The prohibition of torture - European Court of Human Rights

75 7th General Report of the
CPT, para. 34.
76 Jabari v. Turkey judgment of
11 July 2001.
77 Kurt v. Turkey and Kaya
v. Turkey.
The existence of automatic and mechanical application
of provisions such as a short time-limit for
submitting an asylum application must be considered
at variance with the protection of the fundamental
value embodied in Article 3 of the
Convention.
The question of whether the decision-making
process as a whole offers suitable guarantees
against persons being sent to countries where they
run a risk of torture or ill-treatment is the focus for
the CPT too, as this best serves their preventive
role. The CPT has expressed its desire to explore
whether the applicable procedure offers the persons
concerned a real opportunity to present their
cases, and whether officials entrusted with
handling such cases have been provided with appropriate
training and have access to objective
and independent information about the human
rights situation in other countries. The CPT also recommends
that, in view of the potential gravity of
the interests at stake, a decision involving the removal
of a person from a state’s territory should be
subject to appeal before another body of an independent
nature prior to its implementation. 75
Cases where the Court has determined that a
deportation would give rise to issues under Article
3 include the deportation of an Indian national
who supported a Sikh separatist movement in Punjab
back to India; the deportation of an Iranian
woman back to Iran where she would face near
certain death as an alleged adulterer; and the deportation
of a political opponent, who had previously
been tortured, back to Zanzibar. 76
Disappearances
The phenomenon of disappearances raise an
interesting issue with respect to potential violations
of the Article 3. Disappearances occur where a
person is taken into unacknowledged detention by
agents of the state or by persons acting on behalf
of or with the acquiescence of the official authorities.
Unacknowledged detentions often result in
the eventual confirmed death of the disappeared
person or complete silence about the fate of the
“disappeared” person, leaving relatives and
friends to believe that the person has died. This
sort of situation raises two questions: how is the
dignity of the person who is the subject of the unacknowledged
detention affected? and what is the
impact on the family and loved ones of the disappeared
person?
The Court chooses not to address the disappearance
of a person per se as degrading or inhuman
treatment, but to deal with it under Article 5
(deprivation of liberty). The Court does recognise
that there may in some cases be evidence that an
individual was ill-treated before they “disappeared”.
77 However, it has pointed out that the
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