![Sample our Politics & International Relations journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5947/TOC-Subject-Sample-2021-Politics-International-Relations.jpg"})
Abstract
Although the Strasbourg Court is primarily a mechanism for the protection of individual human rights, many of the leading cases on violation of article 3 have a collective or a structural dimension. This is of great importance for the Convention Against Torture (CAT) definition of torture, which is that torture must have a purpose. Thus, the author's experience of many Kurdish and Chechen complaints against Turkey and Russia respectively is that they relate to the consequences of self-determination struggles and repressive state responses. Or, as in many of the Russian cases concerning article 3, they relate to the structural problems of the Russian penitentiary system, in which the officers, mostly ex-military, see the prisoners as the enemy. A successful claimant at Strasbourg in most cases obtains a declaration that a violation has been committed by the government, and a sum of money in ‘just satisfaction’. Compared with the practice of the Inter-American Court, this is minimalist. The enforcement procedure through the Committee of Ministers, for general measures, is opaque and slow. The question remains: why do it?
Acknowledgements
With grateful thanks for the research assistance of Dr Lucy Finchett-Maddock of University of Exeter.
Notes
Menno Kamminga, ‘Is the European Convention on Human Rights Sufficiently Equipped to Cope with Gross and Systematic Violations?’, Netherlands Quarterly of Human Rights 12, no. 2 (1994): 153–64.
The relevant principles and supporting case-law, to 2002, are admirably summarised in Aisling Reidy, The Prohibition of Torture. A Guide to the Implementation of Article 3 of the European Convention on Human Rights, Council of Europe Human Rights Handbooks, No. 6 (Strasbourg: Council of Europe, 2002), http://echr.coe.int/NR/rdonlyres/0B190136-F756-4679-93EC-42EEBEAD50C3/0/DG2ENHRHAND062003.pdf (accessed 31 December 2011).
Application no. 5310/71, Judgment of 18 January 1978.
Ibid., para. 167.
Application no. 100/1995/606/694, Judgment of 26 November 1996.
Application no. 25803/94, Judgment of 28 July 1999.
Entered into force on 26 June 1987.
Ronald D. Crelinsten, ‘In Their Own Words: The World of the Torturer’, in The Politics of Pain: Torturers and Their Masters, ed. Ronald D. Crelinsten and Alex P. Schmid (Boulder, CO: Westview Press, 1994), 35–61.
Ronald D. Crelinsten, ‘The World of Torture: A Constructed Reality’, Theoretical Criminology 7, no. 3 (2003): 293–318.
Ibid., 295.
Ibid., 296.
Herbert C. Kelman, ‘Violence without Moral Restraint: Reflections on the Dehumanisation of Victims and Victimizers’, Journal of Social Issues 29, no. 4 (1973): 25–61.
Herbert C. Kelman, ‘The Social Context of Torture: Policy Process and Authority Structure’, in The Politics of Pain: Torturers and Their Masters, ed. Ronald D. Crelinsten and Alex P. Schmid, (Leiden, The Netherlands: COMT, University of Leiden, 1993), 21–38.
Herbert C. Kelman, ‘The Policy Context of Torture: A Social-Psychological Analysis’, International Review of the Red Cross 857 (2005): 123–34.
Ibid., 125.
Ibid., 124.
Ibid.
Ibid., 131.
Kelman, ‘Violence without Moral Restraint’, 52.
Kelman, ‘Policy Context of Torture’, 131.
David Becker, Elizabeth Lira, Maria Isabel Castillo, Elena Gomez, and Juana Kovalskys, ‘Therapy with Victims of Political Repression in Chile: The Challenge of Social Reparation’, Journal of Social Issues 46, no. 3 (1990): 133–49.
Ibid., 138.
Ibid., 139.
Ibid.
Ibid., 147.
Ibid.
Crelinsten, ‘World of Torture’, 312.
Katherine Gallagher, ‘Universal Jurisdiction in Practice: Efforts to Hold Donald Rumsfeld and Other High-level United States Officials Accountable for Torture’, Journal of International Criminal Justice 7, no. 5 (2009): 1087–16, http://jicj.oxfordjournals.org/content/7/5/1087.full (accessed 1 January 2012).
Julie Mertus, ‘Truth in a Box: The Limits of Justice Through Judicial Mechanisms’, in The Politics of Memory: Truth, Healing and Social Justice, ed. Abdullahi An-Na'im and Ifi Amadiume (New York: Zed Books, 2000), 142–61, http://www.aupeace.org/files/TruthInBox.pdf (accessed 27 December 2011).
Ibid., 142.
Ibid., 150.
Ibid., 159.
See Bill Bowring, ‘Fragmentation, Lex Specialis and the Tensions in the Jurisprudence of the European Court of Human Rights’, Journal of Conflict and Security Law 14, no. 3 (2009): 485–98.
