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The right to life, the prohibition of torture and positive obligations

3 important questions on The right to life, the prohibition of torture and positive obligations

Prohibition of torture; scope

Art. 3 ECHR
no one shall be subjected to torture or inhuman/degrading treatment or punishment. To fall within the scope the ill-treatment must:
  1. attain a minimum level of severity
  2. assessment is relative
    1. depends on all circumstances -> ECtHR M.S.S.

Deportation in relation to article 3 (and 2) ECHR

ECtHR Al Sadoon Mufdhi §123
If there are substantial grounds to believe the person who is going to be deported is going to be subjected to torture of degrading treatment (death penalty). The deportation is to be cancelled.
  • obligation to investigate
  • real risk
    • ''possibility of...'' does not fall within this rule

also see ECtHR M.S.S. §340  -> Belgium had the obligation to investigate the risk before sending the asylum seeking back to Greece

Prohibition of torture/ right to life; positive obligations

  1. Protect
    1. legal and administrative framework
      1. effective criminal law to deter the commission of offences against the person
    2. law enforcement machinery
      1. prevention, suppression and sanctioning of breaches
  2. Prevent - ECtHR Tagayeva §52 e.v.
    1. did authorities know, or should they have known?
    2. did they take adequate measures to avoid the infringement to happen?
  3. Investigate - ECtHR Tagayeva §64 e.v.
    1. effective and independent investigation
    2. adequate investigation
    3. public scrutiny
    4. promptly

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Fundamental Rights of Europe

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