Article 3

Question 1

What is article 3 ECHR

Answer 1

Freedom from torture, inhuman, and degrading treatment

Question 2

Is Article 3 an absolute right

Answer 2

Yes, it has no exceptions

Question 3

Authority for absolute right

Answer 3

Saadi v Italy

Question 4

Essay will argue

Answer 4

That it is not absolute

Question 5

What is torture

Answer 5

intentional inhuman treatment that causes serious suffering

Inhuman treatment to a worse degree, special stigma attached

Question 6

Authority for torture definition

Answer 6

Ireland v UK - five interrogation techniques used on suspected IRA terrorists

Question 7

What is inhuman treatment

Answer 7

Treatment that causes suffering or humiliation beyond reasonable level of that practice

Question 8

Does inhuman treatment require intention

Answer 8

No

Question 9

What is degrading treatment

Answer 9

Any treatment that offends the dignity of an individual

Question 10

Authority for degrading treatment

Answer 10

Ahmet Ozkan and others v Turkey - any treatment that has an adverse effect on a person’s personality

Question 11

Arguments in favour of Article 3 being absolute

Answer 11

1) No statutory exceptions
2) War time prohibition
3) Limited discretion
4) No margin of appreciation

Question 12

No statutory exceptions

Answer 12

No second paragraph

Gewirth refers to this as rule absolutism

Question 13

War time prohibition

Answer 13

Articled 15 ECHR expressly prohibits article 3 treatment even in times of war. This was previously allowed under Protocol 6 of the ECHR but is now completely outlawed

Question 14

Limited discretion

Answer 14

Common law has developed three obligations under Article 3, interpreted strictly

1) negative obligation - must not engage in this treatment

2) positive obligation - must have adequate framework, take preventative measures, and prevent non-refoulement

3) procedural obligation - adequate investigation

Question 15

Authority for negative obligation

Answer 15

Mouisel v France

Question 16

No margin of appreciation

Answer 16

Self-evident

Question 17

Arguments against Article 3 being absolute

Answer 17

1) subjective standards
2) minimum level of severity
3) speculation

Question 18

Subjective standards

Answer 18

ill treatment is defined circumstantially. Opportunity for inconsistency

e.g., in Ireland v UK - what would now be torture was defined as inhuman treatment, with one judge even suggesting it did not amount to degrading treatment

Question 19

Minimum level of severity

Answer 19

An application must reach this minimum level of severity to be considered. Judged circumstantially. Not all ill treatment is heard

Question 20

Authority for circumstantial minimum level of severity

Answer 20

Rooman v Belgium

Question 21

Counter argument to minimum level of severity

Answer 21

This level actually provides greater definition to ill treatment

would be unrealistic to try and consider everything

Question 22

Speculation

Answer 22

Article 3 can be activated where there is a threat of future ill treatment. Nature of this treatment is not yet certain, meaning right is not absolute

Question 23

Authority for speculation

Answer 23

D v United Kingdom

Question 24

Counter to speculation

Answer 24

Does not say violation has taken place, only that it would be a violation if this were to happen. Encourage prevention

Similarly, only where the treatment is guaranteed as prescribed by law in other place

Question 25

Conclusion

Answer 25

Answer the question - relatively absolute