Ibid., also arguing that International Humanitarian Law would not and could not have provided adequate remedies.
For the submissions of the applicants, the Russian responses and the information documents prepared by the Department for the Execution of Judgments of the European Court of Human Rights, see http://www.londonmet.ac.uk/research-units/hrsj/affiliated-centres/ehrac/ehrac-litigation/chechnya-echr-litigation-and-enforcement/enforcement-of-chechen-judgments.cfm (accessed 1 January 2012).
Bill Bowring, ‘Marx, Lenin and Pashukanis on Self-Determination: Response to Robert Knox’, Historical Materialism 19, no. 2 (2011): 113–27; see also Bill Bowring, ‘Self-determination, the Revolutionary Kernel of International Law’, in The Degradation of the International Legal Order? The Rehabilitation of Law and the Possibility of Politics (Abingdon: Routledge, 2008), Chapter 1: 9–38.
At http://www.echr.coe.int/NR/rdonlyres/8227A775-CD37-4F51-A4AA-1797004BE394/0/PracticeDirectionsJustSatifactionClaims2007.pdf (accessed 1 January 2012).
Application no. 100/1995/606/694, Judgment of 26 November 1996.
Application no. 25803/94, Judgment of 28 July 1999.
Application no. 77617/01, Judgment of 26 January 2006.
Application no. 34085/06, Judgment of 5 July 2011.
See http://www.londonmet.ac.uk/ehrac, a website which contains a wealth of information and links to documentation concerning hundreds of cases against Russia, as well as analytical materials.
Application no. 26307/95, Judgment of 6 May 2003.
Public Verdict, ‘The Execution of Judgments of the European Court of Human Rights Concerning the Effectiveness of the Investigation into Torture and Cruel Treatment Committed by the Police’, June 24, 2010, http://eng.publicverdict.ru/topics/researches/7387.html (accessed 1 January 2012).
Krasnoyarsk Committee for Human Rights Protection, Memorial Human Rights Commission of Komi Republic, Interregional Public Organization ‘Committee against Torture’ (Nizhni Novgorod), Regional Public Organization ‘Women of the Don Union’ (Rostov on Don), Regional Public Organization ‘Man and Law’ (Yoshkar Ola), Public Verdict Foundation (Moscow), Center of Civic Education and Human Rights (Perm).
Akulinin and Babich v. Russia (no. 5742/02, 2 October 2008); Antipenkov v. Russia (no. 33470/03, 15 October 2009); Antropov v. Russia (no. 22107/03, 29 January 2009); Barabanshchikov v. Russia (no. 36220/02, 8 January 2009); Belousov v. Russia (no. 1748/02, 2 October 2008); Vladimir Fedorov v. Russia (no. 19223/04, 30 July 2009); Gladyshev v. Russia (no. 2807/04, 30 July 2009); Denisenko and Bogdanchikov v. Russia (no. 3811/02, 12 February 2009); Maslova and Nalbandov v. Russia (no. 839/02, 24 January 2008); Menesheva v. Russia (no. 59261/00, 9 March 2006); Mikheyev v. Russia (no. 77617/01, 26 January 2006); Nadrosov v. Russia (no. 9297/02, 31 July 2008); Oleg Nikitin v. Russia (no. 36410/02, 6 September 2008); Polonskiy v. Russia (no. 30033/05, 19 March 2009); Samoylov v. Russia (no. 64398/01, 2 October 2008); Toporkov v. Russia (no. 66688/01, 1 October 2009).
Ministers' Deputies Information Documents CM/Inf/DH(2008)33 of 11 September 2008, ‘Actions of the Security Forces in the Chechen Republic of the Russian Federation: General Measures to Comply with the Judgments of the European Court of Human Rights’.
Darren Hawkins and Wade Jacoby, ‘Partial Compliance: A Comparison of the European and Inter-American American Courts for Human Rights’, Journal of International Law and International Relations 6, no. 1 (2010): 35–85, http://www.stevendroper.com/ECHR%20Hawkins%20and%20Jacoby%20APSA%202008.pdf (accessed 27 December 2011).
Ibid., 36.
Judgment of 27 November 2003, Inter-Am. Ct. H.R., (Ser. C) No. 103 (2003), http://www1.umn.edu/humanrts/iachr/C/103-ing.html (accessed 1 January 2012).
Ibid., 41.
Judgment of 7 September 2004, at http://www.corteidh.or.cr/docs/casos/articulos/seriec_114_ing.pdf (accessed 1 January 2012).
Ibid., 84.
Ibid., 85.
See Bill Bowring, ‘The Russian Federation, Protocol No. 14 (and 14bis), and the Battle for the Soul of the ECHR’, Goettingen Journal of International Law 2, no. 2 (2010): 589–617.