The European Legal Tradition Against Torture and Implementation of Article 3 of the European Convention on Human Rights

[Spring 2007] Public Law 15

Posted: 7 Jan 2017

Date Written: 2007

Abstract

Starting from the 2006 judgment of the House of Lords in the A (No. 2) case, this analysis suggests that national courts and the European Court of Human Rights should note how the common law and civil law legal traditions have historically dealt with torture, when considering new enforcement mechanisms under Art.3 of the European Convention on Human Rights. This historical approach shows that Art.3 represents a wider, pre-existing European legal tradition against torture, encompassing a norm rooted within national legal systems themselves.

Nevertheless, common law and civil law courts have institutional problems preventing torture as an act of state, where the product of torture is never introduced as evidence in legal proceedings. National courts should accordingly assume an independent investigative role Into allegations of official torture, thereby better implementing Art.3 and representing evolutionary development in the common law, civil law, and indeed wider European legal traditions.

Keywords: Torture, Article 3, European Convention on Human Rights, common law, civil law, legal tradition, comparative law

Suggested Citation

Jenkins, David, The European Legal Tradition Against Torture and Implementation of Article 3 of the European Convention on Human Rights (2007). [Spring 2007] Public Law 15, Available at SSRN: https://ssrn.com/abstract=2841537

David Jenkins (Contact Author)

Jenkins Constitutional ( email )

Denmark

HOME PAGE: http://www.jenkinsconstitutional.com

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