Crime, punishment and Article 3 ECHR: puzzles and prospects of applying an absolute right in a penal context

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Abstract

Article 3 of the European Convention on Human Rights (ECHR), which provides that ‘[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment’, is considered to enshrine an absolute right. Yet it contains an under-explored element: inhuman and degrading punishment. While torture has been the subject of extensive academic commentary, and inhuman and degrading treatment has been examined to some extent, the prohibition of inhuman and degrading punishment has not been explored in significant depth, despite its considerable potential to alter the penal landscape. This article elucidates the key doctrinal elements of inhuman and degrading punishment ‘and treatment associated with it’, in the words of the European Court of Human Rights (ECtHR). It addresses a number of ‘puzzles’ or problems which arise in applying the absolute right enshrined in Article 3 of the ECHR to sentencing and imprisonment, clarifies ECtHR doctrine and highlights some of its key implications. Bringing a theoretically informed understanding to bear on the application of Article 3 of the ECHR in a penal context, the article provides clarity and coherence to a complex and crucial intersection between human rights and penology.

Details

Original languageEnglish
Pages (from-to)721-743
JournalHuman Rights Law Review
Volume15
Issue number4
Early online date30 Sep 2015
Publication statusPublished - Dec 2015

Keywords

  • inhuman and degrading treatment, inhuman and degrading punishment, dignity, penology, penal theory, Vinter v United Kingdom, Article 3 European Convention on Human Rights

ASJC Scopus subject areas