3. Prohibition of torture under Article 3

Question 1

What is art. 3 of the convention?

Answer 1

Prohibition of turture

Question 2

What does art. 3 say?

Answer 2

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.

Question 3

What is the charasteristic of art. 3?

Answer 3

This is the shortest article in the Convention.

Question 4

Is it possible to derogate from the article?

Answer 4

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.

Question 5

Which 3 types of actions are subjected in art. 3?

Answer 5

Three types of actions are subject to Art. 3:

(1) torture,
(2) , inhuman treatment or punishment,
(3) degrading treatment or punishment.

Question 6

Prohibition of torture

Chahal v UK (absolute aspect)

Answer 6

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”.

Question 7

Prohibition of torture

Gäfgen v Germany (absolute even in most difficult situation)

Answer 7

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”.

Question 8

What is concerned in art. 3 / how can a conduct fall within art. 3?

Answer 8

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.

Question 9

Jalloh v Germany (minimum level of severity)

Answer 9

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…”

Question 10

What is administrative practisce?

Answer 10

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…”.

Question 11

How is torture defined?

Answer 11

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

Question 12

Why does UN convention dfferentiates between toture and other forms of ill treatment

Answer 12

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.

Question 13

The distinction between torture and inhuman treatment

In Ireland v United Kingdom

Answer 13

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.

Question 14

How is torutre different from inhuman treatment

Answer 14

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

Question 15

When did the court firstly find that torture had happened? And what was the case about?

Answer 15

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.

Question 16

How to define inhuman treatment and punishment

Answer 16

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.

Question 17

inhuman treatment and punishment

In Tyrer v United Kingdom (punishment)

Answer 17

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

Question 18

inhuman treatment and punishment

Öcalan v Turkey (treatment)

Answer 18

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.

Question 19

How to define degrading treatment

Answer 19

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

Question 20

Obligations concerning the removal of persons from the state (extraterritorial affect)

Soreing v United Kingdom

Answer 20

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.

Question 21

Obligations concerning the removal of persons from the state (extraterritorial affect)

Obtaining assurances

Answer 21

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.

Question 22

Obligations concerning the removal of persons from the state (extraterritorial affect)

Assessment of risk

Answer 22

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.

Question 23

Obligations concerning the removal of persons from the state (extraterritorial affect)

Unlawful rendition (overgivelse)

In El-Masri v FYR Macedonia

Answer 23

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.

Question 24

Obligations concerning the removal of persons from the state (extraterritorial affect)

Asylum seekers and the EU system

Answer 24

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..

Question 25

Obligations concerning the removal of persons from the state (extraterritorial affect)

Health

D v United Kingdom (AIDS, exceptional, violates art. 3)

Answer 25

In cases involving health as a reason for giving rise to a real risk of ill- treatment, the court has developed an extremely high threshold of severity that has to be met before finding a violation of art. 3.

D v United Kingdom (AIDS, exceptional, violates art. 3) – D was a national of St Kitts in prison in the UK. He suffered from AIDS and was subject to deportation back to St Kitts. D argued that he was in the advanced stages of the illness, medical services in St Kitts would be unable to provide treatment for his condition, and he had no relatives or friends in St Kitts who could take care for him.
The court was clearly influenced by the consequeces of the abrupt withdrawal of the medical and personal care afforded to him in the UK by a leading AIDS charity. In the ‘very exceptional circumstance’ of this case, the court concluded that deportation would violate art. 3.

(The court caliried that the deportation of a person suffering from HIV or AIDS would not normally give rise to a violation of art. 3.)

Question 26

Disappearances

Kurt v Turkey

Answer 26

Kurt v Turkey – The case concerned an application by a mother in relation to her disappeared son. This case appears to be the first consideration by the Court of the issue of disappearance under Article 3. The Court accepted that the uncertainty and apprehension suffered by the applicant over a prolonged and continuing period caused her severe mental distress and anguish. The Commission had concluded that this constituted

Question 27

Disappearances

Cakici v Turkey

Answer 27

Cakici v Turkey – The court established some general principles governing disappearance cases. Whether a family member is a victim of treatment contrary to art. 3 will depend on the existence of special factors which gives suffering of the applicant. Relevant elements: family tie, extend to which the person witnessed the event, the involvement in attempt to obtain information about the disappeared person, and the way in which the authorities responded to these enquires.

Question 28

Use of force by the state

Answer 28

The court has made it clear that the use of force by State agents may be used in well-defined circumstances but the force must be ‘indispensable’ and not excessive. It will take a strict proportionality approach in considering the injuries caused and the circumstance surrounding the use of force.

Question 29

Destruction of homes and possessions

Answer 29

Moldovan v Romania – court found that the involvement of state agents in the destruction of the homes of those of Roma origin coupled with failures of state agencies to prosecute those responsible and to manage the reconstruction of the destroyed homes effectively were motivated by racial discrimination. This constituted a serious violation of Art 8 of the convention which in turn constituted degrading treatment in breach of Art 3.

Question 30

Corporal punishment

Answer 30

Tyrer v UK – concerned the imposition of the penalty of birching in the Isle of Man on a 15-year-old who had been convicted of assault on a senior pupil at his school. The punishment was administered by a police constable in private in the presence of the boy’s father and a doctor. In concluding that the punishment of Tyrer constituted degrading treatment, the court had regard to its character as “institutionalised violence”, to the fact that the punishment constituted an assault on the applicant’s dignity and physical integrity, which may have had adverse psychological effects, and to the anguish of anticipating the punishment.

