been extracted under duress, did not allow it as evidence during the ensuing criminal trial. However, they did declare the evidence obtained as a result of the ill-treatment, including the child’s body and the tire tracks found at the dumping site, admissible. During the trial the suspect confessed again, despite having been made aware of his right to remain silent and of the inadmissibility of his earlier confession as evidence.

This case offers clear similarities to the ticking time bomb scenario that certain politicians, philosophers and lawyers use to claim that it is justified to torture one person, someone who is suspected of having planted a bomb somewhere, in order to save the lives of – possibly thousands of – others. This case also shows that too many factors of such a scenario are uncertain and that it can thus never take hold in reality.

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When a Discrepancy is Not Necessarily a Discrepancy

Today I would like to discuss one particular aspect of a recent case, Biçici v. Turkey. This case concerned the arrest of Ms. Biçici, while she was participating in a peaceful demonstration, and her alleged ill-treatment during the arrest. The European Court of Human Rights found in favour of Ms. Biçici, ruling that the intervening authorities had used disproportionate force in hastily responding to the peaceful demonstration. The Court also found the intervention itself to be unnecessary and disproportionate. Both articles 3 and 11 had thus been violated. But it was close. The ruling on art. 3 was delivered by a narrow majority of 4-3.

What I would like to discuss is the Court’s use of the elements of proof adduced by the applicant. I am going out on a limb here, not being a medical expert. I hope one of our readers with specific medical expertise could either confirm or refute my argument.

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‘Unluxury problems’ of Europe

In a book published in 2003 Manfred Nowak wrote: “The OAS [Organization of American States] in comparison [with the Council of Europe] is composed of a wide range of states including both the richest industrialized countries (United States and Canada) and the poorest countries of the world (e.g. Haiti), as well as democracies and military dictatorships that covered a good part of the entire hemisphere in the 1970s. Consequently, the human rights bodies of the OAS have always had to deal with far more than Europe’s ‘luxury problems’, such as the excessive duration of legal proceedings in Italy. Historically, and presently, OAS human rights bodies are challenged by widespread poverty, systematic torture and assassination of political dissidents, enforced disappearances and much more.”[1]  

It is impossible to draw a distinction like that from the Court’s case-law of the year 2009. The Court found 269 violations of Article 2 and 3 plus 145 violations of those articles because of lack of effective investigations. This makes it 1/6 of all the violations the Court found that year.[2]  

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R.C. v. Sweden: the burden of proof in asylum cases

Sweden is recently convicted by the European Court of Human Rights in the CASE OF R.C v. SWEDEN concerning an Iranian asylum seeker. On 9 march 2010 the Court issued a judgment where it held by six votes to one that the deportation of the applicant to Iran would consist a violation of article 3 ECHR. Judge Fura expressed a dissenting opinion.

R.C. submitted to have participated in a demonstration in 2001 against the Iranian regime following which he had been arrested and tortured and detained for fourteen months. Although he had never been formally tried, he appeared several times before a revolutionary court, where a decision had to be made about the maintenance of his detention. During one of these religious hearings, the applicant managed to escape with the help of a friend. The applicant submitted also that he had been subjected to torture during his detention. He provided a medical certificate of February 2005 carrying the doctor’s conclusion that the injuries found on his body could well originate from torture. When R.C. arrived in Sweden in 2003 he immediately requested asylum near the Swedish Migration Board. This request was refused as the national authorities doubted the credibility of his account of events underlining that revolutionary courts were generally not open to the public, that the applicant had not substantiated his allegations and found that there was no proof that he would be tortured or ill treated if he returned to Iran. The appellate courts also rejected his asylum request.

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