Torture, Inhumanity and Degradation under Article 3 of the ECHR

Front matter

NATASA MAVRONICOLA se

Torture, Inhumanity and Degradation under

Article 3 of the ECHR

Foreword

When I received the manuscript of this book, my first reaction was to anticipate that it would be an additional analysis of absolute rights, which have already received - deservedly, of course - ‘substantial attention in both adjudication and academic work, as Natasa Mavronicola rightly observes herself. When I started reading it, I realised that the approach here is truly different and helps to fill an essential gap in the comprehension and interpretation of absolute rights, especially in respect of the right not to be subjected to torture or inhuman and degrading treatment or punishment (Article 3 of the ECHR). ‘Rather than questioning whether there ought to be any absolute rights, the author’s aim is ‘to consider what an absolute right is. When we are faced with a sensitive and difficult question, that is exactly what we expect from scholarly work: to frame and address the question from a distinct angle. In this foreword, I wish to touch briefly on some of the book’s key dimensions.

What is an absolute right? Strange as it may be, this basic question is very often forgotten not only by doctrine but also by judges. The need for a conceptual approach to absolute rights is all the more urgent in that, at least in the legal order of the European Convention on Human Rights, the absoluteness of the right enshrined in Article 3 is increasingly contested in threatening situations such as terrorism, asylum and migration or security matters. This is a real challenge for the European Court of Human Rights, which must build a robust case-law capable of taking account simultaneously of the necessities or particularities of our time and the inalienable right to human dignity. In agreement with Natasa Mavronicola, I am personally convinced that conceptual clarity could enable ‘better reasoning and outcomes across the diverse fields in which the right applies.

The ideal of integrity. The very rich, learned, and intelligent analysis of the theoretical foundation of the prohibition of torture and inhuman and degrading treatment that the book offers is illuminating. The conceptual framework encompasses two parameters of analysis, applicability and content. With modesty, under the umbrella of Dworkin’s Law’s Empire (1986), the search for consistency and coherence in the interpretation of Article 3 of the Convention is tied to the ideal of integrity that all persons unconditionally deserve in the application of human rights law. Admittedly, such an interpretative endeavour could give rise to objections and such potential objections are addressed by the author in a very systematic manner.

A progressive (re)interpretation. Against this background, the book does not limit itself to being a theoretical study for academic debate or ‘classroom discussion. Having built a strong conceptual foundation, the author revisits, vi Foreword in a very practical and superb way, what she perceives to be both the core and the ‘edges (or even fringes)’ of Article 3 of the European Convention, under its substantive and its procedural aspect. This encompasses, amongst other things, the following key elements: torture as an aggravated wrong; the famous (and fallacious) threshold of inhumanity that very often leads to the conclusion that the treatment ‘falls short of it, particularly in the justified use of force or in the punishment of offenders, which is for me of paramount importance; the delimitation of positive obligations and, accordingly, the scope of the State’s wrongful omissions; the inescapable ‘non-refoulement’ duty and Article 3’s obligation against expulsion. Across all the excellent chapters devoted to these matters, the author suggests, with strong arguments, a progressive reinterpretation or reassessment of the right guaranteed under Article 3 of the Convention.

Creative thinking. Throughout the book, Natasa Mavronicola’s views and thinking are creative, well-founded, and very stimulating. Taking absolute rights seriously, she can deservedly argue that she is approaching Article 3 of the Convention ‘in a way that accommodates contextual sensitivity and dynamism in interpretation.

The force, genuine interest, and relevance of this book have been made possible - and are served - by a remarkable and profound knowledge of the philosophy and general doctrine of human rights, the rights enshrined in the Convention, and the case-law of the European Court of Human Rights. In this respect, this book is a precious asset and companion for judges, lawyers, scholars, and all those who want to know more on and to better apply the right not to be subjected to torture or inhuman or degrading treatment or punishment, in accordance with its absolute character and the egalitarian commitment to human dignity that underpins it.

Francoise Tulkens

Former judge and vice-president of the European Court of Human Rights

ACKNOWLEDGEMENTS

This is a beloved project, and one that has, at times, been bewilderingly painful to pursue. It takes the idea of an ‘absolute right’ at human rights law seriously, and endeavours to (re)assess how the wrongs proscribed by the right not to be subjected to torture or to inhuman or degrading treatment or punishment, enshrined in Article 3 ECHR, are (to be) understood in light of its absolute character. This endeavour is all too human, and bound to remain a work in progress. I am profoundly grateful to all those who have helped me strive to ‘fail better’ at it over the years.

I am singularly indebted to David Feldman for supervising a previous incarnation of this book as a PhD and for so generously sharing his wisdom, insight, and unwavering encouragement, and to Stephanie Palmer for her invaluable advice and support in the pursuit of this project. I am deeply grateful to the examiners of my PhD, Mark Elliott and Liora Lazarus, for engaging so closely with my work and interrogating what needed to be interrogated. I also owe an enormous debt to Fiona de Londras, Laurens Lavrysen, Lydia Morgan and Ben Warwick for their incisive comments on later incarnations of the book, and for helping me see (and say) what I wanted to say, and to Matteo Bianconi for easing the task of doing so with his boundless generosity and care. Thank you to Sophia Ahmed, Barbara Gonzalez-Jaspe, Sumaiyah Kholwadia and Kate Webster for their sterling research assistance, which informed the updating of the study. In writing the book I also benefited tremendously from feedback on my work and from always fruitful discussions with many colleagues, including Gordon Anthony, Meghan Campbell, Brice Dickson, Eithne Dowds, Michelle Farrell, Damian Gonzalez-Salzberg, Alan Greene, Miles Jackson, Kathryn McNeilly, Nils Melzer, Chris McCrudden, Kieran McEvoy, Nigel Rodley, Hannah Russell, Yvette Russell, Alex Schwartz, Henry Shue, Natasha Simonsen, Stijn Smet, Bal Sokhi-Bulley, Ntina Tzouvala, Elaine Webster and Astrid Wiik. I have also benefited greatly from opportunities to present and discuss my work with many other scholars at various conferences, workshops and talks; although they are too many to name here, I am grateful to everyone who shared their thoughts with me in these settings. While completing this book I have been fortunate enough to engage in debates and exchanges with hundreds of brilliant students, and I am grateful to them for having contributed to my thinking on a variety of issues addressed within it.

I owe profound thanks to Tom Adams, Carolyn Fox, Sasha Jawed and Sinead Moloney at Hart Publishing for being so rigorous and professional as well as remarkably encouraging, supportive, and accommodating.

The decision to write this book can probably be traced to the little bookworm of a girl who followed her mum to the bookstore every week for a new adventure, and who, before that, listened attentively to stories read on repeat by a tireless dad.

viii Acknowledgements

I am thankful beyond words for my family’s unconditional love and support at every step of this journey, and this book is dedicated to them.

Contents

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