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Training Seminar for legal advisors to the Constitutional Court and the Court of Bosnia and Herzegovina

9 March 2015

This seminar is part of a collaborative project to build the capacity of the Court of Bosnia and Herzegovina and the Constitutional Court of Bosnia and Herzegovina by training judicial advisors to both courts on the European Convention on Human Rights.

 

“The prohibition of torture, inhuman or degrading treatment or punishment under the ECHR”
Sarajevo, Bosnia Herzegovina
Hotel Bristol
24-25 February 2015

“The prohibition of torture, inhuman or degrading treatment or punishment under the ECHR”

Sarajevo, Bosnia Herzegovina

Hotel Bristol

24-25 February 2015

 

  1.  Introduction

On 24 and 25 February 2015 the AIRE Centre in collaboration with the Public Institution Centre for Judicial and Prosecutorial training of the Federation of Bosnia and Herzegovina, with the support of the British embassy in Sarajevo, hosted a seminar for legal advisors on the prohibition of torture and inhuman or degrading treatment or punishment under the European Convention on Human Rights (ECHR). This event was hosted in Sarajevo, Bosnia and Herzegovina.

This seminar is part of a collaborative project to build the capacity of the Court of Bosnia and Herzegovina and the Constitutional Court of Bosnia and Herzegovina by training judicial advisors to both courts on the European Convention on Human Rights. 

The aim of this seminar was to bring together international and national experts to share good practice in order to improve the national implementation of the Convention.

  

  1.  Presentations

The seminar was opened by Almir Tabaković, expert advisor for CEST Federation of Bosnia and Herzegovina and Béatrice Blois, Legal Officer for the Rule of Law Programme for the Western Balkans at the AIRE Centre.

The first day of the seminar covered the negative and positive obligations under Article 3 of the ECHR and the definitions of the terms therein. This was followed by an in-depth analysis of the duty to conduct an effective investigation into violations of ill-treatment and detention conditions with a particular focus on the detention of the mentally ill, and the application of Article 3 in relation to deportation and extradition. 

The second day focused on the protection of vulnerable groups, such as children. Both days included a discussion of the law and practice in Bosnia and Herzegovina in relation to these issues.

 

  1.  Discussions and Conclusions

Navi Ahluwalia, barrister at Garden Court Chambers in London, opened the seminar with the State’s negative and positive obligations under Article 3 of the ECHR. It was explained that States have a negative obligation to criminalise forms of ill-treatment which are contrary to Article 3. This not only requires ill-treatment to be a statutory offence but also extends to the interpretation of those laws.

There are differences between the types of ill-treatment but they must all meet their respect “minimum level of severity”. The European Court of Human Rights (ECHR) has held that torture consists of “deliberate inhuman treatment causing very serious and cruel suffering” which attracts a special stigma[1]. A treatment or punishment, which causes intense physical or mental suffering, but is not severe enough to amount to torture is said to be inhuman. Degrading treatment is that which is said to “arouse in their victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance”[2]. Although there are different levels of severity, ill-treatment on any of these grounds would amount to a violation of Article 3.

The two categories of positive obligations were set out: the procedural obligation to investigate allegations of ill-treatment and the requirement to provide protection from non-State actors[3]. In order to determine whether there was a real risk, the ECHR will look at whether the State had done everything it could have been reasonably expected to do in order to protect the rights of the victims. This applies across the board, such as in detention cases when prison staff knew or ought to have known that a detainee was at risk of ill-treatment. Using custodial abuse as an example, it was stated that a failure to investigate custodial abuse may give rise to a violation under Article 3. In order for there to be an effective investigation, the investigation must be conducted in a timely fashion; the investigation must be conducted by an independent body; and where evidence obtained has shown prima facie abuse, the Convention requires criminal proceedings to be brought against the perpetrators. The duty to investigate carries on irrespective of when the events took place. 

In the next session, Nuala Mole, Senior Lawyer at the AIRE Centre, discussed detention conditions and the detention of mentally ill persons under the ECHR. It is important to note that detention conditions can refer to physical conditions of the detention facilities such as: the location (e.g. a police station) or the conditions of the location, such as prison overcrowding[4]. Whilst discussing the case law of the ECtHR, Nuala Mole pointed out that inadequate medical care, including mental health care can rise to the level of inhuman and degrading punishment under the ECHR[5]. 

Under Article 3 a person should not be returned to their home country where there are substantial grounds to believe that upon return, the person may be subject to ill-treatment contrary to Article 3[6]. The test for this is the “real risk” test. This also applies in cases of terrorism when national security is at risk[7]. In practice, States should make an assessment of whether there is a risk by looking at the person(s) individual circumstances and secondly they must evaluate the country of return’s evidence from a wide variety of sources such as UN human rights reports, NGO reports, media and they should also consider expert evidence.

It is noteworthy that Article 3 in now woven into the jurisprudence of the Court of Justice of the European Union[8], which is important for States wishing to join the EU. Respect for human rights is one of the criteria for EU accession.

In the case of children, the State has a duty to protect children from the ill-treatment by their parents or other non-state actors[9]. The Court found that a failure by the local authorities to remove children from their parents, who had been subjected to serious levels of abuse and/or neglect, as soon as they became aware of the abuse and neglect, amounted to inhuman and degrading treatment[10]. Wrongfully removing children from their parents or guardians was also found to be a violation by the Court.

Participants raised a current issue that regarded a case of severe ill-treatment of children by State agents, which was mediatised, but not investigated by the State. They explained that it was common to hear or read in the media of these types of cases but never see these claims materialise into effective investigations or into court proceedings.

The seminar was a success. Participants from both courts presented their feedback and recommendations for future training seminars.

 

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[1] Ireland v United Kingdom (Application No. 5310/71), judgment of the 148 January 1978, § 167

[2] Ibid

[3] Osman v United Kingdom [GC] (Application No. 23452/94), judgment of the 28 October 1998

[4] Kalashnikov v Russia (Application No. 47095/99), judgment of the 15 July 2002

[5] Keenan v United Kingdom (Application No. 27229/95), judgment of the 3 April 2001

[6] Soering v United Kingdom (Application No. 14038/88), judgment of the 7 July 1989

[7] Chahal v United Kingdom (Application No. 22414/93), judgment of the 15 November 1996

[8] Case C-472/13 Sheperd v Germany, judgment of the 26 February 2015 (CJEU)

[9] A v United Kingdom (Application No. 25599/94), judgment of the 23 September 1998

[10] Z and Others v United Kingdom [GC] (Application No. 29392/95), judgment of the 10 May 2001

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