The Illusion of Absoluteness? Theory and Practice of the Absolute prohibition of torture, inhuman or degrading treatment or punishment under the European Convention of Human Rights
Bulthuis, Marloes Susanna
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The present dissertation elucidates the principle of absoluteness and revisits the question as to whether the prohibition of torture or inhuman or degrading treatment or punishment as enshrined Article 3 of the European Convention on Human Rights is truly absolute or not. It does so from both a theoretical and practical point of view. While setting up the theoretical framework in which it defines the underlying principles, it has regard the case-law of the European Court of Human Rights in this complex and interesting field of law. This dissertation demonstrates that, while the Court is a staunch advocate of the so-called “principle of absoluteness”, some flaws can be detected in its jurisprudence on Article 3 of the Convention. Indeed, scholarship shows that the Court uses elements of legitimacy, proportionality and balancing while adjudicating on this absolute prohibition. In addition, both the conundrum of conflicts of rights or obligations under this provision and the preconceived legitimacy inherent in the concepts of “punishment” and the “use of force” leave the Court with some challenges. It will be demonstrated that the threshold of application, the minimum threshold of severity and the process of contextualisation are of utmost importance in order to provide for an answer to the question whether Article 3 ECHR is truly absolute. In the end, it appears that this question is one of definition and that the Court should start to devote some of its time to define the “principle of absoluteness” in the context of the absolute prohibition of torture or inhuman or degrading treatment or punishment.