THE LACUNA IN ARTICLE 3 OF THE ECHR AND THE SCOPE FOR TORTURE IN A ‘TICKING TIMEBOMB’ SCENARIO

Abstract

The principled rhetoric of the European Court of Human Rights has been to state that the prohibition against torture, as well as other forms of inhuman and degrading treatment, as enumerated in Article 3 of the European Convention on Human Rights (ECHR) is an absolute protection. 

Part I of this paper will analyze whether Article 3 of the ECHR, while being formally unqualified, is in practice, truly an ‘absolute right’ or not. In attempting to answer this question, the paper will rely upon principles of statutory interpretation as well as, numerous judicial pronouncements which indicate that Courts have resorted to ‘proportionality’ and ‘necessity’ based reasoning in various cases while reaching a conclusion on whether there have been violations of Article 3 of the ECHR. This, in turn will signify that the theoretical ideal of ‘absoluteness’ is far from being consistently reflected in the decisions of the Strasbourg organs.

Having established that the protection enumerated in Article 3 of the ECHR is not ‘absolute’, Part II of this paper will then focus on whether in certain ‘ticking timebomb’ scenarios, it should be justifiable to violate Article 3 of the ECHR. Acknowledging the intuitively appealing pull of utilitarianism and its conflict with certain fundamental rights that are established via positive as well as natural law, this part will highlight the numerous reasons for as to why, even in a ‘ticking timebomb’ scenario, the protection that is guaranteed via Article 3 of the ECHR, should not be violated.

Provoked by the Holocaust, as well as numerous other forms of atrocities that had taken place during World War II, there was a pressing need felt to classify torture as being wrong in every given situation, regardless of any other cofounding variables. 

The European Convention on Human Rights (ECHR), which came into force as early as 1953, attempted to address the issue via Article 3 of the Convention, which states, “No one shall be subjected to torture or to inhuman or degrading treatment.” A core saying that soon developed was therefore, that, protection awarded from torture and other acts that classify as being cruel, inhumane and degrading was an ‘absolute right’ and hence, was widely believed that there are no legal or moral justifications for violating this protection that was enshrined in the text of Article 3.

At this stage it would be appropriate to discuss what an ‘absolute right’ means in the context of this paper. An absolute right is a right that is not made subject to any exceptions. Regardless of the circumstances, an absolute right is supposed to trump all other obligations which may appear to be in conflict with this right.