The prohibition of torture - European Court of Human Rights

1 As at 30 June 2003.
Introduction to the Convention
The European Convention on Human Rights
(hereinafter “the Convention”) was signed in Rome
on 4 November 1950, and came into force on 3 May
1953. Today, in 2003, 1 forty-four states have ratified
the European Convention on Human Rights.
In practically all these states the Convention,
as well as creating legal obligations under international
law, is also part of domestic law. In this way
the European Convention on Human Rights is part
of the legal system and it is mandatory for the
domestic courts and all public authorities to apply
its provisions. In national proceedings individuals
may directly invoke its text and case-law, which
must be applied by the national courts. Moreover,
the national authorities, including the courts, must
give the Convention priority over any national law
conflicting with the Convention.
This is in keeping with the overall scheme of
the Convention, which is that the initial and primary
responsibility for the protection of the rights
set forth in the Convention lies with the contracting
states. Article 1 of the Convention obliges each
contracting state to secure to everyone within their
jurisdiction the rights and freedoms defined in the
Convention. The European Court of Human Rights
is there to monitor states’ action, exercising the
power of review.
This relationship between the legal systems
of contracting states and the Court – the subsidiarity
principle – whereby the enforcement of the Convention
by the national authorities goes hand in
hand with European supervision, has given rise to
the existence of a so-called “margin of appreciation”.
The doctrine of the margin of appreciation
recognises that in many instances national authorities
are in a better position to decide on a particular
case or issue. This is particularly true where
there is a wide range of options as to how a matter
can be resolved. However, the margin of appreciation
is applied differently depending on the value
at stake, and the existence of common standards
applied across many member states, and accordingly
the degree of discretion allowed to the states
varies.
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