The September (!) issue of the Leiden Journal of International Law has already been published and contains an article which takes a fresh look at the absolute character of Article 3 ECHR: ‘In Search of a Fair Balance: The Absolute Character of the Prohibition of Refoulement under Article 3 ECHR Reassessed’, authored by Hemme Battjes of the Free University Amsterdam. A clear account of a very important issue. This is the abstract:
According to well-established case law of the European Court of Human Rights, the prohibition on expulsion resulting in ill-treatment under Article 3 of the European Convention on Human Rights is ‘absolute’: it does not allow for balancing of interests. Analysis of the Court’s case law, however, shows that the application of the provision involves various forms of balancing, for example when delimiting the burden of proof or qualifying an act as ill-treatment. The absolute character expresses a value judgement about the importance of the prohibition, and it serves as an argumentative tool applied to sustain wide or inclusive readings of Article 3 ECHR.
