Prohibited treatment - article 3

Question 1

what does article 3 say?

Answer 1

no one shall be subjected to torture or to inhuman or degrading treatment or punishment

Question 2

what is the order from worst to least?

Answer 2

torture
inhuman treatment
inhuman punishment
degrading treatment
degrading punishment

Question 3

what is the definition of torture?

Answer 3

“Torture is generally an aggravated form of inhuman treatment”, “which has a purpose, such as the obtaining of information or confessions, or the infliction of punishment”

For the court, torture is “deliberate inhuman treatment causing very serious and cruel suffering”

Question 4

what is inhuman treatment?

Answer 4

“The notion of inhuman treatment covers at least such treatment as deliberately causes severe suffering, mental or physical”

“The suffering occasioned must attain a particular level before a punishment can be classified as “inhuman” within the meaning of article 3”

Question 5

what is degrading treatment?

Answer 5

Where treatment humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of article 3

Question 6

what else can be included under degrading treatment?

Answer 6

• suffering which flows from naturally occurring illness, physical or mental, could be covered
• where it is exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible

Question 7

what is the minimum level of severity?

Answer 7

ill treatment must attain minimum level of severity

Question 8

what does the assessment of minimum level of severity depend on h

Answer 8

all the circumstances of the case
such as:
- duration of the treatment
- its physical or mental effects
- sex age and health of the victim

Question 9

when might ill treatment take a greater dimension

Answer 9

if she or he belongs to a particularly vulnerable group.
This is because the person is less likely to have the resilience of another person, and, as such, they are more likely to be impacted by the treatment – Price v United Kingdom [2002]

Question 10

what does the convention prohibit irrespective of the victims conduct?

Answer 10

convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment

there are no provisions for exceptions

Question 11

what is the negative obligation under article 3?

Answer 11

imposition of ill treatment by public authority

Question 12

what is the positive obligation under article 3?

Answer 12

there should be general legal measures and special protective measures

Question 13

what are the general legal measures under the positive obligation?

Answer 13

An effective system of criminal and civil law is required so that remedies, such as punishment or compensation, are available against those responsible for causing suffering that constitutes torture, inhuman or degrading treatment or punishment

Question 14

what are the special protective measures under the positive obligation ?

Answer 14

Knowledge = did the authorities know (or ought to have known) of a real and immediate risk that an identified individual would be subject to torture, inhuman or degrading treatment?

Reasonable measures = did the authorities fail, within the scope of their powers, to take reasonable measures to provide effective protection against acts of ill treatment?

Question 15

what is the procedural obligation?

Answer 15

effective investigation is required
the same standards apply as those under article 2

Question 16

when is the duty to investigate triggered?

Answer 16

Duty to investigate where credible evidence suggests that one or more individuals has been subjected to treatment grave enough to breach art 3

Where it is committed with the support of the state – R(AM) v SSHD [2009]

Where it is committed by a private party – Commissioner of Police of the Metropolis v DSD and Anor [2018]

Question 17

in order for a punishment or treatment associated with prison to be human or degrading what are the requirements?

Answer 17

the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment

Question 18

what does article 3 require of the state in relation to prisoners?

Answer 18

• to ensure that prisoners are detained in conditions that are compatible with respect for their human dignity
• that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention
• that, given the practical demands of imprisonment, their health and well-being are adequately secured

Question 19

whats the negative obligation on the state in terms of people in detention?

Answer 19

a negative obligation exists on the state to not expose the person to detention conditions that cause or prolong physical or mental suffering to a degree incompatible with art 3

Question 20

what is the positive obligation on the state in terms of prisoners?

Answer 20

positive obligation on the state to safeguard dignity and ensure that the health and welfare of a detainee is adequately secured, providing him with suitable conditions

Question 21

in detention what are the factors that a violation of article 3 will rely on?

Answer 21

-Size of personal space
-Availability and duration of outdoor exercise or purposeful activity
-Access to natural light and fresh air
-Suitability of heating arrangements
-Sufficiency of nutrition
-Access to proper and private toilet facilities
-Sanitary and hygienic conditions

Question 22

what is said in terms of access to medical care for prisoners?

Answer 22

article 3 of the convention requires states to ensure that the health and well-being of prisoners are adequately secured by, among other things, providing them with the requisite medical assistance

Question 23

what is said in terms of solitary confinement?
- what will constitute inhuman treatment

Answer 23

Complete sensory isolation, coupled with total social isolation, can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reason

Question 24

when will solitary confinement not be inhuman treatment?

Answer 24

Solitary confinement will not though, of itself, constitute inhuman treatment where this done for security reasons and the person still has social contact with others

Question 25

what does solitary confinement being a breach of article 3 depend on?

Answer 25

It depends on the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned