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A Practitioner's Handbook Article 3 of the European Convention on Human Rights: A PRACTITIONER’S HANDBOOK OMCT Handbook Series Vol. 1 Alexander Morawa, Nicole Bürli Peter Coenen and Laura Ausserladscheider Jonas 2nd edition ARTICLE 3 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS AUTHORS Alexander Morawa, Nicole Bürli, Peter Coenen, and Laura Ausserladscheider Jonas Print: Sté Crea Concept Layout: mostra-design.com First Edition: 2006 Second Edition: 2014 © 2014 World Organisation Against Torture (OMCT) ISBN: 2-88894-055-8 World Organisation Against Torture (OMCT) P.O. Box 21 8, rue du Vieux-Billard CH-1211 Geneva 8 Switzerland Tel: +41 (0) 22 809 49 39 Fax: +41 (0) 22 809 49 29 E-mail: [email protected] Website: http://www.omct.org/ SERIES EDITOR: Helena Solà Martín DIRECTOR OF PUBLICATIONS: Gerald Staberock The World Organisation Against Torture (OMCT) coordinates the activities of the SOS-Torture Network, which is the world’s largest coalition of non-governmental organisations fi ghting against torture and ill-treatment, arbitrary detention, extrajudicial executions, forced disappearances, and other serious human rights violations. OMCT’s growing global network currently includes 311 local, national, and regional organisations in 92 countries spanning all regions of the world. An important aspect of OMCT’s mandate is to respond to the advocacy and capacity-building needs of its network members, including the need to develop effective international litigation strategies to assist victims of torture and ill-treatment in obtaining legal remedies where none are available domestically, and to support them in their struggle to end impunity in states where torture and ill-treatment remain endemic or tolerated practices. In furtherance of these objectives, OMCT has published a Handbook Series of four volumes, each one providing a guide to the practice, procedure, and jurisprudence of the regional and international mechanisms that are competent to examine individual complaints concerning the violation of the absolute prohibition of torture and ill-treatment. This updated edition of the Handbook on Article 3 of the European Convention on Human Rights is the fi rst volume of the series. Article 3 of the European Convention on Human Rights: A PRACTITIONER’S HANDBOOK OMCT Handbook Series Vol. 1 Alexander Morawa, Nicole Bürli Peter Coenen and Laura Ausserladscheider Jonas 2nd edition 4 ACKNOWLEDGEMENT We would like to express our sincere gratitude to Christopher Keeler, Jonas Hertner, and Ivan Shalev for their editorial assistance and comments on the draft. Our gratitude also extends to Marina Gente and Anne-Laurence Lacroix for their support at various stages of this project. We would also like to thank those who have contributed to the fi rst edition. First and foremost we would like to express our deepest gratitude to Uğur Erdal and Hasan Bakırcı who authored the fi rst edition. We would also like to thank Victoria Lee and Aubra Fletcher for their editorial assistance and to Giulia Grazioli, Sanne Rooseboom and Yvonne Troya for their legal and thematic research during various stages of the project. We are very grateful to Agnes van Steijn, case lawyer at the Registry of the European Court of Human Rights for reading several drafts of the Guide. We are grateful to the following lawyers who very kindly permitted us to include documents drafted by them as appendices to this Guide: Roeland Böcker of the Ministry for Foreign Affairs of the Netherlands, for the Government’s observations submitted to the Court in the case of Van der Ven v. the Netherlands; Professors Kevin Boyle and Françoise Hampson, the applicants’ legal representatives in the case of Akkum and Others v. Turkey, for the observations submitted to the Court on behalf of the applicants; Philip Leach, Cihan Aydın and Reyhan Yalçındağ, the applicant’s legal representatives in the case of Kişmir v. Turkey, for the observations submitted to the Court on behalf of the applicant. Our gratitude also expends to the third party interveners (NGOs) in the case of A and Others v. Secretary of State for the Home Department and A and Others (FC) and Another v. Secretary of State for the Home Department, and in the case of Ramzy v. The Netherlands, for permission to reproduce their submissions in the appendices. We would like to thank Roderick Liddell, Head of External Relations and Communication at the European Court of Human Rights, for allowing us to repro- duce various documents available on the Council of Europe’s website which appear in several of the Textboxes of this Guide. Finally, my thanks to Veronica de Nogales Leprevost for contributing the cover design for the OMCT Handbook Series. DISCLAIMER The views expressed in this book are solely those of the authors. They do not rep- resent the views of any organisation, institution or Government. 