The factors which the court found do not save a punishment from violating Art 3: a punishment may be ‘degrading’ even though (1) it does not outrage public opinion, (2) it is an effective warning, (3) it is administered in private, (4) it inflicts no lasting injury, (5) it is imposed for crimes of violence

Question 31

Protection from gender-based violence

Answer 31

The risk of gender-based violence can be grounds for not sending somebody back to a state where there is a substantial risk of ill- treatment. This can be the risk of inhumane punishment (for example stoning, Jabari v Turkey), risk of female genital mutilation (as in Nigeria), or removal of a single woman to Somalia who may be subject to forced marriage or lack of protection form violence.

Question 32

Acts in the course of arrest and police detention

Answer 32

Svinarenko and Sladnev v Russia (metal cage) – Applicants where put in metal cages during court proceedings. This violated art. 3. Countries have since replaces metal cages with glass cabins, which do not constitute a violation. However, in Yaroslav Belousov v Russia (glass cage), it violated art. 3 that the cramped conditions and length of time spent in the glass cabin in the courtroom and the public exposure in these conditions where enough to be degrading treatment under art. 3.

Question 33

Acts in the course of arrest and police detention

Jalloh v Germany (cocaine swallowing)

Answer 33

alloh v Germany (cocaine swallowing) – addresses the limits of investigation methods following arrest. Jalloh was suspected of involvement in drug dealing and had been seen to swallow a small plastic bag. While in detention, a prosecutor authorised the use of an emetic in order to secure regurgitation of the item which had been swallowed. Jalloh resisted, but the medication was administered by force and a bag of cocaine was regurgitated. The applicant argued that forcible administration of the emetic amounted to a breach of Art 3 particularly in the light of considerable medical evidence of the dangers of such a procedure. The court affirmed the obligation of the contracting parties to protect the physical well-being of those in detention under suspicion of having committed offences. While any measure which is regarded as of therapeutic necessity cannot be regarded as inhuman or degrading, procedures designed to secure evidence from a suspect require further consideration. Procedures such as that in issue in this case require weighing of all the risks of the procedure, its intrusiveness, the pain and suffering involved, the alternative procedures which may be available, the medical supervision involved, and the seriousness of the offence being investigated. In all the circumstances of the case, the Grand Chamber concluded by 10 votes to 7 that the procedure had amounted to inhuman and degrading treatment – big controversy.

Question 34

Condition of detention

Peers v Greece

Answer 34

In each case the facts must be viewed in the light of the circumstances as a whole. Thus, the physical condition of the applicant may make treatment which would otherwise be lawful contrary to Art 3; conversely the applicant’s own conduct may exceptionally legitimise a degree of violence which would otherwise be prohibited.

Peers v Greece - The Strasbourg court concluded that confinement in a cell with no ventilation and no window at the hottest time of the year in circumstances where the applicant had to use the toilet in the presence of another and was present while the toilet was being used by his cell mate diminished his human dignity and amounted to degrading treatment.

Question 35

Condition of detention

Treatment of detainees, including the use of solitary confinement

Nevmerzhitsky v Ukraine (force-feeding)

Answer 35

Nevmerzhitsky v Ukraine (force-feeding) – force-feeding a prisoner, where it could not be established that this was a medical necessity supported by genuine medical opinions, has been held to constitute torture.

Iwanczuk v Poland (strip search)

Ramirez Sanchez v France (isolation)

Question 36

Condition of detention

Medical attention for detainees

Answer 36

The court has consistently ruled that all prisoners are entitled to conditions of detention which are compatible with human dignity. This includes having appropriate regard for their well-being. Very special measures will need to be put in place where a prisoner constitutes a suicide risk.

Question 37

Condition of detention

Length of detention

Answer 37

The court has said that a sentence whose severity bore no relationship to the offence could amount to an inhuman punishment. Article 3 should be considered as imposing an absolute prohibition of certain forms of punishments such as flogging (whipping), which are by their nature inhuman and degrading. Within that limit, all circumstances of the individual cases are relevant

Kafkaris v Cyprus (life-sentence is not prohibited)
he imposition of a life sentence on an adult offender is not in itself incompatible with any provision of the Convention

Question 38

Positive obligation of art. 3.

Answer 38

Positive obligations under Art 3 would appear to involve two elements:

(1)The obligation to protect persons from ill-treatment by third
parties.

(2)Procedural duty to carry out an effective investigation into ill-treatment.

Question 39

Positive obligations

1) Obligation to protect against ill-treatment from third parties

Answer 39

This obligation requires states to take legislative measures which constitute effective deterrence and protection. This issue alone rarely troubles the court. It is often the operation in practice that rises concerns.

Question 40

Positive obligations

2) What can you say about the duty to investigate?

Answer 40

Duty to investigate
The investigation must be thorough, expedient, and independent, with the capacity to lead to the identification of the perpetrators whether state agents or private individuals.

Failures of the judicial authorities to take up investigations will also engage the obligation in Art 3

Question 41

Evidential issues

Answer 41

Because a finding that a Contracting Party is guilty of torture, or even of inhuman and degrading treatment, carries a certain stigma, the convention organs have required a very high standard of proof of the conduct, even using the term “beyond reasonable doubt” in Ireland v United Kingdom.