Achieving the Material Element of the Crime of Submission to Ill Treatment from the Perspective of the ECHR Jurisprudence

Abstract

The Criminal Code in force regulates the submission to ill treatment in the chapter dedicated to offenses against the act of justice. The harmonization of the national legislation with the EU legislation, especially with the European Convention on Human Rights (Article 3) and its Protocols is being sought, without forgetting, however the concrete situations that must be decided in Romania. For this reason, in order to establish the material element of this crime, the point at which the suffering caused to a person cannot be considered mere brutality, but serious enough to be regarded as inhuman or degrading treatment or even torture was determined. Moreover, it should be considered that the concept of minimum level of gravity disappears in the case of prisoners, because the obligation of protection is greater in their case. Any act of gratuitous violence, no matter how insignificant, against a prisoner determines the application of Article 3 of the Convention without taking into account the minimum level of severity.

Keywords

• inhuman or degrading treatment; fundamental human rights; detention