5 FOREWORD ‘Nothing can justify torture and cruel, inhuman, or degrading treatment under any circum- stances’. International law could not be clearer on this point. Yet implementation remains the primary challenge around the world; and torture, cruel, inhuman, or degrading treatment remains sadly a reality in most regions of the world. This is true also for Europe and the member states to the Council of Europe. Every year hundreds of cases are submitted invoking a violation of Article 3 of the Convention dealing with a broad range of torture and ill-treatment in custody, the failures to investigate and to hold account perpetrators, ill-treatment of migrants and complicity in torture as we have seen in the context of the global responses to terrorism over the last decade. It is diffi cult in all this to overstate the importance of the European Court of Human Rights to bring justice to victims and to main- tain and develop effective international law against torture, cruel and inhuman or degrading treatment. This updated practitioner’s handbook is intended to provide a practical tool to enable, encourage, and support civil society as well as litigators to use regional human rights remedies effectively to protect victims of torture and ensure ac- countability, remedies, and reparations. It is fair to say that the European Court of Human Rights has developed until today a rich body of jurisprudence on the absolute prohibition of torture, cruel and inhuman or degrading treatment and has evolved in its working procedures, for example by developing follow-up mea- sures and providing effective interim measures. The progressive development of law is another factor marking the importance of the court as it allows human rights organisations and lawyers to use the European Court of Human Rights for the purposes of strategic litigation, seeking to redress systemic and institutional problems in their home countries across the region. This is needed because torture is often not redressed domestically despite its uni- versal repudiation and criminalization. Practiced outside the public eye, torture allegations raise serious evidentiary challenges for victims and their defenders. Whether practiced by State offi cials in an isolated case or worse as part of a sys- temic policy, litigators often fi nd themselves confronted with a culture of silence. This is a signifi cant barrier to accessing justice. State institutions often chose to protect their law enforcement authorities supporting a false corps spirit within. Instead states should see torture as it is, namely as a crime under international law. The fact that it is committed in the name of the state should make our response not more lenient but more vigilant. Fighting torture raises additional challenges. 6 Mobilising public opinion or sympathy even in the judicial system can be diffi - cult if the victim is accused of serious crimes. Furthermore seeking remedies and reparations for victims of torture often result in threats to victims, witnesses, and human rights defenders. In light of these challenges, pursuing remedies before the European Court of Human Rights is often the last and only realistic way of redressing torture. The fi rst publication of this Handbook was drafted in 2006 by Uğur Erdal and Hasan Bakirci two experts on the European Human Rights System. The second edition was revised by Alexander Morawa, Professor at the University of Lucerne, Nicole Bürli, Human Rights Advisor at the OMCT, Peter Coenen, Research Fellow at the University of Lucerne, and Laura Ausserladscheider Jonas, Associate Director of the Lucerne Summer Academy for Human Rights Implementation. The second edition details changes over the last eight years in the Court’s procedures and substantive jurisprudence. We hope that this publication will be of practical help to lawyers, human rights defenders and in particular the members of the SOS torture network of the OMCT and will contribute to closing the implementation gap and bringing us closer to the legal promise that indeed ‘nothing can justify torture under any circumstances’. Gerald Staberock Secretary General July 2014 7 8 TABLE OF CONTENT Acknowledgement 5 Disclaimer 5 Foreword 6 Introduction 15 PART I: OVERVIEW OF THE COUNCIL OF EUROPE, THE CONVENTION AND THE COURT 17 1.1 The Council of Europe 19 1.2 The European Court of Human Rights 21 1.3 The Judges and the Registry of the Court 23 1.3.1 The Judges 23 1.3.2 The Registry 24 1.4 Structure of the Court 25 1.4.1 The Grand Chamber 25 1.4.2 The Sections and the Chambers 26 1.4.3 The Committees 27 1.4.4 Single Judge Formation 27 1.5 Instruments of the Court 27 1.5.1 The European Convention on Human Rights 27 1.5.2 The Protocols 29 1.5.3 The Rules of Court 30 1.5.4 Practice Directions 31 1.5.5 Decisions of the Commission and Decisions and Judgments of the Court 31 PART II: HOW TO BRING A CASE BEFORE THE COURT 35 2.1.
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