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European Conventions on Human Rights and the Prevention of Torture. Issues of Interaction.

Svanidze, Eric (2004)
Department of Law
Abstract
The text brings together the ECtHR and the CPT that are different, but key components of the system of combating torture on the European continent. On the basis of analysis of the historical background of the issue it points out the distancing concept that was followed by the drafters of the ECPT in respect of the relationship of the ECtHR and the CPT. As a result, the latter is not bound by the case-law of the former and is supposed to refrain from the expressing its views on the interpretation of the ECHR and legal terms. The framework of interaction of both mechanisms that is based on respective instruments and developed through the practise of their activities has been enriched by the creation of CPT's standards, which has gained a... (More)
The text brings together the ECtHR and the CPT that are different, but key components of the system of combating torture on the European continent. On the basis of analysis of the historical background of the issue it points out the distancing concept that was followed by the drafters of the ECPT in respect of the relationship of the ECtHR and the CPT. As a result, the latter is not bound by the case-law of the former and is supposed to refrain from the expressing its views on the interpretation of the ECHR and legal terms. The framework of interaction of both mechanisms that is based on respective instruments and developed through the practise of their activities has been enriched by the creation of CPT's standards, which has gained a kind of legislative strength due to the factual power of the CPT's recommendations, almost systematic ex-officio coverage of all member-states and unlimited possibilities of controlling their implementation. The avenues for the CPT's texts to be brought in the ECtHR's proceedings are determined by their worth as sources of factual information and commonly accepted standards in their dynamic. It is suggested that the proper interaction of both bodies lies not in a mechanical or artificial distancing them from each other. The practise, traced in the case-law of the ECtHR and the CPT's documents, demonstrates that both mechanisms, being living ones, have advanced their interaction. Obviously it necessitates a high degree of harmonization between them, elimination of any unjustified dissonance in their activities, be it in respect of particular findings or their standards. The research identifies main features of common terms and understanding of overlapping notions, points of contact of the ECHR and the CPT that expand not only on prohibition of torture, inhuman or degrading treatment or punishment but many other rights protected by the ECHR, which are attributable to persons deprived of their liberty. Deficiencies revealed by the survey are related to inconsistencies in some procedural aspects of bringing in the CPT's documents and sporadic, in a certain degree, character of this work within the ECtHR&semic unjustified distortion of its case-law and particular terms used by it, as well as unjustified exceptions from the requirement of keeping due distance from matters within the competence of the ECtHR on the CPT's side. The content and increasing scale of interaction of both instruments consequently entail not just avoidance of any differences, but require accurate examination, coordination and explanation of those, which appear to be caused by divergences in the principles of supervision, particularities of means available and immediate goals pursued, respectively to decide on violations of the ECHR and to strengthen preventive framework. (Less)
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author
Svanidze, Eric
supervisor
organization
year
type
H1 - Master's Degree (One Year)
subject
keywords
International Human Rights Law
language
English
id
1554748
date added to LUP
2010-03-08 15:22:35
date last changed
2010-03-08 15:22:35
@misc{1554748,
  abstract     = {The text brings together the ECtHR and the CPT that are different, but key components of the system of combating torture on the European continent. On the basis of analysis of the historical background of the issue it points out the distancing concept that was followed by the drafters of the ECPT in respect of the relationship of the ECtHR and the CPT. As a result, the latter is not bound by the case-law of the former and is supposed to refrain from the expressing its views on the interpretation of the ECHR and legal terms. The framework of interaction of both mechanisms that is based on respective instruments and developed through the practise of their activities has been enriched by the creation of CPT's standards, which has gained a kind of legislative strength due to the factual power of the CPT's recommendations, almost systematic ex-officio coverage of all member-states and unlimited possibilities of controlling their implementation. The avenues for the CPT's texts to be brought in the ECtHR's proceedings are determined by their worth as sources of factual information and commonly accepted standards in their dynamic. It is suggested that the proper interaction of both bodies lies not in a mechanical or artificial distancing them from each other. The practise, traced in the case-law of the ECtHR and the CPT's documents, demonstrates that both mechanisms, being living ones, have advanced their interaction. Obviously it necessitates a high degree of harmonization between them, elimination of any unjustified dissonance in their activities, be it in respect of particular findings or their standards. The research identifies main features of common terms and understanding of overlapping notions, points of contact of the ECHR and the CPT that expand not only on prohibition of torture, inhuman or degrading treatment or punishment but many other rights protected by the ECHR, which are attributable to persons deprived of their liberty. Deficiencies revealed by the survey are related to inconsistencies in some procedural aspects of bringing in the CPT's documents and sporadic, in a certain degree, character of this work within the ECtHR&semic unjustified distortion of its case-law and particular terms used by it, as well as unjustified exceptions from the requirement of keeping due distance from matters within the competence of the ECtHR on the CPT's side. The content and increasing scale of interaction of both instruments consequently entail not just avoidance of any differences, but require accurate examination, coordination and explanation of those, which appear to be caused by divergences in the principles of supervision, particularities of means available and immediate goals pursued, respectively to decide on violations of the ECHR and to strengthen preventive framework.},
  author       = {Svanidze, Eric},
  keyword      = {International Human Rights Law},
  language     = {eng},
  note         = {Student Paper},
  title        = {European Conventions on Human Rights and the Prevention of Torture. Issues of Interaction.},
  year         = {2004},
}