On The Judicial Protection Of The Freedom From Torture In Europe

Torture origins at the same time with the European society and embraces legitimacy for thousands of years that ranges from ancient Greece and Rome till the Middle Ages. The Enlightenment undermines torture’s legitimacy. After the World War II, the freedom from torture was finally admitted worldwide. Following the Universal Declaration of Human Rights, the article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms protects everyone to be free from torture. Judicial protection mechanism was established by the Council of Europe to make sure this right to be fully realized.As for the judicial protection mechanism in Europe, its basic model is“application- judicial decision- execution of judgment- the inspection of Committee of Ministers of the Council of Europe-satisfactory execution.”The European Court of Human Rights and the Committee of Ministers of the Council of Europe serve as the core institutes for the protection. The European Court of Human Rights has been widening and spreading the protection case by case and giving key judicial interpretation. Specifically, it defines the internal and external boundaries among torture, inhuman and degrading treatment or punishment, besides, the relationship of them. According to the Court, every country has positive responsibilities such as protection and providing remedies. What’s more, it also has the investigation and interpretation responsibilities.One of the characters of this mechanism is its coordination with the non-judicial mechanism. The other is the advance and profound understanding of torture made by the European Courts of Human Rights which is highly praised worldwide.However, in the background of anti-terrorism, the ticking bomb scenario leads to dirty hands theory active again and challenges the absolute prohibition attitude of the European Courts of Human Rights. The Committee of Ministers of the Council of Europe has to face some non-cooperate countries. What’s more, because of the generalization of torture protection, many new cases have been defined as violation of torture prohibition which also gives rise to critics. Respecting people and the development of human rights ideas is the final resource of the protection mechanism. The regional experience of Europe provides the whole world with a ponderable sample.