Grading Scale of Degradation: Identifying the Threshold of Degrading Treatment or Punishment under Article 3

Arai, Yutaka (2004) Grading Scale of Degradation: Identifying the Threshold of Degrading Treatment or Punishment under Article 3. Netherlands Quarterly of Human Rights, 21 (3). pp. 385-421. ISSN 0169-3441. (Access to this publication is restricted)

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Abstract

Among international human rights instruments, the rich jurisprudence on Article 3 of the European Convention on Human Rights (ECHR) has yielded meaningful and workable principles for defining the normative parameter of freedom from torture and other forms of maltreatment. While identification of torture has been limited to a small number of straightforward cases of assault giving rise to physical and mental anguish of an especially aggravated character, the overwhelming majority of cases raised under Article 3 have related to degrading or inhuman treatment or punishment. By focusing on threshold cases involving freedom from degrading treatment or punishment, the least serious absolute right under Article 3, this article seeks to delineate the boundaries of the effective guarantee provided by this absolute right in the Strasbourg organs’ judicial policy. The examination suggests an encouraging sign that the Strasbourg organs have funnelled considerable vigour and creativity into their law-making policy, elaborating on the most succinct provision in the ECHR. They have capitalized on the graduating scale of degrading treatment so as to diversify the protective scope of Article 3, in a continued search for progressive European public order. They have supplied to individual victims a horizon of possible arguments, which can unfold along lines conducive to the shaping and restructuring of the emerging European constitutional system.

Item Type: Article
Subjects: K Law
Divisions: Faculties > Social Sciences > Kent Law School
Depositing User: C.A.R. Kennedy
Date Deposited: 19 Dec 2007 18:29
Last Modified: 05 Sep 2011 23:20
Resource URI: http://kar.kent.ac.uk/id/eprint/781 (The current URI for this page, for reference purposes)
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