A critique of the decision of the European Court of Human Rights in Ireland v United Kingdom, and its effect on Article 3 jurisprudence

Article 3 of the European Convention on Human Rights ostensibly provides absolute protection against torture and inhuman or degrading treatment or punishment. Despite what the Court says, this protection is not unqualified. Article 3 now embodies a two-tiered protection, with torture alone attracting a ‘special stigma’. This hierarchical approach is traceable to the seminal decision of Ireland v United Kingdom, and Part A of this thesis demonstrates that it is deeply flawed. The hierarchy between torture and other forms of ill-treatment (the Ireland hierarchy) has become entrenched in the Court’s case law. It continues to manifest in the Court’s narrow definition of torture, and its expansive interpretation of inhuman and degrading treatment. This thesis argues that the growing breadth of the latter concept has occurred in tandem with, and may partly explain, the rapid increase in the number of Article 3 violations found by the Court each year. These developments have carried important consequences. There have been policy consequences for the member states in areas such as national security (where deportation of terrorist suspects is sought to be used as a policy tool) and prisoners’ rights (where the proportionality of sentences, conditions of detention and administrative penalties within prisons, are all now subject to European supervision). In addition to the policy consequences, the expanding second tier of the Ireland hierarchy has carried legal consequences for the Court’s conception of Article 3. It has compelled the Court to introduce limiting devices into its case law on inhuman and degrading treatment. The introduction of these limiting devices, into what is an ostensibly unqualified domain, challenges the position of Article 3 as an absolute right.This thesis is not currently available in ORA