Art.3 ECHR

Question 1

Why have states argued that Art.3 is problematic?

Answer 1

Because they argue there should be limits and qualifications

Question 2

How is Art 3 different to Art 2?

Answer 2

Art.3 is short and unqualified - there are no exceptions

- it is a complete prohibition

Question 3

Court judgment they gave a legal definition of what would amount to torture under art.3

Answer 3

Ireland v UK (1978) - this was the first inter-state case that ever reached judgment by the court

HELD - that the UK govt weren’t sufficiently serious to amount to torture under art.3
- The treatment was inhuman but the effects weren’t serious enough

Question 4

What are the famous “five techniques”?

Answer 4

1. wall standing,
2. hooding,
3. subjection to noise,
4. deprivation of sleep,
5. deprivation of food and water.

Question 5

Legal definition of torture under Art.3

Answer 5

Ireland v UK (1978) -
“deliberate inhuman treatment causing very serious and cruel suffering.”

This means that the treatment can’t be an accident, it must be sufficiently serious, the effects must be sufficiently serious (high threshold)

Question 6

Case which highlights the high threshold for the legal definition of torture within Art.3

Answer 6

Ireland v UK (1978)
- use of the five techniques on lots of detainees amounted to a “practice” inhuman treatment by the UK govt but wasn’t held to be torture

NB - Last year the Irish govt asked the Strasbourg court to revise that judgment with the discovery of new evidence but they refused

Question 7

First court judgment of finding of torture under art.3

Answer 7

Aksoy v Turkey (1996)

Question 8

What was held to be sufficient maltreatment to come within the Ireland v UK definition of torture in Aksoy v Turkey (1996)?

Answer 8

• Aksoy was suspected of being a member of a terrorist organisation, he was held in detention and during those 2 weeks he was stripped naked, beaten, hosed with high pressure water, and “Palestinian hanging” (held off the ground by his arms)
• When he was released he went to a doctor, which found he had PERMANENT PARALYSIS OF BOTH ARMS. He brought a complaint to Strasbourg, before it got to the court, he was murdered.
• The Strasbourg court allowed his father to proceed with the case – the court held that the facts fell within the Ireland v UK definition of torture.

Question 9

Which case shows the ECtHR being ahead of its time on the issue of rape being used as a weapon of war

Answer 9

Aydin v Turkey (1997)
“83. . . Rape of a detainee by an official of the State must be considered to be an especially grave and abhorrent form of ill-treatment given the ease with which the offender can exploit the vulnerability and weakened resistance of his victim.”
- Court found that the brutality of the treatment that she had suffered torture and would include rape. State officials raping persons then the state will be liable for torture under Art.3 ECHR

COMPARISON - there is currently a UN resolution in United National Security Council seeking to prevent rape being used as weapon of war, which the US is threatening to veto

Question 10

Case which extended what amounts to committing torture in breach of Art.3 ECHR

Answer 10

Aydin v Turkey (1997) -
A woman was 17, was in a village which the security force saw as part of the terrorist organisation, she was detained with others.
- She claimed that when she was arrested they stripped her naked, beat her, high pressure water sprayed and she was raped.

HELD - rape would be included in definition of maltreatment amounting to torture

Question 11

Case in which the court held that it is now potentially more willing to find acts which amount to torture since the ratification of Protocol 11 i.e. since the contemporary court system

Answer 11

Selmouni v France (2000)
FACTS - Suspected of being a serious member of gang which trafficked drugs. They were arrested by the French police and he claimed that in the 3 days he was detained he suffered various maltreatment including being beaten by a baseball bat, urinated on, and was anally rape by a state official with a weapon.

HELD - They didn’t identify which earlier previous cases they would now classify as torture (didn’t say it was Ireland v UK) but they indicated they would be more willing.
- Adopting that approach they found that maltreatment (couldn’t prove the anal rape) had amounted to torture

BUT… this hasn’t been as large an extension as they claimed, hasn’t led to a massive increase in finding of torture and there is still a high threshold for torture

Question 12

What are the FOUR general categories within maltreatment under Art.3 ECHR?

Answer 12

1. Physical violence
2. Mental suffering
3. Conditions of detention
4. Extradition/Deportation

Question 13

Case which was a significant limit to abuse by state officials – don’t need to have wounds, bruising is enough to be classified s inhuman treatment Art.3 ECHR

Answer 13

Tomasi v France (1993)

FACTS - Tomasi was a suspected terrorist who was believed to have murdered some officials, he was detained and questioned. He claimed that while he was detained they beat him
- He was released and went to a doctor and got medical reports showing he had bruising on his body –> this was found to be enough physical violence to prove inhuman treatment

Question 14

Case which extended the limits on force on detainees significantly. Held that “in respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in A.3 of the Convention. . .”

Answer 14

Ribitsch v Austria (1996) - confirmed Tomasi v France (1993)
developed and applied in later cases that the state can’t use ANY force on detainees unless their behaviour causes the use of force.

Question 15

Case which commented on the evidential burden with proving physical violence as inhuman treatment under Art.3 ECHR

Answer 15

Ribitsch v Austria (1996)
- If you’re injured the state has the burden of providing a plausible explanation that his injuries were genuinely an accident –> it was inconsistency in evidence in domestic proceedings which concluded that the bruising wasn’t an accident

Question 16

Example case where mental suffering was found to be a breach of Art.3 ECHR as inhuman treatment - with the denial of public officials to give her information adding to the mental suffering

Answer 16

Kurt v Turkey (1998)
FACTS - Kurt was with her son in a village, security officials took away most men in the village including Kurt’s son. The other men in a few weeks were released but Kurt’s son never was. She asked around for 5 years, all officials denied knowledge. Mrs Kurt complained under art 3 on her own behalf, saying seeing her son being taken away in life threatening situations and son never being released and no one knew what happened, she said this amounted to suffering to her amounting to art 3.

HELD - Found breach of her mental suffering but didn’t classify which classification under art 3 it was

Question 17

Case in which the Grand Chamber (vip) considered how it would apply art 3 to psychological abuse

Answer 17

Gafgen v Germany (2010)
- murderer who wouldn’t reveal information of where the 10yr old boy/victim was (believing him to be alive) so police threatened him by saying that there was an expert torturer on his way. Successfully brought a claim to Strasbourg that this was psychological abuse amounting to inhuman treatment under Art.3 ECHR but wasn’t sufficient to classify as torture.

Question 18

Academic critique of Gafgen v Germany (2010)

Answer 18

• The GC finds art 3 absolute rights so even if state is trying to protect innocent victim, they can’t use pressure to protect this because there is no situation which could justify the infringement of Art.3. Not asking to be able to use torture but this case effectively prevents authorities from placing any pressure on an evil individual for the general good.
• This case offers clear similarities to the ticking time bomb scenario that certain politicians, philosophers and lawyers use to claim that it is justified to torture one person, someone who is suspected of having planted a bomb somewhere, in order to save the lives of – possibly thousands of – others.

Question 19

Case which held that the process of forcing the detainee to regurgitate the drugs was inhuman treatment.

Answer 19

Jalloh v Germany (2006)
- one of the reasons for finding this was because ECtHR found that this wasn’t common across Germany or other states elsewhere

Question 20

Why was there seemingly a divergence in Gafgen v Germany (2010) from the ruling in Jalloh v Germany (2006) that that “incriminating real evidence obtained as a result of torture, should never be relied on as proof of the victim’s guilt.”?

Answer 20

in Gafgan evidence obtained as a result of the threat of torture had been declared admissible for use during the criminal trial

HOWEVER - Gäfgen concerned evidence obtained as a result of inhuman treatment, not of torture. The Court has thus apparently created a difference between evidence obtained as a result of torture and evidence obtained as a result of inhuman treatment.
- and it was likely influential that he confessed to the crime at trial as well.

Question 21

Leading authority on the category of conditions of detention as inhuman treatment under art.3 ECHR

Answer 21

Hurtado v Switzerland (1994)
FACTS - once arrested the Swiss authorities failed to provide a doctor for 6 days. The doctor diagnosed him with a fractured rib. This was held to not be appropriate conditions of detention so amounting to inhuman treatment.

