3. Prohibition of torture under Article 3 Flashcards
What is art. 3 of the convention?
Prohibition of turture
What does art. 3 say?
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.
What is the charasteristic of art. 3?
This is the shortest article in the Convention.
Is it possible to derogate from the article?
The fundamental character of the prohibition is affirmed by the fact that no derogation in respect of its provisions is permitted even in time of war or public emergency.
Which 3 types of actions are subjected in art. 3?
Three types of actions are subject to Art. 3:
(1) torture,
(2) , inhuman treatment or punishment,
(3) degrading treatment or punishment.
Prohibition of torture
Chahal v UK (absolute aspect)
U.K was precluded from returning a Sikh separatist to India, because the Court concluded that there would be a very real risk that the applicant would be the victim of ill- treatment at the hands of rogue elements within the Punjab Police. The case illustrates absolute nature of the prohibition. UK wished to deport Chahal to India arguing that he had been involved in terrorist activities and posed a risk to the national security of the UK. The Strasbourg court said: “Art 3 enshrines one of the most fundamental values of democratic society. The court is well aware of the immense difficulties faced by states in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the V’s conduct”.
Prohibition of torture
Gäfgen v Germany (absolute even in most difficult situation)
In this case, the absolute nature of art. 3 was again underlined. Gäfgen kidnapped the son of a German banker for a ransom. He was arrested,and unknown to the police, he had already killed the boy. The police officers in charge of the interrogation believed the boy’s life was in grave danger and made threats of violence against Gäfgen in order to extract information about where the boy was held. Gäfgen told the police where the boy was and the police retrieved the boy’s body along with other evidence. Gäfgen was convicted of the boy’s murder. The police officers were found guilty under German law of using coercion. They received a small fine.
The Strasbourg Court noted that “The prohibition of art. 3 applies irrespective of the conduct of the victim or the motivation of the authorities. Torture, degrading og inhumane treatment cannot be inflicted even where the life of an individual is at risk. Art. 3, which has been framed in unambiguous terms, recognises that every human being has an absolute, inalienable right not to be subject to torture or to inhuman or degrading treatment under any circumstances, even the most difficult”.
What is concerned in art. 3 / how can a conduct fall within art. 3?
Article 3 is only concerned with conduct which attains “a minimum level of severity”
In order for conduct to fall within Art 3, it must “attain a minimum level of severity”. This test will apply whatever the category of conduct in issue. The effect of setting a significant threshold is that trivial complaints, and even activity which is undesirable or illegal, will not fall within the scope of the prohibition in Art 3 unless it causes sufficiently serious suffering or humiliation to the victim.
Jalloh v Germany (minimum level of severity)
Grand Chamber restated the court’s long-standing view: “…ill-treatment must attain a minimum level of severity if it is to fall within the scope of Art 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex,
age and state of health of the victim…”
What is administrative practisce?
Where the factual evidence shows that the complained of action, even though it is unlawful, has been repeated time and again by state agents, and where there has been official tolerance of the conduct at more senior level, this has come to be known as administrative practice.
The court characterised an administrative practice as: “an accumulation of identical or analogous breaches which are sufficiently numerous and inter-connected to amount not merely to isolated incidents or exceptions but to a pattern or system…”.
How is torture defined?
The United Nations drafted the Convention Against Torture (UNCAT) containing a detailed definition of torture in its article 1:
“the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person
Why does UN convention dfferentiates between toture and other forms of ill treatment
The UN Convention differentiates between torture and other forms of ill-treatment. This distinction has important consequences under the UN Convention as prohibitions of State action and the legal obligations places on States are only applicable to torture under UNCAT art. 1. In contrast, Art. 3 of the ECHR clearly prohibits all three forms of ill-treatment in the article.
The distinction between torture and inhuman treatment
In Ireland v United Kingdom
In Ireland v United Kingdom, the Irish Government alleged that persons in custody in Northern Ireland had been subjected to treatment which constituted torture and inhumane and degrading treatment and punishment within the meaning of article 3 and that such treatment constituted an administrative practice.
5 “techniques” were used when interrogation the arrested members: wall-standing, hooding, subjection to noise, and deprivation of sleep + diet of only bread and water.
No physical injury resulted from the application of the techniques, but the “prisoners” suffered acute psychiatric symptoms developed during the interrogations.
The Court reasoned that the difference between inhuman treatment and torture principally lies in a difference in the intensity of the suffering inflicted.
conclusion, the court found (surprisingly) that the treatment
constituted inhuman and degrading treatment in violation of art. 3,
but not torture.
How is torutre different from inhuman treatment
Nevertheless, many judges dissented this finding.
As regards torture, torture is different from inhuman or degrading treatment due to the intensity of the suffering inflicted.
