Case Watch: European Court Strengthens Anti-Torture Safeguards
| Author | Marion Isobel |
| Published date | 01 December 2014 |
| Date | 01 December 2014 |
| DOI | http://doi.org/10.1177/203228441400500410 |
| Subject Matter | Update |
New Journal of Eu ropean Crimina l Law, Vol. 5, Issue 4, 2014 563
CASE WATCH: EUROPEAN COURT
STRENGTHENS ANTI-TORTURE SAFEGUARDS
M I
In “Case Watch” reports, lawyers at the Open Socie ty Justice Initiative provide analysis
of notable court decisions and cases that relate to our work to advance human rights
law around the world.
Criminal defense rights have never been a popular issue. When I tell strangers that
I work on criminal defense issues for a human rights organizat ion, their response is
o en perplexed: “ e rights of criminals?” they ask. “How can you sleep at night?”
And this knee-jerk react ion is re e cted in our national and international politics too.
ere is litt le political capital in being s een to care about the rights of people who have
been arrested, even before a cour t decides on whether they are guilt y or innocent.
But in recent years, thi ngs have been changing t hroughout Europe. And they are
changing at every level of policy-making, from national governments and courts, to
regional EU legislators, to the United Nations. Eu rope is getting serious about defense
rights and the momentu m is undeniable.
A judgment on 7October 2013 from the European Court of Human Rig hts adds
to this forwards movement. In Etxebarria v Spain, the Court concluded that Spai n
should implement safeguards to protect people in police detention from torture by
the police, under Article3 of the European Convention on Human Rights. is is,
to my knowledge, the rst time the court has endorsed a view that certain rights
that are guaranteed to people arrested on criminal charges, which we normally only
see protected under Article6 of the convention, are also a par t of the state’s positive
obligations under the anti-tort ure provisions of Article3.
e applicants in this case complained of being tortured by the police a er being
arrested for terrorism-related o ences. ey were held under a pa rticularly severe
regime of what i s known as incommunicado detention in Spain. ey were denied t hree
of the most basic defense rights: they cou ld not communicate with the outside world,
they could not access a lawyer of their choice, and they could not get independent
medical assistance, even a er they complained of being beaten and abused by the
police.
e Justice Initiative’s intervention in this c ase argued that any regime that li mits
these funda mental defense rights breaches Article3 of the convention because it fails
to provide safeguards to protect people who are at risk of torture. Wit hout a lawyer,
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