HELD - The court implied a positive obligation within Art.3 that states must protect the physical well-being of persons deprived of their liberty - duty to provide appropriate medical care is within this. People in detention are vulnerable. If they do not provide it, the court will classify this as inhuman treatment.

Question 22

Case which developed the two-part test when considering whether extradition/deportation would amount to inhuman treatment under Art.3 ECHR

Answer 22

Soering v UK (1989) -

Question 23

Case which first established the principle that a Member State can be in breach of a Convention right merely by expelling an individual to a state in which he or she would face a breach of a Convention right.

Answer 23

Soering v UK (1989)
- effectively established a hard protection against extradition in Art.3 cases as part of the courts extensive jurisprudence in support of the rights of prisoners.

Question 24

What is the significance of the decision in Soering v UK?

Answer 24

By finding a breach of the Convention on the territory of a non-signatory State, the Court considerably expanded the obligation to its signatory States. Not only are signatories responsible for consequences of extradition suffered outside their jurisdiction, but this jurisdiction implicitly extends to actions in non-signatory States.

• also there was an agreement between England and Virginia for them not to pursue the death penalty and this was overriden by the ECtHR!

Question 25

What is the two-part test in Soering v UK (1989)

Answer 25

two-part test - in para.91
“where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or inhuman or degrading treatment or punishment in the requesting country. . .”

• court also held it must take into account the circumstances relating to the death sentence - e.g. the conditions of detention, present day attitudes, manner in which it is imposed or executed etc.

revolutionary in its time - took into account the applicant’s youth at the time of the offence and his then mental state and the possibility of extradition to Germany instead (no death penalty)

Question 26

Authority which applied the Soering test in the context of deportation

Answer 26

Cruz Varas v Sweden (1991)
- If can show substantial grounds of real risk of art 3 as a result of being deported then can claim art 3 - This applied to the whole deportation process.

Question 27

TWO example cases where the Soering doctrine has proved particularly controversial in cases of suspected terrorism

Answer 27

Chahal v UK (1996) applied in Saadi v Italy (2008)

Question 28

Post 9/11 case which attempted to revisit the Chahal judgment

Answer 28

Saadi v Italy (2008)
reaffirmed the earlier Chahal test that art 3 rights are absolute so any national security is irrelevant, only “do they face a real risk of art 3 breach if deported”.

Art.3 is an absolute right - the deportee’s status could not be a material consideration.

Question 29

Case in which an individual sought to stop an ECHR state from deporting them where person was getting high level medical care in that ECHR states and if deported there would be less good medical care

Answer 29

D v UK (1997)

FACTS - Caribbean national during his prison sentence in the UK was found to have HIV. This developed and Home Security then allowed D to be released from prison as he was in terminal stages of AIDS and ordered D to be returned home as he was a foreign national. The lawyers then argued that if D was sent back to home state he would suffer Art 3.

HELD - at the end of his life, receiving good treatment in the UK and then deporting him where there is not good care, he would die very soon so this would amount to a breach.
- BUT… highlighted the exceptional nature of the facts. Difficult post D to show this – it has been applied to other states and applications following D v UK have been unsuccessful. A broad application would impose heavy burdens on ECHR states, simply because if they removed them they might face death.

Question 30

Academic opinion that the judgments in Chahal v UK (1996) applied in Saadi v Italy (2008) sometimes makes it difficult for governments to deal with suspected terrorists.

Answer 30

David Feldman in ‘Deporting suspected terrorists to face torture’ (2008)

Question 31

TWO leading cases on the issue of deportation within Art.3 as inhuman treatment where a person was getting high level medical care in that ECHR states and if deported there would be less good medical care

Answer 31

1. D v UK (1997)

2. Paposhvili v Belgium (2016) - contemporary approach of the grand chamber

Question 32

Authority for the new contemporary approach of the ECtHR when considering whether ECHR states will be liable if they are trying to deport a seriously ill individual

Answer 32

Paposhvili v Belgium (2016)

FACTS - As soon as he arrived in Belgium he committed crimes of violence, he was charged and committed and got various prison sentences. During the last stages they made a deportation order, by that stage he was suffering from serious life threatening conditions like leukaemia. Despite the treatment, provided by Belgium he died before the case concluded so they allowed his wife to continue the case.

