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Applicability of Article 3 of the European Convention on Human Rights at the Borders of EuropeLehto, Enni
Helsinki Law Review 2018/1 s. 54–77
The European Court of Human Rights has consistently held the prohibition of torture and inhuman treatment or punishment as absolute, meaning no derogation or balancing against other interests is allowed. Based on this, the Court has considered the expulsion or extradition of an alien also prohibited under Article 3 when it would result in the individual being ill-treated in the destination country. However, the Court has found an expulsion or extradition to violate Article 3 only rarely. A more detailed analysis of the Court’s jurisprudence shows that in practice the prohibition of torture is subject to limitations and different forms of balancing even though it is not stated outright in the judgements. The Court’s references to the absolute nature of the prohibition function more as an argumentative tool for an inclusive interpretation of Article 3 than a definitive statement about the non-derogability of the prohibition of torture. However, the obscuration of exactly how the balancing works is problematic. It results in rather inconsistent jurisprudence and allows the Court wide discretion to decide on the applicability of Article 3 on a case by case basis. (Edilex-toimitus)