Article 3 Flashcards
What is article 3 ECHR
Freedom from torture, inhuman, and degrading treatment
Is Article 3 an absolute right
Yes, it has no exceptions
Authority for absolute right
Saadi v Italy
Essay will argue
That it is not absolute
What is torture
intentional inhuman treatment that causes serious suffering
Inhuman treatment to a worse degree, special stigma attached
Authority for torture definition
Ireland v UK - five interrogation techniques used on suspected IRA terrorists
What is inhuman treatment
Treatment that causes suffering or humiliation beyond reasonable level of that practice
Does inhuman treatment require intention
No
What is degrading treatment
Any treatment that offends the dignity of an individual
Authority for degrading treatment
Ahmet Ozkan and others v Turkey - any treatment that has an adverse effect on a person’s personality
Arguments in favour of Article 3 being absolute
1) No statutory exceptions
2) War time prohibition
3) Limited discretion
4) No margin of appreciation
No statutory exceptions
No second paragraph
Gewirth refers to this as rule absolutism
War time prohibition
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
Limited discretion
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
Authority for negative obligation
Mouisel v France
No margin of appreciation
Self-evident
Arguments against Article 3 being absolute
1) subjective standards
2) minimum level of severity
3) speculation
Subjective standards
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
Minimum level of severity
An application must reach this minimum level of severity to be considered. Judged circumstantially. Not all ill treatment is heard
Authority for circumstantial minimum level of severity
Rooman v Belgium
Counter argument to minimum level of severity
This level actually provides greater definition to ill treatment
would be unrealistic to try and consider everything
Speculation
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
Authority for speculation
D v United Kingdom
Counter to speculation
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
Conclusion
Answer the question - relatively absolute