HELD - developed the new test that the person doesn’t need to be on their death bed they just need to be seriously ill for a ECHR state to be liable if they are trying to deport.

p8 notes for important quote

Question 33

Only case on inhuman punishment under Art.3

Answer 33

Chember v Russia (2008) - shows how serious it has to be to come within this category

FACTS - The officer imposed a punishment on the group for not properly cleaning their dormitory, it required the claimant and others to do 350 knee press ups. He knew the claimant had a weak back. He wasn’t able to complete the punishment because they had caused him serious aggravation, he ended up with a further permanent disability with his back.

HELD - it was punishment and the nature of the consequence of the punishment i.e. a physical disability, was enough to amount to inhuman punishment.

Question 34

General example case for the treatment of prisoners in Russian prisons

Answer 34

Kalashnikov v Russia (2002)
FACTS - Kalashnikov was being held in detention prior to his criminal trial. The conditions in the prison included - 24 inmates in the cell, they had to have a rotation of 3 inmates sleeping in the bed while others were on the floor. Others had serious infectious diseases like TB and there was only 1 toilet for 24 men

HELD - Art 3 is an ultimate right and having insufficient financial resources wasn’t a justification. They found this overcrowding and health risks amounted to degrading treatment.

Question 35

Case in which the Strasbourg court completely ruled out the use of metal cages in criminal sentencing as degrading treatment under Art.3 ECHR

Answer 35

Svinarenko; Slyadnev v Russia (2014)

- it was just standard practice in trials, not a punishment

Question 36

Leading authority for degrading punishment under Art.3 ECHR

Answer 36

Tyrer v UK (1978)

FACTS - in the Isle of Man but they are a dependent territory so the UK is held responsible because of Art. 56 Convention. At this time corporal punishment was acceptable there. Corporal punishment in isle of man was described as a birching – a collection of birch branches tied together and they were wacked on their naked bum with them. It was to be carried out in a police station by a police officer, a medical doctor would be present with the power to intervene.

HELD - nowhere else in the ECHR is using corporal punishment (corporal punishment had been ended everywhere else in the UK in the 1960s) so even though the isle of man were in favour of it amounted to degrading punishment.

“The assessment is, in the nature of things, relative: it depends on all the circumstances of the case, and, in particular, on the nature and context of the punishment itself and the manner and method of its execution.”

Question 37

Case in which the Strasbourg court applied the ‘living instrument’ approach for the first time when considering cases under Art.3 ECHR

Answer 37

Tyrer v UK (1978)
Sometimes called the evolutive approach. Method of the court giving meaning to the Convention at the time the judgment is being made.

Question 38

Case about the powers of parents to use physical punishment on their children within inhuman treatment under Art.3 ECHR –> Rare example of positive obligations under art.3

Answer 38

A v UK (1998)
FACTS - the step-father was able to apply the English common law of defence using reasonable force regarding physical punishment of his 9 yr old step-son which was complained about by the child’s natural father

HELD - “22. . . .Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity. . .”
- Court found English law in breach by using that defence didn’t provide sufficient protection. Shows that states must have appropriate criminal law proceedings. .

Question 39

Example of a positive obligation to protect - case which involved the hard decision of how social workers protect vulnerable children -

Answer 39

Z and Others v UK (2001)
FACTS - There were 4 siblings under the age of 10, when the siblings went to school the teachers were concerned with the health, e.g. hygiene and lack of food, of these children. When they became aware they contacted the local social workers, they went and interviewed the parents and came to the view that those parents weren’t deliberately maltreating their children they were just incapable of providing this basic level of care. Social workers held that because they weren’t deliberately mistreating them they thought the best thing they could do was support and guide the parents to ensure they’re doing well.

HELD - states are under a positive obligation to take “reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge.” (para.73)
- so the UK were held responsible for not exercising appropriate protective measures for the children.