CYIL vol. 8 (2017)

PETR ŠUSTEK CYIL 8 ȍ2017Ȏ All of the Articles listed in the last sentence of the Article 16 (1) can be relevant in the context of health care. We may briefly present them: Article 10 (1): “Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel , public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment . [emphasis added]“ Article 11: „Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture. [emphasis added]“ Article 12: „Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction. [emphasis added]“ Article 13: „Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities . Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given. [emphasis added]“ The conduct of a health care provider is imputable to the State which failed to fulfil one of these obligations. It is important to notice that many restrictions of personal freedoms are completely legal under some jurisdictions (including Czech law), making the question of imputability very clear. The implementation of the Convention against Torture by its State Parties is monitored by the Committee against Torture (hereinafter “ CAT ”), consisting of ten independent experts who carry out visits in the UN Member States and make recommendations. The position of the CAT on the problem of restrictions of personal freedom in the context of health care in the Czech Republic will be discussed below. Another important international law convention abolishing torture and certain similar conducts is the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “ European Convention on Human Rights ”) from 1950. This European basic human rights catalogue in its Article 3 categorically states that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment“ . The prohibition of torture is one of four rights established by the European Convention on Human Rights that cannot be derogated in time of emergency. 4 The European Convention on Human Rights is applied and interpreted by the European Court of Human Rights (hereinafter “ ECtHR ”) notoriously based in Strasbourg. Since they are considered exceedingly grave, alleged violations of the right established in Article 3 are 2. European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

410

4 Article 15 of the European Convention on Human Rights.