Torture must be an aggravated and deliberate form of inhuman treating causing very serious and cruel suffering. I
When did the court firstly find that torture had happened? And what was the case about?
Aksoy v Turkey (first torture case) – The applicant had been stripped naked, with his arms tied together behind his back, and suspended by his arms. The court, for the first time, found a Contracting Party guilty of torture.
How to define inhuman treatment and punishment
Inhuman and degrading treatment or punishment have a different degree of severity than torture. This is the only difference. Moreover, inhuman or degrading treatment do not necessarily need to be deliberate. All the circumstances of the case must be considered.
inhuman treatment and punishment
In Tyrer v United Kingdom (punishment)
Mr. Tyler also had to take down his trousers and underpants and bend over a table while being held by two policemen whilst a third administered the punishment.
he Court said that the nature and context of the punishment itself, and the manner and method of its execution should be considered in determining whether a punishment constituted inhuman or degrading treatment
inhuman treatment and punishment
Öcalan v Turkey (treatment)
In Öcalan v Turkey (treatment), the court concluded that the imposition of the death penalty after an unfair trial would constitute a breach of art 2. Later in Al Saadoon and Mufdhi v United Kingdom, the court further found that death penalty itself is a violation of article 3, amounting to inhuman treatment.
How to define degrading treatment
Gross humiliation or being driven to act against will or conscience are usually required in most cases where degrading treatment is found, however this is not always a necessary ingredient of degrading treatment. Nevertheless, where humiliation or debasement is present, the threshold of severity would appear to require that the humiliation is severe. This may depend on the context and circumstances of the State action.
- Racial discrimination = Degrading treament
Obligations concerning the removal of persons from the state (extraterritorial affect)
Soreing v United Kingdom
In certain circumstances art. 3 can have an extraterritorial effect. In Soreing v United Kingdom, the court recognised that a Contracting Party may violate art. 3 if its action exposes a person to the likelihood of ill-treatment in a place outside its jurisdiction. The case concerned the possible extradition to the US where ‘death row phenomenon’ was regarded as inhuman punishment. The court made it clear that the violation of the Convention in such circumstances is that of the sending State, and, by implication, the court, is not seeking to pass any judgement on a State which is not party to the Convention.
Obligations concerning the removal of persons from the state (extraterritorial affect)
Obtaining assurances
There is nothing wrong with obtaining assurances from the receiving State that a person to be removed will not be sentenced to death or life imprisonment.
In Othman (Abu Qatada) v United Kingdom, the Court expanded on the criteria it will apply when considering diplomatic assurance from the receiving State.
Obligations concerning the removal of persons from the state (extraterritorial affect)
Assessment of risk
In determining whether there would be a risk that a person would be subject to treatment falling within art. 3 if removed to another country, the court will take account of reports of NGOs (such as Amnesty International), but may conclude that such findings constitute a description of the general situation and do not support specific allegations made by applicants to the Court, which will require corroboration by other evidence.
Where deportation of an unaccompanied young child is involved, there must be proper arrangements for the welfare of the child both throughout the journey and on arrival at the destination. Failure to put such arrangement in place will violate Article 3.
Obligations concerning the removal of persons from the state (extraterritorial affect)
Unlawful rendition (overgivelse)
In El-Masri v FYR Macedonia
The issue of the unlawful rendition of a person from one State to another has led to several cases before the court, which examine the use of extraordinary rendition by the CIA involving the alleged complicity of European States in removal of suspected terrorists to secret interrogation centres in non-European states.
In El-Masri v FYR Macedonia, the applicant, who lived in Germany was held by Macedonian authorities while visiting Skopje. He was handed over to CIA agents and flown to Afghanistan. Macedonia violated art. 3 for allowing the applicant to be flown to a place where there were substantial grounds for believing that he was at real risk of ill- treatment.
Obligations concerning the removal of persons from the state (extraterritorial affect)
Asylum seekers and the EU system
In a number of cases involving asylum seekers, the court has held that Contracting Parties has violated art. 3.
In J.K. and others v Sweden, the court set out criteria for examining whether past ill-treatment is evidence for future risk for rejected asylum seekers. The court thus stated that it will be for the Government to dispel any doubts about the risk or future treatment in contrary to art. 3. This test has been criticised by one of the Dissenting Opinions as being incoherent and placing a heavy burden on the States.
In M.S.S. v Belgium and Greece, the court found that Belgium violated art. 3 due to the real risk of ill-treatment to an Afghani asylum seeker if he returned to Greece. The court examined the applicant’s detention and living conditions when released from detention in Greece. It found not only that the conditions of detention for asylum seekers violated art. 3, but that the situation of destitution that the destitution that the applicant found himself in when released from detention was within the responsibility of the state. The applicant’s living conditions amounted to degrading treatment under art. 3..
